Citation Nr: 21001863 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 14-01 708 DATE: January 12, 2021 ORDER A rating higher than 10 percent for right knee degenerative joint disease is denied. REMANDED Entitlement to a rating higher than 30 percent for migraine headaches is remanded. FINDING OF FACT The Veteran’s right knee disability is manifested by painful and limited motion, with flexion exceeding 60 degrees and normal extension, including during flare-ups or on repeated use over time of the knee. CONCLUSION OF LAW The criteria for a rating higher than 10 percent for disability of the right knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.59, 4.71a, Diagnostic Code 5260. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 2001 to January 2002, from August 2003 to December 2004, and from July 2008 to September 2009. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The RO in Detroit, Michigan now has jurisdiction of this matter. The Board remanded the matter in May 2014 and September 2018 for further development. The Veteran testified at a hearing before the undersigned Veterans Law Judge in April 2014. A transcript of the hearing is of record. In October 2020, the Board sent the Veteran a letter notifying him of his option to participate in a virtual tele-hearing. As he already testified at a Board hearing, and has not requested another hearing or responded to the October 2020 letter, the adjudication of this appeal will be based on the April 2014 hearing transcript and other evidence of record. Increased Rating VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 3.321; see generally, 38 C.F.R. § Part IV. 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. The percentage ratings in the Schedule for Rating Disabilities represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected disabilities in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Diagnostic codes in the rating schedule identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. All reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Because the level of disability may have varied over the course of the claim, the rating may be “staged” higher or lower for segments of time during the period under review in accordance with such variations. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Evaluation of Right Knee Disability The Veteran’s arthritis of the right knee disability has been assigned a 10-percent rating under Diagnostic Code (DC) 5003 based on limitation of motion. See 38 C.F.R. § 4.71a. For the following reasons, the Board finds that the criteria for a higher or separate rating have not been met. Under DC 5003, degenerative arthritis is to be rated based on limitation of motion under the diagnostic code specific to the joint involved. 38 C.F.R. § 4.71a. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is to be assigned for each such major joint or group of minor joints affected by limitation of motion. Id. Under DC 5260, a 0 percent rating is assigned when flexion of the leg is limited to 60 degrees; a 10 percent rating is assigned when flexion is limited to 45 degrees; a 20 percent rating is assigned when flexion is limited to 30 degrees; and a 30 percent rating is assigned when flexion is limited to 15 degrees. 38 C.F.R. § 4.1a. Under DC 5261, a 0 percent rating is assigned for extension limited to 5 degrees; a 10 percent rating is assigned for extension limited to 10 degrees; a 20 percent rating is assigned for extension limited to 15 degrees; a 30 percent rating is assigned for extension limited to 20 degrees; a 40 percent rating is assigned for extension limited to 30 degrees; and a 50 percent rating is assigned for extension limited to 45 degrees. Id. Normal range of motion of the knee is defined as flexion to 140 degrees and extension to 0 degrees. 38 C.F.R. § 4.71a, Plate II. Separate ratings may be assigned under DC’s 5260 and 5261 for limitation of flexion and limitation of extension of the same joint. VAOPGCPREC 9-2004 (Sept. 17, 2004). The May 2010 VA examination report reflects that the Veteran had chronic right knee pain that was a 5 to 6 in severity on a pain scale of 1 to 10 (with 10 presumably being the most severe). The pain was “on and off” and occurred on an average of a few times per week. The pain improved with medications. There was no swelling of the knee joint. He got a frequent popping sensation, and occasional giving out and locking sensation. The symptoms occurred more during prolonged standing, such as standing more than half an hour, and prolonged walking, such as more than half a mile at a stretch. He was not using any braces or splints. There were no frequent falls. There was no restriction of daily routine “simple” activities. There were no “major” incapacitating episodes or flare-ups. On examination, there was no obvious swelling, tenderness, redness, warmness, or crepitus of the knee. There was no joint effusion. There was no genu varum or valgus deformity. On range-of-motion testing, extension of the right knee was to 0 degrees, and flexion to 140 degrees. Repetitive movements were normal, without further limitation. Stability was normal. There was no atrophy or wasting of muscles around the joint. Muscle power was normal. The examiner diagnosed patellofemoral syndrome of the right knee. An x-ray study revealed minimal early degenerative joint disease. An October 2010 VA examination report notes that on range-of-motion testing, extension of the knee was to 0 degrees, and flexion to 130 degrees. Repetitive movements remained the same, with no further limitation. The movements were not painful. The VA treatment records reflect that in October 2010, the Veteran was issued a quad cane for right hip pain. In August 2011, the Veteran was issued a knee brace for support. A December 2011 record states that the Veteran had arthritis of the hip, knees, and ankle, and used a cane. An April 2014 VA treatment record states that the Veteran wore the knee brace for pain. An April 2014 VA x-ray study of the right knee showed no evidence of fracture or dislocation. The joint spaces were preserved. No significant osteophyte formation was seen. There was no joint effusion. The soft tissues around the knee were grossly unremarkable. A VA examination was performed in July 2014. According to the examination report, the Veteran stated that his right knee clicks, and that he had been walking with a cane since 2012 because he was unable to support his weight on that knee. He stated the pain was constant, occurring all day and every day, and was an average of 7 to 8 out of 10 in intensity. He stated he took Vicodin for the knee pain several times a day, but that it provided little relief, “like putting a bandaid on it.” He denied flare-ups. On range-of-motion testing, flexion of the right knee was to 130 degrees, with objective evidence of painful motion beginning at 115 degrees. Extension was to 0 degrees, with no objective evidence of painful motion. There was no change in range of motion with repetitive use testing. The examiner found that the Veteran did not have additional limitation in range of motion following repetitive-use testing. Muscle strength testing was normal (5/5). Stability tests were all normal. There was no history of patellar subluxation or dislocation. A VA examination was most recently performed in October 2019. According to the examination report, the Veteran stated that his right knee “gives out,” and that he also experienced constant pain and that it clicked. He stated that flare-ups occur six to ten times per day, ranging from moderate to severe and lasting from one to three hours. The flare-ups were precipitated by movement and walking, and alleviated by ice, heat, and elevation. With regard to functional loss, the Veteran stated he had to walk with a quad cane. On range-of-motion testing, flexion of the right knee was initially to 130 degrees, and extension to 0 degrees. With repetitive testing, flexion was to 115 degrees, and extension was to 0 degrees. The examiner indicated that the Veteran was being examined immediately after repetitive use over time. The examiner stated that during flare-ups, flexion of the knee would be limited to 90 degrees, and extension would be to 0 degrees. Correia testing showed objective evidence of pain on passive range of motion and non-weight bearing range of motion, but the examiner did not record further limitation in range of motion. See Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016) (holding that joint examinations must, to the extent possible, include the testing specified in 38 C.F.R. § 4.59). Muscle strength testing was normal (5/5). There was no muscle atrophy. There was no history of recurrent subluxation, lateral instability, or effusion. Stability tests were all normal. With regard to the functional impact of the Veteran’s right knee disability, the examiner stated that the Veteran had difficulty walking long distances. A December 2019 VA treatment record reflects that the Veteran used a right knee brace as needed (“prn”) for right knee pain, and that his symptoms were stable. He was also using a cane, and had some relief with medication. Based on the above evidence, the Board finds that the criteria for a rating higher than 10 percent have not been met. The Veteran’s flexion of the right knee has been in excess of 60 degrees throughout the period under review, including after repetitive testing and based on the estimated range of flexion during flare-ups, as indicated in the October 2019 VA examination report. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Accordingly, the criteria for a rating higher than 10 percent under DC 5260 have not been met. See 38 C.F.R. § 4.71a. The Veteran’s right knee extension has remained normal, i.e. to 0 degrees, including on repeat testing and based on the October 2019 VA examiner’s estimates of range of motion on repetitive use over time and during flare-ups. Thus, the criteria for a separate rating based on limitation of extension under DC 5261 have not been met. See id. The Board has considered the Veteran’s statements at the VA examinations that he uses a cane due to his knee disability. These statements are not consistent with the VA treatment records, which show that the cane was issued for his right hip condition. See October 2010 VA Treatment Record. Even if not used solely for the right hip condition, the December 2011 record states that the Veteran had arthritis of the hip, knees, and ankle, and used a cane, which indicates that he may use the cane due to several conditions, and not just his right knee disability. Thus, the Board does not find it credible the Veteran uses a cane due to his right knee, even if it happens to provide additional aid in keeping his weight off of it. The range-of-motion findings in the VA examination reports constitute more probative evidence as to the degree of disability under the rating criteria, as they provide direct evidence from a medical professional showing that the criteria for higher ratings have not been met. Similarly, the Veteran’s statements at the examinations that he took Vicodin for his right knee pain are not consistent with what the VA treatment records show, which is that the Vicodin was prescribed for neck, back, and bilateral hip symptoms, and that he has also taken Vicodin to relieve shoulder pain and migraine headache pain. See January 2011, January 2014, April 2014, and March 2020 VA Treatment Records. They do not mention the Vicodin with respect to his knee. They thus paint a very different picture as to what this narcotic pain medication is used or at least prescribed for, which indicates that the Veteran’s right knee pain is not as severe as he has implied in stating that he takes Vicodin for it. Given this conflicting evidence, the Board does not find it credible the Veteran takes Vicodin for his right knee symptoms. The fact that the Veteran wears a knee brace does not show that he has disability of the knee distinct from or in addition to that contemplated by the 10-percent rating assigned under DC 5260 for painful and limited flexion, as the brace is used for support due to such pain. The VA treatment records show it has not been issued for instability or weakness. The Board finds that no other diagnostic code is applicable. Diagnostic Code 5257 pertains to “other impairment” of the knee, with recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a. Under DC 5257, a 10-percent rating is assigned when such impairment is slight; a 20-percent rating is assigned when such impairment is moderate; and a 30-percent rating is assigned when such impairment is severe. Here, the VA examination reports show that there has not been a history of recurrent subluxation or lateral instability of the knee. Stability testing of the Veteran’s knee has been consistently normal throughout the period under review. The Veteran’s report of giving way of the knee at the October 2019 VA examination, while competent, is not sufficient in itself to assign a separate rating under DC 5257, when the VA treatment records do not show complaints or findings of giving way or instability, when stability testing has been consistently normal, and when other statements the Veteran has made to examiners are in conflict with what the VA treatment records show, as discussed above. As already noted, his knee brace was issued for pain, not weakness or instability of the knee. The Veteran has also reported a locking sensation in the knee, and clicking. As these symptoms are not shown to cause disability or functional impairment distinct from the limitation of flexion contemplated by DC 5260, the Board finds that they do not support a higher or separate rating. In this regard, the Board notes that under DC 5258, a 20-percent rating is assigned for dislocated semilunar cartilage (i.e. the meniscus) with frequent episodes of “locking,” pain, and effusion into the joint. 38 C.F.R. § 4.71a. As the record shows that the Veteran’s right knee cartilage has not been impaired, and that he had not had effusion into the joint, the criteria for a 20-percent rating under DC 5258 are not met. The record shows that the Veteran has not had ankylosis of the knee, a cartilage condition of the knee, impairment of the tibia and fibula with nonunion or malunion, or genu recurvatum. Thus, DC’s 5256, 5258, 5259, 5262, and 5263, which pertain to these conditions, respectively, do not apply. See 38 C.F.R. § 4.71a. Because the preponderance of the evidence weighs against higher or separate ratings, the benefit-of the-doubt rule does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to a rating higher than 30 percent for migraine headaches is remanded. The Board remanded the claim for a higher rating for the Veteran’s headache disorder in September 2018 to arrange for a new examination. The Board instructed that the examiner must describe, in narrative form, the impact of the Veteran’s headaches on his ability to function and work. A VA examination was performed in November 2019. However, the examination report does not contain the aforementioned description. Consequently, there has not been substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998; D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). On remand, the examiner who conducted the November 2019 VA examination should be asked to describe the functional impact of the Veteran’s headaches in narrative form. If that examiner is no longer available, or cannot provide that description given the amount of time that has passed since the November 2019 examination, a new examination should be performed. In its remand, the Board also instructed that the Veteran should be asked to provide documentation of time lost from work, as well as any lost wages, due to his headaches, since December 2009. A letter was sent to him in August 2019 requesting him to provide that information. He did not respond. On remand, he should be given another opportunity to provide that information. The matter is REMANDED for the following action: 1. Send the Veteran another letter inviting him to provide documentation of time lost from work, as well as any lost wages, due to his headaches, since December 2009. Such documentation may be in the form of leave and pay statements, recordkeeping by his employer, and/or statements by his employer. 2. Request the examiner who conducted the November 2019 VA headache examination to describe in narrative form the impact of the Veteran’s headaches on his ability to function and work. If the examiner is no longer available, or is unable to provide the requested description given the amount of time that has passed the examination was performed, a new headache examination should be arranged, which may include a virtual “telehealth” examination, if warranted. The claims file must be made available to the examiner for review. If a new examination is performed, the examiner should discuss whether the Veteran’s headaches result in characteristic prostrating attacks, and, if so, provide a estimation as to the average number of such attacks over the past several months, and state whether the headaches have resulted in very frequent completely prostrating and prolonged attacks producing severe economic inadaptability. The examiner must also describe in narrative form the impact of the Veteran’s headaches on his ability to function and work. (Continued on next page)   All examination findings, along with a complete rationale for all opinions expressed, must be provided in the examination report. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Rutkin, 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.