Citation Nr: 21041904 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 17-49 386 DATE: July 10, 2021 ORDER A rating in excess of 20 percent for traumatic arthritis, status post left knee injury with meniscal surgeries and scar is denied. From January 13, 2020, a separate 10 percent rating for instability of the left knee is granted, subject to the regulations governing the payment of monetary awards. REMANDED Entitlement to service connection for a low back disorder is remanded. Entitlement to service connection for a left hip disorder is remanded. Entitlement to service connection for a left ankle disorder is remanded. FINDINGS OF FACT 1. Throughout the appeal, the Veteran's left knee arthritis has been manifested by, at worse, limitation of flexion to 50 degrees with extension to 0 degrees and no instability noted prior to January 13, 2020. 2. From January 13, 2020, the Veteran's left knee has been manifested slight medial and anterior instability. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for traumatic arthritis, status post left knee injury with meniscal surgeries and scar have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5260. 2. From January 13, 2020, the criteria for a separate 10 percent rating, but no higher, for instability of the left knee have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1982 to September 1985 and from August 1986 to August 1989. In January 2020, a videoconference hearing was held before the undersigned. A transcript of the hearing has been associated with the record. The case was previously before the Board in April 2020. At that time, it was remanded for further development of the evidence. This was accomplished, but has led to the need for further development of the issues related to service connection. Entitlement to a rating in excess of 20 percent for traumatic arthritis, status post left knee injury with meniscal surgeries and scar The Veteran contends his left knee disability is more disabling than currently evaluated. During the hearing before the undersigned in January 2020, he stated that his knee disorder had worsened so that an increased rating should be assigned. Review of the record shows that service connection for residuals of a left knee injury was granted in a November 1989 rating decision. A 10 percent rating was awarded at that time. The rating was increased to 20 percent in an October 1996 rating decision. The Veteran requested an increased rating in July 2016. The Veteran's left knee arthritis is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5260, for limitation of flexion of the leg. Under Diagnostic Code 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. 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 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 spine has no opposite 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. An examination was conducted by VA in November 2016. At that time, the diagnoses included traumatic arthritis of the left knee with meniscal surgeries and anterior cruciate ligament (ACL) tear. The Veteran described having flare-ups of pain with any prolonged standing, walking, squatting or while using stairs. He described functional loss as decreased activities due to pain. Range of motion of the left knee was from 0 degrees extension to 110 degrees flexion. The limitation of motion was not found to contribute to a functional loss. Pain was noted on flexion and there was objective evidence of localized tenderness on palpation that was described as moderate. There was pain on weight bearing and objective evidence of crepitus. The Veteran was able to perform repetitive use testing without additional limitation of motion. The Veteran was not examined immediately after repetitive use over time or during a flare-up, but the examination was neither medically consistent or inconsistent with the Veteran's statements describing functional loss with repetitive use over time or during flare-ups. Pain limited functional ability with repeated use over time and flare-ups. Range of motion during a flare-up was estimated to be between 0 degrees extension to 90 degrees flexion. Additional disability was described ase disturbance of locomotion and interference with standing. Muscle strength testing was 5/5. There was no muscle atrophy or ankylosis. Joint stability testing showed no history of recurrent subluxation or lateral instability, but there was some history of intermittent swelling of the left knee described. No joint instability was found. The examiner described a meniscal tear, stating that the Veteran had persistent pain on both sides of the left knee joint. The Veteran had had ACL reconstruction and meniscal repair in 1989 with residual pain, decreased range of motion and scarring. The Veteran was noted to use a left knee brace on a regular basis. Functional impact was described as moderate impairment due to pain with prolonged standing, walking, and climbing stairs. The examiner did note pain with passive range of motion. On January 13, 2020, the Veteran testified at a hearing before the Board. Specifically, he testified that he believed his left knee symptoms had worsened since the prior VA examination because his knees had been giving out on him at times and he also had problems where the knee would swell to the point where he could not walk. As a result of the Veteran's hearing testimony, the increased rating claim was remanded for a new VA examination; this was conducted in October 2020. On October 2020 VA examination, the diagnoses were knee instability and arthritis. The Veteran described left knee flareups and functional loss in that he could no longer walk through stores, stand, or walk with stability. Range of motion of the left knee was from 0 degrees extension to 110 degrees flexion. Pain was noted on both flexion and extension. There was localized tenderness to palpation. That was described as moderate. There was pain with weight bearing and objective evidence of crepitus. The Veteran was able to perform repetitive use testing with pain and weakness and additional limitation of flexion to 105 degrees. The examiner was examined after repeated use over time with additional limitation of motion to only 50 degrees flexion. Additional factors contributing to disability included swelling, instability of station, disturbance of locomotion, and interference with standing. Muscle strength testing was 4/5 in flexion and extension. There was no muscle atrophy. There was no ankylosis. Joint stability testing showed no history of recurrent subluxation, but there was a history of slight lateral instability. There was also a history of knee swelling at times. The left knee showed 1+ medial and lateral instability. The Veteran did use a knee brace on a regular basis as well as occasionally using a cane. Imaging studies documented arthritis. Functional impact was described as being unable to walk through stores, work, stand, and walk with stability. The Veteran could not ambulate without a constant risk of falling and frequently lost left knee strength such that he fell, or nearly did so. The examiner stated there was objective evidence of pain on passive range of motion and on non-weight bearing testing. The Veteran's VA treatment records show that he has received periodic treatment for the left knee. In March 2020, the Veteran reported during an annual outpatient clinical assessment that every once in a while, his left knee would give out. There are no indications of instability in the treatment records prior to this date. After reviewing the foregoing, the Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for the Veteran's left knee disability. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain and weakness and additional limitation of motion as a result of repetitive use over time. Even considering the Veteran's lay reports of symptoms and noted functional loss, however, the degree of additional limitation reflected with repeated use over time does not result in limitation of motion more nearly approximating flexion limited to 15 degrees. Flexion is limited to 50 degrees, which does not approximate the criteria for a rating in excess of 20 percent. 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). For slight impairment of the knee, with recurrent subluxation or lateral instability, a 10 percent rating is warranted. For moderate impairment, 20 percent rating is warranted; a 30 percent rating requires severe impairment. 38 C.F.R. § 4.71a, Code 5257. There is no indication of impairment of extension of the left knee. As such, there is no basis for a separate rating under Diagnostic Code 5261. As for Diagnostic Code 5257, which addresses instability, while the 2016 VA examination report found that the Veteran did not have instability, subluxation, or other disability of the left knee; at the January 2020 Board hearing, the Veteran testified that his symptoms had worsened since the 2016 VA examination such that his left knee now occasionally gave out. The Veteran similarly reported having instability to his VA treatment providers in March 2020 and the VA examination performed in October 2020 found one plus instability in the medial and anterior ligaments. This corresponds to no more than slight impairment of the left knee, which warrants a separate 10 percent rating from January 13, 2020, the date of the Veteran's hearing before the Board and the earliest date in the record it is reasonably shown that the Veteran had evidence of left knee instability. To this extent, the appeal is allowed. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for a rating in excess of 20 percent for left knee arthritis, but does establish that a 10 percent rating is warranted from January 13, 2020. In denying a rating in excess of 20 percent for arthritis, 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. REASONS FOR REMAND Entitlement to service connection for a left hip and left ankle disorders is remanded. Review of the record shows that the Veteran is primarily requesting service connection for a left hip and left ankle disorders as secondary to his service-connected left knee disorder. The record contains VA negative nexus opinions that are based on VA examinations showing no evidence of a disability of the left hip and left ankle. Recent VA outpatient treatment records, dated in August 2020 show that the Veteran has complaints of both left hip and left ankle pain. The Veteran has stated that his hip and ankle pain affect his ability to maintain employment. "Pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability" if it "reaches the level of a functional impairment of earning capacity." Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Under these circumstances, the Board finds that an additional examination to evaluate if the Veteran's left ankle and hip pain causes functional impairment of earning capacity and, if so, whether it is caused or aggravated by the Veteran's service-connected knee disabilities. McLendon v. Nicholson, 20 Vet. App. 79 (2006). Entitlement to service connection for a low back disorder is remanded. The Veteran is also claiming service connection for his low back disorder, diagnosed as lumbosacral strain, as secondary to a service-connected disability. While a negative nexus opinion was rendered by a VA examiner in November 2016 the Board finds that the rationale for the decision is inadequate for rating purposes. In this regard, it is noted that the examiner essentially found that there was no basis for secondary service connection because the Veteran's lumbosacral strain was minimally disabling. Moreover, the examiner did not render an opinion regarding whether the back disorder could be aggravated by a service-connected disability. As such, an additional opinion is necessary. The matters are REMANDED for the following actions: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's left hip and left ankle symptoms cause functional impairment and, if so, whether it is at least as likely as not proximately due to or aggravated beyond its natural progression by his service-connected right and/or left knee disabilities. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's low back disability is at least as likely as not proximately due to his service-connected right and/or left knee disabilities or aggravated beyond its natural progression by those service-connected disabilities. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Joseph P. Gervasio 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.