Citation Nr: 21029226 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 13-34 186A DATE: May 13, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for right knee posttraumatic bursitis is denied. Entitlement to a disability rating in excess of 10 percent for left knee strain based on painful motion is denied. Entitlement to a disability rating in excess of 10 percent for left knee strain based on subluxation is denied. REMANDED The claim for higher rating than 20 percent for status post dislocation and reduction, right sternoclavicular joint is remanded. FINDINGS OF FACT 1. The Veteran's right and left knee disorders, rated on painful motion, do not further have limitation of motion at the 20 percent level, based on either, flexion limited to 30 degrees or extension limited to 15 degrees. There are not two combined 10 percent ratings when applying both Diagnostic Codes 5260 and 5261. 2. There is not moderate level other impairment as symptomatic of the left knee condition. CONCLUSIONS OF LAW 1. The criteria are not met for a rating higher than 10 percent for right knee posttraumatic bursitis. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260. 2. The criteria are not met for a rating higher than 10 percent for left knee strain based on painful motion. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260. 3. The criteria are not met for a rating higher than 10 percent for left knee strain based on subluxation. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.14, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the Marine Corps from May 2007 to May 2011, during which he served overseas for a year in Afghanistan. For his meritorious service, the Veteran was awarded (among other decorations) the Purple Heart and the Combat Action Ribbon. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Board previously remanded this claim in 2015, seeking additional records and a new VA examination. Such records were obtained and associated with the Veteran's claims file. In March 2020, the Board again remanded the claim, seeking updated VA treatment records and a new VA examination that conformed with governing law. Following that remand, additional VA treatment records were associated with the Veteran's file, and with regard to the issue decided herein, an adequate VA examination was obtained. Accordingly, the Board finds substantial compliance with its remand instructions. During the pendency of the case, there were partial increases in compensation that the VA Regional Office (RO) granted based on additional evidence. The October 2015 RO rating decision increased from 0 to 10 percent the rating for right sternoclavicular injury residuals, effective August 12, 2015. That decision further increased from 0 to 10 percent the rating for right knee bursitis, effective August 12, 2015. Subsequently, the August 2020 RO rating decision increased to 20 percent for right sternoclavicular injury residuals from May 14, 2011; then granted a separate 10 percent rating for left knee strain with painful motion from May 14, 2011; and further granted an earlier effective date of May 14, 2011 for 10 percent for right knee posttraumatic bursitis. Following these increases in benefits the claims for still higher schedular ratings remain on appeal. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (a veteran is presumed to be seeking the highest possible rating, unless he expressly indicates otherwise). Increased Rating 1. Entitlement to a disability rating in excess of 10 percent for right knee posttraumatic bursitis is denied. 2. Entitlement to a disability rating in excess of percent for left knee strain based on painful motion is denied. 3. Entitlement to a disability rating in excess of 10 percent for left knee strain based on subluxation is denied. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by diagnostic codes. 38 C.F.R. § 4.27. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Generally, the degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. 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. 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."). In this regard, manifestation of pain alone does not equate with functional loss under 38 C.F.R. §§ 4.40 and 4.45 but may cause functional loss if affecting some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, and endurance. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). For the instant case, the Veteran seeks ratings in excess of 10 percent for service-connected right and left knee disorders, according to limitation of motion, and increase from 10 percent for left knee subluxation. This amount of compensation was effective from May 14, 2011 onwards for each of these ratable conditions. The relevant rating criteria is cited below. Diagnostic Code 5260 provides for a noncompensable (0 percent) rating when leg flexion is limited to 60 degrees. A 10 percent rating is assigned for flexion limited to 45 degrees; 20 percent for flexion limited to 30 degrees; and 30 percent for flexion limited to 15 degrees. Diagnostic Code 5261 provides for a noncompensable rating when leg extension is limited to 5 degrees. A 10 percent rating is assigned for extension limited to 10 degrees; 20 percent for extension limited to 15 degrees; 30 percent for extension limited to 20 degrees; 40 percent for extension limited to 30 degrees; and 50 percent for extension is limited to 45 degrees. Normal range of knee motion is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. VA's Office of General Counsel in a precedent opinion determined that separate disability ratings may be assigned for limitation of knee flexion and of knee extension without violating the rule against pyramiding, 38 C.F.R. § 4.14, regardless of whether the limited motions are from the same or different causes. VAOPGCPREC 9-04 (September 17, 2004), 69 Fed. Reg. 59,990 (2004). Apart from ratable limitation of motion, pursuant to Diagnostic Code 5257, "other" knee impairment is evaluated based upon recurrent subluxation and/or lateral instability. This Diagnostic Code provides that a 10 percent disability rating is warranted for slight disability, a 20 percent rating is warranted for moderate disability, and a maximum 30 percent evaluation is warranted for severe disability. The terms "markedly severe" and "moderately severe" to establish 50 percent and 70 percent ratings are not defined in the above criteria. Rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. A claimant may receive separate disability ratings for arthritis and instability of the knee, under Diagnostic Codes 5003 and 5257, respectively. See VAOPGCPREC 23-97 (July 1, 1997), 62 Fed. Reg. 63,604 (1997). In order for a knee disability rated under Diagnostic Code 5257 to warrant a separate rating for arthritis based on x-ray findings and limitation of motion, limitation of motion under Diagnostic Code 5260 or Diagnostic Code 5261 does not have to be compensable, but must meet the criteria for a zero-percent rating. VAOPGCPREC 9-98 (August 14, 1998), 63 Fed. Reg. 56,704 (1998). Additionally, during the pendency of this appeal, the VA rating criteria for the evaluation of musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov 30, 2020). Generally, 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); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). 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. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Kuzma, 341 F. 3d 1327. Whereas there was revision to Diagnostic Code 5257, effective February 7, 2021, as far as warranting any higher rating than 10 percent for left knee disability with subluxation, the new version does not apply. The revised Diagnostic Code 5257 requires ligament injury, in previous or current form, for 20 percent. Since VA examination repeatedly did not show ligamentous injury as part of the service-connected left knee disability, there is no need for any further relevant VA examination or inquiry. Having reviewed the evidence and findings, these do not warrant increased compensation for right and left knee disorders, including as to how separately rated already on the left side based on different manifestations, limited motion and other impairment from subluxation. For both lower extremities, the 10 percent the RO recognized was the minimum for painful motion. See Burton v. Shinseki, 25 Vet. App. 1 (2011). See also, 38 C.F.R. §§ 4.40, 4.45, 4.59 (2020). To warrant a higher rating now of 20 percent per the rating schedule, one of the following would need to apply here. Under Diagnostic Code 5260, flexion limited to 30 degrees. Under Diagnostic Code 5261, extension limited to 15 degrees. Or instead, two combined 10 percent ratings when applying both Diagnostic Codes 5260 and 5261. Likewise under the VA rating schedule for the evaluation of the service-connected left knee condition with subluxation present, applying Diagnostic Code 5257 (as in effect prior to Feb. 7, 2021), to warrant a 20 percent rating a moderate level of disability would need to be present. Reviewing the evidence, there was an April 2011 VA general medical examination, indicating as follows. For the right knee, he described discomfort upon returning from service. The level of pain and discomfort was estimated at 3/10, with flare to 5-6/10 with activity. Activities that tended to aggravate the right knee were prolonged aerobic activity and particularly running which placed direct pressure on the knee itself. There was no history of any knee intervention or injections. There were taken over-the-counter pain relievers. There was no history of inflammatory arthritis described, no prior traumas, no significant restrictions that were described. For the left knee, the Veteran described having had a level 3 pain level that would flare to a 5 with further physical activity. He was on routine medications for the left knee discomfort. There was not a formal evaluation or injections done. The left knee had not restricted his activity level or incapacitated him. The right knee x-ray showed heterotopic ossification at the right tibial tuberosity. This could be seen with sequela from Osgood-Schlatter disease. The left knee x-ray was normal. On physical examination, for the right knee, there was minimal subpatellar soft tissue swelling appreciated. It was nontender to palpation. There was no bony abnormality appreciated. There was no ballotable effusion present. The patella was easily manipulable. Anterior and posterior drawer tests were negative. Medial and lateral collateral torquing were negative for pain or instability. Lachman's was negative. McMurray's was negative. The right knee flexed to 108 degrees, extended to 0, and repetitive testing failed to reveal changes of endurance, incoordination, restriction or fatigue. For the left knee condition, there were no obvious bony changes appreciated. There were no obvious skin changes appreciated. There was no swelling, warmth, erythema or tenderness of the joint. There was no ballotable effusion. Patella was easily manipulated. The anterior and posterior drawer tests were negative. Medial and lateral collateral torquing revealed no pain or instability. Lachman's was negative. McMurray's was negative. The left knee flexed to 106 degrees, extends to 0, without changes with repetitive testing. The diagnosis was right knee posttraumatic bursitis; and left knee strain historically, normal functional exam at this time. Then on a December 2013 statement, as to right knee bursitis, he indicated that there were present sharp pains, joint pops and constant dull pain with daily activities. Also there were joint swelling and stiffness after daily use. There was reportedly also instability in the right knee causing the right knee to give out when put under too much stress and carrying a large amount of weight. He stated he would have the knee wrapped along with a knee pad and pain relievers during service. Further stated was that he reported having left knee lateral instability, and that the left knee would give out under increased workloads, with joint pops, grinding, sharp and dull pains. There was joint stiffness and swelling present. On VA examination August 2015, there was described periodic pain of both knees, worse and more often on the left side. The Veteran reported that occasionally the left knee or the right would have some swelling. There were no flare-ups of the knee or lower leg. There was not any reported functional loss. Range of motion for both knees was 0 to 125 degrees, no evidence of pain with weight-bearing, not worse on repetitive motion testing. Muscle strength was 5/5. There was not muscle atrophy. There was not recurrent subluxation or lateral instability. There was a history of recurrent effusion. Joint stability testing was normal. There were no meniscal conditions. It was indicated that the Veteran wore a right knee ace wrap occasionally, and a left knee brace regularly. There was not degenerative or traumatic arthritis documented. Right knee MRI showed: 1) Heterotopic ossification at the tibial tuberosity consistent with sequela from Osgood-Schlatter disease. 2) Mild retropatellar chondrosis at the medial ridge with small cartilage flap. 3) Small joint effusion. Left knee MRI showed: 1) Mild lateral subluxation of the left patella. 2) Mild retropatellar chondrosis at the medial ridge with suggestion of cartilage flap. 3) Small joint effusion. On VA examination June 2020 the diagnosis was right knee posttraumatic bursitis and left knee strain. The Veteran stated he injured his right knee in 2008. He was doing a full gear work out and while running sprints, he tripped and fell landing on his right knee. Over time, his left knee was overcompensating and became painful as well. He admitted to constant pain in both knees and occasional weakness. The Veteran reported flare-ups of the knee and lower leg, stating these occurred weekly, were severe, lasted hours to days, were precipitated by certain activities. There was functional loss reported in terms of difficulty with prolonged sitting, standing or walking. He also had difficulty going up and down stairs. Range of motion in both knees was 0 to 110 degrees, with pain on weightbearing. With repeated use over time the findings were 0 to 100 degrees, with functional loss due to pain contributing to limited motion. On flare-ups range of motion was 0 to 90 degrees. Muscle strength was 4/5 for both knees at flexion and extension. There was not muscle atrophy. There was not ankylosis. There was not recurrent subluxation or lateral instability affecting either knee. There was not recurrent effusion. Tests for joint stability were negative. The Veteran had not ever had recurrent patellar dislocation, shin splints, stress fractures, chronic exertional compartment syndrome, or any other tibial or fibular impairment. There was no history of a meniscus condition. There was occasional use of a knee brace bilaterally. As to functional impact there was difficulty with prolonged sitting, standing or walking. There was difficulty going up and down stairs. These were some limitations caused by the knee condition however according to the examiner they were not severe enough to interfere with the ability to maintain either physical or sedentary employment. From the findings, the VA rating criteria when applied does not correspond to a higher schedular rating, based on range of motion findings and any other recorded findings. As to joint mobility, there was not at or near flexion limited to 30 degrees (Diagnostic Code 5260) or extension limited to 15 degrees (Diagnostic Code 5261), as might support a 20 percent rating. With factoring in functional loss due to pain, weakness, fatigue, similar signs and symptoms, the joint mobility was not at that level, and remained showing retained significant functional capacity. There is unquestionably painful motion and daily measures that the Veteran described in detail for pain and symptom relief, also some limitations on certain types of activities, and these are to the extent possible included in the existing 10 percent evaluations for painful motion. For anything further at least as the VA rating schedule is prepared there would need to be limited motion as defined under a diagnostic code, which as stated here was not demonstrated. This included anything at a 20 percent level, or when considering that two 10 percent ratings for motion in two different plants could be combined. Apart from limited joint motion, there is no other additional symptomatology that would provide a basis for higher rating, since there was not anything at or near moderate level subluxation of the left knee, or regular examples of subluxation or other form of instability to the left knee region. A higher 20 percent rating would potentially otherwise apply under Diagnostic Code 5257, for moderate level impairment. There was not additionally any joint instability or similar other impairment as affecting the right knee region. Joint stability tests on both sides consistently showed up as being normal results. There was not any type of meniscus condition as affecting the knees bilaterally. The finding that is warranted is that while there are ongoing issues with the knees and some reported daily use issues, the standards listed under the VA rating criteria for awarding a higher schedular rating are not indicated to be met. Accordingly, the preponderance of the evidence is considered to weigh against these claims for increased rating, and under these circumstances VA's benefit-of-the-doubt doctrine does not apply and the claims are being denied. REASONS FOR REMAND The claim for higher rating than 20 percent for status post dislocation and reduction, right sternoclavicular joint is remanded. There were several VA examinations during pendency of this appeal that considered the service-connected right sternoclavicular joint problem as basically a right shoulder condition, and while that appears the primary problem, the Veteran's earlier complaints referenced a muscle injury at the area of the sternum. The actual dislocation is where the second rib meets the sternum. In a December 2013 statement the Veteran described in particular having muscular atrophy from limited range of movement and limited use in the right pectoral. The second rib would dislocate when too much weight was applied. There was reported consistent pain in the immediate area of the right second rib. While prior VA examinations for the right shoulder region identified some of these symptoms, a more comprehensive review that considers whether a separate rating for a muscle injury is warranted. The matter is REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate examiner to determine the current severity of his service-connected right sternoclavicular joint. The requested examination should address the manifestations of service-connected disability in terms of, first, muscle injury (VA rating criteria at 38 C.F.R. § 4.73); second, orthopedic condition to the right shoulder (according to 38 C.F.R. § 4.71a) and limitation of motion. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. For purpose of giving all limitation of motion findings, in so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If still not possible to do so without speculation, then state thee exact reasons why. The examiner must also state whether there is any evidence of muscle injuries found on examination that are related to the Veteran's in-service injury, or that are considered secondary to his service-connected orthopedic disability of the right shoulder. That is, is there evidence that any muscle injury or disability found is proximately due to, the result of, or aggravated by his service-connected right shoulder disability. A complete rationale for all requested opinions must be provided. (Continued on next page) 2. Upon readjudication of the claim, the Agency of Original Jurisdiction is to consider the results of the ordered VA examination to determine whether a separate rating is warranted for any muscle injury or other muscle disability of the right shoulder and side found on examination. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Lyons, 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.