Citation Nr: 21015594 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 15-43 242 DATE: March 17, 2021 ORDER Entitlement to an initial rating greater than 10 percent prior to June 4, 2020 for degenerative changes of the left knee is denied. FINDING OF FACT Prior to June 4, 2020, the preponderance of the evidence shows that the Veteran’s left knee disability did not manifest as limitation of flexion to 30 degrees or extension to 15 degrees nor is there x-ray evidence showing arthritic changes involving two or more major joints or two or more minor joint groups. CONCLUSION OF LAW The criteria for an initial rating greater than 10 percent prior to June 4, 2020 for degenerative changes of the left knee have not been met.38 U.S.C. §§ 1155, 5130A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5010-5261. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1969 to December 1995. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2015 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Board remanded this issue in August 2018 and August 2020. The Board directed the RO to obtain any outstanding medical records and an addendum opinion describing functional impairments of the Veteran’s left knee disability due to flare-ups. There has been substantial compliance with the August 2020 remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). The issue on appeal was characterized to include entitlement to a disability rating greater than 30 percent from August 1, 2021 for degenerative changes of the left knee. Currently, the Veteran’s disability is assigned a 100 percent disability pursuant to 38 C.F.R. § 4.30. A temporary total disability rating will be assigned under 38 C.F.R. § § 4.30 when it is established by report at hospital discharge or outpatient release that treatment of a service-connected disability resulted in (1) surgery necessitating at least one month of convalescence, (2) surgery with severe post-operative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body case, or (3) the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches, or immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § § 4.30. A temporary total disability rating will be assigned, effective from the date of a hospital admission and continuing for a period of 1, 2, or 3 months from the first day of the month following such hospital discharge, if the hospital treatment of a service-connected disability results in 1 of the 3 scenarios just noted. 38 C.F.R. § § 4.30 (a). In this case, a minimum evaluation of 30 percent is granted following prosthetic replacement of the knee joint. A higher evaluation of 60 percent is not warranted unless evidence demonstrates chronic residuals consisting of severe painful motion or weakness in the affected extremity. As there is no method to assess the future level of the Veteran’s left knee disability beyond August 1, 2021 and the Veteran’s current rating is 100 percent, the issue whether a rating greater than 30 percent from August 1, 2021 for the Veteran’s left disability is warranted is not before the Board. As such, the Board has recharacterized the issue above to reflect the current issue on appeal. Entitlement to an initial rating greater than 10 percent prior to June 4, 2020. The Veteran contends his service-connected left knee disability warrants an initial disability rating greater than 10 percent. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § § 4.2. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. 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. 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 United States 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 DC under which the disability is evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). Prior to June 4, 2020, the Veteran’s left knee disability was granted a 10 percent disability rating pursuant to Diagnostic Codes (DCs) 5010-5261. Generally, hyphenated diagnostic codes are used when an unlisted disability is at issue. 38 C.F.R. § 4.27. Use of the second diagnostic code helps provide further detail regarding the origins of the unlisted disability, the bodily functions affected, the symptomatology, and anatomical location. Id. Additionally, the diagnostic code following the hyphen is the diagnostic code by which the disability is evaluated. Id. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov 30, 2020). These amendments revised Diagnostic Codes “to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities.” Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Kuzma, 341 F. 3d 1327. Therefore, the Board will consider the Veteran’s claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021, and the criteria that is more favorable to the Veteran will be applied. Prior to the regulatory change, arthritis due to trauma, substantiated by X-ray findings, is rated as degenerative arthritis. Degenerative arthritis when established by X-ray findings will be rated on the basis of 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 Code, 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 Code 5003. A 20 percent rating is applied where there is X-ray evidence of arthritic changes involving two or more major joints or two or more minor joint groups. 38 C.F.R. § 4.71a, DC 5003, 5010. Under Diagnostic Code 5260, limitation of knee flexion is rated 30 percent disabling where flexion is limited to 15 degrees; 20 percent disabling where flexion is limited to 30 degrees; 10 percent disabling where flexion is limited to 45 degrees; and noncompensable where flexion is limited to 60 degrees. 38 C.F.R. § 4.71a. Under Diagnostic Code 5261, limitation of knee extension is rated 50 percent disabling where extension is limited to 45 degrees; 40 percent disabling where extension is limited to 30 degrees; 30 percent disabling where extension is limited to 20 degrees; 20 percent disabling where extension is limited to 15 degrees; 10 percent disabling where extension is limited to 10 degrees; and noncompensable where extension is limited to 5 degrees. Id. VA’s General Counsel has held that separate ratings may be warranted for limitation of flexion and extension when the criteria for compensable ratings are met for such limitation under DCs 5260 and 5261. VAOPGCPREC 9-2004. As of February 7, 2021, under the amended criteria, DC 5010 assigns a disability rating pursuant to 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 38 C.F.R. § 4.25. Although the portion of the rating schedule that addresses the musculoskeletal system was revised effective February 7, 2021, DC 5260 and 5261 were not changed. The Veteran underwent a VA examination in February 2015. The Veteran reported he did not experience flare-ups of the left knee and did not have any functional loss or impairment of the left knee. Initial range of motion testing measured flexion at 0 to 115 degrees and extension from 115 degrees to 10 degrees. The examiner noted that the range of motion did not contribute to functional loss. No pain was noted during the examination. Specifically, the examiner found no evidence of pain with weight bearing, localized tenderness or pain on palpation of the left knee or associated soft tissue, or objective evidence crepitus. The Veteran performed repetitive use testing without additional loss of function or range of motion. The Veteran was examined immediately after repetitive use over time. The examiner was unable to state whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated used over a period of time without speculation because he was unable to make an objective determination. The examiner found no evidence of reduction in muscle strength, muscle atrophy, ankylosis, instability, recurrent subluxation, meniscal condition, or recurrent effusion. The Veteran did not use any assistive devices as a normal mode of locomotion. The examiner stated the Veteran suffered from medial tibial stress syndrome that did not affect range of motion of the knee. The examiner stated that the Veteran’s left knee disability limited prolonged standing, walking, and repetitive squatting. The Veteran’s disability did not significantly impact his work which did not involve physical labor or prolonged standing or walking. The Veteran underwent a VA examination in October 2016. The Veteran again denied experiencing flare-ups. He reported functional impairment of the right knee but did not initially discuss issues with his left knee disability. This examination report limited its discussion to the Veteran’s right knee and merely stated that the left knee was not tested for range of motion “since it was not undamaged.” In August 2019, the Veteran reported experiencing flare-ups of the knee. He stated his knees hurt and he has fallen down the stairs as a result of this pain. The August 2019 VA examiner noted that initial range of motion testing measured flexion at 0 to 120 degrees and extension from 120 degrees to 0 degrees. The examiner noted pain on flexion, extension, weight bearing, and palpation over the global knee. The examiner also found objective evidence of crepitus. The Veteran performed repetitive use testing without additional functional loss or range of motion. The Veteran was not examined immediately after repetitive use over time. The examiner explained that the examination is neither medically consistent or inconsistent with the Veteran’s statements describing functional loss with repetitive use over time. The examiner stated that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time. The Veteran was not examined during a flare-up. The examiner explained that the examination is neither medically consistent or inconsistent with the Veteran’s statements describing functional loss during flare-ups. The examiner noted pain limited functional ability. The examiner was unable to describe functional limitation in terms of range of motion. The examiner stated that after reviewing the Veteran’s records, examining the left knee, and listening to his complete history and current subjective complaints the examiner had no basis to offer additional loss of function or range of motion during a flare-up or with repetitive use over time. The 2019 examiner found no evidence of reduction in muscle strength, muscle atrophy, ankylosis, instability, recurrent subluxation, meniscal condition, recurrent effusion, recurrent patellar dislocation, shin splints, stress fractures, chronic exertional compartment syndrome, or any other tibial and/or fibular impairment. The Veteran did not use any assistive devices as a normal mode of locomotion. The examiner found x-ray evidence of left knee degenerative or traumatic arthritis. The examiner noted that the Veteran has moderate impairment in activities such as prolonged standing and walking, squatting, stair climbing, and high impact activities. An October 2020 VA examiner reviewed the Veteran’s records and stated that during flareups the Veteran had consistent decrease in range of motion secondary to pain. He is unable to ambulate or stand on his feet longer than 30 minutes and is no longer able to perform activities that would have any impact on his lower extremities to include walking longer distances, hiking, climbing stairs, repetitive squatting and jumping. During flares after 2019 it appears that some of his activities of daily living to include driving long distances would be uncomfortable and performing work-related duties that would require him to be on his feet or ambulate longer than 30 minutes. From 2016 to 2019 VA medical records and VA examination reports note the Veteran has had worsening of his symptoms to include increased pain that is more constant and without changes in his range of motion; however, there were reports of significant impact in his quality of life. In June 4, 2020 he underwent a total knee arthroplasty secondary to severe worsening chronic degenerative joint disease. The Veteran had full series x-rays of his knees in 2015, 2016, 2017, and 2019 showing no significant change in this interval. He has moderate to severe tricompartmental degenerative arthritis. VA medical records from 2015 to February 2018 show no evidence of flare-ups. The record notes that the Veteran reported that he still rides his tandem bike with his wife up to 40 miles with some pain that is tolerable, continues to do yoga, and goes on walks. The Veteran reported using Aleve for pain. Medical records show that he underwent a total knee arthroplasty on June 4, 2020. Prior to surgery, he was offered surgery but declined after getting platelet rich plasma/PRP injections to his knee which showed some improvement. The Veteran’s 2015 VA examination described range of motion in flexion 0 to 115 degrees, and extension 115 degrees to 10 degrees. He had no pain or crepitus on examination, and reported no functional loss. He was still able to maintain his activities of daily living, exercise with a tandem bike and perform all his duties of employment. The examiner noted that the Veteran underwent the same examination for bilateral knee condition in 2016 which reported the results of his right knee disability. In 2019 the Veteran underwent a VA examination again which showed daily constant pain increased from the previous examinations. He reports that during flareups he is unable to stand or ambulate for longer than 30 minutes without resting. The examiner found that his range of motion improved from 0 to 110 degrees in flexion, and extension 110 degrees to 0 degrees. His x-ray report at this time was unchanged from the previous 3 studies in 2015, 2016, 2017, 2019. The Veteran’s records clearly show a decline from 2016-2019 where initially in 2016 he was riding his bike quite a distance with his wife and his knee pain had minimal impact on his quality of life and his ability to perform his activities of daily living. From 2017 to 2019 he had a consistent decline in his clinical status to include intermittent pain to increased daily constant pain that is 5/10, with flare-ups that can be as high as 7 or 8/10, requiring surgical intervention. Based on the foregoing, the Veteran is not entitled to an initial rating in excess of 10 percent for his service-connected left knee disability pursuant to the current or former criteria rating. Range of motion testing has consistently shown extension measurements exceeding 15 degrees. There is also no basis for the assignment of a separate compensable rating based on limitation of flexion. Limitation of flexion to 30 degrees was not shown. To the contrary, even with consideration of pain, pain on motion, and functional loss, extension would only be limited to 110 degrees. The Board has also considered whether higher ratings for the Veteran’s left knee disability is appropriate under 38 C.F.R. §§ 4.40, 4.45, and 4.59, and concluded that such is not warranted. Pain on flexion and extension was noted on examination. However, limitation of extension still measured well in excess of 15 degrees and flexion measures in excess of 30 degrees. See 38 C.F.R. § 4.71a; DC 5261. The Court has also established that flare-ups must be considered. Sharp v. Shulkin, 29 Vet. App. 26 (2017). Guidance on how to evaluate flare-ups has not been particularly clear. However, the Board finds overall wisdom in Mitchell. Flare-ups must be quantifiable and must result in limitation of motion or function beyond that contemplated by the already provided evaluation. With that in mind, consideration has been given the reports of flare-ups during the 2019 VA examination and medical records. The 2019 VA examiner found that pain significantly limited functional ability with flare-ups. The examiner, however, was unable to offer additional loss of function or motion in terms of range of motion despite considering the Veteran’s subjective statements, current complaints, review of medical records, and in-person examination. This evidence, however, demonstrates that the Veteran’s range of motion would be well in excess of the requirement for a 20 percent disability rating. As to the lay statements describing pain, the evidence does not demonstrate additional functional limitation more closely approximating the criteria for a higher rating. Such would not warrant a higher evaluation. The contemporaneous treatment records contain little, if any, findings pertaining to flare-ups much less information regarding the Veteran’s functional ability during a flare-up or after repeated use over time. Importantly, the 2020 addendum report showed that the Veteran’s range of motion improved in the time between the 2015 and 2019 VA examinations. Furthermore, the x-ray images remained unchanged from 2015 to 2019, despite an increase in reported pain and a minimal decrease on the quality of his life and activities of daily living. In sum, 38 C.F.R. § 4.1 provides that the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illness proportionate to the severity of the several grades of disability. The report of flare-ups in 2019 are not of sufficient duration or severity in functional impairment to warrant a change in evaluation. The 10 percent rating prior to June 4, 2020 was assigned by the RO under the rating criteria for DC 5261. To that end, the Board has considered the application of a separate compensable rating under DC 5010 as the Veteran suffers from arthritis. However, as discussed, the pain and limited ROM associated with arthritis are already accorded for in relation to his current 10 percent rating. Therefore, to provide for an additional 10 percent rating beyond his current 10 percent rating would equate to impermissible pyramiding. 38 C.F.R. § 4.14. The Board has also considered the lay statements that the Veteran’s left knee disability warrants a higher rating and acknowledges that the Veteran is competent to report symptoms of pain. Layno v. Brown, 6 Vet. App. 465 (1994). Lay witnesses are not, however, competent to identify a specific level of disability according to the applicable diagnostic code. Such competent evidence concerning the nature and extent of the Veteran’s service-connected left knee disability has been provided by the VA medical professionals who examined him. The medical findings adequately address the criteria under which this disability is evaluated. The Board accords the objective medical findings greater weight than subjective complaints of increased symptomatology. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). (Continued on the next page)   Accordingly, the Board finds that the claim of entitlement to a disability rating greater than 10 percent prior to June 4, 2020 for a left knee disability must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable. The Board has considered the applicability of other rating criteria for evaluating the musculoskeletal disabilities of the right knee under 38 C.F.R. § 4.71a; however, there is no basis for assigning a higher or separate compensable rating under an alternate diagnostic code such as DCs 5256, 5259, 5262 or 5263. There is simply no evidence of ankylosis of the right knee, impairment of the tibia or fibula, or genu recurvatum. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mohammad Mahmoudi, 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.