Citation Nr: 21004789 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 16-50 998 DATE: January 28, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for right degenerative joint disease with limitation of extension (previously rated as limitation of flexion), prior to September 11, 2019 is denied. Entitlement to an initial rating of 30 percent, but no higher for right knee degenerative joint disease with limitation of extension from September 11, 2019 is granted. FINDINGS OF FACT 1. The Veteran’s right knee disability manifested as pain, arthritis, and limited motion that is not otherwise compensable prior to September 11, 2019. 2. From September 11, 2019 the Veteran’s right knee extension was limited as its most severe, to 25 degrees, and his flexion was most severe, to 65 degrees. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for right degenerative disc disease limitation of extension (previously rated as right knee degenerative joint disease, limitation of flexion), prior to September 11, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5010, 5260. 2. The criteria for a rating of 30 percent, but no higher, for right degenerative disc disease limitation of extension (previously rated as right knee degenerative joint disease, limitation of flexion), prior to September 11, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5010, 5261. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 2009 to November 2013. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from the May 2014 and September 11, 2020 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared for a hearing before a Veterans Law Judge in September 2019. The Veterans Law Judge who conducted the hearing has since retired. The hearing transcript is associated with the claims file. The Veteran was provided notice of the Veterans Law Judge’s retirement in November 2020. The November 2020 notice requested a response within 30 days if the Veteran desired another hearing. Since the Veteran did not respond to the November 2020 notice within 30 days, it is assumed that the Veteran did not want another hearing. In November 2019, the Board remanded the issue on appeal for additional development. The Board finds that the Regional Office (RO) substantially complied with the Board’s remand instructions and an additional remand to comply with the Board’s directives is not required. See Stegall v. West, 11 Vet. App. 268 (1998). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). While the Veteran’s entire history is reviewed when making a disability determination, where service connection has already been established and an increase in the disability rating is at issue, it is a present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Court has held that, in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. Consideration is given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they are raised by the Veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, are expected in all instances. 38 C.F.R. § 4.21. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran’s service-connected disability. 38 C.F.R. § 4.14. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings 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 basis of disability evaluation 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. Neither the Veteran nor her representative has raised any issues with regard to the duty to notify or duty to assist as they pertain to the issues considered in this decision. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The analysis in this decision focuses on the most relevant evidence and on what the evidence shows or does not show with respect to the issues denied in this decision. The Veteran should not assume that evidence that is not explicitly discussed in this decision has been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). 1. Entitlement to an initial rating in excess of 10 percent for right degenerative disc disease limitation of extension (previously rated as right knee degenerative joint disease, limitation of flexion, prior to September 11, 2019 2. Entitlement to an initial rating of 30 percent, but no higher, for right knee degenerative joint disease limitation of extension (previously rated as right knee degenerative joint disease), limitation of flexion from September 11, 2019 The Veteran seeks a higher initial rating for his right degenerative disc disease limitation of extension (previously rated as right knee degenerative joint disease, limitation of flexion disability). The Veteran contends that he has pain when he walks and runs, as well as other high impact activities. In rating 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). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity, or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing, and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that 38 C.F.R. § 4.59 applies to disabilities other than arthritis). However, painful motion alone is not a functional loss without some restriction of the normal working movements of the body. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). Where there is a question as to which of two ratings shall be applied, 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. Reasonable doubt as to the degree of disability will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. The rating of the same disability under various diagnoses is to be avoided 38 C.F.R. § 4.14. Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected rating, and the rating of the same manifestation under different diagnoses are to be avoided. Id.; Esteban v. Brown, 6 Vet. App. 259 (1994). In this case, the Veteran contends that the severity of his knee disability warrants a higher rating than is currently assigned. The May 31, 2014 rating decision awarded the Veteran with service connection for his right knee degenerative joint disease with a rating of 10 percent effective December 1, 2013, therefore the appeal period is December 1, 2013 through the present. 38 C.F.R. § 4.71a, Diagnostic Code 5010, directs that traumatic arthritis be rated as degenerative arthritis under 38 C.F.R. § 4.71a, Diagnostic Code 5003. Under Diagnostic Code 5003, rating shall be on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. If noncompensable limitation of motion is demonstrated, a 10 percent rating is assigned for each major joint or group of minor joints affected. In the absence of any limitation of motion, a 10 percent rating is warranted for involvement of two or more major joints or two or more minor joint groups, and a 20 percent rating is warranted for involvement of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5003. For the purpose of rating disability from arthritis, the knee is considered a major joint. 38 C.F.R. § 4.45. Under 38 C.F.R. § 4.71a , Diagnostic Code 5260, a 10 percent rating is warranted for flexion of the knee 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. Under 38 C.F.R. § 4.71a , Diagnostic Code 5261, a 10 percent rating is warranted for extension of the knee 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; a 40 percent rating is warranted for extension limited to 30 degrees; and a 50 percent rating is warranted for extension limited to 45 degrees. Normal range of motion of the knee is 0 degrees of extension to 140 degrees of flexion. See 38 C.F.R. § 4.71a, Plate II. Separate ratings may be awarded under Diagnostic Codes 5260, and 5261. See VAOPGCPREC 9-2004. In addition, even if a veteran did not have limitation of motion of the knee meeting the criteria for a compensable rating under Diagnostic Code 5260 or 5261, a separate rating could be assigned if there was evidence of full range of motion “inhibited by pain.” Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). Summary of the Evidence The Veteran’s treatment records demonstrate that the Veteran did not receive treatment for his right knee condition throughout the appeal period. In May 2014, the Veteran was afforded a VA examination for his right knee condition. The Veteran reported he has had knee pain for about 4 years. He states that he twisted his knee on several occasions and fell off a truck and injured his knee in 2011. He indicated that his knee was treated conservatively. He also reports that he has pain when he walks or runs (high impact activities). The Veteran reported that he has flare-ups 3-4 times a day, which requires him to sit down. Range of motion for the right knee was flexion at 80 degrees and extension at 0 degrees. The examiner noted that the Veteran did not have any objective evidence of any painful motion, or functional loss after repetitive testing. He had normal strength and stability. The examiner declined to state whether the Veteran would experience additional functional loss during flare-ups. However, the examiner noted that the Veteran had less movement than normal and had tenderness or pain to palpitation for joint line or soft tissues. The Veteran had imaging that revealed arthritis in his right knee. Concerning the range-of-motion findings of the right knee, the Board notes that the May 2014 VA examination report does not include passive range-of-motion measurements and does not specify range of motion with and without weight-bearing. See Correia v. McDonald, 28 Vet. App. 158 (2016). The fundamental issue in view of Correia is that VA examinations must include adequate joint testing for pain. Generally, active range-of-motion testing produces more restrictive results than passive range-of-motion testing, in that passive range-of-motion testing requires the physician to force the joint through its motions. There is also no indication that range-of-motion testing was performed other than on weight bearing. Therefore, there is no prejudice to the Veteran in relying on a VA examination that involved active range-of-motion testing because such results tend to produce the most severe scenario for impairment and thus would support the highest possible rating. In September 2019, the Veteran testified at a Board hearing regarding his right knee condition. The Veteran testified, “every time I put weight on it, it hurts. It’s good if I’m sitting. It’s fine if I’m sitting or lying or anytime weight is put on it it hurts.” When asked if he could extend his leg, the Veteran testified, “I can with pain. I can bend it. Not too low but I can bend it to a certain degree.” In September 2020, the Veteran underwent a VA examination for his right knee. The examiner noted that the Veteran was diagnosed with degenerative joint disease in 2012. The Veteran reported that his condition has worsened, and he has “pain in the right knee daily, sharp in quality, mostly in the kneecap, mostly with weightbearing, taking stairs, squatting, heavy lifting, after awakening.” The Veteran reported that he has flare-ups after engaging in physical activities and bending the knees. Range of motion for the right knee was flexion at 75 degrees and extension at 20 degrees. The examiner indicated that the Veteran had pain during weightbearing and had functional loss from pain during flexion and extension testing. The examiner noted that there was evidence of crepitus. The Veteran was unable to perform repetitive use testing because the Veteran complained of severe pain and had functional loss manifested by pain, fatigue, weakness, and lack of endurance. The examiner estimated the Veteran’s range of motion for the right knee was flexion at 70 degrees and extension at 25 degrees. The examiner estimated that during flare-ups the Veteran’s range of motion for the right knee was flexion at 65 degrees and extension at 25 degrees. The examiner estimates that the Veteran has pain, fatigue, weakness, and lack of endurance during flare-ups. The examiner indicated that the Veteran has less movement than normal due to ankylosis, adhesions; weakened movement due to muscle injury or peripheral nerves injury; disturbance of locomotion; and “Painful and weakened limitation of flexion and extension noted. Diagnosed conditions interfere with prolonged standing and walking, taking stairs, squatting, heavy lifting, kneeling.” The Veteran had 4 out of 5 strength, no muscle atrophy, no ankylosis, and has no instability. The Veteran reported using braces constantly as assistive devices and was used for all diagnosed conditions. The examiner stated that the Veteran’s passive range of motion was the same as his active range of motion. Analysis - Ratings for the Service-Connected Right Knee Disability Turning to the relevant evidence of record, the Veteran’s May 2014 rating decision awarded him with service connection for right knee degeneration joint disease with a 10 percent rating, under Diagnostic Code 5003-5260 and; the September 2020 rating decision awarded him an increased rating to 30 percent, and recategorized his condition as right knee degenerative joint diseased of extension (previously rated as right knee degenerative joint disease, limitation of flexion) under diagnostic code 5010-5261. The Board notes that the following claim is rated under hyphenated diagnostic codes. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Here, the Veteran was assigned a Diagnostic Code of 5010-5260 for the right knee because the Veteran has a degenerative knee condition, and his range of motion is limited. As his knees worsened, the RO changed the Veteran’s Diagnostic Code to 5010-5261, as a result of the Veteran’s extension in his knees becoming more limited. The service-connected right knee disability was rated as 10 percent disabling under Diagnostic Code 5010-5260. This rating was awarded based on traumatic arthritis with painful, limited motion that was not compensable under Diagnostic Code 5260 or 5261. In the absence of any limitation of motion, a 10 percent rating is warranted for involvement of two or more major joints or two or more minor joint groups, and a 20 percent rating is warranted for involvement of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, DC 5010. For the purpose of rating disability from arthritis, the knees are considered major joints. 38 C.F.R. § 4.45(f). Moreover, additional or higher ratings could be warranted if the Veteran’s service-connected knee disabilities manifested in flexion limited to 45 degrees or less and/or extension limited to 10 degrees or more. See 38 C.F.R. § 4.71a, Diagnostic Codes 5260 and 5261. Throughout the period from December 1, 2013 to September 11, 2019 the Veteran’s right knee flexion was limited as its most severe, to 80 degrees. Such limitation does not warrant an additional or higher rating under Diagnostic Code 5260. Throughout the period from December 1, 2013 to September 11, 2019 the Veteran’s right knee extension was limited as its most severe, to 0 degrees. Such limitation does not warrant an additional or higher rating under Diagnostic Code 5261. The Veteran’s service treatment records, post service treatment records, VA examinations, are consistent in demonstrating that the Veteran has not received treatment for his right knee disability, beyond physical therapy. Overall, the Board finds that a disability rating in excess of 10 percent for the Veteran’s right knee disability is not warranted prior to September 11, 2019. The Board has considered the Veteran’s reports that his knee condition warranted a higher initial disability rating. While the Veteran is competent to report symptoms, because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). Alternatively, such competent evidence concerning the nature and extent of the Veteran’s right knee disability has been provided by the medical personnel who have examined him during the current appeal period. The medical findings (as provided in the examination reports), and treatment records, directly address the criteria under which this disability is evaluated and are consistent with the Veteran’s complaints. The Board has also considered the other Diagnostic Codes pertaining to the knee and leg. 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. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); 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). Based on the foregoing, the Board concludes the preponderance of the evidence is against the claim for an increased rating in excess of 10 percent during this time period. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim of entitlement to an increased rating, that doctrine is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran’s right knee claim from September 11, 2019 The Veteran seeks an increase in rating for his right knee disability. As discussed above the Veteran was awarded an increased rating effective September 3, 2020, at 30 percent for his limited extension, under Diagnostic code 5261. The Veteran has not received regular treatment for his knee condition throughout the appeal period. There is evidence within the Veteran’s medical records that note that the Veteran has a right knee condition, but the medical records do not discuss specific treatment for his knee condition. As discussed above, in September 2019, the Veteran testified at a Board hearing stating that “every time I put weight on it, it hurts. It’s good if I’m sitting. It’s fine if I’m sitting or lying or anytime weight is put on it it hurts.” When asked if he could extend his leg, the Veteran testified, “I can with pain. I can bend it. Not too low but I can bend it to a certain degree.” In September 2020, the Veteran was then afforded a VA examination to determine the current etiology of his knee condition. Throughout the period from September 11, 2019 through the present, the Veteran’s right knee flexion was limited as its most severe, to 65 degrees. Such limitation does not warrant an additional or higher rating under Diagnostic Code 5260. In order to receive a compensable rating for flexion, the Veteran’s flexion must be limited to 45 degrees, under Diagnostic Code 5260. Throughout the period from September 11, 2019 through the present, the Veteran’s right knee extension was limited as its most severe, to 25 degrees. Such limitation warrants a 30 percent rating under Diagnostic Code 5261, but no higher. In order to receive a higher rating, the Veteran’s right knee extension must be limited to 30 degrees, to receive a 40 percent rating, under Diagnostic Code 5261. The Board finds that resolving reasonable doubt in the Veteran’s favor that the Veteran is entitled to an increased rating of 30 percent, based on the hearing date. While the Veteran’s testimony was not elaborate, he indicated that his right knee had limited extension. He could bend his right knee to a “certain degree.” In addition, in 2020 Covid-19 made scheduling the Veteran more cumbersome than in other years. However, the Veteran is not entitled to a higher rating than 30 percent under Diagnostic Code 5261 because his extension was not limited to 30 degrees. The Board has also considered the other Diagnostic Codes pertaining to the knee and leg. 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. See Esteban, 6 Vet. App. at 261-62; Lyles, 29 Vet. App. at 107 (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). (Continued on the next page)   In conclusion, resolving reasonable doubt in the Veteran’s favor, the Board finds that the Veteran is entitled to a 30 percent rating, but no higher, from September 11, 2019. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Quist, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.