Citation Nr: 21000793 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 10-38 432 DATE: January 6, 2021 ORDER Entitlement to an evaluation in excess of 10 percent for service-connected right knee degenerative joint disease (right knee arthritis) is denied. FINDING OF FACT The Veteran’s right knee arthritis is manifested by evidence of painful motion, with no incapacitating exacerbations. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for right knee arthritis have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5010 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1984 to March 1994. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2010 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in a November 2015 hearing. This issue was previously before the Board in March 2014, August and December 2015, September 2017, and June 2020, each time remanded for further development. That development was completed, and the case has since been returned to the Board for appellate review. The Board finds there was substantial compliance with the June 2020 remand instructions. The Board is obligated by law to ensure that the RO complies with its directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). The RO was instructed to obtain and associate with the claims file any outstanding VA and private treatment records, and to provide the Veteran with a new VA examination. Additional VA treatment records were successfully added to the claims file in June and July 2020. In June 2020, the RO sent the Veteran a letter requesting that he identify and authorize for release any relevant private treatment records. The Veteran did not reply to this letter. And finally, the Veteran underwent a new VA examination in August 2020. Although prior examinations were found to be partially inadequate, the 2020 examination was adequate in functional loss testing. Entitlement to an evaluation in excess of 10 percent for service-connected right knee arthritis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2019). The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence “used to decide whether an original rating on appeal was erroneous.” Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating an increased rating claim, the relevant time period for consideration is the time period one year before the claim was filed. Hart, 21 Vet. App. at 509. Here, the Veteran filed his increased rating claim in September 2010, therefore, the relevant time period for consideration is from September 2009. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In increased evaluation claims, a VA examination report is not adequate without an adequate explanation for an examiner's failure to evaluate the functional effects of a flare-up. Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Board may accept a VA examiner's statement that he or she cannot offer an opinion in that regard without resorting to speculation, but only after determining that this is not based on the absence of procurable information or on a particular examiner's shortcomings or general aversion to offering an opinion on issues not directly observed. Although not binding on VA examiners, the VA Clinician's Guide instructs examiners when evaluating certain musculoskeletal conditions to obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves. Sharp, 29 Vet. App. at 34-35, citing VA CLINICIAN'S GUIDE, ch. 11. For example, a VA examination report is not adequate when the VA examiner failed to elicit relevant information as to the veteran's flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the veteran's functional loss due to flares based on all the evidence of record- including the veteran's lay information-or explain why she or he could not do so. Sharp, 29 Vet. App. at 34-35 . Additionally, VA examinations for musculoskeletal conditions 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. 38 C.F.R. § 4.59 (2017); Correia v. McDonald, 28 Vet. App. 158 (2016). At his January 2015 Board hearing, the Veteran asserted that his right knee arthritis causes difficulty while climbing stairs and that he falls four or five times a year. He also reported difficulty kneeling at work, but he pushes through the pain, and experiences some swelling after a long day. The Veteran was assigned a 10 percent evaluation for painful or limited motion of a major joint with degenerative arthritis established by X-ray findings. Under DC 5010, degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent evaluation is assigned for with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. A 20 percent evaluation is assigned for X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. The Veteran underwent VA examinations in October 2010, August 2014, April 2016, November 2017, and August 2020. The Board notes that the Veteran underwent a VA knee examination in September 2009 during the appeal period, but the examiner only provided information regarding the left knee, and not the right knee. Multiple VA treatment records note the Veteran’s reports of knee pain; however, they do not provide any additional insight into the severity of the Veteran’s right knee arthritis. The Veteran underwent a VA examination in October 2010. The Veteran reported stiffness after working, increased aching pain with weather changes, sharp pain when transferring from kneeling to standing, with pain at a 6 or 7 out of 10, and that he took Naproxen once a day. He denied limitations on walking or standing due to the knee. Range of motion (ROM) testing showed flexion to 110 degrees, with no limitation to extension. Repetitive motion testing was conducted, but the examiner found no additional loss. The Veteran reported mild flare-ups once every month or two, with a one- or two-day duration, precipitated by weather changes and increased activity. The Veteran reported that the pain was relieved by Naproxen and rest. The examiner noted that the flare-ups cause a slight decrease in the ability to perform full ROM; however, they did not provide any estimation of ROM during a flare-up. The examiner found a normal gait, tenderness along the medial joint line without effusion, and found no evidence of Osgood-Schlatter’s disease, crepitation, mass behind the knee, clicks or snaps, grinding, instability, patellar or meniscus abnormality, or ankylosis. The Veteran reported that he may have lost one day to work due to the knee pain, but that he usually just works through the pain. There is no indication whether any non-weight bearing, or passive motion testing was conducted. The Veteran underwent a VA examination in August 2014. The Veteran reported that the right knee pain had gotten worse, and radiates to the shin. He also reported that his knee will occasionally give way, that there is stiffness and soreness that is constant at a 3 or 4 out of 10. Initial ROM testing demonstrated flexion to 110 degrees, with no limitation to extension, and that there is no evidence of painful motion or pain on palpation. The examiner also stated that functional loss included less movement than normal and pain on movement. Repetitive use testing was conducted, but there was no additional loss. The Veteran reported having flare-ups every two to three months experiencing sharp pain at a 6 or 7 out of 10 lasting a few minutes, and that he takes over the counter pain medication to treat it, but not regularly. The examiner did not provide an estimate for ROM during a flare-up, stating that they would need to be present during one. The examiner found muscle strength and joint stability to be normal, with no patellar subluxation or dislocation, shin splints, stress fractures, chronic exertional compartment syndrome, or any other tibial or fibular impairment. Regarding functional impact, the examiner noted that the Veteran had not missed any work due to the right knee arthritis, but that he experienced knee stiffness and pain that caused him to move slower. There is no indication whether any non-weight bearing, or passive motion testing was conducted. The Veteran underwent a VA examination in April 2016. The Veteran reported that he experiences pain, mild intermittent swelling, stiffness, and some weakness in his right knee, without any locking, buckling, or catching. To alleviate the pain, the Veteran stated that he did not take medication, but that he would rest, ice, and elevate his leg. Initial ROM testing demonstrated flexion to 120 degrees, with no limitation to extension, and pain on weight-bearing and flexion that causes functional loss, tenderness on palpation, and objective evidence of crepitus. Repetitive use testing with at least three repetitions was conducted, and demonstrated flexion to 115 degrees, with no limitation to extension. The Veteran was not tested after repetitive use over time or during a flare-up. The examiner stated that the examination was neither medically consistent or inconsistent with the Veteran’s statements describing functional loss; however, they stated that they were unable to say without mere speculation whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over time or during a flare-up because they needed to observe the Veteran under those conditions in order to give an opinion. The Veteran, however, did assert flare-ups consisting of increased pain, and precipitated by prolonged weight-bearing, cold weather, changes in weather, overexertion, stair climbing, squatting, and kneeling which resulted in decreased ROM, and difficulty with weight-bearing. The Veteran, however, reported that he had not missed any work in the previous year due to flare-ups, and that he had no incapacitating episodes. The examiner found muscle strength and joint stability to be normal, with no evidence of atrophy, ankylosis, or recurrent effusion. The examiner stated that there was no functional impact on the Veteran’s ability to perform any type of occupational task. There is no indication whether any non-weight bearing, or passive motion testing was conducted. In June 2016, an updated copy of the April 2016 examination report was included in VA treatment records. The examiner included notes indicating that the Veteran described episodes of right knee pain on a near daily basis, but denied any episodes of right knee locking. Based on an x-ray, the examiner indicated that there are rare episodes of mild right knee effusion, but that this did not demonstrate frequent episodes of right knee effusion. The Veteran underwent a VA examination in November 2017. The Veteran reported that his right knee was stiff and sore with occasional shooting pain, and constant achiness at a 3 out of 10, but no locking. The Veteran asserted that he could not get off the ground without assistance, and that the knee pain affected his sex life, and the ability to dance, bike, or walk long distances. He did not report any flare-ups. Initial ROM testing demonstrated flexion to 75 degrees, with no limitation of extension, and pain on flexion, extension, weight-bearing, and to palpation that limits stooping and squatting. The examiner noted objective evidence of crepitus. Repetitive use testing with at least three repetitions was conducted, demonstrating flexion to 65 degrees, and no limitation to extension. The Veteran was not examined following repeated use over time, or during a flare-up, and the examiner declined to provide any estimation of ROM, stating that they would be unable to do so without mere speculation because there is no conceptual or empirical basis for making such a determination without directly observing function under those conditions. The examiner found reduced muscle strength, but indicated that it is unrelated to the orthopedic or medical condition. The examiner noted no muscle atrophy, ankylosis, recurrent patellar dislocation, shin splints, stress fractures, chronic exertional compartment syndrome, or any other tibial or fibular impairment. The examiner found some anterior instability, but that joint stability was otherwise normal, with no history of recurrent effusion. Despite noting no history of effusion, the examiner indicated that the Veteran reported frequent episodes of joint effusion, and that he still had some swelling in his right knee. Regarding functional impact, the examiner noted that the right knee arthritis caused trouble squatting, walking long distances, and that he had lost less than a week time working in the previous 12 months. The examiner did indicate that there was objective evidence of pain on passive motion and non-weight bearing, but did not specify in terms of degrees. Finally, the examiner noted that it is not possible to differentiate which symptoms are caused by each condition due to significant overlap in symptoms, but did not specify which diagnoses they were referencing. The Veteran underwent a VA examination in August 2020. The Veteran reported pain with standing, and a sharp pain when he turns and twists. The Veteran also reported two flare-ups in the previous 6 months, demonstrated by stiffness and swelling, making it difficult to crawl on his knees. Initial ROM testing demonstrated flexion limited to 110 degrees, with no limitation to extension, and pain on flexion and extension, weight-bearing, and on palpation that makes it difficult to squat and kneel. Repetitive use testing with at least three repetitions was conducted, but the examiner noted no additional loss. The Veteran was not examined following repeated use over time, or during a flare-up; however, the examiner stated that the examination is medically consistent with the Veteran’s statements describing functional loss with repetitive use over time and during flare-ups, and was able to provide an estimated ROM for each. The examiner noted that there would be no additional functional loss following repetitive use over time, and during a flare-up, flexion would be limited to 105 degrees with no limitation to extension. The examiner found muscle strength and joint stability to be normal, with no muscle atrophy, ankylosis, patellar dislocation, shin splints, stress fractures, chronic exertional compartment syndrome, or any other tibial or fibular impairment. The examiner also noted that the Veteran has received arthroscopic surgery. The examiner noted the functional impact of the right knee arthritis is limitation to physically demanding tasks such as crawling, pushing, or pulling. The examiner also noted that there is no clinical evidence of any effusion on exam, and that although the Veteran states that he has swelling when he experiences flare-ups, that it is unclear from the medical evidence whether this is an actual effusion, or just superficial swelling as he has not been seeing medically during a flare-up. Finally, the examiner noted that there is no objective evidence of pain on non-weight bearing, but there was on passive motion, with ROM on flexion and extension the same as active motion. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for right knee arthritis under DC 5010. At no point during the appeal period did the Veteran experience any incapacitating exacerbations due to his right knee arthritis, which is the requirement for a 20 percent evaluation. The Board has also considered the other Diagnostic Codes pertaining to the knee and leg. Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991) (holding that the Board must consider all potentially applicable regulatory provisions). Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). Initially, the Board notes that the Veteran is separately rated for internal derangement of the right knee under DC 5257. This issue is not before the Board on appeal, and the Board cannot consider any symptoms that form the basis for the currently assigned evaluation under DC 5257. The Board finds that an increased or separate evaluation is not warranted under any other Diagnostic Codes pertaining to the knee and leg. Here, there is no evidence of left knee ankylosis, removal of the symptomatic semilunar cartilage, tibia or fibula impairment, or genu recurvatum. 38 C.F.R. § 4.71a, DC 5256, 5259, 5262, 5263. There is also no evidence of limitation of extension, which would require extension to be limited to at least 10 degrees for a compensable rating under DC 5261. Although ROM testing demonstrated limitation to flexion, a compensable rating under DC 5260 requires flexion to be limited to no greater than 45 degrees. During the appeal period, the greatest limitation in flexion demonstrated was during the November 2017 examination, where it was demonstrated to 65 degrees during repetitive use testing. Considering additional functional loss, the Veteran reported flare-ups that varied in intensity over the appeal period. He also reported pain and functional loss. Only the 2020 VA examiner estimated results of flare-ups on limitation of motion, and found that there would not be reduced extension, and reduced flexion to 105 degrees. Repetitive motion was found not to cause additional loss or was estimated to cause flexion to 115 degrees. Throughout, the Veteran’s knee was noted to have normal strength and normal gait, despite objective evidence of pain. On the whole, the functional impact of right knee arthritis does not more nearly approximate the impairment necessary for a higher evaluation. Under Diagnostic Code 5258, a 20 percent rating is warranted for dislocation of semilunar cartilage with frequent episodes of “locking, pain”, and effusion into the joint. 38 C.F.R. § 4.71a, Diagnostic Code 5258. Despite the Veteran’s reports of swelling, the October 2010, August 2014, April 2016, and August 2020 VA examinations all found no evidence of effusion. While June 2016 addendum found rare episodes of mild right knee effusion, the examiner stated that they did not constitute “frequent” episodes as required by the rating criteria. And although the November 2017 examination did state there were frequent episodes of effusion, they also indicated that there was no history of effusion. The June 2020 Board remand instructed these contradictory findings to be addressed by a VA examiner. As noted above, the August 2020 examiner confirmed that there was no evidence of actual effusion, and that what the Veteran has described could just be superficial swelling. Further, while the Veteran has at times complained of locking, including at his 2015 Board hearing, the October 2010, April 2016, and November 2017 all indicated no locking. Thus, separate evaluations for meniscal conditions cannot be assigned under DC 5258. While the Board recognizes the Veteran’s assertions, given that the examinations performed are generally recognized in the medical community as diagnostic for signs of meniscal conditions, the results are afforded high probative value, as they explained the disparate lay and objective evidence. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 10 percent for right knee arthritis. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Rogos 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.