Citation Nr: 21075889 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 17-36 957 DATE: December 21, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for a right knee condition is denied. FINDING OF FACT The Veteran's right knee condition does not manifest as flexion limited to 30 degrees. CONCLUSION OF LAW The criteria for entitlement to a disability rating in excess of 10 percent for a right knee condition have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, DC 5260. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1973 to November 1976. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Board previously denied this claim in a decision of March 2019. See March 2019 Board Decision at 5-8. The Veteran appealed this decision to the Court of Appeals for Veterans Claims (CAVC), which subsequently adopted a joint motion for partial remand (JMPR). See May 2020 JMPR at 2-7. To comply with the terms of the JMPR, the Board subsequently remanded this case for additional development. See October 2020 Board Decision at 5-8. The RO issued a supplemental statement of the case (SSOC) in October 2021. See October 2021 SSOC at 12-13. Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for a higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability rating decisions. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). However, where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See 38 C.F.R. § 4.2; Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). In evaluating disabilities of the musculoskeletal system, consideration must be given to functional loss, including due to weakness and pain, affecting the normal working movements of the body in terms of excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40. With respect to disabilities of the joints, it must be considered whether there is less movement or more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement, as well as swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45. These provisions thus require a determination of whether a higher rating may be assigned based on functional loss of the affected joint on repeated use as a result of the above factors, including during flare-ups of symptoms, beyond any limitation reflected on one-time measurements of range of motion. DeLuca v. Brown, 8 Vet. App. 202 (1995). However, a higher rating based on functional loss may not exceed the highest rating available under the applicable Diagnostic Code pertaining to range of motion. See Johnston v. Brown, 10 Vet. App. 80 (1997). In determining if a higher rating is warranted on this basis, pain alone does not constitute functional loss. Similarly, painful motion alone does not constitute limited motion for the purposes of rating under Diagnostic Codes pertaining to limitation of motion. However, pain may result in functional loss if it limits the ability to perform normal movements with normal excursion, strength, speed, coordination, or endurance as provided in 38 C.F.R. §§ 4.40 and 4.45. Functional loss due to pain is to be rated at the same level as functional loss caused by some other factor that actually limited motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Veteran's right knee condition is rated as 10 percent disabling during the rating period on appeal under Diagnostic Code (DC) 5260. See April 2019 Rating Codesheet at 2. The applicable rating criteria provide that a disability rating in excess of 10 percent is not assigned under this DC unless flexion is limited to 30 degrees. See 38 C.F.R. § 4.71a, DC 5260. The JMPR found that the Board's prior decision had relied on an inadequate VA examination of September 2017. See May 2020 JMPR at 3-4 (finding that VA examination report did not estimate additional functional impairment due to flare-ups); see also id. at 4 (finding that report did not adequately measure ranges of motion in both weight-bearing and non-weight-bearing circumstances). The Board therefore remanded this case for a VA examination which would comply with the terms of the JMPR. See October 2020 Board Decision at 6-8 (providing remand directives). However, the record reflects that the Veteran requested that this examination be canceled. See August 2021 Development Letter (notifying Veteran of scheduled examination); cf. October 2021 Examination Request (noting examination cancellation). "The duty to assist is not always a one-way street." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Applicable regulations provide that "[when] a claimant fails to report for an examination... [which] was scheduled in conjunction with... a claim for increase, the claim shall be denied." See 38 C.F.R. § 3.655(b). The Board has not found a subsequent request for rescheduling or any explanation for the Veteran's cancellation in the record. Generally, the Board would therefore deny this claim on the basis of the Veteran's failure to report for this examination without good cause. 38 C.F.R. § 3.655(b). However, in light of the prior JMPR adopted by the CAVC and to fully afford the Veteran the benefit of the doubt, the Board will instead readjudicate this claim based on the evidence of record. 38 U.S.C. § 5107(b). In light of the Veteran's failure to report for the VA examination directed by the JMPR, the Board finds that remand for an additional VA examination on this issue would be futile. In the absence of an updated VA examination, the Board must instead rely on the medical evidence previously of record. As discussed in the Board's previous March 2019 decision, the available medical evidence does not support the inference that a disability rating higher than that already assigned for the Veteran's right knee condition is warranted. A June 2015 VA examination found flexion limited to 90 degrees and no limitation of extension. This examination also found that pain, weakness, fatigability, or incoordination significantly limited functional ability during flare-ups, but that this additional functional limitation did not further restrict range of motion. This examination also found no ankylosis, instability, or meniscal conditions. The March 2017 VA examination found flexion limited to 90 degrees and no limitation of extension. This examiner also noted the Veteran's description of flare-ups "described as burning pain that is very intense" and estimated that such flare-ups or repeated use over time would further reduce flexion to 80 degrees. This examiner also noted "[difficulty] walking, standing, and sitting for long periods of time" and that "[climbing] stairs is extremely difficult." This examiner also did not find ankylosis, instability, or meniscal conditions. The September 2017 VA examination found flexion to 60 degrees and no limitation of extension. As discussed above, this examiner did not offer estimates regarding additional functional impairment due to flare-ups or following repeated use over time. This examiner also did not find ankylosis, instability, or meniscal conditions. This examiner also found that the Veteran's reported history of instability, falls, and use of mobility-assistance devices was attributable to the Veteran's service-connected radiculopathy of the right lower extremity rather than to his right knee condition. In reaching this conclusion, this examiner noted the Veteran' normal knee stability test results and the tendency of radiculopathy to produce symptoms of weakness in the affected extremity. The Veteran's medical records and the lay assertions of record extensively support the inference that he experiences symptoms of pain which result in functional impairment. See September 2016 Correspondence (providing statement of Veteran's spouse addressing the Veteran's mobility limitations, among other symptoms); see also August 2017 VA Form 21-0820 (providing Veteran's assertion that "his right knee should be 600%" and that "he is totally disabled due to his right knee"); see also April 2018 Medical Treatment Records at 1 (providing contemporaneous treatment note observing "exercise is hindered due to right knee pain; [the Veteran] will walk to his mail box and occasionally walks his dog" and that "[he] continues to perform his own [activities of daily living] and assists with house work as he is able"). However, the Board also notes that the Veteran's symptoms of pain and weakness, in addition to being contemplated by the rating criteria discussed above, are also compensated as part of his service-connected radiculopathy of the right lower extremity. See April 2019 Rating Codesheet at 1. The Board has found no evidence elsewhere in the record to contradict the VA examiners' findings. Because the March 2017 VA examiner estimated the Veteran's additional degree of functional impairment due to flare-ups or following repeated use over time, and because this additional functional impairment is not better approximated by higher rating criteria, the Board finds that a higher disability rating under DC 5260 is not warranted on this basis. DeLuca, 8 Vet. App. at 206. The Board has also considered whether additional disability ratings may be assigned under alternate DC. See Lyles v. Shulkin, 29 Vet. App. 107 (2017) (providing for the assignment of additional disability ratings for meniscal conditions); see also VAOPGCPREC 09-04 (providing for separately compensable disability ratings based on limitations of flexion and extension). As discussed above, however, the evidence of record does not support the assignment of any additional disability ratings based on knee instability, meniscal conditions, or limitation of extension. The Board therefore concludes that a disability rating in excess of 10 percent for the Veteran's right knee condition is not warranted. 38 C.F.R. § 4.71a, DC 5260. The Board has considered the doctrine of reasonable doubt but finds that it is not applicable because the balance of the evidence of record is against the Veteran's claim. 38 U.S.C. § 5107. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Blore, Associate 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.