Citation Nr: 21022220 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 13-14 402 DATE: April 15, 2021 ORDER Entitlement to an evaluation in excess of 10 percent for left knee strain with arthritis and meniscal tear is denied. Entitlement to an initial evaluation in excess of 10 percent for right knee strain with arthritis and meniscal tear is denied. Entitlement to an initial compensable evaluation for right and left knee scars is denied. FINDINGS OF FACT 1. Left knee strain with arthritis and meniscal tear is manifested by stiffness, swelling, and pain productive of limitation of motion, but not resulting in limitation of flexion to 45 degrees or limitation of extension by 10 degrees. 2. Right knee strain with arthritis and meniscal tear is manifested by stiffness, swelling, and pain productive of limitation of motion, but not resulting in limitation of flexion to 45 degrees or limitation of extension by 10 degrees. 3. Right and left knee scars are manifested by small scars on each knee measuring 1 centimeter (cm) by 1 cm or less that were not painful, unstable, or productive of limitation of function on physical examination. CONCLUSIONS OF LAW 1. The criteria for entitlement to an evaluation in excess of 10 percent for left knee strain with arthritis and meniscal tear have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5260 (2020). 2. The criteria for entitlement to an initial evaluation in excess of 10 percent for right knee strain with arthritis and meniscal tear have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5260 (2020). 3. The criteria for entitlement to an initial compensable evaluation for right and left knee scars have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.118, Diagnostic Code 7805 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 2000 to December 2000, April 2003 to August 2003, August 2004 to January 2005, February 2005 to August 2005, August 2005 to September 2007, January 2009 to July 2009, and April 2010 to October 2010. These matters come before the Board of Veterans’ Appeals (Board) on appeal from rating decisions rendered in August 2012 and September 2018. In November 2015, the Veteran testified at a Board videoconference hearing at the AOJ before the undersigned. A copy of the transcript of that hearing is of record. In January 2016, September 2017, and January 2019, the Board remanded these matters for additional development. 1. Entitlement to an evaluation in excess of 10 percent for left knee strain with arthritis and meniscal tear 2. Entitlement to an initial evaluation in excess of 10 percent for right knee strain with arthritis and meniscal tear The Veteran seeks higher ratings for his service-connected left and right knee disabilities. He has been awarded separate 10 percent evaluations for his service-connected left and right knee strain with arthritis and meniscal tear during the appeal period from April 16, 2012, to the present under Diagnostic Codes 5003-5260. The hyphenated diagnostic code indicates that degenerative arthritis under Diagnostic Code 5003 is the service-connected disorder, and limitation of flexion of the leg under Diagnostic Code 5260, is the residual condition. 38 C.F.R. § 4.27. Diagnostic Code 5003 provides that degenerative arthritis that is 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 there is some limitation of motion of the specific joint or joints involved that is noncompensable (0 percent) under the appropriate diagnostic codes, the rating criteria provides a rating of 10 percent for each such major joint (like the knee, see 38 C.F.R. § 4.45) 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. However, for degenerative arthritis that is established by x-ray findings, when there is no limitation of motion of the specific joint or joints that involve degenerative arthritis, Diagnostic Code 5003 provides a 20 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints, with occasional incapacitating exacerbations, and a 10 percent rating when there are no incapacitating episodes. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Under Diagnostic Code 5260, a noncompensable rating is warranted for flexion of the leg 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. Under Diagnostic Code 5261, limitation of extension of the leg warrants a zero percent rating when extension is limited to 5 degrees; a 10 percent rating when extension is limited to 10 degrees; a 20 percent rating when limited to 15 degrees; 30 percent when limited to 20 degrees; 40 percent when limited to 30 degrees; and 50 percent when limited to 45 degrees. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, the rating criteria in the above diagnostic codes was not changed. 85 Fed. Reg. 230 (Nov. 30, 2020). 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. Based on evidence of record during the appeal period, (including lay assertions and hearing testimony from the Veteran, VA and private treatment records, and VA examination reports dated from 2012 to 2019), the Board has determined that the preponderance of the evidence is against ratings in excess of 10 percent for left and right knee strain with arthritis and meniscal tear. Range of motion findings of record did not show limitation of flexion to 45 degrees or any limitation of extension in either knee to 10 degrees. For example, on the VA knee examination conducted in September 2019, flexion of the right knee was to 85 degrees and extension was to zero degrees (full). The left knee was to 75 degrees of flexion and full extension. There were normal range of motion findings (0 to 140 degrees) on the VA exam in October 2017 and the exam in February 2016. Even with his assertions of pain, stiffness, swelling, and functional limitation, the Veteran has not demonstrated compensable limitation of extension or flexion of the left or right knee. The evidence reflects that the currently assigned 10 percent ratings properly compensated him for the extent of functional loss resulting from symptoms like painful motion, swelling, stiffness, and tenderness. The Board has considered the factors regarding pain, weakness, and functional loss, such as inability to run as well as to perform other repetitive high impact activities, noted in the evidence of record. Pain was repeatedly noted to significantly limit functional ability with repeated use over a period of time in each knee. Here, however, the available medical findings do not show that painful motion, limitation of motion on repetitive use or during flare-ups, or pain on active motion/passive motion/in weight-bearing/nonweight-bearing resulted in functional loss warranting the assignment of any higher evaluation during the appeal period. Based on the foregoing discussion, evidence of record showed no distinct periods of time during the appeal period when the Veteran’s service-connected left and right knee strain residuals with arthritis and meniscal tear varied to such an extent that a rating greater or less than the separate 10 percent ratings currently assigned would be warranted. See Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). 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). Evidence of record does not show any findings of decreased muscle strength, ankylosis, atrophy, or recurrent subluxation. While the May 2012 VA examination report showed an isolated notation of left knee medial lateral instability, instability was not shown on left or right knee joint stability testing in numerous other VA examination reports and treatment records. In addition, the Board notes that symptoms such as frequent episodes of joint pain and stiffness associated with meniscus (semilunar cartilage) conditions are manifestations that have already been included in the Veteran’s assigned 10 percent evaluations for degenerative arthritis with painful limitation of knee motion. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claims for ratings in excess of 10 percent for left and right knee strain with arthritis and meniscal tear. 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 an initial compensable evaluation for right and left knee scars The Veteran contends that he is entitled to an initial compensable evaluation for painful and tender right and left knee scars. His right and left knee scars are rated under Diagnostic Code 7805 for other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800-7804. The Board notes that VA amended the criteria for rating skin disabilities effective from August 13, 2018. However, Diagnostic Code 7805 was not changed by those amendments. Diagnostic Code 7805 instructs that any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-7804 under an appropriate Diagnostic Code. Based on evidence of record during the appeal period, (including lay assertions and hearing testimony from the Veteran, VA and private treatment records, and VA examination reports dated from 2012 to 2019), the Board finds that the preponderance of the evidence is against the assignment of an initial compensable rating for the Veteran’s right and left knee scars under Diagnostic Code 7805, as there are no other disabling effects not considered in a rating provided under Diagnostic Codes 7800-7804. The Board has considered the other Diagnostic Codes pertaining to scars. While the May 2012 VA examiner noted that the Veteran’s left knee scar caused limitation of repetitive stair climbing, the Veteran has already been rated for those manifestations, including left knee limitation of motion and pain due to functional loss. Multiple VA examiners also specifically reported that the Veteran’s scars did not result in limitation of function or functional impact. In addition, the Veteran’s right and left knee scars are not of the head, face, or neck, are not deep and nonlinear, and are not associated with underlying soft tissue damage. Although they are linear, superficial, and not associated with underlying soft tissue damage, they do not cover an area or areas of 144 square inches or greater. Despite his November 2015 Board hearing testimony that his scars were painful, numerous VA examiners dated from 2012 to 2019 specifically indicated that the Veteran’s right and left knee scars were not unstable or painful on physical examination. For instance, the October 2017 VA examiner noted that the Veteran’s right and left knee scars were healed, mobile, and nontender. Therefore, Diagnostic Codes 7800, 7801, 7802, and 7804, both prior to and from August 13, 2018, are inapplicable. 38 C.F.R. § 4.118, Diagnostic Codes 7800-7804 (2012-2019). Evidence of record showed no distinct periods of time during the appeal period when the Veteran’s service-connected right and left knee scar residuals varied to such an extent that a rating greater or less than the rating currently assigned would be warranted. See Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for an initial compensable rating for right and left knee scars. In denying such a rating, 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. Additional Considerations The Board acknowledges that the Veteran is competent to report observable symptoms, such as pain and stiffness. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). He is not, however, competent to identify a specific level of disability. Competent evidence concerning the nature and extent of the Veteran’s service-connected knee and scar disabilities has been provided by VA medical professionals who have examined him. The medical findings adequately address the criteria under which the disabilities are evaluated and clearly demonstrate the degree of impairment attributable to each service-connected disability. The Board accords these findings greater weight than the Veteran’s complaints as to bilateral knee and scar symptomatology. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). Accordingly, the Veteran’s contention that he is entitled to increased evaluations for his bilateral knee and scar disabilities is outweighed by the objective medical findings of record. That is, the Board assigns greater probative value to the pertinent objective findings in the VA examination reports than to the Veteran’s general belief that he is entitled to higher ratings. (Continued on the next page)   Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. D. Deane, 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.