Citation Nr: 21030389 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 06-12 432 DATE: May 18, 2021 ORDER Entitlement to service connection for left knee osteoarthritis as aggravated by his service-connected right knee disabilities is granted. Entitlement to a 40 percent disability rating for right knee chondromalacia patella with degenerative arthritis is granted as of the date of the increased rating claim, until December 12, 2019. From December 12, 2019, a rating in excess of 30 percent for right knee chondromalacia patella with degenerative arthritis is denied. FINDINGS OF FACT 1. The preponderance of the evidence shows that the Veteran's left knee osteoarthritis has been aggravated beyond the natural course of the disease by his service-connected right knee disabilities since 1997. 2. The adequate VA examination findings indicate that the Veteran's right knee disability was manifested by limitation of extension to 30 degrees during a flare-up throughout the appeals period. 3. As of December 12, 2019, the Veteran's right knee has been manifested by no greater limitation of extension than 20 degrees during flare-ups. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for left knee osteoarthritis as secondary to service-connected right knee disabilities have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for entitlement to a 40 percent disability rating for right knee chondromalacia patella with degenerative arthritis have been met since the date of the increased ratings claim. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5010 and 5261. 3. The criteria for entitlement to a disability rating in excess of 30 percent as of December 12, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5010 and 5261. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the U.S. Navy from June 1974 to June 1978 and from January 1991 to April 1991, including service in the Persian Gulf. He also had periods of reserve service. These claims have been before the Board on multiple occasions and have been remanded multiple times. The most recent remand pertaining to the left knee claim directed that an orthopedic examination and opinion be obtained on remand. The Board finds that the remand directives have been satisfied, and no further development is required with respect to this issue, particularly as this claim is granted herein. The most recent remand pertaining to the right knee claim noted the need for the examination to include findings for weight-bearing and non-weight-bearing, for active and passive ranges of motion, and for the functional impact of flare-ups. The August 2019 and December 2019 examinations included these findings and the Board finds that the remand directives were satisfied. Entitlement to service connection for left knee osteoarthritis as secondary to service-connected right knee disabilities The Veteran seeks service-connection for his left knee disability, contending that it was caused or aggravated by his right knee disabilities because of an altered gait and a change in weight-bearing when walking. The Veteran has submitted copies of Board decisions on unrelated cases showing where this theory has been successful, articles regarding the causes of osteoarthritis in the knees, and lay statements from people who have observed the alteration in his gait and the evidence of his resulting pain when he walks. Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). All three elements must be established by competent and credible evidence in order that service connection may be granted. Service connection is also provided for a disability which is proximately due to, the result of, or aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310. When there is an approximate balance of positive and negative admissible evidence regarding any issue material to the determination of a matter, the evidence is said to be in equipoise. In such situations, VA is required to afford the Veteran the benefit of the doubt. 38 U.S.C. § 5107 (b). Throughout the pendency of this appeal, the Veteran has been examined multiple times and several different medical experts have rendered opinions as to whether his left knee disability was related to his right knee disability. A VHA expert medical opinion in December 2009 concluded that the Veteran's left knee disability was not caused by his right knee disability because the Veteran had not been noted to have a substantial and significant gait disturbance. (See Medical Treatment Record, 09/30/2009.) Private opinions in December 2006 and January 2011 by the Veteran's treating providers both expressed the belief that the Veteran's left knee was caused by his right knee disability based on their medical experience and training and accepted medical wisdom. (See Medical Treatment Records, 02/13/2006 and 12/07/2010.) A VA examiner in April 2015 also provided a negative opinion on causation, noting that arthritis was diagnosed in the Veteran's left knee prior to such findings in the right knee in 2003. The Board denied secondary service connection July 2018, but this decision was vacated by the Court in January 2019 because of an inadequate opinion regarding whether the Veteran's service-connected right knee disabilities aggravated the Veteran's left knee disability. A VA examination in December 2019 concluded that the Veteran's left knee disability had been aggravated beyond its normal course by his right knee disabilities because of an altered gait and increased weight-bearing on the left knee. This conclusion was based on the testimony of the Veteran and the sworn statements by his family and friends and medical evidence regarding the impact of scar tissue on joint function. A second VA examination and opinion in November 2020 by an orthopedist also found that the Veteran's left knee disability had been aggravated by his right knee disabilities. In addition, the November 2020 opinion included the statement that the aggravation occurred after 1997, which would serve as the baseline for any VA evaluation and rating of the degree of worsening attributable to the service-connected right knee disabilities. Based on the evidence discussed above, particularly the findings of the December 2019 and November 2020 VA examiners, the Board concludes that the Veteran's left knee disability was aggravated beyond the normal course of the condition by the impact of the service-connected right knee disabilities. Since the requirement of a baseline date of disability after which worsening occurred has been satisfied, the claim is granted. 38 C.F.R. § 3.310. Entitlement to a disability rating in excess of 10 percent for right knee chondromalacia patella with degenerative arthritis prior to August 8, 2019 The Veteran has been seeking an increased disability rating for his right knee since August 2008. During that appeals period, separate ratings have been assigned for instability in the right knee and for residuals of removal of semilunar cartilage. Those disability ratings are not on appeal at present. Rather, the current appeal is related to range of motion functionality in the right knee. Limitation of motion of the knee is rated under either Diagnostic Code 5260 (limitation of flexion) or Diagnostic Code 5261 (limitation of extension). Separate ratings may be assigned for limitation of flexion and extension. 38 C.F.R. § 4.71a. Under Diagnostic Code 5260, flexion limited to 45 degrees is 10 percent disabling, flexion limited to 30 degrees is 20 percent disabling, and flexion limited to 15 degrees is 30 percent disabling. 38 C.F.R. § 4.71a. Under Diagnostic Code 5261, extension limited to 10 degrees is 10 percent disabling, extension limited to 15 degrees is 20 percent disabling, extension limited to 20 degrees is 30 percent disabling, extension limited to 30 degrees is 40 percent disabling, and extension limited to 45 degrees is 50 percent disabling. 38 C.F.R. § 4.71a. 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 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) 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 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. Throughout the pendency of this appeal, the Veteran has been provided multiple VA examinations, including in September 2008, December 2011, April 2015, April 2016, August 2019, and December 2019. The examinations prior to 2019 did not include findings consistent with the requirements of Correia and Sharp. There has been evidence throughout the appeals period that the Veteran has arthritis in his right knee. Prior to 2019, the Veteran's range of motion findings on examination were well in excess of that required for a 10 percent disability rating (45 degrees of flexion and 10 degrees of extension), even when painful motion is considered. However, the impact of pain flare-ups was not considered. For example, in December 2011, the Veteran reported that when he had a flare-up once or twice a month, he had difficulty getting in and out of his car. At the April 2016 VA examination, the examiner described the Veteran's flare-ups as examples of "theater-seat knee" and the Veteran reported increased daily chronic pain, decreased functionality, and difficulties in engaging in the activities of daily living. In August 2019, the VA examination included the types of findings required by Correia and Sharp for the first time. At that examination, his range of motion findings included flexion to 90 degrees and extension to 20 degrees, with estimated findings during a flare-up of flexion to 80 degrees and extension to 30 degrees. These findings were the basis for the assignment of a 40 percent disability rating, with the effective date assigned being the date of the examination. The Board has considered the entirety of the claims file, including all of the VA examinations listed above and VA treatment records which did not include range of motion findings. The Board has also considered the Veteran's reports of symptoms, including during flare-ups. The Court has ruled that examinations that do not account for the considerations of Correia and Sharp are inadequate, meaning that any examinations prior to August 2019 were inadequate and cannot be considered controlling as to the rating assigned. The examinations and opinions obtained since have not been able to provide any estimated findings, particularly with respect to flare-ups, for the earlier time periods. The Veteran has consistently complained of severe impacts from flare-ups which impede his ability to attend to the activities of daily living, including getting in and out of his car. Taking all of these considerations into account and applying the benefit-of-the-doubt in favor of the Veteran, the Board finds that the 40 percent disability rating should be retroactive to the date of the claim for an increased disability rating. Entitlement to a disability rating in excess of 30 percent for right knee chondromalacia patella with degenerative arthritis as of December 12, 2019 In the rating decision issued in June 2020 granting the 40 percent disability rating for the Veteran's right knee, the Agency of Original Jurisdiction (AOJ) assigned a 30 percent disability rating for the right knee as of December 12, 2019. The determination that a lower rating was warranted as of that date was based on the findings of the VA examination. The Veteran's representative has asserted that there was no improvement in the Veteran's right knee disability between the August 2019 VA examination and the December 2019 examination that would warrant a reduced rating. (See Appellate Brief, 09/21/2020.) The representative also asserted that the purpose of the December 2019 VA examination was to render an opinion on the left knee service connection claim addressed above and therefore the findings should not be applied to alter the rating for the right knee disabilities. The Board has reviewed the December 2019 VA examination. The range of motion findings for the right knee included flexion to 100 degrees and extension to 10 degrees, with estimated findings during a flare-up of flexion to 80 degrees and extension to 20 degrees. These findings are consistent with the criteria for a 30 percent disability rating. The Board acknowledges that the December 2019 VA examination was intended to address the left knee claim and that there was no specific finding that the Veteran's symptoms related to his right knee had improved since the August 2019 VA examination. However, the provisions of 38 C.F.R. § 3.344 do not apply here, as this case does not involve a rating reduction. Rather, the Veteran's rating had been 10 percent, and was increased to 40 and 30 percent for different stages of the rating period. So while the period for which a 30 percent evaluation was assigned represents a lesser increase, it does not represent a reduction. In any event, the December 2019 VA examination was performed with the same specifications as the August 2019 VA examination, with equal attention to the findings in the right knee as to the left knee. All of the aspects of the prior examination were also considered in the subsequent examination. Because the examinations are completely congruent, the December 2019 VA examination is considered valid. And because the 30 percent rating was part of an assignment of staged ratings instead of a separate reduction, the requirements of separate notice and a showing of actual improvement imposed by 38 C.F.R. § 3.105 and 38 C.F.R. § 3.344 do not apply. In addition, the findings with respect to range of motion do represent a showing of actual improvement in the Veteran's range of motion in his right knee. For these reasons, the Board finds that a disability rating in excess of 30 percent as of December 12, 2019 is not warranted. 38 C.F.R. § 4.71a. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Cheryl E. Handy 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.