Citation Nr: 21000680 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 14-29 543 DATE: January 5, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for a left knee disability is denied. Entitlement to a rating in excess of 10 percent for a right knee disability is denied. FINDINGS OF FACT 1. The Veteran’s left knee disability is productive of flexion limited to, at worst, 95 degrees with painful motion; flexion limited to 30 degrees has not been shown at any time. 2. The Veteran’s right knee disability is productive of flexion limited to, at worst, 100 degrees with painful motion; flexion limited to 30 degrees has not been shown at any time. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating in excess of 10 percent for a left knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003-5260. 2. The criteria for entitlement to a rating in excess of 10 percent for a right knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1996 to September 1998. These matters are before the Board of Veterans’ Appeals (Board) on appeal from August 2011 and September 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In May 2019, the Veteran testified before the undersigned Veterans Law Judge at a video conference hearing. In September 2019, the Board remanded these matters for additional development. At that time, the Board also remanded claims for service connection for a lumbar spine disability and a total disability rating based on individual unemployability (TDIU). While in remand status, a September 2020 rating decision granted the claims for service connection for a lumbar spine disability and a TDIU. As this rating action represents a full grant of the benefits sought, those issues are no longer on appeal before the Board. As the actions specified in the September 2019 remand have been substantially completed, the matters remaining on appeal have been properly returned to the Board for appellate consideration. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). Duties to Notify and Assist With respect to the Veteran’s claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A; 38 C.F.R. § 3.159. Neither the Veteran nor her representative have advanced any procedural arguments in relation to VA’s duties to notify and assist; therefore, the Board will proceed with appellate review. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). Increased Rating Disability ratings are determined by application of the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; see generally 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is to be considered when making disability determinations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the question for consideration is the propriety of the initial rating assigned, evaluation of the evidence since the effective date of the grant of service connection is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the current level of disability that is of primary concern, and VA must only address the evidence concerning the state of the disability from the time period one year before the claim for an increase was filed until VA makes a final decision on the claim. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, in all increased rating claims, when the factual findings show distinct time periods during which the Veteran exhibited symptoms of disability and such symptoms warrant different disability ratings, staged ratings may also be assigned. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to an initial rating in excess of 10 percent for a left knee disability 2. Entitlement to a rating in excess of 10 percent for a right knee disability The Veteran generally contends that she is entitled to increased ratings her service-connected left and right knee disabilities because her symptoms are more severe than contemplated by her currently-assigned ratings. The Veteran is in receipt of an initial 10 percent rating for her left knee disability under Diagnostic Codes 5003-5260. She is in receipt of a 10 percent rating for her right knee disability under Diagnostic Code 5260. 38 C.F.R. § 4.71a. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional code to identify the basis for the rating assigned. See 38 C.F.R. § 4.27. Under Diagnostic Code 5003, degenerative arthritis established by x-ray findings is to be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint involved. 38 C.F.R. § 4.71a. As the Veteran’s left knee disability manifests by limitation of motion, the disability will be rated based on the diagnostic codes concerning limitation of motion of the knee. The Board’s analysis will begin with Diagnostic Code 5260, which contemplates the criteria for limitation of flexion of the knee, but all potentially applicable rating criteria will also be considered. Under Diagnostic Code 5260, in relevant part, flexion limited to 30 degrees warrants a 20 percent rating. Flexion limited to 15 degrees warrants a maximum 30 percent rating. 38 C.F.R. § 4.71a. The Board notes that separate ratings under Diagnostic Code 5260 (limitation of flexion) and Diagnostic Code 5261 (limitation of extension) may be assigned for disability of the same joint. See VAOPGCPREC 9-04 (September 17, 2004). As such, Diagnostic Code 5261 may potentially be for application here. Under Diagnostic Code 5261, extension limited to 5 degrees is noncompensable. Extension limited to 10 degrees warrants a 10 percent rating. Extension limited to 15 degrees warrants a 20 percent rating. Extension limited to 20 degrees warrants a 30 percent rating. Extension limited to 30 degrees warrants a 40 percent rating. Finally, where extension is limited to 45 degrees, a maximum 50 percent rating may be assigned. 38 C.F.R. § 4.71a. For reference, normal range of motion of the knee is 140 degrees of flexion and zero degrees of extension. See id. at Plate II. In addition to the ratings based on limitation of motion, a separate rating may also be assigned for instability of the knee. See VAOPGCPREC 23-97 (July 1, 1997). Under Diagnostic Code 5257, other knee impairment with slight recurrent subluxation or lateral instability warrants a 10 percent rating. A 20 percent rating is warranted for moderate recurrent subluxation or lateral instability. A maximum 30 percent rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a. When evaluating disabilities of the musculoskeletal system predicated on limitation of motion, 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, 204-07 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, deformity, or atrophy of disuse. The diagnostic codes pertaining to range of motion do not subsume sections 4.40 and 4.45, and the rule against pyramiding does not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during periods of flare-up. See DeLuca, 8 Vet. App. at 206; see also Johnson v. Brown, 9 Vet. App. 7 (1996). In determining if a higher rating is warranted on this basis, it is important to note that pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). Similarly, painful motion alone does not constitute limited motion for the purposes of rating under the diagnostic codes pertaining to limitation of motion. Id. However, pain may result in functional loss if it limits the ability to perform normal movements of the body with normal excursion, strength, speed, coordination, or endurance, as provided in 38 C.F.R. § 4.40. Id. at 38. Functional loss caused by pain must be rated at the same level as if that functional loss were caused by some other factor, for example, deformity, adhesion, atrophy, tendon tie-up, see 38 C.F.R. §§ 4.40, 4.45, that actually limited motion. Id. at 37. The Board notes that the Veteran has appealed the initial 10 percent rating assigned for her left knee disability from August 7, 2006, the effective date of the grant of service connection. Therefore, in adjudicating the left knee claim, the Board may consider the pertinent evidence of record since August 7, 2006. With respect to the right knee disability, the Board notes that the Veteran filed her claim for an increased rating on April 1, 2011. Therefore, the Board may only consider the relevant evidence up to one year prior to the date of the claim for the right knee. Turning to the relevant evidence of record, the Board initially notes that VA treatment records show that the Veteran has consistently reported and sought treatment for chronic bilateral knee pain throughout the duration of the periods on appeal. A December 2008 VA magnetic resonance imaging (MRI) of the bilateral knees was unremarkable. In January 2009, the Veteran reported to her VA physical therapist that she experiences constant throbbing pain in her knees. She stated that sometimes the pain is so sharp she must “pop” her kneecaps for relief. The Veteran was noted to have patellar braces, but she does not wear them due to discomfort. The physical therapist noted that the Veteran ambulates with an antalgic gait. On range of motion testing, the Veteran had full extension bilaterally, but flexion was limited to approximately 95 degrees due to patellar pain. In February 2010, the Veteran underwent a VA joint examination for the left knee. The right knee was not evaluated. The VA examiner noted that the left knee was shown to be within normal limits on MRI. On active range of motion testing after three repetitions, flexion was limited to 120 degrees due to reported pain. The Veteran had full extension. She rated her left knee pain as “7 out of 10.” She did not report experiencing flare-ups. The examiner did not find instability, deformity, malalignment, drainage, tenderness, edema, redness, heat, spasms, painful motion, abnormal movement, guarding of movement, fatigue, lack of endurance, weakness, atrophy, incoordination, or pertinent abnormal weight bearing of the left knee. Muscle strength and coordination was normal. The examiner diagnosed the Veteran with left knee medial meniscal degenerative joint disease and opined that the disability causes “minimal functional limitation.” In May 2011, the Veteran underwent a VA joint examination for the right knee. The left knee was not evaluated. On examination, she reported symptoms including grinding, popping, locking, and severe pain. Her subjective reports also included experiencing stiffness, swelling, weakness, and instability. The Veteran described experiencing flare-ups of intermittent sharp pain. On active range of motion testing after three repetitions, flexion was limited to 100 degrees due to reported pain. The Veteran had full extension. The examiner did not find objective evidence of instability, laxity, deformity, malalignment, drainage, tenderness, edema, redness, heat, spasms, painful motion, abnormal movement, guarding of movement, fatigue, lack of endurance, weakness, atrophy, incoordination, or pertinent abnormal weight bearing of the left knee. The examiner noted that loss of function due to flare-ups could not be determined without resorting to mere speculation. The examiner diagnosed the Veteran with right knee chondromalacia patella and opined that the disability causes “minimal functional limitation.” In a May 2011 VA primary care note, the Veteran was noted to have right knee bony enlargement with full range of motion in flexion and extension and no effusion. In a June 2011 follow-up, the Veteran reported ongoing knee pain and weakness, especially after prolonged standing and walking. The treating physician found the Veteran to have mild to moderate effusion in her right knee, with full extension and painful flexion. In December 2012, the Veteran underwent a VA examination of her right knee. The left knee was not evaluated. Upon examination, she reported intermittent pain that she described as “stabbing” and “aching” in the right knee. She also reported a “popping” sensation. She stated that she has to be careful going down stairs because her knee buckles. The Veteran denied experiencing flare-ups. Range of motion testing revealed flexion to 115 degrees with no objective evidence of painful motion. The Veteran had full extension of the right knee with no objective evidence of painful motion. There was no additional limitation of range of motion following repetitive-use testing, however, the examiner noted additional functional loss due to less movement than normal. Muscle strength and joint stability were normal with no evidence or history of recurrent patella subluxation or dislocation. The examiner remarked that the Veteran’s right knee disability causes “minimal functional limitation.” A January 2015 VA primary care note details that the Veteran reported a sharp pain in her bilateral knees, which she rated “7 out of 10,” that is “on and off with walking.” On physical examination, the Veteran was noted to have full range of motion with no evidence of edema, erythema, deformity, or ligament laxity. Moreover, there was no patella pain or tenderness, crepitus, or joint pain with flexion or extension. In April 2016, the Veteran underwent a VA examination of her left knee. The right knee was not evaluated. Upon examination, the Veteran reported experiencing constant pain in the left knee, rated “6 out of 10,” that increases to “8 out of 10,” several times a day upon increased activity. She stated that the left knee sometimes “needs to be popped” and that “it seems like something is loose.” The Veteran denied experiencing flare-ups or any functional loss or functional impairment of the joint. Range of motion testing revealed flexion to 130 degrees and extension to zero degrees (full extension). No pain was noted on examination. There was no additional loss of function or range of motion following repetitive-use testing. The examiner remarked that it is impossible to say without undue speculation whether pain, weakness, fatiguability, or incoordination could significantly limit functional ability during a period of flare-up or when the joint is used repeatedly over a period of time. However, the examiner noted that the Veteran’s descriptions of pain are more consistent with chronic pain rather than flare-up. Muscle strength and joint stability testing was within normal limits. There was no history or evidence of recurrent subluxation, lateral instability, or recurrent effusion. In a May 2016 VA physical therapy note the Veteran reported that her knees were “doing okay” and “feeling about the same,” although she reported that she is unable to stand for long periods of time. She rated her intermittent knee pain as a “6 out of 10,” and described the pain as a “stabbing sensation.” The physical therapist noted that the Veteran’s range of motion on flexion and extension was “within normal limits” bilaterally, with no swelling. At her May 2019 Board hearing, the Veteran testified that her knees frequently ache, swell, grind, and pop; sometimes she has to “pop” her left knee so that she can walk properly. She testified that these symptoms “come and go” a few times a week and are typically aggravated by activity. The Veteran underwent a VA examination of both knees in December 2019. Upon examination, the Veteran described her current symptoms as “achy, stabbing pain to bilateral knees with stiffness.” She reported periods of flare-up and functional loss due to increased pain with walking, standing, sitting, and climbing stairs. Range of motion testing revealed flexion limited to 110 degrees and no limitation of extension, bilaterally, with objective evidence of pain. Moderate pain was noted in the patella area on palpation bilaterally. There was no additional loss of function or range of motion following repetitive-use testing. With regard to repeated use over time and periods of flare-up, the examiner determined that pain causes functional loss with an additional loss of 10 degrees in flexion (resulting in flexion limited to 100 degrees) bilaterally. There is no additional loss of range of motion in extension bilaterally. Muscle strength was noted to be normal with no evidence of atrophy. There was no ankylosis. There was no history or evidence of recurrent subluxation or lateral instability, although the Veteran reported intermittent swelling in both knees. Joint stability testing was within normal limits. Based on the foregoing evidence of record, the Board finds that an increased rating based on limitation of flexion is not warranted for either the left or right knee disabilities at any time. As noted above, the next higher rating of 20 percent under Diagnostic Code 5260 requires flexion of the knee limited to 30 degrees. However, as outlined above, the objective medical evidence demonstrates that the Veteran’s left knee flexion was limited to, at most, 95 degrees. See January 2009 VA Physical Therapy Note. Moreover, her right knee flexion was limited to, at most, 100 degrees. See May 2011 VA Examination Report. During the relevant appeal periods, the evidence does not suggest at any time that the Veteran’s left and right knee disabilities manifested by, or more closely approximated, flexion limited to 30 degrees. In making this determination, the Board has fully considered whether higher ratings can be assigned based on consideration of the factors addressed in 38 C.F.R. §§ 4.40, 4.45, and DeLuca, 8 Vet. App. at 204-07. The body of evidence shows that the Veteran has consistently reported experiencing pain, painful motion, swelling, and, at times, weakness in her bilateral knees, especially after increased activity. Moreover, she has, at times, described experiencing periods of flare-up and functional loss due to increased pain with prolonged walking, standing, sitting, and climbing stairs. The Veteran is competent to report these symptoms. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). While the Board acknowledges that the Veteran may experience additional functional loss due to factors such as pain during periods of flare-up or after repeated use over time, as indicated on the December 2019 VA examination report, this functional loss would only result in, at most, an additional loss of 10 degrees of flexion in both knees. The Board notes that previous VA examiners, specifically, in June 2010, May 2011, December 2012, and April 2016, did not attempt to assess whether the Veteran experiences any additional degree of functional loss during periods of flare-up or after repeated use over time. In fact, the Veteran’s attorney has challenged the sufficiency of these examinations to properly evaluate the current severity of the Veteran’s knee disabilities on this basis. However, upon review of the Veteran’s statements and the other objective findings on examination, the Board can find no basis to conclude that flare-ups would result in additional range of motion loss more than the 10 degrees found on the most recent VA examination when such has never been reported by the Veteran or shown after repetitive use testing. Therefore, even when considering functional limitations due to pain and the other factors identified in 38 C.F.R. §§ 4.40, 4.45, as well as the Veteran’s reports of increased pain and functional impairment during periods of flare-up, the Board does not find any evidence to conclude that the Veteran’s functional losses equate to the criteria required for a 20 percent or greater rating for either the left or right knee. See 38 C.F.R. §§ 4.40, 4.45; DeLuca at 204-07; see also Sharp v. Shulkin, 29 Vet. App. 26 (2017). Moreover, as the Veteran’s subjective reports of pain, painful motion, and swelling are already contemplated by her currently-assigned 10 percent ratings, higher ratings under DeLuca are not warranted. See 38 C.F.R. §§ 4.40, 4.45, 4.59. The Board has also considered whether separate compensable ratings are warranted for either knee based on limitation of extension and recurrent subluxation and/or lateral instability. However, the Board notes that the Veteran has been shown to have extension to zero degrees, or full extension, in both her left and right knees throughout the duration of the appeal. There is no subjective or clinical evidence to suggest that the Veteran has limitation of extension in either knee. Therefore, separate ratings under Diagnostic Code 5261 for limitation of extension of the knee are not warranted. With regard to subluxation or instability, the Board acknowledges that the Veteran has consistently reported in statements to VA adjudicators and examiners that her knees frequently “pop” and “give away.” However, Veteran underwent joint stability testing of the left knee in April 2016 and December 2019 and of the right knee in December 2012 and December 2019, which revealed no objective evidence of instability. The VA examiners further found no evidence or history of recurrent subluxation or lateral instability in the knees at these examinations. Moreover, VA examiners in June 2010 (left knee) and May 2011 (right knee) found no evidence of instability, malalignment, or weakness in either knee. Notably, the Veteran’s VA treatment records do not contain any findings of knee instability or laxity. In light of the above, the Board finds that the Veteran’s subjective reports of her knees “popping” and “giving out” are outweighed by the objective evidence of record, which does not show any evidence of subluxation or instability. Therefore, the Board finds that separate ratings under Diagnostic Code 5257 for other impairment of the knee are not warranted. Finally, the Board has also considered whether the Veteran is eligible for a separate rating under any other potentially applicable diagnostic code. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In this regard, the Board notes that as there is no evidence during the periods on appeal of ankylosis, dislocated or removed semilunar cartilage, tibia and fibula impairment, or genu recurvatum in either knee, higher or separate ratings are not warranted under Diagnostic Codes 5256, 5258, 5262, or 5263. In reaching the above conclusions, the Board acknowledges that the Veteran sincerely believes her symptoms are more severe than contemplated by her currently-assigned 10 percent ratings for her left and right knee disabilities. The Veteran is competent to report on factual matters of which she has first-hand knowledge, such as experiencing an increased level of pain and other symptomatology. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); see also Layno, 6 Vet. App. at 469-71. While the Board has considered the lay statements of record, and has given them appropriate weight where they are consistent with the objective medical evidence of record, the Board has accorded greater probative weight to the objective evidence of record as VA clinicians and examiners have the requisite medical training and expertise to make complex medical determinations. Therefore, the medical evidence is more probative regarding the current level of severity of the Veteran’s knee disabilities, and the most probative medical evidence has shown that the Veteran’s left and right knee disabilities are no more than 10 percent disabling under the applicable criteria. Accordingly, the Board finds that the preponderance of the evidence is against the assignment of an initial rating in excess of 10 percent for a left knee disability and a rating in excess of 10 percent for a right knee disability at any time during the periods on appeal. Therefore, the benefit-of-the-doubt rule does not apply and the claims for increased ratings must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 56. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Melissa Barbee, 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.