Citation Nr: 21031402 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 15-36 484 DATE: May 21, 2021 ORDER The claim for an increased disability rating in excess of 10 percent for fracture, right femoral bone, with right knee arthritis (herein right knee disability) is denied. FINDING OF FACT The Veteran's right knee disability is manifest by forward flexion limited to 100 degrees at worst without ankylosis or functional limitation. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for right knee disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5260. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1972 to July 1977 and from October 1977 to October 1979. The claim was remanded by the Board in March 2019 for additional development and has been returned now following substantial compliance with the remand order. 1. Entitlement to a higher disability rating in excess of 10 percent for fracture, right femoral bone, with right knee arthritis (herein right knee disability) The Veteran contends that he is is entitled to a higher rating for his right knee disability. At the outset, the Board notes that during the pendency the Veteran's appeal, VA amended the criteria for rating musculoskeletal disabilities. Although the new regulations would generally be considered in this claim as the claim was pending at the time the changes were made effective, the Board finds that the rating criteria relevant in the Veteran's case, Diagnostic Codes 5010 and 5260, were unchanged, and the evidence does not demonstrate that he has any of the other disabilities addressed in the new regulations, to include any kind of instability involving the knee. As such, the amended criteria are not for application in this case. The Veteran's right knee disability is rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5010 based on the presence of osteoarthritis with painful, noncompensable limitation of motion as well as 5260 for limitation of flexion of the leg. Again, neither Diagnostic Code has been changed during this appeal. Diagnostic Code 5010 provides that post-traumatic arthritis is to be rated as limitation of motion, dislocation, or other specified instability under the affected joint. 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 warranted 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. 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) ("[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 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. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for the Veteran's right knee disability. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain, weakened movement, excess fatigability, incoordination, and instability. However, even considering the Veteran's lay reports of symptoms, he has not described a degree of additional limitation or functional loss that would result in limitation of motion more nearly approximating flexion limited to 30 degrees. VA examinations from August 2015 and December 2019 reflect that his right knee flexion is limited, at worst, to 90 degrees, even when considering functional factors such as pain, fatigue, and flare ups. In fact, during both examinations, the Veteran denied experiencing flare ups of symptoms and both examiners found that he did not lose any functionality of his right knee as a result of his right knee disability. Similarly, VA treatment records document reports or demonstrations of full right knee flexion despite complaints of right knee pain. While the Veteran reported that he stopped doing certain leg exercises during strength training such as squats, he explained that he stopped such exercises for fear or worsening his right knee disability, not because he was actually limited in the functionality of that knee. The Board has also considered the other Diagnostic Codes pertaining to the knee and leg under the two versions of the regulations applicable here. 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 evidence does not demonstrate ankylosis or any kind of instability of the right knee. The Veteran has been shown to be able move his leg in all directions and his right knee has not been shown to be fixed in one spot. Moreover, the VA examiners specifically found that there was no ankylosis or any kind of instability of the right knee. Furthermore, the evidence, including the two VA examinations, reveals that there has been full extension of the right knee. Therefore, a higher disability rating is not warranted under Diagnostic Codes 5256, 5257, or 5261 under either version of the regulations. The evidence also does not demonstrate any impairment of the tibia, fibula, or cartilage nor does it demonstrate genu recurvatum. Therefore, a higher rating is not warranted under Diagnostic Codes 5258, 5259, and 5262. The Board acknowledges that the Veteran believes that his right knee disability is worse than currently rated. However, he is not competent to opine or assess the current severity of this disability. The issue is medically complex, as it requires knowledge of anatomical relationships and the interpretation of complicated medical testing, which the Veteran has not been shown to possess. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Moreover, the Veteran has not specifically reported how his knee is worse than rated and has not reported any symptoms that merit a higher rating according to the Diagnostic Criteria the Board is bound to apply. The Board, therefore, affords the VA examiners more probative weight to the findings of the VA examiners. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for a rating in excess of 10 percent for right knee disability. In denying such a rating, 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. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. B., 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.