Citation Nr: 21074945 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 17-19 458 DATE: December 16, 2021 ORDER Entitlement to an initial disability rating greater than 10 percent for residuals of left knee injury (claimed as chondromalacia with collateral calcification) is denied. Entitlement to an initial 10 percent disability rating for multiple noncompensable service-connected disabilities is denied. FINDINGS OF FACT 1. The Veteran's residuals of left knee injury are manifest by painful motion of the knee. 2. The evidence of record does not show that the Veteran's noncompensable service-connected disabilities interfere with normal employability. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating greater than 10 percent for residuals of left knee injury are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5260. 2. The criteria for an initial 10 percent disability evaluation for multiple noncompensable service-connected disabilities are not met. 38 U.S.C. § 1155; 38 C.F.R. § 3.324. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Army from November 1995 to October 1999 and from June 2002 to November 2002. These issues come before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. The transcript is of record. The issues were previously before the Board in February 2020, when remanded for further development. The Board finds that the RO substantially complied with its remand directives. Stegall v. West, 11 Vet. App. 268 (1998). INCREASED RATING Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. 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 the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Where the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a "staged" rating is required. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). VA adjudicators must consider whether to assign different ratings at different times during the rating period to compensate the Veteran for times when the disability may have been more severe than at others. The Court since has extended this practice even to established ratings, not just initial ratings. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The evaluation of the same disability under several DCs, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). When evaluating joint disabilities rated based on limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2017); DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Court in Mitchell explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. 1. Entitlement to a disability rating greater than 10 percent for residuals of left knee injury (claimed as chondromalacia with collateral calcification) is denied. The Veteran has a 10 percent disability rating of the left knee for a prior meniscal tear, residuals of a left knee injury. The Veteran contends entitlement to a higher rating due to a worsening of symptoms. The Veteran's intent to file was received in July 2014. In November 2014, VA received the Veteran's service connection claim for left knee patellar chondromalacia with collateral calcification secondary to right knee with chondromalacia. In September 2015, the RO granted service connection for residuals of left knee injury claimed as chondromalacia with collateral calcification evaluated effective July 31, 2014. The RO assigned a noncompensable evaluation because the Veteran had a "diagnosed disability with no compensable symptoms." The Veteran has perfected an appeal regarding the initial disability evaluation assigned by the rating. In October 2020, the RO found clear and unmistakable error in the September 2015 rating decision and revised the decision to reflect a 10 percent evaluation, effective July 31, 2014, because the medical evidence of record showed that the Veteran did have "painful motion of the knee." Whether the evidence since VA received the intent to file the initial claim supported an even higher rating during any part of this period is what remained on appeal until today. See Fenderson, 12 Vet. App. at 125-26. The Board finds that a higher rating is not warranted for the following reasons. The Veteran's residuals of a left knee injury are rated under 38 C.F.R. § 4.71a, DC 5260, for limitation of flexion of the leg. Under DC 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, DC 5260. Effective February 7, 2021, VA amended the rating criteria for disabilities of the knee and leg; however, DC 5260 was unchanged. Full flexion is to 140 degrees and full extension is to 0 degrees. 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. The Board finds that the preponderance of the probative evidence is against assigning an initial rating greater than 10 percent for residuals of left knee injury. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss 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 statements that the daily increased pain based on activity, such as "too much" walking or bending, and weather does not equate to limitation of motion more nearly approximating flexion limited to 30 degrees or less. In August 2015, the Veteran underwent a VA examination. The examination was scheduled for the Veteran's right knee and the Veteran did not have specific left knee complaints. Initial range of motion (ROM) showed 0 to 100 degrees left knee flexion (out of normal 140 degrees) and 100 to 0 degrees extension (out of normal 0 degrees extension). There was no additional functional loss or range of motion after three repetitions. The VA examiner found that pain, weakness, fatigability, or incoordination would not significantly limit functional ability with repeated use over time or during flareups. Muscle strength was "5/5" with no atrophy. There was no ankylosis. Joint stability tests were "normal." The Veteran had a cane at the examination and reported using it to help with walking to take pressure off knees. The VA examiner found no impact on the Veteran's ability to perform any type of occupational task. In March 2016, the Veteran reported pain on the lateral aspect of the left knee to a private orthopedist. The Veteran could bear weight without pain, but any twisting caused discomfort. The left knee was "well-perfused." Sensation was "intact." There was tenderness to palpation of the tibia-fibula joint. Attempted anterior posterior subluxation of this joint caused reproducible exquisite pain. Meniscal provocative testing, pain along the joint line as well as patellar and quadriceps tendon, and effusion to the joint were negative. The patella tracked appropriately. In April 2016, the private orthopedist found 0-120 degrees of ROM. There was tenderness over the joint line and the fibular head and lateral collateral ligament. Stability was "good,' but flexion elicited pain. Neurovascular examination was "grossly intact." Diagnostic imaging showed no obvious acute osseous abnormality, "slight" lateral tilt of the patella, and calcification at the medial epicondyle. In July 20216, a private physician found the Veteran need a right knee walker while the right foot fracture healed, due in part to left knee pain. In September 2020, the Veteran underwent another VA examination. The VA examiner diagnosed left knee arthroscopy with residual pain and decreased ROM. The Veteran reported progressed or worsened pain and decreased ROM. Initial ROM testing showed 10 to 40 degrees left knee flexion (out of normal 0 to 140) and 40 to 10 degrees extension (out of normal 140 to 0). There was no additional functional loss or range of motion after three repetitions. The VA examiner then found greater ROM found with repeated use over time and during flareups, finding that pain would limit the left knee to 0 to 110 of left knee flexion and 110 to 0 degrees extension. The VA examiner, explained this inconsistency: Symptom magnification noted on exam as evidenced by ability to sit with knee in 90 degrees of flexion, but minimal ROM was noted during exam. In regards to the improved ROM from initial ROM to that with flares and repeated use, there was symptom magnification on exam. The ROM noted after repeated use/flares is indicative of the loss of ROM that would be expected with this condition. Muscle strength was "5/5" with no atrophy. There was no ankylosis. Joint stability tests were "normal." The VA examiner noted that a meniscal tear was found on arthroscopy in 2012. The Veteran reported he regularly used a cane for the left knee. The VA examiner noted that May 2003 diagnostic imaging confirmed diagnosis. The VA examiner found that the optimal work environment for the Veteran would not require prolonged walking or running and would allow for frequent position changes. In February 2021, the Veteran underwent another VA examination. The VA examiner diagnosed meniscal tear in both knees. The Veteran reported worsening pain in knees with running. The Veteran reported that the pain was constant and rated it as "8/10." The Veteran reported takin ibuprofen. The Veteran reported, "Walking upstairs, long periods of standing more than 3 minutes, I can't sit for longer than 10 minutes, normal everyday stuff, I can't walk for long periods of time, I sure can't run." Initial active ROM showed 130 degrees left knee flexion (out of normal a 140) and 0 degrees extension (out of a normal 0). The limitation was due to "mild" pain related to a meniscal tear. There was no additional functional loss or range of motion after three repetitions. The VA examiner found that pain, weakness, fatigability, or incoordination would not significantly limit functional ability with repeated use over time or during flareups. Muscle strength was "5/5" with no atrophy. There was no ankylosis. The Veteran did not report a history of recurrent subluxation, persistent instability, a ligament tear, or recurrent patellar instability. The VA examiner noted prior meniscal tear and surgery. The Veteran regularly used a cane for both knees. The VA examiner noted that July 1996 and May 2003 diagnostic imaging confirmed diagnoses. The VA examiner found that the Veteran may have difficulty with activities requiring repetitive knee bending. Flexion of the knee during the pertinent time period was not limited to 30 degrees or less. An increased rating is not warranted under Diagnostic Code 5260. The Board has also considered the other DCs 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). Regarding DC 5256, there was no subjective or objective evidence of ankylosis in the medical evidence of record. Regarding DC 5257, a higher rating under this DC requires an unrepaired or failed repair of complete ligament tear; a sprain, incomplete ligament tear, or repaired complete ligament tear; or an unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribed either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. Here, the Veteran does use a cane regularly, but the prior tear was of the meniscus, which is cartilage, not of any ligament. Neither the objective medical evidence on multiple VA examinations over time nor the subjective reports of the Veteran during examination show that any instability was persistent or recurrent. The Veteran did report the left knee giving out during private orthopedic treatment in September 2018. However, a review of the evidence showed this to be an isolated incident and does not equate to recurrent or persistent instability. English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). Recurrent means "returning or happening time after time." Persistent means "existing for a long or longer than usual time or continuously." Merriam-Webster.com Dictionary, https://www.merriam-webster.com/dictionary (last visited Nov. 8, 2021). The evidence here shows neither. At the January 2020 Board hearing, the Veteran testified to "moderate" instability, decreased range of motion, and painful movement of the knee. This report of instability is not reflected in the rest of the medical evidence. At the August 2015, August 2018, September 2020, and February 2021 VA examinations, for example, the Veteran did not report a history of recurrent subluxation, lateral instability, or effusion. Joint stability tests during all these VA examinations were "normal." This demonstrates that no sign of knee instability persisted over time and that the Veteran also did not report any recurrent instability over this period. A higher disability rating under this DC does not apply. Regarding DCs 5258 and 5259, the evidence did not show dislocated or removal of semilunar cartilage. Regarding DC 5261, the only evidence of a limitation of extension of the left knee was directly disputed by September 2020 VA examiner as "symptom magnification." The Board accepts this reasoning and disregards the September 2020 initial ROM testing as outlier results. All the other objective medical evidence indicates that extension of the knee is not so limited. This includes the April 2016 VA treatment notes and the August 2018 and February 2021 VA examination reports. The Board finds the September 2020 VA examiner's symptom magnification finding is more probative. The September 2020 VA examiner observed Veteran sitting with knees at a 90-degree angle during the day of examination, which is inconsistent with the Veteran's apparent inability to bend the knee at least 90 degrees during the examination itself. Based on the objective medical observations and contemporaneous medical evidence, the Board finds that the limitation of extension in September 2020 does not deserve probative weight. Regarding DC 5262, there was no evidence of impairment of the tibia and fibula. Regarding DC 5263, there was no evidence of genu recurvatum. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for a rating greater than 10 percent for residuals of left knee injury. The Veteran is already appropriately compensated for the "mild" meniscal pain with range of motion. 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. The claim is denied. 2. Entitlement to a 10 percent disability rating for multiple noncompensable service-connected disabilities is denied. 38 C.F.R. § 3.324 provides that whenever a veteran is suffering with two or more separate permanent service-connected disabilities of such character as clearly to interfere with normal employability, even though none of the disabilities may be of compensable degree under the Schedule for Rating Disabilities, the rating agency is authorized to apply a 10 percent rating, but not in combination with any other rating. Here, the Veteran is service connected for right knee residual scars and residuals of left knee scars associated with residuals of left knee injury claimed as chondromalacia with collateral calcification. The Veteran is in receipt of separate noncompensable evaluations. No medical evidence indicates that the Veteran's scar disabilities interfere with normal employability. At a February 2021 VA examination, the examiner documented no current scar symptoms and indicated that the scars did not impact the ability to work. Regarding assertions by the Veteran that his scars have impeded the ability to work, the Board finds such assertions to be inconsistent with the medical evidence of record. The Veteran provided conflicting testimony on this point in January 2021. The Veteran first denied that the knee affected employment at all. The Veteran later testified, however, that the scars did affect employability but appeared primarily concerned about not knowing how to find a new job if anything happened to the Veteran's current job. The scars are noted on VA examinations of record but without any associated functional limitations noted. In August 2015, the VA examiner did note that the scars were "barely visible [sic] at time of examination." Based on the foregoing, the Board finds that the record does not show that the Veteran's noncompensable rated service-connected disabilities interfere with normal employability. There is no basis under the cited regulation for the assignment of a 10 percent rating based on multiple noncompensable service-connected disabilities. 38 C.F.R. § 3.324. The claim is denied. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James Hekel 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.