Citation Nr: 21031981 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 16-01 360 DATE: May 25, 2021 ORDER Entitlement to a rating in excess of 10 percent for a right knee disability is denied. FINDING OF FACT The Veteran's service-connected right knee disability is manifested by pain that results in a decrease in range of motion not meeting the next higher criteria. CONCLUSION OF LAW The criteria for entitlement to a rating higher than 10 percent for a right knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5003-5257. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from August 2004 to November 2012. The Veteran was granted service connection for a right knee disability and assigned a noncompensable evaluation effective November 23, 2012 in an October 2013 rating decision. The Veteran filed a timely Notice of Disagreement as to the noncompensable evaluation. In a December 2015 rating decision, the Department of Veterans Affairs (VA) Regional Office (RO) increased to the Veteran's disability rating to 10 percent disabling effective November 23, 2012. As the increase to 10 percent was only a partial grant of the benefit sought on appeal, the issue remains on appeal before the Board of Veteran's Appeals (Board). This matter was previously before the Board in May 2019 and was remanded for further development. The Board finds it remand instructions were substantially complied with. Stegall v. West, 11 Vet. App. 268 (1998). Increased Ratings 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. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate higher or lower compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to 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. The assignment of a particular diagnostic code to evaluate a disability is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis, and demonstrated symptomatology. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, with or without degenerative arthritis, it is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59; see Burton v. Shinseki, 25 Vet. App. 1, 5 (2011) (holding that the provisions of 38 C.F.R. § 4.59 are not limited to disabilities involving arthritis). Moreover, when evaluating musculoskeletal disabilities, VA may, in addition to applying the schedular criteria, assign a higher disability rating when the evidence demonstrates functional loss due to limited or excessive movement, pain, weakness, excessive fatigability, or incoordination, to include during flare-ups and with repeated use, if those factors are not considered in the rating criteria. See 38 C.F.R. § § 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202 (1995); Burton, 25 Vet. App. at 5. Nonetheless, a disability rating higher than the minimum compensable rating is not assignable under any diagnostic code relating to range of motion where pain does not cause a compensable functional loss. Rather, the "pain must affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance," as defined in 38 C.F.R. § 4.40, before a higher rating may be assigned. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011) (noting that while "pain may cause a functional loss, pain itself does not constitute a functional loss," and, is therefore, not grounds for entitlement to a higher disability rating). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). Entitlement to a rating in excess of 10 percent for a right knee disability The Veteran contends generally he is entitled to a rating in excess of 10 percent for his right knee disability. The Veteran's right knee sprain is currently rated as 10 percent disabling under DC 5260 effective November 23, 2012. Under DC 5003 and 5010, degenerative arthritis and traumatic arthritis established by X-ray findings are rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a. Diagnostic Code 5256 pertains to ankylosis of the knee and provides a 40, 50 and 60 percent rating for varying degrees of ankylosis. DC 5257 provides a 10 percent rating for slight recurrent subluxation or lateral instability, a 20 percent rating for moderate recurrent subluxation or lateral instability, and a 30 percent rating for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a. Under DC 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. Under DC 5261, limitation of extension of the leg to 45 degrees warrants a 50 percent rating; limitation to 30 degrees warrants a 40 percent rating; limitation to 20 degrees warrants a 30 percent rating; limitation to 15 degrees warrants a 20 percent rating; limitation to 10 degrees warrants a 10 percent rating; and limitation to 5 degrees warrants a noncompensable rating. 38 C.F.R. § 4.71a. Diagnostic Code 5262 provides a 40 percent evaluation for nonunion of the tibia and fibula with loose motion, requiring a brace. Diagnostic Code 5257, other impairment of the knee, recurrent subluxation, or lateral instability, which provides a 10 percent rating for slight impairment, a 20 percent rating for moderate impairment, and a 30 percent rating for severe impairment of the knee. 38 C.F.R. § 4.71a. Normal knee flexion is to 140 degrees, and normal knee extension is to 0 degrees. See 38 C.F.R. § 4.71, Plate II. The words "slight," "moderate" and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of terminology such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The Veteran reported he has pain in his right knee, difficulty walking long distances, and has given up running. He further reported flare-ups when trying to run or climb stairs. See January 2020 VA 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 Veteran underwent a VA examination in January 2020. The Veteran's range of motion was abnormal with flexion noted from 0 to 120 degrees and extension noted from 120 to 0 degrees. The Veteran reported flare-ups, and while the VA examiner indicated pain, fatigue, weakness, lack of endurance, and incoordination cause functional loss, the Veteran's flexion was still noted to be 0 to 120 degrees with extension from 120 to 0 degrees during flare-ups. No ankylosis, subluxation or later instability, patellar dislocation, meniscal conditions, total knee replacements, or arthritis was noted to be present. The Veteran also underwent VA examinations during the rating period in October 2017, September 2015, and December 2012 however, these examinations are inadequate for rating purposes and they do not conform with the requirements set forth in Sharp v. Shulkin, 29 Vet. App. 26, 35 (2017) and Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). The Board has considered the lay statements by the Veteran. However even considering the Veteran's lay reports of symptoms and noted functional loss, a higher rating is not warranted. It was with consideration of the Veteran's statements that a 10% rating was found. The Board has also considered the January 2019 MRI as requested by Veteran in his March 2019 Correspondence. 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). However, the Board finds the Veteran would not be entitled to a higher rating under any of the other knee and/or leg diagnostic codes. In conclusion, the Board finds that the preponderance of evidence is against a rating in excess of 10 percent for the Veteran's right knee disability. The above does not suggest that the Veteran does not have problems with this knee as a 10% disability rating will cause the Veteran many problems over time. 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. Neither the Veteran nor his representative has identified any other rating criteria that would provide a higher rating or an additional rating. However, the potential applications of various provisions of Title 38 of the Code of Federal Regulations (2016) have been considered as required by the holding of the Court in Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Holcombe, 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.