Citation Nr: 21009565 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 15-34 909A DATE: February 22, 2021 ORDER Entitlement to an evaluation higher than 10 percent for a right knee disability is denied. Entitlement to an evaluation higher than 10 percent for a left knee disability is denied. FINDINGS OF FACT 1. Throughout the relevant appeal period, the symptoms of the Veteran’s service-connected right knee strain have most closely approximated flexion greater than 60 degrees with painful motion. 2. Throughout the relevant appeal period, the symptoms of the Veteran’s service-connected left knee strain have most closely approximated flexion greater than 60 degrees with painful motion. CONCLUSIONS OF LAW 1. Entitlement to an evaluation higher than 10 percent for a right knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5260, 5261. 2. The criteria for an evaluation higher than 10 percent for a left knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.40, 4.45, 4.59, 4.71a, DCs 5260, 5261. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 2003 to July 2004. This case came to the Board from a February 2013 decision of the Agency of Original Jurisdiction (AOJ), which increased the previously assigned zero percent (noncompensable) disability ratings for left and right knee strain to 10 percent for both knees. The Veteran timely appealed the denial of higher ratings. The Board remanded these issues for further development in March 2018 and, most recently, in August 2020. At the time of the second remand, the issues on appeal, in addition to the increased rating claims for both knees, included a claim for service-connected compensation for a disability of the feet and a request for a total disability rating based on individual unemployability due to service-connected disorders (TDIU). As a result of a decision issued by the AOJ in December 2020, the claim for service connection for a disability of the feet has been resolved in the Veteran’s favor. Thus, it is no longer part of this appeal. As for TDIU, the Veteran asked to testify at a hearing concerning a separate appeal of the denial of an increased rating for her service-connected psychiatric disorder and, in her notice of disagreement, she indicated that she wanted to address the TDIU issue in her testimony. After the requested hearing takes place, the Board will address her request for a TDIU rating in a separate decision. Increased Rating Claims Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably 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. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Staged ratings or the assignment of different disability evaluations for separate periods of time may be appropriate when the claimant has appealed the denial of a request for an increase in the rating previously assigned to a service-connected disability. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). For service-connected disabilities of knees, the regulations generally authorize the assignment of separate ratings for limited flexion (DC 5260), limited extension (DC 5261) and for instability (DC 5257). Under 38 C.F.R. § 4.40, DeLuca v. Brown, 8 Vet. App. 202, 206 (1995) and Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011), when evaluating the severity of certain disabilities, including disabilities of the knees, VA is generally required to consider whether the disability resulted in a level of functional loss greater than that already contemplated by the assigned rating. Relevant factors include weakness, fatigability, lack of coordination, restricted or excess movement of the joint, or pain on movement. 38 C.F.R. § 4.45. Whenever possible, VA examiners assessing the nature of additional functional loss should describe any additional functional limitations, if possible, in terms of additional degrees of range of motion loss. See Mitchell, 25 Vet. App. at 33. VA examination reports for musculoskeletal disabilities must comply with 38 C.F.R. § 4.59 by evaluating range of motion in the affected joint “for pain on both active and passive motion and in weight bearing and nonweight-bearing....” Correia v. McDonald, 28 Vet. App. 158, 170 (2016). VA examiners also have the duty to elicit information from the Veteran describing the condition of the relevant joints after repeated use over time and during “flare-ups” or episodes when the relevant symptoms are at their worst. Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Factual Background To help decide her claim for increased ratings for her knees, the AOJ arranged for a physician assistant to examiner the Veteran in October 2012. According to the examiner’s report, initial range of motion test results were normal. Both knees were capable of moving from zero degrees extension to 140 degrees flexion. The Veteran’s knees were both capable of repetitive use testing, and range of motion in both knees remained normal after three repetitions. The examination report indicates that functional loss in both knees consisted of pain on movement. In her interview with the examiner, the Veteran described flare-ups. She said that, when experiencing knee pain, “she has problems with walking past 10 or 15 mins and she cannot run or walk fast paced, or sit for too long.” The examiner also administered muscle strength and joint stability tests. Muscle strength was normal (5/5) in both knees, during both flexion and extension. For both knees, the results of tests of anterior, posterior, and medial-lateral stability were normal. The examiner indicated that the Veteran had no history of recurrent patellar subluxation or dislocation. The Veteran also had no meniscal conditions or history of surgical procedure for a meniscal condition. The examiner reviewed x-ray images of the knees, noting that there was no evidence of patellar subluxation. There were likewise no degenerative or traumatic arthritis, and no other significant diagnostic findings. Asked to describe the effects of the Veteran’s knee disabilities on her work, the examiner wrote, “She works as a clerk and [when] she has to walk fast to another desk and [sic] this becomes a hindrance.” The Veteran’s attorney wrote to the Board in January 2018, indicating that her knee symptoms had worsened since October 2012 and requesting a new examination. A new knees examination took place in September 2019. The examiner’s report indicates normal initial range of motion test results – i.e., the knees were capable of moving from zero degrees extension to 140 degrees flexion. For both knees, range of motion remained normal after repetitive use testing. Pursuant to Sharp, the examiner attempted to estimate the effect of functional loss after repeated use over time and during flare-ups based on the examination findings and the interview with the Veteran. The examiner estimated that, after repeated use over time, motion would be limited from 5 degrees extension to 125 degrees flexion. During flare-ups, the examiner estimated range of motion as between 10 degrees extension and 110 degrees flexion. Muscle strength was normal and there was no muscle atrophy. As in the prior examination, the examiner found that the Veteran had no history of recurrent subluxation or lateral instability. The examiner also administered joint stability tests and indicated their results. There was no joint instability in either knee. The examiner reviewed imaging studies and indicated that traumatic or degenerative arthritis was not documented. When asked to describe the effects of her knee disabilities on the Veteran’s ability to work, the examiner wrote that she “may stand/walk 6 hours in an 8-hour work shift [with] adequate breaks.” The September 2019 report provided useful information, but the examiner failed to comply strictly with 38 C.F.R. § 4.59 and Correia, 28 Vet. App. 158 because, while the report did indicate whether pain was present during testing in passive and active motion and in weightbearing and non-weightbearing, it failed to indicate the range of motion, in degrees after testing using each of these methods. For this reason, the Board remanded the increased rating claims for a new examination, which took place in November 2020. According to the most recent examiner’s report, the diagnosis remained bilateral knee strain. The medical history section of the report indicates that the Veteran experienced “pain a few days a week, use herbal treatments, heat, aspirin prn.” During initial testing, motion in both knees ranged from zero degrees extension (normal) to 90 degrees flexion. According to the examiner, pain was noted with both movements. There was no evidence of pain with weightbearing and no evidence of crepitus. With both knees, the examiner described functional limitations associated with limited range of motion as preventing the Veteran from squatting. The Veteran could perform repetitive use testing in both knees. There was no further limited motion after three repetitions. The Veteran report flare-ups monthly, lasting “days.” Flare-ups in both knees were precipitated by overuse and alleviated with rest and medications. For both knees, the examiner estimated motion with repeated use over time as ranging from zero degrees flexion to 85 degrees flexion. This additional motion loss was caused by pain. Also, for both knees, the examiner estimated the extent of motion during flare-ups as ranging from zero degrees extension to 80 degrees flexion. As in the estimate of functional loss after repeated use over time, these additional limits were caused by pain. For both knees, the examiner indicated that there were no other factors contributing to disability. Muscle strength test results were normal (5/5) in both knees with both flexion and extension. There was no muscle atrophy. There was no ankylosis. According to the examiner, there was no history of recurrent subluxation or lateral instability. The examiner administered four joint stability tests for each knee (tests of anterior instability, posterior instability, medial instability, and lateral instability). For both knees, all the results were normal. According to the examiner, there was no instability in either knee. The Veteran did not, and never had, a meniscus (semilunar cartilage) condition. She did not use any assistive devices. When asked to describe the effects of the Veteran’s knee disabilities on her ability to perform occupational tasks, the examiner wrote that the Veteran should not kneel or squat and should not sit still more for more than 30 minutes or bear weight for more than 30 to 60 minutes. She was advised not to run. The examiner also provided the requested information about pain and range of motion during each of the testing methods indicated by 38 C.F.R. § 4.59. There was no pain on non-weightbearing in the left or right knees. But there was pain during passive motion testing of both knees. For both knees, range of motion was normal (zero degrees extension to 140 degrees flexion) in passive motion, non-weightbearing, and weightbearing. During the tests in which the examiner noted pain, the pain was present during both flexion and extension of both knees. Most of the post-service VA treatment records concerning the Veteran’s knees are similar to the information described in the summary of the examination reports. The most recent of these records include a telephone note, dated May 2020, which describe the Veteran’s knee pain as worsening. The most recent imaging study of the knees is described in a June 2020 letter to the Veteran: “The bones, joint spaces and soft tissues are within normal limits.” Analysis As a preliminary matter, the Board finds that the November 2020 examination report, together with the other evidence, is adequate to decide the increased rating claims and that the AOJ substantially complied with the August 2020 remand instructions. The examiner provided estimates of the probable range of motion in the Veteran’s right and left knees after repeated use over time and during flare-ups. The examiner complied with Correia by indicating the range of motion, in degrees, in both knees, during all of the testing methods required by 38 C.F.R. § 4.59 and by indicating the testing methods in which pain was present. 38 C.F.R. § 4.71a, DC 5260 authorizes a rating of 10 percent when flexion is limited to 45 degrees or less. A separate 10 percent rating for limited extension is potentially available, either by itself, or in addition to a compensable rating for limited flexion, under DC 5261, when extension is limited to 10 degrees. Both diagnostic codes authorize even higher ratings of up to 30 percent, under DC 5260, or up to 50 percent, under DC 5261, for more severely limited flexion or extension, respectively. But the evidence in this case weighs against a finding that the Veteran’s symptoms have most closely approximated the criteria for a compensable rating under either diagnostic code for any clearly identifiable interval during the appeal period. Instead, the Veteran’s 10 percent ratings for both knees were assigned pursuant to the provision of 38 C.F.R. § 4.59, which recognizes “actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint” Id. The minimum compensable rating authorized by this regulation is appropriate when there is pain or painful motion in the relevant joint, even if the joint is not actually limited or, if motion is limited, is not limited to the extent required for a compensable rating by a diagnostic code based on limited motion. See Petitti v McDonald, 27 Vet. App. 415, 425-26 (2015); Mitchell, 25 Vet. App. at 34. The most severely limited flexion identified in any of the medical reports was 90 degrees during the most recent examination. While this is a greater limitation than the normal 140 degrees of flexion reported by the earlier examiners, it does not meet the 45-degree criteria for a compensable rating under DC 5260. Even during flare-ups, according to the estimate of the most recent examiner, both knees remained capable of 80 degrees of flexion. With respect to extension, the September 2019 examiner’s estimate of limited extension during flare-ups would potentially authorize a 10 percent rating under DC 5261. But applying this diagnostic code instead of 38 C.F.R. § 4.59 would not increase the previously assigned 10 percent rating for either knee. VA’s general counsel has indicated that simultaneous ratings under 5260 and 5261 are appropriate if the range of motion in the relevant knee is simultaneously limited to a compensable degree in both flexion and extension. See VAOGCPREC 9-04 (Sept. 2004). But the Board can find no authorization for assigning a 10 percent rating for painful extension under DC 5261 in addition to a minimum compensable rating for painful flexion under 38 C.F.R. § 4.59. Such an arrangement is inconsistent with the text of the regulation, which refers to one minimal compensable rating “for the joint.” If the regulation authorized a compensable rating for each painful motion contemplated by “the relevant diagnostic code” then it is likely that such a rating would be authorized. But 38 C.F.R. § 4.45(f) defines the knee as one joint, albeit a major one. Moreover, if the relevant joint been assigned a separate 10 percent rating under a diagnostic code based on limited motion, then a separate rating for a painful joint would not be a “minimum compensable rating” because the rating for the joint would consist of two separate 10 percent ratings. Thus, the evidence in this case does not authorize higher ratings under DCs 5260 or 5261. The Board has considered the possibility of assigning higher ratings for parts of the appeal period to remedy the possibility that the failure of the first two examiners might have prevented the discover of potentially helpful evidence about range of motion during passive motion or in non-weightbearing prior to November 2020. But such a rating would not be consistent with the other evidence in this case. Significantly, through her attorney in January 2018 and in her conversation with a VA health care provider in May 2020, the Veteran indicated that her knee symptoms had worsened in severity. Because the November 2020 examination obtained all the evidence required by Sharp and Correia, and did so after both of these increases in the severity of the Veteran’s knee disabilities, the earlier examinations, even if they had complied with all the relevant requirements, would probably not have justified higher ratings either. The fact that the November 2020 examiner reported normal range of motion (zero extension to 140 degrees flexion) in passive motion, non-weightbearing, and weightbearing – i.e., motion much less limited than the zero to 90-degree range recorded during initial active motion testing – supports this conclusion. Likewise, a separate rating under DC 5257 for knee instability would be inappropriate, because all the joint stability test results recorded by all three examiners uniformly indicated that the Veteran did not have instability in either knee. The Veteran has the burden of proving, at least to an equipoise standard, all of the requirements of her increased rating claims. See 38 U.S.C. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). For the reasons above, the preponderance of the evidence is against a finding that her right or left knee disabilities have satisfied the relevant criteria for a rating higher than 10 percent at any point during the appeal period. Because the preponderance of the evidence weighs against the claims, the benefit-of-the-doubt doctrine does not apply, see 38 U.S.C. § 5107(b), and both claims must be denied. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Nye, 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.