Citation Nr: 21030174 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 17-15 082 DATE: May 18, 2021 ORDER Entitlement to an increased rating higher than 10 percent for right knee strain with degenerative arthritis is denied. FINDING OF FACT The Veteran's right knee strain with degenerative arthritis is manifest by painful, noncompensable limitation of motion. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent right knee strain with degenerative arthritis manifest by painful, noncompensable limitation of motion, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5010. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from March 2010 to March 2014. This matter comes to the Board of Veterans' Affairs (Board) on appeal from a May 2014 rating decision from the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ), which, in pertinent part, granted service connection for right knee strain with degenerative arthritis, assigning a 0 percent rating, effective on March 15, 2014, the day after the Veteran's separation from service. In a July 2019 rating decision, the AOJ granted an increased rating of 10 percent for right knee strain, effective March 15, 2014. The Veteran testified at a Board virtual hearing in August 2020 before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In January 2021, the Board remanded the case for additional development. The directives of the Board's remand having been substantially complied with the case is now returned for appellate review. 1. Entitlement to an increased rating higher than 10 percent for right knee strain with degenerative arthritis The Veteran contends that he is entitled to a higher rating for his right knee disability. The Veteran's right knee strain with degenerative arthritis is rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5010-5260, for limitation of motion due to traumatic arthritis. The assigned Diagnostics Code 5010-5260 indicates that the right knee strain with degenerative arthritis is rated based on limitation of flexion. 38 C.F.R. § 4.71a. A review of the evidence reflects that the right knee strain with degenerative arthritis has been rated based on painful noncompensable limitation of motion, and not compensable limitation of motion (i.e., limitation of flexion or extension) at any time during the relevant rating period. 8 C.F.R. § 4.71a. There have been recent revisions to the rating criteria governing musculoskeletal disabilities. Diagnostic Code 5010 provided that arthritis due to trauma, substantiated by x-ray findings is to be rated as degenerative arthritis under Diagnostic Code 5003. Under 38 C.F.R. § 4.71a, Diagnostic Code 5003, degenerative arthritis is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. If noncompensable limitation of motion is demonstrated, a 10 percent rating is assigned for each major joint or group of minor joints affected. In the absence of any limitation of motion, a 10 percent rating is warranted for involvement of two or more major joints or two or more minor joint groups, and a 20 percent rating is warranted for involvement of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5003. For the purpose of rating disability from arthritis, the knees are considered major joints. 38 C.F.R. § 4.45 (f). As noted, during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a, were amended effective February 7, 2021. 85 Fed. Reg. 76453 (Nov. 30, 2020). Prior to February 7, 2021, the Board will consider the former version of the diagnostic codes only; however, for the period beginning February 7, 2021 the Board will consider both the old and amended version (amended code) of the diagnostic code and rate based on whichever is most favorable to the claimant. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. The amendment to Diagnostic Code 5010, effective February 7, 2021, for post-traumatic arthritis was clarified in that it can be rated as limitation of motion, dislocation, or instability. 38 C.F.R. § 4.71a, 85 Fed. Reg. 76453 (Nov. 30, 2020). Under the amendment, Diagnostic Code 5002 also was renamed from rheumatoid arthritis to multi-joint arthritis to take into account all systemic arthritis (except post-traumatic and gout). Id. Given that the Veteran's arthritis in his right knee is not posttraumatic, the amendments to Diagnostic Code 5010 do not affect the rating of the Veteran's right knee. 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 assigned 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. Under Diagnostic Code 5261, a noncompensable rating is warranted for extension limited to 5 degrees. A 10 percent rating is warranted for extension limited to 10 degrees. A 20 percent rating is warranted for extension limited to 15 degrees. A 30 percent rating is warranted for extension limited to 20 degrees. A 40 percent rating is warranted for extension limited to 30 degrees. A 50 percent rating is warranted for extension limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. 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 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 United States Court of Appeals for Veterans Claims (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." 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. In evaluating the medical evidence of record, the Veteran's right knee strain with degenerative arthritis does not warrant a rating higher than 10 percent. An April 2014 VA examination report shows the Veteran's right knee disorder began during physical training during martial arts while he was deployed. He noted that the condition had stayed the same. He described increased pain with standing or walking for long periods of time and had to sit down and stretch his knees. The pain was intermittent. Range of motion testing showed right knee flexion to 140 degrees or greater with no objective evidence of painful motion. Repetitive use testing did not change the range of motion in the knee. The Veteran did not have any functional loss or functional impairment of the knee. There was pain to palpation of the joint line or soft tissue of the right knee. Muscle strength testing was normal. Joint stability testing was normal. There was no evidence or history of recurrent patellar subluxation/ dislocation. The diagnosis was mild degenerative arthritis with strain of the right knee. A May 2019 VA examination report shows the Veteran reported that he first started noticing intermittent right knee pain while deployed to Afghanistan. There was no particular injury; he just noticed knee pain after repeated running, rucking, and heavy lifting/labor associated with his mechanic job. He was first seen in 2014 for pain and images showed mild degenerative arthritis of the right knee. The Veteran stated that the pain had become worse over time. Current symptoms included intermittent right knee pain behind the kneecap/medial aspect of the knee typically at a 4 to 5 out of 10 in severity and up to 6 to 7 out of 10 in severity. He also had sharp pain with walking for prolonged periods of time. The Veteran reported that functional impairment from his knee disorder definitely affected his ability to work and was part of the reason that he had to change jobs from being a mechanic. He noted that he could not walk the dog anymore because his knee hurt too much; and that he has not been able to run in years. Physical examination showed forward flexion of the right knee to 105 degrees and extension was to 0 degrees. Pain was noted on flexion and extension, which caused functional loss. Limited range of motion contributed to his being unable to kneel or squat. There was pain with weight-bearing and nonweight-bearing. There was no objective evidence of pain on passive range of motion testing in the right knee. The Veteran did not participate in repetitive use testing due to fear of pain. The examiner noted that pain, weakness, fatigability, or incoordination significantly limited the Veteran's functional ability with repeated use over a period of time. The examiner was unable to describe in terms of range of motion as the Veteran was not examined immediately after repetitive use over time. The symptoms were per the Veteran's report. The examiner noticed a mildly antalgic gate on ambulation. There was no ankylosis. Joint stability testing was normal. Functional impairment included not being able to walk for prolonged periods of time or knee/squat without significant pain to the right knee due to arthritis. The Veteran reported that he worked in IT support and had lost up to one week of work in the last 12 months. During the August 2020 Board hearing, the Veteran testified that his right knee disability had worsened in the past six to eight months where he could not do anything because of his right knee. See August 2020 Board hearing transcript, p. 20. He also noted that he used a wrap for instability in his right knee. Id. at 22. As the last VA examination in May 2019 noted no instability or use of a brace and the Veteran also did not report any instability on the examination, the Board remanded the case so that another VA examination could be provided to ascertain the current severity and manifestations of his right knee disability. A February 2021 VA examination report notes the Veteran's report that the severity of his right knee disorder had progressed significantly over the past two years. He currently had daily pain that fluctuated in severity. His typical pain was estimated at a 3 to 5 out of 10 in severity; at its worst it was an 8 out of 10 in severity about three to four times per month lasting about one day. This was triggered by walking or activity. The Veteran noted that he avoided prolonged activity but was still able to perform necessary tasks. He also avoided squatting, kneeling, and crawling. He did not report or have a history of instability or recurrent subluxation of the knee. He also did not report of have a history of frequent effusion of the knee. Active and passive range of motion studies of the right knee were from 0 to 140 degrees. Repetitive use testing did not result on any additional limitations of motion. However, the examiner estimated that limited motion to 120 degrees of flexion after repeated use over time and/or flare-ups due to pain and lack of endurance. There was evidence of pain on weight-bearing, nonweight-bearing, active motion, and passive motion. Functional loss included avoiding repetitive squatting, kneeling, or crawling. There was objective evidence of mild localized tenderness or pain on palpation of the joint or associated soft tissue on the medial joint line and peripatellar. Joint stability testing was normal. On review of the medical evidence of record, a rating higher than 10 percent is not warranted under Diagnostic Code 5003, as there is not x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. See Diagnostic Code 5003 for degenerative arthritis; Diagnostic Code 5010 (arthritis due to trauma, substantiated by x-ray findings, rate as degenerative arthritis). A compensable rating also is not warranted under Diagnostic Code 5260, as limitation of motion was not limited to at least 45 degrees of flexion. The medical evidence shows that range of motion in the right knee was most severely limited to 105 degrees of flexion, as noted on VA examination in May 2019. The VA examinations of record note increased pain with standing or walking for long periods of time and having to sit down and stretch his knees, as well as impairment with running, kneeling, squatting, or crawling. There also was evidence of pain on weight-bearing, nonweight-bearing, active motion, and passive motion. Notwithstanding the findings of significant pain that contributed to functional loss, the range of motion in the right knee did not contribute to functional loss and does not result in a rating higher than 10 percent. The examination in February 2021 complied with the requirements of Correia v. McDonald, 28 Vet. App. 158 (2016); and Sharp v. Shulkin, 29 Vet. App. 26 (2017) in determining the current severity of the Veteran's right knee disability. The Board has also considered the other Diagnostic Codes pertaining to the knee and leg. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). The right knee does not have any limitation of extension. Thus, a rating under Diagnostic Code 5261 does not apply. The medical evidence also does not show any ankylosis of the right knee. Thus, a rating under Diagnostic Code 5256 does not apply. As for Diagnostic Code 5257, VAOPGCPREC 23-97 held that a claimant who has both arthritis and instability of the knee may receive two separate disability ratings under Diagnostic Codes 5003-5010 and Diagnostic Code 5257 (or under Diagnostic Codes 5258 or 5259) without violating the prohibition of pyramiding of ratings. The presence of instability of the knees may be established by lay evidence alone. See English v. Wilkie, 30 Vet. App. 347, 352 (2018). Under the previous provisions of Diagnostic Code 5257, a 10 percent rating is warranted for slight recurrent subluxation or lateral instability. A 20 percent rating is warranted for moderate recurrent subluxation or lateral instability. A 30 percent rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Objective medical evidence is not necessarily required to establish lateral knee instability under Diagnostic Code 5257, pursuant to English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). As noted, the Veteran testified that he used a wrap for instability in his right knee. See August 2020 Board hearing transcript, p. 22. However, the VA examinations of record show that there was no instability on objective testing. The Veteran also did not report instability in the right knee on the examinations, including the most recent VA examination in February 2021. Specifically, it was noted on the February 2021 VA examination that the Veteran did not report or have a history of instability or recurrent subluxation of the knee. VA treatment records also do not reflect any right knee brace being worn. These findings do not support a separate rating for instability of the right knee. While the Veteran reported that he had instability in his knee at the Board hearing, this is inconsistent with the reports of prior examination and the examination most recently provided in February 2021, which did not demonstrate any findings of instability on objective and subjective report. Given that instability of the right knee is not shown, consideration of the change in regulations as outlined above effective from February 7, 2021 for Diagnostic Code 5257, is not applicable. 38 C.F.R. § 4.71a, Diagnostic Code 5257. A separate rating under Diagnostic Code 5258 for dislocated semilunar cartilage is not warranted, as this type of impairment is not shown. Symptomatic removal of semilunar cartilage under Diagnostic Code 5259 also not applicable based on the medical evidence of record. The medical evidence does not show impairment of the tibia and fibula warranting a rating under Diagnostic Code 5262. The medical evidence also does not show genu recurvatum under Diagnostic Code 5263. Thus, in reviewing the medical evidence of record, the Board finds that the preponderance of the evidence is against a rating higher than 10 percent for limitation of motion due to arthritis under Diagnostic Code 5010. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain and inconsistent reports of instability. These statements have been considered in the ratings assigned. To the extent that any higher ratings are not assigned, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sarah B. Richmond, 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.