Citation Nr: 21002769 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 12-03 424 DATE: January 14, 2021 ORDER Entitlement to a rating in excess of 10 percent for left knee arthritis is denied. Entitlement to a rating in excess of 10 percent for right knee arthritis is denied. Entitlement to an initial compensable rating for arthritis, left knee with limitation of extension, is denied. Entitlement to an initial compensable rating for arthritis, right knee with limitation of extension, is denied. FINDINGS OF FACT 1. The Veteran’s left knee arthritis manifests pain and limitation of motion from 5 to 95 degrees, at worst. 2. The Veteran’s right knee arthritis manifests pain and limitation of motion from 5 to 80 degrees, at worst. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for left knee arthritis have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5010. 2. The criteria for a rating in excess of 10 percent for right knee arthritis have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5010. 3. The criteria for an initial compensable rating for arthritis, left knee with limitation of extension, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes 5010-5261. 4. The criteria for an initial compensable rating for arthritis, left knee with limitation of extension, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes 5010-5261. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the U.S. Army from February 1987 to July 1994. The issue is on appeal from a September 2009 rating decision. In July 2016, January 2018, and September 2020, the issues were remanded for further evidentiary development by the Board of Veterans’ Appeals (Board). The Board notes the Veteran died in February 2018 and the appellant is his surviving spouse. She has been substituted as the claimant in this appeal, which was pending at the time of his death. Finally, in an October 2020 rating decision, the regional office (RO) granted service connection for arthritis, left and right knees with limitation of extension, each at noncompensable and effective March 23, 2017. As the grants of service connection for arthritis, bilateral knee with limitation of extension is part and parcel of the Veteran’s increased rating claims for his service-connected bilateral knee arthritis, and the ratings do not commence from the earliest effective date stemming from the underlying claims for a higher rating for the service-connected bilateral knee arthritis nor constitute the highest possible rating, the claims remain at issue. Swain v. McDonald, 27 Vet. App. 219, 224 (2015); AB v. Brown, 6 Vet. App. 35, 39 (1993). Thus, the issues on appeal have been recharacterized as listed on the title page of this decision. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21 In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Degenerative and/or traumatic arthritis as shown by x-ray studies are rated based on limitation of motion of the affected joint. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. Consideration of other Diagnostic Codes for rating knee disability (5256, 5257, 5258, 5259, 5262, 5263) is inappropriate in this case as the Veteran’s knee disability does not include the pathology required in the criteria for those Diagnostic Codes (ankylosis, recurrent subluxation/lateral instability, dislocated semilunar cartilage, malunion or nonunion of tibia or fibula, or genu recurvatum). 38 C.F.R. § 4.71a. In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. This regulation also requires that, whenever possible, the joints involved are tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45 but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). 1. Entitlement to a rating in excess of 10 percent for left knee arthritis. 2. Entitlement to a rating in excess of 10 percent for right knee arthritis. 3. Entitlement to an initial compensable rating for arthritis, left knee with limitation of extension 4. Entitlement to an initial compensable rating for arthritis, right knee with limitation of extension The Veteran’s service-connected bilateral knee arthritis is rated as 10 percent disabling under Diagnostic Code 5010 for traumatic arthritis; and noncompensable under Diagnostic Codes 5010-5261 for limitation of extension. Diagnostic Code 5010 is rated by analogy to Diagnostic Code 5003 for degenerative arthritis. Pursuant to Diagnostic Code 5003, arthritis established by x-ray findings will be rated based on limitation of motion under the appropriate diagnostic code(s) 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. See 38 C.F.R. § 4.71a, Diagnostic Code 5003. Knee disabilities are rated under Diagnostic Codes 5256 to 5263. Under Diagnostic Code 5260, a 10 percent rating is warranted for flexion limited to 45 degrees, a 20 percent rating is warranted for flexion limited to 30 degrees, and a 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a. Under Diagnostic Code 5261, a 10 percent rating is warranted for extension limited to 10 degrees, a 20 percent rating is warranted for extension limited to 15 degrees, a 30 percent rating is warranted for extension limited to 20 degrees, 40 percent for extension limited to 30 degrees, and 50 percent for extension limited to 45 degrees. 38 C.F.R. § 4.71a. Standard motion of a knee joint is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. The assignment of separate ratings based on limitation of flexion and limitation of extension is warranted in cases where such limitation warrants separate compensable ratings for flexion and extension under Diagnostic Codes 5260 and 5261, respectively. As the current appeals stem from a May 2009 claim for non-initial increased ratings of bilateral knee arthritis, the Board will consider evidence dating back to May 2008 in consideration of the one-year look back period from the date of claim. Turning to the evidence, VA treatment records reveal complaints of swelling, aching, and pain. The Veteran’s right knee occasionally locked, and he suffered from crepitus and grinding with active range of motion of both knees. At worst, the Veteran’s extension measured to 5 degrees. The Veteran was forced to quit his job as a painter because of his bilateral knee arthritis and subsequent pain. His treatment plan included steroid injections and use of a knee sleeve and cane. The Veteran was afforded VA examinations in July 2009. His right knee range of motion was 0 to 98 degrees with crepitus and pain. After three repetitions, his right knee range of motion was 0 to 109 degrees with pain. As for the left knee, the Veteran’s range of motion was 0 to 90 degrees with crepitus and pain. After three repetitions, his left knee range of motion was 0 to 93 degrees. During a February 2013 VA consult, range of motion observed while sitting measured from 10 to 60 degrees with pain. In June 2013, the Veteran was afforded an additional VA examination of his knees. He confirmed constant use of a brace and cane as assistive devices. The Veteran complained of mostly anterior with some posterior pain, and painful crepitus. The Veteran reported occasional mild locking, rare giving way, and swelling after more physical activity. He was capable of walking up to a half-block. His symptoms were aggravated after prolonged sitting or standing over 15 to 20 minutes; cold and damp weather; steps and stairs; squatting; twisting; kneeling; carrying; lifting; and walking on uneven ground. The Veteran denied experiencing flare-ups. Upon physical examination, right knee range of motion measured from 0 to 90 degrees, with evidence of pain on flexion at 45 degrees and an inability to fully extend at 10 degrees. Left knee range of motion measured from 0 to 105 degrees, with evidence of pain on flexion at 45 degrees and an inability to fully extend at 10 degrees. After repetitive use testing, the right knee measurements ranged from 0 to 85 degrees and left knee measurements ranged from 0 to 95 degrees. Bilateral functional loss and impairment resulted in less movement than normal, weakened movement, excess fatigability, pain on movement, swelling, disturbance of locomotion, and interference with standing, sitting, and weight bearing. The Veteran’s knees demonstrated full muscle strength and no additional issues. In August 2016, the Veteran underwent his final VA examination for his service-connected knee arthritis. The Veteran reported constant use of knee braces and occasional use of a cane. He complained of knee flare-ups after kneeling, squatting, and bending and climbing ladders or stairs; and walking less than a half-block, standing for five minutes, and sitting for five minutes. Additionally, conditions involving heat, cold, or moisture increased his knee pain. During these extreme conditions, the Veteran was forced to sit down. A physical examination was conducted. Range of motion measurements displayed right knee measured from 0 to 80 degrees with pain on flexion at 80 degrees. The examiner noted that the Veteran was observed sitting with his right knee flexed at 90 degrees without pain during the examination when the Veteran was distracted. Right knee flexion pain caused functional loss as the Veteran had limitations with squatting, kneeling, and lifting maneuvers. Additionally, objective evidence of crepitus, pain on weight bearing, and pain to palpation in the distal joint line of the right knee was confirmed. The left knee measured from 0 to 140 degrees, with the Veteran reporting subjective medical history of pain with flexion at 100 degrees. Left knee flexion pain caused functional loss as the Veteran had limitations with squatting, kneeling, and lifting maneuvers. Additionally, objective evidence of crepitus, pain on weight bearing, and pain to palpation in the distal and proximal joint line of the left knee was confirmed. After repetitive use testing, the right knee measured from 0 to 80 degrees and the left knee measured from 0 to 95 degrees. Additional functional loss manifested as pain, fatigue, and weakness for both knees. The examiner noted the Veteran’s explanation that he used knee braces for stabilization as his right knee had given out four to five times and his left knee gave out one time. However, based on the examination and medical history, the examiner found no objective medical evidence of knee instability, of either knee. Finally, the Veteran’s knees revealed full muscle strength and no additional issues. VA treatment records show a March 2017 orthopedic consult where range of motion was limited from 5 to 115 degrees due to the Veteran’s bilateral knee osteoarthritis. In September 2020, an addendum medical opinion was obtained to discuss the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups or with repeated use over time of the Veteran’s bilateral knee conditions. The examiner was only able to speak in speculative terms as the Veteran had died prior to the date of the addendum. Therefore, the examiner thoroughly reviewed and relied on the Veteran’s medical records. The examiner’s best estimation for functional loss with repetitive use over time was 0 to 80 degrees on the right knee and 0 to 95 degrees on the left knee, based on the August 2016 VA examination, and possible loss of 5 degrees of flexion to get to 0 degrees, as estimated from his 2017 orthopedic consult. As for flare-ups, the examiner stated that if the Veteran were to kneel down, squat, bend, or climb ladders, he would likely bend his knees beyond the initial range of motion found in the 2013 and 2016 VA examinations. As such, the Veteran would likely avoid bending his knees beyond 0 to 80 degrees on the right knee and 0 to 95 degrees on the left knee during a flare-up. Additionally, as estimated in his 2017 orthopedic consult, the Veteran would have had a 0 to 5 degree loss during the extension maneuver. Based on the above, the Board finds that the Veteran’s bilateral knee arthritis nor bilateral arthritis, knee limitation of extension warrant higher ratings than already assigned. Throughout the appeal period, the Veteran’s bilateral knees manifested painful and limited motion of a major joint or group of minor joints, ranging from 5 to 80 degrees on the right knee and 5 to 95 degrees on the left knee, at worst. Therefore, x-ray evidence does not show involvement of two or more major or minor joint groups, and the knees were not manifested by extension limited to 10 degrees. Thus, the Veteran’s condition does not rise to the level required of a 20 percent rating based on evaluation of arthritis; nor a 10 percent rating on the basis of limitation of extension. Accordingly, the Veteran’s bilateral knees arthritis is appropriately rated as 10 percent disabling under Diagnostic Code 5010 and bilateral arthritis, knee limitation of extension are appropriately rated as noncompensable under Diagnostic Code 5010-5261 for noncompensable limitation of the knee joint. In sum, the Board must conclude that the Veteran’s right and left knee conditions do not more nearly approximate the criteria for the assignment of a disability rating in excess of 10 percent on the basis of arthritis nor a compensable rating on the basis of limitation of extension at any time during the period on appeal. (Continued on next page) For the foregoing reasons, the preponderance of the evidence is against a rating in excess of 10 percent for the Veteran’s bilateral knee arthritis, and against an initial compensable rating for the Veteran’s bilateral arthritis, knee limitation of extension, for the period on appeal, and the claims must be denied. Accordingly, the benefit-of-the-doubt rule is inapplicable, and the claims must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Lee 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.