Citation Nr: 21008947 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 10-18 841 DATE: February 18, 2021 ORDER Entitlement to an increased rating in excess of 10 percent for the right knee tendonitis and arthritis disability (hereinafter referred to as a right knee arthritis disability) from August 22, 2007 is denied. FINDING OF FACT From August 22, 2007, the service-connected right knee arthritis disability manifested in arthritis with no evidence of compensable limitation of flexion or extension. CONCLUSION OF LAW The criteria for an increased rating in excess of 10 percent for the service-connected right knee arthritis disability from August 22, 2007 have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.3, 4.7, 4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1990 to January 1991. This matter is on appeal from a January 2009 rating decision issued by the Regional Office (RO) in Indianapolis, Indiana. The Veteran testified in Indianapolis, Indiana, at a Travel Board hearing in October 2017 before the undersigned Veterans Law Judge. The hearing transcript has been associated with the record. In a July 2018 Board decision, the Board denied the appeal for an increased rating in excess of 10 percent for the right knee instability from July 19, 2008 to October 28, 2010, service connection for a lower back disorder as secondary to the service-connected right knee disability, and an increased rating in excess of 10 percent for the right knee arthritis disability from August 22, 2007. The Veteran appealed the denials to the United States Court of Appeals for Veterans Claims (Court). In an Order dated in June 2019, the Court clerk adopted the May 2019 Joint Motion for Partial Remand (JMPR) filed by the parties. Relevant to the instant decision, in the JMPR, the parties agreed to remand three issues. In regard to the right knee instability rating, the parties agreed that the Board did not provide an analysis as to how the July 2008 VA examiner’s findings, and other evidence of record, are indicative of a 10 percent rating under Diagnostic Code 5257. In regard to the back disorder claim, the parties agreed that the October 2010 and October 2016 VA examinations, which were relied upon by the Board in its July 2018 Board Decision, did not address the aggravation element of secondary service connection. In regard to the right knee arthritis disability, the parties agreed that the July 2008, October 2010, and February 2013 VA examinations, which were relied up on by the Board in its July 2018 Board Decision, did not address active and passive range-of-motion testing in weight-bearing and non-weight-bearing positions. In November 2019, the Board granted an increased rating for the right knee instability at 20 percent from July 19, 2008 to October 28, 2010 and remanded the claim for service connection for the lower back disorder and the claim for an increased rating in excess of 10 percent for the right knee arthritis disability. The Board remanded in order to schedule VA examinations to help determine secondary service connection for the back disorder and range of motion testing for the right knee arthritis disability. The VA examinations were conducted in October 2020. A November 2020 supplemental statement of the case denied entitlement to a rating in excess of 10 percent for right knee arthritis disability. A November 2020 rating decision granted service connection for the back disorder as well as service connection for the right lower extremity sciatic radiculopathy rated at 10 percent from October 21, 2020. Duties to Notify and Assist The Board finds that the duties to notify and assist the Veteran in this case have been fulfilled. Neither the Veteran nor the representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). Legal Authority for Disability Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability 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. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, 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. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran’s service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (double “compensation” for the same symptom or impairment is prohibited). When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. Painful motion is considered limited motion at the point that pain actually sets in. See VAOPGCPREC 9-98. 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. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. 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 maligned 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. Diagnostic Code 5003 provides that degenerative arthritis established by X-ray findings is to be evaluated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic code, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent rating is assignable for X-ray evidence of involvement of arthritis of two or more major joints or two or more minor joint groups. A 20 percent rating is assignable for X-ray evidence of involvement of arthritis of two or more major joints or two or more minor joint groups, with occasional incapacitating episodes. 38 C.F.R. § 4.71a. Notes (1) and (2) under Diagnostic Code 5003 provides the following: Note (1) provides that the 20 percent and 10 percent ratings based on X-ray findings, above, will not be combined with ratings based on limitation of motion. Note (2) provides that the 20 percent and 10 percent ratings based on X-rays findings, above, will not be utilized in rating conditions listed under Diagnostic Codes 5013 to 5024, inclusive. Under Diagnostic Code 5260, limitation of knee flexion is rated 30 percent disabling where flexion is limited to 15 degrees; 20 percent disabling where flexion is limited to 30 degrees; 10 percent disabling where flexion is limited to 45 degrees; and noncompensable where flexion is limited to 60 degrees. 38 C.F.R. § 4.71a. Under Diagnostic Code 5261, limitation of knee extension is rated 30 percent disabling where extension is limited to 20 degrees; 20 percent disabling where extension is limited to 15 degrees; 10 percent disabling where extension is limited to 10 degrees; and noncompensable (0 percent) where extension is limited to 5 degrees. 38 C.F.R. § 4.71a. Rating the Right Knee Arthritis Disability from August 22, 2007 The Veteran is in receipt of a 10 percent disability rating for the right knee arthritis disability for the entire period on appeal, under the substantive rating criteria of DC 5003 (mislabeled as DC 5260). There has been a confusing application of diagnostic codes in this case, while the most recent codesheet indicates that the Veteran has a 10 percent disability rating coded under 5260, there is no evidence of compensable limitations of flexion or compensable limitations of extension. As such, the right knee arthritis disability should be properly coded under DC 5003 for painful arthritis that limits to a noncompensable degree, rather than compensable limitation of flexion under DC 5260. The Board is not changing the DC in this case, but is making a finding that the 10 percent rating previously assigned for the right knee arthritis disability in fact was made using DC 5003 criteria. The Veteran appeals for a higher rating than 10 percent for the right knee arthritis disability. After a review of the evidence, both lay and medical, the Board finds that the service-connected right knee arthritis disability manifested in arthritis with painful but noncompensable limitation of flexion and extension from August 22, 2007. Upon review of the private and VA medical treatment records, the evidence does not show compensable limitation of flexion or limitation of extension of the right knee. See August 2007 Private Treatment Records (measuring extension at 0 degrees and flexion at 143 degrees); September 2007 Private Treatment Records (measuring extension at 0 degrees on three separate occasions and flexion on three separate occasions at 140, 145, and 145 degrees); July 2008 VA Examination (measuring extension at 0 degrees and flexion at 120 degrees); September 2008 VA Treatment Records (measuring extension at 0 degrees and flexion at 110 degrees); December 2008 VA Treatment Records (measuring extension at 0 degrees and flexion at 110 degrees); October 2010 VA Examination (measuring extension at 0 degrees and flexion at 120 degrees); February 2013 VA Examination (measuring extension at 0 degrees and flexion at 110 degrees upon initial testing and after repetitive use); August 2016 VA Treatment Records (measuring extension at 0 degrees and flexion at 120 degrees); November 2017 VA Treatment Records (measuring extension at 0 degrees and flexion at 120 degrees); October 2020 VA Examination (measuring extension at 0 degrees and flexion at 120 degrees on initial testing, repetitive use, and repetitive use over time; measuring extension at 0 degrees and flexion at 90 degrees during flareups). While the Veteran reported some functional impairment associated with the right knee arthritis, such as pain and weakness, the right knee demonstrated limitation of flexion and extension to a noncompensable degree under DC 5260 and DC 5261, which would be consistent with a 10 percent rating under DC 5003 when considered together with the Veteran’s competent and credible report of right knee pain. VAOPGCPREC 9-04. 38 C.F.R. § 4.71a, DC 5003 (providing a 10 percent rating for painful motion with noncompensable limitation of motion). See July 2008 Private Treatment Records (The Veteran reported pain, fatiguability, and lack of endurance); April 2009 Private Treatment Records (The Veteran reported pain and swelling); October 2010 VA Examination (The Veteran reported that the right knee arthritis affected his daily life); February 213 VA Examination (The Veteran reported weakened movement, excess fatiguability and pain) November 2017 Private Treatment Records (The Veteran reported shooting and throbbing pain). (Continued on the next page)   For this reason, higher ratings than 10 percent for the limitations of motion due to painful arthritis are not met. Additionally, separate compensable ratings based on limitation of flexion and extension are not met. Because right knee flexion and right knee extension is limited to a noncompensable degree throughout the rating period, even with considerations of limitations due to pain with motion, separate 10 percent ratings based on compensable limitation of flexion (DC 5260) and compensable limitation of extension (DC 5261) are not warranted for the entire rating period. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Costantino, Associate 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.