Citation Nr: 21005364 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 15-10 219A DATE: February 1, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for a left knee disability is denied. Entitlement to an initial rating in excess of 10 percent for a right knee disability is denied. FINDINGS OF FACT 1. For the entire period on appeal, even considering the point at which the Veteran experienced pain and limitations during a flare up, his left knee disability was manifested by extension limited to no greater than 10 degrees, and no evidence of ankylosis, recurrent subluxation or lateral instability, dislocation or removal of the semilunar cartilage, limitation of flexion to 45 degrees or less, impairment of the tibia and fibula, or genu recurvatum. 2. For the entire period on appeal, even considering the point at which the Veteran experienced pain and limitations during a flare up, his right knee disability was manifested by flexion limited to no less than 45 degrees, and no evidence of ankylosis, recurrent subluxation or lateral instability, dislocation or removal of the semilunar cartilage, limitation of extension to 10 degrees or greater, impairment of the tibia and fibula, or genu recurvatum. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 10 percent for a left knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5261. 2. The criteria for an initial disability rating in excess of 10 percent for a right knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from November 1974 to November 1978. Before proceeding to the decision, the Board would like to address the procedural history of this case. The Veteran was initially granted service connection for right knee Osgood-Schlatter’s disease and left knee Osgood-Schlatter’s disease in a June 2011 rating decision. In October 2011, he submitted a document stating that he was requesting reconsideration of his bilateral knee disability. As this statement indicates disagreement with and was received within one year of the June 2011 decision, the Board construes it as a timely notice of disagreement (NOD) as to the ratings for the Veteran’s bilateral knee disabilities. The Agency of Original Jurisdiction (AOJ) did not act upon this NOD but treated it as a new claim, issuing a new rating decision in March 2013. The Veteran submitted an NOD with this rating decision and the AOJ issued a statement of the case in March 2015. The Veteran perfected his appeal in April 2015. As the left and right knee appeals arise from the rating decision granting service connection and granting the initial ratings, the Board has recharacterized the issues above as initial ratings. In May 2019, the Veteran testified at a video conference hearing before the undersigned. A transcript of the hearing is of record. The Board remanded these claims in November 2019. The AOJ granted a separate 0 percent rating for right knee limited extension in August 2020. The case has been returned to the Board for further adjudication. Initial Rating Law and Regulations Disability ratings are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability ratings are potentially applicable, 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. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the rating assigned. 38 C.F.R. § 4.27. The Veteran’s entire history is reviewed when making a disability determination. 38 C.F.R. § 4.1. Where the Veteran timely appealed the rating initially assigned for the service-connected disability within one year of the notice of the establishment of service connection for it, VA must consider whether the Veteran is entitled to “staged” ratings to compensate him for times since filing his claim when his disability may have been more severe than at other times during the course of his appeal. See Fenderson v. West, 12 Vet. App. 119 (1999). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Under Diagnostic Code 5010, arthritis, due to trauma and substantiated by x-ray findings, is rated as degenerative arthritis (Diagnostic Code 5003). 38 C.F.R. § 4.71a, Diagnostic Code 5010. Under Diagnostic Code 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 (DC 5200 etc.). 38 C.F.R. § 4.71a, Diagnostic Code 5003. Under Diagnostic Code 5260, a 10 percent rating is assigned for flexion of the leg limited to 45 degrees. A 20 percent rating is assigned for flexion of the leg limited to 30 degrees. A 30 percent rating is assigned for flexion of the leg limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5261, a 10 percent rating is assigned for extension of the leg limited to 10 degrees. A 20 percent rating is assigned for extension of the leg limited to 15 degrees. A 30 percent rating is assigned for extension of the leg limited to 20 degrees. A 40 percent rating is assigned for extension of the leg limited to 30 degrees. A 50 percent rating is assigned for extension of the leg limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Factual Background The Veteran was first examined for his bilateral knee disabilities in conjunction with his current claim in August 2010. VA Joints examination, August 2010. At that time, he complained of intermittent knee symptoms, including deformity, giving way, instability, pain, stiffness, weakness, incoordination, decreased speed of joint motion, daily episodes of locking, warmth, swelling, and tenderness, with remissions. He treated his bilateral knee symptoms with Motrin and Ben Gay with fair response. He also reported severe weekly flare ups that lasted hours and made it difficult to lift, bend, stoop, and operate machinery at work. He indicated that he was able to stand for more than one hour but less than three hours and able to walk for one quarter of a mile. He used orthotic inserts and ankle braces intermittently but frequently. The examiner observed deformity, crepitation, and tenderness of the right knee and crepitation, tenderness, and abnormal patellar tracking of the left knee. Both knees had bumps consistent with Osgood-Schlatter’s disease. The examiner recorded range of motion measurements of 140 degrees of flexion for the left knee, 130 degrees of flexion for the right knee, and 0 degrees of extension bilaterally with pain throughout. After three repetitions, his flexion was limited to 130 degrees for the left knee and 120 degrees for the right knee. X-rays showed mild osteoarthritis bilaterally and findings reflective of old Osgood-Schlatter’s disease in the right knee. The examiner concluded that his bilateral knee disabilities had significant effects on his usual occupation as a material handler/warehouseman. His bilateral knees were next examined in September 2012. VA Knee and Lower Leg Conditions examination report, September 2012. At that time, he complained of bilateral knee pain that was worse with bending and prolonged standing and walking. He denied any work limitations, treatment, surgery, or incapacitation. He reported daily flare ups with prolonged standing, walking, and bending, especially after work. Range of motion testing for the right knee showed 110 degrees of flexion with no objective evidence of painful motion and 0 degrees of extension with pain at 0 degrees for the right knee. Range of motion testing for the left knee showed 110 degrees of flexion and 0 degrees of extension with no objective evidence of painful motion for the left knee. There was no additional limitation of motion after three repetitions for either knee. Muscle strength and stability testing were normal with no evidence or history of recurrent patellar subluxation or dislocation. The examiner did not observe any tenderness or pain on palpation of either knee. He diagnosed the Veteran with bilateral Osgood-Schlatter’s disease and arthritis of the knees. The Veteran was next examined for his bilateral knee disabilities in January 2017. VA-QTC Knee and Lower Leg Conditions examination, January 2017. At that time, he complained of an inability to do heavy lifting, problems kneeling and getting up from kneeling, and pain with standing and walking. He also reported flare ups of increased pain, swelling, and decreased range of motion. Right knee range of motion testing showed 110 degrees of flexion and 0 degrees of extension with no pain noted on examination and no additional limitation with three repetitions. Left knee range of motion testing showed 120 degrees of flexion and 0 degrees of extension with no pain noted on examination and no additional limitation with three repetitions. The examiner estimated that his flexion was limited to 110 degrees bilaterally with repeated use over time due to pain for the right knee and pain and weakness for the left knee. The examiner estimated that his flexion was limited to 70 degrees bilaterally during a flare up due to pain, fatigue, and weakness for the right knee and pain and weakness for the left knee. Additionally, the examiner noted additional contributing factors of disability bilaterally, including less movement than normal, swelling, disturbance of locomotion, interference with standing, and instability of station. Muscle strength was 4 out of 5 for flexion and extension bilaterally without atrophy. There was no history of recurrent subluxation, lateral instability, or recurrent effusion. Joint stability testing was normal bilaterally. The examiner diagnosed the Veteran with bilateral shin splints and Osgood-Schlatter’s disease of the knees and concluded that it impacted his occupational tasks by preventing kneeling and causing pain in the knees with prolonged standing or walking. The Veteran was most recently examined for his bilateral knee disabilities in December 2019. VA-LHI Knee and Lower Leg Conditions examination report, December 2019. At that time, he complained of persistently worsening knee pain, popping, stiff sensation, constant soreness, and difficulty squatting or bending knees. His only current treatment was stretches before work, but a future total knee replacement had been recommended. He reported flare ups several times per week and lasting hours that were moderately severe for the right knee and severe for the left knee. He also reported functional loss due to decreased mobility and difficulty and pain with certain movements, especially because he works in a warehouse. The examiner recorded range of motion measurements of 100 degrees of flexion and 0 degrees of extension with pain for the right knee and 95 degrees of flexion and 0 degrees of extension with pain for the left knee. There was pain with palpation (moderate for the right knee, severe for the left knee) and pain with weight-bearing, but no objective evidence of crepitus. Pain and weakness further limited his range of motion with repeated use over time and during a flare up to 95 degrees of flexion and 5 degrees of extension for the right knee and 85 degrees of flexion and 10 degrees of extension for the left knee. Muscle strength was 3 out of 5 for flexion and extension bilaterally. There was no history of recurrent subluxation, lateral instability, or recurrent effusion. Joint stability testing was normal. X-rays showed degenerative/traumatic arthritis. The examiner concluded that the Veteran’s bilateral knee pain caused difficulty at work because his job is very labor intensive and also in a very cold unit which makes it difficult to bend and lift items and walk or stand for prolonged periods. In addition to the VA and VA contract examinations of record, the medical includes private and VA treatment records. These records are generally consistent with the findings in the examination reports. Significantly, there is no medical evidence showing more limited range of motion that that reflected in the examination reports. Further, an August 2020 private treatment record noted the Veteran’s moderate to severe bilateral knee osteoarthritis and that he would be a candidate for knee replacement, but that he was “not overly excited about that.” Private treatment record, C.T., MD, August 2020. This treatment record indicates that the Veteran has not received additional treatment or surgery since his December 2019 VA contract examination. The evidence also includes statements from the Veteran. These statements reflect the Veteran’s complaints of bilateral knee pain. However, none of this evidence reflects symptoms or limitations more severe than that noted by the VA and VA contract examiners. 1. Entitlement to a rating in excess of 10 percent for a left knee disability The June 2011 rating decision on appeal initially rated the Veteran’s left knee disability as 10 percent disabling under Diagnostic Code 5010-5260. See Rating Decision, June 2011. Subsequent to the Board’s remand, an August 2020 rating decision rated the Veteran’s left knee disability as 10 percent disabling under Diagnostic Code 5261 as this diagnostic code more accurately reflected his disability picture. See Rating Decision, August 2020. It is permissible to switch diagnostic codes to reflect more accurately a claimant’s current symptoms. See Read v. Shinseki, 651 F. 3d 1296, 1302 (Fed. Cir. 2011) (holding that service connection for a disability is not severed when the Diagnostic Code associated with it is changed to determine more accurately the benefit to which a veteran may be entitled). Upon review of the medical and lay evidence of record, discussed above, the Board finds that the Veteran does not meet the criteria for a disability rating in excess of 10 percent for his left knee disability at any time during the appeals period. Under his currently assigned Diagnostic Code 5261, there is no evidence of extension limited to 15 degrees or greater to warrant a 20 percent rating or higher under Diagnostic Code 5261. Even when considering his complaints of pain, the most limited extension of 5 degrees was on the December 2019 VA-LHI examination when estimating for limitation of extension with repeated use over time or during a flare up. Although this does not indicate a 10 percent rating for limitation of extension under Diagnostic Code 5261, the Veteran has been assigned such and the Board will not disturb this rating. Moreover, there is also no evidence of flexion limited to 45 degrees or less on any of the VA or VA contract examinations to warrant a separate compensable rating under Diagnostic Code 5260 for limitation of flexion. In light of the multiple VA/VA contract examinations and considering the Veteran’s complaints of pain, the evidence does not support a finding of limitation of extension that warrants a rating higher than 10 percent under the Veteran’s currently assigned Diagnostic Code 5261 at any time during the period on appeal. The Board has also considered other relevant diagnostic codes. However, there is no evidence at any time throughout the appeals period showing ankylosis, recurrent subluxation or lateral instability, dislocation or removal of the semilunar cartilage, impairment of the tibia and fibula, or genu recurvatum to warrant any separate compensable ratings under Diagnostic Codes 5256, 5257, 5258, 5259, 5262, or 5263. 38 C.F.R. § 4.71a, Diagnostic Codes 5256-5259, 5262-5263. The Board has considered the possibility of entitlement to an increased rating under 38 C.F.R. §§ 4.40, 4.45, and 4.59 on the basis of functional loss due to the Veteran’s subjective complaints of pain. DeLuca v. Brown, 8 Vet. App. 202, 204 206 (1995); VAGCOPPREC 9-98, 63 Fed. Reg. 56704 (1998). However, as the Board has used the point at which the Veteran experienced pain when considering his range of motion, there is no indication that a higher rating is warranted based on painful motion. Moreover, the Board has also used the Veteran’s estimated limitation of motion during a flare up in evaluating his disability. This has resulted in the 10 percent evaluation under Diagnostic Code 5261. There is no evidence that his extension is limited to 15 degrees or more during a flare up to warrant a higher rating. As such, a higher rating is not warranted based on a higher level of disability during a flare up. See Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). There is also no indication in the medical evidence that the Veteran’s service connected left knee disability warranted other than the currently assigned 10 percent disability rating at any point during the appeals period. The assignment of staged ratings is not warranted. See Fenderson, supra. Accordingly, the Board finds that the claim of entitlement to an initial rating in excess of 10 percent for a left knee disability must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). 2. Entitlement to a rating in excess of 10 percent for a right knee disability The June 2011 rating decision on appeal initially rated the Veteran’s right knee disability as 10 percent disabling under Diagnostic Code 5010-5260. See Rating Decision, June 2011. Subsequent to the Board’s remand, an August 2020 rating decision rated the Veteran’s right knee disability as 10 percent disabling under Diagnostic Code 5260 and separately 0 percent disabling under Diagnostic Code 5261, effective December 20, 2019. See Rating Decision, August 2020. Upon review of the medical and lay evidence of record, discussed above, the Board finds that the Veteran does not meet the criteria for a disability rating in excess of 10 percent for his right knee disability at any time during the appeals period. Under his currently assigned Diagnostic Code 5260, there is no evidence of flexion limited to 30 degrees or less to warrant a 20 percent rating or higher. Even when considering his complaints of pain, the most limited flexion of 95 degrees was on the December 2019 VA-LHI examination when estimating for limitation of flexion with repeated use over time or during a flare up. Although this does not indicate a 10 percent rating for limitation of flexion under Diagnostic Code 5260, the Veteran has been assigned such and the Board will not disturb this rating. Moreover, there is also no evidence of extension limited to 10 degrees or greater on any of the VA or VA contract examinations to warrant a separate compensable rating under Diagnostic Code 5261 for limitation of extension. In light of the multiple VA/VA contract examinations and considering the Veteran’s complaints of pain, the evidence does not support a finding of limitation of flexion that warrants a rating higher than 10 percent under the Veteran’s currently assigned Diagnostic Code 5260 at any time during the period on appeal. The Board has also considered other relevant diagnostic codes. However, there is no evidence at any time throughout the appeals period showing ankylosis, recurrent subluxation or lateral instability, dislocation or removal of the semilunar cartilage, impairment of the tibia and fibula, or genu recurvatum to warrant any separate compensable ratings under Diagnostic Codes 5256, 5257, 5258, 5259, 5262, or 5263. 38 C.F.R. § 4.71a, Diagnostic Codes 5256-5259, 5262-5263. The Board has considered the possibility of entitlement to an increased rating under 38 C.F.R. §§ 4.40, 4.45, and 4.59 on the basis of functional loss due to the Veteran’s subjective complaints of pain. DeLuca, supra, at 204 206; VAGCOPPREC 9-98, 63 Fed. Reg. 56704 (1998). However, as the Board has used the point at which the Veteran experienced pain when considering his range of motion, there is no indication that a higher rating is warranted based on painful motion. Moreover, the Board has also used the Veteran’s estimated limitation of motion during a flare up in evaluating his disability. This has resulted in the 10 percent evaluation under Diagnostic Code 5260. There is no evidence that his flexion is limited to 30 degrees or less during a flare up to warrant a higher rating. As such, a higher rating is not warranted based on a higher level of disability during a flare up. See Sharp, supra. There is also no indication in the medical evidence that the Veteran’s service connected right knee disability warranted other than the currently assigned 10 percent disability rating at any point during the appeals period. The assignment of staged ratings is not warranted. See Fenderson, supra. Accordingly, the Board finds that the claim of entitlement to an initial rating in excess of 10 percent for a right knee disability must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Ortiz, supra. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Moore, 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.