Citation Nr: 21001560 Decision Date: 01/08/21 Archive Date: 01/08/21 DOCKET NO. 15-11 490 DATE: January 8, 2021 ORDER Entitlement to an evaluation of 50 percent, but no higher, for left knee limitation of extension prior to December 18, 2008 and from February 1, 2009 to August 15, 2018 is granted. Entitlement to a separate evaluation of 20 percent, but no higher, for left knee instability prior to December 18, 2008 and from February 1, 2009 is granted. Entitlement to an evaluation in excess of 50 percent for left knee limitation of extension from August 16, 2018 is denied. REMANDED Entitlement to an evaluation in excess of 20 percent prior to August 16, 2018 and in excess of 40 percent thereafter for lumbar spine degenerative disc disease with disc bulging (lumbar spine DDD) is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. After resolving reasonable doubt in the Veteran’s favor, his limitation of extension was limited to 45 degrees after considering functional loss caused by pain, weakness, stiffness, and the prevalence of flare-ups prior to December 18, 2008 and from February 1, 2009. 2. After resolving reasonable doubt in the Veteran’s favor, he had moderate left knee instability prior to December 18, 2008 and from February 1, 2009. 3. The Veteran’s left knee is rated at the maximum rating legally allowed from December 18, 2008 and from February 1, 2009. CONCLUSIONS OF LAW 1. The criteria for entitlement to an evaluation of 50 percent, but no higher, for left knee limitation of extension prior to December 18, 2008 and from February 1, 2009 to August 15, 2018 have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.68, 4.71a, Diagnostic Code (Code) 5261 (2019). 2. The criteria for entitlement to a separate evaluation of 20 percent, but no higher, for left knee instability prior to December 18, 2008 and from February 1, 2009 have been met. 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.68, 4.71a, Code 5257 (2019). 3. The criteria for entitlement to an evaluation in excess of 50 percent for left knee limitation of extension from August 16, 2018 have not been met. 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.68, 4.71a, Code 5261 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1976 to December 1984. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2013 rating decision by the Department of Veterans Affairs (VA). This case was remanded in August 2018 and August 2020 for further development. In August 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. The Veteran asserted that his service-connected left knee and back disabilities have prevented him from working. See November 2020 VA Form 21-8940. Because a TDIU rating is inherent in any claim for an increased rating, see Rice v. Shinseki, 22 Vet. App. 447 (2009), it has been added as an issue. Entitlement to an evaluation in excess of 10 percent prior to December 18, 2008 and from February 1, 2009 to August 15, 2018, and in excess of 50 percent from August 16, 2018 for left knee degenerative arthritis. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular Code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining, including degree of disability, is to be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In any claim for an increased rating, “staged” ratings may be warranted where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). 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. When evaluating musculoskeletal disabilities based on limitation of motion, there must be consideration of functional loss caused by factors that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.40. Consideration must also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. 38 C.F.R. § 4.45; see DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011) (“functional loss caused by pain must be rated at the same level as if that functional loss were caused by some other factor…that actually limited motion” (emphasis removed)). 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 (musculoskeletal system) or § 4.73 (muscle injury); 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). When assigning a disability rating, some of the regulations preceding the rating schedule add flexibility to the listed Codes. 38 C.F.R. § 4.59 is one such regulation. However, pain alone does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system. Pain in, like deformity of or insufficient nerve supply to, a particular joint may result in functional loss, but only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 38-39 (2011). The Veteran’s left knee degenerative arthritis is currently rated at 10 percent pursuant to Code 5261 prior to August 16, 2018, exclusive of a period of temporary total disability, and at 50 percent pursuant to Code 5261 thereafter. Standard motion of a knee joint is from zero degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. Limitation of leg motion is governed by Codes 5260 and 5261. Code 5261 pertains to limitation of leg extension. A 10 percent rating is warranted where extension is limited to 10 degrees; a 20 percent rating is warranted where extension is limited to 15 degrees; a 30 percent rating is warranted where extension is limited to 20 degrees; a 40 percent rating is warranted where extension is limited to 30 degrees; and a 50 percent maximum rating is warranted where extension is limited to 45 degrees. 38 C.F.R. § 4.71a, Code 5261. Under Code 5257, a 10 percent rating is warranted for slight subluxation or lateral instability. A 20 percent rating is warranted for moderate subluxation or lateral instability. A 30 percent maximum rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Code 5257. Objective medical evidence is not required or favored over lay evidence in determining whether to assign a rating for lateral instability of the knee. English v. Wilkie, 30 Vet. App. 347 (2018). The evaluation of the same disability under several Codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one disorder is not duplicative of the symptomatology of the other disorder. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). A claimant who has limitation of extension and instability of the knee may be rated separately under Codes 5261 and 5257. However, separate ratings require separate compensable symptomatology. VAOPGCPREC 23-97 (1997), 62 Fed. Reg. 63,604 (Dec. 1, 1997); see also Lyles v. Shulkin, 29 Vet. App. 107 (2017). The combined rating for disabilities of an extremity shall not exceed the rating for the amputation of that extremity at the elective level, were amputation to be performed. 38 C.F.R. § 4.68. A 60 percent rating is provided for an amputation of the thigh, above the knee, at the middle or lower third. 38 C.F.R. § 4.71a, Codes 5162, 5163, 5164. The Board notes that the VA examinations of record are not in compliance with Correia v. McDonald, 28 Vet. App. 158 (2016). However, the Board is assigning the Veteran’s left knee disability a combined rating of 60 percent, and he cannot legally obtain a rating in excess of 60 percent due to the amputation rule. Thus, there is no reasonable possibility of substantiating the claim, and remand is unnecessary. See 38 C.F.R. § 3.159(d). The Board also notes there is VA generated evidence added to the claim file that has not been considered by the Agency of Original Jurisdiction (AOJ) and for which the Veteran has not waived AOJ review. However, because the denials of an increased rating for the Veteran’s left knee disability herein are as a matter of law rather than a question of fact, there is no prejudice to the Board proceeding with adjudication. March 2008 VA treatment records reflect that the Veteran’s left knee bothered him, but there was no mechanical symptoms and no locking, catching or giving out. By June 2008, his knee was worse, and kneeling and squatting were a significant problem. See June 2008 VA treatment records. He underwent an arthroscopy in December 2008, for which he is already receiving a temporary total evaluation. During the June 2008 VA examination, the Veteran reported that he was using a cane and started experiencing some giving way of his knee. He had flare-ups every day that would last from four to six hours and would occur when he had to stand for long periods and walk. The examiner noted that the Veteran was reluctant to do movements because of pain and three repetitions were not attempted because he had his scheduled arthroscopy within the next few months. By December 2008, he reported a sharp pain on occasion that was a ten out of ten on a pain scale and that his knee would give way on occasion. See December 2008 VA treatment records. In March 2009, the Veteran reported that he was not doing any better than he was before his surgery. See March 2009 VA treatment records. During an October 2010 VA examination, he reported occasional giving way of the knee, as well as locking. He did not feel that the surgery gave him significant relief of symptoms. In May 2013, the Veteran reported that if he extended or flexed his knee during normal daily activity, it would cause great pain and popping sounds. He avoided stairs and described his knee pain as severe. See May 2013 notice of disagreement (NOD). During an August 2018 Board hearing, the Veteran reported daily instability and that he had fallen about three times a year due to such symptoms. He reported that a VA examiner had bent his knee beyond his normal limitations caused by pain. A March 2019 VA examiner opined that the Veteran grossly exaggerated his responses during the examination. This examination is given no probative weight because it contradicts other VA examiners who did not find that the Veteran was malingering. During an October 2020 VA examination, the Veteran reported moderate left knee pain. He was unable to run, walk more than one block, stand more than 15 minutes and drive more than 30 minutes due to his left knee pain, weakness, stiffness, and lack of endurance. The Veteran’s flexion was limited to 90 degrees, and his extension was limited to 30 degrees. The examiner opined that the Veteran was unable to reach full range of motion due to pain increasing, weakness, and stiffness. The Veteran’s flexion was limited to 60 degrees during flare-ups, and extension was limited to 50 degrees. After resolving reasonable doubt in the Veteran’s favor, the Board finds that his left knee limitation of extension was functionally equivalent to 45 degrees due to pain and weakness prior to December 18, 2008 and from February 1, 2009. Because adequate range of motion measurements were not provided, the Board will resolve reasonable doubt in his favor and assign the most probative weight to the range of motion measurements from the October 2020 VA examination. For the period prior to December 18, 2008, there is an absence of significant evidence. The Board notes that the Veteran reported daily flare-ups and that three repetitions were not attempted due to the forthcoming surgery during the June 2008 examination. Although VA treatment records early in the appeal period note that the Veteran did not have mechanical symptoms, such evidence is given limited probative weight because there was no consideration of flare-ups, stiffness, weakness, or pain as required when assessing the Veteran’s disability for VA purposes. The evidence that the Veteran did not have mechanical symptoms is outweighed by the Veteran’s report of flare-ups and the examiner’s note that repetitions could not be performed, which indicates significant limitation of mobility and use. Thus, after resolving reasonable doubt in the Veteran’s favor, his limitation of extension was limited to 45 degrees after considering functional loss caused by pain, weakness, stiffness, and the prevalence of flare-ups. Thus, a rating of 50 percent for limitation of extension is warranted prior to December 18, 2008. For the period from February 1, 2009, the Board once again resolves reasonable doubt and relies on the range of motion measurements from the October 2020 VA examination throughout the appeal period because adequate measurements were not otherwise obtained. The Veteran’s testimony regarding daily pain on extension is given significant probative weight as well as his report that his December 2008 surgery had not provided any relief, indicating that his symptoms remained the same from prior to his surgery. Thus, after resolving reasonable doubt in the Veteran’s favor, his limitation of extension was limited to 45 degrees after considering functional loss caused by pain, weakness, stiffness, and the prevalence of flare-ups. Thus, a rating of 50 percent is warranted from February 1, 2009 to August 15, 2018. A rating in excess of 50 percent for left knee limitation of extension is not warranted prior to December 18, 2008 or from February 1, 2009 because that is the maximum schedular rating allowed for limitation of leg extension. 38 C.F.R. § 4.71a, Code 5261. Thus, a rating in excess of 50 percent for limitation of extension is denied. Aside from a VA treatment record in March 2008, the Veteran has consistently reported that he has some giving way of his left knee. As a result, a separate evaluation for lateral instability pursuant to Code 5257 is warranted. While he denied having fallen during an October 2010 VA examination, he thereafter reported that he fell about three times a year. See August 2018 Board hearing. Thus, after resolving reasonable doubt in the Veteran’s favor, the Board finds that a 20 percent rating, but no higher, is warranted for moderate instability. Notably, the Veteran consistently reported giving way and occasional locking resulting in falls, indicating more than slight instability. Assigning a rating in excess of 20 percent for instability would violate the amputation rule, as it would result in a combined rating in excess of 60 percent for the left knee. Thus, the Veteran is entitled to a separate evaluation of 20 percent, but no higher, for left knee instability. REASONS FOR REMAND 1. Entitlement to an evaluation in excess of 20 percent prior to August 16, 2018 and in excess of 40 percent thereafter for lumbar spine DDD. Pursuant to Note (1) of the General Rating Formula for Diseases and Injuries of the Spine, associated objective neurologic abnormalities must be separately rated. 38 C.F.R. § 4.71a. The Veteran has consistently reported radiation into both lower extremities, see, e.g., June 2008 VA examination, but he is not service-connected for right lower extremity radiculopathy and is only service-connected for left lower extremity radiculopathy from August 16, 2018. As a result, a retrospective opinion is required addressing whether the Veteran has had radiculopathy in either lower extremity throughout the appeal period. 2. Entitlement to TDIU. The matter of entitlement to TDIU is inextricably intertwined with the other remanded issue; accordingly, it must be remanded as well. The matters are REMANDED for the following action: 1. The AOJ should obtain copies of VA treatment records from September 2020 to the present. 2. After the above development is completed, the AOJ should arrange for a VA medical opinion, with examination or telehealth interview of the Veteran only if deemed necessary by a medical professional, to determine the nature of any lower extremity radiculopathy. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) Has the Veteran had bilateral lower extremity radiculopathy since September 2007 that is a neurologic abnormality associated with his service-connected back disability? Please explain why. The examiner must discuss early reports of bilateral radiating pain, such as during the June 2008 VA examination. (b.) If the Veteran has not had bilateral extremity radiculopathy since September 2007, please identify the date for which radiculopathy manifested, if at all, for each lower extremity and explain why. 3. If upon completion of the above action the issues remain denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Sandler, 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.