Citation Nr: 21020844 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 17-04 828 DATE: April 8, 2021 ORDER Entitlement to an increased evaluation exceeding 10 percent for service-connected right knee osteoarthritis is denied. Entitlement to an increased evaluation exceeding 10 percent for service-connected left knee osteoarthritis is denied. REMANDED Entitlement to an increased evaluation exceeding 20 percent for service-connected degenerative joint disease and degenerative disc disease of the lumbar spine ("lumbar spine disability") is remanded. FINDINGS OF FACT 1. Throughout the rating period on appeal, the Veteran’s right knee osteoarthritis has manifested, at worst, to flexion limited to 105 degrees. 2. Throughout the rating period on appeal, the Veteran’s left knee osteoarthritis has manifested, at worst, to flexion limited to 105 degrees. CONCLUSIONS OF LAW 1. The criteria for entitlement to an increased evaluation exceeding 10 percent for service-connected right knee osteoarthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.1, 4.3, 4.7, 4.40, 4.45, 4.49, 4.71a, Diagnostic Code (DC) 5003-5260. 2. The criteria for entitlement to an increased evaluation exceeding 10 percent for service-connected left knee osteoarthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.1, 4.3, 4.7, 4.40, 4.45, 4.49, 4.71a, Diagnostic Code (DC) 5003-5260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from January 1996 to July 2004. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Board issued a decision denying the Veteran’s claim for an increased rating exceeding 20 percent for her lumbar spine disability; and remanded the claims for entitlement to an increased rating exceeding 10 percent for bilateral knee osteoarthritis. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (CAVC), resulting in an October 2020 Joint Motion for Partial Remand (JMPR), which partly vacated the August 2019 Board decision that denied entitlement to an evaluation exceeding 20 percent for service-connected lumbar spine disability, and remanded for re-adjudication consistent with its decision. Therefore, a remand of the claim for entitlement to an increased rating exceeding 20 percent for service-connected lumbar spine disability is necessary in compliance with the JMPR, as discussed in the designated section below. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where there is a question as to which of two ratings should be applied, the higher rating 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. Where the Veteran challenges the initial rating of a disability for which he has been granted service connection, the Board considers all evidence of severity since the effective date for the award of service connection. See generally Fenderson v. West, 12 Vet. App. 119 (1999). However, whether the issue is an initial increase or not, consideration of the appropriateness of a “staged rating” is required. See id at 126. Additionally, if the positive evidence supporting a claim and the negative evidence indicating a denial of the claim is relatively equal, the Veteran is entitled to the benefit of the doubt. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102, 4.3. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. When evaluating musculoskeletal disabilities based on limitation of motion, the Veteran is entitled to at least the minimum compensable evaluation if motion is accompanied by painful motion with joints. The joints involved should be tested for pain on both active and passive motion, in weight bearing and non-weight bearing and, if possible, with the range of the opposite undamaged joint. See 38 C.F.R. § § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). Additionally, pain is also relevant to assignment of a rating in excess of the minimum compensable rating, but only if that pain results in demonstrated functional impairment. Mitchell, 25 Vet. App. at 37–38; see 38 C.F.R. § §§ 4.40, 4.45. Functional impairment as contemplated by 38 C.F.R. § §§ 4.40 and 4.45 includes 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). Joint pain alone, without evidence of decreased functional ability, does not warrant a higher rating. See generally Mitchell, 25 Vet. App. 32 Moreover, the Board must consider functional loss caused by pain or other factors listed in 38 C.F.R. § §§ 4.40 and 4.45 that could occur during flare-ups or after repeated use and, therefore, may not be reflected on range-of-motion testing. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, despite the relevance of the background factors delineated in § 4.40 or 4.45 when evaluating a disability, the rating to be assigned is based on the extent to which motion is limited, pursuant to 38 C.F.R. § § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); therefore, a separate or higher rating predicated solely on §§ 4.40 or 4.45 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 [or § 4.73] criteria.”). 1. Entitlement to an increased evaluation exceeding 10 percent for service-connected right knee osteoarthritis. 2. Entitlement to an increased evaluation exceeding 10 percent for service-connected left knee osteoarthritis. The Veteran contends that her bilateral knee osteoarthritis warrants an increased rating higher than 10 percent, as her symptoms are more severe. The Veteran’s service-connected bilateral knee osteoarthritis is currently evaluated at 10 percent under DC 5003-5260, which evaluates limitation of flexion. Under DC 5260, a 10 percent rating is given when flexion is limited to 45 degrees; a 20 percent rating when flexion is limited to 30 degrees; and the highest rating of 30 percent when flexion is limited to 15 degrees. See 38 C.F.R. § 4.71a. Additionally, under DC 5003, a 10 percent rating is given when x-ray evidence documents arthritis but limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic code. See Id. For VA purposes, normal range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71a, Plate II. As an initial matter, the Board notes that, during the rating period on appeal, the Veteran was afforded VA knee examinations in April 2015 and November 2016 to assess the current severity of her bilateral knee osteoarthritis. Although these examinations fail to comply with the requirements for evaluation of disabilities of the musculoskeletal system as expressed in Correia v. Mcdonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017), the medical findings, to include range of motion testing and instability testing are relevant and valid for rating purposes. During an April 2015 VA examination, the Veteran reported she experienced difficulty bending her knees, running, and climbing steps, and that she experienced flare-ups at least once per week, with pain increasing with walking and climbing steps. Right and left knee flexion and extension was 120 to 0 degrees. Pain was noted on examination of the right knee during flexion and did not result in functional loss. Pain was noted on examination of the left knee during flexion and extension and did not result in functional loss. There was no evidence of pain on weight-bearing. There was objective evidence of crepitus in both knees. The Veteran was able to perform repetitive use testing with at least three repetitions in the right and left knee without additional functional loss or range of motion. The Veteran was examined immediately after repetitive use over time, but not during a flare-up. The examiner noted the examination was neither medically consistent or inconsistent with the Veteran’s statements describing functional loss with repetitive use over time or during flare-ups. The examiner concluded pain, weakness, incoordination, and fatigability did not limit functional ability with repeated use over time or during flare-ups. There was no history of recurrent subluxation or lateral instability in the left knee and joint stability testing was normal. There was no history of meniscus tear. The Veteran reported she used a brace regularly. During a November 2016 VA examination, the Veteran reported she experienced stiffness and pain, but flare-ups were denied. The Veteran also endorsed functional loss or functional impairment as her bilateral knee disabilities cause pain and decreased mobility, resulting in impaired mobility, increased tardiness, and absenteeism at work. Right and left knee flexion and extension was 130 to 0 degrees. There was no pain noted on examination. There was no evidence of pain on weight-bearing. There was no objective evidence of crepitus in both knees. The Veteran was able to perform repetitive use testing with at least three repetitions in the right and left knee without additional functional loss or range of motion. The Veteran was examined immediately after repetitive use over time, but not during a flare-up. The examiner noted the examination was neither medically consistent or inconsistent with the Veteran’s statements describing functional loss with repetitive use over time or during flare-ups. The examiner concluded he was unable to determine if pain, weakness, incoordination, and fatigability limited functional ability with repeated use over time or during flare-ups without speculation. There was no history of recurrent subluxation or lateral instability in the left knee and joint stability testing was normal. There was no history of meniscus tear. The Veteran denied use of assistive devices for locomotion. VA treatment records during the appeal period reflect continuous complaints and treatment of bilateral knee pain, with evidence of crepitus and decreased range of motion as described as bilateral knee flexion of 0 to 105 and bilateral knee extension within functional limits; as well as, muscle strength testing resulting in a 5 out of 5. In a July 2019 lay statement, the Veteran noted that her bilateral knee pain negatively impacts her functional abilities. See Appellate Brief, July 2019. In a January 2020 VA knee examination, the examiner reported the Veteran’s complaints of worsening, with functional loss or impairment, as described as intermittent dull aching pain in the bilateral knee, with pain in the left knee worse than the right. Upon examination, the Veteran’s bilateral knee range of motion testing resulted in a flexion of 0 to 110 degrees, and extension of 110 to 0 degrees, with range of motion itself not contributing to a functional loss. Pain was noted on exam but does not result in/cause functional loss; with no objective evidence of localized tenderness or pain to palpation of the joints or associated tissues, evidence of pain with weight-bearing, or objective evidence of crepitus. After repetitive testing, there was no additional loss of function or range of motion after repetitions in the bilateral knee; and there was no pain, weakness, fatigability or incoordination that significantly limited functional ability with repeated use over a period of time or with flare-ups of the bilateral knee. The Veteran’s muscle strength testing of the bilateral knee resulted in a 5 out of 5; with no muscle atrophy, ankylosis, subluxation or lateral instability or effusion, or semilunar cartilage condition shown. The examiner noted that the Veteran uses a knee brace for both knees occasionally. Additionally, the examiner specifically addressed the Correia criteria (see Correia v. McDonald, 28 Vet. App. 158 (2016)), and noted that there was bilateral objective evidence of pain on passive range of motion testing, but no objective evidence of pain when either joint is used in non-weight bearing. See C&P Exam, January 2020. In April 2020, an addendum report to the January 2020 VA examination was completed to specifically provide range of motion measurements for active and passive motion, and weight-bearing and non-weight-bearing. Upon review, the examiner provided bilateral knee range of motion testing as follows: active and passive range of motion flexion of 0 to 110 degrees, active and passive range of motion extension of 110 to 0 degrees, weight-bearing flexion of 0 to 110 degrees, weight-bearing extension of 110 to 0 degrees, non-weight-bearing flexion of 0 to 110 degrees, and non-weight-bearing extension of 110 to 0 degrees. See C&P Exam, April 2020. Considering the foregoing, to include consideration of the provisions of 38 C.F.R. §§ 4.40 and 4.45, and DeLuca, the Board finds that an increased rating exceeding 10 percent for the Veteran’s bilateral knee osteoarthritis is not warranted during any period on appeal. The weight of the evidence is not sufficient to meet the criteria for a higher 20 percent rating under DC 5260, as the severity of the Veteran’s bilateral knee osteoarthritis has shown to have manifested, at worse, to a flexion of 105 degrees or higher, which is commensurate of a noncompensable evaluation under DC 5260. The Board notes that the relevant medical evidence of record, to include VA treatment records and the April 2016, November 2016, and January 2020 VA examination reports, shows that the Veteran’s bilateral knee osteoarthritis, during the relevant period on appeal was not limited to 30 degrees, as required for the next higher rating of 20 percent. Here, the relevant medical evidence of record revealed documented arthritis of the bilateral knee with the absence of limitation of motion under DC 5260, and therefore, 10 percent ratings were appropriately assigned under DC 5003. Therefore, the Board finds that the preponderance of the evidence does not support the assignment of ratings higher than the currently assigned 10 percent ratings in this case. The Board has considered other applicable DCs of the knee that would possibly warrant an increased and/or separate rating; however, the current evidence of record does not reveal or otherwise suggest that the Veteran’s bilateral knee osteoarthritis has related ankylosis, recurrent subluxation or lateral instability, dislocation or removal of semilunar cartilage, limitation of extension to a compensable degree, or tibia and fibula impairment as to warrant consideration of ratings under Codes 5256, 5257, 5258, 5259, 5261 and 5262. Notably, as of February 7, 2021, Diagnostic Code 5257 contains two sections for rating other impairment of the knee. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The first is for recurrent subluxation or instability. The second is for patellar instability. However, as noted above, as the Veteran does not experience instability in the bilateral knees, the new regulations are also not applicable. The Board notes that the lay assertions of the Veteran have been considered. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). To the extent that the Veteran has argued that higher ratings for her bilateral knee osteoarthritis are warranted, these assertions are outweighed by more probative evidence provided by the examination of a qualified medical professional. See Jones v. Brown, 7 Vet. App. 134, 137-138 (1994). As such, her lay statements do not provide any basis upon which to assign any higher ratings. Therefore, the Board concludes, based on consideration of the medical and lay evidence, increased ratings exceeding 10 percent during any period on appeal for the Veteran’s bilateral knee osteoarthritis is not warranted; and the claims are denied. In reaching this determination, the Board has considered the doctrine of giving the benefit of the doubt to the Veteran, under 38 U.S.C. § 5107 and 38 C.F.R. § 3.102, but does not find that the evidence is of such approximate balance as to warrant its applications. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). REASONS FOR REMAND 1. Entitlement to an increased evaluation exceeding 20 percent for service-connected lumbar spine disability is remanded. The Veteran contends that her lumbar spine disability warrants an increased rating higher than 20 percent, as her symptoms are more severe. As noted above, in October 2020, CAVC issued a JMPR partly vacating the Board’s August 2019 decision, and remanded the Veteran’s claim for re-adjudication. The basis for CAVC’s JMPR was due to the Board’s error in failing to ensure the Veteran was afforded adequate VA examinations, pursuant to VA’s duty to assist. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once VA determines that an examination is necessary, it is compelled to ensure its adequacy). See CAVC Decision, October 2020. Specifically, CAVC found that the VA examinations, dated November 2016 and April 2015, which were relied upon for denial of the Veteran’s claim in the August 2019 Board decision, failed to comply with the requirements for evaluation of disabilities of the musculoskeletal system as expressed in Correia v. Mcdonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). Thus, The CAVC concluded that the Veteran’s record during the appeal period does not contain an adequate VA examination to allow the Board’s review to be fully informed. See CAVC Decision, October 2020. The Board agrees; and as such, finds that a remand is necessary to afford the Veteran a new VA examination that adequately assesses the current severity of the Veteran’s lumbar spine disability, in compliance with JMPR. The matter is REMANDED for the following action: 1. Request the Veteran to identify all medical providers (VA and private) from whom she has received treatment for her lumbar spine disability and obtain any outstanding records and associate them with the Veteran’s claims file. 2. After associating all newly acquired records with the claims file, schedule the Veteran for a VA examination by an appropriate clinician to determine the current severity of her lumbar spine disability. The claims file, including a copy of this remand, must be made available to the examiner in conjunction with the examination, and the examiner should note review of the record in the examination report. All pertinent medical complaints, symptoms, and clinical findings must be reported in detail. Following complete review of the record: (a) The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and non-weight-bearing, and if possible, with range of motion measurements of the opposite undamaged joint. The examiner should report (in degrees) the point at which pain is objectively recorded. (b) The examiner must also attempt to elicit information, based on all the evidence of record, regarding the severity, frequency, and duration of any flare-ups. (c) To the extent possible, the examiner should identify any symptoms and functional impairments due to the Veteran’s lumbar spine disability, and report or estimate functional loss in terms of the degree of additional loss of range of motion. If the examiner cannot express functional loss in this manner without resorting to speculation, he/she must explain the basis for his/her conclusion that a non-speculative opinion cannot be offered. (Continued on the next page)   The examiner must provide a complete rationale for any opinion given. Sarah Campbell Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Hodges, 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.