Citation Nr: 21000222 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 16-13 851 DATE: January 4, 2021 ORDER A separate initial 10 percent rating for right knee strain with arthritis under DC 5260 is granted, effective from May 21, 2014. The claim of entitlement to an initial compensable rating for right knee strain with arthritis, under DC 5299-5257 prior to December 14, 2019, and under DC 5257-5010 thereafter, is denied. REMANDED The claim of entitlement to service connection for a low back disability is remanded. FINDINGS OF FACT 1. The Veteran’s right knee strain with arthritis manifests with pain and painful motion. 2. His right knee has not manifested with lateral instability or recurrent subluxation during the appeal period. CONCLUSIONS OF LAW 1. The criteria are met for an initial 10 percent rating for right knee strain with arthritis under DC 5260 for the entire period on appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.400, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DCs 5010, 5260. 2. The criteria are not met for an initial compensable rating for right knee strain with arthritis under DC’s 5299-5257 or 5257-5010. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.400, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1996 to May 1999. This appeal is from an August 2015 rating decision. In September 2019, the Board remanded this claim for additional development. 1. A separate initial 10 percent rating for right knee strain with arthritis under DC 5260 is granted, effective from May 21, 2014. 2. The claim of entitlement to an initial compensable rating for right knee strain with arthritis, under DC 5299-5257 prior to December 14, 2019, and under DC 5257-5010 thereafter, is denied. Disability ratings are assigned in accordance with VA’s Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Separate diagnostic codes (DCs) identify the various disabilities. See generally 38 C.F.R. Part 4. If two disability evaluations are potentially applicable, 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. Reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The Veteran’s right knee is currently rated noncompensably under DC 5257-5010, which means that his disability is rated under DC 5010, which pertains to arthritis. 38 C.F.R. § 4.71a; see also 38 C.F.R. § 4.27 (explaining and setting forth the procedure for assigning diagnostic criteria to unlisted disabilities, including the use of hyphenated ratings). This is effective from December 19, 2019, the date of his VA examination. Prior to that, he was rated noncompensably under DC 5299-5257, which means that his disability was rated under DC 5257, pertaining to other impairment of the knee based on lateral instability or recurrent subluxation, effective from May 21, 2014. Both of these periods and diagnostic criterion are under consideration. Under DC 5010, arthritis due to trauma is rated under the criteria applicable for DC 5003, which pertains to degenerative arthritis. 38 C.F.R. § 4.71a. Under DC 5003, arthritis is rated based on limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. If the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate codes, an evaluation of 10 percent is applied for X-ray evidence of involvement with 2 or more major joints or 2 or more minor joint groups. A 20 percent rating is warranted for X-ray evidence of involvement with 2 or more major joints or 2 or more minor joint groups with occasional incapacitating episodes. 38 C.F.R. § 4.71a, DCs 5003, 5010. A Note to the criteria indicates that the 10 and 20 percent ratings set forth above will not be combined with ratings based on limitation of motion. Therefore, whichever criteria (either X-ray evidence of arthritis or limitation of motion) yields the higher benefit is the criteria that is applied. Here, there is no evidence of involvement of 2 or more joints, therefore the criteria pertaining to limited motion are next considered. Limited flexion of the knee is rated under DC 5260, which assigns a 0 percent rating when flexion is limited to 60 degrees; a 10 percent rating when limited to 45 degrees; a 20 percent rating when limited to 30 degrees; and, a 30 percent rating when limited to 15 degrees. Id., DC 5260. Normal range of motion of the knee is from 0 to 140 degrees. Id., Plate II. Limited extension of the knee is rated under DC 5261, which assigns a 0 percent rating when extension is limited to 5 degrees; a 10 percent when limited to 10 degrees; a 20 percent when limited to 15 degrees; a 30 percent when limited to 20 degrees; a 40 percent when limited to 30 degrees; and, a 50 percent when limited to 45 degrees. Id., DC 5261. Normal range of motion of the knee is from 0 to 140 degrees. Id., Plate II. The Board notes, when rating disabilities based on limited motion, the rater must consider any functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness, along with the schedular criteria. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also 38 C.F.R. §§ 4.40 and 4.45. Painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in. See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); 38 C.F.R. § 4.59. Painful, unstable, or malaligned joints, due to a healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. The Veteran’s right knee range of motion at both the VA examinations (August 2015 and December 2019) was from 0 to 140 degrees, which is normal range of motion. This does not meet the criteria for a compensable rating under either DC 5260 or 5261. Neither examiner identified any functional loss or objective painful motion, but did note that he had constant pain. During the Veteran’s hearing, he complained of having trouble flexing and extending his knee due to tenderness. The Board finds that the Veteran is competent to report his own symptoms. He reported essentially the same troubles to each examiner, and to the undersigned, and the Board has no reason to doubt that he experiences discomfort on using his knee. Accordingly, a separate 10 percent rating is warranted for his painful motion. 38 C.F.R. § 4.59, 4.71a, DCs 5010, 5260. The Board considered whether the Veteran’s functional loss warranted an even higher rating, but does not find that supported by the evidence. He complained of trouble running, and that he has flares after walking for a prolonged period or taking the stairs excessively. However, there is nothing showing that his functional limitations have ever reduced his flexion to 30 degrees (or his extension to 15 degrees), or to an equivalent of that level of loss, which is required for the next higher rating. 38 C.F.R. §§ 4.40, 4.59; DeLuca, supra. Indeed, neither VA examiner opined that he would have additional loss of motion after repetitive use over time, and his measured range of motion has always been full. Accordingly, a higher rating based on functional loss is not warranted. Under DC 5257, which pertains other impairment of the knee and is based on lateral instability or recurrent subluxation, a 10 percent rating is assigned for slight symptoms, 20 percent for moderate symptoms, and 30 percent for severe. 38 C.F.R. § 4.71a. The record does not show that he has instability or subluxation. It was not shown at either VA examination, and he denied the symptom during his personal hearing. His VA treatment records do not show evidence of instability of the knee. Accordingly, a compensable rating is not warranted under DC 5257 at any time during the appeal period. The record does not show symptoms involving the meniscus or suggesting dislocation of the semilunar cartilage, and he does not allege. He does not have ankylosis, genu recurvatum, or trouble of the tibia and fibula. Accordingly, separate ratings are not warranted under the diagnostic codes pertaining to these symptoms. The Board notes that the VA examination reports are found to be adequate for adjudication, and that the Veteran has not raised any objections regarding the development of this claim. REASONS FOR REMAND 1. The claim of entitlement to service connection for a low back disability is remanded. This claim requires additional development. The December 2019 VA examiner appeared to largely base his opinion on a lack of documentation of a back problem immediately after service, which is an inadequate basis to deny service connection. A more detailed explanation must be obtained. Further, the examiner did not opine on whether the Veteran’s service-connected right knee caused or aggravated his low back disability. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. After completion of the above directive, schedule the Veteran for an appropriate examination for a report on whether it is as likely as not (50/50 probability or greater) that any low back disability is related to service or to service-connect right knee disability. The examiner is asked to review the file and to elicit from the Veteran a detailed history of his symptoms in and since service. The examiner is asked to opine on whether it is as likely as not the Veteran’s current back symptoms are related to the symptoms in service, and also whether it is as likely as not that the right knee caused or aggravated the low back. His STRs show he was treated for back pain three times while in service, February 1997, June 1998, and March 1999. He reports that he suffered from other episodes of back trouble while out in the field that he treated himself with motrin or naproxen. He also reports that he was advised to use a heating pad, and that he was not sent for further testing. He separated in March 1999 without an examination. His VA treatment records show he started complaining of back trouble in March 2005. The Veteran is service-connected for right knee strain with arthritis. “Aggravated” means to have caused any increase in severity that is beyond the normal progression of the disability, and it need not be permanent in nature.   All opinions must be supported with explanation. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Gibson 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.