Citation Nr: 21029213 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 16-37 253 DATE: May 12, 2021 ORDER A disability rating in excess of 10 percent for left knee lateral cruciate ligament strain with patellofemoral syndrome ("left knee disability") is denied. A disability rating in excess of 20 percent for fibromyalgia from October 14, 2011 to October 13, 2016 is denied. REMANDED Entitlement to service connection for lupus is remanded. FINDINGS OF FACT 1. Even when taking into account the Veteran's complaints of pain, her left knee disability is not shown to have been manifested by flexion limited to 45 degrees or less, or extension limited to 15 degrees or more. 2. From October 14, 2011 to October 13, 2016, the Veteran's fibromyalgia was not shown to be manifested by symptoms that were constant, or nearly so, and refractory to therapy. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for the Veteran's service-connected left knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5260, 5261. 2. From October 14, 2011 to October 13, 2016, the criteria for a rating in excess of 20 percent for fibromyalgia were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5025. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 2003 to February 2004. She also had service in the United States Army Reserve, to include a period of active duty for training from June 2001 to July 2001. These matters come to the Board of Veterans' Appeals (Board) on appeal from September 2013, May 2016, and February 2017 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office. During the pendency of this appeal, by a rating decision in December 2016, the Veteran's disability rating for fibromyalgia was increased to 40 percent, effective October 13, 2016. Because the decision does not represent a grant of the maximum benefit allowable for the period prior to October 13, 2016, that issue remains in appellate status. AB v. Brown, 6 Vet. App. 35, 38 (1993). In July 2019, the Veteran testified at a Board video-conference hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. This case was previously before the Board in October 2019, when it was remanded to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denials and returned the case to the Board. Higher Ratings Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the evaluations to be assigned to various disabilities. If there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. If different disability ratings are warranted for different periods of time over the life of a claim, "staged" ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). 1. Entitlement to a disability rating in excess of 10 percent for left knee lateral cruciate ligament strain with patellofemoral syndrome. The Veteran seeks a higher rating for her service-connected left knee disability. Her left knee is currently rated as 10 percent disabling pursuant to 38 C.F.R. § 4.59, DC 5261, for painful motion of the knee. Limitation of flexion and extension of the knee joint are evaluated under DCs 5260 and 5261, respectively. Normal range of motion of the knee is 0 degrees of extension and 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. Under Diagnostic Code 5260, a noncompensable rating is warranted when flexion is limited to 60 degrees. A 10 percent rating is warranted if flexion is limited to 45 degrees, and a 20 percent rating is warranted if flexion is limited to 30 degrees. Flexion that is limited to 15 degrees warrants a 30 percent rating. Under Diagnostic Code 5261, a noncompensable rating is assigned when extension is limited to 5 degrees, a 10 percent rating when it is limited to 10 degrees, a 20 percent rating when it is limited to 15 degrees, a 30 percent rating when limited to 20 degrees, a 40 percent rating when limited to 30 degrees, and a 50 percent rating when limited to 45 degrees. 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 that could occur during flare-ups or after repeated use. Further, 38 C.F.R. § 4.45 requires consideration 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). Ultimately, 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 VAOPGCPREC 9-2004, VA's Office of General Counsel held that separate ratings under Diagnostic Codes 5260 and 5261 may be assigned for disability of the same joint. See VAOPGCPREC 9-2004, 69 Fed. Reg. 59,990 (Oct. 6, 2004). Here, the Board must find that the preponderance of the evidence is against the assignment of a rating in excess of 10 percent based on limitation of motion of the left knee, to include on the basis of separate compensable ratings for limitation of flexion and extension. Specifically, even when taking into account the Veteran's complaints of pain, her left knee disability has not been manifested by flexion limited to 45 degrees or less, or extension limited to 15 degrees or more. During a June 2012 VA examination, the Veteran had flexion in her left knee to 125 degrees, with objective evidence of painful motion at 110 degrees. Extension was to 0 degrees, with no objective evidence of painful motion. Upon repetitive use testing, flexion in her left knee was to 135 degrees, with normal extension to 0 degrees. The Veteran reported flare-ups with prolonged walking, swelling with overuse, and pain with kneeling and squatting. It was noted that her left knee disability was characterized by pain on movement. The examiner noted that there was no additional limitation of motion following repetitive use testing. The Veteran exhibited normal strength, but indicated there was evidence of tenderness or pain to palpation related to the joint line or soft tissues. The examiner further found no instability; no patellar subluxation or dislocation; no meniscal conditions; and no other conditions of the knee that were present. Treatment records from November 2012 note flexion to 115 degrees, and normal extension to 0 degrees. The report indicates strength in the knee was within functional limits for age. A May 2013 VA examination revealed normal flexion to 140 degrees, and normal extension to 0 degrees, with no objective evidence of painful motion. No loss of motion was found upon repetitive use testing. The Veteran reported flare-ups manifested by increased pain. The examiner noted that there was no additional limitation of motion following repetitive use testing and no functional loss. The examiner noted normal strength on flexion and extension; no instability; no meniscal conditions; and no other conditions of the knee that were present. X-rays showed no degenerative or traumatic arthritis, with no evidence of patellar subluxation. It was noted that the Veteran experienced mild to moderate increased pain with repetitive use, running, walking, etc. The Veteran underwent another VA examination in July 2014. She reported flare-ups manifested by increased pain with prolonged weight-bearing and ambulation. On initial testing, she had normal flexion to 140 degrees, and normal extension to 0 degrees, and no objective evidence of painful motion. The examiner noted that there was no additional limitation of motion following repetitive use testing and no functional loss. The examiner noted normal strength on flexion and extension; no tenderness or pain to palpation; no instability; no patellar subluxation or dislocation; no meniscal conditions; and no other conditions of the knee that were present. In February 2017, the Veteran was afforded another VA examination. She reported flare-ups manifested by an "annoying" type pain, at least every other week. She stated that they lasted for three to four days, and that she used topical analgesics and rest as treatment. On initial testing, she had flexion to 120 degrees, and extension to 10 degrees. The examiner noted pain on examination causing functional loss. The examiner noted that there was no additional limitation of motion following repetitive use testing. The examiner further noted that the examination was medically consistent with the Veteran's statements describing functional loss during flare-ups. The examiner noted normal strength on flexion and extension; no ankylosis or atrophy; no instability; no patellar subluxation or dislocation; no meniscal conditions; and no other conditions of the knee that were present. According to a March 2020 treatment record, the Veteran reported that she had not had any pain in either knee for years. She indicated that she had been walking and running, as well as training for a run. She denied any instability of the left knee. The record notes a full range of motion. The most recent VA examination in December 2020 noted the Veteran's complaints of pain and stiffness, pursuant to the October 2019 remand. She indicated that the knee was more bothersome when she was active. On initial testing, she had normal flexion to 140 degrees, and normal extension to 0 degrees. The examiner noted no loss of motion on passive range of motion. She further exhibited no pain on weight-bearing or on non-weight bearing. See Correia v. McDonald, 28 Vet. App. 158 (2016). After repetitive use testing, range of motion was not further limited. The examiner also noted no further limitations with flare-ups and repeated use over time. Additionally, the examiner noted that the examination was medically consistent with the Veteran's statements describing functional loss during flare-ups. The examiner noted normal strength on flexion and extension; no ankylosis or atrophy; no instability; no patellar subluxation or dislocation; no meniscal conditions; and no other conditions of the knee that were present. In light of the foregoing, the Board must find that the preponderance of the evidence is against the assignment of a rating in excess of 10 percent for the left knee disability. Simply put, flexion in the knee has exceeded 45 degrees throughout the appeal period, and limitation of extension has not exceeded 10 degrees throughout, even when accounting for episodes of flare-ups with increased pain. 38 C.F.R. § 4.71a, DCs 5260, 5261. The left knee disability has also not been productive of ankylosis, instability, dislocation of the semilunar cartilage, malunion or nonunion of the tibia and fibula, or genu recurvatum. The Board acknowledges the Veteran's lay reports of symptoms and functional loss due to pain. However, even considering the Veteran's lay reports of symptoms and functional loss, the degree of additional limitation reflected by the statements that the Veteran had pain and limited ambulation would not result in limitation of motion more nearly approximating flexion limited to 30 degrees or extension limited to 15 degrees. The objective findings, as discussed above, do not demonstrate that pain has limited motion to the extent that a higher level of compensation is warranted under the applicable diagnostic codes. 38 C.F.R. § 4.71a. Moreover, nothing in the other evidence of record reflects the Veteran would satisfy the criteria for higher rating(s) based upon limitation of motion, to include during flare-ups and/or but for the use of medication. See Jones v. Shinseki, 26 Vet. App. 56 (2012). In light of the foregoing, the Board finds that the Veteran has not met or more nearly approximated the criteria for a rating in excess of 10 percent for her left knee disability based on limitation of motion. As such, the preponderance of the evidence is against the assignment of a higher rating on that basis, to include on the basis of "staged" ratings pursuant to Fenderson and Hart, supra. 2. Entitlement to a disability rating in excess of 20 percent for fibromyalgia from October 14, 2011 to October 13, 2016 The Veteran is in receipt of a 20 percent rating for fibromyalgia from October 14, 2011 to October 13, 2016 under 38 C.F.R. § 4.71a, DC 5025. DC 5025 provides that fibromyalgia (fibrositis, primary fibromyalgia syndrome) with widespread musculoskeletal pain and tender points, with or without associated fatigue, sleep disturbance, stiffness, paresthesias, headache, irritable bowel symptoms, depression, anxiety, or Raynaud's-like symptoms, is to be rated 20 percent disabling if the symptoms are episodic, with exacerbations often precipitated by environmental or emotional stress or by overexertion, and present more than one-third of the time; and 40 percent disabling if the symptoms are constant or nearly constant, and are refractory to therapy. A Note to DC 5025 provides that widespread pain means pain in both the left and right sides of the body, that is both above and below the waist, and that affects both the axial skeleton (i.e., cervical spine, anterior chest, thoracic spine, or low back) and the extremities. 38 C.F.R. § 4.71a, DC 5025. With regard to rating fibromyalgia under DC 5025, the Board notes that while one requisite applies to all levels of the evaluation criteria (i.e., widespread musculoskeletal pain and tender points with associated symptoms), the level of disability is additionally based on the frequency of symptoms, response to therapy, and requirement for medication. An October 2012 VA treatment record noted the Veteran's complaints of joint pain, hand pain, cold intolerance, paresthesias of the upper extremities, and feeling of weakness while working out. The note indicates that fibromyalgia was considered, but she was not on medication. A July 2013 VA treatment note similarly indicates a history of fibromyalgia, but without treatment with medications. On VA examination in September 2013, it was noted that the Veteran had a diagnosis of fibromyalgia, and that she had described pain in her ankles, feet, shoulder, collar bones, and hands, as well as feeling related exhaustion and fatigue. She noted she was exercising six days a week. Following examination, the examiner indicated that the Veteran's fibromyalgia was manifested by widespread musculoskeletal pain, muscle weakness, fatigue, sleep disturbances, and paresthesias. The examiner noted that the symptoms were present more than one-third of the time. With regard to the medical history, it was noted that she was not on continuous medication nor undergoing treatment for the condition. Additionally, the examiner found that the symptoms were not refractory to therapy. Treatment records from July 2014 reflect continued complaints of numbness in the Veteran's hands and feet, with pins and needles and associated weakness. She noted pain and stiffness of her hands, feet, shoulders, elbows, and first bilateral metatarsophalangeal joint. An August 2014 treatment record noted treatment with Neurontin and adding NSAIDs (non-steroidal anti-inflammatory drugs) and SSRIs (Selective Serotonin Reuptake Inhibitor) if symptomatic. After reviewing the record, the Board finds that the preponderance of the evidence establishes that the Veteran's fibromyalgia symptoms prior to October 13, 2016 more nearly approximated the criteria for a 20 percent rating, and no more. The record shows that she reported musculoskeletal pain, chronic fatigue, paresthesias, and weakness, and was treated with Neurontin, NSAIDS, and SSRIs. However, she was never assessed with constant or nearly constant symptoms that were refractory to therapy so as to warrant the next higher evaluation of 40 percent. The appeal of this issue must be denied. REASONS FOR REMAND Entitlement to service connection for lupus is remanded. As noted above, this case was last remanded by the Board in October 2019. In the remand, the Board directed that the AOJ obtain a medical opinion as to the etiology of the Veteran's lupus. In December 2020, the Veteran underwent a VA examination for lupus. The examiner provided an unfavorable nexus opinion regarding an in-service etiology for lupus. In support of that opinion, the examiner noted that the Veteran's service treatment records were silent for diagnosis and/or treatment of lupus. In this regard, the December 2020 VA examination report reflects that the Veteran's lupus manifests, in part, as joint pain, weakness, and muscle cramps. The VA examiner stated, in essence, that there was no evidentiary support for a diagnosis or treatment of lupus in service. In so doing, however, the examiner did not address service treatment records which reflect complaints of painful joints in service. As the VA examiner did not provide an adequate rationale for the opinion, further development is necessary. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall v. West, 11 Vet. App. 268, 271 (1998). This matter is REMANDED for the following action: 1. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 2. After the foregoing development has been completed to the extent possible, obtain an addendum opinion from a medical professional qualified to render opinions as to the etiology of lupus. After reviewing the expanded record, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran has lupus that had its onset in, or is otherwise attributable to, her period of active service. In so doing, the examiner should discuss the medical significance, if any, of the November 2014 statement from Dr. D.B. which indicates that the Veteran's symptoms and laboratory findings of a positive ANA suggests the co-existence of fibromyalgia and lupus. The examiner should also discuss the significance of service treatment records noting painful joints. See, e.g., September 2003 record of medical care; July 2006 Report of Medical History. A complete medical rationale for all opinions expressed must be provided. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issue remaining on appeal should be readjudicated based on the entirety of the evidence. If the benefit sought remains denied, the Veteran and her representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Kettler, Associate 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.