Citation Nr: 21032560 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 99-11 196A DATE: May 27, 2021 ORDER Entitlement to an increased rating in excess of 10 percent for a left knee disability, limitation of flexion, is denied. Entitlement to an increased rating in excess of 10 percent for a right knee disability, limitation of flexion, is denied. Entitlement to a separate rating of 10 percent for a left knee disability, limitation of extension, prior to September 24, 2012, and noncompensable thereafter, is granted. Entitlement to a separate rating of 30 percent for a right knee disability, limitation of extension, prior to September 24, 2012, and noncompensable thereafter, is granted. Entitlement to a separate rating of 20 percent for right knee instability, prior to September 24, 2012, and noncompensable thereafter, is granted. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Prior to September 24, 2012, the Veteran's right knee disability was productive of limitation of motion of, at worse, flexion of 90 degree, and extension of 20 degrees, with evidence of moderate instability. 2. Prior to September 24, 2012, the Veteran's left knee disability was productive of limitation of motion of, at worse, 110 degree of flexion, and extension of 10 degrees, with no evidence of instability. 3. Since, September 24, 2012, the Veteran's left and right knee disabilities are productive of limitation of motion of, at worse, flexion of 60 degrees, with normal extension, no additional limitation due to flare-up, and no ankylosis. CONCLUSIONS OF LAW 1. The criteria for an increased rating in excess of 10 percent for a left knee disability, have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5260. 2. The criteria for an increased rating in excess of 10 percent for a right knee disability, have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, DC 5260. 3. The criteria for a separate rating of 10 percent for a left knee disability, limitation of extension, prior to September 24, 2012, and noncompensable thereafter, have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, DC 5261. 4. The criteria for a separate rating of 30 percent for a right knee disability, limitation of extension, prior to September 24, 2012, and noncompensable thereafter, have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, DC 5261. 5. The criteria for a sperate rating of 20 percent for right knee instability, from September 24, 2012, and noncompensable thereafter, have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, DC 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from November 1973 to November 1975 and from March to November 1976 in the U.S. Army. He had a period of active service in the U.S. Army National Guard from June 1992 to March 1994. He also had additional unverified periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA). Increased Rating 1. Entitlement to an increased rating in excess of 10 percent for a left knee disability, limitation of flexion 2. Entitlement to an increased rating in excess of 10 percent for a right knee disability, limitation of flexion 3. Entitlement to a separate rating of 10 percent for a left knee disability, limitation of extension, prior to September 24, 2012, and noncompensable thereafter, is granted. 4. Entitlement to a separate rating of 30 percent for a right knee disability, limitation of extension, prior to September 24, 2012, and noncompensable thereafter, is granted. 5. Entitlement to a separate rating of 20 percent for right knee instability, prior to September 24, 2012, and noncompensable thereafter, is granted. The Veteran contends that his left and right knee disabilities warrants a higher rating than his current 10 percent. Specifically, the Veteran contends that he has constant pain and limited motion in his knees, to include flare-ups. The Board finds that prior to September 24, 2012, the Veteran's bilateral knee disability manifested with objective limitation of motion for extension, and right knee instability. As such, additional and separate disability ratings for both limitation of extension and instability must be granted as part of the Veteran's claim, and to this extent only, his claims for increased rating is granted. The Veteran's left and right knee disabilities are rated under DC 5260. 3 8 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, DC 5260. The standard ranges of motion of the knee are zero degrees of extension and 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. In addition to limitation of flexion under DC 5260, additional and separation disability ratings can also be granted to include instability under 5257 and limitation of extension 5261. Under DC 5257, slight recurrent subluxation or lateral instability of the knee is rated 10 percent. Moderate recurrent subluxation or lateral instability of the knee is rated 20 percent. Severe recurrent subluxation or lateral instability of the knee is rated as 30 percent. 38 C.F.R. § 4.71a, DC 5257. Under DC 5261, limitation of extension to 5 degrees warrants a 0 percent rating. Limitation of extension to 10 degrees warrants a 10 percent rating. Limitation to 15 degrees warrants a 20 percent rating. A 30 percent rating requires limitation of extension to 20 degrees. A 40 percent rating requires limitation of extension to 30 degrees. A 50 percent rating requires limitation of extension to 45 degrees. 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) ("[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). The Veteran was provided VA examinations to assess the nature and severity of his service-connected knee disabilities in August 2010, September 2012, December 2016, and January 2021. A close review of the VA examination reports revealed no objective evidence of limitation of motion that even approaches the requisite 30 degrees on flexion (or to 10 degrees on extension) required for a higher rating. The Veteran's initial VA examination, conducted in August 2010, noted subjective reports from the Veteran of pain and stiffness. Flare-ups were reported by the Veteran to occur on a weekly basis, lasting several hours, and included increased pain; these flare-ups were aggravated by increased use such as kneeling, climbing stairs, and squatting. The examiner, however, noted that the Veteran did not report additional limitation of motion during flare-ups. Upon testing, the range of motion was limited to 90 degrees of flexion with pain starting at 70 degrees, and extension limited to 20 degrees, for the right knee. For the left knee, the Veteran's flexion was limited to 110 degree, with pain starting at 100 degrees, and extension limited to 10 degrees. No repeat examination was noted. Stability testing revealed instability in the right knee, but not the left knee. Upon examination, the right knee tested positive for instability for the medial/lateral ligament and the medial/lateral meniscus. The examiner ultimately diagnosed the Veteran with patellofemoral dysfunction of the left knee, and degenerative arthritis of the right. In September 24, 2012, the Veteran was afforded another VA examination, where, again, he as noted with complaints of constant pain, and increased pain after prolonged use; the Veteran, however, noted no flare-ups during the examination. Upon testing for range of motion, the Veteran's right knee showed flexion was limited to 95 degrees, with pain starting at 70 degrees, and normal (zero degrees) extension. On the left side, the Veteran's flexion was noted to be limited to 110 degrees, with pain starting at 95 degrees, and normal (zero degrees) extension. The examiner noted no additional objective loss of range of motion upon repetitive testing, and pain/tenderness were found on palpation. No instability was found upon stability testing, with muscle strength presenting slightly decreased (4/5) with no indication of atrophy. No ankylosis were noted for either knee. The examiner noted the use of a cane on a regular basis and noted that the Veteran's pain prevented prolonged walking and standing. At his December 2016 VA examination, the Veteran's right and left knee condition showed to be markedly unchanged. He was diagnosed with osteoarthritis of both knees, with continued subjective complaints of increased pain, to especially include after prolonged walking and standing. The Veteran reported flare-ups, which limited continued/prolonged standing and ambulation. Upon physical examination the Veteran's right knee range of motion was noted to be limited to 90 degree, with normal extension, pain on weightbearing, and crepitus. Left knee range of motion was reported as limited to 95 degrees of flexion, also with normal extension, no pain on weightbearing, or tenderness on palpation. Repeat testing of range of motion reveals no additional loss of range of motion. Further testing reveals no evidence of ankylosis or instability, to include after stability testing on all planes. The Veteran was noted to use assistive devises to include a brace on a regular basis, and a cane occasionally, for ambulation, and, again, the examiner noted functional impact of the Veteran's condition prevented prolonged walking and/or standing. Finally, at his most recent VA examination in January 2021, the Veteran's right and left knee condition showed to be markedly unchanged. At the examination, the Veteran again reported bilateral join pain, with swelling, stiffness, and limitation of movement. Upon testing, both the Veteran's left and right knees were noted to be limited to 70 degrees of flexion and normal extension, with repeat resting showing a decrease to 60 degrees of flexion and normal extension, bilaterally. The examiner found no further decreases in range of motion beyond than 60 degrees of flexion, even considering flare-ups described by the Veteran. No ankylosis was noted on examination, and stability testing returned all normal across all planes for both knees. No other conditions were noted on examination. The Veteran was noted to use a walker on a constant basis for ambulation. In addition to these VA examinations, the record contains voluminous amounts of both VA and private treatment records. A close review of these records reveals no further objective evidence regarding either the Veteran's claims bilateral knee disabilities, demonstrating further loss of range of motion, or diagnoses of other associated conditions such as ankylosis and/or instability. These records also do not demonstrate any evidence of a more severely debilitating condition with regards to either knee, than that already contemplated by the VA examination. To this end, the Board notes that most treatment notes speak to treatment for pain in the knees and does not provide any additional objective findings in which an increase in the severity of the Veteran's disabilities can be determined. Therefore, the Board finds that the VA examinations of record, are the most probative evidence of record as they specifically assess the Veteran's knee disabilities in terms of the objective criteria set out by the rating code. In making such finding, the Board ultimately finds that staged and separate ratings are appropriate for the Veteran's continuous claim for increased rating since his initial rating in 2010. Limitation of Flexion With specific regards to the Veteran's currently rated disability for limitation of motion for flexion, the Board notes that the competent medical evidence of record, to include VA treatment records and VA examinations, shows that the Veteran's left and right knee disabilities are manifested by range of motion limited to, at worst, 60 degrees of flexion for both knees during the entire claims period. There is no evidence that such limitation is further increased due to repeat motion or even flare-ups. The Board finds that such level of disability does not warrant a higher rating based on limitation of motion for flexion, and therefore, the claims for an increased rating specific to limitation of flexion, must be denied. A close review of the VA examinations reveals a markedly similar disability picture throughout the claims period, with regards to limitation of flexion. Here, upon testing, the Veteran's right and left knee range of motion was noted to be, at worse, limited to 60 degrees of flexion for both knees, as demonstrated by his more recent examination in January 2021. These examinations additionally reveal no finding of instability or ankylosis, and no objective evidence of any additional loss of range of motion due to functional loss or flare-ups. In addition to these VA examinations, the Board notes that no additional VA or private treatment records reveals any other objective measure of the Veteran's knee disability, or note any additional diagnoses or symptoms related to such disability, to include instability, or ankylosis. However, even considering the January 2021 VA examination results, which hallmarks the Veteran's right and left knee disabilities at their worst, with flexion noted to be limited to 60 degrees, the Board notes that these findings do not more nearly reflect the criteria for a higher rating based on limitation of motion under DC 5260. While there is functional loss due to pain, especially after prolonged use, it is not productive of the functional equivalent of flexion limited to 30 degrees or worse for either knee, which is required under DC 5260 for the next higher 20 percent rating. The examinations of record shows that the Veteran, while reporting pain, performed repetitive testing without further decreases in range of motion. Even a review of the VA and private treatment records during the claims period reveal no additional evidence showing a disability of either knee that approaches the 30 degrees limitation of flexion required for a 20 percent rating under the appropriate DC. Consequently, the Board finds that the Veteran's right and left knee disabilities are manifested by no more than pain and range of motion limited to, at worst, 60 degrees flexion, even considering additional functional loss after repetition. Therefore, as there is no evidence of limitation of motion limited to 30 degrees of flexion or below, at any point during the claims period, the Board must find that the Veteran's claims for a rating in excess of 10 percent is not warranted under the DC for limitation of flexion for the entire claims period. Limitation of Extension The Board, however, does find that a separate disability rating is warranted for both the right and left knee is warranted. Here, the Board finds that prior to September 24, 2012, the date of the Veteran's second VA examination of record for his knees, the relevant evidence shows that the Veteran's knee conditions resulted in increased limitation of extension in both knees. These increase in disability was noted in the Veteran's initial August 2010 VA examination described above, and as such, the Board must find that a separate disability rating for limitation of extension, under DC 5261 is warranted for both knees. As noted above, under DC 5261, limitation of extension to 5 degrees warrants a 0 percent rating. Limitation of extension to 10 degrees warrants a 10 percent rating. Limitation to 15 degrees warrants a 20 percent rating. A 30 percent rating requires limitation of extension to 20 degrees. A 40 percent rating requires limitation of extension to 30 degrees. A 50 percent rating requires limitation of extension to 45 degrees. 38 C.F.R. § 4.71a. The Board finds that the relevant medical evidence of record demonstrates that while a separate rating for both knees regarding limitation of extension is warranted, such separate rating, must be staged to reflect the medical evidence of record. Here, during his initial August 2010 VA examination, the Veteran's limitation of extension was noted to be limited to 20 degrees of extension for the right knee, and 10 degrees for the left knee. However, such VA examination is the only evidence of record that demonstrates any such limitation of extension. From the Veteran's next VA examination on September 24, 2012, forward, the Veteran's range of motion regarding either of the Veteran's bilateral knees have been noted to be consistently normal at zero degrees. Consequently, based on DC 5261, and the relevant August 2010 VA examination results, a separate rating of 30 percent for the Veteran's right knee, and 10 percent for the Veteran's left knee, is granted for the period prior to September 24, 2012, the date of the next examination showing normal range of motion. This separate rating is subsequently staged, and a non-compensable rating is assigned for both knees, with regards to limitation of extension under DC 5261, from September 24, 2012. Instability Likewise, the Board also finds that with regards to the Veteran's right knee, a separate rating is warranted for right knee instability, as found in the August 2010 VA examination. Here, during this examination the Veteran's right knee was found to have relevant movement during stability testing, to include during the McMurry test, and for the medial/lateral ligaments. The Board finds that, as the Veteran's right knee demonstrated positive for instability in two of the four testing planes, such condition is considered moderate, warranting a 20 percent separate rating for instability of the right knee. The Board, again notes, that like the Veteran's limitation of extension, this instability is not found in any other VA examination or treatment note beyond this VA examination. A close review of the medical evidence from the September 24, 2012, onward reveals no evidence of instability for either knee upon testing on multiple occasion during the claims period. Like the Veteran's claim for limitation of extension, the Board finds that a staged rating is again appropriate. Therefore, a separate rating for 20 percent for instability of the right knee, prior to September 24, 2012, is granted, and a noncompensable rating is assigned for a period thereafter. With regards to the left knee, neither the August 2010 VA examination, nor any other examination or treatment record during the entire claims period have showed instability of the left knee. Therefore, a separate rating for instability is not warranted for any period for the left knee. The Board has also considered the other DCs pertaining to the knee and leg. Here, however, a higher or separate rating are not warranted under any other potentially applicable DCs. There is no lay or objective evidence of ankylosis (DC 5256); or frequent episodes of "locking," pain and joint effusion (DC 5258); or impairment of tibia and fibula (DC 5262); or genu recurvatum (DC 5263). As such, considering under these DC would be inappropriate, and not warranted. The Board has considered the Veteran's lay statements and complaints. With regard to the lay statements, the Board notes that while the Veteran is competent to speak to lay observable symptoms such as pain, he is not competent to speak to the specific objective criteria of exact measurements for range of motion as it pertains to the applicable DC. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Evaluations of the Veteran's knee disabilities have been provided by medical professionals of record and their results were considered in this decision. The Board assigns more probative weight to those examination results because of the experience and training of the examiners. Accordingly, the Board finds that the preponderance of evidence is against the claim for a higher rating for a right and left knee disability for limitation of flexion must be denied, with grants of separate rating for limitation of extension and instability granted to the extent noted herein. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. Here, the record reveals that the Veteran's TDIU claim was found to be part and parcel to his various claims for increased rating under Rice v. Shinseki, 22 Vet. App. 447 (2009). As such the Board has discovered inconsistent reports of unemployment and schooling pursuant to the TDIU issue on appeal, to include through various statements made to medical professionals during examinations. On remand, the RO should give the Veteran the opportunity to provide an updated and accurate VA Form 21-8940 detailing the complete work and education history, income earned, to include highest gross earnings per month, and any other information regarding employment or attempts to obtain employment. The matters are REMANDED for the following action: Ask the Veteran to complete and submit a VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) that responds to all the information requested on that form, to include a complete and accurate work and education history, and exact dates of employment, names of employers, and income information, including the highest gross earnings per month. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ziheng Zhu, 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.