Citation Nr: 21027618 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 16-54 711 DATE: May 6, 2021 ORDER Entitlement to a rating in excess of 10 percent for a right knee strain associated with traumatic arthritis, residual of fracture, left foot, is denied. Entitlement to a rating in excess of 10 percent for a left knee sprain, strain and arthritis associated with traumatic arthritis, residual of fracture, left foot, is denied. REMANDED Entitlement to service connection for right chronic sprain/strain, carpal tunnel syndrome (CTS), is remanded. Entitlement to a separate rating for instability of the right knee is remanded. Entitlement to a separate rating for instability of the left knee is remanded. FINDINGS OF FACT 1. The right knee sprain, strain and arthritis associated with traumatic arthritis, residual of fracture, left foot has not been productive of limitation of right knee flexion to 30 degrees or less or limitation of right knee extension to 15 degrees or more. 2. The Veteran's left knee strain associated with traumatic arthritis, residual of fracture, left foot has not been productive of limitation of left knee flexion to 30 degrees or less or limitation of left knee extension to 15 degrees or more. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for right knee strain associated with traumatic arthritis, residual of fracture, left foot are not met. 38 U.S.C. §§ 1155, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes 5260-5261 (2018). 2. The criteria for a rating in excess of 10 percent for left knee sprain, strain and arthritis associated with traumatic arthritis, residual of fracture, left foot are not met. 38 U.S.C. §§ 1155, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes 5260-5261 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1998 to April 2002. These matters come before the Board of Veterans' Appeals (Board) on appeal from a rating decision of January 2014 issued by the Department of Veteran's Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at an April 2019 Board hearing. A transcript of the hearing is of record. Increased Rating Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 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 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 entitlement to compensation has already 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). Separate ratings may be assigned for separate periods of time based on the facts found, however. This practice is known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126 127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. 38 C.F.R. § 4.45. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Saunders v. Wilkie, 886 F. 3d (Fed. Cir. 2018); 38 C.F.R. § 4.59. Painful motion is considered limited motion at the point that pain actually sets in. VAOPGCPREC 9-98. Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159 (a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159 (a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). A layperson is generally not capable of opining on matters requiring medical knowledge. If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107 (West 2002); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. 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. 1. Entitlement to a rating of 20 percent for left knee sprain, strain and arthritis associated with traumatic arthritis, residual of fracture, left foot. 2. Entitlement to a rating of 20 percent for right knee strain associated with traumatic arthritis, residual of fracture, left foot. The Veteran contends that he is entitled to a rating in excess of 10 percent for his left and right knee disabilities. In April 2013 the Veteran filed increased-rating claims with respect to both the left knee and the right knee. A rating decision of January 2014 continued the 10-percent ratings for the left knee and the right knee. The Veteran appealed. See notice of disagreement of February 2014; VA Form 9 of October 2016. The Veteran's representative argues that the examination for the knee conditions are inadequate. In January 2014, the Veteran submitted a notice of disagreement. The Veteran argued that VA found the Veteran's symptoms are consistent with an evaluation of 10 percent for right and left knee strains. He reports his symptoms are more consistent with an evaluation of at least 20 percent as VA failed in their duty to assist by not providing an adequate exam when there was a plausible basis. In addressing this argument, the Veteran was subsequently afforded a VA examination to adequately assess the severity of the Veteran's left and right knee conditions. Different Diagnostic Codes (DC) are potentially applicable for evaluation of a knee disability. Code 5256 is utilized for evaluation of ankylosis of the knee or the functional equivalent. As there is motion of both knees, this Code is not applicable here. While evaluations under Code 5262 may be based in part upon knee disability, the underlying impairment must be related to damage to the bones of the lower leg. No tibia or fibula impairment is shown here. 38 C.F.R. § 4.71a. For limitation of motion, there are three potentially applicable Diagnostic Codes. Code 5260 assigns evaluations based on limitation of flexion. Limitation to 60 degrees merits a noncompensable, or 0 percent, evaluation. A 10 percent evaluation is assigned for limitation to 45 degrees. Limitation to 30 degrees flexion warrants a 20 percent evaluation, and a 30 percent evaluation is assigned for limitation to 15 degrees of flexion. 38 C.F.R. § 4.71a, Code 5260. Limitation of extension is rated under Code 5261. Under this Diagnostic Code, limitation of knee extension to 10 degrees warrants a 10 percent rating. Simultaneous ratings for impairments in both planes (flexion and extension) are allowable, but in this instance, no compensable limitation of extension is documented at any time. In evaluating any disability on the basis of limitation of motion, VA must consider the actual degree of functional impairment imposed by pain, incoordination, weakness, fatigue, and lack of endurance with repetitive motion. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). In July 2013, private clinical records reveal the Veteran complained of pain in both knees. The Veteran's range of motion for his knees for flexion and extension were within functional limits (WFL) for both. In August and September 2013, he reported pain in both knees. He stated that his pain was sore and a 4/10. In October 2013, the pain was reported as 5/10. Slow cadence and gait were observed. When exercising, fatigue and mild pain was noted with both knees and pain increased to 6.5/10. In December 2013, the Veteran underwent a VA examination of the knees. Bilateral knee strain was diagnosed. The Veteran reported increased pain and daily flare-ups of knee pain. He states he has flares regularly, almost every time he stands. He also reports aching and stiffness. Upon range of motion testing, the right knee flexion ended at 90 degrees with objective pain noted at 50 degrees. Right knee extension was full to 0 degrees with no pain present. Left knee flexion ended at 90 degrees with objective evidence of pain noted at 70 degrees. Left knee extension was full to 0 degrees with no pain present. The Veteran was able to perform repetitive-use testing with three repetitions. No changes in the range of motion were noted for both flexion and extension in both knees. The examiner opined the Veteran would have functional loss after repetitive use including less movement than normal in both knees, pain on movement on both knees, disturbance of locomotion on both knees, and interference with sitting, standing, and weight-bearing in both knees. Joint stability testing was interpreted as being normal for both knees in all tests. There was no evidence or history of recurrent patellar subluxation/dislocation. There was no meniscal conditions or surgical procedures for a meniscal condition. The examiner opined that the bilateral knee condition would impact the Veteran's ability to work as he has to avoid prolonged standing, walking, and walking on stairs/uneven surfaces. The Veteran reported he has to get reasonable accomodation at work to be permitted to take more frequent breaks at work. The Veteran underwent a VA examination of the knees in August 2016 where he was diagnosed with bilateral knee strain. He reported pain, stiffness, a feeling of weakness and the knees occasionally going out on him. He reported having knee symptom flare-ups characterized by severe pain, weakness, and buckling. Upon examination, there was abnormal range of motion of both knees with pain noted on examination that causes functional loss. Right knee flexion ended at 90 degrees and right knee extension ended at 0 degrees. There was history of pain with weight bearing. There was also objective evidence of localized tenderness or pain on palpation of the medial joint line. There is evidence of crepitus. Left knee flexion ended at 90 degrees and left knee extension ended at 0 degrees. There was a history of pain with weight bearing. There was also objective evidence of localized tenderness or pain on palpation of the medial joint line. There is evidence of crepitus. The Veteran was able to perform both knee repetitive-use testing with at least three repetitions and there was no additional functional loss or range of motion. The examiner noted that the Veteran was not examined immediately after repetitive use over time and could not provide an opinion as to additional functional loss. The examination was not being conducted during a flare-up. No ankylosis of the knee was noted. The examiner noted the Veteran reported a history of bilateral, moderate subluxation and lateral instability. Joint testing conducted revealed no joint instability for the right knee. Stability testing was also noted to have been performed for the left knee, but no results for the left knee were provided in the report. The Veteran reported a history of a meniscus (semilunar cartilage) condition in both knees which included frequent episodes of joint locking and joint pain. The Veteran's regular use of knee braces was noted. The Veteran's bilateral knee condition impacted his ability to work as he was found to be unable to kneel, crawl, or climb because of his knee disabilities. In April 2019, the Veteran testified at the Board before the undersigned Veteran's Law Judge. The Veteran's testimony was found to be credible at the hearing. The Veteran stated that both knees have instability as he has a weak feeling and his knees give out on him at different times walking around or standing. The Veteran testifies that his knees buckle and has to catch himself from falling when they give out on him. The Veteran also testifies that he has limited motion during knee flare-ups. He states that the more he is on his knees, the worst it gets. A private clinical record dated in December 2019 reveals the Veteran complained of chronic knee pain. X-rays were interpreted as showing mild symmetric-appearing degenerative narrowing within the medial compartment of the left slightly greater than right knee with no evidence of superimposed acute osseous abnormality including fracture and subluxation. There were signs of joint effusion. A January 2020 private clinical record indicates the Veteran complained of chronic bilateral knee pain for years. An MRI of the left knee was interpreted as revealing trace joint effusion and minimal chondromalacia. There was no evidence of meniscal tear or acute ligament tear. The MRI of the right knee was interpreted as revealing trace joint effusion, a very small Baker's cyst and findings suggestive of a grade 1 muscle strain. A February 2020 private clinical record indicates the Veteran complained of bilateral knee pain and having pain for many years. The Veteran has no history of injections in his knees. He has tried braces and physical therapy with some relief. He also has some instability in both knees. As a result of this pain, the Veteran has taken Celebrex for the pain as needed with some relief. Upon physical examination, the examiner noted right knee pain over the medial and lateral joint lines and right knee pain with patellofemoral compression. The examiner found there was good stability to varus/valgus stress and anterior/posterior translation, no joint effusion, and pain with the McMurray's test. The examiner also noted left knee pain over the medial joint line and having pain with patellofemoral compression. He stated that he had good stability to varus/valgus stress and anterior/posterior translation, no joint effusion, and pain with the McMurray's test. The Veteran's active range of motion for the left knee flexion was noted at 125 degrees while his left knee extension ended at 0 degrees. In February 2020, the Veteran was afforded another VA examination for his knees. The Veteran was diagnosed with right knee strain associated with traumatic arthritis, residual of fracture, left foot/right knee strain and left knee strain associated with traumatic arthritis, residual of fracture, left foot/left knee sprain and arthritis with a date of diagnosis of both in 2000. The Veteran reported his bilateral knee pain has gotten worse. He states as current symptoms he has pain, stiffness and will also get bilateral instability with giving way. The Veteran reported flare-ups as he will have pain with activity. He also reports functional loss as he will avoid walking or standing during the flare due to the pain and will rest. Upon initial range of motion examination right knee flexion ended at 100 degrees and right knee extension ended at 0 degrees. Pain was noted on the exam on both flexion and extension but the pain did not result in functional loss. There was also objective evidence of moderate localized tenderness or pain on palpation of the medial joint line. There was no evidence of pain with weight bearing. There is no evidence of crepitus. Left knee flexion ended at 100 degrees and left knee extension ended at 0 degrees. Pain was noted on the exam on both flexion and extension but did not result in functional loss. There was also objective evidence of moderate localized tenderness or pain on palpation of the medial joint line. There was no evidence of pain with weight bearing. There is no evidence of crepitus. The Veteran was able to perform both knee repetitive-use testing with at least three repetitions and there was no additional functional loss or range of motion. The examiner noted that the Veteran was not examined immediately after repetitive use over time, but the examination is medically consistent with the Veteran's statements describing functional loss with repetitive use over time in both knees. Pain significantly limits functional ability with repeated use over a period of time. Range of motion has moderate loss after repetitive movement. The exam was being conducted during a flare-up. Pain significantly limits functional ability with flare-ups. There was no loss of range of motion noted after repetitive testing. No muscle atrophy was noted. No ankylosis of the knee was noted. The examiner reported there was no history of bilateral subluxation and lateral instability. The Veteran does, however, have a history of recurrent effusion as he will get swelling of the knees with activity and will have to rest to help with the swelling. Testing of joint stability revealed all were normal. As assistive devices, the Veteran uses a brace regularly. The examiner opined that the Veteran's bilateral knee condition does impact his ability to perform any type of occupational task as he has pain with prolonged standing/walking and would have to take breaks to help with the pain. The examiner found there is objective evidence of pain when the left and right knee is used in non-weight bearing. A March 2020 private clinical record indicates the Veteran complained of bilateral knee pain. Upon active range of motion testing for the right knee, the Veteran's right knee flexion ended at 125 degrees, while his right knee extension ended at 0 degrees. The Board has carefully considered all the evidence and potentially applicable diagnostic codes, including the DeLuca factors, and finds that the disability pictures of the Veteran's right and left knee strain do not warrant ratings in excess of 10 percent based on limitation of motion. The evidence does not show that the Veteran's symptoms meet the criteria for a 20 percent rating pursuant to DC 5260 because the flexion of the Veteran's left leg and/or his right leg is not limited to 30 degrees or less. Even with consideration of the DeLuca factors, the Veteran's leg flexion is well in excess of 30 degrees. The greatest level of impairment in the range of motion for flexion was 50 degrees after repetitive use testing. The currently assigned 10 percent disability rating for each bilateral lower extremity contemplates the Veteran's functional limitations and compensates him for such. Saunders v. Wilkie, 886 F. 3d (Fed. Cir. 2018); 38 C.F.R. § 4.59. The Board has considered whether a separate rating is warranted for either knee under 38 C.F.R. § 4.71a, Diagnostic Code 5261, for limitation of extension. However, the Veteran's extension has been full for both knees for the entire pendency of the claim. The Board has considered factors such as pain and fatigue but finds that these symptoms have already been considered in the assignment of the 10 percent rating under Diagnostic Code 5260. In fact, it is only with consideration of these symptoms that the current 10 percent rating under Diagnostic Code 5260 is supported for each knee. Thus, the Board cannot rate the same symptoms again under Diagnostic Code 5261 because a separate rating in this instance would violate the rule against pyramiding. Bilateral Meniscal Conditions Disabilities of the knee and leg may also be evaluated under Diagnostic Codes 5258 and 5259. With respect to dislocated and removal of semilunar cartilage of the left and right knees, the Board determines that, a separate rating is not warranted. In the August 22, 2016 VA examination, the examiner noted that the Veteran has had frequent episodes of locking, pain, and effusion into the joint. However, this is the only reference to a meniscal condition. No meniscal conditions were found at any other VA examinations before and after this August 2016 VA examination. In addition, the January 2020 MRI was negative for finding a meniscal tear. The Veteran is competent and credible in his report of swelling of the left knee. See Layno v. Brown, 6 Vet. App. 465 (1994). However, locking and pain are not shown by medical examination to support the Veteran's competent and credible statements. The competent probative evidence does not demonstrate that the Veteran's left and right knee disabilities are manifested by dislocated or removal of semilunar cartilage. Therefore, a separate rating for the left and right knees are not assigned. See 38 C.F.R. § 4.71a. 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). Based on the foregoing, the Board finds that the evidence does not support the assignment of an increased rating in excess of 10 percent for both knees. Consequently, the Veteran's claims seeking increased ratings for left knee sprain, strain and arthritis associated with traumatic arthritis, residual of fracture, left foot and for right knee strain associated with traumatic arthritis, residual of fracture, left foot must be denied. REASONS FOR REMAND 1. Entitlement to service connection for right chronic sprain/strain, carpal tunnel syndrome (CTS), is remanded. In September 2019, the Board remanded the right chronic sprain/strain, carpal tunnel syndrome (CTS) claim for a medical examination and opinion. The remand instructions specifically directed that the examiner must consider and address the Veteran's lay contentions of continuity of symptomology from active service to present. The Veteran was afforded the requested examination in February 2020. The examination report did not comply with the Board's remand instructions and must be remanded for compliance with these instructions. The examiner did not address, in any way, the Veteran's competent and credible report of first experiencing right wrist symptoms during service in 2000 and having recurrent symptoms to the present. In Stegall v. West, 11 Vet. App. 268 (1998), the Court held that a remand by the Board confers on the appellant, as a matter of law, the right to compliance with the remand orders. It was error for the RO to re-certify this appeal to the Board without complying with the July 2018 remand instructions. Given this error, another remand is required. In addition, the February 2020 VA examiner indicated that that the claimed disorder was at least as likely as not incurred in or caused by the in-service injury and also indicated that the claimed disorder was less likely than not incurred in or caused by the in-service injury. These conflicting findings require clarification. An addendum opinion must clarify whether the claimed disorder was at least as likely as not incurred in or caused by an in-service injury. Entitlement to a separate rating for a right knee strain associated with traumatic arthritis, residual of fracture, left foot for lateral instability of the right knee is remanded. 2. Entitlement to a separate rating for a left knee sprain, strain and arthritis associated with traumatic arthritis, residual of fracture, left foot for lateral instability of the left knee is remanded. The Veteran contends that a separate rating for a right knee strain associated with traumatic arthritis, residual of fracture, left foot for lateral instability of the right knee is warranted. He also contends that a separate rating for a left knee sprain, strain and arthritis associated with traumatic arthritis, residual of fracture, left foot for lateral instability of the left knee is warranted. In the February 2020 VA examination for the Veteran's knee and lower leg conditions, the examiner noted the Veteran having a brace for regular use. It is not apparent from the record whether the Veteran has been prescribed a knee brace (or any other type of assistive device for the knees). The Board finds a remand is necessary to determine whether the Veteran was prescribed knee braces. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from the February 2020 VA examiner, or another appropriately qualified VA examiner, to determine the nature and etiology of the Veteran's right chronic sprain/strain, carpal tunnel syndrome (CTS) disability. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The addendum opinion must include a notation that this record review took place. It is up to the discretion of the examiner as to whether a new examination of the Veteran is necessary to provide an adequate opinion. After the record review and examination of the Veteran, if deemed necessary by the examiner, the VA examiner is asked to respond to the following inquiry. (a.) Is at least as likely as not (a 50 percent probability or greater) that the Veteran has a right wrist or right hand/fingers disorder related to a disease or injury during service, including the right wrist ganglion cyst diagnosed in 2000. The clinician's report must show that consideration was given to the Veteran's competent and credible statements that his right wrist symptoms began during service in 2000 and have continued to the present. A rationale is required for all opinions in the report. 2. Obtain an addendum opinion from the February 2020 VA examiner, or another appropriately qualified VA examiner, to determine the nature and etiology of the Veteran's right knee strain associated with traumatic arthritis, residual of fracture, left foot for lateral instability of the right knee and left knee sprain, strain and arthritis associated with traumatic arthritis, residual of fracture, left foot for lateral instability of the left knee. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. The addendum opinion must include a notation that this record review took place. It is up to the discretion of the examiner as to whether a new examination of the Veteran is necessary to provide an adequate opinion. After the record review, the VA examiner is asked to respond to the following inquiry. (a.) Was the Veteran prescribed a knee brace or braces or other assistive devices for treatment of the knee symptomology? G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Hughes 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.