Citation Nr: 21007885 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 14-20 097A DATE: February 11, 2021 ORDER Entitlement to an initial increase to an initial compensable rating of 10 percent, but no greater, evaluation of the left knee strain with degenerative changes is granted. FINDING OF FACT The Veteran’s left knee disability is manifested by non-painful range of motion from 0 degrees to 90 degrees during flexion and extension with confirmed imaging arthritis. CONCLUSION OF LAW The criteria for a compensable rating of 10 percent, but not greater, for left knee strain with degenerative changes have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5003. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from May 1989 to January 2012. The Veteran appeals the initial assignment of a non-compensable rating for his left knee strain with degenerative from a July 2012 Department of Veterans’ Affairs (VA) Regional Office (RO) rating decision. The Veteran timely filed a Notice of Disagreement in March 2013. The RO issued a Statement of the Case (SOC) in May 2014, to which the Veteran timely filed a Form 9 in October 2014 requesting appeal to the Board of Veterans’ Appeals without a hearing. Before the claim was certified before the Board, the Veteran filed a second claim for all of the same issues in September 2015. After the filing of the SOC and Form 9, the RO obtained service treatment records and up to date VA treatment records for the Veteran and issued a supplemental statement of the case (SSOC) in August 2016 continuing the denial of the left knee claim. In September 2016, the claim was certified to the Board to await adjudication in turn. A March 2018 Board decision found a July 2016 VA examination inadequate under Sharp. The remand directives also requested all current VA treatment records be obtained and invited the Veteran to submit any pertinent private treatment records. Each of these elements was addressed in the subsequent development and the Board finds that the resulting October 2019 VA examination of the Veteran’s left knee substantially complied with the remand directives. In an April 2020 decision, the Board had to remand the left knee again for issuance of a new SSOC because the November 2019 incorrectly identified the Veteran’s claim as being for a rating in excess off 10 percent. The Board finds that the October 2020 SSOC substantially complied with the Board’s remand directives by correcting this issue. Further, the Board finds that the October 2019 VA examination conducted after the RO obtained the relevant VA and available private treatment records indicate substantial compliance with the March 2018 Board remand directives. The Board finds that the RO substantially complied with the Board’s previous remand to re-issue an SSOC, correcting the left knee to a non-compensable rating. Increased Rating Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). When after careful consideration of all procurable and assembled date, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two ratings shall 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. In general, all disabilities, including those arising from a single disease, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, pyramiding, or evaluating the same manifestation of a disability under different diagnostic codes, is to be avoided. See 38 C.F.R. § 4.14. Thus, separate ratings under different diagnostic codes are only permitted if, for example, those separate ratings are assigned based on manifestations of the veteran’s disability that are separate and apart from manifestations for which the veteran has already been rated. Esteban v. Brown, 6 Vet. App. 259, 261 (1994). In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, multiple (staged) ratings may be assigned for different periods of time during the pendency of the appeal. See generally Fenderson v. West, 12 Vet. App. 119 (1999). Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). In rating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity, or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing, and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011) (holding that 38 C.F.R. § 4.59 applies to disabilities other than arthritis). Further, painful motion alone can qualify as a disability under 38 U.S. Code § 1110 if it causes functional impairment of earning capacity. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018); see also Mitchel v. Shinseki, 25 Vet. App. 32, 43 (2011) (holding painful motion alone is not a functional loss without restriction of the normal working movements of the body). 1. Entitlement to a compensable evaluation of the left knee strain with degenerative changes The Veteran contends that he should receive a compensable rating under Diagnostic Code 5260 and/or 5261 for limited range of motion of his left knee and/or that he should be granted a compensable rating under Diagnostic Code 5003. See November 2020 Appellant’s Brief; October 2016 Appellant’s Brief. The Veteran’s initial application for benefits was received in December 2011 while the Veteran’ was in service. As such, the appeal period goes back to the date of separation from active service. 38 C.F.R. § 3.400(o)(2). The Board determines that a higher, compensable rating of 10 percent is available under Diagnostic Code 5003, but not under 5260 or 5261. During the period on appeal, the Veteran’s left knee strain with degenerative changes has been evaluated under Diagnostic Code 5260 as non-compensable based on limited flexion. The Diagnostic Code was later updated to 5003-5260 based on a December 2011 imaging finding degenerative changes. 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 evaluation assigned; the additional code is shown after the hyphen. See 38 C.F.R. § 4.27. This rating has been based on limitation on range of motion. Diagnostic Codes 5260 and 5261 provide the rating criteria for limitations of flexion and extension of the lower extremity, respectively. Under Diagnostic Code 5260, a 30 percent evaluation is warranted when flexion is limited to 15 degrees; a 20 percent evaluation is warranted when flexion is limited to 30 degrees; a 10 percent evaluation is warranted when flexion is limited to 45 degrees; and a noncompensable evaluation is warranted when knee flexion is limited to 60 degrees. 38 C.F.R. § 4.71(a), Diagnostic Code 5260. Under Diagnostic Code 5261, a 20 percent evaluation is warranted when extension is limited to 15 degrees; a 10 percent evaluation is warranted when extension is limited to 10 degrees; and a noncompensable evaluation is warranted when knee extension is limited to 5 degrees. 38 C.F.R. § 4.71(a), Diagnostic Code 5261. Normal range of motion of the knee is 0 to 140 degrees of extension to flexion. Turning to the evidence of record, the Board finds the October 2019 VA examination to be probative of the Veteran’s current left knee range of motion. This is the most recent examination and was conducted after the VA obtained all relevant VA and private treatment records to date in response to the March 2018 Board remand directives. A review of the Veteran’s medical records did not show any evidence that was not considered, addressed, or counter to the October 2019 VA examination report. Further, the examiner is qualified physician who followed established procedures, such as using a goniometer for examining the Veteran’s left knee range of motion. The physician also addressed all appropriate Correia and Sharp factors, and also reviewed the entire medical record. Therefore, the October 2019 VA Examination is sufficient for deciding this issue. The October 2019 VA examiner found the Veteran’s left knee range of motion to be from 0 to 90 degrees on flexion and extension for both active and passive range of motion. Further, the examiner noted no pain on active or passive motion. The examiner conducted repetitive use testing for the left knee and found no additional loss of function or range of motion compared to the Veteran’s initial range of motion. As such, the Veteran does not qualify for a compensable rating under either Diagnostic Code 5260 or 5261. The record also contains a January 2012 and July 2016 VA examinations. While neither examination is adequate for rating purposes due to Sharp and/or Correia deficiencies, both report knee range consistent with the October 2019 VA examination. Both examinations found normal, full, range of motion from 0 degrees extension to 140 flexion for the left knee for initial and repetitive range of motion with no limitation due to pain. The July 2016 VA examination did find mild patellar tenderness on palpation and objective evidence of crepitus. Diagnostic Code 5003 provides that when there is X-ray evidence of degenerative arthritis with at least some limitation of motion (confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion), but to a noncompensable degree under the limitation of motion codes, a 10 percent rating is assigned for the affected major joint. If limitation of movement of the specific involved joint is noncompensable and there is degenerative arthritis (established by X-ray findings), a 10 percent rating is warranted, to be combined, not added. The limitation of movement must be objectively confirmed by findings such as evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. If there is no limitation of movement, a 10 percent rating may be warranted with degenerative arthritis (established by X-ray findings) involving two or more major joints or two or more minor joints. Further, 38 C.F.R. § 4.59 and Diagnostic Code 5003 together do not require clinical evidence of limitation of motion: a minimum compensable rating may be assigned if the record includes satisfactory evidence of painful motion or “actually painful joints,” which may be established by medical or lay descriptions of the Veteran’s pain. The Court of Veterans Appeals has held that “painful motion of a major joint... caused by degenerative arthritis where the arthritis is established by X-ray, is deemed to be limited motion and entitled to a minimum 10-percent rating, per joint, combined under Diagnostic Code 5003, even though there is no actual limitation of motion.” See Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991); see also 38 C.F.R. § 4.59. In Lichtenfels, the Court also found that under Diagnostic Code 5003, that a claimant’s assertions of painful joints, confirmed by the VA examiner, constitute satisfactory evidence of painful motion. Here, the January 2012 report based on December 2011 imaging of the Veteran’s left and right knees indicated degenerative changes in both. The October 2019 VA examiner also confirmed this. Throughout the period on appeal, the Veteran has complained of left knee pain when standing for extended periods of time or while walking. See e.g., January 2012 In Service Examination; July 2016 VA Examination; October 2019 VA Examination. Further, the October 2019 VA Examiner confirmed that the diagnosed left knee strain with degenerative changes causes pain in his left knee. As noted above, the Veteran’s left knee does have restriction on motion, though it is in a non-compensable range. Therefore, the requirements of Lichtenfels and Saunders have been met for a minimum compensable rating for the Veteran’s left knee under Diagnostic Code 5003. The Board has also considered the other Diagnostic Codes pertaining to the left knee. 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). The medical evidence of record does not show the Veteran to have left knee ankylosis (DC 5256), recurrent subluxation or instability (5257), dislocated or symptomatic removal of cartilage (DCs 5258 and 5259), impairment of the tibia and fibula with malunion or nonunion (5262), or genu recurvatum (5263). See e.g., October 2019 VA Examination; July 2016 VA Examination; January 2012 VA Examination; Service Treatment Records; VA Treatment Records. As such, a rating under any of these diagnostic codes is inappropriate. The Board has also considered the Veteran’s lay statements, which reflect similar symptomatology to those symptoms reported at the VA examinations. During the January 2012 examination, he reported experiencing flare ups (lasting one half hour) three times a week, during which he experienced pain and a limitation of motion, along with symptoms of swelling and difficulty with standing and walking. He reported having increased pain and swelling during the July 2016 examination, and increased intensity of his symptoms during the October 2019 examination. The Veteran is competent to report his own observations with regard to the severity of his disability, including reports of pain and the impact on his daily activities. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Veteran’s reports of symptoms are consistent with the findings of the VA examinations and the 10 percent rating now assigned. To the extent that the Veteran’s appeal indicates that he believes he should meet the criteria for an even higher, 20 percent rating, his assertions must be weighed against the other evidence of record. Here, the specific examination findings of trained health care professionals are of greater probative weight than the Veteran’s more general lay assertions. For the foregoing reasons, the Board finds that the preponderance of the evidence is in favor of granting the Veteran’s claim for a compensable, 10 percent rating, but no higher, for his left knee strain with degenerative changes under Diagnostic Code 5003 for painful motion. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Boushehri, Darjush M. 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.