Citation Nr: 21075197 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 14-14 007 DATE: December 17, 2021 ORDER Entitlement to an initial disability rating of 20 percent for a left knee disability is granted. REMANDED Entitlement to an initial disability rating in excess of 10 percent for a right knee disability is remanded. Entitlement to a total disability rating based on individual unemployability is remanded. FINDING OF FACT The Veteran's left knee disability is manifested by full flexion upon examination and one to two exacerbations a year. CONCLUSION OF LAW The criteria for entitlement to an initial disability rating of 20 percent, and no higher, for a left knee disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5002, 5260. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Marine Corps from July 2007 to June 2011. This matter comes before the Board on appeal from a June 2012 rating decision. This case was most recently before the Board in September 2020. It is now before the Board for further development. 1. Entitlement to an initial disability rating of 20 percent for a left knee disability The Veteran contends that he is entitled to a higher rating because he has random flare-ups in the middle of the night with unbearable pain. The Veteran is currently assigned a disability rating under 5002 to 5260 for left knee arthralgia, palindromic rheumatoid arthritis. He was assigned a 10 percent for painful motion of the knee under 38 C.F.R. § 4.59. The Agency of Original Jurisdiction noted that this disability is not specifically listed in the rating schedule, therefore, it is rated analogous to a disability which the anatomical localization and symptoms are closely related. The Veteran's left knee arthralgia, palindromic rheumatoid arthritis is 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. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for knee arthralgia, palindromic rheumatoid arthritis. 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 unbearable pain due to flare-ups in the middle of the night would not result in limitation of motion more nearly approximating flexion limited to 30 degrees. The January 2012 knee examination showed no objective evidence of painful motion during flexion testing. In March 2018, the Veteran reported getting right and left knee pain intermittently. Upon examination, he had no pain on range of motion testing. He reported no flare-ups. There was no objective evidence of pain on passive range of motion testing. During the November 2018 examination, the Veteran reported no knee symptoms at the time of the examination. He reported a flare-up once per month that is 7/10 in severity. During flare-ups, he can only walk short distances with stiffness. Examination of the knee was normal. His flexion was to 140 degrees with no pain noted on examination. The examiner noted that swelling and pain from this particular rheumatoid arthritis comes and goes. During the January 2020 examination, the Veteran reported flare-ups occurred one time per month. The flare-ups were mild to moderate and last for one day. Upon examination, flexion was to 120 degrees. During the flare-ups, the examiner opined that flexion was to 110 degrees due to lack of endurance and pain. The examiner noted that there was objective evidence of pain on passive range of motion testing of the left knee but did not say at what degree. For that reason, a new examination was provided in May 2021. During the May 2021 examination, the Veteran reported no flare-ups. Upon examination, flexion was to 140 degrees for active and passive movement. The examiner found no evidence of pain during active or passive movement. There was evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. The examiner noted that his left knee disability was mild in its severity. The Board has also considered whether a higher rating is warranted under DC 5002 for atrophic rheumatoid arthritis. As an aside, the Veteran is currently diagnosed with palindromic rheumatoid arthritis and not atrophic rheumatoid arthritis. The record indicates that the Veteran's rheumatoid arthritis mainly manifests in his swollen wrists, and the Board granted aid and assistance benefits for this disability. DC 5002 notes that one or two exacerbation a year in a well-established diagnosis warrants a 20 percent evaluation. A 40 percent is warranted when symptoms combined to produce definite impairment of health objectively supported by examination findings or incapacitating exacerbations occurring 3 or more times a year. Here, the record shows that the Veteran has regular flare-ups of his rheumatoid arthritis in his wrists. An October 2017 VA treatment record notes that he has pain mainly in the wrists but sometimes his knee hurt as well. The Board finds that a 20 percent evaluation is warranted for one to two exacerbations a year. Despite this, the evidence does not show that the there is a definite impairment of health objectively supported by examination findings or incapacitating exacerbations occurring three or more times a year, the Board finds that a 40 percent evaluation is not warranted. Although the Veteran reported flare-ups every month, the record indicates that he only sometimes has knee pain. See October 2017 VA treatment record. The Veteran even reported no flare-ups in the most recent examination. See May 2021 VA examination. Besides the October 2017 VA treatment record, VA treatment records do not document knee flare-ups due to his rheumatoid arthritis but instead note flare-ups involving his wrists. The Note under DC 5002 states that the ratings for active process will not be combined with the residual ratings for limitation of motion or ankylosis. Therefore, the Veteran's evaluation will be 20 percent for the left knee and will not be in combination with 10 percent for painful motion. Changes were made to the rating criteria effective February 7, 2021, so for the period on and after February 7, 2021, the Board will award the highest rating warranted under either the old criteria or the new criteria. Under the new DC 5002, the rating criteria for 20, 40, 60, and 100 percent ratings remained the same. However, the note following DC 5002 changed to state that, for chronic residuals, they are to be rated under DC 5003. Here, the Veteran does not have chronic residuals of his left knee. The flare-ups occur but when he has no flare-ups of his knees, his left knee functions normally. See May 2021 examination. The Board has also considered whether any other diagnostic code pertaining to the knee and leg is applicable. 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). Here, no other diagnostic code would better reflect the Veteran's symptoms and examination findings. Further, the Board does not find that a separate disability rated for the left knee would in applicable. In conclusion, a 20 percent evaluation, but no higher, is warranted under DC 5002 for one to two exacerbations a year. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 1. Entitlement to an initial disability rating in excess of 10 percent for a right knee disability is remanded. Per the September 2020 Board remand, the Veteran was afforded a new knee examination in June 2021. The examiner noted that the Veteran had pain that caused functional loss, but she did not specify at what degree the pain caused the functional loss. The examiner also noted that there was pain on passive motion but also did not state at what degree. The examiner indicated that range of motion testing showed flexion was to 140. The examiner reported that the Veteran was limited in bending, stooping, pushing, pulling, carrying, lifting moderate objects, standing, sitting, driving, walking, climbing stairs, running, and squatting for long periods. The Board finds that the examination is inadequate as the examiner did not indicate at what degree pain began during range of motion testing and during passive motion even though the examiner noted that pain caused functional loss. Unfortunately, a new examination of the right knee is needed to determine at what degree pain began. 2. Entitlement to a total disability rating based on individual unemployability is remanded. Further development and adjudication of the Veteran's claim for increase may provide evidence in support of his claim for a TDIU. The Board has therefore concluded that it would be inappropriate at this juncture to enter a final determination on that issue. See Henderson v. West, 12 Vet. App. 11 (1998), citing Harris v. Derwinski, 1 Vet. App. 180 (1991). While the case in remand status, the Veteran should asked in a letter whether he is uanble to work or is forced to work in marginal employment due to his service-connected disabilities. The matters are REMANDED for the following action: 1. Send letter to Veteran asking if he is unable to work or is forced to work in marginal employment due to his service-connected disabilities. Properly notify the Veteran of how to substantiate a claim for entitlement to TDIU. Additionally, provide him with VA Form 21-8940 in connection with the inferred claim for entitlement to TDIU, and request that he supply the requisite information. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right knee disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (Continued on the next page) If the Veteran has pain throughout the entire range of motion of the knee, the examiner should state this. The examiner must indicate at what degree the Veteran experiences pain both on active and passive range of motion testing. 3. Readjudicate the Veteran's claims, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Tahirih S. Samadani, 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.