Citation Nr: 21005057 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 14-40 481 DATE: January 28, 2021 ORDER Entitlement to an initial compensable rating higher than 10 percent for limitation of motion (LOM) symptoms of left knee strain is denied. Entitlement to an initial compensable rating for non-LOM symptoms of left knee strain is denied. FINDINGS OF FACT 1. The preponderance of the evidence of record shows that the LOM symptoms of the left knee strain have manifested with range of motion (ROM) on flexion greater than 0 to 60 degrees, with normal extension to 0 degrees. 2. The preponderance of the evidence of record shows that the Veteran’s left knee strain has not manifested with instability or subluxation or cartilage symptomatology. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial compensable rating higher than 10 percent for the LOM symptoms of left knee strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DC) 5260, 5261. 2. The criteria entitlement to an initial compensable rating for instability associated with the left knee strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.31, 4.71a, DCs 5257, 5258. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS On initial review of this case the Board remanded it to the Agency of Original Jurisdiction (AOJ) for additional development. See 05/02/2018 BVA Decision. As discussed further below, the Board finds substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268- 271 (1988). In a September 2016 rating decision, the AOJ granted a total rating based on individual unemployability (TDIU) due to service-connected disabilities, effective March 1, 2016. See 09/19/2016 Rating Decision – Narrative. In the May 2018 Board remand, the Board took jurisdiction and remanded the issue of entitlement to a TDIU for the period prior to March 1, 2016. While the case was on remand the AOJ granted an earlier effective date (EED) of March 22, 2012 for grant of a TDIU. See 04/16/2020 Rating Decision – Narrative. The AOJ action constituted a full grant of benefits on that issue. See 03/22/2012 VA 21-526b; see also 38 C.F.R. § 3.400(o). Further, there is no indication that the Veteran has disputed that EED or otherwise continued his appeal of that issue. Hence, that issue is not before the Board and will not be discussed in the decision below. Increased Ratings Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 C.F.R. Part 4. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. In general, the degree of impairment resulting from a disability is a factual determination and generally the Board’s primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). Nonetheless, separate, or staged, ratings can be assigned for separate periods during the initial rating period on appeal based on the facts found. See O’Connell v. Nicholson, 21 Vet. App. 89, 91-92 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). 1. Entitlement to an initial compensable rating higher than 10 percent for LOM symptoms of left knee strain is denied. Rating Criteria Normal ROM of the knee is 0 to 140 degrees. 38 C.F.R. § 4.71a, Plate II. Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss, taking into account any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions regarding the avoidance of pyramiding, see 38 C.F.R. § 4.14, do not forbid consideration of a higher rating based on greater LOM due to pain on use, including flare ups. However, those provisions should only be considered in conjunction with the diagnostic codes predicated on LOM. 38 C.F.R. §§ 4.40, 4.45. Under DC 5260, a 10 percent rating is assigned if flexion is limited to 45 degrees; a 20 percent rating is assigned if flexion is limited to 30 degrees; and, the maximum 30 percent rating is assigned if flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. The rating criteria allow for a separate rating for LOM on extension where indicated by the clinical evidence of record and where both flexion and extension are limited to a compensable degree. VAOGCPREC 9-2004 (Sept. 2004). In the Veteran’s case, however, there is no evidence of LOM on extension. See id., DC 5261. Discussion VA received the Veteran’s claim of service connection for his left knee as due to his service-connected right knee. See 03/22/2012 VA 21-526b. He appealed the August 2013 rating decision that granted service connection and assigned an initial non-compensable rating, effective in March 2012. See 08/03/2013 Rating Decision – Narrative; 10/25/2013 NOD. While the case was on remand the AOJ granted a compensable rating of 10 percent based on painful motion, effective the date of the Veteran’s claim in 2012. See 04/16/2020 Rating Decision – Narrative. That means that the Veteran has had a compensable rating throughout the initial rating period for his left knee. Hence, the Board’s review will focus on whether there is evidence that the left knee LOM symptoms manifested at a higher rate at any time during the initial rating period. The Board finds that the preponderance of the evidence shows that it did not. The April 2013 examination report (04/30/2013 VA Examination) reflects the Veteran’s complaints of daily left knee pain, as well as right knee pain that was worse. He reported painful flare-ups due to damp and cold weather and on prolonged standing or walking. He reported further that it was difficult for him to kneel due to his pain. Physical examination revealed ROM of 0 to 100 degrees without evidence of pain. There was no tenderness to palpation, and muscle strength was 5/5. The objective findings on clinical examination show that while the left knee manifested with LOM, it was noncompensable, as flexion exceeded 60 degrees, and extension was normal. Further, the examiner noted that repetitive-use testing, on active ROM (AROM) and passive ROM (PROM) did not reveal any additional loss of ROM; and, the examiner noted that there was no evidence of disturbance of locomotion, no interference with sitting or standing, or weight bearing, as demonstrated by the Veteran’s ability to get on and off the examination table without difficulty. The examiner also noted that no incoordination or excessive fatigability was noted. Id. P. 1. Hence, the Board finds no factual basis for a rating higher than 10 percent for additional loss of ROM due to flare-ups or repeat use over time. See 38 C.F.R. § 4.40, 4.45, 4.59; see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). The January 2015 examination report (01/15/2015 C&P Exam, P. 1-12) reflects that it was for both of the Veteran’s knees. He complained of severe right knee pain but less severe pain on the left. The Veteran explained that while the left knee was not as bad as the right, he could not put weight on it, it swelled, got tight on him, and he could not bend it. He complained further that he did not have strength in it, either on standing or squatting. Physical examination revealed ROM of 0 to 100 degrees with evidence of pain on flexion and extension. There also was tenderness to palpation and evidence of pain on weight bearing. May 2014 x-rays were read as having shown degenerative joint disease and ossification at the inferior aspect of the patella consistent with an old left patellar tendon injury. Exam Report, P. 11. As a result, the examiner added tendonitis/tendinosis and osteoarthritis to the diagnoses of record for the left knee. The additional diagnoses added to the Veteran’s left knee disability does not impact the evaluation, as both are also rated on the basis of LOM. See 38 C.F.R. § 4.71a, DCs 5003, 5024. Again, the left knee manifested with noncompensable LOM. Further, the examiner noted that repetitive-use testing revealed no additional loss of ROM, and the examiner opined that the Veteran would not experience additional loss of ROM due to flare-ups or repeat use over time. Exam Report, P. 3, 5-6. The Veteran was examined again in April 2016, and this examination report requires extra discussion by the Board. As was the case at the 2015 examination, both knees were the subject of examination, but the Veteran’s complaints of the severity of his symptoms did not always clearly distinguish between the two. To complicate matters further, it appears that the examiner or the transcriber reversed which knee the clinical findings applied to. The examination report (04/11/2016 C&P Exam) reflects that the Veteran had recently undergone a total right knee replacement (TKA) in 2015 that had failed, requiring a revision. He reported flare-ups and functional loss and functional impairment, including limitation of his ability to attend to his activities of daily living, due to multiple joint pain. The nurse practitioner examiner did not delineate to which knee his complaints applied. The examination reflects that ROM for the right knee was normal and without pain, and that ROM of the left knee on flexion was 0 to 40 degrees, and extension 40 to 35 degrees. Exam Report, P. 2-3. If correct, such findings would warrant compensable ratings for LOM on both flexion and extension. On initial review in 2018 the Board did not address this facet because it remanded for other reasons. As noted, however, the Board now finds that the preponderance of the evidence is against an increase. In continuing the assigned rating for the post-right TKA, the AOJ did not discuss the findings at the April 2016 examination. See 04/12/2016 Rating Decision – Narrative. The Veteran’s VA outpatient records note that he presented at a VA emergency room the next day with complaints of stiffness and right hip pain. The entry notes that he was post-right TKA, and that his AROM and PROM was 30 to 40 degrees. See 05/19/2016 CAPRI, P. 29. The Board finds the entry shows that more likely than not the April 2016 examination report erroneously noted the ROM findings for the left knee under the right and vice versa. Hence, the Board finds no factual basis for a rating higher than 10 percent for the LOM symptoms. Further, the examiner at the April 2016 examination noted that the Veteran was unable to perform repetitive-use testing with the right knee, but he did with the left, and there was no evidence of additional loss of ROM. The examiner also opined that the Veteran would not experience any additional loss of ROM from functional loss due to flare-ups or repeat use over time. See 04/11/2016 C&P Exam, P. 4-5. Hence, there was no basis for a higher LOM rating on the basis of the DeLuca/Mitchell findings. See 38 C.F.R. §§ 4.40, 4.45, 4.59. The Board remanded the case for another examination because the examiner at the 2016 examination did not conduct (or note) examination on both PROM and AROM. See Correia v. McDonald, 28 Vet. App. 158 (2016). The November 2019 examination report (11/14/2019 C&P Exam) reflects that the Veteran described his flare-ups and functional loss the same way, as involving difficulty with prolonged standing and walking. Physical examination revealed ROM of 0 to 95 degrees without evidence of pain. The examiner noted further that there was no evidence of pain on weight bearing, evidence of crepitus, and there was no tenderness to palpation of the joint or soft tissue. The examiner noted that there was right knee pain on AROM testing but not PROM. Exam. Report, P. 3, 9. The objective findings on clinical examination show that the left knee continued to manifest with noncompensable LOM on flexion. 38 C.F.R. § 4.71a, DC 5260. The examination report reflects further that repetitive-use testing revealed no additional loss of ROM. Further, the examiner opined that, based on the Veteran’s reports and the examination findings, he would not experience additional loss of ROM from pain due to functional loss from repeat use over time, but there would be an additional loss of 5 degrees from functional loss due to flare-ups. Exam Report, P. 3-4. ROM of 0 to 90 degrees is still noncompensable. The preponderance of the evidence of record shows that the left knee disability manifests primarily with pain. Hence, the Veteran is entitled to at least the minimum compensable rating, which he has received. See Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). A rating on this basis is not applied to each knee. The Veteran is entitled to a staged rating for any part of the rating period where the left knee manifested with greater severity. The Board finds, however, that the preponderance of the evidence shows that the left knee LOM symptoms have manifested at the same rate, 10 percent, for the entire rating period on appeal. 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.59, 4.71a, DCs 5260, 5261. Since the preponderance of the evidence is against a rating higher than 10 percent, there is no reasonable doubt to resolve. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990); see also 38 C.F.R. § 4.3. 2. Entitlement to an initial compensable rating for non-LOM symptoms of left knee strain is denied. The August 2013 rating decision assigned the initial rating for the left knee under 38 C.F.R. § 4.71a, DC 5257, which evaluates other impairment of the knee due to recurrent subluxation or lateral instability. See 08/03/2013 Rating Decision – Codesheet. The Schedular Rating Criteria provide that, where indicated by the evidence of record, separate ratings may be assigned for symptomatology based on LOM and that not based on LOM. See VAOGCPREC 9-98 (August 1998); 23-97 (July 1997). The applicable criteria provide that slight symptoms warrant a 10 percent rating; moderate, 20 percent; and severe, 30 percent. Id. Since ratings under DC 5257 are not based on LOM, a claimant may be separately rated for both LOM and non-LOM symptoms of a disability where indicated by the evidence of record. At the April 2013 examination the Veteran did not report any history of recurrent patellar subluxation; there was instability of station. Physical examination revealed no anterior instability; Lachman and posterior Drawer tests were negative bilaterally. The examiner did notice any evidence of medial or lateral instability, and she opined that the Veteran had not lost the use of the left knee. 04/30/2013 VA Examination, P. 2). The objective findings on clinical examination show no factual basis for a separate compensable rating for non-LOM symptoms. 38 C.F.R. § 4.31, 4.71a, DC 5257. Further, the examiner noted that the Veteran did not report a history of meniscus symptoms or of a meniscectomy. Hence, there is no basis for a separate rating for cartilage symptoms. See 38 C.F.R. § 4.71a, DCs 5258, 5259. Following the Veteran’s appeal, the AOJ arranged another examination. The January 2015 examination report reflects that the examiner assessed muscle strength as normal 5/5, and she noted that there was no evidence of loss of muscle strength. There was no history of recurrent subluxation and instability testing revealed the left knee to be stable in all planes. The examiner noted further that there was no evidence of meniscus symptoms on the left side, and that May 2014 x-rays were read as having shown trace left suprapatellar effusions. Exam Report, P. 6, 8-9. There was no evidence of meniscus or cartilage symptoms on the left. The Board acknowledges the Veteran’s complaints of loss of strength in addition to his complaints of pain, and the Board notes that he is fully competent to report such symptoms of his disability. See 38 C.F.R. § 3.159(a)(2). Nonetheless, the objective findings of clinical examination showed left knee strength to be normal without any evidence of loss of muscle strength. Hence, the Board affords more weight to the objective medical findings on examination. The Board finds that the examination results continued to show no factual basis for a separate compensable rating under DC 5257. The Board notes the x-ray findings of trace left effusion, but there is no evidence of locking and pain due to dislocated cartilage, and the examiner noted the absence of meniscus involvement on the left. Hence, there also is no factual basis for a separate rating under DC 5258. The April 2016 examination report reflects that muscle strength was 5/5 without evidence of loss of muscle strength. Based on the absence of any reported history of reported subluxation or instability, the examiner opined that instability testing was not indicated. See 04/11/2016 C&P Exam, P. 6-7. Hence, the Board finds that as of the April 2016 examination there continued to be no factual basis for a separate compensable rating for non-LOM symptoms. 38 C.F.R. § 4.71a, DC 5257. The November 2019 examination report reflects that muscle strength was 5/5, there was no evidence of loss of muscle strength, and there was no evidence of recurrent subluxation or instability. The left knee was stable in all planes. Exam. Report. P. 5-6. The examiner noted further that there was no evidence of cartilage symptomatology. Exam. Report, P. 6. Based on the evidence set forth above, the Board finds that the preponderance of the evidence shows that there is no basis for a separate compensable rating for non-LOM symptoms of the left knee for any part of the rating period. 38 C.F.R. §§ 4.1, 4.31, 4.71a, DCs 5257, 5258, 5259. (Continued on the next page)   Since the preponderance of the evidence is against a rating higher than 10 percent, there is no reasonable doubt to resolve. See Gilbert, 1 Vet. App. 49, 53-56; see also 38 C.F.R. § 4.3. The Board notes that the April 2020 rating decision does not list the DC 5257 left knee disorder among his disabilities. See 04/15/2020 Rating Decision – Codesheet. The Board reminds the AOJ that, while rated noncompensably, service connection is still in effect for the left knee disability that the August 2013 rating decision granted under DC 5257, as it is for different symptomatology. Hence, the AOJ must issue a corrected Codesheet that includes the left knee disability rated under DC 5257. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W. T. Snyder 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.