Citation Nr: 21023368 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 16-40 670A DATE: April 20, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for left knee strain with Baker's cyst (claimed as degenerative joint disease) is denied. FINDING OF FACT The minimum compensable rating for painful motion of the left knee joint most closely approximates the Veteran’s symptoms and average impairment in earning capacity resulting from diseases and injuries incurred in-service. CONCLUSION OF LAW The criteria for entitlement to an initial rating in excess of 10 percent for left knee strain with Baker's cyst (claimed as degenerative joint disease) have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5019, 5257, 5260 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Air Force from October 2010 to May 2015. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2020 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In her October 2015 Notice of Disagreement, the Veteran waived her right to a hearing before the undersigned Veterans Law Judge. See October 2015 VA Form 21-0958, Notice of Disagreement. The matter was remanded in October 2020 for an updated VA medical examination “to assess the current level of severity of (the Veteran’s) service-connected left knee disability.” See October 2020 BVA Decision. As a result of the February 2021 VA Knee and Lower Leg Conditions examination report, the initial evaluation for left knee strain with Baker’s cyst was increased to 10 percent disabling by the Agency of Original Jurisdiction (AOJ). See February 2021 Supplemental Statement of the Case. Because less than the maximum schedular rating was assigned, questions of law and fact remain, and the Board maintains jurisdiction over the appeal. See 38 C.F.R. § 20.101, Rule 101. The case has been returned to the Board for further consideration. This case has been advanced on the docket pursuant to 38 U.S.C. § 7107(b) and 38 C.F.R. § 20.902(c). 1. Entitlement to a compensable rating for left knee strain with Baker's cyst (claimed as degenerative joint disease) The Veteran contends that painful motion and swelling is an impairment, because it diminishes her body’s ability to function. See May 2020 VA Form 21-4138, Statement in Support of Claim and March 2021 American Legion Appellate Brief. Increased Ratings Disability evaluations are determined by the application of facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) in 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred in or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Separate, staged ratings are appropriate in adjudicating increased ratings when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 506 (2007). The period of consideration begins one year prior to the claim for increase and extends to the present. Fenderson v. West, 12 Vet. App. 119, 126 (1999); AB v. Brown, 6 Vet. App. 35 (1993) (holding that a claim for an original or increased rating remains in controversy when less than the maximum available benefit is awarded). Any reasonable doubt as to the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. The Veteran’s knee condition was evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5257, “Knee, other impairment of,” at the time of her May 2015 noncompensable rating of 0 percent. A rating of 0 percent was assigned for a diagnosed disability with no compensable symptoms. See September 2015 VA Rating Decision Codesheet. Under Diagnostic Code 5257, a 10 percent rating is assigned for slight recurrent subluxation or lateral instability. A 20 percent rating is assigned for moderate recurrent subluxation or lateral instability. A 30 percent rating is severe recurrent subluxation or lateral instability. Under Diagnostic Code 5257, a 30 percent rating is the highest possible evaluation. See 38 C.F.R. § 4.71a, Diagnostic Code 5257. The most recent rating decision evaluated the Veteran’s right ankle disability under 38 C.F.R. § 4.71a, Diagnostic Code 5019, “Bursitis,” and 5260, “Leg, limitation of flexion of.” See March 2021 VA Rating Decision Codesheet. Ratings under Diagnostic Code 5019 are based upon “limitation of motion of affected parts.” See 38 C.F.R. § 4.71A, Diagnostic Code 5019. Under Diagnostic Code 5260, a 0 percent rating is assigned for flexion limited to 60 degrees. A 10 percent rating is assigned for flexion limited to 45 degrees. A 20 percent rating is assigned for flexion limited to 30 degrees. Finally, a 30 percent rating is assigned for flexion limited to 15 degrees. Under Diagnostic Code 5260, a 30 percent rating is the highest possible evaluation. See 38 C.F.R. § 4.71a, Diagnostic Code 5260. Factual Background The Veteran was involved in a motorcycle accident in 2005 that required surgery on her left knee. See October 2015 VA Podiatry Consult (“Patient admits to motorcycle accident 10 years ago.”), February 2016 VA Emergency Department Triage Note Addendum (“She also had left knee surgery in 2005 secondary to a motorcycle accident.”), and March 2016 VA Women’s Health Note (“Past surgical history: Left knee – 2005”). Service treatment records for the Veteran indicate that she reported to sick call with “joint pain, localized in the knee” in November 2010. In April 2013, the Veteran was treated several times for knee pain, diagnosed as both a knee strain and a knee sprain. A “Baker’s Cyst” was also suspected. The Veteran received further treatment for “joint pain in the left knee” in June 2014, March 2015, and April 2015, including acupuncture. X-rays taken in January 2011 and April 2013 and an MRI completed in April 2015 were negative for a fracture or stress fracture. See Veteran Service Medical Record. A May 2014 private treatment note diagnosed the Veteran with “internal derangement of the left knee” and a “knee sprain.” The Veteran was provided with information that included: “[A] sprain is a tear or stretch in the ligaments that hold a joint together. Severe sprains may need as long as 3-6 weeks of immobilizaton and / or exercises to heal completely.” See May 2014 Baltimore Washington Medical Center Treatment Note. In a September 2015 VA General Medical – Separation Health Assessment, the Veteran reported “No issues with the left knee.” She was noted to ambulate “without assist,” including no assistive devices, and had a “normal gait.” Flare-ups were reported only in her feet. A physical examination of the extremities documented “Good strength, No edema, Good sensation.” See September 2015 VA General Medical – Separation Health Assessment report. Post-separation evaluations also included a September 2015 VA Knee and Lower Leg Conditions examination. An in-person examination was completed, and the examiner reviewed the Veteran’s prior history. The statements of the Veteran were considered, including the statement that she injured her knee in basic training during physical training. The Veteran reported no flare-ups and no pain at rest and functional limitations only while performing “high impact exercises.” Range of motion testing was “all normal,” with full range of flexion, 0 to 140 degrees, and full range of extension, 140 to 0 degrees, with no weight-bearing pain and no additional functional loss with repetitive testing. See September 2015 VA Knee and Lower Leg Conditions examination report. No pain was noted at the September 2015 medical examination, including no objective evidence of localized tenderness or pain on palpation. Crepitus was not reported or observed. There were no additional contributing factors to the disability. Muscle strength was “Normal, 5/5.” Atrophy, ankylosis, history of subluxation and recurrent effusion, joint instability, patellar dislocation, shin splints, stress fractures, chronic exertional compartment syndrome, other tibial and / or fibular impairment, meniscal conditions, and degenerative arthritis were not present. No assistive devices were reported or observed, and no further pertinent physical findings or complications were reported or observed. The examiner noted radiology imaging from April 2015 documenting a “small Baker’s cyst” and recorded “No cyst felt clinically.” See September 2015 VA Knee and Lower Leg Conditions examination report. During a February 2016 visit to the Emergency Department for foot pain, the Veteran “denied any abnormal movements of the remainder of her extremities.” She also denied “any persistent pain” but described “occasional pain behind her left knee [sic] which she attributes to a Baker’s cyst.” On physical examination, “no knee pain or swelling or tenderness” was noted. See February 2016 VA Emergency Department Medicine Note. At September 2016 VA treatment, an orthopedic examination revealed “Muscle power 5/5 bilaterally” and “Knee reflex 2+ (normal).” See September 2016 VA Podiatry Outpatient Note. A June 2019 visit to the Emergency Department included a physical examination of the heel, knee, and shin that was “normal” bilaterally. See June 2019 VA Emergency Department History & Physical Note. In an August 2019 appointment at VA, the Veteran denied “knee pain” in a review of systems. See August 2019 VA Sleep Medicine Consult. The Veteran attended a VA Back (Spine) Conditions examination in August 2019. Muscle strength testing of the knees was 5/5, “Normal strength.” A reflex examination of the knees was 2+, “normal.” Finally, a sensory examination of the thighs and knees was “Normal.” See August 2019 VA Back (Spine) C & P Examination Consult report. During a primary care telephone call in January 2020, the Veteran stated that she was “doing well.” No complaints were documented. See January 2020 VA Primary Care Telephone Note. The February 2021 VA Knee and Lower Leg Conditions examination was conducted in-person. History for the Veteran was reviewed by the examiner. The statements of the Veteran were considered, including knee pain from sitting in certain positions and standing or walking for long periods. Flare-ups were reported “2 to 3 times a week for a few seconds,” treated with Motrin. The Veteran estimated range of motion during a flare-up as flexion of 90 degrees. Active range of motion flexion endpoint was measured at 120 degrees, and extension endpoint was measured at 0 degrees, both movements exhibiting pain. The same measurements were recorded on passive range of motion testing. The Veteran was able to perform repetitive testing with no additional loss of function or range of motion. The Veteran estimated range of motion after repeated use over time as flexion of 90 degrees. See February 2021 VA Knee and Lower Leg Conditions examination report. In the February 2021 medical examination, the Veteran reported swelling of her knee and disturbance of locomotion as additional contributing factors to her knee disability. No atrophy, ankylosis, joint instability, tibial or fibular impairment, meniscal conditions, assistive devices, or other pertinent physical findings or complications were reported by the Veteran or noted by the examiner. The Veteran’s 2005 history of surgery on the left knee was not reported. There was no history of recurrent subluxation, patella dislocation, lateral, anterior, posterior, medial, or joint instability, shin splints, stress fractures, or chronic exertional compartment syndrome documented during the examination. See February 2021 VA Knee and Lower Leg Conditions examination report. Analysis Under 38 C.F.R. § 4.7, the Veteran is entitled to the benefit of the rating criteria that will result in the higher evaluation of her disability. The Veteran has been evaluated under a combination of rating criteria, beginning with Diagnostic Code 5257 in her initial rating. See September 2015 VA Rating Decision Codesheet. While this particular diagnostic code addresses “Knee, other impairment of,” the rating criteria also requires “recurrent subluxation” or “lateral instability” of the knee. According to VA medical examination findings, the Veteran has never been documented to have either recurrent subluxation or lateral instability of the knee. See September 2015 and February 2021 VA Knee and Lower Leg Conditions examination reports. Once the Veteran completed her February 2021 VA medical examination for Knee and Lower Leg Conditions, she was rated using the evaluation criteria in Diagnostic Code 5260, “Leg, limitation of flexion of.” See March 2021 VA Rating Decision Codesheet. The Veteran’s flexion in February 2021 was measured at 120 degrees, which would prevent even a noncompensable rating under the applicable evaluation criteria. Taking into consideration the statements of the Veteran that her flexion during a flare-up or after repeated use over time is limited to “90 degrees,” the result would not change. A noncompensable rating under Diagnostic Code 5260 requires “Flexion limited to 60 degrees.” As discussed previously, the evaluation criteria for higher disability ratings under Diagnostic Code 5260 require even more limited flexion measurements. See 38 C.F.R. § 4.71a, Diagnostic Code 5260. The Veteran reports “painful motion and swelling” in her knee. See May 2020 VA Form 21-4138, Statement in Support of Claim. Because the Veteran does not meet the minimum evaluation criteria for a compensable rating under any of the potentially applicable diagnostic codes, she was provided with the “minimum compensable rating for the joint,” as prescribed by 38 C.F.R. § 4.59, “Painful motion.” Beyond the “minimum compensable rating,” the regulation offers several factors to consider when evaluating a joint for painful motion. The first is the presence of “arthritis.” The Veteran has not been diagnosed with any form of arthritis in her left knee, which includes the lack of arthritis inclusive in either a knee strain or Baker’s cyst diagnosis. The second is “facial expression,” to include “wincing.” No visible behavior of the Veteran was noted at the February 2021 medical examination. See February 2021 VA Knee and Lower Leg Conditions examination report. The third factor mentioned in § 4.59 is “painful, unstable, or malaligned joints.” No form of instability was documented at the February 2021 VA medical examination, muscle strength was normal, and the examiner noted a lack of history of patellar dislocation. The fourth factor mentioned in the regulation is “crepitation,” which was not noted at the February 2021 examination. The final factor is pain on active and passive motion, which was noted in testing at the February 2021 examination. Worth mentioning is that neither weight-bearing pain nor non-weight bearing pain were noted. See February 2021 VA Knee and Lower Leg Conditions examination report. Regarding functional loss, 38 C.F.R. § 4.40 defines it as the “inability…to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance.” The regulation cites “absence of part, or all, of the necessary bones, joints and muscles, or associated structures,” which does not apply to the Veteran’s left knee. Next, the regulation mentions “deformity, adhesions, defective innervation, or other pathology,” which also does not apply to the Veteran. Also mentioned is “pain…evidenced by the visible behavior of the claimant.” As mentioned previously, there is no documentation of “wincing” at the February 2021 VA medical examination. Finally, “weakness” and “atrophy” are mentioned as “evidence of disuse.” Muscle “size and signal intensity” were “normal,” weakness was not noted, and there was no evidence of atrophy at the February 2021 VA medical examination. See February 2021 VA Knee and Lower Leg Conditions examination report. The joints are addressed under 38 C.F.R. § 4.45, and the regulation mentions “factors” for consideration that include ankylosis, nonunion, weakness, fatigability, incoordination, and pain on movement. See 38 C.F.R. § 4.45. Pain was addressed in the discussion for 38 C.F.R. § 4.59, “Painful motion,” but fatigue is not documented in the February 2021 VA medical examination. Putting the report of “pain” into the appropriate context, the Veteran did state that she is limited to “prolonged standing and walking.” Again, muscle “size and signal intensity” were “normal,” and weakness was not observed or reported at any point during the examination. The remaining factors, ankylosis, nonunion (dislocation), and incoordination were not found in the February 2021 VA medical examination. See February 2021 VA Knee and Lower Leg Conditions examination report. Extraschedular consideration under 38 C.F.R. § 3.321(b) is not warranted, because it is not raised by the Veteran, either through the record or appeal. Conclusion The Board has carefully reviewed and considered the Veteran’s statements regarding the severity of her left knee disability. To that end, the Board acknowledges that the Veteran, in advancing this appeal, believes that the knee injury is more severe than is reflected in the assigned evaluation rating. The Board is likewise aware of the Veteran’s contentions that her knee disability impacts her daily activities. Moreover, the Board notes that the Veteran is competent to report observable symptoms such as pain and swelling. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In this case, however, the competent medical evidence offering detailed, specific, and specialized determinations pertinent to the rating criteria, namely determinations of degree of motion and functional loss, as determined by diagnosis, facial expression, muscle spasm, misaligned joints, crepitation, pain on active and passive motion, weight-bearing and non-weight bearing pain, absence of bones, joints, and muscles, deformity, weakness, atrophy, ankylosis, nonunion, fatigability, and incoordination is the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed Cir. 2007). The evidence also contemplates the Veteran’s descriptions of her symptoms both at her VA examinations and in treatment, including her reports of impairment with respect to limits on daily activities. The lay testimony has been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms. In summary, the Veteran’s left knee disability, initially evaluated at 10 percent, is the “minimum compensable rating” for the knee joint. Based on the most current range of motion testing, the Veteran does not meet the schedular criteria for even a noncompensable rating under 38 C.F.R. § 4.71a. With the 2005 motorcycle accident, there is no evidence of involvement of 2 or more major joints (or minor joint groups) to necessitate the application of Diagnostic Code 5010 for traumatic arthritis. Further, the prohibition against the pyramiding of claims would prevent a combination of ratings for the same manifestation of symptoms under multiple diagnostic codes. The Board has carefully considered all applicable statutory and regulatory provisions, to include 38 C.F.R. §§ 4.40 and 4.45, concerning functional loss due to pain, as well as the holding in DeLuca v. Brown, 8 Vet. App. 202 (1995), regarding functional loss attributable to pain. The examiner noted “pain” at the VA medical examination, but the functional impact, as indicated by the Veteran, is limited to “prolonged standing and walking.” A clear preponderance of the evidence is against a finding that the Veteran meets the criteria listed in 38 C.F.R. § 4.40, 4.45, or 4.59, including diagnosis, facial expression, muscle spasm, misaligned joints, crepitation, pain on active and passive motion, weight-bearing and non-weight bearing pain, absence of bones, joints, and muscles, deformity, weakness, atrophy, ankylosis, nonunion, fatigability, and incoordination, for entitlement to an initial rating in excess of 10 percent for left knee strain with Baker’s cyst. In reaching its conclusion, the Board has considered the overall disability picture demonstrated by the record to arrive at the appropriate evaluation in this case. The February 2021 report from the VA examiner is the most probative evidence of record on the question of entitlement to an initial rating. The opinion was based on an extensive review of all of the evidence, including lay statements from the Veteran, was supported by a detailed rationale, provided data to support any conclusions, and provided a clear and reasoned analysis, the source of the most probative value in a medical opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The VA examiner opinion provides compelling evidence against the Veteran’s claim for increase in the initial rating. There is no competent, credible evidence to refute the VA medical examination. The weight of the probative evidence of record is against a finding that the Veteran is entitled to an initial disability rating in excess of 10 percent for left knee strain with Baker’s cyst. Therefore, her claim must be denied, and her initial rating of 10 percent is continued. In reaching the decision stated herein, the Board has considered the applicability of the benefit of the doubt doctrine. The rule does not apply when the Board finds that a preponderance of the evidence is against the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (2018); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Small, Attorney Advisor 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.