Citation Nr: 21032619 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 12-06 568 DATE: May 27, 2021 ORDER An initial rating in excess of 10 percent for right knee degenerative joint disease is denied. An initial rating in excess of 10 percent for left knee degenerative joint disease is denied. FINDINGS OF FACT 1. For the entire appeal period, the Veteran's right knee degenerative joint disease is manifested by pain, stiffness, and puffiness with flexion limited to, at most, 120 degrees and full extension, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups, and dislocated semilunar cartilage, without ankylosis, recurrent subluxation or lateral or patellar instability, removal of semilunar cartilage, impairment of the tibia and fibula, or genu recurvatum. 2. For the entire appeal period, the Veteran's left knee degenerative joint disease is manifested by pain, stiffness, and puffiness with flexion limited to, at most, 120 degrees and full extension, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups, without ankylosis, recurrent subluxation or lateral or patellar instability, dislocation or removal of semilunar cartilage, impairment of the tibia and fibula, or genu recurvatum. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for right knee degenerative joint disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003-5260. 2. The criteria for an initial rating in excess of 10 percent for left knee degenerative joint disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003-5260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1968 to March 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in May 2018 by a Department of Veterans Affairs (VA) Regional Office. In February 2021, the Board remanded the instant claims, as well as a claim for service connection for a cervical spine disorder, for additional development. While on remand, a March 2021 rating decision awarded service connection for cervical strain and degenerative arthritis of the spine. As such claim has been granted in full, it is no longer before the Board. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The remaining claims now return for further appellate review. 1. Entitlement to an initial rating in excess of 10 percent for right knee degenerative joint disease. 2. Entitlement to an initial rating in excess of 10 percent for left knee degenerative joint disease. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history, and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011), the United States Court of Appeals for Veterans Claims (Court) held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). 38 C.F.R. § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable or malaligned joints or periarticular regions, regardless of whether the Diagnostic Code under which the disability is evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). The appeal period for the Veteran's increased rating claims begins on July 27, 2007, the date service connection was awarded for his bilateral knee disabilities. For the entire appeal period, such disabilities have been evaluated as 10 percent disabling pursuant to Diagnostic Code 5003-5260 based on arthritis with painful limitation of motion. 38 C.F.R. §§ 4.59, 4.71a. 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. 230 (Nov. 30, 2020). These amendments revised select Diagnostic Codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. However, the substance of Diagnostic Codes 5003 and 5260 was not changed. Pursuant to Diagnostic Code 5003, arthritis established by X-ray findings will be rated on the basis of limitation of motion of the specific joint involved. When, however, the limitation of motion of the specific joint involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each major joint or minor joints affected by limitation of motion. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, X-ray evidence of involvement of two or more major joints or two or more minor joints warrants a 10 percent evaluation. A 20 percent rating requires 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 knee is considered a major joint. 38 C.F.R. § 4.45. Normal range of knee motion is 140 degrees of flexion and zero degrees of extension. 38 C.F.R. § 4.71, Plate II. Diagnostic Code 5260 provides for a zero percent rating where flexion of the leg is only limited to 60 degrees. For a 10 percent rating, flexion must be limited to 45 degrees. For a 20 percent rating is warranted where flexion is limited to 30 degrees. A 30 percent rating may be assigned where flexion is limited to 15 degrees. Diagnostic Code 5261 provides for a zero percent rating where extension of the leg is limited to five degrees. A 10 percent rating requires extension limited to 10 degrees. A 20 percent rating is warranted where extension is limited to 15 degrees. A 30 percent rating may be assigned where the evidence shows extension limited to 20 degrees. For a 40 percent rating, extension must be limited to 30 degrees. Finally, where extension is limited to 45 degrees a 50 percent rating may be assigned. VA's General Counsel has also stated that separate ratings under Diagnostic Code 5260 (limitation of flexion of the leg) and Diagnostic Code 5261 (limitation of extension of the leg) may be assigned for disability of the same joint. VAOPGCPREC 9-04 (September 17, 2004), published at 69 Fed. Reg. 59,990 (2004). In regard to the Veteran's reported bilateral knee symptoms, he described pain in VA treatment records dated throughout the appeal period from 2008 to 2020. Additionally, in March 2008 and July 2009, he reported that his knee gave out and he fell. At a March 2018 VA examination, he indicated that he experienced stiffness in the morning, which eased following a walk, occasional sharp/shooting pains in both knees, puffiness, and increased pain with prolonged walking. However, even taking into consideration such reported bilateral knee symptomatology, the Board finds that, as will be discussed below, such does not result in functional loss that more nearly approximates higher or separate ratings under any relevant Diagnostic Code. See DeLuca, supra; Mitchell, supra. Specifically, on VA examination in March 2018, the Veteran had bilateral knee flexion limited to 120 degrees and normal extension without pain on active or passive range of motion, or on weight-bearing or nonweight-bearing. See Correia v. McDonald, 28 Vet. App. 158 (2016). There was also no additional loss of range of motion after repetitive-use testing. While the examiner indicated that she was unable to say without mere speculation whether pain, weakness, fatigability or incoordination significantly limited the Veteran's functional ability following repeated use over time or during a flare-up as such findings were not sufficient to predict, another VA examiner reviewed the March 2018 VA examination report and opined in a March 2021 addendum opinion that the Veteran's range of motion was unchanged following repeated use over time or during a flare-up; rather, his overall functional ability was limited due to pain. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). Based on the foregoing, the Board finds that, as the Veteran's bilateral knee flexion was limited to, at most, 120 degrees, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups, a rating in excess of 10 percent is not warranted under Diagnostic Code 5260. Furthermore, as his bilateral knee extension remained full despite such factors, a higher or separate rating is likewise not warranted under Diagnostic Code 5261. Additionally, as the Veteran reported that he experienced giving way of his knee in March 2008 and July 2009 VA treatment records, the Board has considered whether a higher or separate rating is warranted under Diagnostic Code 5257, which provides ratings for recurrent subluxation, lateral instability, and patellar instability. VAOPGCPREC 23-97 (July 1, 1997), 62 Fed. Reg. 63,604 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (1998). The Court has held that Diagnostic Code 5257 does not require objective medical evidence of lateral instability for a rating to be assigned. English v. Wilkie, 30 Vet. App. 347 (2018).. In this regard, while the Veteran is competent to describe feelings of giving way, he is not competent as a lay person to diagnose lateral instability, recurrent subluxation, or patellar instability, or relate such feelings to a specific diagnosis, as such requires the administration and interpretation of specialized testing of the ligaments and patella, respectively. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Rather, the March 2018 VA examiner, who has the training to administer and interpret ligament and patellar testing, found that there was no laxity or subluxation in the right or left knee. Consequently, the Board affords greater probative weight to the VA examiner's conclusions than the Veteran's generalized lay statements. See, e.g., Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). Therefore, the Board finds that a higher or separate rating under Diagnostic Code 5257 is not warranted. The Board further observes that a July 2015 VA treatment record includes MRI results reflecting a small focal free edge radial tear involving the central posterior horn lateral meniscus of the right knee. As such, the Board has considered whether a higher or separate rating is warranted under Diagnostic Code 5258. In this regard, such Diagnostic Code provides for assignment of a 20 percent rating for dislocation of semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. However, the Board finds that, to assign a separate rating under Diagnostic Code 5258 would be tantamount to pyramiding as the Veteran would be compensated twice for the same symptomatology. See 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Specifically, while the Veteran has reported pain, stiffness, and puffiness in relation to his right knee, such symptomatology results in functional impairment of limited motion, for which he is already in receipt of a 10 percent rating. Here, pain may limit the Veteran's range of motion pursuant to 38 C.F.R. §§ 4.40, 4.45, 4.59. Additionally, 38 C.F.R. § 4.45 indicates that, with respect to joints, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be direct to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse. In fact, no symptoms related to such tear were reported or noted at the March 2018 VA examination. Specifically, the Veteran denied catching or locking and the examiner's found there was no history of recurrent effusion. Consequently, any right knee meniscal symptomatology that the Veteran may have experienced during the appeal period is already contemplated in his currently assigned rating based on limitation of motion. Therefore, the Board finds that a separate rating under Diagnostic Code 5258 is not warranted for the Veteran's right knee disability. Moreover, as there is no evidence of dislocation of semilunar cartilage of the left knee, such Diagnostic Code is inapplicable to the rating of such disability. Similarly, as the evidence of record does not demonstrate ankylosis, removal of semilunar cartilage, impairment of the tibia or fibula, or genu recurvatum at any time during the pendency of the appeal, Diagnostic Codes 5256, 5259, 5262, and 5263 are not for application. Finally, while the Veteran's degenerative joint disease, i.e., arthritis, affects both his knees, which are major joints, the evidence does not show that such results in occasional incapacitating episodes and, thus, a combined 20 percent rating for such disabilities under DC 5003 is not warranted. In this regard, the Board also notes that such a rating would not be more favorable to the Veteran as he is already in receipt of separate 10 percent ratings for his bilateral knee disabilities, which also combined to 20 percent under 38 C.F.R. § 4.25. In reaching its conclusions in the instant case, the Board acknowledges the Veteran's belief that his bilateral knee disabilities are more severe than as reflected by the current assigned disability ratings. In this regard, the Board must consider the entire evidence of record when analyzing the criteria laid out in the rating schedule. While the Board recognizes that the Veteran is competent to describe his symptomatology, he is not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. See Woehlaert, supra. Ultimately, the Board finds the medical evidence in which professionals with specialized expertise examined the Veteran, acknowledged his reported symptoms, and described the manifestations of such disabilities in light of the rating criteria to be more persuasive than his own reports regarding the severity of his disabilities. The Board has also considered whether additional staged ratings under Fenderson, supra, are appropriate for the Veteran's service-connected bilateral knee disabilities; however, the Board finds that his symptomatology has been stable throughout each period on appeal. Thus, assigning additional staged ratings for such disabilities is not warranted. Furthermore, neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record, with regard to the initial rating claims adjudicated herein. Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). In reaching such determinations, the Board has considered the applicability of the benefit of the doubt doctrine; however, the preponderance of the evidence is against the Veteran's claims. Thus, the benefit of the doubt doctrine is not applicable and his initial rating claims must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Koria B. Stanton, 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.