Citation Nr: 20047041 Decision Date: 07/14/20 Archive Date: 07/14/20 DOCKET NO. 10-18 499 DATE: July 14, 2020 ORDER Entitlement to a rating in excess of 10 percent for right knee limitation of motion is denied. Entitlement to an effective date of October 20, 2015 for a rating of 20 percent for right knee instability is granted. FINDINGS OF FACT 1. Even considering the Veteran’s pain and corresponding functional loss, including during flare-ups, the weight of the competent and probative evidence is against finding limitation of flexion of the right knee at less than 30 degrees or extension at less than 15 degrees. 2. On October 20, 2015, the Veteran reported symptoms of right knee instability, including his knee giving out. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 10 percent for right knee limitation of motion have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5003-5260 (2018). 2. The criteria for entitlement to an effective date of October 20, 2015 for a rating of 20 percent for right knee instability have been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.1, 3.151, 3.400 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from April 1961 to April 1965 and from October 1966 to August 1987. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2012 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented sworn testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in October 2015. These matters were remanded by the Board in March 2016, November 2017, and May 2019 for additional development. The Board notes that the Veteran was awarded a total disability rating based on individual unemployability due to the Veteran’s service-connected disabilities, effective May 30, 2008, in a March 2017 rating decision. As the effective date of May 30, 2008 is the date of receipt of the Veteran’s claim and the Veteran’s knee disability claim has been pending since September 23, 2010, the Board finds that the Veteran has been granted individual unemployability throughout the entire appeal and the issue is not before the Board. C.f. Payne v. Wilkie, 31 Vet. App. 373 (2019); Harper v. Wilkie, 30 Vet. App. 356 (2018). 1. Entitlement to a rating in excess of 10 percent for degenerative changes of the right knee. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. When rating the Veteran’s service-connected disability, the entire medical history must be borne in mind. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Moreover, regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran’s service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury, which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Disabilities of the knee are rated under Diagnostic Code 5256 through Diagnostic Code 5263 of 38 C.F.R. § 4.71a. In considering the applicability of other diagnostic codes, the Board finds that Diagnostic Code 5256 (ankylosis of the knee); Diagnostic Code 5258 (cartilage, semilunar, dislocated); Diagnostic Code 5259 (cartilage, semilunar, removal of, symptomatic); Diagnostic Code 5262 (impairment of the tibia and fibula); and Diagnostic Code 5263 (genu recurvatum), are not applicable in this case, as the evidence does not show that the Veteran has any of those conditions. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath, 1 Vet. App. at 592. Pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Therefore, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. A VA examination of the joints must, wherever possible, include range of motion testing for pain on active motion, passive motion, weight-bearing, non-weight-bearing, and, if possible, with the range of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158, 16970 (2016); 38 C.F.R. § 4.59. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that although a VA examination need not be conducted during a flare-up to be adequate for assessing the extent of additional functional loss during a flare-up, an examiner must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the Veteran and offer an opinion based on an estimate derived from information procured from relevant sources, including the lay statements of the Veteran. Id. at 34-35. When there is no limitation of motion of the specific joint or joints that involve degenerative arthritis, Diagnostic Code 5003 provides a 20 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, and a 10 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. Note (1) provides that the 20 percent and 10 percent ratings based on X-ray findings will not be combined with ratings based on limitation of motion. Note (2) provides that the 20 percent and 10 percent ratings based on X-ray findings, above, will not be utilized in rating conditions listed under Diagnostic Codes 5013 to 5024, inclusive. When there is some limitation of motion of the specific joint or joints involved that is noncompensable (0 percent) under the appropriate diagnostic codes, Diagnostic Code 5003 provides a rating of 10 percent for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. When there is limitation of motion of the specific joint or joints that is considered compensable (10 percent or higher) under the appropriate diagnostic codes, the compensable limitation of motion should be rated under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a. Separate disability ratings are possible for arthritis with limitation of motion under Diagnostic Codes 5003 and instability of a knee under Diagnostic Code 5257. VAOPGCPREC 23-97. When X-ray findings of arthritis are present and a veteran’s knee disability is rated under Diagnostic Code 5257, the veteran would be entitled to a separate compensable rating under Diagnostic Code 5003 if the arthritis results in noncompensable limitation of motion and/or objective findings or indicators of pain. VAOPGCPREC 9-98. The Veteran asserts that his right knee disability is worse than contemplated by his assigned disability rating. The Veteran is currently rated at 10 percent for degenerative changes of the right knee under DC 5003-5260 and rated at 20 percent for instability of the right knee under DC 5003-5257, effective November 20, 2019. Under Diagnostic Code 5260, a noncompensable rating is warranted for flexion limited to 60 degrees. A 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. A 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. Diagnostic Code 5261 provides ratings based on limitation of extension of the leg. Extension of the leg limited to 5 degrees is rated 0 percent disabling; extension of the leg limited to 10 degrees is rated 10 percent disabling; extension of the leg limited to 15 degrees is rated 20 percent disabling; extension of the leg limited to 20 degrees is rated 30 percent disabling; extension of the leg limited to 30 degrees is rated 40 percent disabling; and extension of the leg limited to 45 degrees is rated 50 percent disabling. 38 C.F.R. § 4.71a. Full flexion of the leg is to 140 degrees and full extension is to 0 degrees. 38 C.F.R. § 4.71, Plate II. The Board finds that the only adequate VA examination during the pendency of this appeal is a November 2019 VA examination. See Correia v. McDonald, 28 Vet. App. 158, (2016); see also Sharp v. Shulkin, 29 Vet. App. 26 (2017). Therefore, the Board will solely address the findings of the November 2019 VA examination. During the November 2019 VA Examination, the Veteran reported symptoms of bilateral knee pain, popping, grinding, swelling, and giving out. He stated that he uses a cane, NSAID cream, hydrocodone, and steroid injections. The Veteran also reported flare-ups that occur with prolonged sitting, standing, walking, and with going up and down stairs. He stated that he experiences functional loss in the form of difficulty sitting comfortably for longer than 60 minutes, standing longer than 20 minutes, walking more than 50 yards at a time, not being able to run, squat, or do yard work, and has to have a stool near the stove to use for sitting while cooking. The examiner noted that the Veteran has abnormal range of motion with flexion at 0 to 90 degrees and extension at 90 to 0 degrees. The examiner found no evidence of pain on weight bearing, no objective evidence of crepitus, and no additional range of motion loss after repetitive use testing but noted that pain causes additional functional loss over time. The examiner noted that the Veteran has decreased range of motion without repetitive use over time and has acute flare-ups. Therefore, a further decrease would be expected with repetitive use over time or during a flare-up. During the October 2015 hearing, the Veteran testified that he experiences knee pain mostly when walking but sometimes when laying down in bed or when sitting he will have throbbing pain throughout the knee. He stated that when the throbbing pain occurs, he must stand up and take a few steps before he sits down again. Sometimes when he is walking, he will have shooting pain and his leg will give out. The Veteran also stated that he experiences pain when going up and down stairs but does not experience swelling, and he thinks he will need a knee replacement at some point. After a review of the evidence of record, the Board finds that the preponderance of the evidence is against a finding that the Veteran’s right knee disability warrants a rating in excess of 10 percent based on arthritis with limitation of motion. For an increased rating based on limitation of motion, the evidence must minimally establish that the Veteran’s right knee disability is manifested by flexion limited to 30 degrees (Diagnostic Code 5260), and/or by extension limited to 15 degrees (Diagnostic Code 5261). At no point during the appeal period has the Veteran’s right knee flexion shown to be less than 90 degrees (November 2019 VA examination report), or extension shown to be other than normal, even with consideration of pain on range of motion testing, and after repetitive range of motion testing. Hence, the criteria for an increased rating under either Diagnostic Code 5260 or 5261 is not met. The Board has considered 38 C.F.R. §§ 4.40, 4.45, and 4.59, but finds that the competent and probative evidence weighs against finding weakened movement, excess fatigability, incoordination, and/or pain after repeated use over time resulting in motion limited to 30 degrees for flexion or 15 degrees for extension. In addition to testing, the Veteran has been asked to describe functional loss and impairment and he did not describe loss of motion to the degree required for a higher rating. Sharp, 29 Vet. App. at 34-35. Simply put, after considering the medical findings and lay statements, the evidence does not suggest that motion is limited to the requisite degree for a higher rating. 2. Entitlement to an effective date of October 20, 2015 for a rating of 20 percent for right knee instability. The Board finds that an effective date of October 20, 2015 is warranted for a rating of 20 percent for the Veteran’s right knee instability. Unless a claim is received within one year after separation; the effective date for service connection shall be date of claim or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400(b)(2). The term date entitlement arose is not specifically defined in the current statute or regulation. The Court has interpreted it as the date when the claimant met the requirements for the benefits sought. This is determined on a “facts found” basis. See 38 U.S.C. § 5110(a); see also McGrath v. Gober, 14 Vet. App. 28, 35 (2000). If the Veteran filed a claim for benefits before the disability had manifested, the effective date cannot be earlier than the date the disability eventually manifested. Id.; see also Ellington v. Peake, 541 F.3d 1364, 1369 (2011) (holding that it was illogical to award benefits on a certain date “when the evidence indicates that those conditions did not develop until some later date”); Swain v. McDonald, 27 Vet. App. 219, 224 (2015) (holding that the effective date for an increased rating is predicated on when the increase in the disability can be ascertained). Under Diagnostic Code 5257, knee impairment with recurrent subluxation or lateral instability is rated 10 percent when slight, 20 percent when moderate, and 30 percent when severe. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The words slight, moderate, and severe as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all the evidence, to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. It should also be noted that use of terminology such as severe by VA examiners and others, although an element to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. During the November 2019 VA examination, the Veteran reported his knee giving out. The examiner noted that the Veteran has a history of moderate lateral instability of the right knee, regularly uses a cane, and his decreased range of motion and pain leads to falling while walking or climbing. As noted above, the Veteran testified to his knee giving out during the October 2015 hearing. The Board observes that the Veteran’s VA examinations prior to the November 2019 VA examination do not indicate that the Veteran has instability and/or subluxation in his right knee. However, the Board notes that the Veteran is competent to report his symptoms regarding his right knee. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); English v. Wilkie, 30 Vet. App. 347 (2018). The Board observes that although the examination reports of record do not objectively show right knee instability prior to 2019, the Board finds the Veteran’s reports of right knee instability and his knee giving out to be credible. Therefore, and resolving all reasonable doubt in his favor, the Board finds that the effective date of October 20, 2015 for right knee instability to be warranted. See 38 C.F.R. § 3.400(b)(2); Swain; see also Hearing Testimony, October 2015. However, a rating in excess of 20 percent for right knee instability is not warranted as there is no objective evidence of more than moderate recurrent instability in his right knee. See VA Examination, November 2019. As such, the Board finds that the disability picture is consistent with moderate instability, and a rating in excess of 20 percent is not warranted. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sara Leigh, Attorney Advisor 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.