Citation Nr: 21002768 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 14-33 459 DATE: January 14, 2021 ORDER Entitlement to a rating in excess of 10 percent for right knee limitation of flexion is denied. Entitlement to a rating in excess of 10 percent for left knee limitation of flexion is denied. Entitlement to a rating in excess of 20 percent for right knee instability is denied. Entitlement to a rating in excess of 10 percent for left knee instability is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Throughout the entire appellate period, the Veteran’s right knee has been manifested by arthritis, with painful motion in flexion; his flexion has not been limited to 30 degrees or less, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups. 2. Throughout the entire appellate period, the Veteran’s left knee has been manifested by arthritis, with painful motion in flexion; his flexion has not been limited to 30 degrees or less, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups. 3. Throughout the entire appellate period, the Veteran’s right knee did not manifest more than moderate recurrent subluxation or lateral instability; severe recurrent subluxation or lateral instability has not been shown or approximated. 4. Throughout the entire appellate period, the Veteran’s left knee did not manifest more than slight recurrent subluxation or lateral instability; moderate recurrent subluxation or lateral instability has not been shown or approximated. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for right knee limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.410, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5260-5010. 2. The criteria for a rating in excess of 10 percent for left knee limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.410, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5260-5010. 3. The criteria for a rating in excess of 20 percent for right knee instability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010-5257. 4. The criteria for a rating in excess of 10 percent for left knee instability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1997 to January 2001. The matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2016, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the proceeding is associated with the electronic claims file. Subsequently, the Board remanded the matter for further development in March 2018 and March 2020. The Board finds that entitlement to a TDIU rating has been raised by the record in association with the claim for increased rating for the Veteran bilateral knee disabilities. Therefore, the Board has added a claim of entitlement to a TDIU rating, as reflected above. Rice v. Shinseki, 22 Vet. App. 447 (2009). Lastly, the Board notes that additional VA treatment records have been added to the claims file that has not been considered by the Agency of Original Jurisdiction (AOJ). However, review of this evidence reveals that it is cumulative or duplicative of evidence previously of record or related to other disabilities. Increased Rating A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as “staged” ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as “seriously disabled” any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) did not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. The Board notes that the guidance provided by DeLuca must be followed in adjudicating claims where a rating under the diagnostic codes governing limitation of motion should be considered. However, pain that does not result in additional functional loss does not warrant a higher rating. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011) (holding that pain alone does not constitute function loss but is just one fact to be considered when evaluating functional impairment). Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Diagnostic Code 5010 provides that arthritis due to trauma is to be evaluated as degenerative arthritis pursuant to Diagnostic Code 5003. Pursuant to Diagnostic Code 5003, degenerative arthritis established by X-ray findings will be rated based on limitation of motion under the appropriate diagnostic code(s) for the specific joint(s) involved. When, however, the limitation of motion of the specific joint(s) involved is noncompensable under the appropriate diagnostic code(s), a 10 percent rating 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 warranted if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and a 20 percent evaluation is authorized if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and there are occasional incapacitating exacerbations. 38 C.F.R. § 4.71a. Limitation of flexion of the leg is rated under Diagnostic Code 5260. A noncompensable rating will be assigned for limitation of flexion of the leg to 60 degrees; a 10 percent rating will be assigned for limitation of flexion of the leg to 45 degrees; a 20 percent rating will be assigned for limitation of flexion of the leg to 30 degrees; and a 30 percent rating will be assigned for limitation of flexion of the leg to 15 degrees. 38 C.F.R. § 4.71a. Normal range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion. Id., Plate II. Diagnostic Code 5257 governs other impairments of the knee. A 10 percent rating is appropriate for slight recurrent subluxation or lateral instability of the knee; a 20 percent rating is assigned for moderate recurrent subluxation or lateral instability of the knee; and 30 percent rating is assigned for severe recurrent subluxation or lateral instability of the knee. 38 C.F.R. § 4.71a. The descriptive words “mild,” “moderate,” and “marked” as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for “equitable and just decisions.” 38 C.F.R. § 4.6. The Veteran was afforded a VA examination in March 2009, in which he reported chronic knee pain and marked difficulty climbing or descending stairs. He also reported bilateral knee deformity, giving way, instability, pain, stiffness, weakness, incoordination, swelling, tenderness, and locking episodes one to three times a month. The Veteran reported having weekly, severe flare-ups triggered by walking and standing. He indicated that his flare-ups are relieved by rest, elevation, and the use of a heating pad. The examiner noted that the Veteran could stand for no more than a few minutes and walk one-fourth of a mile. The examiner also noted intermittent use of a cane and use of a knee brace during activities. Upon examination, the Veteran’s right knee revealed crepitus, tenderness, pain at rest, guarding of movement, and grinding. The Veteran’s left knee revealed tenderness, pain at rest, guarding of movement, grinding, and crepitation. The examiner noted that minimal laxity could not be ruled out because the Veteran had guarding of movement due to pain, which limited the accuracy of the stability testing for both knees. Range of motion testing revealed left knee flexion to 90 degrees and extension to 0 degrees, with pain; and right knee flexion to 85 degrees and extension to 0 degrees, with pain. There was no additional limitation of motion after repetitive-use testing or findings of ankylosis. The Veteran reported that he was employed full-time as an addiction therapist and that he missed four weeks of work during the last 12-month period due to his knee and back problems. In an October 2010 statement, the Veteran reported that he could not run or walk long distances as well as climb or descend stairs without holding onto the railing due to fear of losing his balance. In July 2011, the Veteran submitted statements from his father, brother, and his spouse detailing his knee pain and decreased mobility. An August 2011 VA treatment note indicated that the Veteran was able to walk on an incline with no symptoms but does not run much due to knee pain. In a September 2014 statement, the Veteran reported constant knee pain that prevents participation in physical activities such as running or long distance walking. He stated that he could not pursue certain jobs due to his inability to perform physical aspects. During the August 2016 Board hearing, the Veteran reported knee pain with prolonged standing as well as giving way while climbing or descending stairs. He also reported having instability, popping, clicking and grinding of the knees. He indicated that he uses a cane as well as a brace for his bilateral knee disabilities. He reported that he was working for the Department of Corrections. An October 2016 VA treatment note revealed that the Veteran reporting having knee pain on and off. A July 2018 VA treatment note revealed that the Veteran reported left knee pain and popping when he flexes and extends. The Veteran underwent a VA examination in September 2018, in which he reported constant, daily, and serve flare-ups that impact range of motion and mobility. He reported that his knees buckle, click, and pop. He stated that his symptoms are noticeable in the morning and when driving. The Veteran indicated regular use of a right knee brace and occasional use of a left knee brace. The Veteran also indicated that his bilateral knee disabilities impact his work performance as he is unable to bend over to reach objects and cannot sit for long periods of time. Upon examination, the Veteran’s right knee revealed flexion to 55 degrees, with pain, and extension to 0 degrees, with pain; and left knee flexion to 60 degrees, with pain, and extension to 0 degrees, with pain. Repetitive-use testing of the right knee revealed flexion to 35 degrees, and extension to 0 degrees as well as left knee flexion to 40 degrees, and extension to 0 degrees. The examiner indicated that she was unable to opine as to whether pain, weakness, fatigability, or incoordination significantly limits the Veteran’s functional ability with repeated use over a period or time or during flare-ups without resorting to mere speculation. No evidence of muscle atrophy, reduction in muscle strength, ankylosis, recurrent effusion, lateral instability, or recurrent subluxation were noted during the examination. The examiner noted frequent episodes of joint pain in the right knee. The examiner opined that the Veteran’s bilateral knee disabilities impact his ability to perform occupational tasks as he has difficulty with prolonged walking, standing, or sitting. She indicated that his disabilities caused him to miss one week of work in the past 12-months. The examiner further indicated that the Veteran’s bilateral knees cause four or more non-incapactiating exacerbations per year. In a November 2019 correspondence, the Veteran reported that his back and bilateral knee disabilities limit or alter his daily activities because he does not have the capabilities to perform basic tasks, such as sitting or standing for a short period of time. He reported that his knees give way and prevent him from kneeling or squatting due to pain and limited range of motion. He stated that because he wore a knee brace during the September 2018 VA examination, he was able to complete some of the tasks he was asked to perform, and if the brace was removed it would have shown that his knees are very unstable. He further stated that he quit his “regular job of nine years” because he was unable to fulfill his daily job duties without constant pain. The Veteran was afforded another VA examination in August 2020. He reported having sharp pain with intermittent stiffness, worse with prolonged sitting, standing, and laying down. He also reported having daily, moderate flare-ups with driving and walking that prevents him from carrying out activities such as bending. The Veteran reported that he called out of work several times in the past year due to his bilateral knee pain. Upon examination, the Veteran’s right and left knee revealed flexion to 110 degrees, with pain, and extension to 0 degrees. Repetitive-use testing revealed no additional loss of function for the right knee, and flexion to 100 degrees for the left knee. The examiner noted bilateral moderate localized tenderness. The examiner opined that pain significantly limits the Veteran’s functional ability with repeated use over a period of time and during flare-ups. She described the Veteran’s bilateral knee functional loss in terms of range of motion, noting flexion to 100 degrees and extension to 0 degrees. No reduction in muscle strength, muscle atrophy, ankylosis, recurrent subluxation, lateral instability, or recurrent effusion were noted. Joint stability testing for both knees revealed normal results. The examiner indicated that the Veteran regularly uses a knee brace for both knees due to his arthritis. The examiner opined that the Veteran’s bilateral knee disabilities impact his ability to perform occupational tasks as he has difficulty with prolonged ambulation as well as difficulty climbing or descending stairs. She indicated that he was self-employed as a contractor and that his knee disabilities caused him to miss one week of work in the past 12-months. Here, the evidence shows, at all times over the appeal period, the Veteran’s left and right knee range of motion in flexion was limited. Yet, his range of motion, including as estimated during flares and after repetitive use was always greater than from 0 to 30 degrees. The Board finds that the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 10 percent under Diagnostic Codes 5260-5010 for either knee as the Veteran’s flexion has not been limited to 30 degrees or less at any time during the appeal, even when taking into account his functional loss to include flare-ups, pain, and repeated use over a period of time. Thus, considering the lay and medical evidence of record, the Board finds that the assigned 10 percent rating for the Veteran’s bilateral knee limitation of flexion adequately compensates him for the extent of his functional impairment due to pain, flare-ups, and repeated use over a period of time. Regarding the Veteran’s instability, the Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for the right knee or a rating in excess of 10 percent of the left knee. The Board acknowledges the Veteran’s reports of subjective knee instability and his use of a knee brace and cane, including his testimony that he knees give way sometimes. However, there is overwhelming evidence of not more than moderate right knee instability warranting a 20 percent rating and slight left knee instability warranting a 10 percent rating. In this regard, while the Veteran is competent to described feelings of instability or unsteadiness, the Board affords greater probative weight to the findings of the VA examiners. The March 2009 VA examiner indicated that the minimal laxity could not be ruled out. The August 2020 VA examination report noted that joint stability testing was normal and that there was no evidence of recurrent effusion, lateral instability, or recurrent subluxation. Consequently, the Board finds that the medical evidence and observations of the skilled examiners are far more probative and more credible as to the degree of disability than the lay evidence, to the extent that the Veteran argues there is a higher level of impairment. Accordingly, the Board finds that a higher rating is not warranted for the Veteran’s left or right knee instability under Diagnostic Code 5257. The Board further finds additional ratings for the Veteran’s bilateral knee disabilities are not indicated. A rating under Diagnostic Code 5256 is not warranted as there is no evidence of ankylosis. A rating under Diagnostic Codes 5258 or 5259 is not warranted because there is no evidence of any meniscal condition. There is no evidence that the Veteran’s range of motion in extension was limited to 10 degrees or more to warrant a compensable rating under Diagnostic Code 5261. There is no evidence of tibia and fibula impairment to warrant a rating under Diagnostic 5262. Additionally, there is no evidence of genu recurvatum to warrant a rating under Diagnostic 5263. Moreover, the Board notes that the Veteran’s functional loss was considered as the medical evidence shows that the Veteran has consistently complained of pain. 38 C.F.R. §§ 4.40, 4.45. However, the limitation of motion and functional loss documented in the medical records as resulting from pain, including flare-ups or repetitive use over time, is contemplated in the ratings currently assigned. There is otherwise no evidence of additional significant impairment of motor skills, muscle function, or strength attributable to the Veteran’s bilateral knee disabilities beyond what is already being compensated. Consequently, the Board finds that a higher rating based on functional loss is not warranted. In reaching its conclusions in the instant case, the Board acknowledges the Veteran’s belief that his bilateral knee disabilities are more severe than as reflected by the current assigned ratings. In this regard, the Board must consider the entire evidence of record when analyzing the criteria laid out in the rating schedule. While the Board recognizes that the Veteran is competent to describe his symptomatology, he is not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). Ultimately, the Board finds the medical evidence in which professionals with specialized expertise examined the Veteran, acknowledged his reported symptoms, and described the manifestations of such disabilities in light of the rating criteria to be more persuasive than his own reports regarding the severity of his disabilities. Accordingly, the Board affords the March 2009 and August 2020 VA examination reports greater probative value. To the extent that the Veteran contends entitlement to a higher rating, the preponderance of the evidence is against the claim; there is no reasonable doubt to be resolved; and the appeal is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND The Veteran has raised the issue of a TDIU as part and parcel of his claim for an increased rating for his bilateral knee disabilities. The AOJ was not adjudicated this matter or provided a VA Form 21-8940, Application for Increased Compensation Based on Unemployability. Therefore, remand is necessary before the claim for a TDIU can be adjudicated. The matter is REMANDED for the following action: 1. Contact the Veteran to obtain information about his employment and earning history as a self-employed contractor; provide him with a VA Form 21-8940, Application for Increased Compensation Based on Unemployability. 2. Thereafter, conduct any other development necessary to adjudicate the claim for a TDIU. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Robinson, 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.