Citation Nr: A21019356
Decision Date: 12/06/21	Archive Date: 12/06/21

DOCKET NO. 201102-117329
DATE: December 6, 2021

ORDER

Entitlement to a rating higher than 10 percent for right knee disability, is denied.

REMANDED

Entitlement to service connection for left knee condition, status post-arthroscopy, is remanded.

FINDING OF FACT

The preponderance of the evidence of record shows that the right knee disability has manifested with painful, noncompensable limitation of motion (LOM) throughout the rating period on appeal.

CONCLUSION OF LAW

The criteria for entitlement to a rating higher than 10 percent for right knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5260.

REASONS AND BASES FOR FINDING AND CONCLUSION

Upon initial review of this case, the Board found pre-decision error and remanded it to the Agency of Original Jurisdiction (AOJ) for additional development. See 05/01/2020 BVA Decision. Following the additional development, the AOJ continued the assigned rating; the Veteran again appealed for a Direct Review by a Veterans Law Judge; and, the appeal was duly docketed at the Board. See 09/30/2020 Rating Decision; VA Form 10182; 01/14/2021 BVA Letter. Hence, the case is properly before the Board for further appellate review. As discussed further below, the Board finds substantial compliance with the remand directive. See Stegall v. West, 11 Vet. App. 268, 271 (1998).

1. Evaluation of right knee disability

Applicable Law and Regulation

Disability ratings are intended to compensate for impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.27. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, see 38 C.F.R. §§ 4.1, 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran's favor. 38 C.F.R. § 4.3. Evaluations are based on functional impairments which impact a veteran's ability to pursue gainful employment. 38 C.F.R. § 4.10.

Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. 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 may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202, 205-08 (1995); 38 C.F.R. §§ 4.40, 4.45. In DeLuca, the Court of Appeals for Veterans Claims (Court) stated that increased symptomatology due to weakness, fatigue, etc., where possible, should be, where possible stated by examiners in terms of additional loss of range of motion. DeLuca, 8 Vet. App. at 205.

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.

In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities. The joint involved should be tested for pain on both active (AROM) and passive motion (PROM), in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. Further, where flare-ups and functional loss due to repeat use over time are reported, the examiner must estimate, in degrees, any additional loss of ROM due to either or both. Sharp v. Shulkin, 29 Vet. App. 26 (2017).

Rating Criteria

For purposes of this decision, the Board notes that normal range of motion for the knee is flexion to 140 degrees and extension to 0 degrees. 38 C.F.R. § 4.71a, Plate II.

Diagnostic Codes 5260 and 5261 provide for rating based on limitation of motion (LOM).

Evaluations for limitation of flexion of a knee are assigned as follows: flexion limited to 45 degrees is 10 percent; flexion limited to 30 degrees is 20 percent; and flexion limited to 15 degrees is 30 percent. 38 C.F.R. § 4.71a, DC 5260.

Evaluations for limitation of extension of the knee are assigned as follows: extension limited to 10 degrees is 10 percent; extension limited to 15 degrees is 20 percent; extension limited to 20 degrees is 30 percent; extension limited to 30 degrees is 40 percent; and extension limited to 45 degrees is 50 percent. 38 C.F.R. § 4.71a, DC 5261.

The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994).

Discussion

Historically, an April 1992 rating decision granted service connection for the right knee disability and assigned an initial 10 percent rating, effective in June 1991. See 04/29/1992 Rating Decision. VA received the Veteran's claim for an increased rating in February 2019. See 02/25/2019 VA 21-526EZ.

The rating criteria for musculoskeletal disabilities were changed, effective in February 2021. However, this is outside the rating period considered in this case, which closes on the date that notice was sent with respect to the decision challenged on appeal, which here was in October 2020.

The 2019 examination report (03/25/2019 C&P Exam, 5th Entry) reflects that the Veteran reported flare-ups that consisted of grindings and cracking on bending, extending, prolonged sitting, activity, and pain on pressure. He reported functional loss due to dull, aching pain on weight bearing, and stiffness and LOM during cold weather. Physical examination revealed localized moderate tenderness at the anterior knee region. ROM testing revealed ROM of 0 to 100 degrees, with pain on flexion, and crepitus. There also was pain on PROM. The examiner opined that the LOM did not cause functional loss, but the pain did. There was pain on weight bearing but not on non-weight bearing. The left knee is impaired, so the Correia criteria do not require that the right knee be compared to it. Muscle strength was 5/5 without atrophy. The examiner noted that there was no history of subluxation. The Veteran denies the use of any assistive device, and the examiner opined that the Veteran had not lost the use of the right knee. The examiner noted that the knee x-rays revealed degenerative changes, which the examiner added to the existing diagnosis of record, patellofemoral syndrome with iliotibial syndrome.

The Board finds that the objective findings on clinical examination show that the LOM of the right knee is noncompensable, as flexion was greater than 0 to 45 degrees. 38 C.F.R. § 4.71a, DC 5260. Further, the examination report reflects that repetitive-use testing did not reveal any additional loss of ROM. See 38 C.F.R. §§ 4.40, 4.45. As there was pain on ROM, however, the Veteran is entitled to the minimum compensable rating, 10 percent, see 38 C.F.R. § 4.59, which is how the right knee is rated. The Board notes that while the examination met the Correia criteria, the examiner did not provide an estimate of any additional loss of ROM the Veteran would experience due to either flare-ups or repeat use over time as required by Sharp. It was for that reason that the Board remanded the case for another examination. 

In an October 2019 statement, the Veteran complained that the 2019 examiner was not an orthopedist, a complaint that he would echo after the 2020 examination. See 10/17/2019 Buddy/Lay. The Board notes that the fact that the examiner was not an orthopedist did not render the examination inadequate. 

As noted earlier, the May 2020 Board remand directed that another examination be conducted. The examination report (09/22/2020 C&P Exam, 2nd Entry) reflects that the examiner conducted a review of the claims file as part of the examination. The Veteran reported occasional flare-ups on activity and sitting, depending on the weather, and they lasted for less than a day. He did not report any functional loss due to repeat use over time. Physical examination did not reveal any localized tenderness. ROM was normal with crepitus, pain on flexion and on weight bearing. There was no pain on PROM or on non-weight bearing. Repetitive-use testing revealed a loss of 10 degrees on flexion. Concerning functional loss due to repeat use over time, the examiner opined that the Veteran's reports were neither consistent nor inconsistent with the examination findings, and the examiner estimated the additional loss due to repeat use over time to be the same as that for repetitive-use testing, -10 degrees, which means the Veteran's ROM after repeat use would be 0 to 130 degrees. Id. P. 5.

ROM of 0 to 130 degrees is not compensable, as it is greater than 0 to 45 degrees. 38 C.F.R. § 4.71a, DC 5260. Hence, since the Veteran's motion is painful, he is entitled to the minimum compensable rating. Mitchell v. Shinseki, 25 Vet. App. 32 (2011); see also 38 C.F.R. § 4.59. The minimum compensable rating is 10 percent, which is how the right knee is in fact rated. The examiner noted that there was a reduction in muscle strength but showed strength as 5/5, which represents normal strength. The Board cannot determine which is correct, unless the examiner intended that the reference to reduced strength represents a lay report from the Veteran. In any event, the examiner noted that any loss is due to pain, which is a part of the minimum compensable rating.

In a November 2020 statement, the Veteran again commented on the fact that his examination was not conducted by an orthopedist, see 11/02/2020 Correspondence; and, again, the Board notes that the fact the examiner was not an orthopedist did not render the examination inadequate. The 2020 remand did not direct a specialist conduct the examination. The Veteran also protested in the statement that he tried to read or inform the examiner of the rating criteria as it applied to pain, but the examiner was not interested. Medical examiners or other medical professionals do not apply the rating criteria; that is a task for VA rating personnel. Hence, the Board finds that the examiner properly declined to consider the Veteran's request to read or discuss the rating criteria. The Veteran also asserted that the examiner did not ask him about his pain, and that she did not allow him to report that he had off-and-on pain in the knee. Id. The Board notes, however, that the examiner did note the Veteran's reports of occasional flare-ups of pain. Hence, the Board finds that the examiner did not ignore the Veteran's lay report of his symptoms. Thus, the Board finds that the examination was in fact adequate.

The Veteran also asserts that the fact that arthritis was shown on x-rays, and that degenerative arthritis was added to his diagnosis, entitles him to a separate and additional rating under DC 5003. That, however, is not how the rating criteria operates. Degenerative arthritis is rated on the basis of LOM of the affected joint under the appropriate diagnostic code. 38 C.F.R. § 4.71a, DC 5003. A rating is not based on x-ray findings unless there is no LOM or painful motion. In any event, a rating for arthritis based on x-ray would not be in addition to another rating based on LOM. Hence, the preponderance of the evidence of record shows that the Veteran's right knee is appropriately rated at 10 percent, and it has manifested at that rate throughout the rating period on appeal. 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.59, 4.71a, DC 5260. Further, the examination report reflects that there is no instability in the right knee, and the examiner opined that the Veteran has not lost the use of the right knee. Therefore, there is no factual basis for a separate rating based on instability nor special monthly compensation for loss of use of an extremity.

Since the preponderance of the evidence is against the claim, there is no reasonable doubt to resolve. See Gilbert, 1 Vet. App. 49, 53-56; see also 38 C.F.R. § 3.102.

REASONS FOR REMAND

1. Entitlement to service connection for left knee condition, status post-arthroscopy

The AOJ arranged another examination as directed in the 2020 remand. A nurse practitioner (NP) examiner opined that it is not at least as likely that the left knee is causally connected to active service. See 09/22/2020 C&P Exam, 1st Entry. The NP placed significant emphasis on the absence of documented treatment records and the fact that the etiology of arthritis is multifactorial. The Board notes, however, that the absence of contemporaneous medical documentation, alone, is not an adequate basis for a negative nexus opinion. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). It also suggests that the NP did not accord consideration to the Veteran's lay reports of his history. The Board notes further that arthritis was added to the Veteran's knee diagnosis recently, and the NP opined that she could not conclude that the existing diagnoses of patellofemoral syndrome (PFS) and iliotibial band syndrome (ITBS) were the cause of the degenerative arthritis. She did not opine on whether there is a causal connection between the PFS and ITBS record and active service. Hence, the Board finds that the nexus opinion is not adequately supported. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).

The matter is REMANDED for the following action:

Send the claims file to a physician reviewer. Ask the physician to review the claims file and to opine on whether it is at least as likely as not that either or all of diagnosed left knee disorders are causally connected to the Veteran's active service, to include the complaints and treatments documented in the service treatment records (STRs)?

Inform the physician that a full explanation of the opinion must be provided. The Veteran's lay reports of his history must be considered, and the proffered rationale must include how they were considered. If the absence of documented treatment records is material, the physician must explain the significance and how it applies to the Veteran's individual case.

If the physician advises that he/she needs to examine the Veteran in order to provide the requested opinion, the AOJ shall arrange the examination.

 

 

Eric S. Leboff

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	W. T. Snyder

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.