Citation Nr: 21070514 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 16-00 001 DATE: November 24, 2021 ORDER Entitlement to a rating in excess of 10 percent disabling for right knee disability is denied. Entitlement to a rating in excess of 10 percent disabling for left knee limitation of flexion is denied. Entitlement to an initial compensable rating for left knee limitation of extension is denied. FINDINGS OF FACT 1. Throughout the period on appeal, the right knee was not manifested by ankylosis, flexion limited to 60 degrees or less, extension limited to 10 or more degrees, a meniscal condition, subluxation or instability. 2. Throughout the period on appeal, the left knee was not manifested by ankylosis, flexion limited to 60 degrees or less, extension limited to 10 or more degrees, a meniscal condition, subluxation or instability. CONCLUSIONS OF LAW 1. Throughout the period on appeal, the criteria for a rating in excess of 10 percent disabling for right knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.71a, Diagnostic Codes (DCs) 5256-5263. 2. Throughout the period on appeal, the criteria for a rating in excess of 10 percent disabling for left knee disability based on limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.71a, DCs 5256-5263. 3. Throughout the period on appeal, the criteria for a rating in excess of 10 percent disabling for left knee disability based on limitation of extension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.71a, DCs 5256-5263. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1991 to September 1995. This matter is before the Board of Veterans' Appeals (Board) on appeal from August 2014 and April 2016 rating decisions by a Department of Veterans Affairs Regional Office (RO). These matters were previously remanded in October 2018 and March 2021. In July 2021, the Board remanded this case and instructed the Agency of Original Jurisdiction (AOJ) to obtain a VA examination. The Board notes that VA examination reports were obtained in August and September 2021. After reviewing the actions of the AOJ, the Board finds there was substantial compliance with the requested development. Dyment v. West, 13 Vet. App. 141 (1999); Stegall v. West, 11 Vet. App. 268 (1998). Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability ratings is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more nearly approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, that reasonable doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, and the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Staged ratings are appropriate for an increase rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When rating musculoskeletal disabilities on the basis of limited motion of a joint, VA must consider functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. §§ 4.40 and 4.45 are to be considered only in conjunction with diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Where functional loss is alleged due to pain upon motion, the function of the musculoskeletal system and movements of joints must still be analyzed. DeLuca v. Brown, 8 Vet. App. 202 (1995). A finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80 (1997). Similarly, painful motion alone does not constitute limited motion for the purposes of rating under diagnostic codes pertaining to limitation of motion. However, pain may result in functional loss if it limits the ability to perform normal movements with normal excursion, strength, speed, coordination, or endurance. Functional loss due to pain is to be rated at the same level as functional loss caused by some other factor that actually limited motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The regulations preclude the assignment of separate ratings for the same manifestations under different diagnoses. The critical element is that none of the symptomatology for any of the conditions is duplicative of or overlapping with symptomatology of the other conditions. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259 (1995). 1. Bilateral Knee Disability The Veteran filed an increased rating claim for his service-connected bilateral knee disability in March 2014. The evidence of record includes a July 2014 VA examination during which the Veteran reported constant pain since 2000, and that his knee symptoms had worsened with the right more severe than the left. He also reported flare-ups during which pain limited activities including prolonged standing, walking, climbing stairs, and repetitive kneeling, squatting and running. Range of motion (ROM) for the right knee was 0 degrees extension with no painful motion, and 130 degrees flexion with painful motion beginning at 120 degrees. ROM for the left knee was 0 degrees extension with no painful motion, and 120 degrees flexion with painful motion beginning at 110 degrees. Repetitive use testing reduced ROM for the right knee to 120 degrees flexion, and the left knee to 110 degrees flexion. Muscle strength and stability testing was normal. The examiner additionally estimated that repeated use and/or flare-ups reduced flexion by approximately 20 degrees, an estimate based on examination findings and lay statements. There was no evidence or history of recurrent patellar subluxation and the bilateral knee was not manifested by a meniscal condition. He did not use any assistive device. He underwent another VA examination in March 2016 during which he reported worsening symptoms. He also reported flare-ups and functional loss described as limiting prolonged activities due to pain, including standing, walking, climbing stairs, and repetitive kneeling, squatting and running. ROM testing was normal for the bilateral knee (0-140 degrees) with pain exhibited during right knee pain flexion and left knee extension and flexion. The examiner also noted mild to moderate tenderness to palpation along the anterior and patellar aspect. Repetitive use testing resulted in loss of ROM, including 0 to 130 degrees for the right knee, and 0 to 125 degrees for the left knee. The examiner also noted that the Veteran was being examined immediately after repetitive use over time, with right knee ROM further reduced to 125 degrees flexion, and left knee ROM further reduced to 5 degrees extension and 120 degrees flexion. No estimated was provided for ROM during flare-ups. Muscle strength and stability testing were normal. The bilateral knee was not manifested by ankylosis, a history of recurrent subluxation, lateral instability, effusion, or a meniscal condition. He did not use an assistive device for ambulation. In May 2016, a VA medical record noted full bilateral knee ROM. Medial joint line tenderness was noted with the left greater than the right. Anterior and posterior drawer tests were negative bilaterally. Motor strength was normal. See VA Medical Records Received May 2021. During a September 2016 VA examination, the Veteran reported that his bilateral knee condition had worsened, with the left knee worse than the right. He reported flare-ups and functional loss, during which pain limited his right knee in activities such as prolonged standing, walking and running, and during which pain limited his left knee in activities such as prolonged standing, walking, climbing stairs, and repetitive kneeling, squatting and running. ROM testing was normal for the right knee (0-140 degrees) with pain exhibited during flexion. The examiner also noted mild tenderness to palpation to the anterior and patellar aspect. ROM testing for the left knee was 0 to 130 degrees with pain exhibited during both extension and flexion. The examiner also noted mild to moderate tenderness to palpation to the anterior and patellar aspect. Repetitive use testing resulted in further loss of ROM, including 0 to 130 degrees for the right knee, and 0 to 125 degrees for the left knee. In addition, the examiner noted that the Veteran was being examined immediately after repetitive use over time, with right knee ROM further reduced to 125 degrees flexion, and left knee ROM further reduced to 115 degrees flexion. No estimated ROM was provided during flare-ups. Muscle strength and stability testing were normal. The bilateral knee was not manifested by ankylosis, a history of recurrent subluxation or lateral instability, or a meniscal condition. He did not use an assistive device for ambulation. A December 2016 VA medical record noted bilateral knee active movements within full limits. Functional testing was also normal. He currently denied any pain symptoms. See VA Medical Records Received May 2021. Another VA examination was obtained in August 2019. Current symptoms included a burning sensation. The Veteran reported flare-ups while biking or sitting too long. He denied having any functional loss. ROM testing revealed bilateral knee extension and flexion between 0 and 140 degrees with no pain exhibited during testing, and no objective evidence of localized tenderness or pain on palpation. The Veteran was able to perform repetitive use testing with no additional loss of function or further loss of ROM. The examiner noted that the Veteran was not being examined immediately after repetitive use over time or during a flare-up, but found that pain, weakness, fatigability or incoordination did not significantly limit functional ability during such episodes. Muscle strength and joint stability testing was normal. The bilateral knee was not manifested by ankylosis or a meniscal condition. He did not use any assistive device for ambulation. An April 2021 VA examination report shows the Veteran reported constant pain in the left knee, and intermittent pain in his right knee, with occasional swelling of both knees. He denied any flare-ups. Functional loss was reported to result in an inability to stand or walk for prolonged periods, and he further reported that his left knee gave out. The examiner noted a history of instability and frequent effusion. ROM testing for the right knee revealed extension and flexion between 0 and 130 degrees with no evidence of pain or objective evidence of localized tenderness or pain on palpation. ROM testing for the left knee revealed extension and flexion between 0 and 120 degrees with no evidence of pain or objective evidence of localized tenderness or pain on palpation. Repetitive use testing did not result in further loss of ROM. Although the Veteran was not being examined immediately following repeated use over time, the examiner noted that functional loss during such episodes caused functional loss due to pain, fatigability, weakness, and lack of endurance, and estimated further loss of flexion to 120 degrees for the right knee, and 110 degrees for the left knee. The bilateral knee was not manifested by ankylosis, recurrent subluxation, persistent or recurrent patellar instability, a ligament tear, or a meniscal condition. The Veteran was noted to have been prescribed knee braces. He last underwent a VA examination in August 2021, during which he reported that his symptoms had progressed and worsened, with intermittent pain with prolonged standing and walking. He also reported occasional knee swelling. He denied having any flare-ups. He additionally reported functional loss causing an inability to stand or walk for prolonged periods. ROM testing revealed extension and flexion between 0 and 130 degrees bilaterally with no evidence of pain or objective evidence of localized tenderness or pain on palpation. Repetitive use testing did not result in a change in ROM. The Veteran was not being examined immediately after repetitive use over time, but the examiner noted that evidence, including lay statements, suggested that pain, fatigability, weakness and lack of endurance significantly limited functional ability, and estimated additionally loss of flexion during such episodes to 120 degrees. Additional factors contributing to the disability included interference with sitting and standing, and disturbance of locomotion. The bilateral knee was not manifested by ankylosis, recurrent subluxation, persistent instability (including any patellar instability), a ligament tear or a meniscal condition. He did not use any assistive device for ambulation. The examiner estimated that throughout the period on appeal, based on a review of the evidence of record, bilateral knee ROM during flare-ups was reduced to 110 degrees flexion. Lastly, in a September 2021 VA examination addendum report, the examiner estimated that throughout the period on appeal, based on a review of the evidence of record, bilateral knee ROM during flare-ups was reduced to 5 degrees extension. Throughout the period on appeal, the Veteran's bilateral knee disability has been rated under 38 C.F.R. § 4.71a, DC 5260 based on painful flexion motion. The Veteran's left knee has also been assigned a non-compensable rating based on limitation of extension under 38 C.F.R. § 4.71a, DC 5261. Included within 38 C.F.R. § 4.71a are multiple DCs that evaluate impairment resulting from service-connected knee disorders, including DC 5256 (ankylosis), DC 5257 (other impairment, including recurrent subluxation or instability, and patellar instability), DC 5258 (cartilage, semilunar, dislocated with frequent episodes of "locking" pain, and effusion into the joint), DC 5259 (symptomatic removal of semilunar cartilage), DC 5260 (limitation of flexion), DC 5261 (limitation of extension), DC 5262 (impairment of the tibia and fibula), and DC 5263 (genu recurvatum). Initially, the Board notes that the Veteran's bilateral knee disability has not been manifested by a meniscal condition, impairment of the tibia and fibula or genu recurvatum at any time during the period on appeal. Additionally, the bilateral knee has not been manifested by ankylosis, or symptoms more nearly approximating functional ankylosis. Therefore, DCs 5256, 5258, 5259, 5262 and 5263 are not for application. Additionally, the Board notes that 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. With regard to the ratings concerning the knee, the revisions revised DC 5257 and 5262. As noted above, DC 5262 is not for application. DC 5257 is addressed below. Under DC 5260, limitation of flexion to 60 degrees warrants a non-compensable evaluation, and limitation of flexion to 45 degrees warrants a 10 percent evaluation. Limitation of flexion to 30 degrees warrants a 20 percent evaluation, and limitation of flexion to 15 degrees warrants a 30 percent evaluation. 38 C.F.R. § 4.71a. DC 5261 provides the rating criteria for limitation of extension of the leg. Under this diagnostic code, extension that is limited to 5 degrees is noncompensable; extension that is limited to 10 degrees warrants a 10 percent disability rating; and extension limited to 15 degrees warrants a 20 percent disability rating. Extension limited to 20 degrees warrants a 30 percent disability rating; extension limited to 30 degrees warrants a 40 percent disability rating; and extension limited to 45 degrees warrants a 50 percent disability rating. 38 C.F.R. § 4.71a. After a review of the evidence of record, the Board finds that ratings in excess of 10 percent disabling based on limitation of motion is not warranted. In this regard, throughout the period on appeal, the evidence of record does not demonstrate that either knee was manifested by forward flexion limited to 60 degrees or less, or extension limited to 10 degrees or less. Instead, the evidence of record shows that both knees have been limited, at worst, to 110 degrees flexion and 5 degrees extension. Thus, compensable disability ratings under either DC 5260 or 5261 are not for application. The Board has further considered ratings under DC 5257, which, as noted above, was recently revised effective February 7, 2021. Pursuant to the rating criteria in effect prior to February 7, 2021, under DC 5257, ratings were provided for subluxation or lateral instability. Effective February 7, 2021, DC 5257 provides ratings for recurrent subluxation or instability, and patellar instability. The Board recognizes the Veteran's reports that his left knee would give out on him. See April 2021 VA Examination Report. While he is competent to report observed symptoms such as giving way, he is not competent to provide a medical finding as to joint instability as such is a complicated medical issue. 38 C.F.R. § 3.159(a)(1)-(2); Jandreau v. Nicholson, 492 F.3d 1372 (2007). In any event, the Board finds the cumulative VA examination reports the most probative evidence of record as those examinations specifically conducted diagnostic testing to determine whether the bilateral knee was manifested by instability. All such diagnostic testing has been consistently negative. The Board concludes that if the Veteran had instability that more nearly approximated the criteria for a compensable rating under either the old or new rating criteria, such would have been shown upon objective testing at some point during the appeal period. Therefore, with regard to instability, the Board finds the VA examinations the most probative evidence of record, and a separate rating based on reported symptoms of instability is not warranted under either the old or new rating criteria. The Board further finds no basis for assigning any higher rating based on consideration of functional loss of either knee during this period on appeal. 38 C.F.R. §§ 4.40, 4.45, 4.59; Deluca, 8 Vet. App. at 204-06; Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011); Correia, 28 Vet. App. at 158. Here, the Veteran's bilateral knee disability has been assigned compensable ratings based on painful motion. See DeLuca v. Brown, 8 Vet. App. 202 (1995). In this regard, limitation of motion has been shown to be, at worst, 5 degrees extension and 110 degrees, flexion, and findings of limitation of motion have been provided based on flare-ups and after repeated use over time. Accordingly, as limitation of motion does not warrant compensable evaluations, the 10 percent ratings have been assigned based on painful motion and the criteria for higher ratings based on functional loss have not been met. 38 C.F.R. §§ 4.40, 4.45, 4.71a, DC 5260. Lastly, the Board recognizes the Veteran's assertion that the September 2016 VA examination was inadequate because the examiner failed to conduct an X-ray study or a physical examination. The Board finds the Veteran's assertion without merit. In this regard, a review of the September 2016 examination report shows that diagnostic testing necessary for rating the bilateral knee under the pertinent diagnostic codes was conducted. Additionally, there is no indication that an X-ray study was necessary in order to provide the diagnostic testing results. As such, the Board finds the September 2016 VA examination adequate. In any event, even if the Board were not to consider that examination, the outcome based on the numerous VA examinations conducted prior to and following the September 2016 examination all provided similar results. In sum, the Board finds that throughout the period on appeal, the preponderance of the evidence is against the assignment of ratings in excess of 10 percent disabling for bilateral knee limitation of flexion, or a compensable rating for left knee limitation of extension. The claims are denied. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.7, 4.71a, DCs 5256-5263; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Jenna Brant Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Lamb, 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.