Citation Nr: 20050189 Decision Date: 07/28/20 Archive Date: 07/28/20 DOCKET NO. 13-24 939 DATE: July 28, 2020 ORDER Entitlement to an initial disability rating in excess of 10 percent for right knee disability prior to December 13, 2019 is denied. Entitlement to a disability rating in excess of 30 percent for right knee disability from December 13, 2019 is denied. FINDINGS OF FACT 1. The Veteran’s right knee disability is manifested by pain with normal range of motion prior to December 13, 2019. 2. From December 13, 2019, the Veteran’s right knee disability was manifested by pain and flare-ups causing pain, weakness, fatigability, and incoordination. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for the right knee disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260. 2. The criteria for a disability rating in excess of 30 percent for right knee disability from December 13, 2019 have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.71, Diagnostic Code 5260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from October 2005 to July 2006, and from June 2008 to July 2009. For his meritorious service, the Veteran was awarded (among other decorations) the Iraq Campaign Medal. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in June 2016, January 2018, and June 2019. In the June 2016 decision, the Board remanded the claim to allow the RO an opportunity to issue a statement of the case. A statement of the case was issued and the Veteran timely perfected his appeal. The January 2018 Board decision denied entitlement to a compensable rating for the Veteran’s right knee disability. The Veteran timely appealed this denial to the Court of Appeals for Veterans Claims (Court). The Court approved a Joint Motion for Remand in November 2018 and vacated the Board’s January 2018 decision. In its decision, the Court found the Board erred when it relied upon inadequate VA examination reports. The Joint Motion for Remand further stated the Board relied on VA medical examinations wherein the examiners did not conduct all testing required under 38 C.F.R. § 4.59 and thus did not provide sufficient detail to fully inform the Board’s evaluation of the Veteran’s right knee disability. The matter came before the Board in June 2019 and the Board remanded the matter for further development in compliance with the Court’s November 2018 Joint Motion. The Veteran underwent a VA examination in compliance with the Board’s remand. While the appeal was pending, the RO increased the Veteran’s rating for his right knee disability to 10 percent effective March 3, 2011 and then stated the rating by increasing the evaluation to 30 percent, effective December 13, 2019. As the RO’s decision does not represent a full grant of benefits, the issue remains on appeal before the Board. Further, as the Agency of Original Jurisdiction completed all requested actions upon remand, there has been substantial compliance with the Board’s remand instructions. Finally, aside from the arguments noted in the Joint Motion, the Veteran’s attorney has not submitted specific argument as to the claim on appeal. Increased Rating Generally, disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes (DCs). 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate for any initial rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to her through her senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Hyphenated codes are intended to show that the Veteran’s service-connected disability is rated by analogy. See 38 C.F.R. § 4.20 (an unlisted condition may be rated under a closely related disease or injury in which the functions affected, anatomical localization, and symptomatology are closely analogous). In rating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other 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. Pain on movement, swelling, deformity, or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing, and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1. However, painful motion alone is not a functional loss without some restriction of the normal working movements of the body. Mitchell v. Shinseki, 25 Vet. App. 32, 43. The intent of the Rating Schedule is to recognize painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. 1. Entitlement to an initial disability rating in excess of 10 percent for right knee disability from March 3, 2011 is denied. The Veteran seeks an increased rating for his right knee disability. He is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5260. Diagnostic Code 5260 provides a noncompensable evaluation when flexion is limited to 60 degrees. A 10 percent rating is warranted where flexion is limited to 45 degrees. A 20 percent evaluation is applied where flexion is limited to 30 degrees. Finally, a 30 percent rating applies where flexion is limited to 15 degrees. It should also be noted that when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability, and incoordination. The Veteran underwent a VA examination in September 2011. The VA examiner noted the Veteran had a strain in both knees. The Veteran reported he had bilateral knee pain and had flare-ups that affect his activity level, standing, and walking. The Veteran’s right knee flexion and extension were normal. The Veteran was able to perform repetitive use testing with three repetitions and his range of motion remained the same. The VA examiner noted the Veteran did have pain on movement of both knees, normal stability, and imaging which reflected mild narrowing of the right knee medical compartment. The Veteran underwent a VA examination in October 2013 in which the VA examiner noted the Veteran had bilateral knee chondromalacia. The Veteran discussed left knee pain and left knee flare-ups. His right knee range of motion for flexion and extension were normal with no evidence of painful motion. The Veteran did not have additional limitation in range of motion after repetitive use testing and did not have any functional loss due to any limitation of range of motion. The VA examiner reported the Veteran’s bilateral knee stability was normal. The VA examiner noted the Veteran had a positive patellofemoral grind test with both knees, the examiner noted this is consistent with chondromalacia. The Veteran reported left knee flare-ups, but no flare-ups regarding his right knee disability. The VA examiner reported there was no pain, weakness, fatigability, or incoordination that would significantly limit functional ability during flare-ups or when the knee is used repeatedly. The Veteran underwent a VA examination in August 2015. This examination noted there was no chronic disabling condition for the right knee. The Veteran stated there were no significant problems associated with his right knee. The range of motion in the Veteran’s right knee for flexion and extension were normal. The right knee was shown to have normal joint stability. The Veteran reported flare-ups during prolonged standing or when using stairs. The Veteran’s VA treatment records reflect his ongoing right knee pain. Throughout his VA treatment records, he reported his knees hurt when they are bent and he reported knee pain. His VA treatment records reflect recurrent right knee sprains which resulted in a referral to physical therapy and an orthopedic doctor to assess stability. In December 2013, Veteran reported his right knee felt tight. In April 2014, the Veteran’s VA physician noted the Veteran had recurrent right knee pain. The Veteran reported his right knee gets fatigued and occasionally locks up. He stated he does not run often or play sports due to his knee pain. The Veteran submitted private medical records regarding his right knee disability. The Veteran’s private physical therapist submitted correspondence from December 2013. The private physical therapist noted the Veteran was seen for his lower back and right lower extremity. The physical therapist noted there was a decrease in intensity and frequency of the Veteran’s pain, but reported they reached a plateau with their efforts in physical therapy. The private records from January 2014 from nurse practitioner L.A. noted the right knee in a medical report but provided no details regarding any right knee disability. After a review of the evidence of record, the Board finds that the Veteran’s right knee disability does not meet the criteria for a rating in excess of 10 percent prior to December 13, 2019. The Veteran’s VA examinations reflect normal range of motion, but the Veteran did report knee pain throughout the period on appeal. Under the General Rating Formula for the knee, a 20 percent rating requires flexion limited to 30 degrees or extension limited to 15 degrees. The Veteran’s flexion and extension measurements do not meet the criteria set forth for a noncompensable rating or a 10 percent rating. However, 38 C.F.R. § 4.59 allows for the consideration of functional loss due to painful motion to be rated at least the minimum compensable rating, which is what applies to the Veteran’s disability. The Board acknowledges the Veteran’s report of trouble using the stairs and flare-ups, however even considering those functional limitations, the criteria for a 20 percent rating are not nearly approximated. Again, as stated above, the 10 percent rating assigned herein based on painful limitation of motion contemplated any functional impairment the Veteran experienced during this period on appeal. The Board is cognizant of the Veteran’s statements regarding the symptoms of his knee disability but finds that the objective findings of the VA examiner are more probative in assigning a rating in accordance with the relevant rating criteria. The Board has considered the lay reports regarding symptoms of pain and functional impairment. These symptoms are considered in the 10 percent rating assigned based on painful motion of the knee. Even when considering pain, weakened movement, excess fatigability, and incoordination, including during flare-ups, the Board finds the preponderance of the evidence is against the grant of a rating in excess of 10 percent based upon limitation of flexion or the assignment of a separate, compensable rating based upon limitation of extension. Pain does not, however, constitute functional loss, and the Veteran has already been granted a compensable rating based on his reported pain with motion. See Mitchell v. Shinseki, 25 Vet. App. 32. The Board also considered whether higher or separate ratings are available under other diagnostic codes. However, Diagnostic Codes 5256, 5257, 5258, 5259, 5262, and 5263 do not have applicability in this matter, as the pathology or manifestations in the rating criteria under those Codes (ankylosis, recurrent subluxation or lateral instability, dislocated semilunar cartilage, symptomatic removal of semilunar cartilage, malunion or nonunion of tibia or fibula, or genu recurvatum) are not shown. 38 C.F.R. § 4.71. Therefore, taking the entirety of evidence into account, the Veteran’s right knee disability most closely approximates the criteria for a 10 percent rating. The Board concludes there is no probative evidence showing entitlement to increased ratings under the Schedule for the Veteran’s limitation of motion rating. Therefore, a rating in excess of 10 percent prior to December 13, 2019 is not warranted and the Veteran’s claim is denied. 2. Entitlement to a disability rating in excess of 30 percent for right knee disability from December 13, 2019 is denied. As detailed above, while the Veteran’s appeal was pending, the RO granted a staged increased evaluation of 30 percent for his right knee disability, effective December 13, 2019. Under DC 5260, a 10 percent evaluation is warranted where flexion is limited to 45 degrees. A rating of 20 percent is warranted where flexion is limited to 30 degrees and a rating of 30 percent is warranted were flexion is limited to 15 degrees. 38 C.F.R. § 4.71a. The maximum assignable rating for limitation of knee flexion under DC 5260 is 30 percent. The Veteran seeks a higher rating for his service-connected right knee disability. The Veteran underwent a VA examination in December 2019. The Veteran’s diagnosis of right knee chondromalacia was confirmed by the VA examiner. The Veteran reported right knee pain, locking, weakness, and that it sometimes gives out. The Veteran contends his right knee disability has worsened, he reports he has had physical therapy, acupuncture, chiropractic care, and took anti-inflammatory medication. The Veteran reported his right knee disability impacts his ability to use stairs, he has pain with prolonged sitting, he has aching pain, stiffness, and popping when using the stairs. He reported flare-ups occur daily and he has constant deep pain in his knee. The Veteran stated the right knee flare-ups are moderate to severe and last most of the day; the flare-ups are precipitated by walking and sitting too long. He stated nothing but rest helps alleviate the flare-ups. The VA examiner noted the Veteran reported functional loss or impairment of the joint. The Veteran stated his right knee disability limits his mobility; he does not run any more due to the pain. He reported he can do some low-impact exercise. The VA examiner noted the Veteran had abnormal range of motion in the right knee. The VA examiner measured the Veteran’s flexion from 0 to 120 degrees and his extension was from 120 to 0 degrees. Pain was noted on the examination during flexion and extension, but the examiner determined it does not result in or cause functional loss. The VA examiner noted objective evidence of localized tenderness or pain on palpation of the join or associated soft tissue. The examiner noted the pain is on the joint line and the severity of the pain is noted to be moderate and consistent with the claimed conditions. The VA examiner also noted there was evidence of pain with weight bearing and objective evidence of crepitus. The Veteran was able to perform repetitive use testing with at least three repetitions, there was no additional loss of function or range of motion after three repetitions. The Veteran was not examined immediately after repetitive use over time, but the examiner states the examination is medically consistent with the Veteran’s statements describing functional loss with repetitive use over time. The VA examiner concluded pain, weakness, fatigability, or incoordination significantly limit functional ability with repeated use over time and flare-ups. His flexion and extension were tested again and measured the same as when he was initially tested. The examiner noted additional factors contribute to the Veteran’s right knee disability, these factors include disturbance of locomotion, interference with sitting, and interference with standing. The Veteran’s muscle strength was characterized as having active movement against some resistance, he did not have muscle atrophy. There was no ankylosis, no history of recurrent subluxation, no effusion, and no lateral instability. The VA examiner noted the Veteran’s right knee disability impacts his ability to perform occupational tasks in that it impacts his ability to use stairs, he has pain with prolonged sitting, aching, stiffness, and popping when using the stairs. The VA examiner concluded there is no evidence of pain on passive range of motion testing of the left knee, no evidence of pain on non-weight bearing testing o the left knee, objective evidence of pain on passive range of motion testing of the right knee, and objective evidence of pain on non-weight bearing testing of the right knee. The examiner concluded the Veteran’s right knee disability has changed and progressed. The Veteran’s level of disability does not warrant a disability rating in excess of 30 percent from December 13, 2019. The evidence of record reflects that at worst, the Veteran’s right knee range of motion was from 0 to 120 degrees. A 10 percent rating under DC 5260 requires flexion limited to 45 degrees; a 10 percent rating under DC 5261 requires extension limited to 10 degrees. Accordingly, the Veteran’s range of motion does not warrant a compensable evaluation based on limitation of flexion or extension. However, the Veteran has consistently maintained his right knee disability is painful and productive of functional limitations, including pain and weakness. The Board finds the Veteran’s competent statements and testimony regarding the functional state of his right knee disability to be credible. See Layno v. Brown, 6 Vet. App. 465 (1994). The 2019 VA examination also provided objective findings of pain, weakness, and functional impact. 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, 8 Vet. App. 202. 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, 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, including weakness, excess fatigability, or incoordination. Therefore, as noted above, the Veteran is current in receipt of a rating of 30 percent under DC 5260. This is the highest schedular rating available under DC 5260. A higher rating is not available as a matter of law. DC 5261 provides for ratings higher than 30 percent, but the Board finds the objective medical evidence does not demonstrate the Veteran’s right knee disability was manifested by extension limited to 30 degrees in order to be entitled to a 40 percent rating under DC 5261. The Board also considered whether higher or separate ratings are available under other diagnostic codes. However, Diagnostic Codes 5256, 5257, 5258, 5259, 5262, and 5263 do not have applicability in this matter, as the pathology or manifestations in the rating criteria under those Codes (ankylosis, recurrent subluxation or lateral instability, dislocated semilunar cartilage, symptomatic removal of semilunar cartilage, malunion or nonunion of tibia or fibula, or genu recurvatum) are not shown. 38 C.F.R. § 4.71. The Veteran reported pain, locking, weakness, pain when sitting, stiffness, popping when using the stairs, flare-ups, interreference with standing, and disturbance of locomotion. Therefore, while the Veteran’s limitation of range of motion does not warrant an increased evaluation, as 30 percent evaluation was awarded by the RO given the Veteran’s symptoms. Considering the evidence of record, a higher rating under the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, Deluca, and Mitchell criteria is not warranted for an increased rating beyond the 30 percent already assigned. The evidence of record is consistent with the schedular rating of the limitation of motion in accordance with § 4.71a and in conjunction with considerations under §§ 4.40 and 4.45. The Veteran's complaints of pain, pain on motion, and functional loss are reflected in the current rating; the VA examiner considered these complaints and reported the ROM findings. Therefore, all symptoms are adequately considered and a rating in excess of 30 percent is denied. The Veteran has not raised any other issues with respect to his claims on appeal, nor have any other assertions been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (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). Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Mouzakis, Associate 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.