Citation Nr: 21066582 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 13-22 945 DATE: November 1, 2021 ORDER Entitlement to a rating in excess of 10 percent for left knee arthritis based on limitation of flexion and/or extension is denied. FINDING OF FACT Throughout the appeal period, the Veteran's left knee arthritis has been manifested by painful motion with flexion limited to no less than 70 degrees and extension limited to no greater than 10 degrees; there is no other disability for which the Veteran is not separately compensated. CONCLUSION OF LAW The criteria for entitlement to ratings higher than 10 percent for left knee arthritis based on limitation of flexion and/or extension are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (Code) 5003, 5010, 5260, 5261. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Navy from June 1987 to June 2007. His awards and decorations include a Global War on Terror Expeditionary Medal, two Kuwait Liberation Medals, two National Defense Service Medals and a Combat Action Ribbon. The Board sincerely thanks him for his service to his country. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office/Agency of Original Jurisdiction (RO/AOJ) which, in relevant part, granted service connection for mild left knee arthritis, rated 10 percent. In May 2016, the Veteran testified at a Board hearing before the undersigned; a transcript of that hearing is of record. This issue was most recently remanded by the Board in March 2021 to ensure compliance with a June 2019 Board remand. It had previously been remanded in August 2018 by the United States Court of Appeals for Veterans Claims (Court) following a December 2017 Board decision which, in relevant part, denied a rating in excess of 10 percent for left knee arthritis based on limitation of motion. In the July 2018 Joint Motion for Partial Remand (JMPR) granted by the Court, the parties agreed that vacatur and remand was required for the Board to obtain medical examinations or addendum opinions addressing functional loss due to pain, in compliance with holdings of the Court in Sharp v. Shulkin, 29 Vet. App. 26 (2017) and Correia v. McDonald, 28 Vet. App. 158 (2016). It has now returned for adjudication. After review of the development accomplished by the AOJ, the Board concludes there has been substantial compliance with the June 2019 and March 2021 Board remands and the deficiencies forming the basis for the August 2018 remand by the Court have been corrected. Thus, no further action is necessary as to this appeal. See Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010) ("It is substantial compliance, not absolute compliance, that is required" under Stegall v. West) (citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999)). Notably, the December 2017 Board decision also granted separate 10 percent ratings for left knee symptomatic post-corrective residuals of an in-service meniscectomy during the appeal period and lateral instability from April 14, 2014. The Veteran did not dispute this portion of the Board's decision before the Court; thus, the ratings for left knee residuals of meniscectomy and instability are not on appeal. Increased Rating The Veteran contends that he is entitled to a higher rating because of the functional limitations of his left knee. Disability ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be 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 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). In McGrath v. Gober, 14 Vet. App. 28 (2000), the Court held that when evidence is created is irrelevant compared to when the Veteran was actually experiencing the symptoms. Thus, the Board will consider whether the evidence of record suggests that the severity of the Veteran's symptoms increased sometime prior to the date of the examination reports. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. When determining the severity of musculoskeletal disabilities, which are at least partly rated on the basis of range of motion, VA must consider the extent of additional functional impairment a Veteran may have above and beyond the limitation of motion objectively demonstrated due to pain, limited or excess movement, weakness, incoordination, and premature or excess fatigability, etc., particularly when symptoms "flare up," to include periods of prolonged use, and assuming these factors are not already contemplated in the governing rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; Sharp v. Shulkin, 29 Vet. App. 26, 31-35 (2017); Deluca v. Brown, 8 Vet. App. 202, 206 (1995). However, where a musculoskeletal disability is evaluated at the highest rating available based upon limitation of motion, further analysis is foreclosed. Johnston v. Brown, 10 Vet. App. 80 (1997). Functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45. The Court has held that VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss under 38 C.F.R. § 4.40, which requires VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45. Furthermore, the intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, actually painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. 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 (ROM) testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with ROM measurements of the opposite undamaged joint." In Burton v. Shinseki, 25 Vet. App. 1, 5 (2011), the Court found that, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis context, the Board should address its applicability. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The Veteran's left knee arthritis is rated based on limitation of flexion and extension. Specifically, the January 2012 rating decision granted service connection for mild left knee arthritis, rated 10 percent from June 9, 2011 based on Code 5010-5261 for arthritis with limitation of flexion, the date of receipt of the Veteran's claim for service connection. [Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the assigned rating; the additional code is shown after the hyphen. Here, the hyphenated diagnostic code indicates that arthritis due to trauma (Code 5010) is rated under the criteria for limitation of leg extension (Code 5261).] At the time of the January 2012 rating decision, the Veteran was also in receipt of a separate 10 percent rating for left knee degenerative joint disease, rated 10 percent based on Code 5003 for degenerative arthritis. A veteran may receive more than one compensable rating for different conditions of the same knee. See VAOPGCPREC 09-04; VAOPGCPREC 23-97. However, the Board finds that to provide the Veteran with a minimum compensable rating under Code 5010-5261 for left knee arthritis and Code 5003 for left knee degenerative joint disease (arthritis) constitutes pyramiding as painful motion was already considered under Code 5003, which had been effect since July 1, 2007. The Board will not disturb the 10 percent rating that has been assigned for left knee arthritis under Code 5010-5261 from June 9, 2011; however, an increased evaluation is not warranted under Code 5010-5261 and/or 5003 at any time during the appeal period. In addition, to the extent the Veteran reports instability and falls or symptoms of meniscectomy, he is separately rated under Code 5257 for left knee instability and 5259 (symptomatic removal of the semilunar cartilage) for residuals of meniscectomy, he has not appealed these determinations and they are not presently before the Board. Accordingly, to avoid prohibited pyramiding, i.e., double counting of symptoms, only the functional impact of symptoms other than instability and residuals of meniscectomy may be considered when rating the Veteran's left knee arthritis. 38 C.F.R. § 4.14. As such, Codes 5257, 5258 (dislocation of the semi-lunar cartilage with frequent episodes of "locking," pain, and effusion into the join) and 5259 will not be addressed further, below. The regulations pertaining to rating the musculoskeletal system, including the knee, were revised during the pendency of the Veteran's appeal, effective February 7, 2021. See 38 C.F.R. § 4.71a (2021). Where the law or regulations governing a claim are changed while the claim is pending, the version most favorable to the claimant is applied. While the new version of the regulations may apply only from the effective date of change, here February 7, 2021, the old version of the regulations may apply both prior to the change in regulation and after the change in regulation. Karnas v. Derwinski, 1 Vet. App. 308 (1991); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). For rating purposes, flexion of the knee to 140 degrees is considered full and extension to 0 degrees is considered full. 38 C.F.R. § 4.71, Plate II. Codes 5260 (limitation of leg flexion) and 5261 (limitation of leg extension) have not been revised during the pendency of this claim. Flexion of the leg limited to 60 degrees warrants a 0 percent rating, flexion limited to 45 degrees warrants a 10 percent rating, flexion limited to 30 degrees warrants a 20 percent rating, and flexion limited to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a, Code 5260. Extension limited to 5 degrees warrants a 0 percent rating, extension limited to 10 degrees warrants a 10 percent rating, extension limited to 15 degrees warrants a 20 percent rating, extension limited to 20 degrees warrants a 30 percent rating, extension limited to 30 degrees warrants a 40 percent rating, and extension limited to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a, Code 5261. Code 5010 provides that arthritis due to trauma, as substantiated by X-ray findings, is to be rated as degenerative arthritis under Code 5003. 38 C.F.R. § 4.71a, Code 5010. Degenerative arthritis established by radiologic findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. Code 5003 further states that, where 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 affected by limitation of motion, to be combined, not added. 38 C.F.R. § 4.71a, Code 5003; see also Mitchell v. Shinseki, 25 Vet. App. 32 (2011); Lichtenfels v. Derwinski, 1 Vet. App. 484 (1991). Under the new rating criteria effective February 7, 2021, Code 5003 remained largely unchanged as the main revision was only the title of the code to "Degenerative arthritis, other than post-traumatic." Code 5010 was revised for "post-traumatic arthritis," by removing the instruction to rate as degenerative arthritis under 5003 and directing that traumatic arthritis be rated as "limitation of motion, dislocation, or other specified instability under the affected joint." In connection with his left knee increased rating claim, the Veteran underwent VA examinations in September 2011, December 2016, December 2019 and July 2021. As the September 2011 and December 2016 examinations were deemed inadequate for rating purposes in the JMPR, they will not be further discussed. The remaining examination reports show the Veteran's left knee arthritis has been manifested by painful motion with flexion limited to no less than 70 degrees and extension limited to no greater than 10 degrees throughout the appeal period. The November 2019 examination report notes left knee range of motion was 10 to 100 degrees (with no ankylosis), which contributed to functional loss described as inability "to stand/sit/walk for prolonged periods." The examiner noted "sharp pain with palpation" (5/10 severity) directly related to left knee arthritis and objective evidence of pain on passive range of motion testing and when the joint is used in not-weight bearing. There was no evidence of pain with weight bearing and the Veteran was able to perform repetitive use testing with at least 3 repetitions with no additional loss of function. The Veteran reported no flare ups and described his symptoms as "intermittent alternating sharp and aching pain in the knee that he rates 6-10/10 depending on activity." His symptoms were aggravated with prolonged standing/walking/sitting, climbing stairs and cold weather; they were alleviated with medication (Naproxen) and ice/heat as needed. As range of motion testing with weight-bearing was not provided, another VA examination was requested. The July 2021 examination report shows active and passive left knee range of motion as 0 to 110 (no ankylosis), which impacts his use of stairs, prolonged sitting, walking and squatting. The Veteran was able to perform repetitive use testing with at least 3 repetitions without additional functional loss. He reported no left knee flare ups and rated his left knee "pain as a 5/10 throbbing pain that is constant." The pain is aggravated by stairs, prolonged sitting, walking and squatting. He treats with heating pad, elevation and aspirin. Addressing the basis for the July 2018 JMPR granted by the Court (that the Board to obtain medical examinations or addendum opinions addressing functional loss due to pain, in compliance with holdings of the Court in Correia), the examiner noted that the procured evidence (statements from the Veteran) suggest pain, fatigability, weakness and lack of endurance which significantly limits functional ability with repeated use over time. The examiner estimated range of motion immediately after repeated use over time as 0-110 degrees and "with weightbearing, patient was only able to flex 70 degrees which is significantly less from passive and active motion." There was no functional loss during flare-ups. The examiner remarked that it was "impossible" to estimate additional functional loss of the left knee due to repetitive use in terms of additional range of motion loss because the examination "was set over a short period of time." VA and private treatment records during the appeal period since one year prior to receipt of his June 2011 claim for increase note his left knee symptoms, including complaints of pain, swelling, tenderness and decreased flexion and extension. VA treatment records include April 2014 findings of passive and active range of motion from 0 to 125 degrees without difficulty and September 2014 findings of 0 to 130 degrees of passive range of motion without difficulty. These treatment records do not indicate any symptoms of worse severity than those noted during the VA examinations. With consideration of all of the evidence, including both the clinical measurements of ranges of motion and the medical estimations and assessments of functional ranges of motion in all pertinent contexts and exacerbations, the Board finds that none of the evidence of record shows left knee limitation of flexion to 30 degrees or less or limitation of extension to 15 degrees or more so as to warrant a separate compensable rating based on limitation of flexion or a higher rating for limitation of extension at any time during the appeal period. The Board acknowledges the assertions of knee pain and functional loss as described by the Veteran, including during his May 2016 Board hearing, and in the December 2016 statement from his friend and co-worker. However, physical examination of the Veteran indicated no additional limitation of motion that was commensurate with a higher rating. Specifically, the July 2021 examination report notes, "with weightbearing, patient was only able to flex 70 degrees which is significantly less from passive and active motion." This range of motion finding considers additional functional loss and clinical findings from the VA examination reports and do not suggest that range of motion of either knee would change to the degree required for a higher rating with repeated use over time, due to pain, with weight bearing, or during flare-ups. Given that the Veteran's complaints do not prevent him from achieving substantial measured left knee range of motion, they do not support a finding of additional functional loss for a higher rating. The Veteran's complaints have been taken into consideration, but there is no evidence that his left knee arthritis causes significant or additional functional loss beyond that contemplated by the assigned 10 percent evaluations for limitation of flexion and extension. See 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71, Codes 5260, 5261; DeLuca, Mitchell, Correia, and Sharp, all supra. Further, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by these statements is not shown to result in symptomatology that more nearly approximates unfavorable ankylosis of the left knee. The preponderance of the evidence is also against a finding that the left knee disability has the functional equivalent of ankylosis (i.e., functional immobility of the joint) such that the ankylosis rating, under Code 5256, is warranted. See Chavis v. McDonough, 34 Vet. App. 1, 22-24 (2021) (the ankylosis criterion in VA's General Rating Formula for Diseases and Injuries of the Spine can be met with evidence of the functional equivalent of ankylosis during a flare). The Board has considered whether there is any other basis for granting increased and/or additional ratings but has found none. Specifically, consideration of Codes 5262 and 5263 is inappropriate in this case as the Veteran's left knee disability does not include the pathology required in the criteria for those Codes (malunion or nonunion of tibia or fibula, or genu recurvatum). 38 C.F.R. § 4.71a. As raised in the February 2021 Appellant's Post Remand Brief, the Board has also considered whether an increased extraschedular rating for the Veteran's left knee is warranted. See 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first element requires the Board to determine whether the "evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate." Id. Thun step one is not a "mechanical test;" thus, it is not automatically satisfied just because a certain symptom or functional effect is not expressly listed in a diagnostic code. See Doucette v. Shulkin, 28 Vet. App. 366, 369 (2016) (holding that the rating criteria for hearing loss contemplated the full range of symptoms related to decreased hearing, even though the diagnostic code failed to list any symptoms but relied solely on audiometric tests). If the Board determines that a Veteran's disability is exceptional, the second element requires the Board to "determine whether the claimant's exceptional disability picture exhibits other related factors," such as marked interference with employment or frequent periods of hospitalization. Long v. Wilkie, 33 Vet. App. 167 (2020). Finally, if the first two elements are met, the final element mandates that the Board refer the claim to the Director of Compensation Service (Director) for a determination as to whether an extraschedular rating is warranted. Id.; see also 38 C.F.R. § 3.321(b). The Board finds that the Veteran's left knee disability is not exceptional. The February 2021 Post Remand Brief did not make any specific arguments as to why an extraschedular rating was warranted. The Board has considered the facts of this case and whether the veteran's disability picture as a whole (i.e., full symptomatology) presents an impairment that is so exceptional that the rating schedule is not capable of assessing it in the first instance. The discussion above reflects that the symptoms of the Veteran's left knee disability, to include weakened movement, excess fatigability, incoordination, and pain on movement, are fully contemplated by the applicable rating criteria and he is separately rated for other manifestations of the left knee disability, rated as instability and residuals of meniscectomy. The Board notes that pain is contemplated in the rating criteria for all musculoskeletal disabilities, and it does not need to be identified in each individual code to indicate its inclusion. 38 C.F.R. § 4.59; see Burton v. Shinseki, 25 Vet. App. 1, 5 (2011) (holding that § 4.59 applies to "joint pain in general" and is not limited to joint pain due to arthritis). In addition, weakness and lack of endurance are contemplated in the ratings for all orthopedic disabilities. See 38 C.F.R. §§ 4.40, 4.45, see also 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."). Because the left knee disability is capable of evaluation by conventional means, it cannot be deemed exceptional. As such, the rating criteria is adequate to evaluate the Veteran's left knee arthritis, and referral for consideration of an extraschedular rating is not warranted. As the preponderance of the evidence is against assignment of any further increased and/or additional ratings in this case, the benefit of the doubt rule is not applicable and the appeal as to these claims must be denied. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (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). M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K Hughes 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.