Citation Nr: 21005421 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 11-27 619 DATE: February 1, 2021 ORDER A disability rating in excess of 10 percent for right knee osteoarthritis is denied. A disability rating in excess of 10 percent for left knee osteoarthritis is denied. FINDINGS OF FACT 1. For the entire rating period on appeal, the Veteran’s right knee osteoarthritis has not been productive of ankylosis, dislocation or removal of the semilunar cartilage, flexion limited to 45 degrees or less, extension limited to 15 degrees or more, malunion or nonunion of the tibia and fibula, genu recurvatum, or the functional equivalent thereof. 2. For the entire rating period on appeal, the Veteran’s left knee osteoarthritis has not been productive of ankylosis, dislocation or removal of the semilunar cartilage, flexion limited to 45 degrees or less, extension limited to 15 degrees or more, malunion or nonunion of the tibia and fibula, genu recurvatum, or the functional equivalent thereof. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for right knee osteoarthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5003, 5010, 5256, 5258-5263. 2. The criteria for a disability rating in excess of 10 percent for left knee osteoarthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DCs 5003, 5010, 5256, 5258-5263. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from December 1987 to December 1991, from March 1998 to April 1998, and from November 2006 to February 2008, to include service in Kuwait and Iraq. He also had service in a reserve component of the military. His decorations include the Bronze Star Medal, the Army Commendation Medal, the Army Achievement Medal, and the Southwest Asia Service Medal. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a July 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. In a March 2019 decision, the Board, in pertinent part, denied a disability rating in excess of 10 percent for the Veteran’s service-connected right knee osteoarthritis and a disability rating in excess of 10 percent for left knee osteoarthritis. He appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In January 2020, the Court granted a Joint Motion for Partial Remand (JMPR) filed by the parties to the appeal (the Veteran, through an attorney, and representatives from VA General Counsel), thereby vacating the Board’s decision insofar as it denied a disability rating in excess of 10 percent for the osteoarthritis of each knee, and remanding that matter for readjudication. In the JMPR filed with the Court, the parties noted that the Veteran was not appealing other parts of the Board’s March 2019 decision, to include those parts of the decision that denied an initial rating in excess of 20 percent for instability of the right knee prior to June 27, 2018, and in excess of 0 percent from June 27, 2018, as well as an initial rating in excess of 20 percent for instability of the left knee prior to June 27, 2018, and in excess of 0 percent from June 27, 2018. The Court dismissed the appeal of those issues accordingly. As such, they are no longer before the Board. In May 2020, the Board remanded the issues currently on appeal to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior ratings and returned the case to the Board. See August 2020 supplemental statement of the case. Higher Ratings Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the evaluations to be assigned to the various disabilities. If there is a question as to which of two evaluations shall be applied, the higher evaluation 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. If different disability ratings are warranted for different periods of time over the life of a claim, “staged” ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). 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. 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); Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). With any form of arthritis, painful motion is an important factor of disability; the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. The intent of the schedule is to recognize painful motion with joint or particular 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. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. 1. A disability rating in excess of 10 percent for right knee osteoarthritis is denied. 2. A disability rating in excess of 10 percent for left knee osteoarthritis is denied. For the entire rating period on appeal, the Veteran is in receipt of a 10 percent rating for osteoarthritis of each knee under DC 5010, which provides that the disability of the affected joint is to be rated on limitation of motion of the affected parts, as degenerative arthritis. On appeal, he seeks higher ratings. DC 5010 provides that arthritis due to trauma is to be rated as degenerative arthritis under DC 5003. Degenerative arthritis substantiated by X-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When limitation of motion is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each major joint or group of minor joints affected by limitation of motion. A 20 percent evaluation is warranted for X-ray evidence of involvement of 2 or more major or minor joints, with occasional incapacitating exacerbations. See 38 C.F.R. § 4.71a, DC 5003. Limitation of flexion and extension of the knee joint are evaluated under DCs 5260 and 5261, respectively. Under DC 5260, a noncompensable rating is warranted when flexion is limited to 60 degrees. A 10 percent rating is warranted if flexion is limited to 45 degrees, and a 20 percent rating is warranted if flexion is limited to 30 degrees. Flexion that is limited to 15 degrees warrants a 30 percent rating. Under DC 5261, a noncompensable rating is assigned when extension is limited to 5 degrees, a 10 percent rating when it is limited to 10 degrees, a 20 percent rating when it is limited to 15 degrees, a 30 percent rating when limited to 20 degrees, a 40 percent rating when limited to 30 degrees, and a 50 percent rating when limited to 45 degrees. Normal range of motion of the knee is to 0 degrees of extension and 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. The Veteran underwent a VA examination of his knees in January 2009. He reported knee symptoms including pain, but denied weakness, locking, and effusions. The examiner indicated that the Veteran manifested subpatellar tenderness, but that he did not manifest a meniscus abnormality. Flexion of the knees was to 140 degrees, bilaterally, and extension was to zero degrees, bilaterally. There was no additional loss of range of motion after three repetitions of range of motion. The Veteran underwent another VA examination in June 2011. He reported knee swelling, stiffness, and painful flare-ups. Flexion of the knees was to 90 degrees, bilaterally, and extension was to 0 degrees, bilaterally. There was no additional limitation of motion after three repetitions of range of motion. A December 2011 VA vocational rehabilitation counseling record indicated that the Veteran’s bilateral knee condition prevented heavy lifting, carrying, pushing, pulling; prevented prolonged standing, walking, and sitting; and prevented repetitive postural movements such as stooping, kneeling, or crawling. The Veteran underwent another VA examination in November 2015. He reported knee symptoms including tingling, pain, and swelling with flare ups. Flexion of the knees was to 140 degrees, bilaterally, and extension was to zero degrees, bilaterally. There was no evidence of pain on weight bearing, and there was no additional loss of range of motion after three repetitions of range of motion. Joint stability testing yielded normal results, and the Veteran was not diagnosed with a meniscal condition or a condition of the tibia or fibula. The Veteran testified at a Board hearing in October 2016. He reported bilateral knee symptoms including pain and swelling and indicated that his knee symptoms flared up approximately once per week. He claimed that he had difficulty walking for long periods of time as well as walking up and down stairs. He also indicated that he was unable to mow his lawn due to a combination of his back and bilateral knee disabilities. VA treatment records dated in November 2016 indicated that the Veteran’s right knee flexion was to 110 degrees, and his extension was to zero degrees. The Veteran underwent another VA examination in November 2017. He reported increased pain in his knees, especially when going up and down stairs. Flexion of the knees was to 140 degrees, bilaterally, and extension was to 0 degrees, bilaterally. There was no evidence of pain on weight bearing or a loss of range of motion after repetitive of range of motion testing. The examiner indicated that pain caused additional functional impairment during flare-ups, but the examiner was unable to describe the additional functional loss in terms of range of motion. The Veteran underwent a VA examination in June 2018. He reported knee symptoms, including pain and painful flare-ups. Flexion of the knees was to 130 degrees, bilaterally, and his extension was to 0 degrees, bilaterally. There was no evidence of pain on weight bearing or additional loss of range of motion after repetitive range of motion testing. The examiner assessed that the Veteran’s condition led to less movement than normal. The Veteran underwent his most recent VA examination in August 2020. He reported sharp knee pain with prolonged standing, walking, or climbing up or down steps. Flexion of the right knee was to 80 degrees, flexion of the left knee was to 90 degrees, and extension was to 10 degrees, bilaterally, to include as due to pain, fatigue, weakness, and lack of endurance, as well as due to flare-ups, after repetitive use over time, and after repetitive use testing. There was no ankylosis of either knee. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for osteoarthritis of either knee. The disabilities have not been productive of ankylosis, limitation of flexion to 45 degrees or less, limitation of extension to 15 degrees or more, dislocation of the semilunar cartilage, malunion or nonunion of the tibia and fibula, or genu recurvatum. The evidence reflects limitation of right and left knee flexion, but not to less than 80 degrees, and limitation of right and left knee extension, but not to more than 10 degrees, even when considering factors such as pain and flare-ups. Essentially, the Veteran’s right and left knee limitation of flexion has been limited only to a non-compensable degree for the entire appeal period, which is a consistent with a noncompensable rating under DC 5260. Similarly, the Veteran’s right and left knee limitation of extension has been, at worst, to 10 degrees, which is consistent with a 10 percent rating under DC 5261. Neither the objective nor subjective evidence suggests that there is the functional equivalent of limitation of motion sufficient to warrant a higher rating. The Board also notes that the required manifestations for evaluation under DC 5256 (ankylosis of the knee), DC 5258 (dislocation of the semilunar cartilage), DC 5259 (removal of the semilunar cartilage), DC 5262 (impairment of tibia and fibula) and DC 5263 (genu recurvatum) are not applicable, as the presence of ankylosis of the right or left knee, dislocation or removal of the semilunar cartilage, impairment of the tibia and fibula, or genu recurvatum have not been demonstrated. For all of these reasons, the Board finds that disability ratings in excess of 10 percent are not warranted for the Veteran’s right and left knee osteoarthritis for any portion of the period on appeal. Because the preponderance of the evidence is against the claims, the benefit-of-the-doubt doctrine does not apply, and the appeal of these issues must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Extraschedular referral consideration In the appellant’s post-remand brief, the Veteran’s representative asserted generally that the Veteran requested the maximum benefit allowed by law and regulation, including an extraschedular rating based on exceptional and unusual symptoms and the severity of his service-connected disabilities. An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1); see Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for that service-connected disability are inadequate. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (holding that either the veteran must assert that a schedular rating is inadequate or the evidence must present exceptional or unusual circumstances). Second, if the schedular rating does not contemplate the claimant’s level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant’s disability picture exhibits other related factors such as those provided by the regulation as “governing norms.” Third, if the rating schedule is inadequate to evaluate a veteran’s disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Director of the Compensation Service to determine whether the veteran’s disability picture requires the assignment of an extraschedular rating. Turning to the first step of the Thun extraschedular analysis, the Board finds that all the symptomatology and impairment caused by the osteoarthritis of the Veteran’s knees is specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The schedular rating criteria provide for limitation of motion due to pain, and DCs 5256-5263, specifically provide for disability ratings based on limitation of motion, including as due to pain, lack of endurance, weakness, fatigability, and other limiting orthopedic factors. See 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a; see also Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991) (read together with schedular rating criteria, 38 C.F.R. §§ 4.40 and 4.45 recognize functional loss due to pain); Deluca, 8 Vet. App. at 206-07 (functional limitations are applied to the schedular rating criteria to ascertain whether a higher schedular rating can be assigned based on limitation of motion due to pain and during flare-ups, and should be expressed in schedular rating terms of degree of range-of-motion loss); Burton v. Shinseki, 25 Vet. App. 1, 4 (2011) (the majority of 38 C.F.R. § 4.59, which is a schedular consideration rather than an extraschedular consideration, provides guidance for noting, evaluating, and rating joint pain); Sowers v. McDonald, 27 Vet. App. 472 (2016) (38 C.F.R. § 4.59 is limited by the diagnostic code applicable to the claimant’s disability, and is read in conjunction with, and subject to, the relevant diagnostic code); Mitchell, 25 Vet. App. at 33-36 (pain alone does not constitute functional impairment under VA regulations, and the rating schedule contains several provisions, such as 38 C.F.R. §§ 4.40, 4.45, 4.59, that address functional loss in the musculoskeletal system as a result of pain and other orthopedic factors when applied to schedular rating criteria). In this case, considering the lay and medical evidence, the right and left knee osteoarthritis disabilities have been productive of pain and painful motion, swelling, stiffness, limitation of flexion, and limitation of extension. These findings and symptoms, and resulting functional impairment, to include as due to pain, fatigue, weakness, and lack of endurance, as well as due to flare-ups, after repetitive use over time, and after repetitive use testing, are contemplated by the schedular rating criteria. Therefore, the Board finds that the record does not reflect that the Veteran’s left knee disability is so exceptional or unusual as to warrant referral to the Director of Compensation Service for consideration of the assignment of a higher rating on an extraschedular basis. 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The appeal is denied. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Ragheb 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.