Citation Nr: 21070934 Decision Date: 11/27/21 Archive Date: 11/27/21 DOCKET NO. 18-39 759 DATE: November 27, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for left knee osteoarthritis with chondrocalcinosis is denied. FINDING OF FACT During the period on appeal, the Veteran's left knee disability was manifested by pain; flexion limited to no more than 80 degrees with repeated use over time and during flare ups; and no limitation of extension. CONCLUSION OF LAW The criteria for entitlement to a disability rating in excess of 10 percent for left knee osteoarthritis with chondrocalcinosis have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5260-5010. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1966 to January 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). As a matter of background, the Board previously denied the Veteran's claim in an April 2020 decision. The Veteran appealed the Board's April 2020 decision to the United States Court of Appeals for Veterans Claims (Court). A February 2021 Court order vacated and remanded the issue on appeal pursuant to a February 2021 Joint Motion for Remand (JMR). Specifically, the parties agreed that a January 2020 VA examination was inadequate because it was based on an inaccurate factual premise warranting a new VA examination. As such, the issue was returned to the Board for readjudication. In July 2021, the Board remanded the issue on appeal pursuant to the February 2021 JMR in order to afford the Veteran with a new VA examination. A review of the record shows substantial compliance with the Board's remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). In February 2019, the Veteran submitted a VA Form 21-4138 RAMP Selection and selected three different review options under the modernized appeals system. In February 2019, the RO advised the Veteran in writing that it could not process his request as a result of him selecting multiple review options and requested that he submit a new VA Form 21-4138 RAMP Opt-in Election. The Veteran did not do so and as a result, the appeal remains in the Legacy System and is being processed accordingly. The Board is also cognizant of the ruling of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on individual unemployability due to service-connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the Veteran nor his representative have argued that the Veteran's left knee disability renders him unemployable. Additionally, the record does not otherwise reflect that the Veteran is unemployable on account of his service-connected left knee disability. Accordingly, the Board concludes that a claim for a TDIU has not been raised. Entitlement to a disability rating in excess of 10 percent for left knee osteoarthritis with chondrocalcinosis. The Veteran seeks a disability rating in excess of 10 percent for his left knee osteoarthritis with chondrocalcinosis. See April 2017 VA Form 21-526. Specifically, the Veteran contends that his left knee disability has worsened in pain. See June 2017 Notice of Disagreement (NOD). The Veteran's increased rating claim was received on April 3, 2017. Therefore, the relevant rating period is from April 3, 2016, one year prior to receipt of the claim, through the present. 38 C.F.R. § 3.400(o)(2). Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Schedule), which assigns ratings based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. Disability evaluations are determined by assessing the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule. If there is a question as to which evaluation should be applied to the veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). 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). Pain may cause a functional loss but itself does not constitute functional loss; rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Mitchell, 25 Vet. App. at 33, 43. 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). 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. The Veteran's left knee disability is currently rated as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5260-5010. Hyphenated DCs are used when a rating under one DC requires use of an additional DC to identify the basis for the assigned rating. The hyphenated disability will be rated by analogy under a DC for a closely related disability that affects the same anatomical functions and has closely analogous symptomatology. 38 C.F.R. §§ 4.20, 4.27. The hyphenated DC indicates that limitation of the left leg flexion (DC 5260) was rated under the criteria for post-traumatic arthritis (DC 5010). The Board notes that the schedular criteria for the muscular skeletal system, to include the knee, have been amended during the pendency of the Veteran's appeal, effective February 7, 2021. See 85 Fed. Reg. 230 (Nov. 30, 2020). If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of the change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. The Board notes there were no changes to DC 5260. Under the prior DC 5010, traumatic arthritis is rated under DC 5003 as degenerative arthritis. Under both the prior and new DC 5003, degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate DCs for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate DCs, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion. A rating of 20 percent is assigned for each such major joint or group of minor joints, with occasional incapacitating exacerbations, affected by limitation of motion. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a. Under DC 5260, a noncompensable (0 percent) disability rating is warranted for limitation of flexion to 60 degrees. See 38 C.F.R. § 4.71a, DC 5260. A 10 percent disability rating is warranted for limitation of flexion to 45 degrees. Id. A 20 percent disability rating is warranted for limitation of flexion to 30 degrees. Id. A 30 percent disability rating is warranted for limitation of flexion to 15 degrees. Id. The Board finds that a rating in excess of 10 percent is not warranted. VA treatment records during the period on appeal demonstrate the Veteran's reports of worsening left knee pain and use of a knee brace. See March 2018, June 2018, September 2018, April 2019, December 2019 VA treatment records. During the appeal period, the Veteran was afforded a VA examination in May 2017. The May 2017 VA examination does not support a higher rating in excess of 10 percent is warranted. In that regard, the May 2017 VA examiner noted the Veteran's report that his left knee disability resulted in flare ups, was weaker, and that he started wearing a brace. See May 2017 VA examination. Upon examination, the Veteran demonstrated an initial range of motion of the left knee flexion to 130 degrees and no limitation of extension. Id. There was no pain noted upon examination, in weight bearing or in non-weight bearing, or in passive range of motion. Id. The VA examiner noted there was no additional functional loss or loss of range of motion after three repetitions. Id. The VA examiner noted the examination was conducted immediately after repetitive use over time and during a flare up with no additional factors significantly limiting functional ability. Id. The VA examiner noted the Veteran's muscle strength was normal; there was no muscle atrophy or ankylosis; no history of recurrent subluxation or lateral instability; and no joint instability upon testing. Id. The VA examiner noted the Veteran used a brace on a constant basis. Id. The VA examiner noted the functional impact of the Veteran's left knee condition limits his standing. Id. Based on these findings, a rating in excess of 10 percent for his left knee disability is not warranted under 38 C.F.R. § 4.71a, DC 5260. The Veteran was afforded a VA examination in January 2020. The Veteran reported left knee pain; intermittent and recurrent knee discomfort with occasional swelling; pain aggravated by standing on hard surfaces and walking for extended periods of time; and denied knee locking, giving way, and flare ups. See January 2020 VA examination. The Veteran reported that he does not run, engage in high activities, and cannot fully squat. Id. Upon examination, the Veteran demonstrated flexion to 120 degrees and no limitation of extension. Id. There was pain noted on examination that causes functional loss. Id. There was no evidence of pain with weight bearing. Id. The Veteran was able to do repetitive use testing with no additional loss or range of motion after three repetitions. Id. The VA examiner noted the examination was been performed after repeated use over time and that pain and lack of endurance limited functional ability. Id. The VA examiner estimated flexion to 115 degrees and no limitation of extension with repeated use over a period of time. Id. The VA examiner noted there was no muscle atrophy, ankylosis, history of recurrent subluxation, history of effusion, or instability. Id. As noted, the parties agreed the January 2020 VA examination was inadequate. Specifically, the parties agreed the January 2020 VA examiner noted the Veteran did not wear a supporting knee sleeve or unloading brace despite the record demonstrating the Veteran wore a brace. See February 2021 JMR. Therefore, the parties agreed the January 2020 VA examination was based on an inaccurate factual premise warranting a new VA examination that addressed the Veteran's use of a knee brace. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). As such, the Board remanded the issue for a new examination in July 2021. Following the July 2021 Board Remand, the Veteran underwent a VA examination in August 2021. The VA examiner noted the Veteran underwent a meniscectomy while in service in 1968. See August 2021 VA examination. The Veteran reported that his current symptoms included sharp pain of the knee; that his knee condition has worsened; he is unable to walk or exercise due to pain in the knee; and that it is hard to bend the knee and cannot squat without pain. Id. The Veteran also reported flare ups that occur weekly, are moderate, last minutes, precipitated by normal activities, and alleviated by resting. Id. Upon examination, the Veteran demonstrated an initial range of motion of the left knee flexion to 90 degrees and no limitation of extension. Id. The VA examiner noted the Veteran's passive range of motion was the same as the active range of motion. Id. The VA examiner noted there was evidence of pain on active and passive motion that causes functional loss described as movements are slowed and decreased. Id. There was no additional loss of function or range of motion after three repetitions. Id. The VA examiner noted pain causes functional loss during flare ups and with repeated use over time. Id. The VA examiner estimated the Veteran's range of motion as flexion to 80 degrees during flare ups and after repeated use over time. Id. The VA examiner noted interference with standing, disturbance of locomotion, and interference with sitting are additional contributing factors of disability. Id. There was no muscle atrophy, ankylosis, recurrent subluxation, nor persistent or recurrent patellar instability. Id. The VA examiner noted the Veteran's constant use of a brace that does not require a prescription, and noted the brace is used for left knee pain. Id. Based on these findings, a rating in excess of 10 percent for his left knee disability is not warranted under 38 C.F.R. § 4.71a, DC 5260. The Board notes the Veteran reported left foot pain symptoms that he associates with his left knee disability. See July 2018 VA Form 9; September 2019 VA treatment records. The Veteran also reported symptoms going down the left leg from his left knee into his foot. See December 2019 VA treatment records. The Court has held that 38 C.F.R. § 3.155(d)(2) requires that, when entitlement to secondary service connection is raised in the context of an increased rating claim, the Board must consider those complications in connection with the claim on appeal. See Bailey v. Wilkie, 33 Vet. App. 188 (2021). However, an October 2019 MRI of the Veteran's left foot revealed an impression for degenerative changes with plantar calcaneal spur. See October 2019 VA treatment records. The Veteran's unsupported lay statements alone are insufficient to establish a nexus between his left foot disability and his left foot disability. See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). Therefore, the evidence of record does not demonstrate the Veteran's left foot pain is secondary to his left knee disability. A higher 20 percent rating is not warranted under DC 5010 as the evidence does not indicate the Veteran's left knee disability is manifested by X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations of arthritis. See 38 C.F.R. § 4.71a, DC 5010. Additionally, a compensable rating is not warranted under DC 5260. In that regard, the evidence of record demonstrates flexion to 80 degrees, at worst, with pain for the entire period on appeal. See 38 C.F.R. § 4.71a, DC 5260. In this case, the Veteran's functional impairment due to pain is contemplated under the provisions of 38 C.F.R. §§ 4.40 and 4.45. The Board has also considered whether separate ratings are warranted under any other DCs related to the knee and leg. 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). In that regard, there is no evidence the Veteran demonstrated any limitation of extension. See 38 C.F.R. § 4.71a, DC 5261. The evidence of record demonstrates the Veteran underwent an arthroscopic ligament repair in service and the residuals include his current diagnosis of degenerative joint disease, pain, and decreased range of motion. See August 2021 VA examination. Applying the criteria for removal of semilunar cartilage of the knee, a rating in excess of 10 percent is not available as 10 percent is the maximum schedular rating for symptomatic residuals of removal of the semilunar cartilage. See 38 C.F.R. § 4.71a, DC 5259. A separate rating is not available as the symptoms of pain, functional loss, and limitation of flexion are considered in the 10 percent rating assigned under DC 5260. Thus, any separate rating would be pyramiding. A separate rating under DC 5258 is also not warranted. In that regard, an October 2019 VA MRI results indicated the Veteran had a meniscal tear. See October 2019 VA treatment records. However, the January 2020 VA examiner opined that the Veteran's meniscal tear was not a result of his service-connected disability. See January 2020 VA examination. Moreover, even if it were a part of the service-connected left knee disability, the evidence does not indicate that the Veteran experiences frequent episodes of locking or effusion of the joint. Also, the pain the Veteran experiences is already being compensated in the assigned 10 percent rating, and evaluation under DC 5258 on this basis alone would be pyramiding. See 38 C.F.R. § 4.14. Additionally, the Board notes the Veteran reported weakness of the left knee and the use of a brace during the appeal period. However, the August 2021 VA examiner noted the brace was used for the Veteran's pain. See August 2021 VA examination. Moreover, the evidence during the appeal period does not demonstrate instability of the left knee. The evidence also does not demonstrate recurrent subluxation. In that regard, the Board notes that an October 2019 MRI notes an impression for slight lateral patellar subluxation of the left knee. See October 2019 VA treatment records. However, this is inconsistent with a finding of recurrent subluxation and the evidence of record. For example, the August 2021 VA examiner noted the Veteran did not report or have a history of recurrent subluxation. See October 2019 VA examination. Additionally, there was no report or history of recurrent subluxation upon examination at the January 2020 VA examination. Finally, the evidence of record does not demonstrate ankylosis, genu recurvatum, or impairment of the tibia and fibula during the period on appeal. As such, consideration of DCs 5256, 5257, 5261, 5262, and 5263 related to the knee and leg are inapplicable. To the extent the Veteran contends that his left knee disability was more severe than reflected by the currently assigned rating, the Board notes that he is not competent to state that his left knee disability is of a severity to warrant a higher rating under VA's criteria for rating the knee and leg because such an opinion requires medical expertise and knowledge that he has not been shown to possess. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Consequently, the Board gives more probative weight to the competent medical evidence which includes the May 2017 and August 2021 VA examinations that are against the Veteran's claim for a higher rating than to the Veteran's lay statements. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Based on the foregoing, the preponderance of the evidence demonstrates that a disability rating in excess of 10 percent for the Veteran's left knee disability is not warranted for any time during the period on appeal. Since the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is inapplicable, and the appeal must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). (Continued on the next page) The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record for the entire period on appeal. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Moore, Carlin 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.