Citation Nr: 21007427 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 17-17 604 DATE: February 9, 2021 ORDER A disability rating for right knee osteoarthritis at 30 percent disabling from March 19, 2015 to August 25, 2020 is granted. FINDING OF FACT For the entire rating period on appeal from March 19, 2015 to August 25, 2020, the right knee osteoarthritis has been manifested by pain with limitation of extension between 20-29 degrees. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran’s favor, for the rating period on appeal from March 19, 2015 to August 25, 2020, the criteria for a disability rating of 30 percent for the right knee osteoarthritis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5003-5261. 2. For the entire rating period on appeal from March 19, 2015, the criteria for a disability rating in excess of 30 percent for the right knee osteoarthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5003-5261. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served in the Army during Peacetime from September 1975 to March 1981. In March 2015, the Veteran filed a claim for increased rating (in excess of 0 percent). See March 19, 2015 Claim for Compensation, which was denied by the Agency of Original Jurisdiction (AOJ) in April 2015. The Veteran filed a notice of disagreement in February 2016. See February 2016 Notice of Disagreement. During the appeal, in a February 2017 rating decision, the AOJ increased the right knee disability rating to 10 percent for the entire rating period from March 19, 2015. The Board denied an appeal for a rating in excess of 10 percent. See January 2019 Board Decision. On appeal to the U.S. Court of Appeals for Veterans Claims (Court), the Court adopted a January 2020 Joint Motion for Remand to acquire a medical opinion that conformed to the requirements outlined in Sharp v. Shulkin, 29 Vet. App. 26, 34-35 (2017), and DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). In compliance with the Court’s order, the Board remanded the appeal to the AOJ per the terms of the joint motion for partial remand. See June 2020 Board Remand. Upon receiving a new medical examination that complied with the joint motion for partial remand, the AOJ rated the right knee disability at 30 percent disabling for the period or “stage” from August 25, 2020. Disability Rating Criteria A disability of the musculoskeletal system is primarily the inability to perform the normal working movements of the body. The inability to perform normal movements is shown by the anatomical damage and the functional loss. 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 it may be due to pain, supported by adequate pathology and evidenced by the 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 seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40. A joint disability can be determined by examining whether there is (a) less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); (b) more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); (c) weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); (d) excess fatigability; (e) incoordination (impaired ability to execute skilled movements smoothly); or (f) pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. For the purpose of rating disability from arthritis, the shoulder, elbow, wrist, hip, knee, and ankle are considered major joints; multiple involvements of the interphalangeal, metacarpal and carpal joints of the upper extremities, the interphalangeal, metatarsal and tarsal joints of the lower extremities, the cervical vertebrae, the dorsal vertebrae, and the lumbar vertebrae, are considered groups of minor joints, ratable on a parity with major joints. The lumbosacral articulation and both sacroiliac joints are considered to be a group of minor joints, ratable on disturbance of lumbar spine functions. 38 C.F.R. § 4.45. With any form of arthritis, painful motion is an important factor of disability: the intent of the 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. 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. VA must consider whether a higher rating is necessary based on a greater limitation of motion due to pain on use or during flare-ups. Deluca v. Brown, 8 Vet. App. 202 (1995). 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. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011); Deluca v. Brown, 8 Vet. App. 202 (1995). Rating Right Knee Disability For the rating period on appeal from March 19, 2015 to August 25, 2020, the Veteran is in receipt of a 10 percent rating for the service-connected right knee osteoarthritis, under Diagnostic Code (DC) 5003-5261, and is in receipt of a 30 percent rating from August 25, 2020. Under DC 5261, a 20 percent rating is warranted where knee extension is limited to 15 degrees. A 30 percent rating is warranted where knee extension is limited to 20 degrees. After a review of all the evidence, the Board finds that the weight of the evidence, lay and medical, shows that the disability picture of the right knee from March 19, 2015 to August 25, 2020 most closely approximates a 30 percent rating under DC 5261 based on evidence of painful limitation that causes limitation of extension between 20-29 degrees. While the January 2017 medical examination was determined to be inadequate because it did not provide an opinion as to additional limitations of motion due to pain, the other findings from that examination were not deemed inadequate to consider for rating the right knee disability. Probative findings from the January 2017 medical examination include that there was no loss of strength of the knee; no instability; no diagnosed ankylosis; some intermittent pain treated with Tylenol and Aleve; some flareups that could last for a few hours; some guarding; evidence of crepitus; no limitation of motion when pain is not considered; no instability, effusion, or subluxation; and no evidence of any involvement of any other joints or bones. A September 2020 VA C&P examination report rounds out the entire disability picture as it includes an examiner’s opinion as to additional loss of motion due to pain. The VA examiner in September 2020 noted the Veteran’s reports that the right knee throbs and forces a limp, and that the stiffness lasts for at most a week. Right knee flexion was measured as limited to 135 degrees, with additional limitation estimated to be to 120 degrees with pain. Right knee extension was reported as limited to 0 degrees, with additional limitation to 20 degrees with pain. The VA examiner noted pain with weightbearing; crepitus; pain and fatigue with repetitive use; full strength of the knee; no diagnosed ankylosis; and no imaging studies were performed. Applying the additional limitation of motion caused by pain that were estimated by the 2020 examiner to the adequate findings recorded at the time of the 2017 examination, when such additional limitations of motion are considered due to painful motion, the 2017 flexion appears to be limited to around 125 degrees with pain, and the 2017 extension appears to be around 20 degrees with pain. Consequently, the disability picture for the right knee in 2017 meets the criteria for a 30 percent rating under DC 5261 for limitation of extension. Resolving reasonable doubt in the Veteran’s favor, the Board finds that with considerations of additional limitations of motion due to pain, the criteria for a 30 percent rating are met from March 19, 2015 to August 25, 2020. The Board also finds that a higher disability rating than 30 percent is not warranted for the right knee disability for any period of the claim from March 19, 2015. 38 C.F.R. §§ 4.3, 4.7, 4.71a, DC 5003-5261. Under DC 5261, a 40 percent rating is warranted where extension is limited to 30 degrees. A higher rating under DC 5261 is not warranted because, applying the 2020 pain limitation of motion to the 2017 pain-free range of motion, extension is limited to 20 degrees, not the 30 degrees required. Other potentially applicable knee rating codes in this case are DC 5256 and 5262. Under DC 5256, a 40 percent rating is warranted where there is ankylosis in flexion between 10 degrees and 20 degrees. A higher rating under DC 5256 is not warranted because the evidence does not show ankylosis in either extension or flexion. Under DC 5262, a 40 percent rating is warranted where there is nonunion of the tibia and fibula with loose motion, requiring a knee brace. A higher rating under DC 5262 is not warranted for the period prior to August 25, 2020, because the evidence does not show impairment of the tibia or fibula. The Board also finds that separate ratings for knee impairment are not warranted under either DC 5257 (instability) or 5260 (limitation of flexion) for any period. Under DC 5257, a 10 percent rating is warranted where there is moderate recurrent subluxation or lateral instability of the knee. A separate disability rating under DC 5257 (separate from the right knee arthritis rated on the basis of painful motion) is not warranted in this case because the evidence does not show subluxation or lateral instability. Under DC 5260, a 10 percent rating is warranted where flexion is limited to 45 degrees. A 10 percent rating is not warranted because, applying the 2020 estimations of limitation of motion due to pain with the findings of record, including the 2017 pain-free range of motion, flexion is still only limited to 125 degrees, not the 45 degrees required for a separate compensable rating. Accordingly, the Board finds that, for the entire rating period on appeal from March 19, 2015, the criteria for an increased disability rating in excess of 30 percent for right knee osteoarthritis, or for separate right knee disability ratings, are not met. 38 C.F.R. §§ 4.3, 4.7, 4.71a. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Charles Plambeck 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.