Citation Nr: 21026410 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 16-08 134 DATE: May 3, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for degenerative joint disease (DJD) of the left knee based on limitation of motion, prior to November 5, 2019, is denied. FINDING OF FACT Prior to November 5, 2019, the Veteran's left knee disability manifested by painful motion; flexion limited to, at worst, 110 degrees; and normal extension even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups; without recurrent subluxation or lateral instability, effusion, ankylosis, impairment of the tibia and fibula, or genu recurvatum. CONCLUSION OF LAW Prior to November 5, 2019, the criteria for a rating in excess of 10 percent for a left knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5260. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1979 to May 1997. This matter is on appeal of a May 2014 rating decision. In September 2018, the Board denied an increased disability rating for the Veteran's DJD of the left knee based on limitation of motion but granted a separate 10 percent disability rating for symptomatic removal of left knee semilunar cartilage. The Veteran appealed the part of the September 2018 Board decision that denied an increased disability rating based on limitation of motion to the United States Court of Appeals for Veterans Claims (Court). In June 2019, the Court granted a Joint Motion for Remand (JMR). Subsequently, the Board remanded the claim in November 2019 to the Agency of Original Jurisdiction (AOJ) for an adequate VA examination in compliance with an earlier June 2019 Court order. Earlier that same month, the Veteran underwent left total knee replacement (TKR) surgery on November 5, 2019. A February 2020 rating decision awarded the Veteran a temporary 100 percent rating for his left knee disability from November 5, 2019, to December 31, 2019, for convalescence and a 100 percent evaluation pursuant to 38C.F.R. §4.71a, Diagnostic Code 5055 for TKR from January 1, 2020 to December 31, 2020. In April and July 2020, the Board again remanded the claim for further development. Entitlement to a disability rating in excess of 10 percent for DJD of the left knee based on limitation of motion, prior to November 5, 2019, is denied. The Veteran contends that he is entitled to a higher rating because his knee symptoms were worse than contemplated by the 10 percent rating prior to his November 2019 TKR. Initially, the Board notes that 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). 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). However, 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. Because the new regulations did not become effective until February 7, 2021, and the claim only relates to the period prior to November 5, 2019, they are not for application. The Veteran's left knee disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5260, for limitation of flexion of the leg. Prior to November 5, 2019, under Diagnostic Code 5260, 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. 38 C.F.R. § 4.71a, Diagnostic Code 5260. 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." The spine has no opposite 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. Factual Background An April 2014 VA examination indicates that the Veteran experiences steady and light pain in his left knee. He rated his knee pain as three out of 10. He reported flare-ups when walking, standing, sitting, or climbing stairs. The flare-ups were characterized by the need to move around and a loose joint feeling. The knee was noted to swell with change of weather and felt like the joints are touching. Prolonged activity or flare-ups caused additional pain that radiated into the joint. Flare-ups also caused fatigue because the Veteran started limping. An additional decrease in motion of 50 percent was reported with a bad flare-up due to swelling and limited ability to move the knee. The initial range of motion (ROM) was 110 degrees of flexion and full extension to zero degrees. The Veteran was noted to experience no limitation of extension and his normal ROM was noted as 130 degrees of full flexion. There was no change in ROM after three-time repetitive use testing. The Veteran experienced pain to palpation or tenderness. He reported functional impairment characterized by less movement than normal, weakened movement, excess fatigability, pain on movement, and interference with sitting, standing, and weight bearing. The examination showed additional pain, weakness and fatigue with flexing the knee repeatedly. There was no incoordination and no decrease in ROM. The examiner opined that the Veteran's lay report of flare-ups was accurate and acceptable. Joint stability testing was normal and there was no subluxation. The Veteran was noted to have a semilunar cartilage condition with symptoms of meniscal tear, joint locking, and joint pain. The examiner observed that the Veteran sat with his knee outstretched and moved it around off and on while sitting. There was also an occasional pop with motion on left. The Veteran's VA treatment records indicate consistent complaints of knee pain. A March 2015 MRI indicates the Veteran had mild bilateral genu valgus and moderately severe degenerative arthropathy in the left medial joint compartment. June 2015 VA treatment notes include a history of meniscal cartilage removal, but no current catching or locking. The Veteran denied any mechanical catching or locking issues. He had not had any cortisone injections. The physician's observations included that the Veteran was able to fully extend his left knee, fully flex his left knee, and sit with the knee extended in relaxed position. In a July 2018 VA progress note, the Veteran requested to reestablish care. He reported left knee pain with changes in strength, joint swelling, redness, and local heat. The examiner noted he had good range of motion, strength, and tone without edema. His left knee had crepitus with range of motion. An October 2018 VA progress note indicates the Veteran complained of left knee pain that was exacerbated with excessive weightbearing activity. He stated he had tried physical therapy and injections in the past with some relief. Range of motion was noted as flexion to 120 degrees with pain reported at the end of range of motion and mild crepitus. There was joint line tenderness medially but no effusion. The examiner referred to an August 2018 MRI which found left knee with severe degenerative arthrosis of the medial compartment with absence of the medial meniscus and subtotal absence of the medial compartment articular cartilage with subchondral reactive changes. Moderately advanced DJD of the lateral compartment and mild DJD of the patellofemoral joint was noted. Absence of the ACL consistent with chronic tear and degeneration was also noted. In a December 2018 VA progress note, the Veteran reported that he had injection in to his knee a couple years prior, but it only helped a little. He had been told that any further injections were not warranted given the amount of arthritis in his knee. Examination of his left knee showed changes consistent with osteoarthritis. He was able to fully extend his knee and flex to about 120 degrees. He had crepitus with range of motion and tenderness with varus and valgus stressing. There was no effusion noted in his knee and no obvious laxity. X-ray testing showed marked degenerative changes with bone-on-bone contact in the medial compartment, near bone-on-bone contact in the lateral compartment. He also had degenerative changes about the patellofemoral compartment. The diagnosis was significant degenerative joint disease of the left knee. In a December 2020 VA opinion, the examiner noted that the Veteran's left knee problem had good and bad days before his November 2019 surgery. Retrospectively, with regards to his left knee, the examiner estimated he would have had some pain with passive range of motion and sometimes pain with active range of motion. He most likely had pain a lot of times with weight bearing and occasional pain with non-weightbearing. During flare-ups and repetitive use over time, he would have had functional loss in terms of limited forward flexion estimated to 120 degrees and to 0 degrees extension due to pain. Analysis Based on the foregoing, the Board finds that the totality of the evidence does not support a rating higher than 10 percent for his left knee disability. As noted, range of motion testing was performed during the various VA examinations of record. Range of motion was, at worst, 110 degrees of flexion and zero degrees of extension in the left knee. The reports do not suggest that the specific findings on examination, in terms of range of motion, would change to the degree required for a higher rating during a flare-up, after repetitive use, due to pain, or with weight bearing, nor does any other evidence of record to include the Veteran's lay statements. In this regard, the VA examiners noted that the Veteran did not experience additional functional loss following repetitive use, and that knee joint function was additionally limited by pain on motion. The VA examiners noted the Veteran had increased pain with repeated use. The April 2014 VA examiner stated that the Veteran would have half the range of motion in his knee during a flare. At that examination, he had flexion to 110 degrees. Thus, he would have flexion to approximately 55 degrees during a flare-up. In order to warrant a higher rating, the evidence would have to demonstrated flexion limited to 30 degrees. The Board has considered the effects of repeated use over time and flare-ups along with the adequacy of the VA examinations in light of the Court's holdings in Correia and Sharp. See Correia v. McDonald, supra, and Sharp v. Shulkin, supra. In this case, the April 2014 VA examination was conducted prior to Correia and Sharp and provides only partial information as described above. The Board notes that the VA examiner did not test the opposite joint. The April 2014 VA examiner indicated interference with weight-bearing and that pain was noted on examination. The AOJ also obtained a retrospective opinion as to the effects of flare-ups and repetitive use on range of motion and weightbearing in December 2020. The December 2020 VA examiner specifically found that during flare-up and repetitive use, functional loss was limited to forward flexion to 120 degrees and extension to 110 degrees. The Board finds that all information required for rating purposes was provided. In this regard, the Board notes that the examiner clearly noted that the Veteran specifically reported pain and crepitus. There is no other indication from the record, to include the Veteran's own statements, that he experienced additional decreased range of motion, weakness, or incoordination during flare-ups or following repeated use other than shown above. As the Veteran has not endorsed those symptoms, the Board finds the examinations of record to be adequate for rating purposes. See Correia v. McDonald, supra; see also Sharp v. Shulkin, supra. Although the Veteran had pain throughout all ranges of motion, the Court has clearly indicated that painful motion does not equate to limited motion. Mitchell v. Shinseki, supra. Rather, pain must affect some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, and endurance to constitute a functional loss. Id. To the extent that the Veteran pain in his knee, the effect of such pain in the Veteran's knee is already contemplated in the assigned rating. Based on the foregoing, the Board finds the evidence, to include the Veteran's reported symptoms as considered in the VA examination reports and treatment records, does not demonstrate symptoms that rise to the level as required for a higher rating under the diagnostic criteria. While the Veteran has essentially stated that he has reduced motion in his knees, he has not described a range of motion less than that found on examinations. In this regard, he reported that he experienced symptoms that included pain. The Veteran's statements do not show the requisite limitation of motion necessary for higher or separate ratings. Further, treatment records do not show greater limitations of motion than the above examination findings. Specifically, the Veteran was not shown to have range of motion that was limited to 30 degrees of flexion or 20 degrees of extension in the either knee. Given the above, even when considering the impact of knee pain on physical activities, higher or separate ratings are not warranted based on limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5260, 5261. With respect to Diagnostic Code 5257, the Board finds that a higher or separate rating is not warranted in either knee. 38 C.F.R. § 4.71a. The Veteran has not specifically reported a history of instability and the April 2014 and December 2018 VA examiners reported no evidence of laxity. If subluxation or lateral instability were present to a slight degree, as required for a separate compensable rating, the Board would expect that this would have been identified at least once during the multiple tests that were performed or by the Veteran himself during examination. See 38 C.F.R. §§ 4.31, 4.71a, Diagnostic Code 5257. Instead, the examiners stated that there was no history of recurrent subluxation and lateral instability and consistently found that joint testing revealed no instability. Hence, the most probative evidence is against a higher or separate rating for either his left knee disability under Diagnostic Code 5257. 38 C.F.R. § 4.71a. The Board has considered the applicability of other potential diagnostic codes. The Board notes that the Veteran is already in receipt of separate disability rating for a meniscal condition, and the Veteran has not disputed this rating. Additionally, as the evidence of record fails to demonstrate ankylosis, impairment of the tibia or fibula, or genu recurvatum, the Veteran is not entitled to a higher or separate rating under 5258, 5256, 5262, or 5263, respectively, for his left knee disability. The Board acknowledges the Veteran's statements that his left knee disability is more severe than evaluated. The Veteran is competent to report his symptoms and has presented credible statements in this regard, to include pain. Layno v. Brown, supra. The Board finds, however, that neither the Veteran's statement nor medical evidence demonstrates that the criteria for ratings in excess of 10 percent based on limitation of motion have been met. The Board also acknowledges that the Veteran's VA treatment records note complaints of and treatment for his left knee. However, these records do not address the specific rating criteria necessary to determine severity. In determining the actual degree of disability, the examination findings are more probative of the degree of impairment. The Board has considered whether a staged rating under Hart, supra, are warranted, however, the Board finds that his symptomatology has been stable throughout the period on appeal. Therefore, assigning staged ratings is not warranted. Further, 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, supra. Accordingly, the Board finds that the preponderance of the evidence is against the assignment of a rating higher than 10 percent for a left knee disability. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. MARTHA R. LUBOCH Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. M. Donahue Boushehri, 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.