Citation Nr: 21071842 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 11-22 792 DATE: December 1, 2021 ORDER Entitlement to a disability rating in excess of 10 percent prior to August 30, 2010 for degenerative joint disease of the left knee is denied. FINDING OF FACT Prior to August 30, 2010, the Veteran's degenerative joint disease of the left knee was manifest by flexion no worse that 0 to 90 degrees, painful motion, and weakness. CONCLUSION OF LAW The criteria for Entitlement to a disability rating in excess of 10 percent prior to August 30, 2010 for degenerative joint disease of the left knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5260. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from February 1964 to May 1967 and then from August 1973 to July 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In a December 2017 decision, the Board denied a rating in excess of 10 percent for degenerative joint disease of the left knee prior to August 30, 2010. The Veteran appealed the Board's December 2017 decision to the United States Court of Appeals for Veterans Claims (Court), which in a January 2019 order, granted the parties' joint motion for partial remand (JMPR), vacating a portion of the Board's December 2017 decision and remanding the claim for compliance with the terms of the JMPR. This matter was remanded for further development in July 2019. The Board notes that in that July 2019 decision, the Board granted separate ratings for dislocated semilunar cartilage of the left knee and instability of the left knee. The Board finds that there has been substantial compliance with its remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran presented sworn testimony at a hearing before one of the undersigned Veterans Law Judges in December 2016. In an October 2021 letter, the Board informed the Veteran that the Veterans Law Judge who conducted that hearing was no longer employed by the Board and that she had a right to a new Board hearing. See, Arneson v. Shinseki, 24 Vet. App. 379 (2011) (a veteran must be provided the opportunity to testify before all members of a Board panel deciding the case). The Board notes that the Veteran did not request a new Board hearing and will proceed with this matter. 1. Entitlement to a disability rating in excess of 10 percent prior to August 30, 2010 for degenerative joint disease of the left knee. The Veteran contends that she is entitled to a disability rating in excess of 10 percent prior to August 30, 2010 for degenerative joint disease of the left knee. Prior to August 30, 2010, the Veteran's degenerative joint disease of the left knee was rated under 38 C.F.R. § 4.71a, Diagnostic Code 5260, for limitation of flexion of the leg. 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." The spine has no opposite 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. A July 2009 VA treatment record notes the Veteran was able to bend her left knee but not able to completely straighten her left leg. A July 2009 VA treatment record notes the Veteran reported that over the prior 2 weeks she had been unable to straighten her left leg and that during the previous night she had increased pain. The Veteran stated that her left knee seemed to be "locked up" and that she was unable to move her knee in any direction due to severe pain. In her October 2009 informal claim, the Veteran reported having to wear a left knee brace for stability. October 2009 VA treatment records note that the Veteran was fitted for a left knee brace. It was further noted that upon examination, range of motion of the left knee was 0 to 90 degrees with crepitus noted on flexion. A November 2009 imaging report from Concentra notes imaging of the Veteran's left knee notes revealed small volume joint effusion of traumatic or inflammatory origin and mild to moderate medial compartment degenerative cartilaginous disease. The Veteran was afforded a VA knee examination in November 2009. Left knee chondromalacia with crepitus was diagnosed. The Veteran endorsed, pain, weakness, instability, giving way, and locking, but denied flare-ups of the left knee. Use of ambulatory aids was not noted, nor was recurrent subluxation. Left knee flexion was measured as 0 to 100 degrees. Painful motion was noted, but not guarding of movement. No additional loss of motion was noted after repetitive use testing. Normal gait and degenerative joint disease were noted. Mild to moderate effects on the Veteran's occupational functioning and daily activities was noted. A December 2009 VA treatment record noted the Veteran was "still having a lot of pain to [her] left knee" and was still wearing a knee brace. It was further noted that she cannot walk long distances and had to lean against the cart while shopping. In her August 2010 Notice of Disagreement (NOD), the Veteran stated that the VA examiner did not have her remove her knee brace during the examination. In an August 2010 letter, an advanced nurse practitioner from the Denton Community Based Outpatient Clinic stated that the Veteran "has long since struggled with chronic left knee pain and severe instability." It was further stated that imaging of the left knee demonstrated significant degenerative joint disease and that the Veteran "must ambulate with care." In her August 2011 appeal to the Board, the Veteran asserted having "severe instability" prior to her total knee replacement. An August 2010 VA treatment record notes the Veteran's left lower extremity range of motion was within normal limits with pain at the end of the range. End stage degenerative joint disease was noted. The Veteran testified at the December 2016 Board hearing that in the 2-year period prior to her total left knee replacement her left knee "wasn't very stable" and that she "couldn't count on it to hold [her] up." She further testified that she had to try "a couple different braces" for pain and stability before she found one that kept her knee from giving out. In an August 2021 addendum opinion, a VA examiner stated that after speaking with the Veteran and reviewing her claims file, the Veteran was noted to be in severe pain and diagnosed with a torn left knee meniscus in 2009 requiring total left knee replacement in 2010 that corrected her knee pain and left minimal residual pain and constant residual popping. The examiner then stated that regarding the time period of October 1, 2008 through August 29, 1010, "the Veteran was experiencing constant excruciating pain of the left knee that required prescription hydrocodone to control." The examiner then added that the Veteran's range of motion had been documented as 0 to 100 degrees maximum with pain on weight-bearing as evidenced in the November 2009 VA examination. The examiner further noted that the Veteran denied flare-ups related to her left knee but did endorse pain, instability, locking, weakness, and giving way that negatively affected her occupational functioning and activities of daily living due to inability to stand for prolonged amounts of time. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent prior to August 30, 2010 for degenerative joint disease of the left knee. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss. 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 would not result in limitation of motion more nearly approximating flexion limited to 30 degrees. The Board has also considered the other Diagnostic Codes pertaining 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) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). As noted above, separate ratings for instability and dislocated semilunar cartilage were previously granted to the Veteran. Here, the preponderance of the evidence shows that, prior to August 30, 2010, the Veteran's degenerative joint disease of the left knee was manifested by flexion no worse that 0 to 90 degrees, painful motion, and weakness. (Continued on the next page) 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 degenerative joint disease of the left knee prior to August 30, 2010. In denying such a 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. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Keeley, Brian 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.