Citation Nr: 21067617 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 17-45 851 DATE: November 4, 2021 ORDER Entitlement to an initial increase rating in excess of 10 percent for left knee degenerative arthritis is denied. REMANDED Entitlement to an initial increase in excess of 10 percent for degenerative disc disease (DDD) of thoracolumbar spine is denied. FINDING OF FACT Throughout the period on appeal, the Veteran's left knee disability is manifested by flexion limited to 110 degrees at worst. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 10 percent for left knee degenerative arthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.14, 4.20, 4.71a, Diagnostic Code 5260. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 1979 to December 1979, from September 1986 to September 1998, from March 2003 to October 2003, from June 2006 to January 2008, from September 2010 to November 2011, and from January 2015 to January 2016. He received the Combat Action Badge, among other decorations, for this service. This matter comes before the Board of Veterans' Appeals (Board) from a September 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In March 2019 and July 2020, the Board remanded the appeal for further development. Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civil occupations. 38 U.S.C. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 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, consideration also must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating joint disabilities rated based on limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not specifically contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). The Court has clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (with swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The evaluation of the same "disability" or the same "manifestations" under various diagnoses is prohibited. 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, when a veteran has separate and distinct manifestations attributable to the same injury, he should be compensated under different diagnostic codes. Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993). Normal ranges of motion of the knee are to 0 degrees in extension, and to 140 degrees in flexion. 38 C.F.R. § 4.71, Plate II. When there is limitation of motion of the specific joint or joints that is compensable (10 percent or higher) under the appropriate diagnostic codes, the compensable limitation of motion should be rated under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a. The Veteran had a VA examination in August 2016 at which he reported left knee pain since active duty service. The Veteran explained that it hurt to sit for any extended period, which sometimes improves with light walks, especially after he has been sitting; however, if the Veteran does strenuous walking then it is very painful. The Veteran also reported that prolonged sitting or standing makes worsens the pain. He reported that his pain level usually is 7 out of 10, and that during flare ups, it can be 9 out of 10, depending on the physical activity; however, if he sits and can't move, then it would be a 10 out of 10. The Veteran also reported that these flare-ups occur daily. The Veteran explained that he experienced functional impairment due to his left knee disability, noting that he is unable to squat or crouch down, is unable to kneel, is unable to sit or stand for a prolonged time, and is prevented from going on long walks, hiking, or carrying items. On examination, flexion was to 110 degrees and extension was to 0 degrees, with pain noted on motion. There was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue with moderate tenderness in the left medial joint space and joint line, there is also mild tenderness in the supero-medial patella. The range of motion of the knee remained unchanged after repetitive use testing. The examination revealed normal muscle strength, no ankylosis, no instability, and no meniscal condition. There was no noted use of assistive devices. Because the Veteran reported experiencing worsening symptoms due to his left knee disability, including increased pain, the Board directed that the Veteran undergo a new examination, which was conducted in November 2019. The Veteran noted that he is using a knee brace most of the time for support and stability, he also noted chronic aching, pain, and stiffness that can be worse with use or overuse. He also reported that he is unable to kneel or squat on his left knee. The Veteran also reported functional loss causing him to be unable to kneel or squat, and difficulty with stairs. On examination, flexion was to 130 degrees and extension was to 0 degrees, with pain on motion. There was objective evidence of localized tenderness or pain on palpation of the joint with mild tenderness on palpation along the medial and lateral side of the joint. There was no additional loss to range of motion after observed repetitive use or repeated use over time. Testing revealed normal muscle strength, no ankylosis, and no instability of the left knee. The examiner concluded that the left knee disability resulted in a functional impact, as he may be limited with standing, walking, or repetitive kneeling, squatting, or using stairs. In July 2020, the Board remanded the claim to obtain an addendum opinion due to newly associated medical records. Pursuant to the July 2020 Board remand, an addendum opinion was obtained in October 2020. In the October 2020 VA addendum opinion, the examiner determined that the Veteran's left knee disability did not result in any significant functional loss. The Veteran asserts that his left knee disability, currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5260, warrants a rating in excess of 10 percent. Diagnostic Code 5260 provides ratings based on limitation of flexion of the leg. Flexion of the leg limited to 60 degrees is rated noncompensably (0 percent) disabling; flexion of the leg limited to 45 degrees is rated 10 percent disabling; flexion of the leg limited to 30 degrees is rated 20 percent disabling; and flexion of the leg limited to 15 degrees is rated 30 percent disabling. 38 C.F.R. § 4.71a. See VAOPGCPREC 09-04 (separate ratings may be granted based on limitation of flexion (Diagnostic Code 5260) and limitation of extension (Diagnostic Code 5261) of the same knee joint). The Board further finds that the Veteran does not qualify for an evaluation in excess of 10 percent for left knee limitation of flexion, because flexion has not been limited to 30 degrees. See 38 C.F.R. § 4.71a, Diagnostic Code 5260. In fact, the Veteran's current rating for limitation of flexion is based on 38 C.F.R. § 4.59, as his range of flexion is not considered compensable un the applicable Diagnostic Code, although the pain he experiences causes sufficient impairment to support his current 10 percent disability rating. Thus, there is no additional uncompensated compensable limitation of motion that can serve as a basis for a higher rating for limited motion with pain. Consideration must also be given to whether separate compensable ratings are warranted for other manifestations of a left knee condition. Diagnostic Code 5256 provides ratings for ankylosis of the knee. Favorable ankylosis of the knee, with angle in full extension, or in slight flexion between zero degrees and 10 degrees, is rated 30 percent disabling. Unfavorable ankylosis of the knee, in flexion between 10 degrees and 20 degrees, is to be rated 40 percent disabling; unfavorable ankylosis of the knee, in flexion between 20 degrees and 45 degrees, is rated 50 percent disabling; extremely unfavorable ankylosis, in flexion at an angle of 45 degrees or more, is rated 60 percent disabling. 38 C.F.R. § 4.71a. Diagnostic Code 5257 provides ratings for other impairment of the knee that includes recurrent subluxation or lateral instability. Slight recurrent subluxation or lateral instability of the knee is rated 10 percent disabling; moderate recurrent subluxation or lateral instability of the knee is rated 20 percent disabling; and severe recurrent subluxation or lateral instability of the knee is rated 30 percent disabling. 38 C.F.R. § 4.71a. Diagnostic Code 5258 provides a 20 percent rating for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. 38 C.F.R. § 4.71a. Diagnostic Code 5259 provides a 10 percent rating for removal of semilunar cartilage that is symptomatic. 38 C.F.R. § 4.71a. Diagnostic Code 5261 provides ratings based on limitation of extension of the leg. Extension of the leg limited to 5 degrees is rated noncompensably (0 percent) disabling; extension of the leg limited to 10 degrees is rated 10 percent disabling; extension of the leg limited to 15 degrees is rated 20 percent disabling; extension of the leg limited to 20 degrees is rated 30 percent disabling; extension of the leg limited to 30 degrees is rated 40 percent disabling; and extension of the leg limited to 45 degrees is rated 50 percent disabling. 38 C.F.R. § 4.71a. Diagnostic Code 5262 provides ratings based on impairment of the tibia and fibula. Malunion of the tibia and fibula with slight knee or ankle disability is rated 10 percent disabling; malunion of the tibia and fibula with moderate knee or ankle disability is rated 20 percent disabling; and malunion of the tibia and fibula with marked knee or ankle disability is rated 30 percent disabling. Nonunion of the tibia and fibula with loose motion, requiring a brace, is rated 40 percent disabling. 38 C.F.R. § 4.71a. Diagnostic Code 5263 provides a 10 percent rating for genu recurvatum, acquired or traumatic, with weakness and insecurity in weight-bearing objectively demonstrated. 38 C.F.R. § 4.71a. However, the record does not show ankylosis, recurrent subluxation or lateral instability, dislocated semilunar cartilage with frequent locking and effusion, removal of semilunar cartilage, limited range of motion of extension, impairment of the tibia or fibula, or genu recurvatum. Therefore, there is insufficient basis to award separate, compensable ratings for the left knee disability under Diagnostic Codes 5256, 5257, 5258, 5259, 5261, 5262, or 5263. See 38 C.F.R. § 4.71a. The recent revisions to Diagnostic Codes 5257 and 5262, effective from February 7, 2021, are therefore also not for application. Accordingly, the Board concludes that the preponderance of the evidence is against a finding that the Veteran is entitled to a higher rating for his left knee limited flexion or a separate compensable rating for other manifestations of his left knee disability. REASONS FOR REMAND As noted, the issue of entitlement to a rating in excess of 10 percent disabling for the Veteran's lumbar spine disability has previously been remanded. However, after the last Supplemental Statement of the Case (SSOC), the Veteran notified VA in May 2021 that he had undergone lumbar spine surgery in March 2021. He provided the surgical report and radiology images, but also a signed VA medical release form and indicated that additional related records could be obtained. Remand is required to obtain the additional records. The matter is REMANDED for the following action: 1. Utilizing the VA Form 21-4142a submitted by the Veteran in May 2021 (or after obtaining an updated signed form from the Veteran if expired), request and associate with the Veteran's claims file treatment records from Dr. William Stevens, Ortho Arizona, Biltmore Spine Center beginning February 2021. 2. All reasonable attempts should be made to obtain these identified records. If any records cannot be obtained after reasonable efforts have been made,issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). J. M. Kirby Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. R. Montalvo, Associate 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.