Citation Nr: 21068604
Decision Date: 11/11/21	Archive Date: 11/10/21

DOCKET NO. 17-47 070
DATE: November 11, 2021

ORDER

Entitlement to an initial disability rating in excess of 10 percent for service-connected right knee osteoarthritis (right knee disability) is denied.

REMANDED

Entitlement to service connection for an acquired psychiatric disability, to include post-traumatic stress disorder (PTSD), is remanded.

FINDING OF FACT

Throughout the period on appeal, the Veteran's right knee disability has manifested by painful right knee motion with flexion to 125 degrees at worst. No evidence of ankylosis or restricted motion consistent with ankylosis, cartilage impairment, meniscal impairment, or impairment of the tibia or fibula is present; no evidence of compensable limitation of extension is present.

CONCLUSION OF LAW

The criteria for an initial disability rating in excess of 10 percent for right knee osteoarthritis are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5003-5260.

REASONS AND BASES FOR FINDING AND CONCLUSION

These matters come before the Board of Veterans' Appeals (Board) on appeal from August 2013, December 2014, and July 2017 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO).

In the August 2013 rating decision, the Veteran was awarded service connection for his right knee strain from July 13, 2011 with a noncompensable rating, and was denied entitlement to service connection for PTSD. In the December 2014 rating decision, the RO stated that a special provisional rating was conducted in August 2013 and the December 2014 decision was a final provisional rating considering all evidence then received to date. The RO continued the noncompensable rating for the right knee disability and denied service connection for PTSD.

The RO increased the initial rating for the right knee disability to 10 percent in the July 2017 rating decision. As this was not a full grant of the benefit sought on appeal, the matter remains in appellate status. AB v. Brown, 6 Vet. App. 35 (1993).

In March 2019 the Board remanded the claims for additional development. For the right knee claim, the development has been substantially completed.  It is also noted that in May 2020, the RO granted service connection for a low back disorder.  As such, the issue in controversy for that claim has been resolved and that matter is no longer on appeal before the Board.

Increased Rating

Disability evaluations (ratings) are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. § Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual disorders in civil occupations. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.

Where entitlement to compensation already has been established and 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). Separate ratings may be assigned for separate periods of time based on the facts found; this practice is known as staged ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007).

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. See 38 C.F.R. § 4.7.

For musculoskeletal disabilities, such as those to the knees, there are additional criteria.

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 United States Court of Appeals for Veterans Claims (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.

When evaluating joint disabilities rated on the basis of 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 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). "Although pain may cause a functional loss, pain itself does not constitute functional loss." Mitchell, 25 Vet. App. at 37 (emphasis in original). The provisions of 38 C.F.R. § 4.59 relating to painful motion are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

Entitlement to an initial disability rating in excess of 10 percent for service-connected right knee osteoarthritis

The Veteran contends that an initial rating in excess of 10 percent for his right knee disability is warranted

In the July 2017 rating decision, the 10 percent evaluation for right knee osteoarthritis was based on painful motion of the knee, and x-ray evidence of degenerative arthritis.

The Veteran's right knee disability is currently rated under DC 5003-5260. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the rating assigned. The additional code is shown after the hyphen. 38 C.F.R. § 4.27. In this case, DC 5003 refers to degenerative arthritis (other than post-traumatic), rated as limitation of motion. If there are two or more joints affected, each rating shall be combined in accordance with 38 C.F.R. § 4.25.

During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. However, the diagnostic codes for limitation of motion of the knee, under DC 5260 (limitation of flexion) and DC 5261 (limitation of extension), were not changed.

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.

Under DC 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, DC 5260.

DC 5261, for limitation of extension of the leg, 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, DC 5261. 

VA's General Counsel has stated that separate ratings under DC 5260 and DC 5261 may be assigned for disability of the same joint. VAOPGCPREC 9-04 (September 17, 2004), published at 69 Fed. Reg. 59,990 (2004).

The Board finds that the preponderance of the evidence is against an initial rating in excess of 10 percent for the Veteran's right knee disability.

On June 2013 VA knee examination, the Veteran reported right knee disability symptoms beginning with his in-service right knee injury and continuing to date, which he described as his knee is sore daily. The examination report shows that initial range of motion (ROM) was normal, with no objective evidence of painful motion, and the examiner noted no crepitus on palpation on active motion. The Veteran did not report flare-ups and was able to perform repetitive use testing with no loss of function or ROM. In fact, the examiner specifically noted there was no functional loss for the Veteran's right lower extremity. No tenderness or pain to palpation, muscle atrophy or ankylosis was noted, and muscle strength was 5/5 for both flexion and extension. No history of lateral instability or recurrent subluxation was indicated and joint stability testing was normal, and the examination report shows that the Veteran did not use any assistive devices. The examiner noted the functional limitation of the Veteran's right knee disability was that it was "hard to do stairs when his knee hurts."

In June 2017, the Veteran underwent another VA knee examination, in connection with which the examiner diagnosed bilateral knee osteoarthritis, which she noted represents a progression of his service-connected right knee disability. The Veteran reported continued worsening right knee pain described as constant, sharp, right medial / lateral knee pain with occasional swelling and an occasional sensation of giving way, and also reported using an over-the-counter knee sleeve. Tenderness was noted at the right medial / lateral joint lines, as well as objective evidence of crepitus. Initial ROM measurements were recorded as flexion to 125 degrees and extension to 0 degrees, with pain on flexion. The examiner noted that the abnormal ROM itself contributes to functional loss, described as limiting activities that involve repetitive squatting, kneeling, crawling, and climbing. The Veteran did not report flare-ups and was able to complete repetitive use testing. The examiner noted that pain significantly limited functional ability with repeated use over time. And while the examiner remarked that any limitation of ROM could not be estimated, she further stated that the right knee is used repeatedly over a period of time, loss of function is described as increased pain likely with squatting, kneeling, crawling, climbing. Muscle strength was 5/5 throughout and no muscle atrophy or ankylosis was noted. No history of lateral instability or recurrent subluxation was indicated, and joint stability testing was normal. All stability tests were normal. It was also noted that the Veteran occasionally wore a brace. The examiner noted no pain with passive range of motion, with nonweight-bearing, and with weight-bearing. The functional impact was described as limiting activities that involve repetitive squatting, kneeling, crawling, and climbing.

Most recently, the Veteran was afforded another VA knee examination in October 2018, in connection with which he reported continued right knee pain. Initial ROM measurements were recorded as flexion to 135 degrees and extension to 0 degrees, with pain on flexion. The examiner noted that the abnormal ROM itself contributes to a functional loss described as difficulty squatting. While no objective evidence of localized tenderness or pain on palpation noted, there was objective evidence of crepitus. The Veteran reported flare-ups described as increased pain and swelling, and was able to complete repetitive use testing. The examiner noted that pain significantly limited functional ability both during flare-ups and with repetitive use over time. Although the Veteran was not examined during a flare-up or immediately after repetitive use over time, the examiner estimated functional loss both during a flare-up and immediately after repetitive use over time, as flexion to 130 degrees and extension to 0 degrees. Muscle strength was 5/5 throughout and no muscle atrophy or ankylosis was noted. No history of lateral instability or recurrent subluxation was indicated. Joint stability testing was normal, with all normal stability tests.  Also, no assistive devices were noted. The examiner noted there was no objective evidence of pain with passive ROM, and that passive ROM was the same as active ROM. The functional impact was described as squatting and kneeling as tolerated, "NO" running or jumping, and walking at own pace and as tolerated, with no other limitations.

Overall, the VA examinations do not show any findings of right knee limitation of motion more nearly approximating flexion limited to 30 degrees as necessary for a 20 percent rating under DC 5260, or extension limited to 15 degrees as necessary for a 20 percent rating under DC 5261, even with pain noted on motion, on flare-ups, and after repetitive use over time. In fact, the VA examiners' findings do not approach limitation of flexion to even 60 degrees, or limitation of extension to even 5 degrees as necessary for noncompensable ratings under DC 5260 and DC 5261, respectively. Rather, at worst, the June 2017 examiner found flexion limited to 125 degrees and extension limited to 0 degrees.

The Veteran's post-service VA treatment records also do not support the assignment of a rating higher than 10 percent. While VA treatment records show regular complaints of right knee pain, they do not show evidence of increased impairment for right knee limitation of flexion or of extension. The Board acknowledges that the VA treatment records do not show any ROM measurements, but on routine examination in April 2018, the Veteran's primary care physician noted no joint-line tenderness, no ligament laxity, and good range of motion with some crepitation. 

The Board acknowledges that during the June 2017 VA knee examination, the Veteran complained of occasional swelling and an occasional sensation of giving way.  It is also acknowledged that the Veteran wears an over-the-counter brace.  However, all three of the VA examiners specifically found that the Veteran did not have subluxation or a history of subluxation. In fact, all tests in this regard were normal and the Veteran also had 5/5 muscle strength during each of the examinations. The medical evidence and testing performed by medical professionals document normal stability of the right knee. Additionally, the Veteran's VA treatment records are silent for any complaints of right knee locking, swelling, and instability. The objective examination findings in this regard, by history and currently, have been and remain essentially normal.  Further, even when considering the revised DC 5257 criteria effective February 7, 2021, a separate rating is not warranted.  The record does not show a diagnosed condition involving the patellofemoral complex with recurrent instability or any ligament impairment (sprained, repaired, unrepaired, or complete or incomplete tear).  Accordingly, the Board finds that the objective medical evidence is more probative than the Veteran's assertions and the assignment of a separate rating is not warranted.

The Board has also considered the other diagnostic codes pertaining to the knee. 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). However, there is no evidence in the record to support a higher rating under DC 5256 (ankylosis). See June 2014 VA examination, June 2017 VA examination, and October 2018 VA examination. Even considering the Veteran's reported flare-ups, there is no functional loss of the Veteran's right knee that is consistent with that contemplated by ankylosis. See 38 C.F.R. §§ 4.40, 4.45; Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995); see also, Chavis v. McDonough, 34 Vet. App. 1 (2021).

There is also no contention or medical evidence of record to support a higher rating under DC 5258 (dislocated semilunar cartilage), DC 5259 (removal of semilunar cartilage). DC 5262 (impairment of tibia and fibula), or DC 5263 (genu recurvatum).

The Board has also considered the application of staged ratings but finds that the assigned ratings are appropriate during the entire period on appeal.

In sum, the Board finds that the assigned initial 10 percent rating contemplates the Veteran's complaints of right knee pain and limited motion of flexion, and that the provisions of 38 C.F.R. § 4.59 and DeLuca have been considered. The assignment of a rating in excess of 10 percent under DC 5260 is not warranted. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.

REASONS FOR REMAND

Entitlement to service connection for an acquired psychiatric disability, to include PTSD

While the Board regrets further delay, a remand is needed for additional development. 

The Veteran seeks service connection for PTSD, which he asserts is due to stressor events experienced during service. Specifically, the Veteran asserts that while he was deployed in Okinawa, Japan, he was involved in a helicopter crash. See, e.g., February 2019 Appellate Brief, January 2015 Statement in Support of Claim, and August 2011 Statement in Support of Claim for PTSD. The Veteran further asserts that during his active duty service in Okinawa, he was assigned to a casket detail for three days, and that while stationed at El Toro MAB, he witnessed the non-fatal shooting of his friend on the range. See August 2013 Notice of Disagreement and August 2011 Correspondence.

In this case, the RO made attempts to corroborate the Veteran's helicopter crash stressor, but received a negative response from the National Archives and Records Administration (NARA) in July 2013. NARA based its negative response on the review of the USMC command chronologies from January to December of 1974 for three units  Marine Air Support Squadron (MASS)-2, Marine Air Control Group (MACG)-18, and Marine Air Wing (MAW)-1  and did not find any reports of a helicopter crash. The RO was referred to the National Archives and Records Administration, Old Military and Civil Records (NWCTB) and to the Director of Aviation Safety Programs, Naval Safety Center. See September 2013 Correspondence. Additionally, in the May 2020 supplemental statement of the case, the RO noted, and the record supports, that the casket detail the Veteran reported is not documented in his service personnel records, nor has he submitted any corroborative evidence in support of his claimed stressors, such as "buddy" statements, or contemporaneous letters he wrote to family members or friends describing the event(s).

However, a review of the record shows that while the Veteran initially reported the crash occurring in 1974, he also reported that the helicopter crash may have occurred in 1975. See January 2015 Statement in Support of Claim. The Veteran further reported a third in-service stressor of witnessing an April 1973 non-fatal shooting of a buddy on the range. See August 2013 Notice of Disagreement. The record does not show the RO attempted to verify the helicopter crash in 1975, or to verify the 1973 non-fatal shooting on the range.

The record also does not show that the RO attempted to contact NWCTB or the Director of Aviation Safety Programs in an attempt to corroborate the reported helicopter crash. Nor does the record show that the RO attempted to corroborate a helicopter crash in 1975, or the reported April 1973 non-fatal shooting on the range at El Toro MAB. Thus, the Board finds that a remand is necessary for complete attempts to verify the Veteran's claimed stressors.

The matter is REMANDED for the following action:

1. Submit requests to attempt to verify the Veteran's stressors as outlined in his August 2013 Notice of Disagreement (i.e., a 1975 helicopter crash in Okinawa, Japan, and an April 1973 non-fatal shooting on the range at El Toro MAB, Santa Clara, CA). If referred to any other agency(ies), submit further requests as needed. All attempts to verify the stressors must be documented in the claims file. Any negative responses must be documented.

2. Submit requests to the National Archives and Records Administration, Old Military and Civil Records (NWCTB) and the Director of Aviation Safety Programs, Naval Safety Center to attempt to verify a 1974 or 1975 helicopter crash in Okinawa, Japan. If multiple requests are needed to cover the entire period for the Veteran's reported stressor, submit multiple requests. All attempts to verify the stressor must be documented in the claims file. Any negative responses must be documented. 

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3. After completing the above to the extent possible, and any other development deemed necessary, readjudicate the claim.  If the claim remains denied, issue to the Veteran and his attorney, a supplemental statement of the case and allow the appropriate time period for response.

 

 

C. CRAWFORD

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	S. Battaile

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.