Citation Nr: 21011924 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 18-16 207 DATE: March 3, 2021 ORDER Entitlement to a disability rating greater than 20 percent for service-connected right knee osteoarthritis with limited extension is denied. Entitlement to a disability rating greater than 10 percent for right knee osteoarthritis with limitation of flexion is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to March 14, 2017 is dismissed as moot. FINDINGS OF FACT 1. The Veteran's right knee osteoarthritis with limited extension is manifested by pain, swelling, fatigue, weakness, lack of endurance, and limitation of extension that does not more nearly approximate 20 degrees, to include consideration of functional loss. 2. The Veteran’s right knee osteoarthritis with limitation of flexion is manifested by pain, fatigue, weakness, lack of endurance, and limitation of flexion that does not more nearly approximate 30 degrees, to include consideration of functional loss. 3. The Veteran has been in receipt of a 100 percent disability rating for thoracic and lumbar strain with degenerative arthritis during the entire period on appeal (the rating period prior to March 14, 2017). CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for right knee osteoarthritis with limited extension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5003, 5261 (2020); 85 Fed. Reg. 76453, 76460 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5003). 2. The criteria for a rating in excess of 10 percent for right knee osteoarthritis with limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5003, 5260 (2020); 85 Fed. Reg. 76453, 76460 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5003). 3. The appeal as to the issue of entitlement to a TDIU prior to March 14, 2017 is dismissed as moot. 38 U.S.C. § 7105 (d)(5); 38 C.F.R. §§ 19.20, 19.22. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1974 to September 1974. This case comes to the Board of Veterans’ Appeals (Board) on appeal from rating decisions of the Agency of Original Jurisdiction (AOJ). In November 2017, the Veteran testified at a personal hearing before a Decision Review Officer (DRO) at the AOJ. A transcript of this hearing is of record. In a March 2018 rating decision, in pertinent part, the AOJ granted service connection for right knee osteoarthritis with limited extension, rated 10 percent disabling, and for right knee osteoarthritis with instability, rated 10 percent disabling, each effective July 12, 2017. The Veteran appealed for higher initial ratings. In a June 2019 decision, in pertinent part, the Board: (1) granted a 10 percent rating for right knee limitation of flexion; (2) granted a 20 percent rating for right knee limitation of extension; (3) denied an increase in a 10 percent rating for right knee instability; (4) denied a rating in excess of 40 percent for a thoracic lumbar spine disability; (5) granted a 30 percent rating for a cervical spine disability; and (6) granted entitlement to a TDIU, effective March 14, 2017. The Board remanded the issue of entitlement to a TDIU prior to March 14, 2017 (on an extraschedular basis under 38 C.F.R. § 4.16 (b)) to the AOJ for additional development. Subsequently, the Veteran filed an appeal of that decision with the United States Court of Appeals for Veterans Claims (Court). In a March 2020 joint motion for partial remand (JMPR), the parties stipulated that the Board erred when it failed to ensure VA’s duty to assist in providing an adequate medical examination; and in providing an adequate statement of reasons and bases. In an April 2020 order, the Court granted the parties’ motion, thereby vacating and remanding only the portion of the June 2019 Board decision that denied entitlement to: (1) an extraschedular rating for the Veteran’s service-connected cervical spine and thoracic and lumbar spine disabilities; (2) an initial rating in excess of 10 percent for right knee limitation of flexion; (3) an initial rating in excess of 20 percent for right knee limitation of extension; and (4) a TDIU based on the cervical spine disability alone, beginning March 14, 2017. The appeal as to the remaining issues was dismissed. Thus, the issue of entitlement to a higher rating for instability of the right knee is no longer in appellate status. In a September 2020 decision, the Board denied an increased rating for the cervical spine disability, granted a TDIU based on the cervical spine disability alone, effective March 14, 2017, and granted entitlement to special monthly compensation (SMC) at the (s) rate for the period from March 14, 2017 to September 27, 2017. The Board also remanded the issues of entitlement to higher ratings for the thoracic lumbar spine disability (on an extraschedular basis), right knee limitation of extension, and right knee limitation of flexion to the AOJ for additional development. The AOJ effectuated the Board's September 2020 rating decision in a September 2020 rating decision. In a December 2020 rating decision, the AOJ granted an increased 100 percent schedular rating for the thoracic lumbar spine disability, effective November 16, 2016, the date of service connection. This issue is no longer in appellate status, as the benefit sought on appeal has been fully granted. The AOJ also determined that he had a permanent and total disability rating from November 16, 2016. The case was subsequently returned to the Board. Increased Ratings 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. 1. Entitlement to a higher rating for right knee osteoarthritis with limited extension 2. Entitlement to a higher rating for right knee osteoarthritis with limitation of flexion The Veteran contends that he is entitled to higher ratings for service-connected right knee osteoarthritis with limitation of extension and flexion because he has pain, crepitus, decreased motion, weakness, giving way, swelling, knee warmth, flare-ups with increased pain, pain and swelling with prolonged sitting, standing, and walking, and his knees would not support his weight. See July 2017 VA outpatient treatment record, November 2017 RO hearing transcript, and correspondence from his representative dated in May 2018, November 2018, and February 2021. In November 2018, the representative contended that 30 percent ratings are warranted, and also contended that the Veteran had total lack of extension in his knee. The representative also contends that the Veteran reports intermittent falls due to his right knee disability because his right knee gives way, and therefore spends most of his time in bed because his knees do not support his weight. With regard to the Veteran’s contentions regarding symptoms of right knee instability and giving way resulting in falls, the Board reiterates that the issue of entitlement to a higher rating for service-connected right knee osteoarthritis with instability (rated under Diagnostic Code 5257) is not in appellate status because that appeal was dismissed in the April 2020 Court Order. In the March 2020 JMPR, the parties agreed that an October 2017 VA examination of right knee limitation of flexion and extension was inadequate as the examiner did not describe the functional loss from flare-ups in terms of range of motion measurements pursuant to Sharp v. Shulkin, 29 Vet. App. 26 (2017). The issues of entitlement to higher ratings for limitation of flexion and extension of the right knee were remanded for another VA examination. In September 2020, the Board remanded these issues for action consistent with the JMPR, another VA examination was performed in December 2020, and the case was returned to the Board. Throughout the rating period on appeal, the Veteran's right knee osteoarthritis with limited extension is rated as 20 percent disabling under Diagnostic Code 5261, and his right knee osteoarthritis with limitation of flexion is rated as 10 percent disabling under Diagnostic Codes 5003-5260. 38 C.F.R. § 4.71a. During the pendency of the appeal, effective February 7, 2021, VA revised the criteria for rating certain musculoskeletal disabilities. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453 (Nov. 30, 2020). The revised criteria apply to all applications for benefits received by VA on or after that date; however, only the old rating criteria may be applied prior to the effective date. Diagnostic Codes 5260 and 5261 were not revised. The rating criteria of Diagnostic Code 5003, pertaining to degenerative arthritis, were not revised other than to clarify that this Code pertains to degenerative arthritis other than post-traumatic. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76460 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5003). Formerly, this Code applied to arthritis, degenerative (hypertrophic or osteoarthritis). Diagnostic Code 5003 provides that degenerative arthritis established by x-ray findings will be rated based on limitation of motion under the appropriate diagnostic codes 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 codes, 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 Diagnostic Code 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 assigned for X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, and a 20 percent rating is assigned for X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. 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. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2020). Under the former criteria in effect prior to February 7, 2021, Diagnostic Code 5010 provides that arthritis due to trauma is to be rated as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5010 (2020). The revised version of Diagnostic Code 5010 provides that post-traumatic arthritis is rated as limitation of motion, dislocation, or other specified instability under the affected joint. If there are 2 or more joints affected, each rating shall be combined in accordance with §4.25. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76460 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5010). Although Diagnostic Code 5257, pertaining to knee instability, was revised effective February 7, 2021, that Code is not applicable in this case because the prior appeal for an increased rating for right knee instability was dismissed by the Court in its April 2020 Order, and the issue is not before the Board. The Veteran’s right knee osteoarthritis with limited extension is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5261, for limitation of extension of the leg. Under Diagnostic Code 5261, a noncompensable rating is warranted for extension limited to 5 degrees. A 10 percent rating is warranted for extension 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. A 50 percent rating is warranted for extension limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Full knee extension is to zero degrees. 38 C.F.R. § 4.71, Plate II. The Veteran’s right knee osteoarthritis with limitation of flexion is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5260, for limitation of flexion of the leg. Under Diagnostic Code 5260, a noncompensable rating is warranted for flexion limited to 60 degrees. 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. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Full knee flexion is to 140 degrees. 38 C.F.R. § 4.71, Plate II. 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). 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.”). 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 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. The Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for right knee osteoarthritis with limited extension, and is against a rating in excess of 10 percent for right knee osteoarthritis with limitation of flexion. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain, weakened movement, excess fatigability, repetitive use, pain during flare-ups, and pain during repetitive use over time. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that he has flare-ups if he walks too much or does any activity (see VA examination in October 2017), and increased pain and weakness with swelling and warmth (see VA examination in December 2020), would not result in limitation of motion more nearly approximating extension limited to 20 degrees, or more nearly approximating flexion limited to 30 degrees. On VA examination in October 2017, range of motion of the right knee was as follows: flexion to 90 degrees and extension to 10 degrees. The examiner stated that pain was noted on both flexion and extension, and caused functional loss in both flexion and extension. There was evidence of pain with weight-bearing, and objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. There was pain on passive range of motion testing, but no evidence of pain when the joint was used in non-weightbearing. After repetitive-use testing, there was no additional loss of function or range of motion. The examiner opined that pain and fatigue significantly limited functional ability with repeated use over a period of time, and pain limited functional ability during a flare-up, but did not describe this in terms of range of motion. The examiner indicated that the examination was neither medically consistent or inconsistent with the Veteran’s statements describing functional loss with repetitive use over time and during flare-ups. Pain was noted on range of motion of the opposing left knee, but it did not cause functional loss. The examiner stated that the Veteran had right knee limitation of motion and weakened movement due to decreased muscle strength (3/5) in the knee, but there was no atrophy. Muscle strength was also reduced in the left knee (4/5). The Veteran used a cane for bilateral knee instability and pain. An X-ray study showed osteoarthritis of both knees, more advanced on the right. The examiner opined that due to his bilateral knee conditions, he had mild limitations with prolonged walking and standing. In an October 2017 private orthopedic examination performed by M.D.A., a physical therapist, range of motion of the right knee was from 0 degrees of extension to 140 degrees of flexion. Pain on flexion started at 38 degrees, and pain on flexion after repetition was at 60 degrees, indicating that the Veteran had a greater degree of pain-free flexion after repetition. The examiner indicated that pain on extension started at 0 degrees. He indicated that the Veteran's altered gait was due to his rotated spine scoliosis, and he had poor sitting and standing tolerance from his back condition. On VA examination in December 2020, range of motion of the right knee was as follows: flexion to 90 degrees and extension to 10 degrees. Passive range of motion of the right knee was the same as active range of motion. The examiner stated that the Veteran had limitation of motion, so his mobility was limited. There was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue that was moderate and diffusely over the right knee, which can be consistent with right knee osteoarthritis with limited extension and flexion. There was evidence of pain with weight-bearing and when the knee is used in non-weight-bearing, and objective evidence of crepitus. After repetitive-use testing, there was no additional loss of function or range of motion. The examiner opined that pain, fatigue, weakness, and lack of endurance significantly limited functional ability with repeated use over a period of time and during flare-ups, and described the range of motion as from 10 to 90 degrees. The examiner indicated that the examination was medically consistent with the Veteran’s statements describing functional loss with repetitive use over time and during flare-ups. The examiner indicated that the Veteran had the following additional contributing factors of disability: swelling, instability, disturbance of locomotion, and interference with sitting and standing. He had pain and swelling with prolonged sitting, standing and walking. The examiner stated that the Veteran had decreased muscle strength (4/5) in the right and left knees, but there was no atrophy. The Board has also considered the other Diagnostic Codes pertaining to the knee and leg. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). A higher rating is not warranted under Diagnostic Code 5256, as the evidence reflects that there is no ankylosis of the right knee. Diagnostic Codes 5258, 5259, 5262 and 5263 are inapplicable in this case as the evidence does not show dislocation of the semilunar cartilage with frequent episodes of locking, pain and effusion of the joint, symptomatic removal of the semilunar cartilage, impairment of the tibia and fibula, or genu recurvatum. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claims for a rating in excess of 20 percent for right knee osteoarthritis with limited extension, and for a rating in excess of 10 percent for right knee osteoarthritis with limitation of flexion. In denying such ratings, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.   3. Entitlement to a TDIU prior to March 14, 2017 During the period prior to March 14, 2017, the Veteran's only service-connected disability was thoracic and lumbar spine strain with degenerative arthritis. The issue of entitlement to a TDIU on an extraschedular basis prior to March 14, 2017 was previously remanded by the Board in its June 2019 decision. At that time, the Board stated that although the Veteran has a complex disability picture, the 40 percent rating for the service-connected thoracic and lumbar spine disability facially indicates that he had a significant back disability prior to March 14, 2017 without consideration to any other disability, and his occupational experience is limited to physical labor. While the case was in remand status, in a December 2020 rating decision, the AOJ granted a 100 percent schedular disability rating for thoracic and lumbar strain with degenerative arthritis effective November 16, 2016, the date of his initial service connection claim, and his service-connected disability rating is permanent and total from that date. The Veteran and his representative were notified of this decision by a letter dated in January 2021. The AOJ advised the Veteran that the issue of entitlement to TDIU was moot, and the Veteran has not disputed this. A total disability rating for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16 (a).   A TDIU is considered a lesser benefit than a 100 percent rating, and the award of a 100 percent rating renders moot the issue of entitlement to a TDIU for the period when the 100 percent rating is in effect. As the claim for a TDIU prior to March 14, 2017 is moot, this claim is dismissed. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. L. Wasser, 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.