Citation Nr: 21010216 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 06-13 576 DATE: February 24, 2021 ORDER Entitlement to a rating in excess of 10 percent for degenerative joint disease of the left knee, is denied. Entitlement to a separate 20 percent rating for limitation of extension of the left leg from November 18, 2010 to December 11, 2013, and a 30 percent rating from December 12, 2013 to December 11, 2016, is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a separate compensable rating for limitation of extension of the left leg from December 12, 2016 is denied. FINDINGS OF FACT 1. The Veteran's degenerative joint disease of the left knee is manifested by pain; range of motion is no worse than 0 to 100 degrees. 2. During the appeal period from November 18, 2010 to December 11, 2013, extension of the left leg was limited to 15 degrees and from December 12, 2013 to December 11, 2016, extension of the left leg was limited to 20 degrees. 3. From December 12, 2016 the left leg extension was consistently to 0 degrees. CONCLUSIONS OF LAW 1. The criteria for a 10 percent for degenerative joint disease of the left knee are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes (DCs) 5003, 5256, 5260, 5261. 2. The criteria for a separate 20 percent rating from November 18, 2010 to December 11, 2013, and a separate 30 percent rating from December 12, 2013 to December 11, 2016, for limitation of extension of the left knee are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, DC 5261. 3. The criteria for a separate compensable evaluation for limitation of extension of the left knee from December 12, 2016 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, DC 5261. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1965 to August 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating October 2004 and April 2008 decisions of the Department of Veterans Affairs (VA) Agency of Original Jurisdiction. The case has been before the Board previously, most recently in January 2019, when in pertinent part it was remanded for additional development, including, a VA examination to comply with the guidance set forth in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). The record reflects that in September 2020, the Veteran received a letter from the Board indicating that he could request a virtual tele-hearing instead of waiting for a Travel Board hearing. Upon further review, the Veteran does not have a pending hearing request and the issuance of the Board letter was in error. 1. Entitlement to a rating in excess of 10 percent for degenerative joint disease of the left knee Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011) In Correia v. McDonald, 28 Vet. App. 158 (2016), the United States Court of Appeals for Veterans Claims (Court) held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. (1991). The Veteran's degenerative joint disease of the left knee is rated under 38 C.F.R. § 4.71a, DC’s 5010-5260, for arthritis with limitation of flexion of the leg, and have been rated based on painful noncompensable limitation of motion. Under DC 5260, a 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. A 30 percent rating is warranted for flexion limited to 15 degrees. Full knee flexion is to 140 degrees. 38 C.F.R. § 4.71a, Plate II. The degenerative joint disease of the left knee may also be rated under Diagnostic Code 5261, limitation of extension of the leg. Under DC 5261, a 10 percent rating is warranted where extension is limited to 10 degrees; a 20 percent rating is warranted where extension is limited to 15 degrees; a 30 percent rating is warranted where extension is limited to 20 degrees; a 40 percent rating is warranted where extension is limited to 30 degrees; and a maximum 50 percent rating is warranted where extension is limited to 45 degrees. Full knee extension is left to zero degrees. 38 C.F.R. § 4.71a, Plate II. The Veteran is service-connected and in receipt of separate disability evaluations for residuals, status post left lateral meniscectomy rated as 20 percent disabling under DC 5258 and associated left knee surgical scar rated as 0 percent (noncompensable) disabling under DC 7805, matters that are not currently on appeal and before the Board. VA examinations in December 2006 and December 2007 show the Veteran complained of pain in both knees. Examinations of the left knee revealed pain described as mild, and a 3 out of a scale of 1 to 10, which increased to a 5 on stairs. There was pain on motion of the left knee and range of motion studies of the left knee were from 0 to 130/135 degrees flexion and 0 degrees extension. There was no pain, weakness, fatigue or lack of endurance with repetitive movement or reduction with repetitive movement. The diagnoses included left knee mild degenerative osteoarthritis. VA examinations in June and November 2010 show that the Veteran was status post-operative left knee medial meniscectomy performed in May 2010. The Veteran complained of flare-up knee pain while walking. He reportedly was unable to squat and he had problems with stairs. On examination there was painful motion of the left knee. Range of motion studies showed that flexion ranged from 0 to 105 to 140 degrees and extension was described as full or to 0 degrees. The Veteran complained of increased pain and fatigability after repetitive motion but there was no decreased range of motion. The subsequent examination revealed evidence of pain following repetitive motion. After repetitive motion left knee extension was 105 to 15 degrees on November 2010 examination. With active motion there was pain on flexion from 30 to 95 degrees. There was no ankylosis. The diagnoses included mild osteoarthritis left knee. At a December 2013 VA examination of the knees, the Veteran complained of increasing pain in the knees with flare-ups resulting in difficulty walking. Range of motion studies showed that left knee flexion was to 130 degrees with painful motion at 100 degrees. Left knee extension was to 20 degrees with painful motion at 20 degrees. It was reported that the Veteran was able to perform repetitive testing with post-test range of motion to 130 degrees flexion and 20 degrees extension. There was no additional range of motion following repetitive use testing. Functional loss and impairment were reported in both knees with contributing factors of disability. There was tenderness or pain on palpation. The Veteran used a brace and cane as assistive devices. The diagnoses included left knee meniscectomy and degenerative arthritis of both knees. In December 2016 at a VA medical examination, the Veteran complained of left knee pain and inability to kneel. He had flare-ups after working in the yard or exertions that lasted 2 to 4 days. Functional loss was reported by the Veteran as an inability to perform physical labor, prolonged standing, walking, sitting, and bending. Range of motion of the left knee was described as abnormal with flexion to 105 degrees and extension was to 0 degrees. It was reported that range of motion contributed to functional loss the Veteran described as pain and that he was not able to bend his knees. Pain was exhibited on flexion and extension of the knee. There was pain on weight-bearing, pain or tenderness on palpation of the medial joint line, and crepitation. The Veteran was able to perform repetitive use testing and it was reported that there was no functional loss after use. The Veteran was not examined immediately after repetitive use over time and the examiner indicated he or she was unable to comment on limitation of functional ability without resorting to speculation. The examination was conducted during a flare-up of the left knee which caused pain and lack of endurance. It was indicated that there was no ankylosis. The Veteran used a cane occasionally as an assistive device. The examiner indicated that there was evidence of pain on passive range of motion and on non-weight-bearing. At a VA examination in July 2018 it was reported that the Veteran had left knee pain greater than on the right knee, described as an 8 out of 10 at its worse. He had knee flare-ups. Functional loss was described as an inability to perform prolonged standing, walking, or sitting, bending and kneeling. He had difficulty using stairs. Range of motion was 102 degrees flexion and 0 degrees extension. There was pain on motion and weight-bearing of the knee and pain on palpation. The Veteran was able to perform repetitive use testing and there was no additional functional loss after repetition. He was not examined after repetitive use over time. Pain, weakness, fatigability or incoordination limited functional ability due to pain. The examination was not conducted after a flare-up. There was no ankylosis. Additional factors contributing to the disability included an inability to perform prolonged standing, walking or sitting, frequent kneeling or bending. The Veteran had difficulty using stairs. It was reported that the Veteran used a brace and cane as assistive devices to ambulate. The examiner indicated that there was pain on passive range of motion and non-weight-bearing. Bilateral range of motion testing was performed. Left knee passive range of motion on flexion was 0 to 90 degrees and extension was 90 to 0 degrees. Weight-bearing flexion was 0 to 84 degrees and extension was 84 to 0 degrees. Left knee active range of motion on flexion was 0 to 102, extension was 102 to 0 degrees. It was reported that right and left knee active range of motion and non-weight-bearing range of motion were the same as they were measured while the Veteran was laying on the table. In October 2019, a VA medical examination of the left knee was performed. The Veteran complained of a worsening left knee condition. He complained of constant knee pain without flare-ups. The Veteran described his functional loss or functional impairment as knee pain with walking, squatting, kneeling, and going up stairs. Range of motion of the left knee was described as abnormal and testing showed that flexion was to 100 degrees and extension was to 0 degrees. It was stated that range of motion did not contribute to functional loss. There was pain on flexion and extension of the knee. There was pain with weight-bearing. Medial joint line pain on palpation was reported. The Veteran was able to perform repetitive use testing and there was no additional functional loss. There was no pain, weakness, fatigability or incoordination significantly limiting functional ability after repetitive use. No flare-ups were reported. There was no left side ankylosis. He used a brace regularly. The examiner stated that that there was no pain on passive range of motion testing or in non-weight-bearing. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for degenerative joint disease of the left knee under DC 5260; however, the evidence supports a separate evaluation for limitation of extension under DC 5261 for a portion of the appellate period. The Board acknowledges the Veteran's lay complaints of left knee pain and left knee functional loss. Medical examination records from the past report evidence of functional loss due to pain on motion of the left knee, fatigability, pain on repetitive use and over time, as well as pain during flare-ups, weight-bearing and non-weight-bearing. Pain on passive and active range of motion was also noted in the past. It is noted that range of motion studies from the past, not including testing for pain, show limitation of flexion no less than 90 degrees, and on the most recent examination at 100 degrees. In the most recent October 2019 examination, continued subjective complaints of left knee pain, functional limitation and functional loss were reported. The examiner also reported evidence of left knee pain on motion and on weight-bearing. However, in contrast to those past examination findings it is noted that the recent examiner opined that pain on range of motion did not constitute additional functional loss. Also, there was no pain, weakness, fatigability or incoordination significantly limiting functional ability after repetitive use, and also there were no flare-ups. The Veteran was able to perform repetitive use testing without additional functional loss. There was no pain on passive range of motion or on non-weight-bearing. Further, left knee range of motion testing showed that flexion was to 100 degrees and extension was to 0 degrees. Even considering reported subjective complaints of pain and other symptoms, most recently there is no evidence of flexion limited to 30 degrees such that a higher rating would be warranted under DC 5260. See Thompson v. McDonald, 815 F.3d 781, 786 (Fed. Cir. 2016) (holding that provision describing functional loss due to disability of the musculoskeletal system does not supersede requirements for a higher rating specified in the Rating Schedule). The Veteran's complaints have been taken into consideration, but there is no evidence that his degenerative joint disease of the left knee manifested by limitation of flexion results in significant or additional functional loss beyond that contemplated by the assigned 10 percent evaluation under DC 5260. See 38 C.F.R. §§ 4.40, 4.45, 4.59; Mitchell, DeLuca, Correia and Sharp, supra. However, the Board notes that separate ratings under DC 5260 and 5261 may be assigned for disability of the same knee joint. See VAOPGCPREC 9-2004. The VA General Counsel has held that separate ratings could be provided for limitation of knee extension and flexion under DCs 5260 and 5261, as long as both ranges of motion meet the criteria for a compensable rating. VAOPGCPREC 9-2004; 69 Fed. Reg. 59,990 (2004). The Veteran’s left leg degenerative arthritis currently contemplates a compensable rating for limitation of flexion of a leg under DC 5260. Considering favorable medical findings, the Board concludes that a separate disability evaluation is applicable for limitation of extension of the left leg under DC 5261. In addition, in disability rating cases, VA assesses the level of disability from the initial grant of service connection or a year prior to the date of application for an increased rating and determines whether the level of disability warrants the assignment of different disability ratings at different times over the course of the claim, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007) (holding that staged ratings may be warranted in increased rating claims). In light of the level of disability at different times over the course of the claim, a staged rating is for application. The Veteran’s appeal period before the Board begins on August 28, 2007, one year prior to the date VA received the claim for an increased rating, August 28, 2008. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). As reflected previously, VA examinations of the knees from December 2007 up to the November 2010 examination, show the Veteran’s knee complaints and range of motion studies show left knee extension described as 0 degrees and normal. However, at the time of the November 2010 examination, the examiner noted that left knee extension was to 15 degrees after repetitive motion. Further, at a December 2013 VA examination of the knees, range of motion of the left knee showed that extension was to 20 degrees. A VA examination in December 16, 2016 range of motion of the left knee extension was to 0 degrees. VA findings through December 2019 consistently show that left knee extension was to 0 degrees. Under DC 5261, a 20 percent rating is available for limitation of extension of a leg limited to 15 degrees; a 30 percent disability evaluation is available for limitation of extension of a leg limited to 20 degrees. During the appeal period, at least from November 18, 2010 to December 11, 2013, a 20 percent rating is in order under DC 5261 and a 30 percent rating is in order from December 12, 2013 to December 11, 2016. Thereafter, left knee extension continued to be full or to 0 degrees. A higher evaluation 40 percent disability evaluation under DC 5261 requires extension of a leg limited to 30 degrees which is not shown. Regarding left leg extension from December 12, 2016 the clinical findings from that point consistently show extension of the left leg to 0 degrees. Under DC 5261 extension of a leg limited to 5 degrees warrants a 0 or noncompensable evaluation. Even with consideration of the factors outlined in 38 C.F.R. §§ 4.40, 4.45, 4.59 and Mitchell, DeLuca, Correia and Sharp, supra, the Board does not find that a higher or separate rating based on limitation of extension is warranted. As a result, from December 12, 2016, a separate compensable rating for left knee extension is denied. Concerning separate or higher ratings for recurrent subluxation or lateral instability under DC 5257, to the extent that the Veteran has reported symptoms of weakness and/or giving way in the left knee, the Board notes that in English v. Wilkie, 30 Vet. App. 347, 349 (2018), the Court determined that "DC 5257 [does not] speak to the type of evidence required and, thus, objective medical evidence [is not] required to establish lateral knee instability under that DC." While the Board has considered the Veteran's descriptions of his knee symptomatology as it relates to these factors, such assertions are contradicted by the objective medical findings of record. The VA examinations included repeat stability testing documented over the many years of this appeal that did not reflect any instability. The medical evidence throughout the appeal period does not reflect any instability on examination. The Board finds the medical evidence of record to be more persuasive than any suggestions of left knee instability given medical professionals' expertise in testing and evaluating disorders of the knees. As such, the Board concludes that a separate or higher rating is not warranted based on any assertions of weakness or giving way. (Continued on the next page)   Finally, the Board notes that the criteria for musculoskeletal disabilities in 38 C.F.R. § 4.71a were amended, effective February 7, 2021, and the “new” schedular criteria are applicable as of that date. 85 Fed. Reg. 76453 (Nov. 30, 2020). However, the Board notes that DCs 5260 and 5261 for limited motion of the knee were not amended. DC 5257, regarding knee subluxation or instability, or patellar instability, and DC 5262, regarding impairment of the tibia and fibula were amended, but are not applicable to the Veteran’s appeal given the facts of this case. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board William J. Jefferson III 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.