Citation Nr: 21075409
Decision Date: 12/20/21	Archive Date: 12/20/21

DOCKET NO. 17-48 547
DATE: December 20, 2021

ORDER

A rating in excess of 10 percent for a right knee disability is denied.

A rating in excess of 10 percent for a left knee disability is denied.

An effective date earlier than August 31, 2016, for the grant of a 10 percent rating for a right knee disability is denied.

An effective date earlier than August 31, 2016, for the grant of a 10 percent rating for a left knee disability is denied.

The claim for a total disability rating based upon individual unemployability (TDIU) is dismissed.

FINDINGS OF FACT

1. The Veteran's right and left knee disabilities are manifested by knee pain and less movement, but with flexion still to greater than 45 degrees, extension not limited to 10 degrees or greater, and without evidence of joint instability, joint effusion, symptomatic removal of semilunar cartilage, impairment of the tibia or fibula, genu recurvatum, or ankylosis.

2. The first formal or informal claim for an increased rating for right and left knee disabilities was received on August 31, 2016.

3. On September 2, 2020, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant through his authorized representative that a withdrawal of the appeal for a TDIU is requested.

CONCLUSIONS OF LAW

1. The criteria for a rating higher than 10 percent for a right knee disability are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5260.

2. The criteria for a rating higher than 10 percent for a left knee disability are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5260.

3. The criteria for an effective date earlier than August 31, 2016, for an increased 10 percent rating for a right knee disability have not been met. 38 U.S.C. §§ 5101, 5107(b); 38 C.F.R. §§ 3.155, 3.157, 3.159, 3.400.

4. The criteria for an effective date earlier than August 31, 2016, for an increased 10 percent rating for a left knee disability have not been met. 38 U.S.C. §§ 5101, 5107(b); 38 C.F.R. §§ 3.155, 3.157, 3.159, 3.400.

5. The criteria for withdrawal of the appeal for a TDIU by the appellant have been met.  38 U.S.C. § 7105; 38 C.F.R. § 19.55.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active service from January 1986 to June 1992.

Increased Rating

1. A rating in excess of 10 percent for a right knee disability is denied.

2. A rating in excess of 10 percent for a left knee disability is denied.

The Veteran currently has 10 percent ratings for his right and left knee disabilities pursuant to DC 5260, which pertains to limitation of flexion of the knee. Motion in the opposite direction of extension, instead, is rated under DC 5261.

Normal range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion. See 38 C.F.R. § 4.71, Plate II.

Ratings for service-connected disabilities are determined by comparing the veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities (Rating Schedule), which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt material to the determination is resolved in the Veteran's favor. 38 C.F.R. § 4.3. The Board will consider entitlement to "staged" ratings to compensate for times since filing the claims (or even the year prior) when the disabilities may have been more severe than at other times during the course of the appeal. Fenderson v. West, 12 Vet. App. 119 (1999) (applying this practice to an initial rating); Hart v. Mansfield, 21 Vet. App. 505 (2007) (indicating this practice is equally applicable for an established rating).

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination upon which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40.

Raters must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, considering any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions regarding pyramiding do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare-ups. 38 C.F.R. § 4.14. The guidance provided by the Court in DeLuca must be followed in adjudicating claims where a rating under the diagnostic codes governing limitation of motion should be considered. However, the Board notes that the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 should only be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996).

The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. See also Burton v. Shinseki, 25 Vet. App. 1 (2011) (indicating to apply 38 C.F.R. § 4.59 even in cases that do not involve arthritis).

With respect to the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); (b) more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); (c) weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; and (f) pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. 38 C.F.R. § 4.45.

While portions of the Rating Schedule addressing the musculoskeletal system recently were revised effective February 7, 2021, DC 5260 was not changed.

According to 5260, which, as mentioned, contemplates limitation of leg flexion, a 0 percent 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; and a 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260.

Under DC 5261, which, as mentioned, contemplates limitation of extension of the leg, a 0 percent rating is warranted for extension limited to 5 degrees; a 10 percent rating is warranted for extension limited to 10 degrees; a 20 percent rating is warranted for extension limited to 15 degrees; a 30 percent rating is warranted for extension limited to 20 degrees; a 40 percent rating is warranted for extension limited to 30 degrees; and a 50 percent rating is warranted for extension limited to 45 degrees. 38 C.F.R. § 4.71a, DC 5261.

VA's General Counsel has held that separate ratings are permissible under DC 5260 (limitation of flexion of the leg) and DC 5261 (limitation of extension of the leg) for disability of the same joint. VAOPGCPREC 9-2004 (September 17, 2004).

VA's General Counsel also has held that a claimant who has arthritis and instability of the knee may be rated separately under DCs 5003 and 5257, respectively, while cautioning that any such separate rating must be based on additional disabling symptomatology. VAOPGCPREC 23-97 (July 1, 1997; revised July 24, 1997); VAOPGCPREC 9-98 (August 14, 1998).

Here, though, the Board finds that a rating higher than 10 percent is not warranted for either the right or left knee disability. 

On September 2016 VA examination, the Veteran reported knee pain that he used heat to relieve with partial results. He felt pain when rising from chairs, and an occasional locking sensation in the right knee, rarely in the left knee. He avoided kneeling and squatting, and could stand and walk for about 15 minutes before experiencing knee pain. Range of motion testing showed right and left knee flexion limited to 110 degrees, and extension as normal, or 0 degrees. There was indication of patellar tenderness, and pain on range of motion. However, there was no additional loss of range of motion on repetitive testing. While the examination was not being conducted during a flare, it was determined that pain would cause additional loss during a flare, though no change to range of motion during a flare was known. The knee disabilities interfered with standing. Muscle strength was 4/5 on the right and left side. Stability testing was normal. There was no indication of recurrent effusion. There was no indication of instability or ligamental laxity. 

VA treatment records shows that in June 2017, the Veteran reported ongoing right knee pain. He reported pressure in his knee. Physical examination showed infrapatellar effusion, minimal tenderness to palpation medially and laterally, without evidence of ligamentous instability. X-ray showed no acute abnormalities. He was advised to use a neoprene sleeve and elevate the knee, as well as use pain medication. 

On December 2017 VA examination, the Veteran reported pain in both knees daily with all lifting and carrying. There was no instability reported, but he used a knee sleeve to keep his knees warm. He reported that during flares he experienced decreased motion due to pain with clicks, pops, and grinding sensation. He experienced stiffness with use that limited motion in his knees. Range of motion testing showed flexion limited to 130 degrees and extension that was normal, or 0 degrees. The reason for the decreased motion was pain. There was evidence of localized tenderness on palpation, specifically the patellar structures were moderately painful on palpation.  There was objective evidence of crepitus. Range of motion testing showed flexion to 130 degrees, with normal extension. The decreased motion was due to pain. There was evidence of pain on weightbearing. When considering pain, weakness, fatigability, or incoordination limiting functional ability there was an indication of flexion limited to 125 degrees due to pain. Muscle strength was normal, and there was no indication of instability or lateral laxity. The Veteran had evidence of pain on weightbearing and non-weightbearing, as well as on passive motion that was mild in degree.

VA treatment records reflect that in September 2018, the Veteran reported that his knee gave out and he fell.

On July 2020 VA examination, the Veteran reported experiencing knee pain every day, from stiffness and soreness upon awakening to bending, squatting activities that were repetitive. His knees would then ache the rest of the day and he would ice them. He reported a feeling of hyperextending his knees, but did not experience a feeling of instability. He worked less than before due to the soreness and achiness in the knees. Range of motion testing showed flexion limited to 125 degrees and normal extension. There was limited motion due to pain. There was mild to moderate pain on palpation. On repetitive testing, there was no additional functional loss other than pain or loss of range of motion. With repeated use over time, there was limitation of flexion to 120 degrees due to pain. While the examination was not being conducted during a flare, the loss of range of motion was estimated to be flexion limited to 115 degrees and normal extension, due to pain. There was no indication of muscle weakness or instability of the knees. There was no indication of a disability to the meniscus. There was evidence of pain on weightbearing, non-weightbearing, and passive motion that was mild in severity, bilaterally.

The Board first notes that the July 2020 VA examiner reviewed the evidence of record and considered the Veteran's history and statements. The examiner described the disability in sufficient detail to enable a fully informed rating. The examiner stated that there was evidence of pain during passive range of motion testing or during non-weight bearing. Correia v. McDonald, 28 Vet. App. 158 (2016). The examiner estimated the loss of range of motion due to repeated use over time and flare-ups taking into consideration examination and the Veteran's reported symptoms. This examination thus complies with Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Veteran has been provided an adequate medical examination in conjunction with his claim. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Accordingly, there was substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998).

Based on the results of those several examinations, the Board finds that a higher rating pursuant to DC 5260 is not warranted for either knee, as even when considering the functional loss on repeated testing, or limited motion on flare-up, the evidence does not show flexion limited to 30 degrees or less, nor is there evidence of limitation of extension to 10 degrees or more according to DC 5261. Moreover, there is no evidence of symptomatic removal of semilunar cartilage to warrant assigning separate ratings or additional compensation under the "meniscal codes" DCs 5258 and 5259. While there was evidence of effusion in 2017, there is no indication of a meniscal injury or condition that would meet the criteria set forth in these ratings codes. See Lyles v. Shulkin, 29 Vet. App. 107 (2017). The Veteran's knee pain to include soreness and achiness is accounted for in his existing 10 percent ratings, which are based on painful motion. Notably, in Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that the evaluation of painful motion as limited motion only applies when limitation of motion is noncompensable (so 0-percent disabling) under the applicable DC. The Court further explained in Mitchell that, although painful motion is entitled to a minimum 10 percent rating under Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991), when read together with DC 5003 concerning arthritis, it does not follow that the maximum rating is warranted under the applicable DC pertaining to range of motion simply because pain is present throughout the range of motion. See id. The Court has held that 38 C.F.R. § 4.40 does not require a separate rating for pain, rather, provides guidance for determining ratings under other DCs assessing musculoskeletal function. See Spurgeon v. Brown, 10 Vet. App. 194 (1997).

Finally, there is no persuasive evidence of instability of either knee as contemplated by DC 5257. All three VA examinations revealed no signs of instability of either knee. And, although the Veteran is competent to report a feeling of instability of his knees, such as his report in September 2018 when he stated that he knees had given out on him, at that time, and on the VA examinations, there was no clinical indication of actual knee instability. Moreover, the Veteran has not described a feeling of instability of the knee, and it is unclear from the 2018 statement the circumstances of his fall. Specifically, he has repeatedly denied a feeling of instability of the knees, and no objective testing has indicated instability, even in 2018. Thus, because the treatment records and VA examinations do not show indication of instability of ether knee, and the Veteran has in fact denied this symptom on repeat examination, the Board finds that a separate rating for knee instability would not be appropriate in this instance, regardless of the revisions to DC 5257 that recently took effect on February 7, 2021. See English v. Wilkie, 30 Vet. App. 347, 352-53 (2018).

Earlier Effective Date

3. An effective date earlier than August 31, 2016, for the grant of a 10 percent rating for a right knee disability is denied.

4. An effective date earlier than August 31, 2016, for the grant of a 10 percent rating for a left knee disability is denied

Generally, the effective date of an award of disability compensation based on an original claim shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. 

An exception to the general rule applies where evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of the claim for increased compensation. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(2). Under these circumstances, the effective date of the award is the earliest date at which it was ascertainable that an increase occurred. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (0)(2); Harper v. Brown, 10 Vet. App. 125, 126 (1997). The question of when an increase in disability is factually ascertainable is based on the evidence in the veteran's claims folder. Quarles v. Derwinski, 3 Vet. App. 129, 135 (1992).

In this case, on August 31, 2016, the Veteran submitted an informal intent to file a claim on August 31, 2016. The RO acknowledged this informal claim by letter dated September 1, 2016. Therefore, the date of claim cannot be considered to be earlier than August 31, 2016, as there is no other claim for increased rating in the record prior to this date that has not been finally adjudicated.

Next, a review of the treatment records dated within one year prior to August 31, 2016, do not show a factually ascertainable increase in disability. These records show ongoing knee pain, but do not indicate an increase in disability specifically during this one-year period of time. Therefore, an earlier effective date is not warranted for the assignment of the 10 percent ratings for left and right knee disabilities.

5. The claim for a TDIU is dismissed.

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C. § 7105.  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55.  Withdrawal may be made by the appellant or by his or her authorized representative.  Id.  In the present case, the appellant, through his authorized representative, has withdrawn the appeal regarding entitlement to a TDIU and, hence, there remain no allegations of errors of fact or law for appellate consideration. The Veteran specifically requested to withdraw this appeal in a September 2, 2020, written statement. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed.

 

 

Journet Shaw

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Department of Veterans Affairs

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.