Citation Nr: 21064114 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 19-05 660 DATE: October 19, 2021 ORDER A rating higher than 10 percent for left knee meniscus tear with degenerative arthritis is denied. FINDING OF FACT The Veteran's left knee disability has manifested as painful motion without compensable limitation of range of motion (ROM). CONCLUSION OF LAW The criteria for entitlement to a rating higher than 10 percent for a left knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5260-5003. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from April 1971 to August 1971. This matter was previously before the Board of Veterans' Appeals (Board) in March 2021 when the issue of a rating higher than 10 percent for left knee meniscus tear was remanded for a new VA examination to determine the degree of functional loss due to flare-ups. In accordance with the March 2021 Board remand, the Veteran was afforded a new VA examination in July 2021. In the September 2021 post-remand brief, the Veteran's representative highlighted the portion of the March 2021 remand directives, which ordered a new VA examination by "an appropriate clinician." The representative stated that the July 2021 VA examiner is a general practitioner, "without any indicated competence or expertise in the relevant specialty of orthopedic medicine." The representative provided no specific contention regarding any deficiencies with the examination, or any specific contention as to whether the examiner is qualified to evaluate the severity of the Veteran's left knee disability. Instead, the representative merely stated that there is no indication that the July 2021 VA examiner has "competence or expertise in the relevant specialty of orthopedic medicine." Regarding any assertion that the July 2021 VA examiner was not qualified, any such assertion is without support. See Parks v. Shinseki, 716 F.3d 581, 585 (Fed. Cir. 2013) (stating that "VA benefits from a presumption that it has properly chosen a person who is qualified to provide a medical opinion in a particular case"). There is no indication, and no argument has been made, that the July 2021 VA examiner is not qualified to evaluate the severity of the Veteran's left knee disability. The Board will therefor adjudicate the claim. Increased Ratings Disability evaluations are determined by comparing the Veteran's current symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. DC 5003 provides ratings for degenerative arthritis. Degenerative arthritis, established by X-ray, will be rated on the basis of limitation of motion under the appropriate diagnostic criteria for the specific joint or joints involved. When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, 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. In the absence of limitation of motion, a 10 percent rating is warranted for X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups; a 20 percent rating is warranted if there are also occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, DC 5003. DC 5260 provides ratings based on limitation of flexion of the leg. Limitation of flexion to 60 degrees warrants a noncompensable rating. Limitation of flexion to 45 degrees warrants a 10 percent rating. Flexion limited to 30 degrees warrants a 20 percent rating. 38 C.F.R. § 4.71a, DC 5260. Pursuant to 38 C.F.R. § 4.59, painful motion should be considered limitation of motion, even though a range of motion may be possible beyond the point when pain sets in. See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995). When 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. See Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that the Board had failed to address painful motion and the applicability of 38 C.F.R. § 4.59 to an initial disability rating for residuals of a left shoulder injury with surgical repair). If the Veteran's shoulder disabilities do not warrant a compensable rating under the appropriate diagnostic codes based on limitation of motion, the minimum compensable rating (10 percent) may be assigned where there is satisfactory evidence of painful motion. 38 C.F.R. § 4.59; Burton, 25 Vet. App. at 1. If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. A Veteran's entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). A rating higher than 10 percent for left knee meniscus tear with degenerative arthritis is denied. A rating higher than 10 percent for left knee meniscus tear with degenerative arthritis is not warranted, and the claim will be denied. During the July 2014 VA knee examination, the Veteran's ROM measurements were recorded as flexion to 140 degrees and extension to 0 degrees. The examiner noted no fatigability, incoordination, recurrent subluxation, lateral instability, or recurrent effusion of the knee. During the March 2015 VA knee examination, the Veteran's ROM measurements were recorded as flexion to 90 degrees and extension to 0 degrees. The examiner noted no recurrent subluxation, lateral instability, or recurrent effusion of the knee. During the July 2018 VA knee examination, the Veteran's ROM measurements were recorded as flexion to 110 degrees and extension to 0 degrees. The examiner noted no recurrent subluxation, lateral instability, or recurrent effusion of the knee. As discussed in the March 2021 Board remand, the Veteran had VA examinations in July 2014, March 2015, and July 2018 when he reported that he has flare-ups. However, the VA examiners failed to provide adequate rationales explaining why they could not provide a determination as to additional ROM limitation during flare-ups without resorting to speculation consistent with Sharp v. Shulkin, 29 Vet. App. 26 (2017). Pursuant to the March 2021 Board remand, the Veteran was afforded a VA examination in July 2021. The examiner noted a diagnosis of left knee degenerative arthritis, other than post-traumatic, and left knee medical meniscus tear status post meniscectomy with distal left thigh osteochondroma status post excision with residual scar. The Veteran reported that he has daily pain that is sharp and sometimes severe, with a duration of up to an entire day per episode. He reported increased pain when sleeping. He reported difficulty standing up and walking straight, and that three to four times monthly his knee will swell. The Veteran endorsed almost daily flare-ups that last up to all day. He characterized his pain as sharp and severe, without a known cause. During a flare-up, the Veteran reported that he is unable to walk long distances and has difficulty going up and down stairs. The Veteran reported having functional loss or impairment in that his condition limits his ability to walk long distances, causes difficulty sitting and standing, and causes difficulty climbing stairs. Specifically, he reported that when climbing stairs, he must hold onto the wall or a rail. He denied a history of instability or recurrent subluxation of the knee. A history of frequent effusion of the knee was also denied. Initial ROM measurements of the knee during active ROM were recorded as flexion to 110 degrees and extension to 0 degrees. Passive ROM measurements were the same as active ROM. Pain was exhibited on flexion and extension on both active and passive ROM. The examiner noted evidence of pain on weight-bearing, active motion, and passive motion, which causes a functional loss. The examiner noted the presence of antalgic gait and decreased flexion on active and passive motion. The examiner observed that the Veteran has difficulty going from a sitting to a standing position. The examiner noted evidence of crepitus and objective evidence of mild to severe pain to the medial and lateral joint line and anterior knee, consistent with arthritis. ROM measurements on observed repetitive use were recorded as flexion to 100 degrees and extension to 0 degrees. Pain was noted to cause the additional functional loss. Repeated use over time testing was not conducted. However, the examiner estimated no additional limitation of motion as compared to ROM measurements on observed repetitive use. The examination was not conducted during a flare-up. However, the examiner estimated no additional limitation of motion as compared to ROM measurements on observed repetitive use. The examiner noted no additional contributing factors of the disability. Muscle atrophy, ankylosis, and joint instability were denied. The examiner noted that the Veteran does not currently have and has never been diagnosed with recurrent patellar dislocation, shin splints, stress fractures, or any other tibial or fibular impairment. The examiner noted a left knee meniscal tear with frequent episodes of daily, at times severe, joint pain. The examiner noted that the Veteran had a meniscectomy in 1972 with residuals of pain, reduced ROM on active and passive motion, infrequent swelling, and scaring. Arthritis was noted as a long-term complication. The use of a knee brace was endorsed. The examiner noted that a 2014 x-ray confirms the presence of degenerative arthritis. In terms of functional limitation, the examiner noted that the condition limits prolonged standing and walking. The examiner stated that the Veteran's degenerative arthritis is a progression of his meniscal tear. Throughout the period on appeal, the Veteran's left knee disability has manifested as no more than ROM measurements recorded as, at worst, flexion to 90 degrees and extension to 0 degrees, even considering estimated additional limitation of ROM during flare-ups, and there is no evidence of recurrent subluxation, lateral instability, or recurrent effusion of the knee. The evidence shows that the Veteran's left knee disability is manifested with pain and limitation of motion but does not result in limitation of flexion of the left knee to 30 degrees to warrant a 20 percent rating. At worst, the Veteran's left knee flexion was limited to 90 degrees. The Board has considered the effects of the Veteran's symptoms, including pain and functional loss; however, the preponderance of the evidence is against a finding of limitation of flexion of the left knee to 30 degrees, which is the criteria needed for a 20 percent rating. Examination results throughout the appeal period show that the Veteran had normal muscle strength and joint stability testing results in his left knee and had flexion between 90 and 140 degrees. Considering the evidence of record indicating the Veteran's regular complaints of pain and other findings of functional loss, the evidence does not reflect that such pain and functional limitations resulted in limitation of flexion of the left knee to 30 degrees, which would be required for a finding that the Veteran was entitled to a 20 percent disability rating. Thus, a higher rating under the provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59 criteria is not approximated in the Veteran's disability picture for this appeal period. The preponderance of the evidence is against the claim for a rating higher than 10 percent under DC 5003 for painful motion without compensable limitation of ROM. The competent and probative evidence of painful motion without compensable limitation of ROM is contemplated by the currently-assigned 10 percent rating, but not higher. A higher rating is not warranted under DC 5257 since the evidence of record does not indicate left knee instability. Although the record indicates a meniscal tear and prior meniscectomy, the evidence of record does not show any recurrent effusions. Thus, a rating under DC 5258 is not warranted. Ratings under DC 5256 and DC 5262 are not warranted as the Veteran does not have ankylosis or impairment of the tibia and fibula. Ratings under DC 5260 and DC 5261 are not warranted as the Veteran's ROM is not limited to a flexion of 45 degrees or less, or extension of 10 degrees or more. A rating under DC 5263 is also not warranted as there is no evidence of weakness and insecurity in weight-bearing. Lastly, the preponderance of the evidence is against a finding that the Veteran's disability picture due to functional loss/limitations or flare-ups with limitation of motion is more nearly approximated by a higher rating. Deluca, 8 Vet. App. at 204-07. (CONTINUED ON NEXT PAGE) In conclusion, the evidence does not show that a disability rating higher than 10 percent for the Veteran's left knee disability is warranted. As the preponderance of the evidence is against the claim for a higher rating, the benefit of the doubt doctrine is not for application, and the Veteran's claim for an increased rating is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Timothy T. Emmart The Board's decision is only binding on this case. This action is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.