Citation Nr: 21026314 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 17-37 137 DATE: April 30, 2021 ORDER A higher 10 percent rating, though no greater, is granted for osteoarthritis of the left knee with limitation of flexion from January 9, 2021 onward. Entitlement to a rating in excess of 40 percent for osteoarthritis of the left knee with limitation of extension from January 31, 2014 to January 9, 2021 is denied. Entitlement to a rating in excess of 50 percent since from January 9, 2021 for the osteoarthritis of the left knee with limitation of extension also is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. FINDINGS OF FACT 1. From January 9, 2021 onward, the Veteran has had left knee flexion limited to 60 degrees with pain and to 50 degrees during a flare-up. 2. From January 31, 2014 to January 9, 2021, at worst, her left knee extension was limited to 30 degrees with pain, and since January 9, 2021 she has had the highest permissible schedular rating for the limitation of extension of her left knee, so restriction in this direction to at least 45 degrees. CONCLUSIONS OF LAW 1. From January 9, 2021 onward, the criteria are met for entitlement to a 10 percent rating, though no greater, for left knee osteoarthritis with limitation of flexion. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5003-5260. 2. From January 31, 2014 to January 9, 2021 the criteria are not met for entitlement to a rating higher than 40 percent for left knee osteoarthritis with limitation of extension. Id., DC 5003-5261. 3. From January 9, 2021 onward, the criteria are not met for entitlement to a rating in excess of 50 percent for the osteoarthritis of the left knee with limitation of extension. Id. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1980 to August 1981. This appeal to the Board of Veterans’ Appeals (Board) is from a January 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) – which, in relevant part, confirmed and continued a 10 percent rating then in effect for the Veteran’s left knee disability that, at the time, was characterized as left patellar chondromalacia. In March 2020, the Veteran testified in support of her claim for a higher rating for this left knee disability during a hearing before the undersigned Veterans Law Judge (VLJ) of the Board. A transcript of the hearing is of record. In October 2020, the Board granted a higher 40 percent rating for the left knee disability (still at the time characterized as left patellar chondromalacia) as of an earlier effective date – namely, beginning in January 2014 rather than just as of April 16, 2014. The Board also, however, remanded the claim for a rating higher than 40 percent for this left knee disability back to the RO for further development and consideration – including especially to have the Veteran undergo another VA examination reassessing the severity of this service-connected disability. That remand instruction since has been completed as directed. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only “substantial” rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). An RO decision later in October 2020 implementing the Board’s grant of the higher 40 percent rating for the left knee disability as of an earlier effective date concluded that rating increase should occur as of January 31, 2014. An even more recent January 2021 RO decision, also on remand, parceled out ratings for the Veteran’s left knee disability. A 40 percent rating was assigned for osteoarthritis of this knee with limitation of extension (previously rated as left patellar chondromalacia) retroactively effective from January 31, 2014, and, effective January 9, 2021, an even higher 50 percent rating was granted for this component of the left knee disability. As well, the RO granted service connection and a separate 0 percent rating for osteoarthritis of the left knee with limitation of flexion, also effective from January 9, 2021. The Veteran since has continued to appeal for even higher ratings for her left knee disability, so this appeal now concerns whether greater ratings are warranted for each component during the times indicated. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (receipt of a higher rating, but less than maximum possible rating and for all of the review period at issue, does not abrogate a pending appeal).   Increased Ratings Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations 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. When evaluating the severity of a disability, it is essential the disability is considered in the context of its entire recorded history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). But if the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings, then separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings and is employed for initial or established ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, the Veteran’s left knee limitation of extension has two “stages”: 1) January 31, 2014 (the date she filed this claim) to January 8, 2021, when it was rated as 40-percent disabling; and 2) from January 9, 2021 onward, when it has been rated, instead, as 50-percent disabling. If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. In general, it is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. 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). The Veteran’s left knee osteoarthritis with limitation of extension is rated under DC 5003-5261. Hyphenated diagnostic codes are used when a rating under one DC requires use of an additional DC to identify the specific basis for the evaluation assigned. 38 C.F.R. § 4.27. Here, the hyphenated DC represents degenerative arthritis (DC 5003), including osteoarthritis, and limitation of extension of the knee (DC 5261). She additionally has been granted a separate rating for limitation of left knee flexion owing to the osteoarthritis, but instead under DC 5003-5260. See VAOPGCPREC 9-2004 (September 17, 2004) (explaining that separate ratings are permissible for limitation of flexion and extension of the same knee joint).   The schedular criteria for rating musculoskeletal disabilities, including those owing to degenerative arthritis (DC 5003), were amended effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 230 (Nov. 30, 2020). More specifically, DC 5003 was updated to specify that it pertains to degenerative arthritis, other than post-traumatic, however the rating criteria did not change. Id. Under DC 5003, degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion of the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate DCs, 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 DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent rating is warranted for X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. A 20 percent rating is warranted for X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, DC 5003. While portions of the Rating Schedule addressing the musculoskeletal system were revised effective February 7, 2021, DCs 5260 and 5261 for limitation of flexion and extension of the knee were not changed. Under DC 5260, for limitation of flexion, a noncompensable rating is warranted for flexion 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. Under DC 5261, for limitation of extension, a 40 percent rating is warranted for extension limited to 30 degrees. A 50 percent rating is warranted for extension limited to 45 degrees.   1. A higher 10 percent rating, though no greater, is granted for the left knee limitation of flexion from January 9, 2021 onward As a result of the January 2021 VA examination on remand, the RO, on its own initiative (sua sponte), awarded the Veteran a separate 0 percent (noncompensable) rating for limitation of flexion of her left knee. This component of her left knee disability is rated under DC 5003-5260. The report of that January 2021 VA examination shows the Veteran has flexion of her left knee to from 45 to 60 degrees, whereas normal flexion is to 140 degrees. See 38 C.F.R. § 4.71, Plate II. According to DC 5260, a 0 percent rating is warranted for flexion limited to 60 degrees and a 10 percent rating for flexion limited to 45 degrees. See 38 C.F.R. § 4.71a, DC 5260. However, because there is X-ray evidence of degenerative arthritis (osteoarthritis) in one joint of this knee, a minimum 10 percent rating for left knee limitation of flexion is appropriate, even absent a compensable level of limited flexion, meaning even when flexion is not limited to 45 degrees. 38 C.F.R. § 4.71a, DC 5003-5260. No greater rating is warranted in this circumstance, however. The Court explained in Mitchell that the evaluation of painful motion as limited motion only applies when, as here, limitation of motion is 0-percent disabling (i.e., noncompensable) under the applicable DC. Although painful motion is entitled to a minimum 10 percent rating under Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991), when read together with DC 5003 regarding arthritis, it does not follow that the maximum rating is warranted under the applicable DC pertaining to range of motion simply because pain is present throughout the range of motion. Id. Further, a separate rating is not required for pain. See Spurgeon v. Brown, 10 Vet. App. 194 (1997). As such, the Veteran already has the maximum permissible rating in this circumstance and given her current disability symptoms and consequent impairment owing to this specific component of her left knee disability.   2. Entitlement to a rating in excess of 40 percent from January 31, 2014 to January 9, 2021 for the osteoarthritis of the left knee with limitation of extension The Board finds that the preponderance of the evidence is against a rating greater than 40 percent for the osteoarthritis of the left knee with limitation of extension from January 31, 2014 to January 9, 2021. The Veteran underwent a VA knee examination in January 2015. During that examination, she reported that her knee limits walking, bending, and dressing. She also reported flare-ups of throbbing pain about three to four times per week, usually lasting two or more hours. She had extension from 95 to 30 degrees and flexion from 30 to 95 degrees (so the same range of motion in the each direction), whereas, as already mentioned, normal range of motion of the knee is from 0 to 140 degrees (full extension to full flexion). 38 C.F.R. § 4.71, Plate II. So, her extension was limited by 30 degrees, i.e., 30 degrees shy of full extension to 0 degrees. There was evidence of pain on motion and with weightbearing. The examiner observed no ankylosis, no joint instability, no tibial or fibula impairment, and no meniscal conditions. Of note, the examiner observed the Veteran was able to fully extend both knees while standing, which he noted was inconsistent with her measured range of motion and, thus, the range of motion measurements during that examination were not reliable for rating purposes. Further, the examiner found that the Veteran exhibited “significant voluntary guarding” during the examination. The Veteran next underwent a VA knee examination in April 2016. During this subsequent examination, she reported that her left knee disability results in decreased motion due to the pain. She described the pain as “feels like hit with hammer when moving it.” Upon range of motion testing, she was found to have left leg extension between 90 and 30 degrees where, again, the normal range is from 140 to 0 degrees. She also had a limitation of flexion of 30 to 90 degrees with normal range from 0 to 140 degrees. The examiner observed pain on motion and with weight bearing. The Veteran estimated that, during a flare-up, her left knee extension would be limited to from 85 to 30 degrees and her flexion limited to from 30 to 85 degrees. The examiner observed no ankylosis, no joint instability, no tibial or fibula impairment, and no meniscal conditions. The examiner noted that the Veteran’s left knee disability was stable and moderate in severity. During her March 2020 hearing before this Board, the Veteran testified that she believed the previous VA knee examinations were not conducted correctly as the examiners did not use a goniometer to measure range of motion. She further testified that her range of motion measurements were exaggerated by the examiners, despite these examination reports resulting in a higher 40 percent rating for her left knee limitation of extension. Based on her hearing testimony and the amount of time that passed since the most recent VA knee examination, the Board remanded this claim in October 2020 to afford her a new VA knee examination, which she subsequently had on January 9, 2021. As will be discussed, it was based on that examination that the rating for her extension limitation was increased from 40 to 50 percent as of the date of that examination. However, until that point a rating higher than 40 percent was not warranted. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain, pain during flare-ups, and pain during repetitive use over time. However, even considering her lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that she had flare-ups three to four times per week would not result in limitation of motion more nearly approximating extension limited to 45 degrees for this period. The Board also has considered the other DCs pertaining to the knee. 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). As discussed, the medical evidence of record does not show that the Veteran had any ankylosis, recurrent subluxation or lateral instability, meniscal dislocation or removal, impairment of the tibia or fibula, or genu recurvatum. As such, a rating under the DCs pertaining to these other impairments is not warranted. See 38 C.F.R. § 4.71a, DCs 5256-5259, 5262, 5263.   In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 40 percent for the osteoarthritis of her left knee with limitation of extension from January 31, 2014 to January 9, 2021. In denying any greater 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. 3. Entitlement to a rating in excess of 50 percent for the osteoarthritis of the left knee with limitation of extension since January 9, 2021 During the January 9, 2021 VA examination already mentioned, which the Veteran underwent on remand to reassess the severity of her left knee disability, so including this component of it, she stated that her left knee prevents her from standing or walking at all and interferes with sitting. She had left knee extension from 45 to 60 degrees and flexion from 60 to 45 degrees, both with pain. After repetitive use over time, she had extension and flexion at 50 degrees with pain, fatigue, and weakness, which she also estimated was the same during flare-ups. According to DC 5261, when, as here, knee extension is limited to at least 45 degrees – which it was for the first time during that January 9, 2021 VA examination, a 50 percent rating is warranted under this code. And, recognizing this, the RO already assigned this greater rating when readjudicating the claim on remand and considering the results of that VA examination. Moreover, this is the highest possible rating under DC 5261. As the Veteran now has the highest permissible schedular rating for limitation of extension of her knee from January 9, 2021 onward, there is no basis to award an even greater evaluation – at least not under DC 5261. Consequently, entitlement to an even higher disability rating on an extra-schedular basis has been considered, but an extra-schedular rating is not warranted as the Veteran's reported symptoms are contemplated by the applicable rating criteria. See Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). That is, her left knee symptoms are fully contemplated by the assigned DCs.   The Board also has again considered the other DCs pertaining to the knee and leg. However, the January 2021 VA knee examination did not detect any ankylosis, recurrent subluxation or lateral instability, meniscal condition, impairment of the tibia or fibula, or genu recurvatum. As such, a rating under DCs 5256 through 5259, 5262, or 5263 would to be appropriate. In conclusion, then, the Board finds that the preponderance of the evidence is against any rating greater than 50 percent for the osteoarthritis of the left knee with limitation of extension since January 9, 2021, either on a schedular or extra-schedular basis. In denying any higher rating, the Board finds the benefit of the doubt doctrine inapplicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASON FOR REMAND Entitlement to service connection for an acquired psychiatric disorder is remanded. The Veteran has contended multiple theories of entitlement in relation to her claim for service connection for an acquired psychiatric disorder. Among these numerous means of attributing her disorder to her service, she asserts it is secondary to her service-connected left knee disabilities. A preliminary review of the record reveals the Veteran underwent a VA psychiatric examination in July 2016, and that this examiner was asked to provide an opinion on this notion of secondary service connection. But this examiner only provided an opinion on proximate cause, not also on aggravation. And, claims predicated on secondary service connection require opinions on both causation and aggravation. See El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013); Allen v. Brown, 7 Vet. App. 439, 448 (1995). Thus, the July 2016 VA opinion concerning secondary service connection is inadequate. When VA obtains an opinion, it must ensure the opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).   Accordingly, this remaining claim is REMANDED for the following still additional development and consideration: 1. If there are outstanding records concerning this remaining claim for service connection for a mental disorder, obtain them and appropriately notify the Veteran and her representative if unable to obtain any additional records that she identifies with the required amount of information. 38 C.F.R. § 3.159(c) and (e). 2. After obtaining all additional treatment or other relevant records, obtain an addendum opinion from an appropriate clinician (as a supplement to the July 2016 VA examination and opinion) regarding whether any acquired psychiatric disorder is at least as likely as not proximately due to OR aggravated by the Veteran’s service-connected left knee and ankle disabilities. *The examiner is asked to provide an opinion on both proximate cause AND aggravation. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Pak 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.