Citation Nr: 21062376 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 08-00 002 DATE: October 7, 2021 ORDER From April 9, 2005, to June 27, 2019, a rating greater than 10 percent for patellar tendonitis of the right knee with limitation of flexion ("right knee limitation of flexion") under DC 5024-5260 is denied. From June 27, 2019, to December 24, 2019, a compensable rating for right knee limitation of flexion under DC 5024-5260 is denied. From June 27, 2019, to December 24, 2019, a rating greater than 10 percent for patellar tendonitis of the right knee with limitation of extension and arthritis ("right knee limitation of extension") under DC 5024-5261 is denied. From December 24, 2019, to the present, a rating greater than 50 percent for right knee limitation of extension under DC 5003-5261 is denied. REMANDED Entitlement to a total disability rating based on individual employability (TDIU) due to service-connected disabilities is remanded. FINDING OF FACT 1. From April 9, 2005, to June 27, 2019, right knee limitation of flexion manifested by subjective complaints of chronic pain; objective range of motion testing did not demonstrate flexion limited to 30 degrees. 2. From June 27, 2019, to December 24, 2019, right knee limitation of flexion and extension manifested by subjective complaints of chronic pain and flare-ups; objective range of motion testing did not demonstrate flexion limited to 45 degrees or extension to 15 degrees. 3. From December 24, 2019, to the present, the Veteran is in receipt of the maximum schedular rating for right knee limitation of extension; this disability was not productive of an exceptional or unusual disability picture or frequent periods of hospitalization. CONCLUSION OF LAW 1. From April 9, 2005, to June 27, 2019, the criteria for a rating greater than 10 percent for patellar tendonitis of the right knee with limitation of flexion under DC 5024-5260 have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.59, 4.71a, DC 5024-5260. 2. From June 27, 2019, to December 24, 2019, the criteria for a compensable rating for patellar tendonitis of the right knee with limitation of flexion under DC 5024-5260 have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.59, 4.71a, DC 5024-5260. 3. From June 27, 2019, to December 24, 2019, the criteria for a rating greater than 10 percent for patellar tendonitis of the right knee with limitation of extension and arthritis under DC 5024-5261 have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.59, 4.71a, DC 5024-5261. 4. From December 24, 2019, to the present, the criteria for a rating greater than 50 percent for patellar tendonitis of the right knee with limitation of extension and arthritis under DC 5003-5261 on an extraschedular basis have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.59, 4.71a, DC 5003-5261. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 2001 to April 2005. For his meritorious service, the Veteran was awarded (among other decorations) the Combat Infantryman Badge and War on Terrorism Service Medal. This appeal has a prolonged procedural history. Most recently, the case was remanded by the Board in October 2020 for additional development which has since been completed, including the obtainment of updated VA treatment records and a new VA knee examination. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Historically, the Veteran was awarded service connection for right knee patellar tendonitis and assigned a noncompensable initial rating under DC 5024-5260, effective April 9, 2005. See March 2006 rating decision. During the pendency of this appeal, an August 2019 rating decision was issued which awarded the Veteran a 10 percent initial rating for this disability. However, a July 2020 rating decision significantly altered the Veteran's awards. According to an accompanying codesheet, the Veteran was awarded a noncompensable rating for his right knee limitation of flexion under DC 5024-5260 from June 27, 2019, to December 24, 2019. The award of service connection for right knee limitation of flexion was ostensibly severed as of that date. Further, a separate award of service connection for right knee limitation of extension was awarded under DC 5024-5261, with a 10 percent initial rating assigned from June 27, 2019, to December 24, 2019, and a 50 percent rating thereafter assigned under DC 5003-5261. It is unclear why the Veteran's award of service connection for right knee limitation of flexion is no longer in effect after December 24, 2019, or why the award of service connection for right knee limitation of extension begins only on June 27, 2019. In examining the above procedural history, it would appear that only the initial rating assigned to right knee limitation of flexion should currently be on appeal. However, the Board mischaracterized the issue on appeal in its October 2020 remand, identifying the matter as entitlement "to an initial rating in excess of 10 percent for a right knee disability prior to December 24, 2019, and in excess of 50 percent thereafter." The Veteran has since expressed his understanding that this properly identifies the matter on appeal. 38 C.F.R. § 20.202; Percy v. Shinseki, 23 Vet. App. 37 (2009) (holding that an issue can be on appeal if VA has implicitly or explicitly treated it as on appeal and the appellant might have reason to believe it was on appeal); see August 2021 representative's memorandum (reiterating the Board's classification of the matter on appeal). Given the above, the Board now asserts jurisdiction over the initial ratings assigned to both awards of right knee disabilities (specifically, limitation of flexion and extension). This will effectively contemplate whether an earlier effective date for the award of service connection for limitation of extension is warranted, as well as whether entitlement to a compensable evaluation is warranted for limitation of flexion after December 24, 2019. Finally, the Board finds that a TDIU claim has been reasonably raised by the record and asserts jurisdiction over the issue. See 38 C.F.R. § 3.155(a) (governing the submission of informal claims); Rice v. Shinseki, 22 Vet. App. 447 (2009); see also February 2015 Report of General Information (signaling the Veteran's intent to file for a TDIU). Increased Rating As set forth above, the Veteran is pursuing higher ratings for his right knee limitation of flexion and extension. Disability ratings are determined by the applications of the VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. April 9, 2005, to June 27, 2019 The Veteran is currently in receipt of a 10 percent initial rating for his right knee limitation of flexion from April 9, 2005, to June 27, 2019, under DC 5024-5260. Generally, hyphenated diagnostic codes are used when an unlisted disability is at issue. See 38 C.F.R. § 4.27. The second diagnostic code provides further detail regarding the origins of the unlisted disability, the bodily functions affected, the symptomatology, and anatomical location. Thus, the diagnostic code following the hyphen is the diagnostic code by which the disability is evaluated by analogy. Here, the Veteran's disability has been properly rated based on limitation of motion of the affected part. 38 C.F.R. § 4.71a, DC 5024. However, the Board will consider all potentially relevant DCs in assessing the merits of this appeal. Thus, a higher rating or the assignment of a separate, compensable service-connected disability may be warranted upon evidence of the following: Flexion of the knee limited to 30 degrees (20 percent under DC 5260); Extension of the knee limited to 10 degrees (10 percent under DC 5261). The Schedule provides that the normal range of motion of the knee is from zero degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. Other DCs pertaining to the knee include DC 5256 (ankylosis), DC 5257 (subluxation or instability), DC 5258 (dislocation of semilunar cartilage), DC 5259 (removal of the semilunar cartilage), DC 5262 (impairment of tibia and fibula), and DC 5263 (genu recurvatum). These disorders are not shown in the record for the period on appeal, such that application of these DCs is not warranted. See, e.g., VA examinations dated November 2005, January 2008, and November 2016 (showing a history of shin splints but no nonunion, malunion, other knee, or related ankle disability relevant to DC 5262). Upon consideration of the evidence, this appeal is hereby denied. The Veteran underwent multiple VA examinations during the period on appeal. In November 2005, he reported chronic and varying knee pain which appeared to worsen with activity. Swelling was denied, and the Veteran did not report specific pain when using stairs, although he did not often do so. An assistive brace was used while jogging. On examination, tenderness, swelling, and effusion were denied. The Veteran's patella was not displaced. Active flexion was to 140 degrees and passive flexion to 145 degrees. Further, active extension was to zero degrees, and passive range of motion to -5 degrees. The Veteran did not report pain or discomfort during examination, and repetitive motion remained the same, both actively and passively. Instability was also denied. The examiner indicated that he could not "clearly delineate" the DeLuca provisions with any medical certainty; although limitations may be present during acute exacerbations, it was not possible to assess the extent of such, which depends on severity of pain, mood, and the presence of swelling. DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). The Veteran next underwent VA examination in January 2008. Although this examination primarily assessed the left knee, certain reporting was offered as to the right knee, as well. Specifically, the Veteran reported chronic knee pain requiring multiple medications; however, the use of an assistive device was denied. Range of motion testing was conducted without reports of pain or discomfort. Flexion was to 140 degrees both actively and passively, with no instability seen. Extension was zero degrees both actively and passively. Further VA examination was conducted in November 2016. At that time, the Veteran described constant right knee pain which worsened when standing up. Flare-ups productive of increased pain were also reported with weather changes or prolonged sitting. Initial range of motion testing showed flexion to 120 degrees and extension to zero degrees. Pain was reported on flexion but did not result in functional impairment. There was no evidence of pain with weight-bearing, and range of motion did not in itself contribute to functional loss. The Veteran was able to perform repetitive use testing without additional loss of motion, and functional loss due to pain, fatigue, weakness, lack of endurance, and incoordination was unreported. However, pain and fatigue were said to significantly limit functional ability over a period of time, with estimated flexion from zero to 60 degrees and extension from 60 to zero degrees. The same results were reported during flare-ups. The Veteran's primary symptoms were reported as loss of motion, disturbance of locomotion, and interference with sitting. However, the Veteran did not require an assistive device at that time. Additional symptoms, conditions, or surgeries were denied or unreported. Given his disability, the examiner estimated that the Veteran would experience functional impairment with respect to prolonged sitting, walking, or running. The remaining evidence, including VA treatment records and the Veteran's lay testimony, depicts a similar disability picture as that assessed by his VA examiners. See, e.g., December 2006 Notice of Disagreement (NOD). Collectively, this evidence speaks to a history of chronic right knee pain as treated with medications and the intermittent use of a brace. Importantly, this evidence contains no test results which show a more severe limitation of motion than that recorded during the above examinations. See VA treatment records dated August 2005 (documenting flexion to 140 degrees actively and 145 degrees passively, and extension to zero degrees actively and -5 degrees passively, without pain or additional limitations with repetitive use); February 2017 (documenting range of motion to 105 degrees). Upon the above, the appeal seeking an initial rating greater than 10 percent for right knee limitation of flexion from April 9, 2005, to June 27, 2019, is denied. Critically, the Veteran did not demonstrate such limitation of motion as to warrant a higher rating under DC 5260 or a separate service-connected disability under DC 5261 at any time. Rather, he demonstrated initial range of motion far greater than that enunciated in the criteria for a higher or separate rating; even with the presence of pain, fatigue, or flare-ups, the Veteran's flexion and extension were not so limited as to grant the appeal on this basis. Further, there is no evidence that these symptoms resulted in a disability picture commensurate with the criteria for a higher or separate rating, as the Veteran showed minimal functional impairment due to his disability during the period on appeal. DeLuca, 8 Vet. App. at 206-07. Thus, the nature and severity of the Veteran's symptoms are fully contemplated in the current 10 percent rating. In offering this finding, the Board has contemplated a March 2018 Joint Motion for Partial Remand wherein the parties challenged the former noncompensable initial rating because it did not account for the Veteran's pain under 38 C.F.R. § 4.59. See also March 2018 Order (granting the Motion and vacating the Board's prior denial of a compensable initial rating). However, an August 2019 rating decision awarded a 10 percent initial rating on this specific basis, and the Board finds no cause to award a higher rating due to pain alone. Although the Veteran describes chronic and fluctuating right knee pain, this symptom does not appear to limit his range of motion or functional capacity to any significant degree. Rather, he is marginally impaired in his capacity to exercise, walk, or sit for prolonged periods of time, without additional incapacitation noted. Instead, the Veteran appears largely capable of performing the tasks of daily living without assistance despite his knee pain. For the preceding reasons, the appeal is hereby denied. From June 27, 2019, to December 24, 2019 (limitation of flexion and extension) For the above period, the Veteran is in receipt of a noncompensable rating for his limitation of flexion under DC 5024-5260, and a 10 percent initial rating for his limitation of extension under DC 5024-5261. Again, the Board will consider all potentially relevant DCs in assessing the merits of these appeals. Normal range of motion remains as identified in the section above. Thus, to warrant higher ratings in this case, there must be evidence of the following: Flexion of the knee limited to 45 degrees (10 percent under DC 5260); Extension of the knee limited to 15 degrees (20 percent under DC 5261). The evidence of record does not show that DCs 5256, 5257, 5258, 5259, 5262, or DC 5263 are for application to these appeals. See, e.g., June 2019 VA opinion. Rather, a VA addendum opinion was obtained in June 2019. At that time, the examiner reported that pain began at 90 degrees in the right knee. With flare-ups, pain would impede the Veteran from flexing and extending the knee. Range of motion was from 10 to 60 degrees. Anything below or above that caused "excruciating pain." Related functional loss would include the inability to squat or carry heavy objects. The Veteran was also unable to sit with his right foot flat on the ground due to decreased range of motion. Increased pain, frequency of flare-ups, and reduced range of motion were reported. There is limited additional evidence spanning this brief appeal period, including VA treatment records and two memorandums from the Veteran's representative. While this evidence corroborates the Veteran's reports of pain, specific range of motion results are not found within. Upon the above, the evidence simply fails to show such limitation of flexion or extension as to warrant higher ratings during the period on appeal. Rather, the Veteran's limitation of motion is properly compensated in the awards as currently assigned, which contemplate the functional impact caused by pain and flare-ups. DeLuca, 8 Vet. App. at 206-07. Notably, objective testing does not show that the Veteran demonstrated flexion to 45 degrees or extension to 15 degrees at any time. Thus, the nature and severity of the Veteran's symptoms are fully considered in the criteria for the ratings as currently assigned, and the appeals are hereby denied. From December 24, 2019, to the Present (limitation of extension) Finally, the Veteran is currently in receipt of a 50 percent rating for his right knee limitation of extension under DC 5003-5261 from December 24, 2019, to the present. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Kuzma, 341 F. 3d 1327. However, the criteria for DC 5261 were not amended in February 2021. Thus, the Veteran is currently in receipt of the maximum award possible per the applicable rating criteria, and his appeal may only be granted if entitlement to a higher rating is established on an extraschedular basis. The evidence does not support such a finding in this case. Rather, the collective evidence establishes that the full scope of the Veteran's reported symptomatologynamely, chronic pain and limited extensionis contemplated by the applicable rating criteria. Moreover, the evidence does not show that the Veteran's right knee limitation of extension caused marked interference with his employability or necessitated periodic hospitalizations during the period on appeal; at worst, a December 2019 examiner concluded that the Veteran's disability would limit excessive, repetitive, or prolonged activity of his knee. But see June 2021 VA examination (reporting no impact to the Veteran's ability to perform occupational tasks due to his disability). Importantly, the Veteran has not offered any specific argument as to why an extraschedular evaluation may be warranted in this case. Accordingly, the evidence does not reflect that the Veteran's right knee limitation of extension is so exceptional in nature as to not be fully contemplated by the rating schedule. Rather, there are no unusual clinical pictures presented, nor is there any other factor which takes the disability outside the usual rating criteria. Thus, even with the favorable resolution of doubt, the Veteran has not carried the burden of demonstrating that his disability is of such a nature that referral for extraschedular evaluation is warranted. 38 C.F.R. § 3.321(b)(1); Thun v. Peake, 22 Vet. App. 111. However, the Board must also consider whether a separate award of service connection is warranted for the period on appeal. Here, the collective evidence does not establish that DCs 5256, 5257, 5258, 5259, 5262, or DC 5263 are applicable to this appeal, whether under the old or new criteria. See, e.g., VA examinations dated December 2019 and June 2021 (reporting shin splints requiring treatment for less than 12 consecutive months, without malunion or nonunion). Accordingly, a separate and compensable award of service connection may only be granted with evidence of the following: Flexion of the knee limited to 45 degrees (10 percent under DC 5260). Once again, normal range of motion has previously been identified herein. The Veteran underwent two examinations during the period on appeal. In December 2019, he reported chronic knee pain. Initial flexion was recorded from 50 to 98 degrees, which was productive of functional impairment including decreased tolerance of excessive, repetitive, or prolonged activity. Pain was noted on flexion and with weight-bearing. Following repetitive use, repetitive use over time, and during flare-ups, flexion was noted from 38 to 97 degrees, with pain. Flare-ups were reported as once per week, with a duration of two days. Additional symptoms of weakness, fatigability, or incoordination were not recorded. DeLuca, 8 Vet. App. at 206-07. Due to his disability, the Veteran reported the regular use of a brace and the occasional use of crutches. The Veteran most recently underwent VA examination in June 2021, following a Board remand requesting clarification as to the prior examiner's range of motion findings. See October 2020 Board decision. Again, the Veteran reported chronic pain and flare-ups which limited prolonged sitting, standing, running, jumping, or high-impact activities. He also indicated that the knee would swell following activity. Initial flexion was observed to 130 degrees in both active and passive motion. Evidence of pain was denied. Repetitive use testing did not show additional limitation of flexion. However, fatigability on repetitive use over time was estimated to limit flexion to 125 degrees, and 120 degrees during flare-ups. No additional symptoms were reported, including weakness, fatigability, or incoordination. DeLuca, 8 Vet. App. at 206-07. The regular use of a brace was noted at that time. As it relates to the December 2019 findings, the June 2021 examiner noted that the range of motion documented "are estimated numbers and not necessarily indicative of the functional capacity of the knee. Reviewing this particular [examination], it is unclear how the estimated measurements were determined. Usually the estimated measurements are documented/rounded to the nearest 5 degrees." VA treatment records spanning the period on appeal document the Veteran's chronic pain with limited motion, but do not contain additional range of motion results for consideration. In assessing whether a separate award of service connection is warranted for limitation of flexion during the period on appeal, the Board assigns greater probative value to the June 2021 examination, which offers range of motion results consistent with general medical standards upon contemporaneous evaluation of the Veteran. In so finding, it is apparent that the Veteran did not demonstrate such limitation of flexion that the appeal may be granted on this basis in accordance with DC 5260. Even if the Board were to accept the December 2019 findings as probative in this case, the Veteran still demonstrated flexion to 59 degrees at that timeoutside the criteria for a compensable award under DC 5260. In sum, the Veteran is already in receipt of the maximum award possible for his limitation of extension under DC 5261, and an extraschedular evaluation is not supported by the record. The evidence also weighs against the finding of such limitation of flexion as to grant a separate award of service connection on this basis under DC 5260. The appeal is hereby denied. With respect to all matters on appeal, the Board has considered the Veteran's prolonged position that higher ratings are warranted. While this argument may be offered in good faith, it is an insufficient basis upon which to grant these appeals, as the Veteran is not competent to identify a specific level of disability according to the applicable DCs, and his contentions are otherwise unsupported by objective medical evidence. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469 (1994). Instead, greater probative value has been offered to the medical evidence in assessing the severity of the Veteran's disabilities during the periods on appeal, as the examiners possess the requisite expertise to render opinions regarding the degree of impairment caused by the Veteran's disabilities and had sufficient facts and data on which to base their conclusions. In this respect, the Board finds that the medical evidence supports the determinations offered herein. The Bord has also considered the basis of its October 2020 decision, at which time the appeal was remanded "to obtain a retrospective medical opinion on any additional functional loss due to flare-ups since April 2005." See Chotta v. Peake, 22 Vet. App. 80, 85 (2008); Correia v. McDonald, 28 Vet. App. 158 (2016); Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). In June 2021, the VA examiner noted that during all prior evaluations, the Veteran reported right knee pain with flares, associated pain, and relative lack of endurance for activities requiring repetitive use, including walking, jogging, and running. Insofar as range of motion results were provided with respect to repetitive use and flare-ups, these are "all speculative numbers . . . based on the [V]eteran's statements about use and flares." There is a high degree of variability in these estimations, and no "possible way to compare them from . . . evaluation to evaluation." Based on these results and the Veteran's own testimony, it was found that he showed "mild to moderate functional loss" of the right knee. Further analysis was provided in July 2021, at which time the examiner maintained that it was "impossible to provide an estimated [range of motion] of functional loss with regards to one joint from [a] time span of 2005 to present," even based on the former evaluations provided. Rather, there "are so many variables from patient to patient, day to day, year to year and not to mention other medical conditions which impact knee movement and functional use." Thus, to provide an estimated measurement of this sort is "asking to reduce the veracity of this report and the [V]eteran's true medical condition." Unless he was evaluated by the same provider yearly, it was not possible to estimate functional loss due to flare-ups since April 2005. This request was simply "not within the scope of [the] provider." . . ." Thus, the Board concludes that the requested opinion cannot be rendered due to the limitations of knowledge in the medical community at large. See Jones v. Shinseki, 23 Vet. App. 382 (2010). Instead, the Board accepts the prior VA examinations as the most competent and credible evidence of the Veteran's disability pictures during the period on appeal, and offers adjudications consistent with the findings therein. Of final note, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND Although the Board sincerely regrets the additional delay this will cause, further development is necessary prior to the adjudication of the TDIU appeal. Historically, the Veteran submitted an informal claim for a TDIU in February 2015, when the current increased rating appeal was pending. 38 C.F.R. § 3.155(a). At that time, he requested that VA send him the necessary forms for completion; it does not appear that his request was fulfilled. 38 C.F.R. § 3.159. Accordingly, the claims file does not contain sufficient evidence upon which to adjudicate this appeal, and further development is required. (Continued on next page) The matter is REMANDED for the following action: Provide the Veteran with VA Forms 21-8940 and 21-4192 and request their completion. Allow a reasonable amount of time for response, and if a response is received, conduct all development indicated by such response, to include the provision of VA Form 21-4192 to the Veteran's last identified employers. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Kovarovic, 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.