Citation Nr: 21068095 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 15-17 980 DATE: November 9, 2021 ORDER Entitlement to a rating in excess of 10 percent prior to November 16, 2020 and in excess of 30 percent thereafter for right knee arthritis is denied. REMANDED Entitlement to a rating in excess of 10 percent for right knee instability is remanded. FINDINGS OF FACT 1. Prior to November 16, 2020, the Veteran's osteoarthritis of the right knee was productive of painful flexion, at worst, limited to 65 degrees, and extension, at worst, limited to 10 degrees. 2. From November 16, 2020, the Veteran's osteoarthritis of the right knee is productive of painful flexion, at worst, limited to 80 degrees, and extension, at worst, limited to 20 degrees. CONCLUSION OF LAW The criteria for a rating higher than 10 percent prior to November 16, 2020 and 30 percent thereafter for osteoarthritis of the right knee have not been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code (DC) 5010, 5260. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from June 1976 to June 1979. In October 2018, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the proceeding has been associated with the claims file. This case was previously before the Board in February 2019, at which time it was remanded for additional development. That development having been completed; this case is once again before the Board. While on remand, the RO, in a November 2020 rating decision, increased the evaluation for the Veteran's osteoarthritis of the right knee to 30 percent effective November 16, 2020. It is noted that applicable law mandates that when an appellant seeks an increased rating, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See A.B. v. Brown, 6 Vet. App. 35 (1993). As there are higher evaluations available for the service-connected osteoarthritis of the right knee and the increased evaluation does not cover the entire period of appeal, the Veteran's claim is still in controversy and shall continue to be adjudicated by the Board. Disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). Evaluation of a service-connected disorder requires a review of the veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply to the veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In all claims for an increased disability rating, VA has a duty to consider the possibility of assigning staged ratings. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings is necessary. 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. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other 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. § 4.40. Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. 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) (holding that 38 C.F.R. § 4.59 applies to disabilities other than arthritis). However, painful motion alone is not a functional loss without some restriction of the normal working movements of the body. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided. Id.; Esteban v. Brown, 6 Vet. App. 259 (1994). In VAOPGCPREC 23-97, 62 Fed. Reg. 63604 (1997), VA's General Counsel determined that, when a claimant has arthritis and instability of the knee, multiple ratings may be assigned under Diagnostic Codes 5003 and 5257. Degenerative arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate Diagnostic Codes for the specific joint or joints involved. If noncompensable limitation of motion is demonstrated, a 10 percent evaluation is assigned for each major joint or group of minor joints affected. In the absence of any limitation of motion, involvement of two or more major joints or two or more minor joint groups warrants a 10 percent evaluation, and the same with occasional incapacitating exacerbations warrants a 20 percent evaluation. 38 C.F.R. § 4.71a, DC 5003. For the purpose of rating disability from arthritis, the knee is considered a major joint. 38 C.F.R. § 4.45. Under the provisions of 38 C.F.R. § 4.71a, DC 5260, a 10 percent rating is in order if flexion of the knee is limited to 45 degrees. A 20 percent rating is in order if flexion of the knee is limited to 30 degrees. A 30 percent rating is in order if flexion of the knee is limited to 15 degrees. Under 38 C.F.R. § 4.71a, DC 5261, a 10 percent rating is in order if extension of the knee is limited to 10 degrees. A 20 percent rating is in order if extension is limited to 15 degrees. A 30 percent rating is in order if extension is limited to 20 degrees. A 40 percent rating is in in order if extension is limited to 30 degrees, and a 50 percent rating is warranted if extension is limited to 45 degrees. Normal range of motion of the knee is 0-degree extension to 140 degrees flexion. See 38 C.F.R. § 4.71a, Plate II. Other DCs are not for application because the record does not indicate that the Veteran has ankylosis of the knee (DC 5256), removal or dislocation of the semilunar cartilage (DC 5258 and 5259), malunion or nonunion of the tibia and fibula (DC 5256), or genu recurvatum (DC 5263). See 38 C.F.R. § 4.71a. Instability under DC 5257 is addressed in the Remand section below. The Board also notes that VA published a final rule amending its regulations on musculoskeletal disabilities, effective February 7, 2021. The amendment, in pertinent part, changed the rating criteria for DCs 5003 (degenerative arthritis) and 5010 (posttraumatic arthritis). See 85 Fed. Reg. 76453 (November 30, 2020). The amendments changed DC 5003 and 5010 by characterizing different types of arthritis, with degenerative being evaluated under 5003 and traumatic being evaluated under 5010. However, the actual rating criteria for these DCs remained unchanged. Therefore, there is no effect on the instant case. The Veteran's claim stems from a May 24, 2011 submission. The Veteran contends that his right knee osteoarthritis is worse than currently reflected by his evaluations of 10 percent and 30 percent respectively. A review of the Veteran's outpatient treatment records shows that he has been generally treated for complaints of right knee pain throughout the period of appeal. There have been no showings of loss of range of motion resulting in flexion of 45 degrees or loss nor extension of greater than 10 degrees prior to November 16, 2020 or 20 degrees thereafter. The Veteran was provided with a VA examination in January 2012. He was diagnosed with right knee arthritis, which was confirmed with x-ray. The Veteran reported flare-ups once per month with increased activity and walking and lasts until he takes pain medication. Range of motion testing revealed a flexion of 80 degrees and an extension of 0 degrees, both without pain on motion. There was no additional loss of motion or pain upon repetition. There was no evidence of ankylosis, malunion, or non-union. Functional impacts on employment included limited abilities to lift and walk. The Veteran was provided with an additional VA examination in August 2015. He was diagnosed with right knee osteoarthritis, which was confirmed with x-ray. The Veteran reported flare-ups which occurred after prolonged standing and walking. Range of motion testing revealed a flexion of 110 degrees and an extension of 10 degrees, both with pain on motion. There was no additional loss of motion or pain upon repetition. There was no evidence of ankylosis, malunion, or non-union. Functional impacts on employment included pain which would require him to be assigned different duties. The Veteran was provided with an additional VA examination in October 2017. He was diagnosed with right knee osteoarthritis. Range of motion testing on both active and passive motion revealed a flexion of 90 degrees and an extension of 5 degrees, both with pain on motion. There was no additional loss of motion or pain upon repetition. There was no evidence of ankylosis, malunion, or non-union. Functional impacts on employment included limits on prolonged sitting, standing, use of ladders, and use of stairs. The Veteran was provided with an additional VA examination in July 2018. He was diagnosed with right knee osteoarthritis. Range of motion testing on both active and passive motion revealed a flexion of 65 degrees and an extension of 10 degrees, both with pain on motion. There was no additional loss of motion or pain upon repetition. There was no evidence of ankylosis, malunion, or non-union. Functional impacts on employment included limits on prolonged sitting and standing. The Veteran was provided with an additional VA examination in November 2018. He was diagnosed with right knee osteoarthritis. The Veteran reported flare-ups of pain if he sat or stood in same positions for too long. Range of motion testing on both active and passive motion revealed a flexion of 100 degrees and an extension of 5 degrees, both with pain on motion. There was no additional loss of motion or pain upon repetition. There was no evidence of ankylosis, malunion, or non-union. Functional impacts on employment included limits on prolonged sitting, walking, and standing. It was noted he cannot run and should avoid stairs and ladders. The Veteran was provided with an additional VA examination in November 2020. He was diagnosed with right knee osteoarthritis. The Veteran reported flare-ups of increased pain, swelling, and stiffness with prolonged activity. Range of motion testing on both active and passive motion revealed a flexion of 90 degrees and an extension of 10 degrees, both with pain on motion. There was no additional loss of motion or pain upon repetition. For both use over time and flare-ups, the examiner estimated the Veteran's range of motion to decrease to flexion of 80 degrees and extension of 20 degrees. There was no evidence of ankylosis, malunion, or non-union. Functional impacts on employment included limits on job settings that would permit him to use a cane or power scooter for ambulation. It also was determined that the Veteran experienced occasional incapacitating exacerbations which lasted less than one week the past year. The Veteran has been assigned a 10 percent rating for osteoarthritis of the right knee prior to November 16, 2020, and a 30 percent rating thereafter. The Board finds that higher ratings are not warranted. Prior to November 16, 2020, the most severe limitation of right knee flexion and extension in the record was to 65 and 10 degrees respectively, with painful motion. As such, the Veteran was appropriately awarded a 10 percent evaluation based upon the presence of a loss of extension to 10 degrees. There were no showings of worsened ranges of motion in either flexion or extension. Therefore, the criteria for a rating higher than 10 percent for limitation of right knee extension prior to November 16, 2020 are not met, and the Veteran's claim must be denied. Thereafter, the November 2020 VA examination reflects right knee extension limited to 20 degrees after taking account of flare-ups and use over time. This more severe limitation corresponds to the 30 percent rating that has been assigned effective November 16, 2020. Although it is noted that the Veteran also showed evidence of occasional incapacitating exacerbations of his arthritis at that time as well, a separate evaluation is not warranted here, because the Veteran is already compensated for loss of extension and an additional rating on the basis of arthritis, representing essentially the same functional impairment, would result in impermissible pyramiding. 38 C.F.R. § 4.14. Higher ratings are available for additional loss of motion greater than 20 percent for extension or 15 degrees or less limitation of flexion, but the medical evidence of record does not show that such findings are present after November 16, 2020. Therefore, a rating higher than 30 percent from November 16, 2020 for limitation of extension of the right knee is not warranted, and the Veteran's claim must be denied. REASONS FOR REMAND In regard to the Veteran's claim for an increased evaluation for instability of the right knee, it is noted that the most recent VA examination of record, provided in November 2020, appeared to contain inconsistent findings with regard to this issue. Namely, the VA examiner found that the Veteran had a currently diagnosed instability of the right knee diagnosed since 1979. Later in the report the examiner identified the presence of instability of station, but also indicated there was no joint instability, nor a history of instability. The disconnect between these entries should be clarified. The matters are REMANDED for the following action: 1. Any treatment records dated since those considered in the last supplemental statement of the case should be obtained and associated with the claims file. 2. Thereafter, return the claims file to the November 2020 VA examiner or other appropriate person to identify whether the Veteran has right knee instability, and if so, its nature and its extent for purposes of evaluating the knee disability according to VA's Rating Schedule. If instability of station is present, a description of that condition should be provided. If it is necessary to re-examine the Veteran to obtain the requested information, that should be arranged. 3. Readjudicate the claim. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Dodd, Ryan 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.