Citation Nr: 21005391 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 16-52 520 DATE: February 1, 2021 ORDER A rating in excess of 20 percent for right knee disability with limitation of flexion (residuals of right knee meniscal tear, with limitation of flexion, status-post partial medial meniscotomy and osteochondral drilling of the medial femoral condyle, with extensive synovectomy) is denied. A rating in excess of 30 percent for right knee instability is denied. REMANDED Entitlement to service connection for left knee disability is remanded. Entitlement to service connection for right hip disability is remanded. Entitlement to service connection for left hip disability is remanded. FINDINGS OF FACT 1. The Veteran’s right knee disability is not more nearly manifested by flexion limited to 15 degrees or worse. 2. The Veteran’s right knee instability is rated at maximum schedular level for instability of the knee joint. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for right knee disability with limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5258-5260. 2. The criteria for a rating in excess of 30 percent for right knee instability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5010-5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1989 to July 1993 in the United States Navy. He also served in the Navy Reserves with a period of active duty from September 7, 2003, to September 19, 2003. This appeal comes before the Board of Veterans’ Appeals (Board) from rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In December 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the claims file. See Hearing Transcript (December 2019). In April 2020, the Board remanded the appeal for additional evidentiary development. See BVA Remand (April 2020). Except as addressed the below remand, the Board finds that there has been substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions). Evaluations The Veteran contends that he is entitled to a higher rating for his service-connected right knee disabilities. He testified that he experiences pain and swelling in the left knee with limitation in motion. He testified that his right knee has worsened over the years and the symptoms adversely affect his quality of life. See Hearing Transcript (December 2019). He described receiving knee injections for pain relief; however, he explained that he would only receive comfort for 45 days out of the expected 90 day expected ameliorative period. He also described experiencing instability and flare-ups. He reported wearing a brace for his right knee and being limited in activities such as squatting and bending. A May 2007 rating decision granted service connection for residuals of right knee meniscal tear, status post partial medial meniscectomy and osteochondral drilling of the medial femoral condyle, with extensive synovectomy, at 10 percent effective December 6, 2004, under 38 C.F.R. § 4.71a, Diagnostic Code 5259. A January 2009 rating decision granted a separate 30 percent rating for right knee instability effective from October 21, 2008, under 38 C.F.R. § 4.71a, Diagnostic Code 5010-5257. In February 2013, VA received his claim for increase. See VA Form 21-526b (February 2013), which was denied and from which this appeal arises. While in appellate status, his right knee disability with limitation of flexion was assigned a 20 percent rating effective from February 20, 2013, under 38 C.F.R. § 4.71a, Diagnostic Code 5258-5260. 1. Entitlement to a rating in excess of 20 percent for residuals of right knee disability with limitation of flexion. 2. Entitlement to a rating in excess of 30 percent for right knee instability. The Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for right knee disability with limitation of flexion. The Board also finds that the preponderance of the evidence is against a rating in excess of 30 percent for right knee instability. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5258-5260, 5010-5257. The criteria pertaining to traumatic arthritis under Diagnostic Code 5010 instruct to rate as degenerative arthritis under Diagnostic Code 5003. Under that code, degenerative arthritis established by X-ray findings is to be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. Where, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent rating is assigned where there is x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. A 20 percent rating is assigned where there is x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. These ratings may not be combined with ratings based on limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Diagnostic Codes 5256 through 5263 pertain to the knee and lower leg. In relevant part they provide as follows. Under Diagnostic Code 5257, a 10 percent rating is warranted for slight recurrent subluxation or lateral instability. A 20 percent rating is warranted for moderate recurrent subluxation or lateral instability. A 30 percent rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Under Diagnostic Code 5258, a 20 percent rating is warranted for dislocation of semilunar cartilage with frequent episodes of “locking, pain”, and effusion into the joint. 38 C.F.R. § 4.71a, Diagnostic Code 5258. Under Diagnostic Code 5260, a noncompensable 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. A 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5261, a noncompensable 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. A 50 percent rating is warranted for extension limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Turning to the Veteran’s claims, the Board notes that under 38 C.F.R. § 4.71a, Diagnostic Code 5257, a 30 percent rating is the maximum schedular rating for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Here, as the Veteran is in receipt of the highest schedular rating for other impairment of the knee, there is no basis to award a higher evaluation. Therefore, the claim for a higher schedular rating for right knee instability must be denied. As to the claim for a rating in excess of 20 percent for right knee disability with limitation of flexion, the Board finds that the preponderance of the evidence is against the claim. VA received the claim for increase in 2013. The more persuasive competent, credible evidence of record shows that throughout the appeal period the Veteran’s right knee flexion did not more nearly approximate flexion limited to 15 degrees or less. For example, an April 2014 VA examination reflects flexion to 100 degrees without pain without change after repetitive use testing; a March 2020 Disability Benefits Questionnaire, submitted by the Veteran from a provider of his choosing, reflects flexion to 130 degrees; and a September 2020 VA examination reflects flexion to 100 degrees without change after repetitive use testing. It is noted that an June 2014 DBQ from a private provider indicated that range of motion of findings could not be obtained due to right knee pain and swelling; hence, this DBQ has little probative value for evaluating the severity of the Veteran’s right knee limitation of flexion since there were no findings provided and because, while the Veteran declined ROM testing, he was able to perform muscle strength testing, which shows findings 4/5 (active movement against some resistance) and no muscle atrophy. The Board has considered the Veteran’s reports of flare-up and complaints of right knee pain and swelling. At his 2014 VA examination, he reported symptoms of pain, stiffness, and swelling, which he treated with Tylenol with codeine and fish oil; he also reported vaguely flare-ups occurring two times a month and lasting about two days. The June 2014 DBQ from the Veteran reflects that pain and swelling limits range of motion, but provides no further detail. The March 2020 DBQ from the Veteran reflects that the Veteran’s abnormal range of motion did not contribute to any functional loss although no explanation was given. At his recent September 2020 VA examination, the Veteran reported flare-ups of the right knee about 2-3 times per month with severe pain (9 out of 10) lasting 2 to 3 days. Functional impairment included not being able to walk, ride a bike, or walk for too long. Here, neither the lay nor the medical evidence the presence of functional impairment that more nearly approximates right knee flexion to 15 degrees of less. To obtain a higher rating based on limitation of flexion, there must the functional equivalent of flexion more nearly limited to 15 degrees or less, which is not shown here at any time during the appeal period. The Board has also considered whether a higher or separate rating is warranted unde any other potential Diagnostic Code pertaining to the knee and leg. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). However, in the absence of competent evidence of ankylosis, limitation of extension, impairment of tibia and fibula, or genu recurvatum, a higher or separate rating is not warranted under Diagnostic Codes 5256, 5261, 5262, or 5263. Also, his right knee disability does not manifest with frequent episodes of “locking,” pain and joint effusion; hence, a separate rating under Diagnostic Code 5258 is not warranted. Also, although the Veteran had an arthroscopy with partial meniscectomy, a separate rating based on removal of cartilage under Diagnostic Code 5259 is not warranted as neither the lay nor medical evidence reflect the presence of symptoms not already contemplated by the current ratings under Diagnostic Codes 5257 and 5260. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claims for increase for the right knee. In denying these matters, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND In remanding these matters, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran’s assertions. Neither the Veteran’s credibility nor any lack thereof should be presumed in this remand. 1. Entitlement to service connection for left knee disability. 2. Entitlement to service connection for right hip disability. 3. Entitlement to service connection for left hip disability. A remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand. Where remand orders of the Board are not complied with, the Board errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran, and his representative, contends that his left knee, right hip, and left hip disabilities stem from his service-connected right knee disability. Specifically, he argued at his December 2019 Board hearing that his claimed conditions were related to his compensating weight due to his right symptoms. An April 2020 Board decision remanded the claims for service connection for the left knee, right hip, and left hip to obtain a medical opinion on secondary service connection. Although VA medical opinions (VAMOs) were obtained, each dated in September 2020, these VAMOs) are inadequate to decide the appeals. It is noted that that the legal criteria for secondary service connection has two prongs, the first is a causation prong and the second is an aggravation prong. An adequate medical opinion regarding secondary service connection must address causation and aggravation separately. See El Amin v. Shinseki, 26 Vet. App. 136 (2013) (indicating that findings of “not due to,” “not caused by,” and “not related to” a service-connected disability are insufficient to address the question of aggravation under § 3.310(b)). The examiner did not provide an adequate rationale for her opinion as "it is unclear how and why the same rationale was applied to both the causation and aggravation elements of secondary service connection." Atencio, 30 Vet. App. 74, 90 (2018) (an examiner must provide a rationale that deals with causation and aggravation as independent concepts). The September 2020 VAMOs concluded that the Veteran’s left knee and hip disorders were less likely than not secondary due to service-connected right knee disabilities. As to the causation prong, the rationale for the left knee and hips were identical and entirely predicated on the absence of support in the medical literature, citing to “Wheeless’ Textbook of Orthopedics” and “Oxford's Textbook on Orthopedics and Trauma.” The opinion addressing the causation prong is inadequate because it relied on the absence of medical literature supporting causation without discussing the specific facts of the case as they pertain to this Veteran. See Bailey v. O'Rourke, 30 Vet. App. 54, 60 (2018). The VAMO is also inadequate as to the aggravation prong. With regard to the left knee, the negative opinion was predicated on a finding that the left knee x-rays dated in 2009 and 2015 both showed mild patellofemoral arthritis. However, the opinion does reflect consideration of the Veteran’s reports of left knee symptoms and does not explain why the x-ray findings alone are dispositive of aggravation. See McKinney v. McDonald, 28 Vet. App. 15, 30-31 (2016) (“the VA examiner’s failure to consider [a veteran’s] testimony when formulating her opinion renders that opinion inadequate.”). For the hips, the negative medical opinion noted that there were recent findings for good range of motion, normal strength, and mild x-ray findings for arthritis along with some trochanter bursal tenderness and iliotibial band “irritability” of both hips; then it concluded “These findings are not aggravated beyond it’s natural progression.” Here, there is no reasoned medical explanation between the negative conclusion and the supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). As the VAMO is inadequate remand is required. Where VA provides an examination or obtains an opinion, it must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). As an aside, the Board notes that the left knee was addressed on the Veteran’s entrance into service. Indeed, his August 26, 1988, service entrance examination, Report of Medical Examination, indicated normal clinical evaluation of the lower extremities and, under summary of defects, that the left knee is “asymptomatic NCD” (not considered disabling). The Board acknowledges that other documents at the time of service entry indicate treatment of the left knee (e.g. “Report of Medical Examination/Treatment” dated August 26, 1988, reflects a diagnosis of left knee sprain, with the “inclusive dates of treated” listed as “4/12/88 – present.”) (e.g. “Report of Medical Examination/Treatment” dated August 26, 1988, reflects a diagnosis of (1) posterolateral capsular and hamstring strain and popping of LEFT knee rule out internal derangement of left knee; (2) patella tendonitis. The presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff'd 749 F.3d 1370 (Fed. Cir. 2014). In this case, the Veteran has not argued aggravation of a preexisting injury or disease. The matters are REMANDED for the following action: Obtain an addendum medical opinion from an appropriate clinician to address the nature and etiology of any disability of the left knee, right hip, and left hip. Address the following: Whether it is at least as likely as not (i)proximately due to service-connected right knee disability, or (ii) aggravated beyond its natural progression by service-connected right knee disability. Consider and discuss the Veteran’s reports of gait changes due to right knee disability. The opinion should (a) reflect consideration of the Veteran's documented relevant history and assertions; and (b) identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion. An adequate medical opinion may not be predicated solely on the absence of medical literature supporting causation (or aggravation) without discussing the specific facts of the case as they pertain to this Veteran. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. A. Macek, 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.