Citation Nr: 21000653 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 15-27 552 DATE: January 5, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for degenerative joint disease of the right knee is denied. FINDING OF FACT The Veteran’s right knee degenerative joint disease has not been manifested by limitation of flexion of the knee to 30 degrees or less, limitation of extension, a meniscus disability, or instability or subluxation. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent for degenerative joint disease of the right knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DC) 5003-5260. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Marines from April 1966 to June 1969. This is an appeal of an April 2015 rating decision, which assigned a 10 percent rating for degenerative joint disease of the right knee effective December 2, 2014. The Veteran had a video conference hearing before the undersigned Veterans Law Judge in March 2019. The matter was remanded in January 2020 to retrieve any outstanding VA treatment records since November 2019 and to schedule the Veteran for a VA examination to determine the severity of the service-connected right knee disability. The VA examination took place later in the same month. The matter was again remanded in October 2020 for readjudication with consideration of new and relevant evidence, which included an August 2020 VA examination of the bilateral knees. A new Supplemental Statement of the Case was issued in November 2020 pursuant to the October 2020 remand order. Accordingly, there has been substantial compliance with the remand directives and the matter is again before the Board. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). The Board has thoroughly reviewed all the evidence in the Veteran’s claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, regarding the Veteran’s claim on appeal. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). The Veteran has alleged that his right knee disability has worsened since the time of his March 2015 examination. During the March 2019 Board hearing, the Veteran stated that he experiences pain and instability in his right knee, which has caused him to fall, requires the use of an assistive device at times, and reduces his functioning and mobility. The Veteran’s wife has also submitted a statement dated in March 2019 supporting the Veteran’s statements regarding his symptoms and functional limitations. 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. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. 38 C.F.R. § 4.14. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. Id. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination upon which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. 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 innervations, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the 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. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40. Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss, taking into account any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions regarding the avoidance of pyramiding do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare ups. See 38 C.F.R. § 4.14. However, those provisions should only be considered in conjunction with the diagnostic codes predicated on limitation of motion. 38 C.F.R. §§ 4.40, 4.45. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Painful motion is an important factor of joint disability, which is entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. However, the evaluation of painful motion as limited motion only applies when the limitation of motion is noncompensable under the applicable diagnostic code. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Whether the issue is one of an initial rating or an increased rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). With respect to the Veteran’s initial rating claim on appeal, the Board has considered the claim from the assigned effective dates, which the Veteran has not appealed, as well as whether any additional staged rating periods are warranted. The Veteran’s degenerative joint disease of the right knee is currently rated as 10 percent disabling from December 2, 2014 under DC 5003-5260, regarding degenerative arthritis. See 38 C.F.R. § 4.71a, DC 5003. Hyphenated DCs are used when a rating under one DC requires use of an additional DC to identify the basis for the evaluation assigned. The additional code is shown after the hyphen. 38 C.F.R. § 4.27. Degenerative and/or traumatic arthritis as shown by x-ray studies are rated based on limitation of motion of the affected joint. 38 C.F.R. § 4.71a, DCs 5003, 5010. When, however, the limitation of motion is noncompensable under the appropriate diagnostic codes, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion. Id., DC 5003. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. DCs 5260 and 5261 assign disability ratings based upon limitation of motion of the leg. Under DC 5260, limitation of flexion to 60 degrees is noncompensable, limitation of flexion to 45 degrees warrants a 10 percent disability rating, limitation of flexion to 30 degrees warrants a 20 percent disability rating, and limitation of flexion to 15 degrees warrants a maximum schedular 30 percent disability rating. Id., DC 5260. Under DC 5261, a 10 percent disability rating is allowed when extension is limited to 10 degrees, a 20 percent disability rating is allowed when extension of the leg is limited to 15 degrees, a 30 percent disability rating is warranted for extension limited to 20 degrees, and a maximum schedular 40 percent disability rating is warranted for extension limited to 30 degrees. Id., DC 5261. With regards range of motion, for rating purposes, normal range of motion in a knee joint is from 0 to 140 degrees. Id., Plate II. Following a review of the evidence of record, and as discussed below, the Board finds that the preponderance of evidence weighs against the Veteran’s claim of entitlement to an initial disability rating in excess of 10 percent for degenerative joint disease of the right knee for the entire period on appeal. As noted, the Veteran underwent a VA examination of his knees in March 2015. The Veteran exhibited some reduced flexion to 95 degrees. The VA examiner opined that the reduced range of motion does not contribute to functional loss. The Veteran exhibited normal strength in the bilateral knees with no ankylosis. There was no joint instability and no noted history of recurrent subluxation, lateral instability, or recurrent effusion. Furthermore, the Veteran was found to have no additional conditions limiting function of the right knee. The examiner indicated that the Veteran’s disability does not impact his ability to perform occupational tasks. Thereafter, treatment notes in November 2015 indicate the Veteran experienced gait dysfunction secondary to right knee pain, but do not otherwise show significant exacerbations of the Veteran’s symptoms, emergency treatment, or inpatient care. At his March 2019 Board hearing, the Veteran detailed the extent of the limitations caused by the right knee disability. He reported that he uses a cane at all times, and will use a walker in severe weather. He also stated that he occasionally wears a brace for lateral instability in the knee. The Veteran claimed that he uses over-the-counter medication in order to manage his pain symptoms. He stated that he is unable to fix things around the house or do things he used to enjoy, such as dancing with his wife, gardening, and playing with his grandkids. The letter submitted by the Veteran’s wife in the same month further detailed the Veteran’s reduced ability to perform tasks around the house and to partake in activities he previously enjoyed. During evaluation in April 2019, the Veteran reported feelings of instability with sudden movements. He reported that use of his knee brace has been helpful. An x-ray showed no change in mild tricompartmental degenerative changes of the right knee, some generalized osteopenia of the visualized bony structures, and no acute osseous abnormality. The Veteran’s ligaments were described as stable to valgus stress and anterior draw. Following the January 2020 Board remand, the Veteran underwent an additional VA examination of the right knee later in the same month. Although the Veteran exhibited pain with passive range of motion and was suspected to have small suprapatellar right knee joint effusion, the findings of the January 2020 VA examination were very similar to the clinical findings documented in the March 2015 VA examination report. The Veteran showed improved range of motion in the knee with 110 degrees flexion bilaterally and full extension. The Veteran exhibited full strength with no joint instability and no ankylosis. There was no indication of a meniscus disability or subluxation. The examiner did not find the Veteran’s right knee disability to contribute to functional loss or an inability to perform occupational tasks. The examiner further stated that pain, weakness, fatigability, and incoordination did not significantly limit the Veteran’s functional ability with repeated use over a period of time. In August 2020, the Veteran underwent another VA examination of the bilateral knees (the Veteran is also service connected for the left knee). The Veteran was found to have decreased strength and range of motion in the right knee, possibly due to age and arthritis, but no ankylosis, subluxation, or lateral instability. The Veteran’s flexion was to 120 degrees and extension to 0 degrees on initial measurement. The Veteran exhibited no pain on passive range of motion or non-weight bearing testing. There was interference with sitting and standing, disturbance of locomotion, and instability noted, with age as a contributing factor. Pain, weakness, and lack of endurance limited the Veteran’s functional ability with repeated use over time, consistent with the Veteran’s statements describing his functional loss with repetitive use, which included reported pain with bending and climbing stairs, and an inability to stand more than 20 minutes, run, or walk more than 3 blocks. The examiner was able to describe the functional loss with repeated use of time in terms of range of motion, indicating that the Veteran’s flexion was reduced to 110 degrees, and extension maintained to 0 degrees. The Veteran denied experiencing flare-ups. As required, the most recent examinations included joint testing for pain on both active and passive motion, in weight bearing and non-weight bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2017). In an addendum statement in September 2020, the August 2020 examiner stated that the Veteran’s bilateral knee condition restricts the Veteran from occupational tasks that require standing more than 20 minutes, bending, climbing stairs, running, or walking more than 3 blocks, due to knee pain. Treatment records thereafter show the Veteran continued to experience pain in his right knee, but do not indicate significant exacerbations of the Veteran’s symptoms or further reduced functioning. The evidence of record, including as discussed above, does not document that the Veteran’s right knee degenerative joint disease has resulted in limitation of flexion to 30 degrees or worse for any period on appeal in order to warrant an increased 20 percent disability rating under DC 5260. See 38 C.F.R. § 4.71a, DC 5260. Specifically, the March 2015 VA examination report showed that the right knee was limited in flexion to 95 degrees, and the 2020 VA examinations showed flexion limited to 110 degrees. The Board has also considered whether increased initial disability ratings are warranted for the right knee under alternate diagnostic codes regarding disability of the knee. Notably, the Veteran did not exhibit any reduced extension on range of motion testing of the right leg to warrant consideration under DC 5261. Id., DC 5261. The March 2015 and 2020 VA examination reports showed that the Veteran was able to extend the right knee to 0 degrees. The evidence of record does not document any incapacitating episodes due to his right knee disability; therefore, higher initial ratings are not warranted under DC 5003. Id., DC 5003. Additionally, the VA examination findings document that the Veteran does not have ankylosis, recurrent subluxation or lateral instability, dislocation of the semilunar cartilage (meniscus), symptomatic removal of semilunar cartilage, current impairment of the tibia and fibula, or genu recurvatum, therefore DCs 5256, 5257, 5258, 5259, 5262, and 5263 are not for application. Id., DCs 5256-63. As noted above, the Board has considered the Veteran’s reports of painful motion in his knee, as well as the loss of function reported by the Veteran and corroborated by his wife. However, the Veteran’s symptoms are appropriately contemplated by his currently assigned 10 percent disability rating. Mitchell, 25 Vet. App. 32 (2011). Examination findings did not show reduced function sufficient to warrant an increased rating or consideration under separate DCs. Furthermore, the VA examiners are experts in the field and were able to examine the Veteran and review the evidence of record on multiple occasions over an extended period of time. The examiners’ conclusions were supported by the objective examination findings and their opinions are found to be highly probative. The Board acknowledges that the Veteran as a layperson is competent to testify to factual matters of which he has first-hand knowledge such as experiencing pain, perceiving instability in a joint, or witnessing actually observed symptoms such as swelling. See Washington v. Nicholson, 19 Vet. App. 362, 368 (discussing competence to report experienced or witnessed symptoms versus incompetence to render a medical diagnosis or identify the etiology of disease or injury that require medical knowledge). With respect to lateral instability, the Board has considered the Veteran’s statements describing right knee instability. The Board recognizes that 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. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Here, the Board finds the Veteran is competent to describe many symptoms of his right knee disability, such as perceived instability and pain. See Jandreau, 492 F.3d at 1376 (lay witness capable of diagnosing dislocated shoulder); Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay person competent to testify to pain and visible flatness of his feet); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis). The Board also finds his statements regarding perceived right knee instability generally credible because he made them to a VA medical provider while seeking treatment. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made for the purposes of medical treatment may be afforded greater probative value because there is a strong motive to tell the truth to receive proper care). Here, the Veteran reported having “feelings of instability” to a VA medical professional in April 2019. He had also reported having instability at the March 2019 hearing before the undersigned. To the extent, however, that VA medical personnel used specific clinical tests to assess the stability of the Veteran’s right knee, the Board finds the objective medical evidence is more probative than the lay evidence on the issue of instability because the clinical assessment of knee instability made by performing particular joint stability tests falls outside the realm of common knowledge of laypersons. Here, competent medical evidence has consistently documented that the Veteran’s right knee joint was stable to anterior testing (Lachman test), posterior testing (posterior drawer test), medial testing (valgus stress testing), and to lateral testing (varus stress testing). In Jandreau v. Nicholson, 492 F.3d 1372 (2007), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that “[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when…lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Jandreau, 492 F.3d at 1977. The issue of whether the Veteran’s perceived symptom of right knee instability is competent and sufficient to establish that he has actual instability of the knee sufficient to warrant a separate disability rating under Diagnostic Code 5257 is analogous to the situation described in Jandreau. In this case, the Veteran has described his perception of right knee instability. However, two medical professionals have tested his right knee for instability during the pendency of his appeal and neither found even slight instability on anterior, posterior, medial, or lateral stability testing. Because the Veteran’s perceived symptom of right knee instability has not been demonstrated or confirmed on clinical testing by medical professionals, which testing was performed in 2015 and 2020, his lay testimony is insufficient to establish the presence of anterior, posterior, medial, or lateral instability sufficient to warrant separate disability rating. In English v. Wilkie, 30 Vet. App. 347 (2018), the U.S. Court of Appeals for Veterans Claims held that the Board cannot find objective medical evidence categorically more probative than lay evidence without explaining why that is the case. To be clear, the Board finds the objective medical evidence more probative than the Veteran’s reports of perceived right knee instability for two reasons. First, the VA examinations in March 2015, January 2020, and August 2020 included four forms of stability testing, anterior instability, posterior instability, medial instability, and lateral instability and none of the testing demonstrated right knee instability. Testing during routine follow-up in April 2019 also indicated stability on valgus stress and anterior draw testing. The thorough, repeated stability testing, which did not reveal instability, supports the conclusion that the Veteran’s perceived knee instability is not due to anterior, posterior, medial, or lateral knee joint laxity. Second, the three VA examinations conducted between 2015 and 2020 were performed by two, different medical professionals with each performing joint stability testing, and each documented the right knee was stable to stability testing. A third examiner was responsible for the findings during treatment in April 2019. The internal consistency among the independent examiners bolsters the conclusion that their findings of no right knee joint instability were accurate. For these reasons, the Board finds that the preponderance of the evidence is against entitlement to a separate rating for instability of the right knee. In sum, the preponderance of evidence weighs against the Veteran’s claim of entitlement to an initial disability rating in excess of 10 percent for right knee degenerative joint disease for the entire period on appeal. As the preponderance of evidence is against the claim, there is no reasonable doubt to be resolved, and the claim is denied. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Wonderling, 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.