Citation Nr: 21004506 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 09-46 255 DATE: January 27, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for right knee traumatic arthritis with limitation of motion due to arthritis is denied. REMANDED Entitlement to service connection for a right eye disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran’s right knee traumatic arthritis is not manifested by flexion limited to 30 degrees. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for right knee arthritis with painful limitation of motion are not met. 38 U.S.C. § 1155 ; 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5260. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1969 to January 1989. This case comes before the Board of Veterans’ Appeals (Board) on appeal from March 2009 and March 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In December 2010, the Veteran testified at a local hearing before a Decision Review Officer (DRO), and in August 2011, he and his wife testified at a Board hearing held before the undersigned Acting Veterans Law Judge in Waco, Texas. A copy of each transcript is of record. The issues on appeal were previously remanded by the Board in September 2012 for further development. Subsequently, in a September 2018 decision, the Board denied the issue of entitlement to a rating in excess of 10 percent for right knee traumatic arthritis with limitation of motion and granted a separate 20 percent rating for a torn meniscus in the right knee. The Board remanded the claims for entitlement to service connection for a right eye disability and entitlement to a TDIU for further development at the time. The Veteran appealed the Board’s decision to the Court of Appeals for Veterans Claims (Court). In a July 2019 Order pursuant to a Joint Motion for Partial Remand (JMPR) filed by the Veteran and the Secretary (parties), the Court vacated and remanded the part of the Board’s decision that denied a rating in excess of 10 percent for his right knee disability. The issue of entitlement to an increased rating for right knee traumatic arthritis with limitation of motion was before the Board again in April 2020 when it was remanded for further development pursuant to the terms set forth in the July 2019 JMPR. The issues of entitlement to service connection for a right eye disability and entitlement to a TDIU were before the Board again in August 2020 when they were remanded for further development. Entitlement to a disability rating in excess of 10 percent for right knee traumatic arthritis with limitation of motion due to arthritis The Veteran contends that his right knee traumatic arthritis is more severe than what is represented by a 10 percent disability rating. In the July 2019 JMPR noted above, the parties agreed that the Board erred in relying on inadequate VA medical examination reports that failed to address functional loss. The VA examiners also failed to conduct range of motion testing in weight-bearing, non-weight-bearing, and passive range of motion. The parties also agreed that the Board erred when it provided an inadequate statement of reasons or bases in support of its decision, noting that the Board’s analysis regarding the Veteran’s reports of instability in his right knee was based on a factual mistake. The parties added that the Board appears to have improperly discounted the Veteran’s lay accounts of instability based on the absence of objective, medical evidence corroborating them. The parties noted that the Board did not discuss the Veteran’s disability without the ameliorative effects of his steroid injections. Finally, the parties agreed that on remand the Board should address the Veteran’s inability to perform repetitive use testing during the 2011 VA examination and whether it is indicative of a complete loss of range of motion that would warrant the highest schedular rating. Accordingly, the issue was remanded by the Board in April 2020 in order to obtain a VA examination that would adequately capture the current severity of the Veteran’s service-connected right knee disability, to include an opinion regarding the Veteran’s baseline severity of his right knee disability without the ameliorative effects of medication and an opinion regarding whether the Veteran’s inability to perform repetitive use testing at the January 2011 VA examination was indicative of a complete loss of range of motion. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 ; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Where, as here, entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern, including the appropriateness of staged ratings whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994); Hart v. Mansfield, 21 Vet. App. 505 (2007). In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. Weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse are relevant factors in regard to joint disability. 38 C.F.R. § 4.45. Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a veteran’s service-connected disability. 38 C.F.R. § 4.14. However, it is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; the critical element in permitting the assignment of several evaluations under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). The relevant rating criteria include Diagnostic Code 5010, which instructs the rater to rate traumatic arthritis as degenerative arthritis under Diagnostic Code 5003. Under Diagnostic Code 5003, arthritis established by X-ray findings is 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, to be combined and not added, under Diagnostic Code 5003. The Diagnostic Codes that focus on limitation of motion of the knee are Diagnostic Codes 5260 (limitation of flexion) and 5261 (limitation of extension). For rating purposes, normal range of motion in a knee joint is from 0 to 140 degrees. 38 C.F.R. § 4.71, Plate II. The Rating Schedule provides for ratings of 0, 10, 20, or 30 percent where there is limitation of flexion of the leg to 60, 45, 30, or 15 degrees, respectively, and for ratings of 0, 10, 20, 30, 40, or 50 percent for limitation of extension of the leg to 5, 10, 15, 20, 30, or 45 degrees, respectively. 38 C.F.R. § 4.71a , Diagnostic Codes 5260, 5261. VA’s General Counsel has held that separate ratings are available for limitation of flexion and limitation of extension under Diagnostic Codes 5260 and 5261. VAOPGCPREC 9-2004 (2004). Diagnostic Code 5257 provides ratings of 10, 20, and 30 percent for recurrent subluxation or lateral instability of the knee, which is slight, moderate, or severe, respectively. 38 C.F.R. § 4.71a , Diagnostic Code 5257. Diagnostic Code 5258 provides a 20 percent rating may be assigned for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint. Diagnostic Code 5259 provides for a 10 percent rating for symptomatic removal of the semilunar cartilage. VA’s General Counsel has held that a claimant who has arthritis and instability of the knee may be rated separately under DCs 5003 and 5257. VAOPGCPREC 23-97; 62 Fed. Reg. 63,604 (1997). The General Counsel subsequently clarified that for a knee disability rated under DC 5257 to warrant a separate rating for arthritis based on X-ray findings and limitation of motion, limitation of motion under DC 5260 or DC 5261 need not be compensable but must at least meet the criteria for a zero-percent rating. A separate rating for arthritis can also be based on X-ray findings and painful motion under 38 C.F.R. § 4.59. VAOPGCPREC 9-98 (1998); 63 Fed. Reg. 56,704 (1998). VA’s General Counsel has subsequently held that separate ratings can also be provided for limitation of knee extension and flexion. VAOPGCPREC 9-2004; 69 Fed. Reg. 59,990 (2004). The relevant evidence of record includes VA treatment records showing that the Veteran underwent an MRI of the right knee in March 2008. The result of the MRI showed degenerative changes in the joint cartilage and an oblique tear in the posterior horn of the medical meniscus. In a May 2008 VA orthopedic note, the Veteran was seen for right knee pain. Upon physical examination there was “mild effusion in the right knee.” The Lachman, drawer, and McMurray tests were negative. There was no instability to varus and valgus stress tests. The Veteran was provided with a VA knee examination in January 2009. During the evaluation, the Veteran reported having symptoms of pain, weakness, stiffness, swelling, heat, instability, giving way, locking, fatigability, and lack of endurance associated with the right knee disability. Treatment included steroid shots every 4 months. Flare-ups were noted to result in increased pain after 3 months following the steroid injection. Stairs, walking, and standing were also noted to increase the Veteran’s right knee symptoms. Upon physical examination, flexion of the right knee was limited to 100 degrees with pain starting at 100 degrees. Extension was normal with no pain. The examiner noted that the medial and lateral collateral ligament tests were “mild” on the right knee. Social Security Administration disability records include a radiology report of the right knee dated in September 2009. At that time, the Veteran was noted to have some small joint effusion. A September 2009 evaluation further noted that the Veteran could not hop, squat, or tandem walk. He also had difficulty standing, lifting, and carrying objects. Range of motion of the right knee was abnormal with flexion limited to 80 degrees. The Veteran was afforded another VA examination in January 2011. During the evaluation, the Veran reported that his pain decreased after his steroid injection but worsened as the steroid wore off. The Veteran stated that he had intermittent swelling in the right knee. He was limited in walking to a half mile and had functional limitation on standing and walking. Upon range of motion testing the Lachman and McMurray tests were negative. Flexion was limited to 95 degrees and extension was to -5 degrees with end-range pain. Stability tests of the collateral ligaments were normal. The Veteran was unable to perform repetitive use testing due to pain. In an April 2013 VA radiology report, the Veteran was noted to have mild lateral compartment joint space narrowing and “moderate” joint effusion. The Veteran was afforded a VA knee examination in June 2013. The examiner diagnosed the Veteran with degenerative joint disease and a right knee meniscus tear with an unknown date. The Veteran again reported that he received steroid injection every 4 months. He also used a metal knee brace, elastic brace, and a cane to assist with ambulation. No specific flare-ups were reported. Range of motion testing revealed flexion limited to 120 degrees and normal extension in the right knee. Repetitive use testing did not additionally limit motion. Stability tests were normal and there was no patellar subluxation or dislocation. The examiner did note, however, that the Veteran had a meniscal tear in the right knee, but no associated symptoms were listed. VA treatment records from September 2020 show that the Veteran complained of chronic pain in his knees that was in good control with medication. The Veteran was most recently afforded a VA knee examination in September 2020 where he reported pain and discomfort, his knee suddenly giving out when walking, frequent flare-ups, knee popping when moving, and loss of strength and stability in his knee. The Veteran reported that his flare-ups occur two to three times a week and are moderate to severe in nature. He stated that taking medication helps. Range of motion testing revealed flexion limited to 100 degrees and extension limited to 5 degrees. Pain was noted on the examination with flexion and extension that causes functional loss. There was objective evidence of localized tenderness or pain on palpation of the patella, with mild severity. The Veteran was able to perform repetitive use testing with additional loss of function or range of motion resulting in flexion limited to 95 degrees and extension limited to 5 degrees. The Veteran was not examined immediately after repetitive use over time, but the examiner included range of motion testing estimated with flexion to 90 degrees and extension to 5 degrees. The examination was not conducted during a flare up, but the examiner noted that range of motion testing estimated for flare ups would result in flexion limited to 90 degrees and extension to 5 degrees. There was reduction in muscle strength testing showing active movement against some resistance. The Veteran did not have muscle atrophy or ankylosis. Joint stability tests were normal. The Veteran was noted to have a meniscal tear, frequent episodes of joint “locking,” and joint pain. He was noted to use a brace and cane constantly. The examiner noted objective evidence of pain on passive range of motion testing and on non-weight bearing testing. The VA examiner noted that the Veteran’s baseline right knee pain is moderately severe and his range of motion in both passive and active are significantly decreased. The examiner stated that with weight bearing the Veteran was noted grimacing and his weight distribution was uneven when standing as he was trying to avoid bearing weight on his right lower extremity. Regarding the January 2011 VA examination, the examiner noted that although the Veteran was unable to perform repetitive use testing due to pain, it was less likely than not that this was indicative of a complete loss in range of motion without resulting to mere speculation as a complete loss in range of motion would mean that the Veteran was unable to move his knee at all and unable to walk, which was not in the report. As noted above, the Veteran is in receipt of a 10 percent rating for the entire rating period on appeal for limitation of motion due to traumatic arthritis in the right knee under Diagnostic Code 5010-5260. Upon consideration of the evidence, the Board finds that the disability picture for the Veteran’s right knee arthritis does not warrant a disability rating in excess of 10 percent. A review of range of motion testing performed throughout the rating period shows that flexion of the right knee was limited to, at worst, 80 degrees and extension was normal or at -5 degrees. As such, a rating in excess of 10 percent for limitation of flexion of the right knee is not warranted. Further, and as noted above, VA General Counsel has interpreted that separate ratings may be assigned under Diagnostic Codes 5260 and 5261 for disability of the same joint where there is both compensable limitation of flexion and extension. The Board notes that in a September 2020 rating decision, the Veteran was granted a separate noncompensable rating under Diagnostic Code 5261 for limitation of extension. As the evidence of record does not show that limitation of extension was limited to 5 degrees, a compensable rating for limitation of extension (Diagnostic Code 5261) is not warranted in this case. Additionally, the Board notes that in the September 2018 Board decision, the Veteran was granted a separate 20 percent rating under Diagnostic Code 5258 for dislocation of semilunar cartilage of the right knee for the rating period on appeal. The 20 percent rating assigned is the maximum rating available under Diagnostic Code 5258; as such, it follows that by law, the Veteran cannot be entitled to a higher rating under this Diagnostic Code. The Board also considered whether higher ratings are warranted based on additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use during flare-ups. See 38 C.F.R. §§ 4.40, 4.45; DeLuca, at 204-7. During the VA examinations discussed above, the Veteran’s decreased range of motion in the right knee following repetitive use testing did not result in flexion limited to 30 degrees in order to warrant a rating in excess of 10 percent under Diagnostic Code 5260. Moreover, the Board finds that the Veteran’s limitation in flexion, pain, effusion, and locking and associated functional impairment are adequately contemplated by the currently assigned ratings under Diagnostic Codes 5010-5258, 5010-5260, and 5261. The Board notes that the Veteran has reported instability in his right knee. See January 2009 VA examination, December 2010 DRO hearing, August 2011 Board hearing transcript, September 2019 statement, and September 2020 VA examination. As a result, the Board has considered whether a separate rating is warranted under Diagnostic Code 5257 for recurrent subluxation or lateral instability. Upon review, however, the January 2009 VA examiner specifically documented the Veteran’s complaints of instability and giving way and noted mild varus/valgus of medial and lateral collateral ligaments, but ultimately found no instability of the right knee joint. Additionally, the record does not include any other diagnosis of instability of the right knee during the appeal period. See June 2013 and September 2020 VA examinations. To the extent the Veteran contends that he has instability of his right knee, the Board finds that the objective medical evidence is more probative than the lay evidence on the issue of instability. Although lay persons are competent to provide opinions on some medical issues, the clinical diagnosis of joint instability falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4. (Fed. Cir. 2007). In this case, the Veteran has reported instability in his right knee. However, the Board finds that the diagnosis of joint instability requires specialized testing beyond ordinary clinical evaluation. Mattke v. Deschamps, 374 F.3d 667, 670 (8th Cir. 2004) (a diagnosis by laboratory testing is distinctly not withing the realm of common lay knowledge). Specifically, joint instability is diagnosed by Lachman’s test, drawer test, and varus/valgus test. The Veteran has not contended, nor does the evidence show, that he has the medical expertise required to conduct or interpret such tests. Thus, to the extent the Veteran contends that he has instability of the right knee, the Board finds that his contention is not a valid lay diagnosis and his statements are outweighed by the findings of the January 2009, January 2011, June 2013, and September 2020 VA examiners. Accordingly, the Board finds that the Veteran is not entitled to a separate disability rating under Diagnostic Code 5257. See Flutur v. Shulkin, No. 16-0730 (U.S. Vet. App. March 7, 2017). In considering the applicability of other diagnostic codes, the Board finds that Diagnostic Codes 5256 (ankylosis of the knee), 5259 (symptomatic removal of semilunar cartilage), 5262 (tibia and fibula impairment), and 5263 (genu recurvatum) are not applicable in this instance, as the medical evidence does not show that the Veteran has any of those conditions. 38 C.F.R. § 4.71a , Diagnostic Codes 5256, 5259, 5263. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 10 percent for right knee traumatic arthritis. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 1. Entitlement to service connection for a right eye disability The Veteran contends that his pre-existing right eye disability was aggravated by his military service. The Veteran’s service treatment records show that in a March 1968 Report of Medical Examination, conducted at service entrance, the Veteran's visual acuity in the right eye was 20/400. During the November 1988 Report of Medical Examination, conducted at service separation, visual acuity in the right eye was 20/600. A VA medical opinion was obtained in September 2016. At that time, the examiner opined that the Veteran's pre-existing right eye disorder was not aggravated beyond its natural progression by service. In support of this opinion, the examiner stated that the Veteran was blind from age 15 due to trauma. It was further noted that the rigors of military service had no effect on his right eye as it remained blind. Furthermore, his blind eye was diagnosed with bullous keratopathy, a painful corneal complication of his trauma. According to the examiner, bullous keratopathy followed a typical course of progressive pain, whether in service or not. There was no progression attributable to military service, as progression or aggravation was always expected with traumatic bullous keratopathy. In September 2018, the Board found the September 2016 VA opinion to be inadequate as it did not adequately explain the Veteran’s service treatment records appearing to show some worsening of the Veteran’s condition. The matter was remanded in order to obtain an addendum opinion specifically addressing the apparent change of the Veteran’s visual acuity from service entrance to service separation. In October 2019 an additional medical opinion was added to the electronic file. The examiner opined that it was less likely than not that the claimed condition was incurred in or caused by the Veteran's active service, providing as rationale "The Veteran suffered from a traumatic bullous keratopathy at age 15 which led to the anatomical loss and enucleation of the right eye which occurred during the teen years prior to service." The examiner also opined that the claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by service writing "The anatomical loss of the right eye is now currently and successfully treated with the use of a prosthesis." In August 2020, the Board found that the above rationale was inadequate as it failed to address the specifically noted reports of medical history and was in violation of Stegall v. West, 11 Vet. App. 268, 271 (1998). As such, the issue was remanded for an addendum medical opinion. The Veteran was subsequently provided with a VA medical opinion in September 2020. The VA examiner opined that the claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by his service. The examiner noted that the Veteran’s right eye was removed at the age of 15 and an artificial eye was placed in the socket of the right orbit. The condition removed all sight from the right globe and no further years of living affected the right prosthesis and military service did not aggravate a removed globe from the right orbit. In an October 2020 addendum medical opinion, the VA examiner noted that the Snellen visual acuity charts are set up for 20/400 being the largest letter testable, nothing that 20/600 does not exist on the Snellen eye charts. The examiner noted that any other chart other than Snellen is not permitted for DBQ and the only vision test in November 1988 was not valid. He added that the difference between 20/200 and 20/400 is not recordable on the chart as useful vision and 20/600 is not even able to be tested with the Snellen visual acuity chart system. The Board finds that the October 2020 VA addendum opinion is inadequate as it is based on an inadequate rationale. The VA examiner based his negative nexus opinion partially on the Snellen eye charts not being permitted on a DBQ and found the November 1988 medical examination report in the Veteran’s service treatment records to be invalid. However, the Board notes that whether or not the Snellen eye charts are permitted on a DBQ is not relevant in this case. The issue in this case is whether the Veteran’s right eye disability was aggravated by his service, and whether the medical history showing visual acuity going from 20/400 to 20/600 during his military service indicates a worsening of his disability, regardless of the type of acuity chart that was used at the time and whether it would be permitted on a DBQ today. As such, an addendum medical opinion must be obtained prior to adjudication of this issue. 2. Entitlement to a TDIU The issue of entitlement to a TDIU is inextricably intertwined with the issue of entitlement to service connection for a right eye disability. Accordingly, this issue must be remanded as well. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an ophthalmologist regarding the Veteran's right eye disability. The examiner should review the entire claims file and a note that such review was completed should be made in his or her report. The examiner should answer the following question: (a.) Is there evidence that the Veteran's right eye injury that pre-existed service, was aggravated during, or as a result of, the Veteran's active service? In rendering an opinion, the examiner must specifically consider and address the Veteran's March 1968 report of medical history showing visual acuity in the right eye as 20 /400, and the Veteran's November 1988 report of medical history showing visual acuity in the right eye as 20 /600. The examiner should explain whether the Veteran’s visual acuity going from 20/400 in the beginning of his service to 20/600 at the end of his service indicates a worsening of his pre-existing disability. A detailed rationale for the opinion must be provided. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. T.D. JONES Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Morrad, 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.