Citation Nr: 21012935 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 15-00 671 DATE: March 8, 2021 ORDER Entitlement to a rating in excess of 10 percent for right knee degenerative arthritis is denied. Entitlement to a rating in excess of 10 percent for left knee degenerative arthritis is denied. REMANDED Entitlement to service connection for left hip arthritis claimed as left hip and pelvis disorder, to include as secondary to service connected right and left knee degenerative arthritis is remanded. Entitlement to total disability based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran’s right knee degenerative arthritis manifested as flexion limited to 70 degrees and full extension, at worst, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups without ankylosis, instability, symptomatic removal of the semilunar cartilage, malunion or nonunion of the tibia and fibula or genu recurvatum. 2. Throughout the period on appeal, the Veteran’s left knee degenerative arthritis manifested as flexion limited to 70 degrees and full extension, at worst, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups without ankylosis, instability, symptomatic removal of the semilunar cartilage, malunion or nonunion of the tibia and fibula or genu recurvatum. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for a right knee degenerative arthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1—4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260. 2. The criteria for a rating in excess of 10 percent for a right knee degenerative arthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1—4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1977 to June 1980. These matters come to the Board of Veterans’ Appeals (Board) on appeal from August 2012 and October 2012 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The claims were remanded by the Board in May 2018 for additional development. The issue of entitlement to a TDIU has been raised by the record at various instances. The issue has not yet been adjudicated by the Agency of Original Jurisdiction (AOJ). Nevertheless, as will be discussed below, the Board has jurisdiction over this claim. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Increased Rating 1. Entitlement to a rating in excess of 10 percent for right knee degenerative arthritis is denied. 2. Entitlement to a rating in excess of 10 percent for left knee degenerative arthritis is denied. Disability ratings are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. In determining the propriety of an initial disability rating, the evidence since the effective date of the grant of service connection must be evaluated. Fenderson v. Brown, 12 Vet. App. 119, 126 27 (1999). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In all cases, the Board must also consider staged ratings, which are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods. Hart v. Mansfield, 21 Vet. App. 505, 509 10 (2007). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran’s service-connected disability. 38 C.F.R. § 4.14. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. When an evaluation of a disability is based upon limitation of motion, the Board must also consider, in conjunction with the otherwise applicable diagnostic code, any additional functional loss the Veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy from disuse. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the Veteran. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in 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. In Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011), the Court of Appeals for Veterans Claims (Court) held that, although pain may cause a functional loss, “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.” Rather, pain may result in functional loss, but only if it limits the ability “to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance.” Id., quoting 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). In this regard, 38 C.F.R. § 4.59 requires that “[t]he 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.” Correia v. McDonald, 28 Vet. App. 158 (2016). Further, 38 C.F.R. § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable or malaligned joints or periarticular regions, regardless of whether the Diagnostic Code under which the disability is evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). The Veteran contends that he is entitled to a higher rating for his right and left knee disabilities based upon his functional loss caused by pain under 38 C.F.R. § 4.40. In the August 2012 rating decision, the RO increased the Veteran’s rating to 10 percent for his right and left knee degenerative arthritis under Diagnostic Code 5003-5260, to represent the arthritis and painful motion in the knees. Nevertheless, the Board will consider all potentially applicable diagnostic codes in evaluating the Veteran’s entitlement to a rating in excess of 10 percent. Limitation of motion of the knee is rated under diagnostic codes 5260 and 5261. Under Diagnostic Code 5260, a minimum 10 percent rating is warranted for flexion limited to 45 degrees, while a 20 percent rating is warranted for flexion limited to 30 degrees. Under Diagnostic Code 5261, a minimum 10 percent rating is warranted for extension limited to 10 degrees, while a 20 percent rating is assigned for extension limited to 15 degrees. Normal range of motion for the knee is from 140 degrees flexion to zero degrees extension. 38 C.F.R. § 4.71, Plate II. Separate ratings can be assigned for knee disabilities when none of the symptomatology overlaps and the separate rating is based on additional disabling symptomatology; this includes separate ratings based on limitation of flexion (Diagnostic Code 5260), limitation of extension (Diagnostic Code 5261), lateral instability or recurrent subluxation (Diagnostic Code 5257), and meniscal conditions (Diagnostic Codes 5258, 5259). See VAOPGCPREC 23-97, 62 Fed. Reg. 63,603 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,703 (1998); VAOPGCPREC 9-2004; 69 Fed. Reg. 59,988 (2004); Lyles v. Shulkin, 29 Vet. App. 107 (2017). The Board notes that effective February 7, 2021, the criteria for schedule of ratings for the musculoskeletal system was revised. See 86 Fed. Reg. 8142 (Feb. 4, 2021) (codified at 38 C.F.R. pt. 4). In the present case, the Veteran’s claims for increased rating stem from a claim filed in June 2011 and there is no relevant evidence related to either knee dated after February 7, 2021. Moreover, Diagnostic Codes 5260 and 5261 are unchanged under the revised criteria. While Diagnostic Code 5257 for recurrent subluxation and lateral instability as well Diagnostic Code 5262 for impairment of the tibia and fibula were revised, the Veteran has not demonstrated such functional impairments. The Veteran filed his increased rating claim in June 2011. He underwent a VA examination in April 2012. The examiner reported a diagnosis of degenerative arthritis of both knees. The Veteran reported flare-ups in which his knees swell and give out in pain. Upon physical examination, right knee flexion was noted to 70 degrees with pain at 70 degrees, extension was to zero degrees with pain at zero degrees. Left knee flexion was to 70 degrees with pain at 70 degrees, and extension to zero degrees without painful motion. There was no loss of range of motion upon repetitive use test. Functional limitations include pain on movement in both knees. Muscle strength was decreased at 4/5. Stability tests were noted as “unable to test.” There was no evidence of patellar subluxation, meniscal conditions, or joint replacement or other surgical procedure. The Veteran reported he regularly uses a cane. In an August 2013 statement, the Veteran asserted that he has pain and some numbness and that he also loses his balance because of his knee conditions. The Veteran underwent another VA examination in June 2019. The examiner reported a diagnosis of degenerative arthritis of both knees. The Veteran reported he has pain, swelling at times, and tingling behind knees. He denied flare-ups but reported his walking is limited to less than two hours per day, he uses a walker for ambulation, and he cannot squat. Upon physical examination, flexion was noted to 90 degrees with extension to zero degrees bilaterally. The examiner reported pain on flexion and extension. Localized tenderness or pain on palpation was noted as moderate due to arthritis bilaterally. There was evidence of pain on weight bearing and crepitus bilaterally. There was no objective evidence of pain on non-weight bearing. Upon repetitive use testing, there was no additional loss of range of motion. The examination is medically consistent with the Veteran’s statements describing functional loss with repetitive use over time. Pain, weakness, fatigability and lack of endurance significantly limit functional ability with repeated use over a period of time. The examiner described the range of motion as flexion to 90 degrees and extension to zero. Muscle strength testing was decreased as 4/5. There was no atrophy or ankylosis. Joint stability testing was normal. The Veteran reported he regularly uses a cane. In a February 2020 private treatment note, the examiner noted right and left knee with osteoarthritic changes and decreased range of motion. VA progress notes are consistent with the VA examinations. In April 2013, the Veteran reported limping due to pain in the knees. In February 2014, the examiner noted left knee mild swelling. In another February 2014 progress note, the Veteran reported pain in the left knee worse at the back of the knee and he reported some numbness. In a May 2019 note, the Veteran reported left knee pain on and off. The examiner noted he has arthritic changes noted on X-ray. Based on the foregoing, the Board finds a rating in excess of 10 percent is not warranted for right and left knee disabilities based upon limitation of motion. The Veteran’s flexion was limited to no less than 70 degrees including as a result of pain, weakness, fatigability, and incoordination, during flare-ups, or after repetitive use. See DeLuca v. Brown, supra; Mitchell v. Shinseki, supra. In evaluating this claim, the Board has considered the Veteran’s reports of symptoms and functional loss due to pain. However, even considering the Veteran’s reports of symptoms, there was no evidence of additional limitation on repetitive use or flare-ups, as reflected in the objective medical evidence, there is no evidence that the Veteran’s symptoms result in limitation of motion more nearly approximating flexion limited to 30 degrees to warrant a higher rating under Diagnostic Code 5260. Pursuant to VAOPGCPREC 9-04, the Board has also considered whether the Veteran is entitled to a higher or separate rating under Diagnostic Code 5261 pertinent to limitation of extension of the knee. As indicated previously, a 10 percent rating requires a finding of extension limited to 10 degrees. The Veteran’s range of motion testing revealed normal extension to zero degrees consistently throughout the appeal, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups. See DeLuca, supra; Mitchell, supra. Therefore, a separate rating based on limitation of extension is not warranted. In this regard, the Board notes that, while the Veteran reported having flare-ups during the April 2012 VA examination, the examiner did not estimate the degree of any additional loss in range of motion during flare-ups. During the April 2012 and June 2019 examinations, physical activity, such as repetitive use testing, revealed no additional loss of function. Therefore, the Board finds no prejudice to the Veteran in this regard, as the findings noted in the VA examination reports likely represent the functional loss experienced by the Veteran during flare-ups, i.e., after physical activity. Therefore, a rating higher than 10 percent is not warranted based upon limitation of motion under Diagnostic Code 5260 and 5261. 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). Although the Veteran reported he loses his balance because of his knee conditions, the April 2012 and June 2019 showed no evidence of instability. As such, the Board does not find that a separate rating is warranted under Diagnostic Code 5257 for instability of either the right or left knee. The Board also notes that the preponderance of the evidence does not reflect that the Veteran’s right and/or left knee degenerative arthritis was manifest by ankylosis, recurrent subluxation, dislocation of semilunar cartilage, symptomatic removal of the semilunar cartilage, malunion and nonunion of the tibia or fibula, or genu recurvatum. Therefore, Diagnostic Code 5256, 5258, 5259, 5262, and 5263 are not for application in this case. Here, the Board has considered the effects of repeated use over time and flare-ups along with the adequacy of the VA examinations in light of the Court’s holdings in Correia and Sharp. See Correia v. McDonald, supra, and Sharp v. Shulkin, supra. In this case, the April 2012 VA examination was conducted prior to Correia and Sharp and provides only partial information as described above. The June 2019 VA examination measured active and passive range of motion and range of motion on repetitive use testing as well as range of motion on weight-bearing and nonweight-bearing; the effect of pain on range of motion is described above. With regards to flare-ups, the Veteran denied experiencing such flare-ups in the June 2019 VA examination. The Veteran did report experiencing flare-ups in the April 2012 VA examination but did not report additional functional loss associated with the flare-ups. Sharp v. Shulkin, supra. Therefore, April 2012 and June 2019 VA examinations are adequate for adjudication purposes. In reaching its conclusions, the Board acknowledges the Veteran’s belief that his right and left knee disabilities are more severe than is reflected by the currently assigned disability ratings. The Board must consider the entire evidence of record when analyzing the criteria laid out in the rating schedule. While the Board recognizes that the Veteran is competent to provide evidence regarding his symptomatology, he is not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Ultimately, the Board finds the medical evidence in which professionals with medical expertise examined the Veteran, acknowledged his reported symptoms, and described the manifestations of such disability in light of the rating criteria to be more persuasive than his reports regarding the severity of his right and/or left knee disorder. The Board notes that a stage rating is not warranted. See Hart v. Mansfield, supra. Furthermore, the Veteran has not raised any other issues, nor has any other issues been reasonably raised by the record, with regard to the increased rating claim adjudicated herein. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Therefore, disability ratings in excess of 10 percent rating for right or left knee degenerative arthritis are not warranted. In reaching the foregoing determinations, the Board has applied the benefit of the doubt doctrine and resolved all doubt in the Veteran’s favor. However, insofar as the Board has denied higher ratings, the preponderance of the evidence is against such aspects of the claim. Therefore, the benefit of the doubt doctrine is not applicable and the increased rating claims must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for left hip arthritis claimed as left hip and pelvis disorder is remanded. In a September 2020 appellant brief, the Veteran’s representative argued that the Veteran’s left hip disorder is secondary to his service-connected right and left knee disabilities. The Board cannot make a fully-informed decision on the issue of service connection because no VA examiner has opined whether the Veteran’s left hip and pelvis disorder was caused or aggravated by service-connected knee disabilities. On remand, an etiology opinion addressing this newly raised theory of entitlement should be obtained. 2. Entitlement to TDIU is remanded. In a February 2013 VA progress note, the Veteran has reported that he is currently unemployed due to this painful knees. Additionally, in an August 2013 statement, the Veteran stated that he was seeking an increased rating to off-set the pain and loss of job opportunities because of his conditions. At this time, the Board does not have enough information to decide the claim on entitlement to a TDIU. Therefore, the matter should be remanded to the RO for appropriate development and adjudication in accordance with the holding in Rice. The matters are REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Conduct the appropriate development for adjudication of a claim of entitlement to a TDIU, to specifically include obtaining a VA Form 21-8940. 3. Following the receipt of outstanding records, an addendum opinion should be obtained to determine the nature and etiology of the Veteran’s claimed left hip arthritis. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. The need for further physical examination is left to the discretion of the examiner. Thereafter, the examiner is asked to furnish an opinion with respect to the following question: Was is it at least as likely as not (a probability of 50 percent or greater) that a left hip disorder is caused or aggravated by the Veteran’s right and/or left knee degenerative arthritis? The examiner must indicate that the record was reviewed. A complete rationale should be provided for all opinions given and must reflect a thorough review of the record. KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. M. Donahue Boushehri, 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.