Citation Nr: 21010311 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 09-40 239 DATE: February 24, 2021 ORDER Entitlement to an increased rating in excess of 20 percent for postoperative residuals of osteochondritis dissecans with arthritis of the right knee for the period prior to October 2, 2020 and in excess of 30 percent for the period from October 2, 2020 through the present is denied. FINDINGS OF FACT 1. For the period prior to October 2, 2020, the Veteran’s right knee disability was manifested by subjective complaints of swelling, pain, and locking; objectively, he had no instability, range of motion of at least 70 degrees and his right knee disability was no worse than moderate in severity. 2. For the period from October 2, 2020 through the present, the Veteran has been in receipt of the highest schedular evaluation allowed under the law for limitation of flexion of the knee; there is no evidence that he has had extension limited to 30 degrees or other symptomology that would warrant a higher rating under a different diagnostic code. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for the Veteran’s right knee osteochondritis dissecans with arthritis disability for the period prior to October 2, 2020 and in excess of 30 percent for the period from October 2, 2020 through the present have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5003-5260. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Army from August 1969 to April 1973. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a May 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In February 2016, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. This matter has a lengthy procedural history. In March 2016, the Board denied entitlement to an increased rating in excess of 20 percent for the Veteran’s postoperative residuals of osteochondritis dissecans with arthritis. The Veteran appealed that denial to the United States Court of Appeals for Veterans Claims (Court). In response to an April 2017 Joint Motion for Partial Remand, the Court vacated and remanded the Veteran’s claim to the Board, which in turn remanded the case for further development in June 2017. The case was returned to the Board and in a November 2017 decision, the Board again denied entitlement to an increased rating for postoperative residuals of osteochondritis dissecans with arthritis. The Veteran again appealed to the Court, and in response to a Joint Motion for Remand, the Court vacated and remanded the Veteran’s claim in June 2018. In the Joint Motion for Remand, the parties agreed that the Board erred when it relied on the July 2017 VA Examination because the examiner failed to opine whether pain could significantly limit functional ability during flare-ups or on repetitive use. Thus, the parties agreed that a remand for an adequate examination was necessary and the claim was again returned to the Board at which time it was remanded in November 2018 in order to obtain an updated VA examination in order to comply with the most recent Joint Motion for Remand. Following an additional remand in July of 2020 for an additional VA examination, this case has now been returned to the Board for further adjudication. Entitlement to an increased rating in excess of 20 percent for postoperative residuals of osteochondritis dissecans with arthritis of the right knee for the period prior to October 2, 2020 and in excess of 30 percent for the period from October 2, 2020 through the present is denied. The Veteran contends that a higher rating is warranted for his right knee condition. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 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 veteran. 38 C.F.R. § 4.3. 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 (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 (2011) (holding that 38 C.F.R. § 4.59 applies to disabilities other than arthritis). However, painful motion alone is not a functional loss without some restriction of the normal working movements of the body. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). The joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. In this case, the Veteran asserts that his right knee condition is more severe than his current disability ratings. The Veteran is currently rated at 20 percent for his right knee disability for the period prior to October 2, 2020 and at 30 percent for the period from October 2, 2020 through the present under Diagnostic Code 5003-5260. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the rating assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Degenerative arthritis is rated in accordance with 38 C.F.R. § 4.71a, DC 5003, which provides that when arthritis is established by X-ray findings it will be rated on the basis of limitation of motion under the appropriate DCs for the specific joint or joints involved. If limitation of motion of the specific joint involved is not compensable under the appropriate DCs, a 10 percent rating is for application for each such major joint affected by limitation of motion. Id. A 20 percent rating is warranted for involvement of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5003. For the purpose of rating a disability from arthritis, the knee is considered a major joint. 38 C.F.R. § 4.45. 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. Under 38 C.F.R. § 4.71a, DC 5257, a 20 percent rating is in order if there is moderate recurrent subluxation or lateral instability, and a 30 percent rating is in order if there is severe recurrent subluxation or lateral instability. Under the provisions of 38 C.F.R. § 4.71a, DC 5258, a rating of 20 percent is assigned for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion in to the joint. Under Diagnostic Code 5260, a 10 percent rating is warranted for flexion of the knee limited to 45 degrees; a 20 percent rating is warranted for flexion limited to 30 degrees; and a 30 percent rating is warranted for flexion limited to 15 degrees. Under Diagnostic Code 5261, a 10 percent rating is warranted for extension of the knee limited to 10 degrees; a 20 percent rating is warranted for extension limited to 15 degrees; a 30 percent rating is warranted for extension limited to 20 degrees; a 40 percent rating is warranted for extension limited to 30 degrees; and a 50 percent rating is warranted for extension limited to 45 degrees. Normal range of motion of the knee is 0 degrees of extension to 140 degrees of flexion. See 38 C.F.R. § 4.71a, Plate II. In VAOPGCPREC23-97, 62 Fed. Reg. 63604 (1997), VA’s General Counsel determined that, when a claimant has arthritis and instability of the knee, multiple ratings may be assigned to the knee under DC 5003 and 5257. Moreover, in VAOPGCPREC 9-98, 63 Fed. Reg. 56704 (1998), it was found that, even if the veteran did not have limitation of motion of the knee meeting the criteria for a noncompensable evaluation under DC 5260 or 5261, a separate evaluation could be assigned if there was evidence of full range of motion “inhibited by pain.” Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (2015). Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation and the evaluation of the same manifestation under different diagnoses are to be avoided. Id. Upon reviewing the totality of the evidence of record, the Board finds that a rating in excess of 20 percent for the Veteran’s right knee disability for the period prior to October 2, 2020 and in excess of 30 percent for the period from October 2, 2020 through the present is not warranted. Relevant to the period prior to October 2, 2020, it is the Veteran’s primary contention that he is entitled to a rating in excess of 20 percent on the basis of constant pain, gait impairment, limitation of motion, instability, and limitations imposed by his service-connected right knee disorder, including restricted walking and standing, particularly on hard surfaces. The Veteran underwent multiple VA examinations during that period that have previously been deemed to be inadequate by either the Court or the Board. It is therefore initially important to note that even if a medical opinion is inadequate to decide a claim, it does not necessarily follow that the opinion is entitled to absolutely no probative weight. Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012). If the opinion is based on an inaccurate factual premise, then it is correct to discount it entirely. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). However, if the opinion is merely lacking in detail, then it may be given some weight based upon the amount of information and analysis it contains. See Nieves-Rodriguez v. Peake, 22 Vet. App. 302 (2008). Here, the VA examinations of record during this period either did not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016) or did not comply with those in Sharp. v. Shulkin, 29 Vet. App. 26 (2017). As such, the range-of-motion results contained within them and the other subjective measurements may still be utilized to evaluate the then-state of the Veteran’s right knee disability. In this case, the medical data presented entails both examination and treatment records compiled by VA and non-VA medical professionals, but none of this objective evidence indicates that the Veteran’s flexion was limited to 15 degrees such that a 30 percent rating would be warranted for that period. VA medical examinations in 2009, 2012, 2014, and 2015 disclosed no evidence of ankylosis, recurrent subluxation, lateral instability, or dislocation of semilunar cartilage or its removal. Use of a cane and/or knee brace was noted. Flexion was reduced to not more than 95 degrees on any occasion and not more than a 5 degree loss of extension was demonstrated throughout, neither of which was further reduced by pain, repetitive motion, weakness, fatigue, flare-ups, lack of endurance, or incoordination. Pain was noted to be a component of the Veteran’s motion attempts. No tibial or fibular impairment was indicated, nor was genu recurvatum. Some muscle wasting involving the right lower extremity was at times shown. X-rays revealed an osteochondral defect and related arthritis. A VA examiner reported a worsening of the Veteran’s symptoms at a VA examination in July 2017. However, that examination also disclosed no evidence of ankylosis, recurrent subluxation, lateral instability, recurrent patellar dislocation, or dislocation of semilunar cartilage. Evidence of pain with weight bearing was noted. Muscle strength indicated active movement against some resistance of flexion and extension. Degenerative arthritis was documented. Objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue was noted on the right knee below the kneecap. Use of a cane and /or knee brace was noted. Flexion was 90 degrees and extension was 0 degrees, neither of which was further reduced by pain, repetitive motion, weakness, fatigue, flare-ups, lack of endurance, or incoordination. No tibia or fibular impairment was indicated, nor was genu recurvatum. At a September 2019 examination with a VA examiner, the Veteran reported flare-ups that caused increased pain and swelling. Pain was noted on examination that caused functional loss with flexion. Flexion was 70 degrees and extension was 0 degrees. The Veteran was able to perform repetitive-use testing with at least three repetitions and his right knee disability was not further reduced by pain, repetitive motion, weakness, fatigue, lack of endurance, or incoordination. Evidence of pain with weight bearing was noted. There was also no evidence of ankylosis, recurrent subluxation, lateral instability, or dislocation of semilunar cartilage or its removal. Medical findings of the Veteran’s private treating physician, who was consulted at least in part as a result of the Veteran’s claim for Workers’ Compensation benefits, are similar but point to a greater level of disability. For instance, in April 2009, the Veteran’s right knee was reported to identify a flexion contracture with movement from 15 degrees to 120 degrees. Significant atrophy of the right thigh measuring three centimeters was present. In October 2009, flexion of the right knee was possible to 110 degrees, but he was reported to be lacking 25 degrees of full extension. It was believed that no articular cartilage remained, suggesting a severe injury to the anterior medial compartment. A significant limp was present then and in April 2010, when it was noted that there had been no significant change in the right knee disorder, as manifested by stiffness, limited motion, pain, crepitation, and weakness.VA treatment records dated in April 2011, range of motion was from 0 degrees of extension, which is normal per 38 C.F.R. § 4.71, Plate II (2015), to 120 degrees of flexion. Mild tenderness and crepitus were noted; effusion was absent. When evaluated by VA on an outpatient basis in January 2015, there was noted to a long history of right knee pain treated with a knee brace and medications, including Etodolac and Tramadol. Objectively, there was crepitus with motion, which was limited to 5 degrees of extension and 110 degrees of flexion. The knee was stable to varus and valgus stress at 0-30 degrees and there was a negative anterior and posterior drawer sign. It was at that time that it was recommended that the Veteran undergo a total knee replacement for treatment of his right knee disability. Essentially, although the private medical examiner referenced a flexion contracture of the right knee that might arguably be tantamount to ankylosis, there is otherwise no evidence of contracture or ankylosis of the right knee presented thus far. As such, the Board is not persuaded that either a contracture or indicia of ankylosis are elements of the Veteran’s service-connected right knee disability. The same is true with respect to the question of cartilage damage, the presence of which is noted by the private physician, but which is not verified on any of the numerous clinical examinations of the knee by VA during this period. The Board notes that the private medical examiner’s calculation of range of motion values of the right knee is consistent with those of the various VA examiners and treating medical professionals, except the April 2009 private physician’s findings that right knee extension was reduced to 15 degrees and that in April 2010 there was a 25-degree reduction in extension. Reductions of the range of motion of that magnitude are not otherwise corroborated by any other clinical evidence at any point within the one-year period prior to the date of the VA’s receipt of the claim at issue to the present. The Board points out that when the Veteran was examined by VA in April 2009 only a 5-degree loss of extension was indicated by means of objective testing. Thus, the notation of a 15-degree of extension loss by the private examiner in the same month is accorded little probative weight. And, as indicated, the existence of a 25-degree loss of knee extension in April 2010 is inconsistent with other range of motion values prior thereto and subsequently, and it, too, is afforded only minimal probative weight. The Veteran has been assigned a disability rating of 20 percent under Diagnostic Code 5260 for flexion of the right knee limited to 30 degrees for the period prior to October 2, 2020. It is not appropriate to assign separate ratings for a meniscus disability and limitation of motion or instability because limitation of motion and instability are contemplated by the meniscus diagnostic codes. However, the Board will consider whether a rating in excess of 20 percent is available to the Veteran under the diagnostic codes for instability and limitation of motion. A rating of 30 percent is available when flexion is limited to 15 degrees, or extension is limited to 20 degrees. In this case, the most severe range of motion measurements are flexion ending at 70 degrees and extension ending at 0 degrees which is recorded in the September 2019 examination report. These measurements do not allow the Veteran to receive a rating in excess of 20 percent due to limitation of motion for this period. The Board also notes that the VA examinations from this period indicate that there is no evidence of ankylosis, recurrent subluxation or lateral instability, cartilage, semilunar, dislocated with frequent episodes of locking, pain, and effusion into the joint, cartilage, semilunar, removal of, symptomatic, tibia and fibula impairment, or genu recurvatum. Therefore, there is no indication that separate ratings under Diagnostic Codes 5256, 5257, 5258, 5259, 5262, or 5263 would be a more appropriate Diagnostic Code under which to consider the Veteran’s right knee disability. The Veteran, as noted, offered an account of symptoms during this period involving his service-connected osteochondritis dissecans of the right knee with arthritis. He also submitted for review multiple lay statements from affiants who asserted their respective observations of the Veteran’s pain complaints, limp, need for use of a knee brace, and inability to sit or stand for long periods. The Veteran is certainly competent to report what symptoms and limitations he is experiencing, and that account is not inherently incredible. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, the assertions made by the Veteran and his lay witnesses do not, in the Board’s opinion, corroborate the Veteran’s argument that the disorder in question has increased in severity. Rather, they are supportive of the 20 percent rating already in effect based on limitation of motion and associated pain and functional loss. And even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that he sometimes experienced during flare-ups during this period would not result in limitation of motion more nearly approximating flexion limited to 15 degrees. The Veteran’s assertions and those made by his witnesses have been expressly considered. However, these assertions are also outweighed by the medical evidence of record. The Veteran and his witnesses have not been shown as competent to render an opinion on the extent of the Veteran’s condition from a medical standpoint, as neither has been shown to possess the requisite training or credentials needed to render an expert medical opinion. 38 C.F.R. § 3.159 (a)(2); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). And importantly, the rating criteria for the Veteran’s right knee disability is based on objective measurements. As such, these lay opinions do not constitute competent medical evidence and are outweighed by the medical evidence of record in terms of probative value. Based on the foregoing, the record does not indicate that the Veteran’s right knee symptomology merits a rating in excess of 20 percent for postoperative residuals of osteochondritis dissecans with arthritis of the right knee for the period prior to October 2, 2020. Similarly, the most probative evidence of record does not indicate that the Veteran’s right knee condition should be rated higher than 30 percent for the period from October 2, 2020 to the present. In that regard, the Veteran was afforded an additional examination in October of 2020 in order to comply with the Board’s most recent remand and attempt to obtain an examination that complies with the holdings of both Correia and Sharp. The October 2020 Compensation and Pension examination documented 45 degree flexion and 0 degree extension in the right knee. Pain was noted to result in functional loss upon flexion which warrants the 30 percent evaluation currently assigned under Diagnostic Code 5260 despite the rating criteria stipulating that a 30 percent rating is warranted for flexion limited to 15 degrees. However, that examination also disclosed no evidence of ankylosis, recurrent subluxation, lateral instability, recurrent patellar dislocation, or dislocation of semilunar cartilage. The Veteran did not report flare ups at this examination. Evidence of pain with weight bearing was noted. Muscle strength was normal. Objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue was noted on the tip of the anterior knee. Use of a cane and/or knee brace on a “constant” basis was noted. No tibia or fibular impairment was indicated, nor was genu recurvatum. At 30 percent for the period from October 2, 2020 to the present, the Veteran is already in receipt of the highest schedular evaluation allowed under the law for limitation of flexion of the knee. A rating of 40 percent is available when extension is limited to 30 degrees. In this case, the most severe range of motion measurements are flexion ending at 45 degrees and extension ending at 0 degrees which is recorded in the October 2020 examination report. This is the only examination of record that contains the results of range of motion testing for this period. VA records also indicate that the Veteran has sought treatment on various occasions for right knee symptomology. However, there is no evidence of further limitation of range of motion to warrant a rating in excess of 30 percent under Diagnostic Code 5260, nor to justify a rating under a different diagnostic code for similar rationale to that outlined above for the prior appeal period. 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, 8 Vet. App. 202; see also Mitchell, 25 Vet. App. 32, 44. Indeed, and as stated above, this is the justification for the Veteran’s current 30 percent rating for this period. Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). In sum, the Board finds that the criteria for higher respective ratings for the Veteran’s right knee disability have not been met at any point during the appeal and there is no basis for further staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The preponderance of the evidence is against finding for higher ratings and the benefit of the doubt doctrine does not apply. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Smith, 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.