Citation Nr: 21069424
Decision Date: 11/18/21	Archive Date: 11/18/21

DOCKET NO. 12-07 945
DATE: November 18, 2021

ISSUES

1. Entitlement to a disability rating in excess of 10 percent for degenerative joint disease (DJD) of both knees prior to November 18, 2013.

2. Entitlement to a disability rating in excess of 10 percent for DJD of the left knee from November 18, 2013.

3. Entitlement to a disability rating in excess of 10 percent for DJD of the right knee from November 18, 2013.

ORDER

Entitlement to a disability rating of 10 percent, but no higher, for DJD of the left knee from May 2, 2011, to November 17, 2013, is granted.

Entitlement to a disability rating of 10 percent, but no higher, for DJD of the right knee from May 2, 2011, to November 17, 2013, is granted.

Entitlement to a disability rating in excess of 10 percent for DJD of the left knee from November 18, 2013, is denied.

Entitlement to a disability rating in excess of 10 percent for DJD of the right knee from November 18, 2013, is denied.

FINDINGS OF FACT

1. From May 2, 2011, to November 17, 2013, the Veteran's DJD of the left knee was manifested by painful motion, limitation of flexion at worst to 140 degrees, limitation of extension at worst to zero degrees; ankylosis was not shown. 

2. From May 2, 2011, to November 17, 2013, the Veteran's DJD of the right knee was manifested by painful motion, limitation of flexion at worst to 140 degrees, limitation of extension at worst to zero degrees; ankylosis was not shown.

3. From November 18, 2013, the Veteran's DJD of the left knee has been manifested by painful motion, limitation of flexion at worst estimated to be 90 degrees during a flare-up, limitation of extension at worst to zero degrees; ankylosis has not been shown.

4. From November 18, 2013, the Veteran's DJD of the right knee has been manifested by painful motion, limitation of flexion at worst estimated to be 90 degrees during a flare-up, limitation of extension at worst to zero degrees; ankylosis has not been shown.

CONCLUSIONS OF LAW

1. From May 2, 2011, to November 17, 2013, the criteria for a separate disability rating of 10 percent, but no higher, for DJD of the left knee have been met. 38 U.S.C. §§ 1155, 5107, 7104 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.20, 4.45, 4.59, 4.71a, Diagnostic Codes 5003-5260 (2020).

2. From May 2, 2011, to November 17, 2013, the criteria for a separate disability rating of 10 percent, but no higher, for DJD of the right knee have been met. 38 U.S.C. §§ 1155, 5107, 7104 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.20, 4.45, 4.59, 4.71a, Diagnostic Codes 5003-5260 (2020).

3. From November 18, 2013, the criteria for a disability rating in excess of 10 percent for DJD of the left knee have not been met or approximated. 38 U.S.C. §§ 1155, 5107, 7104 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.20, 4.45, 4.59, 4.71a, Diagnostic Codes 5003-5260 (2020).

4. From November 18, 2013, the criteria for a disability rating in excess of 10 percent for DJD of the right knee have not been met or approximated. 38 U.S.C. §§ 1155, 5107, 7104 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.20, 4.45, 4.59, 4.71a, Diagnostic Codes 5003-5260 (2020).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active duty for training from January 1989 to April 1989; and active duty from March 2003 to September 2003 and from January 2005 to July 2006.

This matter comes before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO).

In March 2017 the Veteran was afforded a videoconference hearing before the undersigned. A copy of the transcript is of record.

When this case was most recently before the Board in March 2021, it was decided in part and remanded in part for additional evidentiary development. It has since returned to the Board for further appellate action. The Board finds that there has been substantial compliance with the remand directives in regards to the claims on appeal, and the case has been properly returned to the Board for further appellate action. See Stegall v. West, 11 Vet. App. 268, 271 (1998).

VA's Duty to Notify and Assist

The Veteran Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed.Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board).

The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000).

Increased Rating Claims

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2017). 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 conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1 (2017).

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.

It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2017).

If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107 (2002); 38 C.F.R. §§ 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3.

In accordance with 38 C.F.R. §§ 4.1, 4.2 (2017) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the Veteran's service-connected disabilities. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes.

The Board notes that, when it is not possible to separate the effects of a non-service-connected condition from those of a service-connected disorder, reasonable doubt should be resolved in the claimant's favor with regard to the question of whether certain signs and symptoms can be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998); see also 38 C.F.R. § 3.102.

In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § § 4.1 (2013); Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. The determination of whether an increased disability rating is warranted is to be based on a review of the entire evidence of record and the application of all pertinent regulations. See Schafrath, 1 Vet. App. 589.

When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See 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 [or 4.73] criteria.").

The final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016).

Additionally, the United States Court of Appeals for Veterans' Claims (Court) recently addressed what constitutes an adequate explanation for an examiner's inability to estimate motion loss in terms of degrees during periods of flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. 

The Board also notes recent case law where the Court held that 38 C.F.R. § 4.59 does not solely condition the evaluation based on range of motion measurements for a particular diagnostic code, but rather "it conditions that award on evidence of an actually painful, unstable, or maligned joint or periarticular region and the presence of a compensable evaluation in the applicable diagnostic code." Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (2016).

The Board considers not only the criteria of the currently assigned diagnostic codes, but also the criteria of other potentially applicable diagnostic codes. 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. However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed. See 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 [or her] earning capacity." See 38 U.S.C. § 1155 (2012); 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, if a veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes. See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993).

The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and the demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625 (1992).

Knee Disabilities: Legal Standards

The Veteran is currently rated under two separate sets of diagnostic codes for each knee, Diagnostic Codes 5003-5260. 

In assigning hyphenated diagnostic codes, the number assigned to the residual condition on the basis of which the rating is determined will generally represent injuries. Diseases will be identified by the number assigned to the disease itself, with the residual condition added, preceded by a hyphen. 38 C.F.R. § 4.27.

Included within 38 C.F.R. § 4.71a are multiple Diagnostic Codes that evaluate impairment resulting from service-connected knee disorders, including Diagnostic Code 5256 (ankylosis), Diagnostic Code 5257 (other impairment, including recurrent subluxation or lateral instability), Diagnostic Code 5258 (dislocated semilunar cartilage), Diagnostic Code 5259 (symptomatic removal of semilunar cartilage), Diagnostic Code 5260 (limitation of flexion), Diagnostic Code 5261 (limitation of extension), Diagnostic Code 5262 (impairment of the tibia and fibula), and Diagnostic Code 5263 (genu recurvatum).

However, based on the medical evidence before the Board, ankylosis, impairment of the tibia and fibula, and genu recurvatum have not been found or associated with the Veteran's knee disabilities and thus will not be considered here.

VA's schedule of musculoskeletal rating changes, found in 38 C.F.R. § 4.71a, was modified with the changes in effect on February 7, 2021. See 85 Fed. Reg. 76453 (Nov. 30, 2020). A small modification was also made to Diagnostic Code 5003, which was announced in a corrected final rule. See 85 Fed. Reg. 85523 (Dec. 29, 2020). Pertinent to this particular appeal, Diagnostic Code 5003 was modified in its title to now read "Degenerative arthritis, other than post-traumatic." Id. No other changes pertinent to this claim are applicable for this particular appeal.

Absent any Congressional intent or directive with regard to new or revised regulations, when a claim originates prior to the effective date of the new language but is decided after the effective date, VA will use the version that provides the Veteran a greater benefit. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003).

Diagnostic Code 5257 (pre-February 7, 2021) provides ratings for recurrent subluxation and/or lateral instability of the knee. A 10 percent rating is assigned for slight recurrent subluxation and/or instability of the knee. A 20 percent rating is warranted for moderate recurrent subluxation or lateral instability; and a 30 percent rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (prior to Feb. 7, 2021). The new language of Diagnostic Code 5257 that took effect on February 7, 2021, now reads for recurrent subluxation or lateral instability, a 10 percent rating is assigned for sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 20 percent rating is assigned for one of the following: (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation; or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 30 percent rating is assigned for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. However, the Board notes that this diagnostic code is not pertinent to the Veteran's disabilities.

The remainder of the pertinent diagnostic codes are unchanged and are as follows.

Under Diagnostic Code 5260, a non-compensable rating will be assigned for limitation of flexion of the leg to 60 degrees; a 10 percent rating will be assigned for limitation of flexion of the leg to 45 degrees; a 20 percent rating will be assigned for limitation of flexion of the leg to 30 degrees; and a 30 percent rating will be assigned for limitation of flexion of the leg to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260.

Under Diagnostic Code 5261, a non-compensable rating will be assigned for limitation of extension of the leg to 5 degrees; a 10 percent rating will be assigned for limitation of extension of the leg to 20 degrees; a 20 percent rating will be assigned for limitation of extension of the leg to 15 degrees; a 30 percent rating will be assigned for limitation of extension of the leg to 20 degrees, a 40 percent rating will be assigned for limitation of extension to 30 degrees, and a 50 percent rating will be assigned for limitation of extension to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261.

Normal range of motion of the knee is to zero degrees extension and to 140 degrees flexion. See 38 C.F.R. § 4.71a, Plate II.

For Diagnostic Code 5003, degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (Diagnostic Code 5200 etc.). When however, the 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 or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, rate as follows: a 10 percent evaluation is assigned for painful or limited motion of a major joint or group of minor joints and may also be applied once to multiple joints if there is no limited or painful motion. A 20 percent is assigned for X-ray evidence that shows involvement of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations. Note (1): The 20 percent and 10 percent ratings based on X-ray findings, above, will not be combined with ratings based on limitation of motion. 38 C.F.R. § 4.71a.

The terms "slight," "marked," "moderate," and "severe" are not defined in the rating schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to arrive at a just and equitable decision. Additionally, the use of such terminology by VA examiners and others, although an element to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6.

Evidence and Analysis Prior to November 18, 2013

The Veteran filed a claim for increased ratings for his bilateral knees on May 2, 2011. As such, the Board focused on the disability level from one year immediately preceding the claim. See 38 U.S.C. § 5110 (b)(2) and 38 C.F.R. § 3.400 (o)(2) (stating that in assessing the present level of disability, the relevant temporal focus is from one year immediately preceding the filing of the increased-rating claim); Hart v. Mansfield, 21 Vet. App. 505 (2007). However, as outlined below, the Board did not find an increase in the disability level for the knees prior to May 2011.

Historically, a 10 percent rating was continued for the bilateral knees in May 2013. The Veteran filed a notice of disagreement in January 2014. 

Subsequently, in an October 2014 rating decision, a separate evaluation of 10 percent was granted for right knee DJD effective November 18, 2013.  A separate evaluation of 10 percent was also granted for left knee DJD effective November 18, 2013. The RO stated that VA treatment records noted subjective complaints of knee pain (more complaints concerning the right knee than the left knee) and noted that the Veteran was prescribed pain medication.

A VA treatment record shows complaint of bilateral knee pain on May 4, 2011. The Veteran described the pain as chronic, sharp, made worse with activity, and with a level of 7 out of 10.  Review of the evidence of record did not show an increase in the disability level for the knees prior to the May 2011 VA treatment note.

In response to the Veteran's claim, he was afforded a VA examination in July 2011 in which the treatment for his knees was noted to include a brace and pain medication. He reported bilateral knee pain, the right being worse than the left. Physical examination showed left knee flexion to 140 degrees and extension to 0 degrees. Physical examination showed right knee flexion to 140 degrees and extension to 0 degrees.

The Veteran's spouse submitted a statement in August 2011, attesting to his knee pain.

For the Veteran's right knee and left knee DJD under Diagnostic Codes 5003 and 5260, from May 2, 2011, to November 17, 2013, the Board finds that a 10 percent evaluation for each knee, but no higher, is warranted. While the flexion measurements in this period would not warrant a compensable rating for the right knee or the left knee, a rating of 10 percent is appropriate here due to painful motion of each knee, where the minimum compensable evaluation is 10 percent because 38 C.F.R. § 4.59 allows for consideration of functional loss due to painful motion to be rated to at least the minimum compensable rating for a particular joint. Painful, unstable, or misaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint, 10 percent. 38 C.F.R. § 4.59; see Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (2016); Petitti v. McDonald, 27 Vet. App. 415 (2015). 

A higher evaluation of 20 percent is not warranted for limitation of flexion unless the evidence shows a limitation of flexion to 30 degrees or limitation of extension to 15 degrees under Diagnostic Codes 5260 and 5261. This has never been shown, even with consideration of additional loss of motion due to pain and swelling during flare-ups.

Evidence and Analysis From November 18, 2013

The Veteran was afforded a VA examination in October 2016 in which he reported extreme pain all the time, that he had difficulty walking by the end of the day, and he had occasional swelling. He did not report flare-ups. Physical examination of the right knee showed flexion to 120 degrees; extension to 0 degrees; and pain was noted in flexion. Physical examination of the left knee showed  flexion to 120 degrees; extension to 0 degrees; and pain was noted in flexion.

The Veteran also testified before the undersigned as to the constant pain in his knees.

The Veteran was afforded a VA-contracted examination in March 2018 in which he reported pain, stiffness, swelling, and difficulty going up and down stairs. Physical examination of the right knee showed flexion to 80 degrees, extension to 0 degrees, and pain in flexion and extension. Physical examination of the left knee showed flexion to 75 degrees, extension to 0 degrees, and pain in flexion and extension. Pain was also noted in passive and non-weight bearing range of motion for both knees.

The Veteran was afforded a VA-contracted examination in September 2020 in which he reported pain that got worse with use of his knees, swelling, and flare-ups that were relieved by rest, heat, and massages. Physical examination of the right knee showed flexion to 110 degrees, extension to 0 degrees, and pain in flexion, extension, and weight-bearing. Physical examination of the left knee showed flexion to 105 degrees, extension to 0 degrees, and pain in flexion, extension, and weight-bearing. Pain was also noted on passive and non-weight bearing range of motion for both knees.

The Veteran was afforded a VA-contracted examination in July 2021 in which he reported chronic achy pain in both knees that was worse when he used them a lot. He reported flare-ups in which he could not squat and had a hard time standing. Physical examination for the right knee showed flexion to 120 degrees, extension to 0 degrees, pain in flexion and extension (in both active and passive ranges of motion) with endpoints that were not different than the initial ranges of motion. Physical examination of the left knee showed flexion to 110 degrees, extension to 0 degrees, pain in flexion and extension (in both active and passive ranges of motion) with endpoints that were not different than the initial ranges of motion. Estimation of the range of motion for the right and left knees during a flare-up was to 90 degrees and extension to 0 degrees.

For the Veteran's right knee and left knee DJD under Diagnostic Codes 5003 and 5260 from November 18, 2013, the Board finds that ratings in excess of 10 percent are not warranted. While the flexion measurements in this period would not warrant a compensable rating for the right knee or the left knee, a rating of 10 percent is appropriate here due to painful motion of each knee, where the minimum compensable evaluation is 10 percent because 38 C.F.R. § 4.59 allows for consideration of functional loss due to painful motion to be rated to at least the minimum compensable rating for a particular joint. Painful, unstable, or misaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint, 10 percent. 38 C.F.R. § 4.59; see Southall-Norman, 28 Vet. App. 346, 352; Petitti, 27 Vet. App. 415. 

A higher evaluation of 20 percent is not warranted for limitation of flexion unless the evidence shows a limitation of flexion to 30 degrees or limitation of extension to 15 degrees under Diagnostic Codes 5260 and 5261. This has never been shown, even with consideration of additional loss of motion due to pain and swelling during flare-ups.

The Board notes the use of the version of 38 C.F.R. § 4.71a, Diagnostic Codes 5003 and 5260 in effect prior to February 7, 2021, provides the greatest benefit to the Veteran for his bilateral knee disabilities at this time. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003).

The Board has considered other diagnostic codes for the Veteran's right knee and left knee disabilities, to include instability (Diagnostic Code 5257), ankylosis (Diagnostic Code 5256), disabilities involving cartilage, semilunar, dislocated, with frequent episodes of locking, pain, and effusion into the joint (Diagnostic Code 5258), removal of the semilunar cartilage (Diagnostic Code 5259), extension (Diagnostic Code 5261), malunion/nonunion of the tibia and fibula (Diagnostic Code 5262), and genu recurvatum (Diagnostic Code 5263), and found them to not apply to the Veteran's right knee or left knee disability picture in this period. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5258, 5259, 5260, 5261, 5262, 5263.

The Board is cognizant that VA examiners have recorded different ranges of motion, but all examiners have noted the consistent pain. Furthermore, the Veteran's lay statements are consistent over time and correspond to the medical evaluations and treatment notes in the record. "[O]bjective evidence does not necessarily mean [only] medical evidence." Petitti v. McDonald, 27 Vet. App. 415, 427 (2015); see Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (2016). The Veteran is competent to report pain on motion and limitation of movement. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24 Vet. App. 428 (2011). Moreover, the Board finds him credible, as his reports are internally consistent and there is no evidence to the contrary. Caluza v. Brown, 7 Vet. App. 498 (1995).

Additionally, the Board has considered the statements regarding flareups by the Veteran, but based on the medical evidence, even with estimates of motion loss in terms of degrees during periods of flare-ups, the criteria for higher evaluations based on range of motion have not been met or approximated. Sharp, 29 Vet. App. 26.

All potentially applicable diagnostic codes have been considered, and there is no basis to assign an alternative evaluation for the Veteran's right knee or left knee disabilities other than that discussed above. See Schafrath, 1 Vet. App. 589, 593. Staged ratings are not warranted beyond that discussed, as the Veteran has had a stable level of symptomatology throughout the appeal period. Any increases in severity were not sufficient for a higher rating for the reasons discussed above. See Hart, 21 Vet. App. 505.  

 

MICHAEL A. PAPPAS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	R.M.K., 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.