Citation Nr: 21008176 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 15-04 457 DATE: February 11, 2021 ORDER A rating in excess of 10 percent for osteoarthritis of the left knee is denied. FINDING OF FACT The Veteran’s left knee disability is manifested by limitation of flexion, which is not limited to 30 degrees or less; and limitation of extension, which is not limited to 15 degrees or more, even with consideration of pain, and other functional impairment; there is no evidence of semilunar cartilage impairment, recurrent subluxation, tibia or fibula impairment, or ankylosis. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for osteoarthritis of the left knee have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5256-5263 (2019).   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1972 to October 1984. The Veteran testified before the Board in August 2018. A transcript of that hearing is of record. In March 2020, the Board remanded the case for further development by the originating agency. The case has been returned to the Board for further appellate action. Increased Rating Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2019). The percentage ratings contained in the Rating Schedule represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. Where 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. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § § 4.21 (2019). Limitation of flexion of a leg warrants a noncompensable evaluation if flexion is limited to 60 degrees, a 10 percent evaluation if flexion is limited to 45 degrees, a 20 percent evaluation if flexion is limited to 30 degrees, or a maximum 30 percent evaluation if flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Limitation of extension of a leg warrants a noncompensable evaluation if extension is limited to 5 degrees, a 10 percent evaluation if extension is limited to 10 degrees, a 20 percent evaluation if extension is limited to 15 degrees, a 30 percent evaluation if extension is limited to 20 degrees, a 40 percent evaluation if extension is limited to 30 degrees, or a maximum 50 percent evaluation if extension is limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Ankylosis of a knee warrants a 30 percent evaluation if it is at a favorable angle in full extension, or in slight flexion between 0 and 10 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5256. Knee impairment with recurrent subluxation or lateral instability warrants a 10 percent evaluation if it is slight, a 20 percent evaluation if it is moderate, or a maximum 30 percent evaluation if it is severe. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Dislocated semilunar cartilage, with frequent episodes of "locking," pain, and effusion into the joint will be rated a maximum 20 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Code 5258. Removal of the semilunar cartilage, if symptomatic, will be rated a maximum 10 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Code 5259. Diagnostic Code 5262 provides ratings based on impairment of the tibia and fibula. Malunion of the tibia and fibula with slight knee or ankle disability is rated 10 percent disabling; malunion of the tibia and fibula with moderate knee or ankle disability is rated 20 percent disabling; and malunion of the tibia and fibula with marked knee or ankle disability is rated 30 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Code 5262 (2019). The VA General Counsel has held that a claimant who has arthritis and instability of a knee may be rated separately under Diagnostic Codes 5003 and 5257, while cautioning that any such separate rating must be based on additional disabling symptomatology. VAOPGCPREC 23-97, 62 Fed. Reg. 63, 604 (July 1, 1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (Aug. 14, 1998). The VA General Counsel also held that separate ratings under 38 C.F.R. § 4.71a, Diagnostic Code 5260 (limitation of flexion of the leg) and Diagnostic Code 5261 (limitation of extension of the leg), may be assigned for disability of the same joint. VAOGCPREC 9-2004 (Sept. 17, 2004). Traumatic arthritis (Diagnostic Code 5010) is rated as degenerative arthritis under Diagnostic Code 5003. Under Diagnostic Code 5003, degenerative arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint(s) involved. When the limitation of motion is noncompensable under the appropriate diagnostic code(s), a 10 percent rating is for application for each such major joint affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § § 4.71a, Diagnostic Code 5003. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. § §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § § 4.59 (2019). The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § § 4.14 (2019). However, § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In both initial rating claims and normal increased rating claims, the Board must discuss whether any "staged ratings" are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In accordance with 38 C.F.R. § §§ 4.1, 4.2 (2019) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disabilities at issue. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to these disabilities. A rating in excess of 10 percent for osteoarthritis of the left knee In a November 1998 rating decision, the RO granted service connection for postoperative injury, left knee. A 10 percent evaluation was assigned, effective October 16, 1984. In August 2013, the Veteran filed his current claim for an increased rating. On VA examination in April 2011, the Veteran reported increased knee pain after working 8 hours on his feet, and while doing strenuous yard work. He took over the counter pain medication. He reported flare-ups of knee pain that caused limited mobility and prevented him from kneeling down. He was able to stand more than 1, but less than 3 hours, and was able to walk 1-3 miles. He reported using a knee brace intermittently and occasionally. His gait was normal and there was no evidence of abnormal weight bearing. On physical examination there was crepitation, grinding and clicking and weakness of the knee, nut no instability. Range of motion testing showed flexion to 115 degrees and extension was limited by 10 degrees. There was pain during range of motion. After repetitive motion testing, there was additional limitation of motion, resulting in flexion to 110 degrees, due primarily to pain. He was diagnosed with severe osteoarthritis of the left knee and internal derangement of the left knee with meniscal and ACL tears. The examiner concluded that the left knee disability had a mild effect on the Veteran’s ability to do chores and shopping, and a moderate effect on exercise. On VA examination in March 2014, the Veteran reported daily left knee pain and ongoing swelling of the knee. He treated his knee with aspirin and elevating the leg. He complained of flare-ups of left knee pain that slowed him down and prevented him from full participating in activities. On physical examination, range of motion was forward flexion to 110 degrees, with pain at 100 degrees, and decreased to 100 degrees with repetitive motion, due to pain, weakness, and fatigability. Extension was limited by 10 degrees, with pain. The examiner also noted that the Veteran had an antalgic gait and difficulty getting in and out of chair and on and off the examination table due to left knee pain. There was tenderness or pain to palpation and muscle strength was reduced to 4/5 in the left knee. There was no evidence of instability, but the Veteran reported using a knee brace occasionally. On VA examination in July 2020, the Veteran reported that his left knee was swollen all the time and that he used a knee brace. He complained of constant, severe pain on the lateral side and difficulty ambulating and picking up objects from the floor, and increased pain with walking and bending. He also complained of flare-ups of left knee pain with walking, bending and picking up objects from the floor. On physical examination, range of motion was flexion to 90 degrees and extension to 0 degrees. See September 2020 addendum to July 2020 VA examination. No pain was noted on examination and there was no pain with weight bearing. There was mild swelling of the left knee and crepitus. After repetitive use testing, flexion was reduced to 85 degrees, due to pain, weakness, and lack of endurance. Extension remained normal. The examiner concluded that pain, weakness, and lack of endurance significantly limited functional ability wit repeated use over a period of time and with flare-ups, resulting in flexion being reduced to 85 degrees. Muscle strength was reduced to 4/5 on the left during flexion, but there was no evidence of instability. The Veteran has reported chronic, constant, severe left knee pain, and swelling of the knee. He has also complained of flare-ups of knee pain and functional impairment, including difficulty walking, standing, ambulating, bending over and kneeling. However, on objective testing, he has demonstrated flexion to no less than 90 degrees and extension has not been limited to more than 10 degrees, even with consideration of pain and after repetitive use testing. Thus, a review of the record shows no evidence of limitation of left knee motion that warrants a rating in excess of 10 percent under Diagnostic Code 5261 and/or Diagnostic Code 5260 during the appeal. See April 2011, March 2014 and July 2020 VA examination reports and September 2020 addendum. Moreover, due to the actual range of motion demonstrated at different times throughout the appeal, separate evaluations for limited flexion and extension of the left knee under Diagnostic Code 5260 and/or Diagnostic Code 5261 are not warranted here, as is permitted by VAOPGCPREC 9-2004. The Board has also considered whether any alternative Diagnostic Codes would allow for a rating in excess of 10 percent for the service-connected left knee disability during the appeal. However, ankylosis has not been shown or alleged (Diagnostic Code 5256), there was no finding of dislocated semilunar cartilage, and no episodes of locking or findings of effusions of the left knee (Diagnostic Code 5258), and there is no evidence of impairment of the tibia and fibula (Diagnostic Code 5262). There was also no evidence of instability in the left knee (Diagnostic Code 5257). As such, a rating in excess of 10 percent is not warranted for the left knee disability at any time during the appeal. The Board also finds that a rating in excess of 10 percent is not warranted for the left knee at any time during the appeal under DeLuca. In this regard, the Veteran reported flare-ups of left knee pain throughout the appeal. He has also reported functional impairment in the form of difficulty walking, standing, ambulating, bending over and kneeling. He treats his left knee pain with two different over the counter pain medications and he received steroid injections for pain in 2000 and 2001. On VA examination in 2011, flexion was reduced by 5 degrees during repetitive motion testing; in 2014 flexion was reduced by 10 degrees during repetitive testing; and in 2020 flexion was reduced by 5 degrees during repetitive motion testing. In addition, on examination in 2020, the examiner concluded that pain, weakness, and lack of endurance significantly limited functional ability with flare-ups and over a period of time. However, the Veteran continued to demonstrate forward flexion to no less than 90 degrees, way beyond the level required for a rating in excess of 10 percent under Diagnostic Code 5260 or 5261, and extension was never limited to more than 10 degrees. As such, the Board finds that it is evident that the Veteran's functional impairment, has already been considered with the assignment of the current 10 percent rating under Diagnostic Code 5261. The Board acknowledges that the April 2011 examiner did not indicate where the Veteran experienced pain during range of motion testing. Nevertheless, the Board would have to assume that as range of motion was significantly above 30 degrees of flexion and extension was not limited to more than 10 degrees, even with consideration of pain and other functional impairment, range of motion of the left knee would not have been reduced enough to warrant a rating in excess of 10 percent under any of the applicable diagnostic codes. Therefore, the Board finds that a rating in excess of 10 percent, based on functional impairment, is also not warranted for the left knee disability. 38 C.F.R. §§ 4.40, 4.45 and 4.59. The Board has also considered other medical evidence of record for this period, including VA and private treatment records. None of these records contains evidence showing that the Veteran's left knee disability is manifested by symptoms that meet the criteria for a rating in excess of 10 percent at any time during the appeal. Consideration under 38 C.F.R. §§ 3.321 (b)(1) has not been specifically sought by the Veteran or reasonably raised by the facts found by the Board. As such, there is no basis for extraschedular discussion in this case. See Yancy v. McDonald, 27 Vet. App. 484, 494 (2016). The Board notes that the Veteran contends that the July 2020 VA examination was inadequate, in that the examiner did not fully examine his knee. Specifically, he claims that the examiner palpitated his knee twice and asked him a few questions, but did not require him to walk, stretch, stand up or sit down, to show that he could not do so without extreme pain. The Veteran reported in his statement that he can barely walk without assistance and cannot walk without continued pain and that he has to take Tylenol and Aleve at least three times per day due to knee pain. He also reported that he cannot completely straighten his leg out without terrible pain in the knee, and that his knee stays swollen all the time. In addition, the Veteran reported that private medical records from South Bend Orthopedics and Sports Medicine had not been obtained. See October 2020 statement from the Veteran. The Board notes that a review of the July 2020 VA examination report shows that the examiner conducted an in-person examination of the Veteran, which included a physical evaluation and range of motion testing for the left knee. The examiner also noted the Veteran’s reports of constant, severe pain and swelling of the left knee and functional impairment, including difficulty walking, standing, bending, and picking up objects from the floor due to left knee pain. The Veteran’s reports of not being able to completely straighten the leg out without pain is contemplated in the reports of limitation of motion noted in the examination report. Furthermore, the Board notes that private treatment records from South Bend Orthopedics and Sports Medicine have been obtained and associated with the claims file. As such, the Board finds that the July 2020 VA examination with the September 2020 addendum are adequate, and another knee examination in not required at this time. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board F. Yankey, 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.