Citation Nr: 21004581 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 15-00 133A DATE: January 27, 2021 ORDER For the entirety of the rating period on appeal, entitlement to an initial rating in excess of 10 percent for left knee strain and arthritis is denied. For the entirety of the rating period on appeal, entitlement to an initial rating in excess of 10 percent for a right hip strain with arthritis also is denied. FINDINGS OF FACT 1. The Veteran has arthritis in his left knee and consequent pain but a noncompensable level of limitation of motion – both on extension and flexion. 2. He also has arthritis in his right hip and consequent pain but a noncompensable level of limitation of motion in this hip and adjacent thigh, regardless of direction.   CONCLUSIONS OF LAW 1. The criteria are not met for entitlement to an initial rating higher than 10 percent for the left knee disability. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5003-5010, 5260, 5261 2. The criteria also are not met for entitlement to an initial rating higher than 10 percent for the right hip disability or for a compensable rating for limitation of extension of the right thigh or hip since August 4, 2016. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DCs 5010-5252, 5010-5253, 5010-5251. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1985 to December 1985 and from January 1987 to July 1994. This appeal to the Board of Veterans’ Appeals (Board) is from August 2012 and November 2013 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In October 2017, the Veteran testified in support of these and other claims during a hearing at the RO before a Veterans Law Judge of the Board (Travel Board hearing). A transcript of that hearing is of record. The Board remanded these claims in August 2018 for further development. In November 2020, the Board sent the Veteran a letter indicating the Judge who had presided over his hearing was no longer employed at the Board – since having retired. Therefore, in accordance with 38 C.F.R. § 19.3(b), the Board gave the Veteran an opportunity to have an additional hearing before another Veterans Law Judge of the Board who, in turn, would ultimately decide this appeal. The Veteran’s representative responded in December 2020, however, that they do not want another hearing.   Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. Part 4. Ratings are assigned based on the average impairment of earning capacity resulting from a service-connected disability. 38 C.F.R. § 4.1. Where two disability ratings are potentially applicable, the higher rating 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. All reasonable doubt material to the determination is resolved in the Veteran’s favor. 38 C.F.R. § 4.3. In deciding this appeal, the Board has considered whether separate ratings are warranted for different periods of time, based on the facts found, a practice known as “staged” ratings that is employed irrespective of whether an initial or established rating. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). 1. For the entirety of the rating period on appeal, entitlement to a rating in excess of 10 percent for the left knee strain and arthritis is denied. This disability is currently rated under DC 5010-5261 for post-traumatic arthritis and consequent limitation of extension. Hyphenated DCs are used when a rating under one DC requires use of an additional DC to identify the basis for the evaluation assigned. See 38 C.F.R. § 4.27. Arthritis due to trauma (i.e., post-traumatic arthritis) under DC 5010 is to be rated as degenerative arthritis under DC 5003. Under DC 5003, degenerative arthritis established by X-ray findings, in turn, will be rated based on limitation of motion under the appropriate DCs for the specific joint(s) involved – which, here, since the knee, requires considering DC 5260 (for limitation of knee/leg flexion) and DC 5261 (for limitation of knee/leg extension). When, however, the limitation of motion of the specific joint(s) involved is noncompensable (meaning 0-perecent disabling) under the appropriate DCs, 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, not added under DC 5003. 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. DC 5261 provides for assignment of a 0 percent (noncompensable) rating for extension limited to 5 degrees, a 10 percent rating for extension limited to 10 degrees, a 20 percent rating for extension limited to 15 degrees, a 30 percent rating for extension limited to 20 degrees, a 40 percent rating for extension limited to 30 degrees, and a 50 percent rating for extension limited to 45 degrees. Under DC 5260, a 0 percent rating is warranted when flexion is limited to 60 degrees, a 10 percent rating when limited to 45 degrees, a 20 percent rating when limited to 30 degrees, and a 30 percent rating when limited to 15 degrees. Normal range of motion for the knee is from 0 degrees of extension to 140 degrees of flexion. See 38 C.F.R. § 4.71, Plate II. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the Veterans, themselves, when a flare-up is not observable at the time of examination. The Veteran had VA examinations in June 2012, August 2016 and April 2019 to assess and reassess the severity of this left knee disability, including the extent the arthritis and consequent pain restrict extension and flexion of this knee. At worst, range of motion of this knee (extension to flexion) was during the June 2012 examination when it was from 0 to 80 degrees accompanied by pain. There was normal range of motion during the other examinations, so from 0 to 140 degrees. So, even when motion of this knee was most restricted, it still was normal on extension, to 0 degrees, therefore not entitled to a rating higher than 0 percent under DC 5261, and even though limited to 80 degrees on flexion still exceeded what is required for even the most minimum 0 percent rating under DC 5260. Also, because the Veteran does not have compensable limitation of motion, the Board cannot assign separate ratings under DC 5260 and 5261. See VAOPGCPREC 9-2004 (September 17, 2004). Moreover, none of the examinations indicated left knee instability to warrant rating the disability separately under DC 5257. See VAOPGCPREC 23-97 (July 1, 1997; revised July 24, 1997); VAOPGCPREC 9-98 (August 14, 1998). See also English v. Wilkie, 30 Vet. App. 347, 352-53 (2018) (holding that objective medical evidence cannot be categorically found more probative than lay evidence with respect to DC 5257 insofar as whether there is the required recurrent subluxation or lateral instability contemplated).   As well, there is no indication of ankylosis to warrant rating the disability under DC 5256. Ankylosis is stiffening or fixation of the joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) citing Dorland's Illustrated Medical Dictionary at 86 (27th ed. 1988) (Ankylosis is "immobility and consolidation of a joint due to disease, injury, or surgical procedure."); see also Coyalong v. West, 12 Vet. App. 524, 528 (1999); Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)]. Still yet, there is no indication of the type of impairment in this knee contemplated by the meniscal codes, i.e., DCs 5258 and 5259, to in turn warrant assigning separate ratings under these other DCs. Lyles v. Shulkin, 29 Vet. App. 107 (2017). Instances of left knee flare-ups have not been noted, and there has been no additional functional loss after repetition. Passive range of motion testing was done in April 2019, which indicated no painful motion of the left knee. This left knee disability was determined service connected on the premise that it is secondary to the Veteran’s right knee disability – meaning caused or aggravated by it, such as from having to resultantly overcompensate. See 38 C.F.R. § 3.310(a) and (b); Allen v. Brown, 7 Vet. App. 439, 448 (1995). The right knee disability has several components to it and has resulted in total right knee replacement because of the extent of impairment. The April 2019 examiner noted the Veteran’s bilateral knee condition (therefore, also considering the Veteran’s right knee that is not currently at issue in this appeal) precludes an occupation requiring kneeling, squatting, constant, uninterrupted sitting, or prolonged or extensive weightbearing. And, to this end, the Veteran has reported that the bilateral knee condition makes it difficult to stand, walk, climb stairs, and has affected the ability to perform the Veteran’s job as a mechanic. Notably, however, although pain may cause a functional loss, pain itself does not constitute functional loss. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011) (emphasis added). In Mitchell, the Court held that the evaluation of painful motion as limited motion only applies when limitation of motion is noncompensable (meaning 0-percent disabling) under the applicable DC. The Court further explained that, although painful motion is entitled to a minimum 10 percent rating under Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991), when read together with DC 5003 concerning arthritis, it does not follow that the maximum rating is warranted under the applicable DC pertaining to range of motion simply because pain is present throughout the range of motion. See id. And, here, even considering the Veteran’s lay reports of symptoms (arthritic pain) and consequent functional loss, the degree of additional limitation reflected by the Veteran’s statements would not result in limitation of motion more nearly approximating extension limited to 15 degrees or more or flexion limited to 30 degrees or less. Thus, the preponderance of the evidence is against the Veteran’s claim for a rating greater than 10 percent for this left knee disability because this is the maximum rating to be assigned when, as here, there is arthritis but nonetheless insufficient limitation of motion on extension or flexion to otherwise warrant a compensable rating. In denying any greater rating, the Board finds the benefit of the doubt doctrine inapplicable inasmuch as the preponderance of the evidence is against the claim, not instead more supportive of the claim or even in relative balance for versus against the claim. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. For the entirety of the rating period on appeal, entitlement to a rating in excess of 10 percent for the right hip strain with arthritis is denied. The Veteran contends that a higher rating for the right hip disability is warranted because the associated pain affects the ability to walk for extended periods of time. It reportedly also is painful to sit for extended periods of time, often forcing the Veteran to leave work early. Several different DCs have been used to rate this disability throughout the review period, therefore, the Board will discuss each assignment in determining whether a higher rating is warranted. In an August 2012 rating decision, the RO awarded the Veteran a 10 percent rating under DC 5010-5252 based on painful motion of the hip. This rating was later reduced to a noncompensable rating in a September 2020 decision with an effective date beginning in April 2019. In that same September 2020 rating decision, however, an increased rating of 10 percent was instead awarded for impairment of the thigh under DC 5010-5253 beginning in April 2019. The Veteran also was awarded a noncompensable rating for limitation of extension under DC 5010-5251 beginning in August 2016, meaning the Veteran has maintained a consistent rating of 10 percent throughout the entirety of the rating period, just has been assigned various different DCs to maintain this 10 percent rating. The assignment of a particular DC is “completely dependent on the facts of a particular case.” See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One DC may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis and demonstrated symptomatology. Any change in DC must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Accordingly, the Board has evaluated the Veteran's claim for an increased rating under all applicable DCs. Regarding the hips, separate ratings are available pursuant to DCs 5250-5255. Specifically, DC 5251 evaluates limitation of extension of the thigh; DC 5252 evaluates limitation of flexion of the thigh; and DC 5253 evaluates limitations of abduction, adduction, and rotation of the thigh. Normal hip flexion/extension is to 125 degrees; normal hip abduction/adduction is to 45 degrees. 38 C.F.R. § 4.71, Plate II. Rating in excess of 10 percent prior to April 2019 under DC 5010-5252 Prior to April 2019, the Veteran’s right hip strain with arthritis was rated under 38 C.F.R. § 4.71a, DC 5010-5252, for post-traumatic arthritis with consequent limitation of flexion of the thigh. According to DC 5252, a 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. A 30 percent rating is warranted for flexion limited to 20 degrees. A maximum 40 percent rating is warranted for flexion limited to 10 degrees. The Veteran has had multiple VA examinations concerning this disability – initially in June 2012 and more recently in October 2014, August 2016, and April 2019. But the Board finds that the preponderance of the evidence is against a rating greater than 10 percent for the Veteran’s right hip disability under DC 5010-5252 prior to April 2019. During the June 2012 examination, right hip strain was diagnosed. Forward flexion was limited to 115 degrees and to 105 degrees when considering the effect of pain, therefore not limited to 45 degrees even worse case scenario. Abduction was to 30 degrees, and adduction was to 15 degrees with moderate pain on motion. The Veteran denied flare-ups. Active and passive range of motion were tested with no additional loss of range of motion noted on passive range of motion testing. Repetitive testing similarly did not cause additional loss, pain, fatigue, weakness, incoordination or lack of endurance. During the October 2014 examination, the Veteran was noted to have flare-ups that lasted for approximately 20 minutes but did not result in different range of motion measurements. Arthritis was confirmed. Hip flexion was measured at 120 degrees with no evidence of painful motion. Extension was greater than 5 degrees also with no evidence of pain on motion. No adduction was lost beyond 10 degrees and the Veteran was able to cross legs and able to toe-out more than 15 degrees. No ankylosis was noted. During the August 2016 examination, flexion was measured to 110 degrees. Extension was measured to 20 degrees, so reduced but noncompensable. Abduction was measured to 40 degrees and adduction was measured to 20 degrees. Adduction was not so limited that the Veteran could not cross legs. No pain on motion was noted on the examination and no additional loss found after repetition. There also were no reports of flare-ups. The Veteran reported, however, that occasional hip pain made it difficult to walk. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain, but even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the Veteran’s statements would not result in symptoms more nearly approximating flexion limited to 30 degrees. In other words, there is no indication that the reported pain and functional limitation caused by the right hip disability further limits flexion to an extent approximating the criteria for an initial 20 percent rating prior to April 2019 and a compensable rating thereafter. 38 C.F.R. §§ 4.40, 4.45 and 4.59. Therefore, the Board finds that the Veteran's right hip strain warrants no more than the 10 percent evaluation assigned prior to April 2019 and no more than the noncompensable rating assigned thereafter. Rating in excess of 10 percent after April 2019 under DC 5010-5253 During the April 2019 examination, the Veteran’s hip flexion was measured to 110 degrees. Extension was measured to 25 degrees. Abduction was measured to 35 degrees and adduction measured to 15 degrees. Adduction was not so limited that the Veteran could not cross legs. No pain was noted on the examination and no additional loss found after repetition. Flexion, Abduction, and external rotation were all found to produce pain. No ankylosis was noted. There also was no evidence of pain on passive range of motion testing. Primarily based on the results of that most recent examination, the Veteran was awarded a 10 percent rating beginning in April 2019 (with a noncompensable rating prior to that) under DC 5010-5253 for thigh impairment with arthritis based on painful motion of the hip, to include pain on abduction, external rotation, and flexion, as well as X-ray evidence of arthritis. See also DC 5003 requiring that X-ray confirmation of arthritis. DC 5253 governs impairment of the thigh and awards a 10 percent rating for limitation of rotation of or cannot toe-out more than 15 degrees the affected leg or when adduction is limited such that the legs cannot be crossed. A 20 percent rating is assigned for limitation of abduction or motion lost beyond 10 degrees. The Board is mindful of the Veteran’s lay reports of symptoms and that there was functional loss due to pain. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the Veteran’s statements would not result in symptoms more nearly approximating the 20 percent criteria requiring limitation of abduction or motion lost beyond 10 degrees. Noncompensable rating under DC 5010-5251 from August 2016 The Board also notes the Veteran was awarded a noncompensable rating under DC 5010-5251, which provides a separate 10 percent rating for limitation of extension limited to 5 degrees. During the Veteran’s August 2016 examination, flexion was measured at 110 degrees. Extension was measured at 20 degrees, so reduced but noncompensable. The record does not support a finding that extension was ever measured less than 5 degree such that would warrant a compensable rating. With regards to the entire period on review, the Board also has considered the other DCs pertaining to the hip and thigh. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability – else, this will contravene VA’s anti-pyramiding regulation, 38 C.F.R. § 4.14. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); see also Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). The Board also considered whether the Veteran is entitled to a higher rating due to functional impairment under the provisions of 38 C.F.R. §§ 4.40, 4.45 and 4.59. See DeLuca, 8 Vet. App. at 206-07. The ratings already in effect, however, duly account for the Veteran’s chronic pain and its effect on range of motion. Importantly, the 10 percent rating already stems from painful motion, pursuant to 38 C.F.R. § 4.59, rather than meeting the schedular criteria under the applicable DCs for this level of rating. The Veteran does not have limitation of flexion or extension that would warrant a compensable rating. When considering the Veteran's reported symptoms along with the medical evidence, the Board finds that the Veteran is not entitled to higher ratings for the right hip strain and arthritis.   Moreover, since, for the reasons and bases discussed, the preponderance of the evidence is against the claim, there is no reasonable doubt to resolve in the Veteran’s favor. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. B. Kucera 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.