Citation Nr: 21006828 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 14-44 262 DATE: February 5, 2021 ORDER Entitlement to an increased rating in excess of 40 percent for right knee arthritis is denied. Entitlement to an increased rating in excess of 40 percent for left knee arthritis is denied. FINDING OF FACT For the entire appeal period, the Veteran’s left and right knee arthritis did not manifest to limitation of extension of 45 degrees, flexion limited to less than 60 degrees, ankylosis, or tibia and fibula impairment. CONCLUSIONS OF LAW 1. The criteria for an increased rating in excess of 40 percent for right knee arthritis have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.71a, Diagnostic Code 5261. 2. The criteria for an increased rating in excess of 40 percent for left knee arthritis have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.71a, Diagnostic Code 5261. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from June 1963 to September 1984. The Veteran testified at a travel board hearing in March 2018 with the undersigned Veterans Law Judge and a transcript of the hearing is of record. The claims were brought before the Board in July 2018 and were remanded for further development. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran’s service-connected disability adversely affects his/her ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where there is a question as to which of two ratings should be applied, 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. Generally, the degree of disabilities 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. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Additionally, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the veteran’s claim is to be considered. See Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. However, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. See Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). Further, when evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. § 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). 1. Entitlement to an Increased Rating: Right and Left Knee Arthritis The Veteran’s left and right knee arthritis are currently rated as 40 percent disabling under Diagnostic Code (DC) 5261 for limitation of extension. Diagnostic Code 5261 provides for a non-compensable rating where extension is limited to 5 degrees; a 10 percent rating where extension is limited to 10 degrees; a 20 percent rating is warranted where extension is limited to 15 degrees; a 30 percent rating is warranted where extension is limited to 20 degrees, a 40 percent rating is warranted where extension is limited to 30 degrees, and a 50 percent rating is warranted when extension is limited to 45 degrees. See 38 C.F.R. § 4.71a, DC 5261. In January 2012, the Veteran received a VA examination. The Veteran reported flare-ups of decreased ability to walk and stand. On examination, the Veteran’s range of motion (ROM) was forward flexion to 120 degrees, with painful motion, and extension to 30 degrees, with painful motion, bilaterally. The Veteran was able to perform repetitive testing with three repetitions and did not suffer additional decreased ROM. The Veteran did have functional loss in pain on movement. The Veteran had pain on palpation for the joint line or soft tissue. The Veteran did not have any instability or patellar subluxation. The Veteran did not have shin splints. The Veteran did not have need for any assistive devices. In January 2013, the Veteran received another VA examination. The Veteran reported pain with limitation in walking, standing, and sitting. The Veteran’s range of motion (ROM) was bilateral knee flexion to 140 degrees or greater, with no objective pain and no limitation in extension. The Veteran was able to perform repetitive testing with three repetitions and did not suffer additional decreased ROM. No additional functional loss was noted. There was no pain on palpation. The Veteran did not have instability, subluxation, or shin splints. The Veteran did not have need for assistive devices. Private medical records from October 2013 show the Veteran complained of bilateral knee pain. The Veteran’s forward flexion was 132 degrees bilaterally and extension was limited to 3 degrees. The Veteran submitted a VA disability questionnaire in January 2014. The Veteran reported pain and weakness in both legs. The Veteran’s forward flexion was still to 130 degrees bilaterally, with pain at 5 degrees for the right knee and pain at 0 degrees for the left knee, and no limitation in extension. The Veteran did suffer from additional loss due to less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, deformity, atrophy, instability of station, disturbance, and interference with standing, sitting, and/or weight bearing, following repetitive testing. The Veteran did not suffer from instability, subluxation, or shin splints. The Veteran did have regular use for a cane. The examiner noted the Veteran had painful tender joint line in both knees. The Veteran’s functional impact on his ability to work was difficulty walking, moving up and down stairs, and getting up and down from chairs. In March 2014, the Veteran was seen at the VA medical center for physical therapy. The Veteran was noted as having moderate to severe arthritis. He reported longstanding pain. He reported that the pain with sitting is more an aching sensation in both knees, but with standing and walking it is a sharp pain. He reported pain elevation varies with activities. The Veteran’s range of motion was noted as knee flexion and extension within functional limits on both sides. The Veteran was provided another VA examination in September 2014. The Veteran reported difficulty in walking without pain and muscle stiffness. The Veteran’s ROM was forward flexion to 140 degrees bilaterally, with no limitation in extension. The Veteran was able to perform repetitive testing and did not suffer additional loss. The Veteran did suffer from functional loss due to weakened movement and pain on movement. There was no pain on palpation, instability, or subluxation. The Veteran did not have shin splints. The Veteran did have regular use for a brace. The examiner noted that the Veteran had contributing factors of pain, weakness, and/or incoordination but no additional limitation of functional ability of the knee joint during flare-ups or repeated use over time. In May 2019, the Veteran was provided a VA examination. The Veteran reported taking daily medication for knee pain. He reported constant pain in both knees that is worsened by extended sitting, walking, standing, kneeling, squatting, and going up and down stairs. He reported stiffness in both knees daily. He reported that the pain was a 9 out of 10 with activity. He reported wearing braces on both knees occasionally and using a walker for prolonged walking and cane for short distances. He denied having any flare-ups; however, he stated that his bilateral knee pain is at a constant high level of pain. The Veteran reported not being able to do yardwork, drive long distances, and needing breaks while doing household chores. His ROM was forward flexion to 80 degrees, with no limitation to extension. Pain was noted on examination and did cause functional loss in both flexion and extension. There was evidence of pain on weight bearing and tenderness to palpation at the joint line. There was objective evidence of crepitus. The Veteran was able to perform repetitive testing with three repetitions and suffered additional function loss in ROM due to pain. The Veteran’s ROM following repetitive testing and repeated use over time was forward flexion to 75 degrees. Additional factors contributing to his disability were less movement than normal due to ankylosis or adhesions and disturbance of locomotion. The Veteran had full muscle strength and no muscle atrophy. The Veteran did not have any ankylosis. There was no instability or subluxation. The Veteran’s passive range of motion was forward flexion to 85 degrees, with no limitation of extension, and objective evidence of pain noted. The Veteran’s gait was slow and mildly antalgic. The Veteran did have regular use for cane and walker and occasional use for a brace. The examiner noted there was evidence of pain on non-weight bearing. The examiner also explained an opinion on additional loss of function or motion during flare-ups could not be provided as the Veteran did not report any history or symptoms consistent with flare-ups. Most recently, the Veteran was provided a VA examination in September 2020. The Veteran complained of pain, weakness, stiffness, and tenderness. The Veteran reported having functional impairment in being unable to walk or stand on the knees. The Veteran’s ROM was flexion to 100 degrees, with no limitation of extension. Pain was noted on examination on rest/non-movement. There was evidence of weight bearing and crepitus. There was objective evidence of localized tenderness to the anterior knee and patella that was moderate on the right knee and severe on the left. The Veteran was able to perform repetitive testing with at least three repetitions with no additional functional loss. The examination was medically consistent with the Veteran’s statements describing functional loss with repetitive use over time and during flare-ups. Pain, weakness, and lack of endurance did cause functional loss during repeated use over time and flare-ups. Additional factors contributing the Veteran’s disabilities were swelling, deformity, disturbance of locomotion, and interference with sitting and standing. The examiner noted the Veteran’s degenerative arthritis was severe. The Veteran did not have ankylosis, recurrent subluxation or instability of any kind. The Veteran did have regular use of walker, constant use of a cane, and occasional use of braces. There was objective evidence of pain on non-weightbearing. VA treatment and private medical records show consistent visits for bilateral knee pain. However, several of the visits do not show the Veteran’s range of motion. The Board notes that visits beginning in January 2017 do show the Veteran’s bilateral knee degenerative joint disease being consistently noted as severe, added use of a wheelchair and walker, and notations of abnormal gait. After review of the evidence of record, the Board finds that a rating in excess of 40 percent is not warranted. For the entire appeal period, the Veteran’s bilateral knee conditions did not show extension limited to 45 degrees, nor did he have flexion limited to 45 degrees, ankylosis, instability or subluxation, a meniscal condition, or a tibia and fibula impairment which would warrant consideration of a higher or additional separate rating under another Diagnostic Codes for the Knee and Leg. See 38 C.F.R. § 4.71a, Diagnostic Codes 5256-5263. Further, while the Veteran was noted as having additional loss due to pain, weakness, and fatigability or less movement than normal, the Board notes that the Veteran did not meet the criteria for the 40 percent rating provided during this entire appeal period. Thus, additional consideration under DeLuca is also not warranted. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca at 202. Lastly, the Board acknowledges the Veteran’s lay statements that his bilateral knee conditions have caused consistent pain and warrant higher ratings. The Board recognizes that the Veteran is competent to report his symptoms. See Layno v. Brown, 6 Vet. App. 465 (1994); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, the Board has reviewed the medical evidence of record and has determined it is consistent with the ratings assigned. In light of the foregoing, the Board concludes that a rating in excess of 40 percent for right knee and left knee arthritis is not warranted. The benefit of the doubt doctrine has been applied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Negron 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.