Citation Nr: 21040436 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 16-57 783 DATE: July 3, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for service-connected left knee disability is denied. FINDING OF FACT The Veteran's left knee disability manifested limitation of flexion of 65 degrees and extension of zero degrees with functional loss due to pain. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for left knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5261. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from May 1995 to July 2014. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In the November 2016 VA Form 9, Substantive Appeal, the Veteran requested a Board hearing. In October 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In December 2019, the Board remanded this case for further development. The development requested having been completed, the claim is now appropriate for appellate review. Board decisions shall be based on the entire record and consideration of all evidence, lay and medical, that is material. 38 U.S.C. § 7104(a); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.303(a). The law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 128-29 (2000). While the Board must review the entire record, it does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed. See Timberlake, supra. In evaluating the evidence in any given appeal, it is the responsibility of the Board to make appropriate determinations of (a) competence; (b) credibility; and (c) weight. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Medical opinions are deemed competent since they are from medical professionals. 38 C.F.R. § 3.159(a)(1). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). As to the matters adjudicated below, neither the Veteran nor his representative has raised any issues with VA's duty to notify or VA's duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); see also Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Thus, the Board need not discuss any potential issues in this regard. Disability Ratings Disability ratings are determined by comparing the symptomatology manifested by a particular service-connected disability at issue with the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. Part 4. Disability ratings assess the ability of the body as a whole, or a body system or organ, to function under the ordinary conditions of daily life, to include employment. 38 C.F.R. § 4.10. The Rating Schedule is a guide intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1. Where the question is which of the two evaluations shall be applied, the higher evaluation is assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating is assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Entitlement to an initial rating in excess of 10 percent for service-connected left knee disability In February 2015, the RO granted service connection for the Veteran's left knee strain and assigned a noncompensable rating for the initial rating period, under Diagnostic Code 5257. In the Veteran's March 2015 Notice of Disagreement, the Veteran contended that he is entitled to a higher rating because of persistent pain with prolonged use of his left knee and that he has experienced persistent pain. After the December 2019 Board remand, the Veteran underwent a VA examination in October 2020. The examiner diagnosed the Veteran as having left knee strain and left knee patellofemoral pain syndrome since 1995, left medial collateral ligament sprain since January 1996, and left Grade 2 patellofemoral chondromalacia since June 2020. As a result of the October 2020 VA examination, the RO issued an October 2020 rating decision granting service connection for left knee medial collateral ligament sprain with patellofemoral chondromalacia, limitation of extension (left knee disability) and assigning a disability rating of 10 percent for the initial rating period, under Diagnostic Code 5261. The Veteran's left knee disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5261, for limitation of extension of the leg. Under Diagnostic Code 5261, a noncompensable rating is warranted for extension limited to 5 degrees. A 10 percent rating is warranted for extension limited to 10 degrees. A 20 percent rating is warranted for extension limited to 15 degrees. A 30 percent rating is warranted for extension limited to 20 degrees. A 40 percent rating is warranted for extension limited to 30 degrees. A 50 percent rating is warranted for extension limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. 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 Correia v. McDonald, 28 Vet. App 158 (2016), the 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." 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. Here, the October 2020 VA examination, the Veteran reported left knee flare-ups occurring weekly, which are severe. He also reported left knee pain decreases his active range of motion and strength resulting in a function loss. The physical examination showed the Veteran's left knee range of motion (ROM) as a flexion of 70 degrees and extension of zero degrees with pain present. With repeated use over time, the Veteran's left knee ROM decreased to flexion of 65 degrees with extension remaining at zero degrees with pain as the cause of the functional loss. The examiner noted that during flare-ups, the functional loss of the Veteran's left knee was caused by pain. The examiner also noted that additional factors contributing to the Veteran's left knee disability included less movement than normal specifying it was not caused by ankylosis, weakened movement, and disturbance of locomotion. The examiner found the Veteran's left knee did not have subluxation, lateral instability, arthritis, or any other symptoms. The examiner noted that the Veteran's abnormal MRI of left knee was due to overuse and injury to left knee while in the military. The examiner also noted that the Veteran used a brace occasionally. The examiner's findings establish that the Veteran's left knee disability does not meet a compensable rating for flexion under Diagnostic Code 5260 or extension under Diagnostic Code 5261. However, since the Veteran experiences painful motion in his left knee, the RO assigned the minimal compensable disability rating of 10 percent under 38 C.F.R. § 4.59. The Board will not disturb that rating. 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). 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 left 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 J. Agarwal, 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.