Citation Nr: 21011503 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 14-14 363 DATE: March 2, 2021 ORDER Entitlement to a rating in excess of 10 percent for a left knee disorder is denied. Entitlement to a rating in excess of 10 percent for a right knee disorder is denied. FINDINGS OF FACT 1. During the entire period on appeal, the Veteran’s left knee disorder manifested by limitation of motion and pain; flexion has not been limited to less than 45 degrees and extension has not been limited to more than 5 degrees; recurrent subluxation, lateral instability, ankylosis or a meniscal disability have not been diagnosed. 2. During the entire period on appeal, the Veteran’s right knee disorder manifested by limitation of motion and pain; flexion has not been limited to less than 45 degrees and extension has not been limited to more than 5 degrees; recurrent subluxation, lateral instability, ankylosis or a meniscal disability have not been diagnosed. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for the Veteran’s left knee disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes (DCs) 5010-5261. 2. The criteria for a rating in excess of 10 percent for the Veteran’s right knee disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DCs 5010-5261. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Marine Corps from April 1979 to April 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from January 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the appeal in September 2018 to the agency of original jurisdiction (AOJ) for further development.  The Board’s remand directives have been substantially completed. See Stegall v. West, 11 Vet. App. 268 (1998).   Increased Rating Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. 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. 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. 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 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). “Although pain may cause a functional loss, pain itself does not constitute functional loss.” Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011) (emphasis in original). Painful motion is deemed to be limitation of motion and warrants the minimum compensable rating for the joint, even if there is no actual limitation of motion. 38 C.F.R. § 4.59; Lichtenfels v. Derwinski; 1 Vet. App. 484, 488 (1991). The provisions of 38 C.F.R. § 4.59 relating to painful motion are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). The Board must also consider whether VA examiners have elicited information concerning the “severity, frequency, duration, or functional loss manifestations” of such flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Court also has issued the opinion of Correia v. McDonald, 28 Vet. App. 158 (2016), which clarifies additional requirements that VA examiners should address when assessing musculoskeletal disabilities, holding specifically, that 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. During the pendency of this appeal, applicable rating criteria for the Schedule for Rating Disabilities of the Musculoskeletal System and Muscle Injuries were revised effective February 7, 2021. 85 Fed. Reg. 76453 (November 30, 2020). When regulations are revised during the course of an appeal, the Board must consider the claim in light of both the former and revised schedular criteria and to apply the criteria that is more favorable to the Veteran. However, if an increased rating is warranted under the revised criteria, that award may not be made effective before the effective date of the change, even though there is no prohibition against assigning a rating under the older criteria for the entire period on appeal. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). In this case, the former criteria are more favorable to the Veteran. Accordingly, the Veteran’s claim will be adjudicated under the former criteria. 1. Entitlement to a rating in excess of 10 percent for a left knee disorder 2. Entitlement to a rating in excess of 10 percent for a right knee disorder The Veteran’s left knee and right knee disabilities are currently rated 10 percent disabling for the entire period on appeal, under DC 5010-5261. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the rating assigned. The additional code is shown after a hyphen. 38 C.F.R. § 4.27. In this case, DC 5010 refers to post-traumatic arthritis, rated as limitation of motion, dislocation, or other specified instability under the affected joint. If there are two or more joints affected, each rating shall be combined in accordance with 38 C.F.R. § 4.25. Disabilities of the knee are rated pursuant to 38 C.F.R. § 4.71a, DCs 5256-5263. DC 5256 provides evaluations for ankylosis of the knee. DC 5257 provides evaluations for recurrent subluxation or instability and patellar instability. DC 5258 provides a 20 percent rating for dislocation of semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. DC 5259 provides a 10 percent rating for symptomatic removal of semilunar cartilage. DCs 5260 and 5261 provide the rating criteria for limitation of knee motion. 38 C.F.R. § 4.71a. Normal range of motion of the knee is from 0 to 140 degrees. 38 C.F.R. § 4.71a Plate II. DC 5260 provides that limitation of knee flexion to 60 degrees is rated as noncompensable; limitation of knee flexion to 45 degrees is rated as 10 percent disabling; and limitation of knee flexion to 30 degrees is rated as 20 percent disabling. Limitation of flexion to 15 degrees is rated as 30 percent disabling. DC 5261 provides that limitation of knee extension to 5 degrees is rated as noncompensable; limitation of knee extension to 10 degrees is rated as 10 percent disabling; limitation of knee extension to 15 degrees is rated as 20 percent disabling; limitation of knee extension to 20 degrees is rated as 30 percent disabling; limitation of knee extension to 30 degrees is rated as 40 percent disabling; and limitation of knee extension to 45 degrees is rated as 50 percent disabling. DC 5262 provides evaluations for impairment of the tibia and fibula. DC 5263 provides a 10 percent rating for acquired traumatic genu recurvatum, with objectively demonstrated weakness and insecurity in weight-bearing. VA’s General Counsel has stated that when a knee disorder is rated under 38 C.F.R. § 4.71a , DC 5257 and an appellant also has limitation of knee motion which at least meets the criteria for a noncompensable evaluation under 38 C.F.R. § 4.71a, DC 5260 or 5261, separate evaluations may be assigned for arthritis with limitation of motion and for instability. However, General Counsel stated that if an appellant does not meet the criteria for a noncompensable rating under either DC 5260 or DC 5261, there is no additional disability for which a separate rating for arthritis may be assigned. VAOPGCPREC 23-97 (July 1, 1997), published at 62 Fed. Reg. 63,604 (1997). If a rating is assigned under the provisions for other knee impairment (38 C.F.R. § 4.71a, Code 5257), a separate 10 percent rating may be assigned where some limitation of motion, albeit noncompensable, has been demonstrated. See VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (1998). VA’s General Counsel has also stated that separate ratings under DC 5260 (limitation of flexion of the leg) and DC 5261 (limitation of extension of the leg) may be assigned for disability of the same joint. VAOPGCPREC 9-04 (September 17, 2004), published at 69 Fed. Reg. 59,990 (2004). Turning to the evidence of record, the Veteran initially underwent a VA examination for his bilateral knee disability in May 2013. The Veteran reported increasing stiffness and sensation of buckling without provocation. The Veteran did not report flare-ups. On examination, right knee flexion was limited to 90 degrees with no objective evidence of painful motion on flexion. No limitation of left knee extension or painful motion on extension was noted. Examination of the right knee flexion and extension showed identical findings. Repetitive use testing showed limitation of flexion to 90 degrees and no limitation of extension bilaterally. As to an additional limitation in range-of-motion, less movement than normal bilaterally was noted. No tenderness, pain on palpation or instability was noted. The examiner noted that the Veteran does not use any assistive devices as a normal mode of locomotion. Subsequently, the Veteran underwent a VA examination in June 2016. The Veteran reported flare-ups and described popping, swelling and grinding. On objective testing, there was no limitation of extension of the Veteran’s left knee. The examiner noted there was no objective evidence of painful motion and no additional loss of range-of-motion after repetitive testing. As to the Veteran’s right knee, the flexion was limited to 130 degrees and extension to 5 degrees. The examiner noted that there was evidence of pain that causes functional loss. Pain with weight bearing was also noted. No additional functional loss or range-of-motion after repetitive testing was noted. Joint stability testing showed normal findings bilaterally. There was no history of recurrent subluxation. Recurrent patellar dislocation was noted. The examiner noted that the Veteran had not had any meniscal conditions or total knee joint replacement. The examiner reported that the Veteran uses a brace on a regular basis. The examiner reported that there were contributing factors of disturbance of locomotion and interference with sitting and standing bilaterally. The examiner was unable to determine without mere speculation whether the pain, weakness, fatigability or incoordination significantly limit functional ability with repeated use over time. The examiner essentially reported that he could not estimate additional functional loss during flares because the Veteran was not being examined during a flare-up. Pursuant to September 2018 remand, the Veteran underwent another examination for his bilateral knee disability in October 2018. The Veteran did not report flare-ups or functional loss of either knee. On objective testing, there was no limitation of flexion or extension of the Veteran’s left and right knee. Pain on flexion was noted but the examiner concluded that it does not result in functional loss. No additional loss of range-of-motion after repetitive testing was noted. Joint stability testing showed no instability on anterior, posterior, medial, and lateral testing, bilaterally. There was no history of recurrent subluxation or recurrent patellar dislocation noted. Muscle strength was normal bilaterally. The examiner noted that the Veteran had not had any meniscal conditions or total knee joint replacement. The examiner reported that the Veteran uses a cane on a regular basis but noted no additional contributing factors of the Veteran’s disability of the left and right knee. The examiner also noted that he could not estimate additional functional loss during flares because the Veteran was not being examined during a flare-up. However, there was no evidence of pain on passive range of motion testing and in non-weight bearing joint. During an August 2019 VA examination for bilateral knee disability, the Veteran reported severe flare-ups that last for days or even weeks and are alleviated with a knee brace, hot weather, hot and cold pack, and pain medication. On objective examination of the left and right knee, flexion was limited to 70 degrees and there was no evidence of limitation of extension. Evidence of painful motion was noted. The examiner noted that pain and weakness cause functional loss on repetitive use over time. The examination was conducted during flare-ups, which significantly limit functional ability and flexion to 60 degrees bilaterally. No limitation of extension during flare-ups was noted. The examiner noted instability of station and disturbance of locomotion as additional contributing factors of the Veteran’s left and right knee disability. Muscle strength was normal bilaterally, and no ankylosis, history of recurrent subluxation or lateral instability were noted. Joint stability testing showed no instability on anterior, posterior, medial, and lateral testing, bilaterally. The examiner noted that the Veteran occasionally uses a brace and regularly uses a cane. The bilateral knee braces were for knee pain. Objective evidence of pain on passive range-of-motion and non-weight bearing testing was noted. The Veteran underwent another VA examination for his bilateral knee disability in October 2019. The Veteran reported weekly flare-ups that are moderate to severe in nature and last a few days. He reported that the flare-ups are precipitated by excessive walking, standing or sitting for a long period of time, mowing the grass or outside chores. He also reported pain at times even after a restful night of sleep. The flare-ups are alleviated with hot weather. On objective testing, left knee flexion was limited to 120 degrees and extension to zero degrees. Pain was noted on examination with flexion and extension of the left knee, but the examiner concluded that it does not result in functional loss. There was no evidence of limitation of right knee flexion or extension. No pain was noted on examination with flexion and extension of the right knee. There was evidence of pain with weight bearing but no pain on non-weight bearing testing bilaterally. No additional loss of range-of-motion after repetitive testing was noted. Joint stability testing showed no instability on anterior, posterior, medial, and lateral testing, bilaterally. There was no history of recurrent subluxation or recurrent patellar dislocation noted. The examiner noted that the Veteran had not had any meniscal conditions or total knee joint replacement. The examiner reported that the Veteran occasionally uses a brace. The Veteran used a left knee brace when he was more active. The examiner noted additional contributing factors of the Veteran’s disability of the left knee, including less movement than normal, weakened movement, disturbance of locomotion, and interference with sitting and standing. The examiner further noted that pain, weakness, fatigability lack of endurance in the left knee, significantly limit functional ability with flare-ups. Range of motion of the left knee during flare-ups was noted as flexion limited to 100 degrees and extension to 5 degrees. The examiner noted no additional contributing factors of the Veteran’s disability of the right knee. Range of motion of the right knee during flare-ups was noted as normal. The Board is cognizant that all the examinations during the appeal period may not include all necessary findings as required by Correia and Sharp. See, supra. However, the examinations together accurately and sympathetically reveal the Veteran’s functional limitations. The Board acknowledges contentions of the Veteran’s representative, arguing that the August and October 2019 VA examinations present contradictory findings. See October 2020 Appellant’s Post-Remand Brief. However, the Board finds that a remand to obtain another medical opinion is not warranted as the evidence during the entire period on appeal clearly reflects that the Veteran’s range of motion has at no point been limited to the degree needed for the already assigned 10 percent rating. The Board has additionally reviewed extensive VA treatment records throughout the period on appeal. Initially, the Board notes that the Veteran’s limitation of flexion of either knee does not warrant a compensable rating under DC 5260. As such, a separate rating under DC 5260 is not warranted for his left or right knee. Second, the Veteran does not meet the schedular criteria for a higher rating for his left or right knee under DC 5261. The Veteran’s extension has been limited to at most 5 degrees in the right knee, which does not warrant a rating in excess of 10 percent. The Board has also considered the Veteran’s reported impairment of function, such as pain and swelling, and additional limitations of motion due to pain. See VA treatment records. Nonetheless, even considering additional limitation of motion or function of the left and right knee due to pain or other symptoms such as weakness, fatigability, or incoordination (see 38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca, supra), the evidence does not show that the Veteran’s left or right knee disability has more nearly approximated the criteria for any higher rating at any time during the period on appeal. The Board also acknowledges the Veteran’s complaints of pain. See October 2018 Statement. However, the mere presence of pain does not, by itself, constitute functional loss. Rather, the pain must affect some aspect of the normal working movements of the body such as strength, speed, coordination or endurance. See Mitchell, supra. Put another way, while the Veteran has complained of pain, these complaints are adequately contemplated in the 10 percent rating he currently receives. The evidence does not support the assignment of compensable ratings under DC 5260 or 5261 for his left or right knee. It is likewise apparent that the criteria to assign separate 10 percent ratings has also not been met. VAOPGCPREC 9-2004 (Sept. 17, 2004). The Board points out that without complaints of pain and flareups, there would be no basis for the current 10 percent rating for the Veteran’s left or right knee disability. In this regard, it is important to note that the range of motion testing does not meet the requirements of a 10 percent evaluation for either flexion or extension, let alone a higher evaluation. Without consideration of the pain and flareups, the current evaluation could not be justified. DC 5257 addresses recurrent subluxation or lateral instability of the knee. In this case, the Veteran’s subjective complaints of having a sensation of buckling without provocation are acknowledged as well as the use of braces and a cane. It is also acknowledged that in June 2016 recurrent patellar dislocation was noted. However, the objective findings overall do not show that separate ratings for recurrent subluxation or lateral instability are warranted. The Board points out that the Veteran’s assistive devices have reportedly been used for pain and when active. Moreover, the medical reports consistently show that joint stability tests (anterior, posterior, medial, and lateral) have remained normal. Recurrent subluxation has not been demonstrated either. The Board finds that the objective evaluations and tests which consistently show normal findings are of more probative value and do not support the Veteran’s subjective complaints. The evidence also does not reflect that the Veteran has meniscal abnormalities of the right or left knees, which would provide the basis for an additional rating under DC 5258. VA examination reports consistently show that the Veteran has not had any meniscal conditions or impairment. In sum, following a review of the evidence, to include the statements of the Veteran and his representative, and treatment records throughout the extensive period on appeal, the Board finds that the claim of entitlement to increased disability evaluation in excess of 10 percent for the Veteran’s left and right knee disorder is denied. In reaching this conclusion, the Board has considered the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine does not apply. 38 U.S.C. § 5107(b). The claims are denied. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Kuzniar, 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.