Citation Nr: 21064718 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 17-08 388 DATE: October 21, 2021 ORDER An initial rating in excess of 10 percent for a right knee disability is denied. FINDING OF FACT The Veteran's right knee disability is manifest by pain, weakness, and range of motion of 0 degrees extension to 125 degrees flexion, at worse. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent for a right knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5003, 5260. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1964 to April 1965. The Veteran testified before a Veterans Law Judge (VLJ) in July 2019. A transcript of the hearing is of record. The VLJ who presided over that hearing is no longer with the Board. Accordingly, the Veteran was contacted in September 2021 about his right to have an additional hearing. As he did not respond within the time limits set forth, it is assumed that he does not wish a second hearing. The Veteran's claim for an increased rating for his right knee disability was remanded by the Board in November 2019 and March 2021 for further development of the evidence. It has now been returned for adjudication. Increased Rating The Veteran contends that his right knee disorder is more disabling than currently evaluated. During the hearing on appeal, the Veteran testified that he had instability and weakness of the knee that had worsened as he aged. At that time, his uncle also testified regarding the difficulties caused by the Veteran's right knee disorder, including difficulty climbing stairs or a ladder and even walking on the beach. The Veteran reported that he had fallen as a result of his knee disorder. Service connection for degenerative disease of the right knee was granted by rating decision dated in September 2013. A 10 percent rating was initially awarded under the provisions of Diagnostic Codes 5003, for arthritis, and 5260 for limitation of flexion of the knee. The Veteran appealed the initial evaluation. The assigned Diagnostic Codes suggest that his disability is rated based on compensable limitation of flexion. 38 C.F.R. § 4.71a. A review of the evidence reflects that the right knee disability has manifested as osteoarthritis and been rated based on painful noncompensable limitation of motion, and that the disability has not had compensable limitation of motion at the time of the initial rating. Therefore, the Diagnostic Code assigned included Diagnostic Code 5003. An examination was conducted by VA in July 2013. At that time, the diagnoses were degenerative disease of the right knee and possible torn meniscus of the right knee. The Veteran stated that he had pain of the knee and used a cane to ambulate. The Veteran was able to extend to 0 degrees, but his range of flexion was not listed on the examination report. In an July 2013 addendum, flexion was listed as being to 140 degrees. No limitation of extension was noted and there was no objective evidence of painful motion. The Veteran was able to perform repetitive use testing without additional limitation of motion. The initial examination report did note that the Veteran had functional loss of the right knee after repetitive use described as pain on movement. Tenderness to palpation of the joint was noted. Strength of the right knee was normal. Joint stability testing was normal with no instability found. There was no patellar subluxation or dislocation. It was noted that the Veteran had had a right meniscal tear with frequent episodes of locking and joint pain. He had not had a meniscectomy. He utilized a cane on a regular basis for right knee and back pain. Imaging studies showed degenerative arthritis of the right knee. This was further described as mild. Functional impact was described as an inability to perform job functions that required pivoting, shifting, turning, consistent kneeling, or squatting. An examination was conducted by VA in September 2014. At that time, the diagnosis was degenerative joint disease of the right knee. Range of motion was from 0 degrees extension to 90 degrees flexion. The Veteran was able to perform repetitive use testing without additional limitation of motion. Functional loss after repetitive use was reported to be less movement than normal, pain on movement, and swelling. There was tenderness to palpation of the knee. Muscle strength testing was normal. Joint stability testing was normal. There was no patellar subluxation or dislocation. The Veteran did describe a generalized tenderness of the right knee. He utilized a brace, cane, and walker on a constant basis. No functional impairment of the extremity that would effectively cause function to remain that would be equally well served by an amputation with prosthesis was noted. Imaging studies showed degenerative arthritis. Functional impact was described as the Veteran being unable to kneel, squat, stand, or walk for more than a few minutes due to his right knee. The examiner was unable to report anything regarding flare-ups of knee impairment without result to mere speculation. In a February 2017 report of examination, the Veteran's private physician noted that the Veteran had complaints of right knee pain, limitation of motion, painful motion, and weakness of the right knee. This affected his daily life in walking, bending, stooping, and kneeling. Examination showed a thirty degree flexion contracture with range of motion from 30 degrees flexion to 50 degrees flexion. There was diffuse anterior and anterior medial swelling. There was medial palpable osteophytes and tenderness with moderate joint effusion. The examiner noted that the Veteran had a fixed flexion joint contracture with chronic swelling and medial osteophyte formation. He went on to relate the Veteran's current back, right hip, and right ankle disorders to his right knee injury residuals. An examination was conducted by VA in November 2020. The diagnosis was right knee pain. It was commented that the Veteran complained of pain with weight bearing, but had no objective X-ray abnormality. His answers to questions were reportedly inconsistent and subjective. A history of knee pain since 1964 was described. The Veteran stated that flare-ups occurred three to four times per day and were described as moderate, lasting several hours. They were precipitated by too much walking and alleviated by ice, heat, and pain medications. He reported having functional loss as having walking or standing limited to 15 minutes or 20 feet. Range of motion was from 0 degrees extension to 125 degrees flexion. This resulted in functional loss as noted above. Pain was noted at rest or non-movement. There was no localized tenderness or pain on palpation of the joint or associated soft tissue. There was no crepitus. The Veteran declined to perform repetitive use testing because he stated that it increased pain in the knee. He was not examined immediately after repetitive use over time with the examination noted to be medically inconsistent with the Veteran's statements describing functional loss with repetitive use over time. There was estimated decrease in range of motion, but the claimed pain with any movement made the examiner concerned as to the accuracy of estimates of functional loss. Functional ability was limited due to repeated use over time. Factors causing functional loss included pain and weakness. Range of motion was described as from 0 degrees extension to 150 degrees flexion. Functional loss was limited due to flare-ups caused by pain, fatigue, and weakness. Additional factors contributing to disability included disturbance of locomotion, interference with sitting and with standing. Strength testing showed reduction to 4/5 with a reduction not considered to be strictly due to the right knee disability. There was no muscle atrophy and no ankylosis. In terms of joint stability, there was no history of recurrent subluxation, lateral instability, or recurrent effusion. Joint stability testing was indicated, but the examiner was not able to perform testing due to complaints of pain. There was no evidence of recurrent patellar dislocation or a meniscus condition. The Veteran utilized a brace, cane, walking, and right shoe insert on a constant basis. Imaging studies were not performed. It was remarked that there was objective evidence of pain on passive range of motion testing, and on non-weight bearing testing of the right knee. The examiner further remarked that, regarding repeated use over time there was estimated decrease in range of motion, but the claimed pain with any movement concerned the examiner as to the accuracy of the estimate. A similar remark was made regarding flare-ups. In an June 2021 addendum, the November 2020 VA examiner was asked to reconcile the statement that range of motion was listed as from 0 to 125 degrees while estimated range of motion would be from 0 to 150 degrees following repeated use over time or with flare ups. The examiner stated that any discrepancy resulted from the claimant being unable to reliably determine demonstrated range of motion loss during a flare up or after repetitive use. The examiner noted that the medical records did not sufficiently identify previous ranges of motion during flare ups or after repetitive motion and general knowledge of claimants' joint condition was insufficient to reasonably estimate the range of motion for each plane of motion as there was a great variability between claimants who had the same conditions. In response to the question regarding whether pain, weakness, fatigability, or incoordination significantly limited the Veteran's functional ability during flareups or when the joint is used repeatedly over time the examiner responded, "No." As noted above, the Veteran's right knee disability is rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5003, for arthritis and 5260, for limitation of flexion of the leg. Under Diagnostic Code 5260, a noncompensable rating is warranted for flexion limited to 60 degrees. 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 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. The Board also initially notes that, effective February 7, 2021, VA amended the rating criteria for disabilities of the knee and leg; however, Diagnostic Code 5260 was unchanged. While the new regulations contemplating knee impairment with recurrent subluxation or lateral instability under Diagnostic Code 5257, were amended by the new regulations, as will be described, the Veteran has no evidence of instability, recurrent subluxation, or instability of the patella. Similarly, changes to Diagnostic Code 5262 are not applicable in this case as there is no evidence of impairment of the tibia or fibula. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriated diagnostic codes for the specific joint or joints involved. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, an evaluation of 10 percent is applied for each major joint or group of minor joints affected by limitation of motion. These 10 percent evaluations are combined, not added, under diagnostic code 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 evaluation will be assigned where there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups. A 20 percent evaluation will be assigned where there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and there are occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Code 5003. 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 U.S. Court of Appeals for Veterans Claims (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." The spine has no opposite 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. After reviewing the evidence, as outlined above, the Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for the Veteran's right knee disability. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain and weakness, but even considering these lay statements, the evidence does not show that his right knee disability has resulted in limitation of motion more nearly approximating flexion limited to 30 degrees. This is particularly true in light of the comments made by the examiner in November 2020 regarding the Veteran's inconsistent statements. While the Veteran's private physician reported a range of motion between 30 degrees and 50 degrees in 2017, there was no diagnosis of ankylosis of the right knee and consistently there has been no ankylosis found on VA examination. Additionally, the private physician's findings are inconsistent with those reported during the September 2014 and November 2020 VA examinations, which show that the Veteran was demonstrated to have 90 degrees and 125 degrees of flexion, respectively. It is also not shown through the record that the Veteran's right knee disability may have worsened in 2017, such that a staged rating would be warranted. In this regard, the contemporaneous VA treatment records show frequent treatment for chronic pain and swelling in the right knee, but do not suggest that the Veteran demonstrated any worsened ranges of motion during that timeframe. Finally, it is emphasized that these finding are supported by the detailed clinical findings documented in the November 2020 VA examination report, which show the Veteran's flexion was to 125 degrees, which flexion is better than it was at the time of the September 2014 VA examination. 38 C.F.R. § 4.71. 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). In this regard, the examinations have failed to document other disability of the knee, limitation of extension, impairment of the sublunar cartilage, impairment of the tibia or fibula or genu recurvatum. While the Veteran did testify that he had recurrent locking and had fallen, examinations, including the 2017 private examination report, have consistently failed to describe instability, documented instability, or repeated subluxation. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for a rating in excess of 10 percent for a right knee disability. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Joseph P. Gervasio 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.