Citation Nr: 21077442 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 17-06 063 DATE: December 29, 2021 ORDER A 30 percent rating, and no higher, is granted for tendonitis, right shoulder (major), for the period on appeal prior to September 19, 2017, and a rating in excess of 30 percent is denied for the entire period on appeal. Entitlement to a rating in excess of 20 percent for left knee strain, status post arthroscopy for debridement, with degenerative joint disease with subluxation left knee is denied. Entitlement to a rating in excess of 20 percent for right knee strain, with degenerative joint disease, status post arthroscopy for debridement and resection of lateral meniscus is denied. Entitlement to a rating in excess of 20 percent for residuals, right knee arthroscopy for debridement and resection of lateral meniscus with subluxation is denied. FINDINGS OF FACT 1. At all times relevant to the appeal period prior to September 19, 2017, tendonitis, right shoulder (major), is manifested by painful arm limitation of motion, functionally limited to midway between side and shoulder level; limitation of motion to 25 degrees from side is not shown or approximated at any time, nor is there ankylosis or other impairment of the humerus. 2. Left knee strain, status post arthroscopy for debridement, with degenerative joint disease with subluxation is manifested by at worst, painful motion with extension to 0 degrees, thus better than 10 degrees, and flexion to 130 degrees, thus better than 15 degrees. There is arthritis but no ankylosis, patellar instability or tibia and fibular impairment. The Veteran did not require a prescription (by a medical provider) for cane, brace, walker or crutches and there is no diagnosed patellofemoral complex condition with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. 3. Right knee strain, with degenerative joint disease, status post arthroscopy for debridement and resection of lateral meniscus, is manifested by at worst, painful motion with extension to 0 degrees, thus better than 10 degrees, and flexion to 130 degrees, thus better than 15 degrees. There is arthritis but no ankylosis. 4. Residuals, right knee arthroscopy for debridement and resection of lateral meniscus with subluxation is not manifested by more than moderate recurrent subluxation or lateral instability; severe recurrent subluxation or lateral instability has not been shown or approximated. There is no patellar instability or tibia and fibular impairment and the Veteran did not require a prescription (by a medical provider) for cane, brace, walker or crutches. CONCLUSIONS OF LAW 1. At all times relevant to the appeal period to prior to September 19, 2017, the criteria for a 30 percent rating are met for tendonitis, right shoulder (major), the criteria for a rating in excess of 30 percent rating have not been met or approximated at any time. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.59, 4.7, 4.71a, Diagnostic Code 5201. 2. The criteria for a disability rating in excess of 20 percent for left knee strain, status post arthroscopy for debridement, with degenerative joint disease with subluxation left knee, to include a separate compensable rating, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5260, 5261, 5257, 5258. 3. The criteria for a disability rating in excess of 20 percent for right knee strain, with degenerative joint disease, status post arthroscopy for debridement and resection of lateral meniscus, to include an additional separate compensable rating, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5260, 5261, 5258. 4. The criteria for a disability rating in excess of 20 percent for residuals, right knee arthroscopy for debridement and resection of lateral meniscus with subluxation are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1976 to February 1986, and from August 1988 to March 1999. This appeal stems from an April 2016 rating decision that denied the Veteran's claims for increased ratings. In November 2016, the Board remanded these matters for the issuance of a statement of the case (SOC) consistent with Manlicon v. West, 12 Vet. App. 238 (1999). The SOC was issued by the agency of original jurisdiction (AOJ) in January 2017 and the Veteran perfected an appeal as to these issues that same month. In an October 2017 rating decision, the AOJ increased the rating for the right shoulder, from 20 to 30 percent, effective September 9, 2017. The effective date assigned was the date of a September 2017 VA form 21-526EZ Fully Developed Claim for right shoulder disability. We note that the claim for an increased for the right shoulder was already on appeal as reflected in the Veteran's substantive appeal and in a March 2017 supplemental SOC. The Veteran testified at a February 2020 Board hearing before the undersigned Veterans Law Judge (VLJ) on these issues. A transcript is of record. The undersigned VLJ clarified the issue on appeal, identified potential evidentiary deficits, and clarified the type of evidence that would support the Veteran's claim. These actions complied with any duties owed during a hearing. 38 C.F.R. § 3.103. In February 2021, the Board remanded these matters to the AOJ for additional development, to include obtaining updated VA treatment records and VA examination. The matters have been returned to the Board. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings." Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When assessing the severity of a musculoskeletal disability that is at least partly rated on the basis of limitation of motion, VA must also consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. We note that January 2016 VA examinations of the shoulders and knees are largely not compliant with requirements of 38 C.F.R. § 4.59, or related cases of Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), with regard to joint testing and the assessment of functional loss during flare-ups. Thus they will not be discussed. The Board notes that the rating criteria for musculoskeletal disabilities was revised effective February 7, 2021. 1. Right shoulder disability During the appeal period, the right (major) shoulder disability is rated 20 percent disabling prior to September 19, 2017 and 30 percent thereafter under DC 5201 using the Schedule of Ratings Musculoskeletal System. 38 C.F.R. § 4.71a. This is representative of limitation of motion of the arm. The 30 percent rating represents limited motion of the major arm midway between the side and shoulder level (Recent updates to the regulations note this to be to 45 degrees) whereas the 20 percent rating represents major arm motion limited at shoulder level (Recent updates to the regulations note this to be flexion and/or abduction limited to 90°). Painful motion was factored into both ratings. See 38 C.F.R. § 4.59. The medical record reflects that the Veteran is right-handed, so this is the dominant or major upper extremity. A higher rating than 30 percent available under DC 5201 is a 40 percent rating for limitation to 25 degrees from side. DC 5200 provides a 40 or 50 percent rating for varying degrees of ankylosis of scapulohumeral articulation. DC 5202 provides 50, 60 and 80 percent ratings for other impairment of the humerus. While we find that there was, functionally, limited motion of the arm midway between the side and shoulder level for the period on appeal prior to September 19, 2017, and a 30 percent rating is granted for that period, the preponderance of the evidence is against a rating in excess of 30 percent at any time. In his October 2017 examination, he reported pain at night when sleeping, an inability to drive using his right arm, aching at rest and an inability to find a comfortable position. He reported he could not use his right arm with the computer mouse or to brush his teeth due to pain. Both flexion and abduction of the right should were painful, and limited to 40 out of 180 degrees. Strength was 4/5 on the right. The Veteran was unable to perform internal rotation or any rotator cuff testing due to severe amount of pain. In granting the 30 percent rating prior to September 19, 2017, we first note that the Veteran's contentions have remained substantively uniform since he filed the claim in March 2016, and treatment records do not show otherwise. The examiner in October 2017 noted that the symptoms had worsened, but we cannot conclude he became worse on September 19, 2017, the date he filed the VA form 21-526 EZ, when the claim was indeed already on appeal. Both the nature of the described symptoms at that exam and the treatment record for the period on appeal prior to September 17, 2017 reflect the same level of impairment. The described functional impact on the Veteran's ability to work included that he cannot tolerate overhead activities and he would be unable to carry weight at all in the right arm. We note that physical therapy and treatment records in June and July 2017 reflect substantial complaints of right shoulder pain and tenderness. We thus conclude that functionally there has been limited motion of the arm midway between the side and shoulder level at all times relevant to the appeal prior to September 19, 2017. Second, as to the entire period on appeal, the criteria for a rating in excess of 30 percent are neither met nor approximated. The Board observes there is no ankylosis of the scapulohumeral articulation, nor is there other impairment of the humerus to include flail joint, false flail joint or fibrous union of the humerus. See March 2021 and October 2017 VA shoulder examinations. Consequently, higher ratings are not warranted based on DCs 5200 (ankylosis) or 5202 (other impairment of humerus). Further, the preponderance of the evidence is against finding that there is limited motion of the arm that more closely approximates 25 degrees from side. The evidence is not in approximate balance. During the March 2021 examination, the Veteran reported difficulty lifting arm overhead and difficulty sleeping on the right shoulder. He takes over the counter medication and estimated that the condition has remained the same since onset. He reported to the examiner that he did not have flare-ups. Flexion and abduction were limited initially to 160 with pain on both passive and active testing. The unclaimed joint (left shoulder) was noted to be damaged, and testing was not performed for this reason. There was no additional loss of function with three observed repetitions. Fatigability and pain significantly limit functional ability with repeated use over time and thus cause functional loss. With repeated use over time, range of motion was estimated to be reduced, with flexion and abduction to 150 degrees. There was no ankylosis or muscle atrophy. The examiner found the functional impact to be pain with lifting and repeated motion. There was no change in the service-connected diagnosis of tendonitis right shoulder (major), and no additional diagnoses were rendered. While an addendum report dated the same day as the examination and by the same examiner contains the response, "There is arm limitation of motion to 25 degrees from side as to the right," to a question as to whether this was the case, we find this to be clearly inconsistent with the range of motion reported in the actual examination and to be an erroneous report. Here, we note that the aforementioned ranges of motion reported on the examination were all well in excess of 25 degrees from side. In addition, several rotator cuff impingement tests performed on the right shoulder in that examination involve flexing or abducting the arm to 90 degrees. Treatment records for the entire period on appeal do not show a more restricted range of motion of the right shoulder than was demonstrated on the 2017 and 2021 examinations nor are other symptoms noted. While we acknowledge the far greater limited motion to 40 degrees was noted in the 2017 examination, considering the far less restrictive range of motion noted in the 2021 VA examination, we find that on balance the record more nearly approximates the 30 percent criteria than the 40 percent criteria based on range of motion. The overall disability picture is consistent with the 30 percent criteria and no higher. Also, the Veteran testified that the right shoulder does not pop out or dislocate. He reported that it is painful, and he has limited range of motion. He reported that the VA gave him an e-stim machine to help. He can at times raise it above shoulder level but not if it has been numb, it is like a limp in that way. Based on the above, the Board finds that the Veteran does not meet or approximate the criteria for a rating in excess of 30 percent for the right shoulder. The Board finds the 2017 and 2021 VA examiners' assessments as to range of motion (while the second one shows far more range of motion), and functional impact, to be significant and probative as to the fact that motion is not more limited than to midway between side and shoulder level. Also, there are no flare-ups, and 2021 reductions in range of motion due to estimated repeated use do not suggest a higher degree of limitation. He has repeatedly indicated that he has trouble with overhead work due to problems with his shoulder. Finally, while the Board has considered the actual degree of functional impairment imposed by pain, incoordination, weakness, fatigue, and lack of endurance with repetitive motion, in accordance with 38 C.F.R. §§ 4.40, 4.45, 4.59, the totality of the evidence persuades the Board that these factors are not present to any degree that would support or approximate a higher rating. Indeed, 4.59 has already been employed to support the current rating. Also, we find there is no 'functional ankylosis', as the record is replete with reference to the Veteran using the arm, albeit with pain, and generally performing daily activities. The criteria for a rating in excess of 30 percent are not met or approximated at any time throughout the appeal period when all the evidence is considered. See 38 C.F.R. § 4.7. There is no reasonable doubt regarding the degree of disability. See 38 C.F.R. § 4.3. 2. Knee disabilities At his February 2020 hearing before the undersigned, the Veteran testified that his right and left knee disabilities had worsened and are more disabling than currently rated. He reported using VA-issued cane and braces to avoid falls due to the knees giving out. He also reported significant increased swelling and knee pain with movement. Considering that the most recent examination for the Veteran's knee disabilities occurred in January 2016, as well as the evidence of complaints of ongoing bilateral knee pain and limitations in the VA clinical record, the Board ordered remand for examination, which was accomplished in June 2021. The Veteran is rated 20 percent for each knee based on DCs 5003-5010 for degenerative arthritis/traumatic arthritis. Under 38 C.F.R. § 4.71a, DC 5003, degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a 10 percent evaluation is assignable for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, DC 5003. A 10 percent evaluation will be assigned where there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups. A 20 percent evaluation will be assigned where there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups, and there are occasional incapacitating exacerbations. 10 and 20 percent evaluations based on X-ray evidence may not be combined with ratings based on limitation of motion. 38 C.F.R. § 4.71a, DC 5003. (Under DC 5010, traumatic arthritis is rated as degenerative arthritis under DC 5003.) The right and left knee strain disabilities are rated 20 percent (since April 1999) based on X-ray evidence showing involvement of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations. The residuals, right knee arthroscopy for debridement and resection of lateral meniscus with subluxation, is rated 20 percent (since September 2005) based on recurrent subluxation or lateral instability of the knee, which is moderate, under DC 5257 for knee, other impairment of. 38 C.F.R. § 4.71a. Under this DC, Recurrent subluxation or lateral instability warrants a 20 percent rating when moderate and a 30 percent rating when severe. Potential higher ratings for knee disabilities include the following: Pursuant to DC 5260, when flexion of the leg is limited to 60 degrees, a noncompensable rating is warranted. When flexion is limited to 45 degrees, a 10 percent rating is warranted. Flexion limited to 30 degrees warrants a 20 percent rating, while flexion limited to 15 degrees warrants the maximum 30 percent rating. DC 5261 rates based on limitation of extension. That code provides that when extension is limited to 5 degrees, a noncompensable rating is assigned. Extension limited to 10 degrees warrants a 10 percent rating. When limitation of extension is at 15 degrees, a 20 percent rating is warranted. Extension limited to 20 degrees warrants a 30 percent rating. Extension limited to 30 degrees warrants a 40 percent rating. Lastly, extension limited to 45 degrees warrants the maximum, 50 percent rating. VA General Counsel has held that separate evaluations under Diagnostic Code 5260 (limitation of flexion of the leg) and Diagnostic Code 5261 (limitation of extension of the leg) may be assigned for disability of the same joint. VAOGCPREC 9-2004, 69 Fed. Reg. 59990 September 17, 2004). DC 5258 provides a 20 percent rating for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. DC 5259 provides a 10 percent rating for removal of semilunar cartilage, symptomatic. 38 C.F.R. § 4.59, provides for a compensable rating for painful motion that does not meet the criteria for a minimum rating based on limitation of motion under DCs 5260 or 5261. Separate evaluations may be assigned for compensable limitation of flexion, extension, instability, subluxation or meniscus impairment. As discussed below, the preponderance of the evidence is against a higher rating for all of these right and left knee disabilities, at any time during the pendency of the appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). We note that the March 2021 examination obtained as a result of the Board remand is consistent with the treatment records in terms of the manifestations of the knee conditions and not inconsistent with the Veteran's testimony in general. The diagnoses on that examination include (1) left knee strain, status post arthroscopy for debridement, with degenerative joint disease with subluxation, dating from 1996; (2) right knee arthroscopy for debridement and resection of lateral meniscus with subluxation; right knee strain, with degenerative joint disease, status post arthroscopy for debridement and resection of lateral meniscus, from 1991. We note that X-ray evidence of degenerative arthritis of the knees is indicated in the VA treatment records. The March 2021 examiner noted the disabilities reportedly stayed the same since onset in 1991 and current symptoms included having to walks sideways upstairs, having difficulty walking more than one flight and difficulty walking downstairs more than us. The Veteran reported using elastic braces and Ibuprofen as needed, with occasional muscle relaxer use. The Veteran reported no flare ups of knee symptoms, no functional loss or impairment, and no history of instability or recurrent subluxation or frequent effusion of the knee. There was no lateral instability or recurrent dislocation present. Here, there is overwhelming evidence of not more than moderate recurrent subluxation or lateral instability warranting a 20 percent rating as to the right knee. Such was demonstrated in the March 2021 VA examination of the knees. There has been no finding of severe recurrent subluxation or lateral instability warranting a 30 percent rating under DC 5257. The examination findings include no recurrent subluxation or lateral instability. The Veteran denied such symptoms. The examiner reported the Veteran did not Veteran require a prescription (by a medical provider) for cane, brace, walker or crutches. There was no patellar instability. While the examiner entered conflicting information in the March 2021 report requiring clarification as to whether there was bilateral moderate history of recurrent subluxation of the knee, in a June 2021 addendum they clarified that there was no recurrent subluxation or lateral instability of the knee. In August 2021, another addendum again notes that the entry of bilateral moderate subluxation in March 2021 was an error and there is no subluxation. Moreover, we the preponderance the evidence is against a separate compensable rating under DC 5257 for the left knee. Again, the medical record reflects no recurrent subluxation or lateral instability of the left knee. See, e.g., March 2021 VA examination report and addendum. Thus, there is no slight recurrent subluxation and lateral instability of that knee. As to the right and left knee disabilities rated under DCs 5003-5010, the preponderance of the evidence is also against the claims for increase. Here, the evidence is not in approximate balance. The March 2021 VA examination reflects range of motion included flexion 0-135 degrees and extension normal at 0 degrees, with pain on active and passive motion, bilaterally. Pain does not cause functional loss. There was objective evidence of crepitus. The pain was along medial joint line to palpation of both knees. With observed repetitive use there was no additional loss of range of motion. With repeated use over time, range of motion was estimated to be flexion 0-130 degrees and extension to 0 degrees bilaterally limited by pain. There were no additional factors contributing to disability in either knee. There was no atrophy or ankylosis. There was no tibial or fibular impairment. The examiner noted no acquired and/or traumatic genu recurvatum with objectively demonstrated weakness and insecurity in weight-bearing, no patellar dislocation, no shin splints and no leg length discrepancy. Meniscus conditions were noted as bilateral meniscal tear, but no frequent episodes of joint "locking", joint pain or joint effusion, bilaterally. The examiner noted meniscectomy, arthroscopic in 1991 and 1996 on the right and in 1996 on the left knee. The Veteran used a brace bilaterally, constantly. The functional impact of the knee conditions was pain with activity such as climbing, bending, standing for long period of time, sitting for long period of time. There was no recurrent patellar dislocation. Ultimately, the Veteran's right and left knee disabilities currently rated based on DCs 5003-5010 result in painful but full extension bilaterally and flexion limited to not more than 130 degrees. The Board finds that this evidence is against a separate rating for either right or left leg extension and is against a higher rating for limited flexion in either leg, as flexion limited to 30 degrees warrants a 20 percent rating, while flexion limited to 15 degrees warrants the maximum 30 percent rating. Consistent with DeLuca, the Board has considered the Veteran's functional impairment in assessing the limitation of motion in this claim, considering flare-ups and painful motion, weakness, premature or excess fatigability, and incoordination, but they do not result in additional disability beyond that assigned in this claim for either the right or left knee. While there are no flare-ups, limitations described by him and noted on examination are found to be consistent with and accurately compensated by his 20 percent ratings based in large part on painful motion for arthritis in both knees. No credible evidence suggests that flexion is limited to 15 degrees or that extension is limited during the appeal period; there is no suggestion in his description during treatment or in the observations by medical personnel during the appeal period. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. § § 4.40, 4.45, 4.59. Here, we find that the observations of the skilled examiner in March 2021 are far more probative and more credible as to the degree of disability than the lay evidence, to the extent that he argues there is a higher level of impairment. To the extent that the Veteran testified that there has been such a degree of limitation, his perceptions and those of his representative are outweighed by the observations of trained medical personnel documented in the record. Finally, the Board has considered whether there are additional knee manifestations that warrant a separate or higher rating but concludes that the preponderance of the evidence is against so finding. We note the reports on the March 2021 examination of meniscal tear, considered in the current disability ratings as to each knee, but there are otherwise negative findings. We also find the treatment record consistent with this observation. The Veteran received cortisone shots during the appeal period for knee pain related to arthritis, and otherwise the findings are consistent with knee pain as the overwhelming manifestation of these knee disabilities. There is not dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint which would support a separate 20 percent rating under DC 5258. Also, we find there is no 'functional ankylosis', as to either knee, as the record is replete with reference to the Veteran using the knees, albeit with pain, and generally performing daily activities. The criteria for a higher rating are not met or approximated at any time throughout the appeal period when all the evidence is considered. See 38 C.F.R. § 4.7. There is no reasonable doubt regarding the degree of disability. See 38 C.F.R. § 4.3. The rating criteria for musculoskeletal disorders, to include some aspects of knee disorders, under 38 C.F.R. § 4.71a were amended, effective February 7, 2021 Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453-69 (November 30, 2020) (to be codified at 38 C.F.R. § 4.71a.) These changes do not result in any higher rating for this knee disability. Rather, the changes, in relevant part, do discuss recurrent subluxation and lateral instability and patellar instability, as well as tibia and fibular impairment, which are absent in the Veteran's case according to the most recent VA examination. Parenthetically, we note that the Veteran reported bilateral brace wearing but did not Veteran require a prescription (by a medical provider) for cane, brace, walker or crutches, relevant to the 30 percent criteria. The manifestations present and discussed in the Veteran's case are against higher or additional ratings under any criteria. There remains no basis for an increased rating as established by the most probative evidence, the 2021 VA examination. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Rippel, 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.