Citation Nr: 21039972 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 15-19 667 DATE: July 2, 2021 ORDER Entitlement to a rating higher than 10 percent for right knee degenerative arthritis is denied. Entitlement to a rating higher than 10 percent for left knee degenerative arthritis is denied. REMANDED Entitlement to service connection for rheumatoid arthritis, claimed as disability manifested by multiple joint arthritis is remanded. FINDING OF FACT The Veteran's right and left knees degenerative arthritis disabilities have been manifested, at worst, by flexion to 110 degrees and extension to 0 degree with pain and without objective evidence of subluxation or lateral instability, ankylosis, or nonunion or malunion of the tibias or fibulas. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating higher than 10 percent for right knee degenerative arthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.2, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (Codes) 5003-5260. 2. The criteria for entitlement to a rating higher than 10 percent for left knee degenerative arthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.2, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Codes 5003-5260. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran had active duty service from August 1987 to August 2007. These matters were previously before the Board of Veterans' Appeals (Board) in February 2019 and remanded to a Department of Veterans Affairs (VA) Regional Office (RO) for additional development. INCREASED RATING Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall 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. See 38 C.F.R. § 4.7. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, consideration also must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 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 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."). Hyphenated codes are used when a rating under one code requires use of an additional code to identify the basis for the rating. 38 C.F.R. § 4.27. In Correia v. McDonald, 28 Vet. App. 158 (2016), the United States Court of Appeals for Veterans Claims (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." The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis, and must be considered when raised by the claimant or when reasonably raised by the record. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The Court has held the provisions of 38 C.F.R. § 4.59 are also not limited to the evaluation of musculoskeletal disabilities under diagnostic codes predicated on range of motion measurements. See Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). 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. 1. Entitlement to a rating higher than 10 percent for right knee degenerative arthritis 2. Entitlement to a rating higher than 10 percent for left knee degenerative arthritis The Veteran is rated 10 percent for each knee under 38 C.F.R. § 4.71a, Codes 5003-5260. In June 2012, he filed increased rating claims for his service-connected right and left knees degenerative arthritis disability. In July 2013 the RO continued the 10 percent rating assigned for each knee based on painful motion of the knee under 38 C.F.R. § 4.59, which allows for consideration of functional loss due to painful motion to be rated to at least the minimum compensable rating for a particular joint. The RO considered and applied the provisions of 38 C.F.R. §§ 4.40 and 4.45 concerning functional loss due to pain as cited in DeLuca, 8 Vet. App. 202. The Veteran contends that a rating higher than the 10 percent assigned for each knee is warranted for the entire appeal period. Under Code 5003, degenerative arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under Code 5003. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Code 5003. Normal range of knee motion is 140 degrees of flexion and zero degrees of extension. 38 C.F.R. § 4.71, Plate II. Limitation of motion of the knee is contemplated in 38 C.F.R. § 4.71a, Codes 5260 and 5261. Code 5260 provides for a 10 percent rating, flexion must be limited to 45 degrees. 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. Under Code 5261 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 extension is limited to 20 degrees. For a 40 percent rating, extension must be limited to 30 degrees. Where extension is limited to 45 degrees a 50 percent rating may be assigned. Code 5257 provides for assignment of a 10 percent rating when there is slight recurrent subluxation or lateral instability; a 20 percent rating when there is moderate recurrent subluxation or lateral instability, and a 30 percent rating for severe recurrent subluxation or lateral instability. VA's General Counsel has stated that when a knee disorder is rated under 38 C.F.R. § 4.71a, Code 5257 and limitation of knee motion is also present, which at least meets the criteria for a noncompensable evaluation under 38 C.F.R. § 4.71a, Code 5260 or 5261, separate ratings may be assigned for arthritis with limitation of motion and for instability. However, General Counsel stated that, if the criteria for a noncompensable rating under either Code 5260 or Code 5261 are not met, there is no additional disability for which a separate rating for arthritis may be assigned. VAOPGCPREC 23-97 (July 1, 1997), published at 62 Fed. Reg. 63,604 (1997). Evidence of record shows the Veteran underwent a VA-contract knee and lower leg conditions examination in August 2012. At that time, he reported he had anterolateral knee pain bilaterally with occasional pain levels of 8/10. He had pain with walking down inclines and stairs and squatting. Crepitus was noted. The Veteran reported that during flare-ups he has pain when walking down inclines and stairs and squatting. Range of motion testing shows right and left knees flexion each to 140 degrees or greater with painful motion beginning at 110 degrees in the right knee and 120 degrees in the left knee. Right and left knees extension were each to 0 degree with no objective evidence of painful motion. Right and left knees flexion on repetitive use testing shows each ended at 140 degrees or greater, and each with 0 degree of hyperextension. There was no additional limitation in range or motion of the knees following repetitive-use testing. The Veteran had functional loss and/or functional impairment of the knees described as pain on movement. He had tenderness or pain to palpation for joint line or soft tissues of both knees. Muscle strength was normal bilaterally. Joint stability tests revealed normal findings bilaterally. There was no evidence or history of recurrent patellar subluxation/dislocation. There were no significant diagnostic test findings or results. The diagnosis was bilateral knee degenerative disease. The Veteran's knees did not impact his ability to work. On October 2019 VA-contract knee and lower leg conditions examination, the Veteran reported his knees were a lot worse and are "always hurting and swelling up." He reported functional loss/functional impairment due to pain, which he described as an inability to move about like he used to. He stated that he moves slow and has trouble doing "simple things". On range of motion testing of the right and left knees, flexion was to 110 degrees and extension was to 0 degree; range of motion did not contribute to a functional loss. Pain was noted and caused functional loss with flexion and extension. There was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. There was evidence of bilateral knee pain with weight bearing and evidence of crepitus. There was no additional loss of function or range of motion after three repetitions. Right and left knee pain significantly limited functional ability with repeated use over time and with flare-ups. There were additional contributing factors of disability such as swelling (treatment requires staying off extremity), disturbance of locomotion (difficulty walking or running), and interference with sitting (difficulty driving or working at a desk using computer in sitting position) and standing (difficulty standing in line at store/shop). A reduction in muscle strength in the knees was noted; rate of strength was 4/5. The Veteran did not have muscle atrophy or ankylosis. He had no history of recurrent subluxation, lateral instability, recurrent effusion, or joint instability. He had never had recurrent patellar dislocation, "shin splints", stress fractures, chronic exertional compartment syndrome or any other tibial or fibular impairment. He did not use any assistive devices. Bilateral knee x-rays show degenerative arthritis. The diagnoses were right and left knee joint osteoarthritis and rheumatoid arthritis, bilaterally. The examiner noted the Veteran's bilateral knee disabilities could affect him in jobs that require standing, sitting, and walking for extended time periods. The pain could potentially become so severe that it may cause him to miss shifts. On review, the Board finds that of the evidence of record weighs against the assignment of ratings higher than 10 percent each for the Veteran's service-connected knee disabilities under Codes 5003-5260. As noted above, the Veteran's right and left knee flexion was limited to, at worst, 110 degrees with functional loss due to pain. At no time has the Veteran's bilateral knee flexion been shown to be any less than 110 degrees, including due to pain, or following repetitive motion, to warrant the next higher rating of 20 percent under Code 5260. Moreover, there has been no finding of any limitation of extension, including due to pain or following repetitive motion, which would warrant the next higher rating of 20 percent under Code 5261. Additionally, the Veteran was not objectively found to have subluxation of the knee, effusion, or locking. There have been indications of pain during motion; however, there are no clinical findings of further limitation of motion due to pain or weakness. Also, there has been no indication of any ankylosis of the right and left knees at any time during the appeal period; nor any indication of malunion or nonunion of the tibia and fibula. As such, ratings by analogy to Codes 5256, 5261, or 5262 would not result in higher ratings than the currently assigned 10 percent rating for each knee. In addition, the Board notes that consideration of whether higher are warranted under the regulations relating to functional loss due to pain, weakness, fatigability, incoordination, and other factors under DeLuca, 8 Vet. App. at 204-07; 38 C.F.R. §§ 4.40, 4.45 have already been considered and applied under 38 C.F.R. § 4.59. Accordingly, the Board finds that a rating higher than 10 percent is not warranted for right and left knee degenerative change disabilities. In deciding these claims, the Board considered the Veteran's lay statements. The Veteran is competent to report his own observations with regard to the observable symptoms of his right and left knee disabilities. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements would not result in limitation of motion more nearly approximating flexion limited to 30 degrees or extension to 15 degrees. The Board finds the specific examination findings of trained health care professionals to be of greater probative weight than the Veteran's more general lay assertions. The Board finds that ratings higher than 10 percent are not warranted at any time during the appeal period for the Veteran's right and left knee disabilities. In denying the higher ratings, 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. In Rice v. Shinseki, 22 Vet. App. 447 (2009), he United States Court of Appeals for Veterans Claims (Court) held that a claim for a total disability rating based on individual unemployability due to service connected disabilities (TDIU), is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. In this case, although the Veteran has submitted evidence of a medical disability and made a claim for the highest rating possible, he has not submitted evidence of unemployability due to his right and left knee disabilities. Moreover, the clinical evidence of records fails to indicate that the Veteran's right and left knee disabilities render him unemployable. It was noted in a May 2020 VA medical opinion that the Veteran is currently employed as an electrician for the Federal government. Therefore, the question of entitlement to a TDIU has not been raised. Further, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017). REASONS FOR REMAND The Board finds that further remand is required regarding the claim of service connection for rheumatoid arthritis, claimed as disability manifested by multiple joint arthritis because the Board's previous remand orders were not complied with, and the Board errs if it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268 (1998). Here, the October 2019 VA-contract examiner and May 2020 VA medical opinion provider did not provide opinions using the proper evidentiary standard of "at least as likely as not". Further, the examiners did not provide adequate rationale that fully considers service treatment records that show the Veteran manifested symptoms of rheumatoid arthritis during service despite having a negative rheumatoid factor. Nor was his consistent complaints of pain and stiffness of multiple joints and reported elevated ESR [erythrocyte sedimentation rate (sed rate)] was 28 (normal is 0-10) adequately considered. Remand is necessary to address these matters. In addition, on remand, all outstanding VA treatment records from May 2015 to the present should be obtained and associated with the Veteran's claims file. The matter is REMANDED for the following action: 1. Obtain all outstanding VA treatment records from May 2015 to the present and associate them with the Veteran's claims file. 2. Obtain an addendum opinion addressing the nature and etiology of any current disability manifested by pain of multiple joints experienced by the Veteran since active service from the same medical provider who provided the May 2020 medical opinion, or another medical provider if that medical provider is unavailable. If an examination is needed, one should be scheduled. The claims file must be made available to the medical provider, including a copy of this Remand. The medical provider must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's symptoms of pain of multiple joints in service attributed to the presence of rheumatoid arthritis despite having a negative rheumatoid factor. In making such assessment, the examiner is asked to consider and discuss the Veteran's consistent complaints of pain and stiffness of multiple joints and his reported elevated sed rate of 28 at that time. The examiner must opine whether any disability manifested by multiple joint arthritis experienced by the Veteran since service (including, but not limited to, rheumatoid arthritis) at least as likely as not (1) began during active service; (2) manifested within one year after discharge from service; or (3) is related to an in-service injury, event, or disease, to include the Veteran's joint problems in service. A detailed rationale must be provided for all opinions. K. Anderson Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Young, 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.