Citation Nr: 21013141 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 15-37 112 DATE: March 8, 2021 ORDER Entitlement to an evaluation in excess of 40 percent for right knee traumatic arthritis limitation of extension is denied. Entitlement to an evaluation in excess of 20 percent for right knee limitation of flexion is denied. FINDING OF FACT During the period on appeal, the Veteran’s right knee traumatic arthritis manifested with extension limited to, at worst, 35 degrees and flexion limited to, at worst, 40 degrees. CONCLUSIONS OF LAW 1. The criteria for entitlement to an evaluation in excess of 40 percent for limitation of right knee extension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.71(a), Diagnostic Code 5261. 2. The criteria for entitlement to an evaluation in excess of 20 percent for limitation of right knee flexion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.71(a), Diagnostic Code 5260. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty in the United States Navy from February 1977 to March 1982 and from October 1983 to October 1997. This matter comes before the Board of Veterans Appeals (Board) on appeal from an April 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously remanded by the Board in October 2018, to obtain a VA examination that assessed both active and passive range of motion of the Veteran’s knee, in weight-bearing and non-weight-bearing conditions, and expressed an opinion regarding additional limits on functional ability on repeated use or during flare-ups. An examination was conducted in July 2019 that substantially complied with the instructions of this remand, and the Board may therefore proceed with a decision. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Following the July 2019 VA examination, the RO issued a new decision increasing the Veteran’s evaluation for right knee traumatic arthritis based on limitation of extension from 10 percent to 20 percent, and added an evaluation of 40 percent based on limitation of flexion. The effective date of the increased rating is August 19, 2013, the date the Veteran’s claim for an increased rating was received. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Musculoskeletal disability ratings generally Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which are based on the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes (DCs). 38 U.S.C. § 1155; 38 C.F.R. §4.1. 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. It is essential that the examination on which ratings are based adequately portrays the anatomical damage, and the functional loss, with respect to these elements. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is also intended to recognize painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. §4.59. 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. 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 flare-ups from the veterans themselves, when a flare-up is not observable at the time of examination. Increased rating for right knee traumatic arthritis Post-traumatic arthritis is rated based on limitation of motion, dislocation, or other specified instability under the affected joint. 38 C.F.R. § 4.71a, DC 5010. Range of motion of the knee is measured in flexion and extension, under DCs 5260 and 5261. For VA purposes, a normal range of knee motion is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. Evaluations for knee impairment can also be assigned due to ankylosis, recurrent subluxation or instability, removal of semilunar cartilage, dislocated semilunar cartilage, malunion/nonunion of the tibia and fibula, or genu recurvatum; however, the Veteran has not been found to have these conditions, therefore these Diagnostic Codes are not applicable and will not be further discussed. See 38 C.F.R. § 4.71a, DCs 5256, 5257, 5258, 5259, 5262, 5263. In July 2019, pursuant to the Board’s remand, the Veteran was afforded a VA examination to assess the severity of her right knee disability. The July 2019 VA examiner assessed both active and passive range of motion of the Veteran’s knees, in weight-bearing and non-weight-bearing conditions, and conducted repetitive use testing to assess additional loss of function or range of motion. The examiner also expressed an opinion on additional functional loss during flare-ups, based on a review of the Veteran’s medical records and the Veteran’s own description of her flare-ups. The examiner performed joint instability testing and found no evidence of instability in either of the Veteran’s knees. The most limited range of motion observed in the Veteran’s right leg during the July 2019 examination was during the weight-bearing passive range of motion test, which showed a range of 20 degrees extension to 40 degrees flexion. The examiner opined that, during flare-ups, the Veteran’s right knee would have a range of motion from 35 degrees extension to 55 degrees flexion. Functional loss from pain was considered in this determination. The other medical evidence on record, to include the Veteran’s VA treatment records, does not show any greater limitation of motion. For the Veteran to meet the criteria for the next highest rating for limitation of extension (50 percent, the maximum rating available under DC 5261), her right leg extension would have to be limited to at least 45 degrees. The criteria for the next highest rating for limitation of flexion (30 percent) under DC 5260 require leg flexion to be limited to 15 degrees or less. The medical evidence of record does not show that the Veteran’s right knee extension has ever been limited beyond 35 degrees, or that her right knee flexion has ever been limited to less than 40 degrees, during the period on appeal. Therefore, the Veteran does not meet the criteria for increased ratings for right knee extension or flexion. The Board has considered whether there was any additional functional loss not contemplated in the evaluation for the Veteran’s right knee disability. See 38 C.F.R. §§ 4.40, 4.59 (2016); see also DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). The Board specifically acknowledges multiple credible statements submitted by the Veteran and individuals who know her, as well as medical records which document the Veteran’s recurring treatments for knee pain. However, the Board finds that this evidence is consistent with the rating assigned, and that functional loss due to pain (including during flare-ups) was accounted for in the July 2019 VA examination. The Veteran is currently assigned the second-highest possible ratings for both knee flexion and extension, reflecting the significant level of impairment the Veteran and her friends have described in their lay testimony. Resolving all reasonable doubt in the Veteran’s favor, the preponderance of the evidence is against finding entitlement to a higher evaluation for her right knee disability, and her claims must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § §§ 4.7, 4.21. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Shermila Sundquist 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.