Citation Nr: 21066461 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 16-28 737 DATE: November 1, 2021 ORDER Prior to December 18, 2019, entitlement to an initial rating higher than 10 percent for right knee tendonitis is denied. From December 18, 2019, entitlement to a rating higher than 30 percent for right knee tendonitis is denied. From July 22, 2021, entitlement to an initial compensable rating for limitation of flexion due to right knee tendonitis is denied. FINDINGS OF FACT 1. Prior to December 18, 2019, the Veteran's right knee disability was manifested by painful noncompensable limitation of motion; there is no evidence of flexion limited to 30 degrees or less, extension limited to 10 degrees or more, ankylosis, recurrent subluxation or lateral instability, impairment of the tibia and fibula, genu recurvatum, dislocated semilunar cartilage, or removal of semilunar cartilage. 2. From December 18, 2019, the Veteran's right knee disability was manifested by extension limited to 20 degrees; there is no evidence of flexion limited to 45 degrees or less, extension limited to 30 degrees or more, ankylosis, recurrent subluxation or lateral instability, impairment of the tibia and fibula, genu recurvatum, dislocated semilunar cartilage, or removal of semilunar cartilage. 3. From July 22, 2021, the Veteran's right knee tendonitis is not manifested by limitation of flexion to 45 degrees or less. CONCLUSIONS OF LAW 1. Prior to December 18, 2019, the criteria for an initial rating in excess of 10 percent for the Veteran's 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, 5010, 5256-5263. 2. From December 18, 2019, the criteria for a rating in excess of 30 percent for the Veteran's 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, 5010, 5256-5263. 3. From July 21, 2021, the criteria for an initial compensable rating for limitation of flexion due to right knee tendonitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1986 to August 1987 and August 1994 to August 2014. The Veteran had service in Southwest Asia from September 2006 to September 2007. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a March 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In a March 2017 rating decision, the Veteran's rating was increased to 10 percent disabling, effective February 2, 2017. The Veteran requested a hearing before the Board. The requested hearing was conducted in April 2019 by the undersigned Veterans Law Judge. A transcript is associated with the claims file. In an October 2019 decision, among other issues, the Board granted entitlement to an initial rating of 30 percent for migraines and remanded entitlement to service connection for a bilateral hand disorder and entitlement to an increased rating for the right knee. The Veteran appealed the October 2019 Board decision to the Court of Appeals for Veterans Claims (CAVC). In an August 2020 Order, the Court granted a Joint Motion for Partial Remand (JMR), which addressed only the issue of entitlement to an initial rating higher than 30 percent for migraines and did not disturb the remaining issues adjudicated in the October 2019 Board decision. In an August 2020 rating decision, the RO granted entitlement to service connection for a bilateral hand disability. As such, this issue is no longer before the Board. In the August 2020 rating decision, the RO also granted an earlier effective date for the right knee 10 percent rating, to September 1, 2014, and assigned a 30 percent rating, from December 18, 2019. In March 2021, the Board denied entitlement to an increased rating for migraines and remanded this claim for additional development. In a July 2021 rating decision, the RO granted a separate noncompensable rating based on limitation of flexion of the right knee, effective July 22, 2021. The Board notes that in Rice v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that a claim of entitlement to a total disability rating based on individual unemployability (TDIU) may be considered part and parcel of an increased rating claim. See Rice v. Shinseki,22 Vet. App. 447(2009). However, the Veteran has not submitted any evidence of unemployability and as recently as August 2020, evidence indicates she is currently employed. See August 2020 VA treatment note. Accordingly, the Board finds that Rice is not applicable. Additionally, the Veteran is in receipt of a combined 100 percent rating for her service-connected disabilities. Increased Rating 1. Entitlement to an initial rating higher than 10 percent for right knee tendonitis, prior to December 18, 2019, and to a rating higher than 30 percent, thereafter. 2. Entitlement to an initial compensable rating for limitation of flexion associated with right knee tendonitis. The Veteran seeks entitlement to an initial increased rating for her right knee disability. Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when the question for consideration is entitlement to a higher initial rating assigned following the grant of service connection, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found), is required. See Fenderson, 12 Vet. App. at 126. The determination of whether an increased disability rating is warranted is to be based on a review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. The Board has considered the entire record, including the Veteran's VA clinical records and private treatment records. These show complaints and treatment but will not be referenced in detail. The Federal Circuit has held that the Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). Therefore, the Board will discuss the evidence pertinent to the rating criteria and the current disability. Service connection for right knee tendonitis was granted in a March 2015 rating decision, at which time a noncompensable rating was assigned, effective September 2014. A notice of disagreement with the rating assigned was received in April 2015. In a March 2017 rating decision, the Veteran's rating was increased to 10 percent disabling, effective February 2, 2017. In an August 2020 rating decision, the RO granted an earlier effective date for the 10 percent rating, to September 1, 2014, and assigned a 30 percent rating, from December 18, 2019. Finally, in a July 2021 rating decision, the RO granted a separate noncompensable rating for limitation of flexion of the right knee, effective July 22, 2021. Prior to December 2019, the Veteran's right knee disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5260, for painful noncompensable limitation of flexion. 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. From December 2019, the Veteran is rated as 30 percent disabled under Diagnostic Code 5261, for limitation of extension of the leg. Under Diagnostic Code 5261, a noncompensable rating is warranted for extension limited to 5 degrees. A 10 percent rating is warranted for extension 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. A 50 percent rating is warranted for extension limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. 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 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. The Veteran was afforded a VA examination in February 2017. She reported right knee pain of the right anterior lateral, medial, and superior aspect of the knee. She described the pain as a mostly achy pain, but when she bends it too far a sharp pain. During flare-ups, she indicted a decreased ability to walk, stand, squat, climb or kneel. Range of motion was 110 degrees flexion, and 0 degrees extension. Pain was noted on flexion and with weight bearing. There was mild to moderate peripatellar tenderness or pain on palpation, consistent with the diagnosis of right knee tendonitis. The Veteran was able to perform repetitive use testing, however, range of motion was reduced to 105 degrees of flexion and 0 degrees extension due to pain. The examiner indicated that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time. The examiner indicated that during flare-ups, pain would cause functional loss and a flexion limited to 105 degrees and 0 degrees extension. The Veteran had less movement than normal, disturbance of locomotion, and interference with standing. Muscle strength was normal. There was no history of recurrent subluxation, lateral instability, or effusion. Joint stability testing was conducted but was normal. There were no meniscal conditions noted in the right knee, but the Veteran did use a brace occasionally to support the right knee. Functional loss was described as a limited ability to walk or stand for prolonged periods, decreased ability to squat or kneel more than infrequently or climbing more than occasionally. The Veteran testified in April 2019. She reported that as a physician's assistant she must stand a lot, which causes pain and swelling in her right knee. Her attorney stated the Veteran has "a bit of instability" and she cannot run or walk strenuously. The Veteran was afforded a VA examination in December 2019. She reported flare-ups as occurring three to four times per week, depending on activity. With repeated use over time, the Veteran reported experiencing additional swelling of the right knee which affects, which limits mobility and affects daily activities. Range of motion was 90 degrees flexion and 20 degrees of extension. The examiner noted that pain and stiffness impacted the range of motion. There was pain on both flexion and extension as well as weight bearing. The Veteran's knee was tender on patellar ligament and tendon, medial joint line and posteriorly. The Veteran was able to perform repetitive use testing with no additional loss of range of motion. The examiner indicated that pain, fatigue, weakness, lack of endurance and incoordination would significantly limit functional ability during flare-ups and with repeated use over time, resulting in a range of motion of 90 degrees flexion and 20 degrees extension. There was a reduction in muscle strength of 4/5, active movement against some resistance, for both flexion and extension. Joint stability testing was performed but was normal. The Veteran was noted to have had shin splints, but they were no longer active since not running. There were no right meniscal conditions. She was noted to use a brace, regularly, for her right knee. The examiner indicated that the Veteran's work was impacted by her right knee, interfering with kneeling, squatting, prolonged sitting, standing, or walking, difficulty with stairs, pushing, pulling, or carrying moderate weight. Additionally, the examiner indicated that sedentary work was impacted because prolonged sitting and pain affected focus and concentration. The Veteran was afforded a VA examination in July 2021. The Veteran reported intermittent pain in the right knee, especially with activity and movement, but that it will hurt constantly if she does not take the Celebrex. She reported wearing a right knee brace for support and pain relief when she ambulates. The Veteran reported her knee frequently has swelling that worsens throughout the day and with flare-ups. She also indicated she has decreased range of motion with frequent popping and buckling in the right knee. Flare-ups of the right knee were reported to occur 2-3 times a month with a duration of 3 to 4 days, consisting of a severe increase in sharp pain, decreased range of motion, difficulty bearing weight, and swelling. The right knee flare-ups are precipitated by activity, overuse, and movement and alleviated by rest, Celebrex, heat, compression wraps, and brace. The Veteran has difficulty walking and standing for more than 45 minutes. The Veteran indicated she is unable to do high impact activities such as running, jumping, and hiking and that she wears a brace for any moderately stressful physical activity. Flexion was to 100 degrees and extension to 20 degrees, with pain occurring at the endpoints. Passive range of motion was same as active. There was pain on weight bearing, active motion and passive motion causing functional loss in the form of difficulty walking, standing, or climbing stairs. The Veteran was able to perform repetitive use testing; however, range of motion was then limited to 85 degrees of flexion and 20 degrees extension. The examiner indicated that pain, fatiguability and lack of endurance would significantly limit functional ability with repeated use over time and during flare-ups, resulting in a flexion to 50 degrees and extension to 20 degrees. There was no recurrent subluxation or lateral instability. There were no right knee meniscal conditions. She was noted to regularly use a brace. The examiner noted the Veteran's right knee causes difficulty walking and standing for more than 45 minutes, difficulty with high impact activities such as running, jumping, and hiking and difficulty climbing up and down stairs. Prior to December 2019 As noted, prior to December 18, 2019, the Veteran was rated as 10 percent disabled under Diagnostic Code 5260 for painful noncompensable limitation of flexion. The Board finds that the preponderance of the evidence is against a rating higher than 10 percent, prior to December 2019. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain, weakened movement, excess fatigability, incoordination, repetitive use, pain during flare-ups, and pain during repetitive use over time, etc. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements would not result in limitation of motion of flexion to 30 degrees. Here, medical evidence indicates that prior to December 2019, the most the Veteran's flexion was limited, even considering repetitive use, flare-ups, pain, and other limiting factors, was 105 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 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). Diagnostic Code 5256 (ankylosis), Diagnostic Code 5258 (dislocated semilunar cartilage), Diagnostic Code 5259 (symptomatic removal of semilunar cartilage), Diagnostic Code 5262 (impairment of the tibia and fibula), and Diagnostic Code 5263 (genu recurvatum) are not applicable as there is no evidence of these medical conditions throughout the course of the appeal. Diagnostic Code 5257 rates the knee for recurrent subluxation or lateral instability. the Board finds that the preponderance of the evidence is against a compensable rating under Diagnostic Code 5257. The Board has carefully considered the Veteran's testimony about occasional instability. English, 30 Vet. App. 347, 352-53. However, all joint stability tests were normal and there was no medical evidence of patellar subluxation or lateral instability during the rating period on appeal. The Board acknowledges the Veteran's medical knowledge as a physician's assistant; however, as the medical evidence and examinations show that the Veteran does not exhibit actual instability or subluxation, the Board will not make an independent medical judgment and conclude otherwise. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). Also, because of the absence of findings of instability on examination, the Veteran's knee disability does not manifest in at least slight recurrent subluxation or lateral instability. Regarding Diagnostic Code 5261, a compensable rating is warranted for extension actually or functionally limited to 10 degrees. Although separate ratings may be assigned for limitation of motion of extension and flexion, the Board notes that the 10 percent assigned herein is for painful noncompensable limitation of flexion. For all analyses of functional loss due to pain alone, to assign two, separate compensable ratings based on painful motion under two separate diagnostic codes (i.e., under Diagnostic Codes 5260 and 5261) would be in violation of the rule of pyramiding. See 38 C.F.R. § 4.14; VAOPGCPREC 9-04, 69 Fed. Reg. 59990 (2005). Therefore, a separate rating under Diagnostic Code 5261 for limitation of extension for this time period is not warranted. The Board finds that the preponderance of the evidence is against the Veteran's claim for an initial rating higher than 10 percent, prior to December 2019. 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. From December 2019 As noted, from December 2019, the Veteran is rated as 30 percent disabled under Diagnostic Code 5261. The Board finds that the preponderance of the evidence is against a rating higher than 30 percent. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain, weakened movement, excess fatigability, incoordination, repetitive use, pain during flare-ups, and pain during repetitive use over time, etc. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements would not result in limitation of motion of extension to 30 degrees to warrant a higher rating of 40 percent. Here, medical evidence indicates that from December 2019, the most the Veteran's extension was limited, even considering repetitive use, flare-ups, pain, and other limiting factors, was 20 degrees, which corresponds to a 30 percent rating. 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). Diagnostic Code 5256 (ankylosis), Diagnostic Code 5258 (dislocated semilunar cartilage), Diagnostic Code 5259 (symptomatic removal of semilunar cartilage), Diagnostic Code 5262 (impairment of the tibia and fibula), and Diagnostic Code 5263 (genu recurvatum) are not applicable as there is no evidence of these medical conditions throughout the course of the appeal. Diagnostic Code 5257 rates the knee for recurrent subluxation or lateral instability. the Board finds that the preponderance of the evidence is against a compensable rating under Diagnostic Code 5257. The Board has carefully considered the Veteran's statements about occasional instability. English, 30 Vet. App. 347, 352-53. However, all joint stability tests were normal and there was no medical evidence of patellar subluxation or lateral instability during the rating period on appeal. The Board acknowledges the Veteran's medical knowledge as a physician's assistant; however, as the medical evidence and examinations show that the Veteran does not exhibit actual instability or subluxation, the Board will not make an independent medical judgment and conclude otherwise. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). Also, because of the absence of findings of instability on examination, the Veteran's knee disability does not manifest in at least slight recurrent subluxation or lateral instability nor does she meet the revised criteria of a sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability. Regarding Diagnostic Code 5260, a compensable rating is warranted for flexion actually or functionally limited to 45 degrees. The Veteran was granted a zero percent rating for limitation of flexion, effective July 22, 2021. From the period from December 2019 to July 2021, although limited by pain, the Veteran's flexion was not limited to a compensable rating. Although separate ratings may be assigned for limitation of motion of extension and flexion, the Board notes that for this period of time, the Veteran is currently receiving a compensable rating for limitation of extension, and therefore, a separate rating under Diagnostic Code 5260 for painful, noncompensable limitation of flexion is not warranted. Additionally, from July 2021, a rating higher than 0 percent for limitation of flexion is not warranted as there is no evidence that the Veteran's flexion was actually or functionally limited to 45 degrees. Medical evidence indicates that from July 2021, the most the Veteran's flexion was limited, even considering repetitive use, flare-ups, pain, and other limiting factors, was 50 degrees. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for a rating higher than 30 percent for her right knee disability for this time period. Additionally, a compensable rating for limitation of flexion is also not warranted. 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. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Andersen, 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.