Citation Nr: 21068653 Decision Date: 11/12/21 Archive Date: 11/12/21 DOCKET NO. 09-03 206 DATE: November 12, 2021 ORDER A rating in excess of 10 percent for left knee arthritis is denied. REMANDED Entitlement to a rating in excess of 20 percent for left lower extremity neuropathy is remanded. The issue of a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran's left knee arthritis manifested in painful motion resulting in flexion at worst limited to 100 degrees and full extension throughout the entire period on appeal. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for left knee arthritis are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5010. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1971 to July 1975 and March 1976 to March 1978, with additional service in the Texas Army National Guard. The Veteran died in September 2013, and the appellant, his surviving spouse, has been accepted as a substitute claimant to process this appeal to its completion. This case is before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this matter for further development in November 2016, May 2019, and December 2020. A Board remand confers on the Veteran, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). An August 2021 rating decision granted a separate rating for the neuropathic symptoms of the left knee disability. Although a separate rating was granted, the issue remained in appellate status, as the maximum schedular rating had not been assigned for the entire period on appeal. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). Unfortunately, although the appellant was provided with an additional VA medical opinion, there has not been substantial compliance with the Board's previous remand directives regarding the issue of the Veteran's left leg disability picture. The examiner did not assess the possible neurological manifestations of the Veteran's left leg disability before his death. Another remand is required to address the issues of a rating for the Veteran's left leg neuropathic symptoms and entitlement to a TDIU. In April 2007, the Veteran applied for a higher evaluation of his left leg disability given an increase in the severity. The Veteran's left leg disability was manifest in left knee arthritis rated under 38 C.F.R. § 4.71a, Diagnostic Code 5010, and neuropathic symptoms rated under 38 C.F.R. § 4.124a, Diagnostic Code 8521. The issue of an increased rating for the neuropathic symptoms will be remanded and not addressed in this section. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, VA will assign the higher evaluation if the disability picture more nearly approximates the criteria required for that rating. Otherwise, it will assign the lower rating. 38 C.F.R. § 4.7. VA resolves any reasonable doubt regarding the degree of disability in favor of the Veteran. 38 C.F.R. § 4.3. Where a claimant appeals the denial of a claim for an increased disability rating for a disability for which service connection was in effect before he filed the claim for increase, the present level of disability is the primary concern, and past medical reports should not be given precedence over current medical findings. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). In evaluating a disability, the current examination reports are considered in light of the whole recorded history to ensure that the current rating accurately reflects the disorder's severity. The medical and industrial history are to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Veterans are competent to report observable symptoms in the realm of their personal knowledge. See Jandreau, 492 F.3d at 1377; 38 C.F.R. § 3.159(a). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information including lay and medical evidence of record in a case before the Secretary concerning benefits under laws the Secretary administers. 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(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). The higher evaluation will be assigned when two disability evaluations are potentially applicable, and the disability picture more nearly approximates the criteria for the higher rating. 3 8 C.F.R. § 4.7. VA has an independent obligation to consider all potentially applicable provisions of law and regulation and to apply the diagnostic criteria in a manner that maximizes benefits. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); Bradley v. Peake, 22 Vet. App. 280 (2008). Before the Board analyzes this issue, a review of the relevant Diagnostic Codes pertaining to the knees would be useful. DC 5010, for traumatic arthritis, directs the evaluator to rate the disability as degenerative arthritis under DC 5003. 38 C.F.R. § 4.71a, DC 5010. DC 5003 provides that degenerative arthritis will be rated based on limitation of motion under the appropriate Diagnostic Codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, DC 5003. A rating of 10 percent is applicable, to be combined, not added under DC 5003, for each major joint or group of minor joints limitation of motion effects when it is noncompensable under the appropriate Diagnostic Codes. Findings such as swelling, muscle spasm, or satisfactory evidence of painful motion must objectively confirm the limitation of motion. The standard motion of a knee joint is from zero degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. DCs 5260 and 5261 govern the limitation of leg motion. DC 5260 concerns the limitation of leg flexion. Under DC 5260, 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. DC 5261 pertains to the limitation of leg extension. Under DC 5261, 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. Under DC 5256, a 30 percent rating is warranted for favorable ankylosis with the knee fixed in full extension or slight flexion between zero and 10 degrees. Ankylosis of the knee fixed in flexion between 10 and 20 degrees warrants a 40 percent rating, and the knee fixed in flexion between 20 and 45 degrees warrants a 50 percent rating. Extremely unfavorable ankylosis in flexion at an angle of 45 degrees or more warrants a 60 percent rating, the maximum schedular rating. 38 C.F.R. § 4.71a, DC 5256. Under DC 5257, slight subluxation or lateral instability warrants a 10 percent rating. Moderate subluxation or lateral instability warrants a 20 percent rating. A maximum 30 percent rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, DC 5257. Under DC 5258, evidence of dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the knee joint warrants a 20 percent rating. 38 C.F.R. § 4.71a, DC 5258. Symptomatic removal of semilunar cartilage warrants a 10 percent rating under DC 5259. 38 C.F.R. § 4.71a, DC 5259. Malunion of the tibia and fibula is rated Under DC 5262. For disabilities evaluated based on limitation of motion, VA must apply the provisions of sections 4.40 and 4.45 on functional impairment. 38 C.F.R. §§ 4.40, 4.45. When applying these regulations, the VA must obtain examinations in which the examiner determines whether the disability manifests through weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. The examiner, if possible, should express these determinations in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain during flare-ups and after repetitive use over time. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011); DeLuca v. Brown, 8 Vet. App. 202, 208 (1995); 38 C.F.R. § 4.59. Notably, 38 C.F.R. § 4.59, entitled "Painful motion," states, in pertinent part, "The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint." 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." 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. Evaluating the same disability under several Diagnostic Codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one disorder is not duplicative of the symptomatology of the other disorder. 38 C.F.R. § 4.14; Esteban, 6 Vet. App. at 262. For example, a claimant with arthritis and knee instability may be rated separately under DCs 5003 and 5257, but separate ratings require separate compensable symptomatology. VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (Oct. 22, 1998); VAOPGCPREC 23-9, 62 Fed. Reg. 63,604 (Dec. 1, 1997); see also 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). A review of the record demonstrates that a rating in excess of 10 percent was not warranted for the left knee arthritis during the period on appeal. During the June 2007 examination, the Veteran reported weakness, stiffness, swelling, heat, redness, giving way, lack of endurance, locking, fatigability, and extreme pain. The June 2007 examiner found no evidence of left knee tenderness, disfigurement, ulceration, adherence, instability, tissue loss, inflammation, edema, keloid formation, hyperpigmentation, abnormal texture, effusion, weakness, redness, heat, abnormal movement, subluxation, locking pain, or crepitus. The examination revealed no signs of abnormal weight-bearing, need for an assistive device, or guarding of movement. Left knee flexion was limited to 130 degrees, and there was no limitation of left knee extension. In October 2008, the Veteran underwent a medical consultative examination that included an X-ray examination of his left knee. The X-ray showed small joint effusion and remote post-traumatic or surgical changes without evidence of acute osseous findings. The physical inspection of the Veteran's left knee demonstrated no gross deformity, appreciable swelling, localized tenderness, or restriction of active and passive ranges of motion of the major joints. The left knee had a full range of motion, but the Veteran resisted flexion due to complaints of pain. The Veteran had a gait abnormality, wide-based without antalgia and a slight limp favoring the left leg, but no restriction of effective ambulation or need of an assistive device. The Veteran was able to sit, stand, and move about without restriction. He reported limitation of abilities due to pain after prolonged standing and walking due to the residual hardware. The July 2007 report of the June 2007 examination and the October 2008 report are inadequate for VA rating purposes as they did not estimate functional loss during a flare-up as required by Sharp. A July 2020 VA physician provided an addendum medical opinion based on a review of the entire medical record and determined flare-ups would have caused limited walking, standing, and sitting due to pain in the left knee. Additional loss of range of motion during flare-ups and repeated use would have decreased flexion in the left knee to 100 degrees, and extension would not change. The Board finds that the preponderance of the evidence is against a rating over 10 percent for left knee arthritis. The Board acknowledges the Veteran's lay reports of symptoms and functional loss due to weakness, stiffness, swelling, heat, redness, giving way, lack of endurance, locking, fatigability, and extreme pain. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by his statements would not result in limitation of motion more nearly approximating a compensable rating under DCs 5260 or 5261. Under DCs 5260 and 5261, the Veteran's left knee arthritis would be noncompensable because left knee extension was not limited, and left knee flexion was at most limited to 100 degrees, including when considering factors such as flare-ups, repetitive use, active motion, passive motion, weight-bearing, non-weight-bearing, weakened movement, excess fatigability, and incoordination. Under DC 5260, evaluations of 10 percent are only warranted for flexion limited to 31-45 degrees. Thus, only if the flexion limitation reached 45 degrees would a 10 percent evaluation have been warranted under DC 5260 for the appeals period. Further, under DC 5261, only if the extension were limited to 10 degrees would a 10 percent rating be warranted. A 10 percent evaluation for left knee arthritis under DC 5010 is appropriate because the left knee arthritis resulting in functional loss was noncompensable under the applicable Diagnostic Codes; therefore, 38 C.F.R. § 4.59 allows consideration of functional loss for the joint due to painful motion to be rated to at the minimum compensable evaluation of 10 percent. All Diagnostic Codes pertaining to the knee and leg have been considered. 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, 6 Vet. App. at 261-62; Lyles, 29 Vet. App. 107. Separate ratings are not warranted under DCs 5256, 5257, 5258, 5259, or 5262, as the weight of the competent and probative evidence is against finding ankylosis, slight subluxation, lateral instability, a current dislocated semilunar cartilage, symptomatic removal of semilunar cartilage, or a tibial or fibular impairment. The preponderance of the evidence is against the appellant's claim for a rating in excess of 10 percent for left knee arthritis. Accordingly, the benefit-of-the-doubt doctrine is not applicable, and the increased rating for the entire period on appeal must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 1. A rating in excess of 20 percent for left lower extremity neuropathy. Unfortunately, there has not been substantial compliance with the Board's previous remand directives regarding the issue of left knee instability. Another remand is required to assess the current severity of the Veteran's left knee instability. Stegall v. West, 11 Vet. App. 268, 271 (1998). No medical opinion addresses the functional impact of the Veteran's left lower extremity neuropathy. 2. Entitlement to a TDIU. The Board finds that the claim of the increased rating for left lower extremity neuropathy (formerly part of the claim of an increased rating for a left leg disability) is inextricably intertwined with entitlement to a TDIU as the outcome of the increased rating claim may affect the appellant's TDIU claim, to include whether his combined disability rating meets the schedular threshold for a TDIU under 38C.F.R. §4.16(a). The Board defers consideration of the matter. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (stating that two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). The matters are REMANDED for the following action: (Continued on the next page) Obtain a new medical opinion to determine the severity of the Veteran's service-connected left lower extremity neuropathy. The examiner should opine and provide a rationale on whether the Veteran's lower extremity neuropathy, during the period on appeal (April 2007 through September 2013), manifested in complete paralysis or slight, moderate, or severe incomplete paralysis, neuritis, or neuralgia. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Costa, 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.