Citation Nr: 20047045 Decision Date: 07/14/20 Archive Date: 07/14/20 DOCKET NO. 09-11 435A DATE: July 14, 2020 ORDER Entitlement to a disability rating in excess of 10 percent for right knee strain is denied. Entitlement to a separate disability rating of 10 percent, though no higher, for a right knee disability based on limitation of extension with arthritis is granted. REMANDED Entitlement to service connection for a left knee disability, to include as secondary to the service-connected right knee disability, is remanded. FINDING OF FACT The probative evidence of record reflects that the right knee strain has been productive of, at worst, flexion limited to 110 degrees with pain from 80 to 110 degrees, extension limited to 0 degrees with pain and X-ray evidence of arthritis. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for right knee strain have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.71a, DCs 5003, 5010, 5260. 2. The criteria for a separate 10 percent disability rating, though no higher, for a right knee disability based on limitation of extension with arthritis have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.71a, DCs 5003, 5010, 5261. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1977 to August 1982. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher evaluation; otherwise, the lower evaluation 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. 38 C.F.R. § 4.3. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different “staged” ratings may be warranted for different time periods. Where the question for consideration is the propriety of the initial evaluation assigned after the granting of service connection, separate ratings may also be assigned for separate periods of time based on facts found, i.e. “staged” ratings. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). When evaluating musculoskeletal disabilities, VA must consider granting a higher rating in cases in which the Veteran experiences functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination (to include during flare-ups or with repeated use), and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2019); DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). 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, 38-43 (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 (38 C.F.R. § 4.40), 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. § 4.45). Mitchell, 25 Vet. App. 32. 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. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. See also Spencer v. West, 13 Vet. App. 376, 382 (2000) and Johnston v. Brown, 10 Vet. App. 80, 85 (1997). In order to be adequate, VA examinations must include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). VA examiners must provide opinions regarding flare-ups based upon estimates derived from information procured from relevant sources, including lay statements, when a flare-up is not observable at the time of examination. Sharp v. Shulkin, 29 Vet. App. 26 (2017). The most recent VA examinations of the right knee in December 2016 is responsive to the guidance provided in Correia and Sharp. In this case, the examiners documented ranges of motion for both the right and left knees. They also noted pain on movement and interference with weight-bearing. While pain with nonweight-bearing was not specifically documented, the Board finds this harmless error, as the examiners specifically measured whether there was pain on palpation, which was presumably nonweight-bearing. In addition, although passive range of motion was not measured in any of these examinations, it is reasonable to assume that assisted motion would be less limiting than active motion, and therefore, the failure to measure passive motion is harmless error. Accordingly, the Board finds that a remand for new examinations under Correia would serve no useful purpose. The Board similarly finds Sharp compliance. In the December 2016 VA examination of the bilateral knees, the Veteran reported no flare-ups in these joints. The examiners also indicated that pain, weakness, fatigability and incoordination do not limit functional ability with repeated use over time. As these VA examinations addressed flares, weight bearing, nonweight-bearing, range of motion of the opposing joint, and active motion, a remand would be unnecessary. 1. Right Knee Strain The Veteran’s right knee strain is currently rated under 38 C.F.R. § 4.71a, DC 5010-5260. DC 5010 states that arthritis, due to trauma, substantiated by X-ray findings, is to be rated as degenerative arthritis under DC 5003. DC 5003 provides ratings for degenerative arthritis as already discussed above. When there is limitation of motion of the specific joint or joints that is 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. Id. Normal ranges of motion of the knee are to 0 degrees in extension, and to 140 degrees in flexion. 38 C.F.R. § 4.71, Plate II. DC 5260 provides ratings based on limitation of flexion of the leg. Flexion of the leg limited to 60 degrees is rated noncompensably (0 percent) disabling; flexion of the leg limited to 45 degrees is rated 10 percent disabling; flexion of the leg limited to 30 degrees is rated 20 percent disabling; and flexion of the leg limited to 15 degrees is rated 30 percent disabling. 38 C.F.R. § 4.71a. See VAOPGCPREC 09-04 (separate ratings may be granted based on limitation of flexion (DC 5260) and limitation of extension (DC 5261) of the same knee joint). DC 5261 provides ratings based on limitation of extension of the leg. Extension of the leg limited to 5 degrees is rated noncompensably (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. See VAOPGCPREC 09-04 (separate ratings may be granted based on limitation of flexion (DC 5260) and limitation of extension (DC 5261) of the same knee joint). Separate disability ratings are possible for arthritis with limitation of motion under DC 5003 (providing rating for arthritis) and instability of a knee under DC 5257. VAOPGCPREC 23-97; 62 Fed. Reg. 63,604 (1997). When x-ray findings of arthritis are present and a veteran's knee disability is rated under DC 5257, the veteran would be entitled to a separate compensable rating under DC 5003 if the arthritis results in noncompensable limitation of motion and/or objective findings or indicators of pain. See VAOPGCPREC 9-98, 63 Fed. Reg. 56,703 (1998). VA's General Counsel has held that a claimant who has arthritis and instability of the knee may be rated separately under DCs 5003/5010 and 5257, respectively, and that a separate rating could also be provided for limitation of knee extension and flexion of the same knee joint. VAOPGCPREC 9-2004; 69 Fed. Reg. 59,990 (2004). The probative evidence of record, including VA medical records and the April 2008 and December 2016 VA examinations, demonstrates that the right knee strain was productive of, at worst, flexion limited to 110 degrees with pain from 80 to 110 degrees, extension limited to 0 degrees with pain and X-ray evidence of arthritis. Accordingly, the probative medical evidence of record more nearly approximates the 10 percent disability rating currently assigned for the Veteran’s right knee strain, considering his complaints of pain and February 2009 VA outpatient treatment report showing X-ray evidence of arthritis. In addition, considering the Veteran’s complaints of pain and X-ray evidence of arthritis and noting that separate ratings may be awarded for limitation of knee extension and flexion of the same joint, a separate 10 percent disability rating, but no higher, for right knee strain based on limitation of extension is warranted. Although the Veteran reports right knee pain and it was noted that pain began at 80 degrees in the April 2008 VA examination, there have been no findings of pain causing additional limitation of flexion to 30 degrees, limitation of extension to 15 degrees, or any findings that were akin to ankylosis of the right knee. Thus, in considering his complaints of pain, in conjunction with 38 C.F.R. § 4.40, 4.45, 4.59, and consistent with the decision in DeLuca v. Brown, 8 Vet. App. 202 (1995), the Board finds the evidence does not support a disability rating in excess of the 10 percent ratings currently assigned. See Voyles v. Brown, 5 Vet. App. 451, 454 (1993); Johnston v. Brown, 10 Vet. App. 80, 85 (1997); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Other potentially applicable DCs also have been considered. As the Veteran’s service-connected right knee strain does not reflect findings of ankylosis, removal or dislocation of the semilunar cartilage, instability, impairment of the tibia or fibula, or genu recurvatum at any time during the pendency of the appeal, DCs 5256, 5257, 5258, 5259, 5262 and 5263 do not apply. The evidence weighs against a finding of ankylosis. The Board has considered the lay statements of record regarding the severity of the Veteran’s right knee disability and has relied on these reports in determining appropriate disability ratings under the benefit-of-the-doubt doctrine. 38 C.F.R. §§ 4.3, 4.7. The Veteran is competent to report on factual matters of which he has firsthand knowledge and his statements regarding his symptoms are also credible, and thus, probative. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Baldwin v. West, 13 Vet. App. 1 (1999). Where the Veteran has not discussed particular findings that are necessary for application to the rating criteria, the Board has accorded greater probative weight to objective medical findings of record which specifically address the rating criteria. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Accordingly, the Veteran’s right knee disability more nearly approximates the 10 percent disability rating currently assigned under DC 5260 and warrants the assignment of a separate 10 percent disability rating, though no higher, under DC 5261 for a right knee disability with limitation of extension and arthritis throughout the duration of the appeal. 38 C.F.R. §§ 4.3, 4.7, 4.71a; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). REASONS FOR REMAND Left Knee Disability In this case, the Veteran alleges his left knee disability is secondary to his service-connected right knee disability. Although the Veteran is service-connected for his current right knee disability and had VA examinations of the knees in April 2008 and December 2016, the April 2008 VA examiner could not provide an opinion regarding aggravation without resorting to speculation and no opinion was provided in the December 2016 VA examination. In light of this evidence, a VA examination with an opinion is necessary to identify whether it was at least as likely as not that any current left knee disability is proximately due to or aggravated by his service-connected right knee disability. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); Locklear v. Nicholson, 20 Vet. App. 410 (2006); see Waters v. Shinseki, 601 F.3d 1274, 1276 (2010); Allen v. Brown, 7 Vet. App. 439, 448 (1995). The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all pertinent VA and private medical records the Veteran adequately identifies. 2. Upon receipt of all additional records, the Veteran should be afforded a VA examination to determine the current nature and etiology of the left knee disability. The examination report is to contain a notation that the examiner reviewed the claims file. The examination may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. Please review the Veteran’s reported history carefully and note that he is competent to attest to any lay observable symptoms and past treatment. The examiner is asked to answer the following: (a). Please specify the current diagnosis(es) of any left knee disability. (b). The examiner is then asked to furnish an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any currently diagnosed left knee disability: (1) had its onset during the Veteran’s periods of active service; (2) if arthritis manifested within one year of his separation from either period of active service; (3) was caused by any incident or event that occurred during such period; or (3) is PROXIMATELY DUE TO OR AGGRAVATED by his service-connected right knee strain or any other service-connected disability. It is essential the examiner provide explanatory rationale for opinions on these determinative issues, citing to specific evidence in the file supporting conclusions. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Saira Spicknall, Counsel 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.