Citation Nr: 21028276 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 15-30 515 DATE: May 10, 2021 ORDER Entitlement to ratings in excess of 10 percent prior to January 17, 2020 and in excess of 20 percent from January 17, 2020, for the service-connected left knee osteoarthritis is denied. FINDINGS OF FACT 1. Prior to January 17, 2020, the Veterans left knee osteoarthritis has been manifested by pain with movement; limitation of flexion to 60 degrees or less, or limitation of extension to 10 degrees or more, have not been evidence. 2. Since January 17, 2020, the Veterans left knee osteoarthritis has been manifested by functional extension of leg limited to 15 degrees; extension of leg limited to 20 degrees is not demonstrated. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 10 percent prior to January 17, 2020, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Codes 5003, 5260, 5261. 2. The criteria for entitlement to a rating in excess of 20 percent from to January 17, 2020, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Codes 5003, 5260, 5261. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1981 to June 1986. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision issued by the Department of Veterans Appeals (VA) Regional Office (RO) in Baltimore, Maryland. The matter was previously before the Board in July 2020, at which time it was remanded for further development. In addition to a January 2020 rating decision, the agency of original jurisdiction (AOJ) had issued a supplemental statement of the case (SSOC) in January 2020. The Board notes that instability of the left knee is rated separately, and is not part of the current appeal. Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). These duties have been satisfied in this case. Appropriate notice was provided in April 2020. The RO associated the Veteran's service and VA and private outpatient treatment records with the claims file. All released or submitted private treatment records have been associated with the claims file. No other relevant records have been identified and are outstanding. Appropriate and necessary examinations were afforded the Veteran, and are adequate for evaluation, as they include needed findings to permit application of the rating schedule and identification of current disability. The AOJ provided a supplemental statement of the case (SSOC) in October 2020, with the correct diagnostic codes include as per the Board's remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). As such, VA has satisfied its duty to assist. 38 U.S.C. § 5103A; 38C.F.R. §3.159(c). Increased Rating Disability evaluations are determined by comparing the Veteran's current symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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. 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.A. § 5107; 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. The Veteran is currently rated 10 percent disabled by left knee osteoarthritis prior to January 17, 2020 and 20 percent from January 17, 2020. Prior to January 17, 2020, the Veteran is rated under 38 C.F.R. § 4.71a, Code 5003-5260, which pertains to arthritis and limitation of extension of the knee, respectively. Hyphenated Codes are used when a rating under one Code requires use of an additional Code to identify the basis for the evaluation assigned. Multiple Codes are potentially applicable to evaluation of the knees. Simultaneous compensation under several Codes is permissible so long as differing symptomatology is being compensated by each Code. For example, limitations of flexion (Code 5260) and extension (Code 5261) may both be rated, but a rating for arthritis (Code 5003) cannot be combined with either, as it refers to general limitations of motion and would include both flexion and extension. Similarly, instability (Code 5257) and meniscal disabilities (Codes 5258 and 5259) can be rated with limits of motion, and with each other, so long as differing symptoms and manifestations are being compensated. VAOGCPREC 9-2004; VAOPGCPREC 23-97; VAOPGCPREC 9-98. All potentially applicable Codes have been considered. Code 5003 assigns evaluations for degenerative arthritis, other than post-traumatic. Degenerative arthritis established by X-ray findings will be rated based on limitation of motion under the appropriate Codes for the specific joint or joints involved (Code 5200 etc.). When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate Codes, 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 Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Code 5003. As only one joint is involved here, no increased evaluation is available for the left knee under Code 5003. Code 5260 provides that a 10 percent rating is assignable for flexion limited to 45 degrees, 20 percent when limited to 30 degrees, and 50 percent when limited to 15 degrees. 38 C.F.R. § 4.71a, Code 5260. Code 5261 provides that a 10 percent rating is assignable for extension limited to 10 degrees, 20 percent for when limited to 15 degrees, 30 percent when limited to 20 degrees, 40 percent when limited to 30 degrees, and 50 percent when limited to 45 degrees. 38 C.F.R. § 4.71a, Code 5261. 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). Effective February 7, 2021, VA amended the rating schedule with regard to the musculoskeletal system. However, with regard to the Diagnostic Codes applied here, there changes are not substantive and are therefore not discussed in detail. Prior to January 17, 2020 At a February 2015 VA examination, the Veteran reported that he had intermittent swelling and discomfort in the left knee. Pain varied from a 2 to a 7 daily. He noticed locking of the joint after standing for a half hour, and sitting for that time causes pain. When pain flared, he walked slowly and rested frequently. He used a cane and knee brace, and self-treated with over the counter medication. He had undergone a meniscectomy in 2004, which improved locking . but he continued to have pain. Range of motion was from 0 degrees extension to 105 degrees flexion, with limitation from pain; movement was possible until 120 degrees. With repeated movement he lost 5 degrees of extension. The knee was stable; x-ray showed DJD. The Veteran was afforded a VA examination in May 2017. Upon physical examination the Veteran displayed 0 to 90 degrees of flexion and 90 to 0 degrees of extension for his left knee. The Veteran was examined immediately after repetitive use over time. The examiner found that the examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time. Specifically, pain was identified as significantly limiting functional ability with repeated use over a period of time. Additionally, the examination was conducted during a flare-up resulting in flexion of 0 to 75 degrees and extension of 75 to 0 degrees. Another examination was given in September 2018. The Veteran displayed 0 to 70 degrees of flexion and 70 to 0 degrees of extension. He was examined immediately after repetitive use over time without significant limitation of functional ability due to pain, weakness, fatigability or incoordination. The examination was not conducted during a flare-up, but it was determined that the examination was medically consistent with the Veteran's statements describing functional loss during a flare-up. The Veteran's left knee osteoarthritis does not warrant a compensable rating under Code 5260 or 5261, and accordingly a minimum 10 percent rating is properly assigned for the DJD with painful and limited motion. No increased rating is warranted, as even considering the reported actual functional impairment due to pain, weakness, incoordination, and fatigue on flare-up, the ranges of motion continue to exceed the necessary measurements. Since January 17, 2020 A knee and lower leg condition VA examination was conducted on January 17, 2020. Upon physical examination the Veteran displayed 85 degrees of flexion and loss of 10 degrees of extension for his left knee. Pain resulting in functional loss was also noted during initial range of motion testing. The Veteran was not able to perform repetitive use testing with at least three repetitions due to his fear of more pain. The examination was not conducted during a flare-up or following use over time, but it was determined that the examination was medically consistent with the Veteran's statements describing functional loss during such times. The examiner estimated that during a flare-up, pain was significantly limiting functional ability, resulting in limitation to 75 degrees on flexion and to 15 degrees on extension. Under Code 5261, the Veteran is entitled to a 20 percent disability due to a limitation of extension between 15 to 19 degrees from January 17, 2020. He does not meet a compensable rating for limitation of flexion. Additionally, the Veteran is not entitled to a separate rating under Code 5003 or 38 C.F.R. § 4.59, as his limitation of extension qualifies as a compensable disability rating; simultaneous rating under a general rating provision would be pyramiding. 38 C.F.R. § 4.14; VAOGCPREC 9-2004; VAOPGCPREC 23-97; VAOPGCPREC 9-98. A 30 percent disability rating for limitation of extension is not warranted unless the evidence showed the Veteran's left knee extension limitation was between 20 and 29 degrees. 38 C.F.R. § 4.71a, Code 5261. No actual functional impairment at that level is shown. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Nolan, Shane D. 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.