Citation Nr: 21069989 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 18-01 520 DATE: November 22, 2021 ORDER Entitlement to a rating in excess of 10 percent for a right knee limitation of flexion is denied. Entitlement to a rating in excess of 10 percent for a left knee limitation of flexion during the appeal period prior to January 8, 2020 is denied. Entitlement to a 30 percent rating for a left knee limitation of flexion is granted from January 8, 2020 to November 18, 2020. REMANDED Entitlement to service connection for a right hip disability, to include as secondary to a service-connected disability, is remanded. Entitlement to service connection for a left hip disability, to include as secondary to a service-connected disability, is remanded. FINDINGS OF FACT 1. The Veteran's right knee disability is manifested by complaints of pain and swelling, with forward flexion ending at 70 degrees throughout the appeal period. 2. Prior to January 8, 2020, the Veteran's left knee disability manifested by complaints of pain and swelling, with forward flexion ending at, at worst, 70 degrees. 3. The Veteran's left knee disability is manifested by flexion limited to less than 15 degrees from January 8, 2020. 4. The Veteran underwent total left knee replacement in November 2020, and the Regional Office granted him 100 percent disability under Diagnostic Code 5055 from November 19, 2020. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for a right knee limitation of flexion have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5259-5260. 2. The criteria for a rating in excess of 10 percent for a left knee limitation of flexion prior to January 8, 2020 have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5259-5260. 3. The criteria for a 30 percent rating for a left knee limitation of flexion have been met from January 8, 2020 to November 18, 2020. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.14, 4.40, 4.45, 4.59, 4.71a, DC 5259-5260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from May 1982 to April 1988. This matter came before the Board through a September 2013 rating decision. In November 2020, the Board denied service connection for a bilateral hip disability and denied increased ratings for the bilateral knee disabilities. In June 2021, the parties' filed a Joint Motion for Partial Remand, which was granted by the Court of Appeals for Veterans Claims (Court), in which the parties argued that the Board relied on inadequate VA examinations and provided inadequate reasons for its decisions. Specifically, the parties agreed that the Board failed to ensure compliance with its November 2018 remand instructions, as the January 2020 VA examiner failed to provide an aggravation opinion pursuant to the Veteran's claim for secondary service connection for a right and left hip disability. Moreover, the parties agreed that the Board failed to provide an adequate reason for its decision denying the Veteran's increased rating claim for a right and left knee disability. The JMPR noted that the Board found that throughout the appeal the Veteran's bilateral knee flexion was limited to, at worst, 70 degrees; however, the Board failed to discuss the January 2020 VA examiner's finding that the Veteran's knee flexion was estimated to be between 0 and 10 degrees during flare-ups. The Veteran did not challenge the parts of the Board decision denying entitlement to a rating higher than 10 percent for right knee instability/subluxation prior to January 8, 2020, and a rating higher than 20 percent thereafter; entitlement to a rating higher than 30 percent for left knee instability/subluxation; and entitlement to a rating higher than 10 percent for a right knee disability based on limitation of extension. As such, only the limitation of flexion for the left and right knee pursuant to Diagnostic Code 5260 will be addressed. Finally, the Board notes that the Veteran had a total left knee replacement in November 2020. Prior to the surgery, the Veteran was rated 30 percent under DC 5003-5257 (subluxation) from January 8, 2020. The RO assigned temporary ratings of 100 percent for the period following the procedure, effective November 19, 2020, ending the Veteran's 10 percent rating under DC 5260 for his left knee (currently before the Board). Effective January 1, 2022, the Veteran is scheduled to be rated 30 percent disabling under DC 5055 (previously rated as left knee impairment of recurrent subluxation under DC 5003-5257). While DC 5055 and DC 5257 are not currently for appellate consideration, potential pyramiding must be addressed. Section 4.14 of title 38, Code of Federal Regulations ("Avoidance of pyramiding"), provides that "[t]he evaluation of the same disability under various diagnoses is to be avoided" and that "the evaluation of the same manifestation under different diagnoses [is] to be avoided." The separate rating prior to November 19, 2020 under DC 5260 did not violate the prohibition against pyramiding as limitation of flexion is not contemplated by the 30 percent rating that was assigned under DC 5257. See 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 261 (1994) (the critical element is that none of the symptomatology for any condition is duplicative of or overlapping with the symptomatology of the other condition). The Veteran has not disagreed with the January 2021 rating decision that assigned the temporary 100 percent rating from November 19, 2020 to December 31, 2021, with a 30 percent rating under DC 5055 scheduled to begin January 1, 2022, and ended the 10 percent rating under DC 5260 for his left knee as he has had a knee replacement and the residuals are evaluated under DC 5055. These ratings are not before the Board. The Veteran has until January 21, 2022, to disagree with any aspect of the January 2021 rating decision if he wishes to do so. INCREASED RATING The Veteran contends that he is entitled to a higher rating for his right and left knee disabilities. Currently, his service-connected right and left knee disabilities are assigned evaluations of 10 percent based on pain. These ratings were assigned pursuant to a September 2013 rating decision that the Veteran appealed. As noted above, the CAVC remanded the issue of entitlement to a rating higher than 10 percent for each knee based on failure to provide an adequate basis for its decision. Again, although there were/are separate ratings for the knees, only the flexion ratings were appealed to the Court, and the subluxation/instability and extension ratings are no longer on appeal. Under Diagnostic Code 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, Diagnostic Code 5260. 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; 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 criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). 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. 1. Entitlement to a rating in excess of 10 percent for a right knee limitation of flexion is denied. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for the right knee disability based on limitation of flexion. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to painful motion and difficulty walking due to pain. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the Veteran's statements regarding functional limitations after repetitive use and during flare-ups would not result in limitation of flexion limited to less than 70 degrees. During the Veteran's August 2013 VA examination, the Veteran's right knee flexion was limited to 130 degrees. His flexion was limited to 115 degrees after repetitive use; however, no objective evidence of painful motion was noted. The examiner noted a meniscal tear, no patellar subluxation, and no shin splints. Degenerative arthritis was documented in diagnostic testing. A private evaluation report in May 2017 noted constant knee pain. The Veteran also stated he experienced clicking, popping and giving way. Flexion was limited to 70 degrees with pain. During the Veteran's January 2020 VA examination, he reported that his right knee flares up four times per week, lasting for up to 15 minutes. He stated the flare-ups are sharp, moderate, and the pain is a 7 to 8 out of 10. The Veteran stated that he loses up to 30 percent of his range of motion in his right knee during a flare-up. The Veteran stated he is unable to squat, climb, or run due to his bilateral knee condition and can walk up to one mile. The Veteran also stated that he is able to stand for up to 15 minutes and sit for up to 30 minutes due to his bilateral knee condition. The examiner rated the Veteran's right knee flexion strength as a 4 out of 5. The Veteran stated he has swelling in the right knee twice a month lasting up to two days. The Veteran's initial range of motion was limited to 0 to 100 degrees on flexion with evidence of pain and tenderness to palpation. The Veteran was able to perform three repetitions with additional functional loss, resulting in a range of motion of 10 to 100 degrees. Factors causing this functional loss were pain, fatigue, and weakness. While the examination was not conducted during a flare-up, the examiner estimated that the Veteran's flexion of the right knee would be limited to 70 degrees during a flare-up. The above VA examinations indicate that the Veteran has had flexion of at least 70 degrees or more (including after repetitive use over time and during flare-ups). The limitation on flexion does not meet the criteria for any compensable rating. However, the functional limitations associated with the pain, including pain on movement, more closely approximate the symptoms and functional limitations associated with a 10 percent rating. This is the currently assigned rating based on limitation of flexion. The Veteran stated to the 2020 VA examiner that he loses up to 30 percent of his range of motion in his right knee during a flare-up. Even if the Board were to fully credit this statement, that would mean the 100 degrees of flexion he showed during that exam would be reduced to 70 degrees during a flare-up. This still would not warrant a higher rating. The JMPR stated the examiner found knee flexion was estimated to be between 0 and 10 degrees during flares. Rather, the examination report indicated knee flexion was estimated to be 0 to 100 degrees during flares and range of motion after repetitive use testing was 10 to 100 degrees. In the remarks section, the examiner reported the Veteran's statement about losing 30 percent of motion during a flare and then indicated "so when the Veteran has a flare up of his right knee his flexion of his right knee is 7 degrees and the extension of his right knee is 10 degrees." This was clearly a typographical error as a 30 percent reduction from 100 degrees is 70 degrees, not 7. The actual findings within the examination report show 100 degrees flexion for the right knee and a reduction to 7 degrees would reflect more than 90 percent of motion lost during a flare. There is no support for such a reduction in motion either in the medical evidence or even when fully considering the Veteran's estimate of lost motion ("30 percent"). Considering the context of the report as a whole, the Board finds the "7" in the remarks section was a typographical error and should have read "70." The greater weight of the evidence is against finding that any rating in excess of 10 percent is warranted for the right knee disability based on limitation of flexion. That rating adequately compensates for all the symptoms and functional limitations of the Veteran's right knee disability. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for a rating in excess of 10 percent for his right knee disability based on limitation of flexion. In denying any higher rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to a rating in excess of 10 percent for a left knee limitation of flexion during the appeal period prior to January 8, 2020 is denied. 3. Entitlement to a 30 percent rating for a left knee limitation of flexion is granted from January 8, 2020 to November 18, 2020. During the Veteran's August 2013 VA examination, the Veteran's left knee flexion was limited to 130 degrees. His flexion was limited to 115 degrees after repetitive use; however, no objective evidence of painful motion was noted. The Veteran's muscle strength was rated 5 out of 5 for his left knee flexion. The examiner noted a meniscal tear, no patellar subluxation, and no shin splints. Degenerative arthritis was documented in diagnostic testing. A private evaluation report in May 2017 noted constant knee pain. The Veteran also stated he experienced clicking, popping and giving way. Flexion was to 70 degrees with pain. The above VA examinations indicate that the Veteran has had flexion of at least 70 degrees or more (including after repetitive use over time and during flare-ups). The limitation on flexion does not meet the criteria for any compensable rating. However, the functional limitations associated with the pain, including pain on movement, more closely approximate the symptoms and functional limitations associated with a 10 percent rating. This is the currently assigned rating based on limitation of flexion. During the Veteran's January 2020 VA examination, he reported that he experienced daily left knee flare-ups, lasting for up to 30 minutes. He stated the pain from the flare-ups was a 10 out of 10. The Veteran further stated that he would lose 100 percent of motion of his left knee during a flare-up. The Veteran stated in general he is unable to squat, climb, or run due to his bilateral knee condition and can walk up to one mile. During the examination, the Veteran was unable to complete a left knee range of motion test because he was having too much pain. The examiner indicated there was pain with weight bearing and tenderness to palpation. The Veteran stated that he is able to stand for up to 15 minutes and sit for up to 30 minutes due to his bilateral knee condition. The Veteran notes pain during passive movement and non-weight bearing. The examiner rated the Veteran's left knee flexion strength as a 3 out of 5. The Veteran stated he has swelling in the left knee weekly which lasts until the fluid in the left knee is drained. The examiner stated that pain, fatigue, weakness, lack of endurance, and incoordination limited functional ability during a flare up. In response to Sharp v. Shulkin testing, the examiner opined that the Veteran has zero degrees flexion during a flare-up. The examiner did not provide an opinion regarding ankylosis. Based on the examiner's opinion that the Veteran has zero degrees flexion during a flare-up, the Veteran's left knee was in too much pain during the examination to conduct range of motion testing, and the Veteran's statements regarding his left knee pain, and with application of the benefit of the doubt doctrine, the Veteran is entitled to a 30 percent rating for his left knee limitation of flexion, effective January 8, 2020. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. However, as discussed above, prior to that date, the 10 percent rating for limited, painful flexion was appropriate. The Board has considered a higher rating under DC 5256. Under DC 5256, a 30 percent rating is warranted for knee ankylosis with a favorable angle in full extension, or in slight flexion between zero and 10 degrees. A 40 percent rating is warranted for knee ankylosis in flexion between 10 degrees and 20 degrees. As there is no evidence to support a higher rating of 40 percent under DC 5256, a rating in excess of 30 percent is not applicable. Although the Veteran states he has no motion possible during flare-ups, the knee is not ankylosed. REASONS FOR REMAND Pursuant to the JMPR, a new opinion is warranted regarding the Veteran's right and left hip disability, to obtain an adequate secondary service connection aggravation opinion. The Veteran underwent a VA examination in January 2020. The examiner opined that it was less likely than not that the Veteran's bilateral hip disability was caused by or aggravated beyond the baseline level by the Veteran's knee and ankle disabilities. The examiner rationalized that "according to WebMD, knee and ankle conditions are not included in the list of usual causes of hip pain." However, the examiner did not address the theory of aggravation, which could also result in a grant of service connection. 38 C.F.R. § 3.310(b); see generally El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013). The matters are REMANDED for the following action: Forward the Veteran's claims file to a VA examiner for an aggravation opinion regarding the Veteran's bilateral hip disability. Following a review of the relevant records and lay statements, the examiner is asked to provide a response to the following: (a.) Is the Veteran's right hip disability at least as likely as not aggravated, i.e., worsened beyond its natural progression, by the Veteran's service-connected disabilities, to include his bilateral knee and bilateral ankle disabilities? (b.) Is the Veteran's left hip disability at least as likely as not aggravated, i.e., worsened beyond its natural progression, by the Veteran's service-connected disabilities, to include his bilateral knee and bilateral ankle disabilities? Aggravation is defined as any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease. The examiner is advised that a finding that the Veteran's bilateral hip disabilities were aggravated beyond the normal progression due to a service-connected disability does not require evidence of permanent worsening and may encompass any additional impairment in earning capacity resulting from an already service-connected condition. A complete rationale should be provided for all opinions. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Townsend, 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.