Citation Nr: 21003679 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 17-10 869 DATE: January 22, 2021 ORDER Entitlement to a rating in excess of 10 percent for a left knee disorder is denied. Entitlement to a rating in excess of 10 percent for a right knee disorder is denied. FINDINGS OF FACT The preponderance of the evidence shows that the left and right knee disorders are not manifested by at least flexion limited to 30 degrees even when considering the Veteran’s complaints of pain with and without weight bearing and resistance in passive and active range of motion as well as during flare-ups; ankylosis; at least slight recurrent subluxation or lateral instability; or impairment of the tibia and fibula with at least moderate knee or ankle disability at all times during the appeal. CONCLUSION OF LAW The criteria for ratings in excess of 10 for left and right knee disorders have not been met at all times during the appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1. 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, and 5256 to 5263. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty with the United States Air Force from November1989 to June 2005. In January 2019, a Veterans’ Law Judge other than the undersigned issued a Board of Veterans’ Appeal (Board) issued a decision that, among other things, granted separate 10 percent ratings, but no higher, for the Veteran’s left and right knee disorders. The Veteran appealed the January 2019 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a February 2020 order, which incorporated the parties Joint Motion for Partial Remand (JMPR), the Court vacated and remanded January 2019 Board decision to the extent that it did not grant ratings in excess of 10 percent for the Veteran’s left and right knee disorders. In July 2020, the Board remanded the appeal for additional development. Initially, the Board notes that additional evidence was added to the claims file since the regional office (RO) issued the November 2020 supplemental statement of the case. However, the Board finds that it need not delay adjudication of this appeal to obtain a waiver or for RO review because it does not find his evidence pertinent because it does not relate to either of his knee disorders. See 38 C.F.R. § 19.31 (a supplemental statement of the case will be furnished to the veteran when additional pertinent evidence is received after a statement of the case has been issued). Lastly, while the record shows that the Veteran has other pending appeal, the Board finds that it will not address these issues in the current decision because those appeal are pending under the Appeals Modernization Act (AMA) review system (84 Fed. Reg. 138 (Jan. 18, 2019)) (the new system) and the current appeal is pending under the Legacy appeal system (the old system). The Concerns Raised by the JMPR, Post-Remand Development, and Correia and Sharp Concerns Initially, the Board finds that the post-remand development substantially complied with the JMPR and Remand including addressing the Court’s concerns in Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Board has also reached this conclusion because it finds that the VA opinions obtained at the November 2020 VA examination provide all needed information to rate his left and right knee disorders under all applicable rating criteria including range of motion studies that considered his complaints of pain. See 38 U.S.C. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board’s remand, because such determination more than substantially complied with the Board’s remand order). In this regard, the November 2020 VA examiner in accordance with Sharp, supra, specifically reported the Veteran’s knees range of motions during flare-ups and in accordance with Correia, supra, specifically reported the Veteran’s knees range of motions with and without weight bearing and resistance in passive and active range of motion. See Owens, supra. Therefore, the Board finds that further delay by remanding these issues to provide the Veteran with a new VA examination is not required. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). The Merits of the Rating Claims The Veteran contends that his left and right knee disorders are more severely disabling than represented by the rating assigned at all times during the appeal. In this regard, disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by a Diagnostic Code. 38 C.F.R. § 4.27. When rating the Veteran’s service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate higher or lower compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as “staged” ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The assignment of a particular diagnostic code is “completely dependent on the facts of a particular case.” See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual’s relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). The left knee disorder is rated as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5003-5260 and right knee disorder is rated as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5010-5260. Under 38 C.F.R. § 4.71a, Diagnostic Code 5010 traumatic arthritis is rated under Diagnostic Code 5003 as degenerative arthritis. Under 38 C.F.R. § 4.71a, Diagnostic Code 5003 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. A rating of 20 percent is assigned for each such major joint or group of minor joints, with occasional incapacitating exacerbations, affected by limitation of motion. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a. Under 38 C.F.R. § 4.71a, Diagnostic Code 5256, ankylosis at a favorable angle in full extension or in slight flexion between 0 degrees and 10 degrees warrants a 30 percent rating; ankylosis with flexion between 10 degrees and 20 degrees warrants a 40 rating; ankylosis with flexion between 20 degrees and 45 degrees warrants a 50 rating; and extremely unfavorable ankylosis (flexion at an angle of 45 degrees or more) warrants a 60 percent rating. Under 38 C.F.R. § 4.71a, Diagnostic Code 5257, slight recurrent subluxation or lateral instability will be rated as 10 percent disabling. Moderate recurrent subluxation or lateral instability will be rated as 20 percent disabling. And, severe recurrent subluxation or lateral instability warrants a 30 percent rating. The terms “mild,” “moderate,” “moderately severe” and “severe” are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. The use of terminology such as “mild” or “moderate” by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Under 38 C.F.R. § 4.71a, Diagnostic Code 5258, dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint warrants a 20 percent rating. Under 38 C.F.R. § 4.71a, Diagnostic Code 5259, removal of the semilunar cartilage when symptomatic warrants a 10 percent rating. Under 38 C.F.R. § 4.71a, Diagnostic Code 5260, if flexion of the knee is limited to 45 degrees a 10 percent rating is in order. If flexion of the knee is limited to 30 degrees a 20 percent rating is in order. If flexion of the knee is limited to 15 degrees a 30 percent rating is in order. Under 38 C.F.R. § 4.71a, Diagnostic Code 5261, if extension of the knee is limited to 10 degrees a 10 percent rating is in order. If extension of the knee is limited to 15 degrees a 20 percent rating is in order. If extension of the knee is limited to 20 degrees a 30 percent rating is in order. If extension of the knee is limited to 30 degrees a 40 percent rating is in order. If extension of the knee is limited to 45 degrees a 50 percent rating is in order. Full range of motion of the knee is from 0 to 140 degrees. 38 C.F.R. § 4.71, Plate II. Under 38 C.F.R. § 4.71a, Diagnostic Code 5262, impairment of the tibia and fibula with slight knee or ankle disability warrants a 10 percent rating; with moderate knee or ankle disability warrants a 20 percent rating; with marked knee or ankle disability warrants a 30 percent rating; and with nonunion (loose motion requiring brace) warrants a 40 percent rating. Under 38 C.F.R. § 4.71a, Diagnostic Code 5263, Genu recurvatum (acquired, traumatic, with weakness and insecurity in weight-bearing objectively demonstrated) warrants a 10 percent rating. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2016); DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court has clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Therefore, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Moreover, the United States Court of Appeals for Veterans Claims (Court) in Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (2016) held that the provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to the evaluation of musculoskeletal disabilities under Diagnostic Codes predicated on range of motion measurements. In Burton v. Shinseki, 25 Vet. App. 1 (2011), the Court held that 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. Furthermore, in Jones Shinseki, 26 Vet. App. 56, 61-63 (2012) the Court held that the Board may not deny entitlement to an increased rating on the basis of relief provided by medication when those effects are specifically contemplated by the rating criteria. In Esteban v. Brown, 6 Vet. App. 259, 261 (1994), that Court held that in cases where the record reflects that the appellant has multiple problems due to service-connected disability, it is possible for an appellant to have “separate and distinct manifestations” from the same injury, permitting separate disability ratings. The critical element is that none of the symptomatology for any of the conditions is duplicative or overlapping with the symptomatology of the other conditions. Id. In this regard, VA General Counsel has held that separate ratings may be assigned in cases where a service-connected knee disorder includes both a compensable limitation of flexion under Diagnostic Code 5260, and a compensable limitation of extension under Diagnostic Code 5261 provided that the degree of disability is compensable under each set of criteria. VAOPGCPREC 9-2004; 69 Fed. Reg. 59990 (2004). The basis for the opinion was a finding that a limitation in planes of movement were each compensable. Id. VA General Counsel has also held that separate ratings may be assigned in cases where the service-connected knee disorder includes both arthritis and instability, provided of course, that the degree of disability is compensable under each set of criteria. VAOPGCPREC 23-97 (July 1, 1997). As to ratings in excess of 10 percent for the Veteran’s left and right knee disorders at any time during the appeal under Diagnostic Code 5256 due ankylosis, while the range of motion of the left knee is restricted at the VA examinations, the record on appeal never shows it being ankylosed. In fact, the August 2015 and November 2020 VA examiners specifically opined they are not ankylosed, and these medical opinions are not contradicted by any other medical opinion of record. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). Moreover, the Board finds that the Veteran is not competent to diagnosis ankylosis because this is a medical finding. See Davidson, supra. In the absence of ankylosis, the Board may not rate his service-connected left and right knee disorders as ankylosis. See Johnston v. Brown, 10 Vet. App. 80 (1997). Consequently, the Board finds that a higher rating is not warranted for the Veteran’s left and right knee disorders under Diagnostic Code 5256 at any time during the appeal. See 38 C.F.R. § 4.71a; Hart, supra; Fenderson, supra. As to higher rating for the Veteran’s left and right knee disorders at any time during the appeal under Diagnostic Code 5260, the Board finds that even when considering functional limitations due to pain with and without weight bearing and resistance in passive and active range of motion as well as during flare-ups and the other factors identified in 38 C.F.R. §§ 4.40, 4.45, 4.59 as well as the Court’s holdings in Correia, Sharp, Mitchell, Burton, Southall-Norman, and DeLuca, and when considering the appellant’s competent reports of his observable adverse symptomatology (see Davidson, supra), his functional losses do not equate to the criteria required for at least a 20 percent rating because flexion of the left and right knee is not limited to 30 degrees because it was 90 degrees or higher at all of his VA examinations. Specifically, it was as follows: Left knee flexion was 90 degrees at the November 2014 examination conducted by Dr. Paul J. Yocom, 140 degrees at the August 2015 VA examination, and 110 degrees at the November 2020 VA examination. Right knee flexion was 90 degrees at the November 2014 examination conducted by Dr. Paul J. Yocom, 140 degrees at the August 2015 VA examination and 110 degrees at the November 2020 VA examination. Moreover, while the Veteran’s treatment records document his complaints and treatment for left and right knee problems, the Board finds that above VA examiners ranges of motion are not contradicted by any other medical evidence of record because treatment records never document less flexion in either knee. 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.71a; Hart, supra; Fenderson, supra, Colvin, supra. This does not suggest that the Veteran is having no problems with his knees, simply that the current knee problem is being addressed by the current disability evaluations of the problem. The question is only the degree of the problem based on the multifaceted criteria cited above for knee problems. As to a higher rating and/or a separate compensable rating for the Veteran’s left and right knee disorders at any time during the appeal under Diagnostic Code 5261 and VAOPGCPREC 9-2004, the Board finds that even when considering functional limitations due to pain with and without weight bearing and resistance in passive and active range of motion as well as during flare-ups and the other factors identified in 38 C.F.R. §§ 4.40, 4.45, 4.59 as well as the Court’s holdings in Correia, Sharp, Mitchell, Burton, Southall-Norman, and DeLuca, and when considering the appellant’s competent reports of his observable adverse symptomatology (see Davidson, supra), his functional losses do not equate to the criteria required for even a compensable rating much less a 20 percent rating, because extension of the left and right knee is not limited to 10 degrees, much less 15 degrees, because it was less than 10 degrees at all of his VA examinations. Specifically, it was as follows: Left knee extension was 0 degrees at the August 2015 VA examination and 0 degrees at the November 2020 VA examination. Right knee extension was 0 degrees at the August 2015 VA examination and 0 degrees at the November 2020 VA examination. Moreover, while the Veteran’s treatment records document his complaints and treatment for left and right knee problems, the Board finds that above VA examiners ranges of motion are not contradicted by any other medical evidence of record because treatment records never document less extension in either knee. 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.71a; Hart, supra; Fenderson, supra, Colvin, supra. As to higher and/or separate ratings under Diagnostic Code 5257, the Board notes that while Dr. Yocom opined that the left and right knee had lateral instability, Dr. Yocom did not quantify the degree of instability and the August 2015 and November 2020 VA examinations are uniform in finding that the knees are stable. Moreover, while treatment records document the Veteran’s complaints and treatment for bilateral knee problems, nothing in these records contradicts the above VA examiners findings. See Colvin, supra. Therefore, the Board finds that the most probative evidence of record are the VA examiners findings that the Veteran’s knees are stable because they are supported by the other evidence of record. See Madden v. Gober, 125 F.3d. 1477 1481 (Fed. Cir. 1997) (holing that the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence). Accordingly, the Board finds that the criteria for higher or separate 10 percent ratings for left and/or right knee instability are not met at all times during the appeal. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; VAOPGCPREC 23-97; Fenderson, supra; Hart, supra. As to higher ratings under Diagnostic Code 5258 for dislocated semilunar cartilage and/or under Diagnostic Code 5262 for impairment of the tibia and fibula, the Board notes that the record on appeal is negative for this adverse symptomatology. See, for example, VA examinations dated in August 2015 and November 2020. In fact, the August 2015 and November 2020 VA examiners opined that there was no tibia and fibula impairment and these medical opinions are not contradicted by any other medical evidence of record. See Colvin, supra. In the absence of this adverse symptomatology, the Board will not rate his service-connected left and right knee disorders under Diagnostic Code 5258 or Diagnostic Code 5262 at any time during the appeal. See, e.g., See Johnston, supra; Butts, supra. Lastly, as to higher ratings under Diagnostic Code 5259 for removal of the semilunar cartilage when symptomatic and/or under Diagnostic Code 5263 for Genu recurvatum, the Board notes that the disability ratings already assigned the Veteran’s service-connected left and right knee disorders meet the maximum rating possible under these code sections at all times during the appeal. See 38 C.F.R. § 4.71a. Therefore, increased ratings under these criteria is also denied. See 38 C.F.R. § 4.71a; Hart, supra; Fenderson, supra. In reaching the above conclusions, the Board has also not overlooked the claims from the Veteran regarding his adverse symptomatology. See Davidson, supra. However, the Board finds the VA examiner’s opinions as to the Veteran’s adverse symptomatology more probative than any lay claims from the appellant to the contrary even though his symptomatology is observable by a lay person because the examiner has medical training. See Black v. Brown, 10 Vet. App. 297, 284 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data). Lastly, notwithstanding the Court holding in Rice v. Shinseki, 22 Vet. App. 447 (2009) the Board finds that the record does not raise a claim for a total rating based on individual unemployability (TDIU). The Board has reached this conclusion because the Veteran has not claimed, and the record does not show that his service-connected bilateral knee disabilities interfered with his substantial gainful employment at any time during the appeal. In reaching all the above conclusions, the Board also considered the doctrine of reasonable doubt. 38 U.S.C. § 5107(b). However, as the preponderance of the evidence is against the claims, the Board finds that the doctrine is not for application. See also, e.g., Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert, supra. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.T. Werner, 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.