Citation Nr: 20046883 Decision Date: 07/13/20 Archive Date: 07/13/20 DOCKET NO. 15-05 760 DATE: July 13, 2020 ORDER Entitlement to a disability rating higher than 10 percent for the service-connected left knee limitation of motion is denied. Entitlement to a disability rating higher than 10 percent for the service-connected left knee lateral instability is denied. FINDINGS OF FACT 1. The service-connected left knee limitation of motion is manifested by full extension and painful flexion that exceeds 45 degrees. 2. The service-connected left knee lateral instability is manifested by slight lateral instability. CONCLUSIONS OF LAW 1. The criteria for a disability rating higher than 10 percent for the service-connected left knee limitation of motion have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5256, 5260, 5261 (2019). 2. The criteria for a disability rating higher than 10 percent for the service-connected left knee lateral instability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a veteran (the Veteran) who had active duty service from July 1981 to November 1993. In March 2018, the Veteran presented testimony at a Board hearing, chaired by the undersigned Veterans Law Judge sitting at the RO. The Veteran was informed of the basis for the RO’s denial of his claim and he was informed of the information and evidence necessary to substantiate the claim. A transcript of the hearing is associated with the claims file. 38 C.F.R. § 3.103 (2019). In July 2018, the Board remanded this appeal for additional evidentiary development. The appeal has since been returned to the Board for further appellate action. On remand, the Agency of Original Jurisdiction (AOJ) granted a separate rating for left knee lateral instability. Thus, the appeal now involves two issues. The Board has considered whether the issue of TDIU entitlement is a component of the increased rating claim in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009) (where there is evidence of unemployability raised by the record during a rating appeal period, the TDIU is an element of an initial rating or increased rating). However, the schedular criteria to support TDIU are not met, and the Veteran has not argued that his left knee disability has rendered him unable to secure or follow a substantially gainful occupation. Increased Ratings—Law and Regulations Disability ratings are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran’s condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where a veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. Staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection of parts of the musculoskeletal system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. The functional loss may be due to absence of part, or all, of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca, 8 Vet. App. 202; see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”). Generally, lay evidence is competent with regard to identification of a disease with unique and readily identifiable features which are capable of lay observation. See Barr, 21 Vet. App. at 308-09. A lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. See Davidson, 581 F.3d at 1316; Jandreau, 492 F.3d at 1376-77. Lay persons may also provide competent evidence regarding a contemporaneous medical diagnosis or a description of symptoms in service which supports a later diagnosis by a medical professional. However, a lay person is not competent to provide evidence as to more complex medical questions, i.e., those which are not capable of lay observation. Lay statements are not competent evidence regarding diagnosis or etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); Jandreau, at 1377, n. 4 (‘sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer’); 38 C.F.R. § 3.159(a)(2). After the evidence has been assembled, it is the Board’s responsibility to evaluate the entire record. 38 U.S.C. § 7104(a) (West 2014). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3 (2019). A VA claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Gilbert at 54. Entitlement to a disability rating higher than 10 percent for left knee limitation of motion. Entitlement to a disability rating higher than 10 percent for left knee lateral instability. The current appeal arises from a claim of entitlement to service connection for left knee strain that was received at VA on July 29, 2013. In a November 2013 rating decision, VA granted service connection for left knee strain and assigned an initial disability rating of 10 percent under Diagnostic Code 5260, effective July 29, 2013. The Board remanded the claim in July 2018 to obtain additional development. In an April 2020 rating decision, the AOJ granted a separate rating for left knee instability under Diagnostic Code 5257, effective July 5, 2019, the date of a VA examination. Diagnostic Code 5256 addresses ankylosis (complete fixation) of the knee, a condition which is neither shown nor alleged here. 38 C.F.R. § 4.71a, Diagnostic Code 5256. Under Diagnostic Code 5257, recurrent subluxation or lateral instability of the knee is assigned a rating of 30 percent if severe; a rating of 20 percent if moderate; and a rating of 10 percent if slight. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Lateral is defined as denoting a position farther from the median plan or midline of the body or structure. See Dorland’s Illustrated Medical Dictionary 1022 (31st ed. 2007). Under Diagnostic Code 5258, a rating of 20 percent is assigned for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint. 38 C.F.R. § 4.71a, Diagnostic Code 5258. Under Diagnostic Code 5259, a rating of 10 percent is assigned for symptomatic removal of semilunar cartilage. 38 C.F.R. § 4.71a, Diagnostic Code 5259. Under Diagnostic Code 5260, limited flexion merits a rating of 30 percent where flexion is limited to 15 degrees; 20 percent where flexion is limited to 30 degrees; 10 percent where flexion is limited to 45 degrees; and 0 percent where flexion is limited to 60 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5261, limited extension merits a rating of 50 percent where extension is limited to 45 degrees; 40 percent where extension is limited to 30 degrees; 30 percent where extension is limited to 20 degrees; 20 percent where extension is limited to 15 degrees; 10 percent where extension is limited to 10 degrees; and 0 percent where flexion is limited to 5 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. The Board notes that the criteria under Diagnostic Codes 5257, 5260, and 5261 are not considered to be overlapping, and therefore separate ratings can be assigned where appropriate symptomatology is shown. A VA examination in November 2013 reveals a diagnosis of knee strain. At that time, the Veteran reported that he did not experience flares. Extension was full, with no objective evidence of painful motion; and flexion was measured to 120 degrees, with onset of pain at 90 degrees. Range of motion was unchanged after 3 repetitions. Functional loss consisted of pain on movement, swelling, and interference with sitting, standing, and weight bearing. Muscle strength was full and joint stability testing was normal. There was no history of subluxation or meniscal conditions. There was no impact of the left knee disability on the Veteran’s ability to work (Record 11/19/2013). The report of a July 2019 VA knee examination reveals diagnoses of left knee strain and left knee instability. The Veteran reported his left knee condition had worsened. He was having increased pain and the knee felt like it would give way. Pain was made worse with prolonged standing and walking. He was not currently under the care of a healthcare provider for the knee condition. There was no history of surgical intervention. Current symptoms included pain that was made worse with increased activity. He also reported popping and clicking and a feeling of giving-way. Flares involve increased pain and the need to sit down and rest. The frequency was daily with duration of 2 to 3 hours. The Veteran reported he can’t stand or walk too long. He definitely can’t do running. Even riding long distances is hard. He has to make sure to stop and stretch. On examination, flexion was measured to 105 degrees and extension was full. Pain was noted on examination and caused functional loss. There was evidence of pain with weight bearing. After 3 repetitions, extension was still full, but flexion was measured to 90 degrees. Pain, weakness, fatigability and/or lack of endurance limited functional ability with repeated use over a period of time. These factors reduced flexion to 85 degrees. Extension remained full. The examiner estimated that, during flares, flexion would be further reduced to 80 degrees. Extension would remain full. There was objective evidence of pain on passive range of motion testing. There was no objective evidence of pain when the joint was in non-weight bearing. Functional loss consisted of less movement than normal, weakened movement, disturbance of locomotion, and interference with standing. Muscle strength was 4/5. The was no atrophy of muscle. Testing indicated slight lateral instability, but no subluxation. There was no history of meniscal conditions. The effect on employment was difficulty standing and walking for long periods. The Veteran had missed 1 week of work over the prior 12 months (Record 07/30/2019). VA outpatient records can be summarized as showing consistent complaints of knee pain in the left knee, but consistently normal range of motion. See (Record 01/31/2015 at 5, 13, 82); (Record 02/27/2017 at 204); (Record 06/21/2019 at 29, 48, 105, 125); (Record 03/11/2020 at 102); (Record 03/11/2020 at 76). After a review of all of the evidence, the Board finds that the criteria for a rating higher than 10 percent for either limitation of motion of the left knee, or instability of the left knee, have not been met. The criteria for a higher rating for limitation of motion require either that flexion is limited to 30 degrees or extension is limited to 10 degrees. Both examinations showed full extension. Therefore, a rating under DC 5261 is not warranted. The November 2013 examination showed flexion to 90 degrees. The July 2019 examination showed flexion to at least 80 degrees. VA outpatient records show normal range of motion. Thus, the criteria for higher ratings under Diagnostic Code 5256, 5260, and 5261have not been met at any time during the period on appeal. The criteria for a higher rating for instability require that such instability is more than slight. In this case, the November 2013 examination showed no instability and the July 2019 examination showed only slight instability. Thus, the criteria for a higher rating under Diagnostic Code 5257 have not been met at any time during the period on appeal. Both examinations show no meniscal pathology. Both examinations show that there are no other knee conditions than diagnosed. Accordingly, there is no basis to assign separate ratings under Diagnostic Codes 5258, 5259, 5262, and 5263, in addition to, or in lieu of, the currently rated conditions. While the Veteran has emphasized knee pain, VA law does not contemplate the assignment of a disability rating on the sole basis of pain. Although pain may cause a functional loss, pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). Pain must affect some aspect of “the normal working movements of the body” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. Id. at 38; see 38 C.F.R. § 4.40. These normal working movements of the body are evaluated in the case of a knee disability through range of motion testing and strength testing, which do not support any higher or separate ratings, despite the presence of pain, weakness, fatigability, or incoordination. To summarize, the Board finds that the service-connected left knee limitation of motion is manifested by full extension and painful flexion that exceeds 45 degrees; and, the service-connected left knee lateral instability is manifested by slight lateral instability. In light of these findings of fact, the Board concludes that a disability rating higher than 10 percent for the service-connected left knee limitation of motion is not warranted; and, a disability rating higher than 10 percent for the service-connected left knee instability is not warranted. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against each claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 371 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Cramp The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.