Citation Nr: 22012203 Decision Date: 03/02/22 Archive Date: 03/02/22 DOCKET NO. 16-16 734 DATE: March 2, 2022 ORDER Entitlement to a rating in excess of 10 percent for a right knee disability is denied. FINDING OF FACT The Veteran's right knee disability is manifested by arthritis with no more than flexion limited to 50 degrees. CONCLUSION OF LAW The criteria for entitlement to a 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, Diagnostic Code 5260. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1995 to January 2002. This matter is before the Board of Veterans' Appeals (Board) on appeal of an October 2013 rating decision. The Board remanded the issue remaining on appeal for additional development in January 2020, March 2021, and September 2021. Increased Rating Claim Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. This Rating Schedule is primarily a guide in the rating of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. For the application of this schedule, accurate and fully descriptive medical examinations are required, with emphasis upon the limitation of activity imposed by the disabling condition. Over a period of many years, a veteran's disability claim may require re-ratings in accordance with changes in laws, medical knowledge and his or her physical or mental condition. It is essential, both in the examination and in the evaluation of disability, that each disability be viewed in relation to its history. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2. Consideration of factors wholly outside the rating criteria constitutes error as a matter of law. Massey v. Brown, 7 Vet. App. 204, 207-08 (1994). Evaluation of disabilities based upon manifestations not resulting from service-connected disease or injury and the pyramiding of ratings for the same disability under various diagnoses is prohibited. 38 C.F.R. § 4.14. VA regulations generally provide for separate ratings based on separate disabilities, not separate symptoms. See Cullen v. Shinseki, 24 Vet. App. 74, 81-82 (2010). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 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. 38 C.F.R. § 4.40. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Id. Such evidence may include facial expression, such as wincing, muscle spasm, and crepitation. See 38 C.F.R. § 4.59. Excess fatigability and incoordination should be taken into account in addition to more movement than normal, less movement than normal, and weakened movement. 38 C.F.R. § 4.45. Consideration of a higher rating for functional loss, to include during flare ups, due to these factors accordingly is warranted for Diagnostic Codes predicated on limitation of motion. DeLuca v. Brown, 8 Vet. App. 202 (1995). Pain itself does not constitute functional loss, and painful motion does not constitute limited motion for the purposes of rating under Diagnostic Codes pertaining to limitation of motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Pain must affect the ability to perform normal working movements with normal excursion, strength, speed, coordination, or endurance in order to constitute functional loss. Id. An adequate orthopedic examination should record the range of motion for pain on active motion and passive motion and in weight bearing and non-weight bearing, address the necessary findings to evaluate functional loss during flare-ups, or clearly explain why the required testing cannot be completed or is not necessary. See Correia v. McDonald, 28 Vet. App. 158 (2016) An examination does not need to be conducted during an actual flare-up in order to account for additional functional impairment. Sharp v. Shulkin, 29 Vet. App. 26, 34 (2017). Instead, examiners are asked to estimate the functional impairment experienced during a flare-up, considering all competent evidence of functional loss that is available in the record. Id. A claimant may obtain "an evaluation based on ankylosis if [that] claimant's functional loss is consistent with that contemplated by ankylosisin other words, if it is the functional equivalent of ankylosis." Chavis v. McDonough, 34 Vet. App. 1, 11 (2021). Orthopedic disabilities of the knee joint are evaluated under the criteria of 38 C.F.R. § 4.71a. Under certain circumstances, a knee disability may receive separate ratings based on evidence showing limitation of motion (Diagnostic Codes 5256, 5260, and 5261) or instability (Diagnostic Codes 5257, 5262, and 5263). See VAOPGCPREC 23-97 (July 1, 1997). Additionally, VA General Counsel has held that a veteran who has arthritis resulting in limited or painful motion and instability of a knee may be rated separately under diagnostic codes 5003 and 5257, cautioning that any such separate rating must be based on additional disabling symptomatology. See VAOPGCPREC 9-98 (September 1998). VA's General Counsel has further held that separate ratings under 38 C.F.R. § 4.71a, 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. See VAOPGCPREC 9-2004 (September 17, 2004). Moreover, an evaluation of a knee disability under diagnostic codes 5257, 5260, or 5261 does not preclude a separate evaluation under diagnostic codes 5258 or 5259. See Lyles v. Shulkin, 29 Vet. App. 107 (2017). Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021). VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA must consider the claim for a higher rating pursuant to the former and revised regulations after February 7, 2021. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). It is noted, however, that these changes included no pertinent revisions to Diagnostic Codes 5003, 5256, 5258, 5260, and 5261. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When 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 Diagnostic Code 5003. 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, a 10 percent rating is warranted with X-ray evidence of involvement of two or more major joints or two or more minor joint groups, and a 20 percent rating is warranted with X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. The 20 percent and 10 percent ratings based on X-ray findings will not be combined with ratings based on limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003, Note (1). Prior to February 7, 2021, traumatic arthritis was rated pursuant to the criteria found in Diagnostic Code 5010, which directed that evaluations are to be made pursuant to the criteria for degenerative arthritis found in Diagnostic Code 5003. 38 C.F.R. § 4.71a. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When 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 Diagnostic Code 5003. 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, a 10 percent rating is warranted with X-ray evidence of involvement of two or more major joints or two or more minor joint groups, and a 20 percent rating is warranted with X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. The 20 percent and 10 percent ratings based on X-ray findings will not be combined with ratings based on limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003, Note (1). Effective February 7, 2021, Diagnostic Code 5010 provides that post-traumatic arthritis is to be rated as limitation of motion, dislocation, or other specified instability under the affected joint. If there are 2 or more joints affected, each rating shall be combined in accordance with applicable regulations. Diagnostic Code 5256 provides a 60 percent rating for knee ankylosis that is extremely unfavorable, in flexion at an angle of 45 degrees or more. A 50 percent rating is provided with flexion between 20 degrees and 45 degrees. A 40 percent rating is provided with flexion between 10 degrees and 20 degrees. A 30 percent rating is provided with a favorable angle in full extension, or in slight flexion between 0 degrees and 10 degrees. Diagnostic Code 5258 provides a 20 percent rating for dislocated semilunar cartilage with frequent episodes of "locking" pain and effusion into the joint. Diagnostic Code 5260 provides a 30 percent rating where knee flexion is limited to 15 degrees; 20 percent where limited to 30 degrees; 10 percent where limited to 45 degrees; and 0 percent where limited to 60 degrees. Diagnostic Code 5261 provides a 50 percent rating where knee extension is limited to 45 degrees; 40 percent where limited to 30 degrees; 30 percent where limited to 20 degrees; 20 percent where limited to 15 degrees; 10 percent where limited to 10 degrees; and 0 percent where limited to 5 degrees. Prior to February 7, 2021, Diagnostic Code 5257 provided a 10 percent rating for slight subluxation or lateral instability, a 20 percent rating for moderate subluxation or lateral instability, and a 30 percent rating for severe subluxation or lateral instability. Lay evidence as to lateral instability was to be weighed on a case-by-case basis. English v. Wilkie, 30 Vet. App. 347 (2018). The terms slight, moderate, and severe are not defined in the rating schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are equitable and just as contemplated by the requirements of the law. 38 C.F.R. § 4.6. Effective from February 7, 2021, Diagnostic Code 5257, provides that with recurrent subluxation or instability a 30 percent rating is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. A 20 percent rating is warranted for one of the following: (a) Sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation. (b) Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 10 percent rating is warranted for sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. For patellar instability a 30 percent rating is warranted with a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. A 20 percent rating is warranted with a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: A brace, cane, or walker. A 10 percent rating is warranted with diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. Note (1): For patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note (2): A surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant. However, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 4.3. The Veteran contends that an increased rating is warranted for her service-connected right knee disability. Her initial increased rating claim was received by VA on March 26, 2013. The pertinent evidence of record includes Social Security Administration (SSA) records with a January 2013 report noting the Veteran complained of bilateral knee pain with right knee swelling at times. There was full range of motion to the knees with no evidence of subluxations, contractures, ankylosis, or thickening. The joints were stable and nontender. VA treatment records dated in May 2013 noting the Veteran reported a long history of bilateral knee pain. Diagnostic testing was noted to have revealed possible minimal osteophyte formation to the right knee. Active and passive range of motion studies revealed flexion and extension within functional limits. Neoprene knee braces were issued. VA examination in October 2013 included diagnoses of bilateral knee degenerative joint disease. It was noted the Veteran complained of knee pain, right worse than left, with episodic swelling. She stated she had difficulty walking or standing for prolonged periods. No flare-ups were reported. Range of motion testing demonstrated 130 degrees of flexion and 0 degrees of extension in the knees. There was no objective evidence of painful motion. Passive and active range of motion and after repetitive-use testing were the same. Joint stability tests were normal. There was no evidence of subluxation or dislocation. Regular use of a cane and knee braces was noted. A July 2014 VA examination report noted a diagnosis of bilateral patellofemoral syndrome and complaints of constant moderate pain without locking or buckling. No flare-ups were reported. It was noted that the Veteran refused range of motion testing; however, the examiner did not state why she refused testing. The examiner noted that observations demonstrated normal extension while walking and that she had a normal gait. There was no objective evidence of painful motion. Right knee muscle strength was normal, 5/5. Joint stability tests were normal. There was no evidence of patellar subluxation or dislocation. Occasional use of a knee brace was noted. VA treatment records include an August 2014 physical therapy evaluation noting the Veteran complained of constant bilateral knee pain that was aggravated by standing, walking, and stair climbing. Active range of motion studies revealed right knee flexion to 128 degrees and extension to -2 degrees. Right knee strength was 3-/5. A June 2015 report noted active range of motion studies revealed right knee flexion to 126 degrees and extension to +1 degree. Right knee strength was 5/5. Joint mobility was intact, and gait was normal. A November 2019 report noted moderate grinding under the right kneecap on palpation. Range of motion was within normal limits. Right lower extremity strength was 5/5, grossly. Ambulation was without gait deviations. VA examination in July 2020 included diagnoses of bilateral patellofemoral pain syndrome and bilateral degenerative arthritis. It was noted the Veteran complained of pain and swelling with running and prolonged standing and walking. She reported left knee buckling at times and flare-ups of increased swelling and aching that required her to take a break and sit down. She reported her bilateral knee disorders prevented her from standing or walking more than 30 minutes at a time. Range of motion studies revealed right knee flexion to 50 degrees and extension to 0 degrees with mild pain on flexion that did not result in functional loss. There was evidence of pain on weight bearing, but no objective evidence of right knee pain on non-weight bearing. There was no additional loss of function range of motion loss on repetitive-use testing. The examiner noted the examination was consistent with the Veteran's statements describing functional loss with repetitive use over time and during flare-ups, with estimated range of motion in such instances remaining as flexion to 50 degrees and extension to 0 degrees. Further, additional contributing factors of disability included disturbances of locomotion and interference with standing. Muscle strength and joint stability tests were normal. There was no evidence of muscle atrophy, ankylosis, recurrent patellar dislocation, a meniscus condition, or surgery to the right knee. The examiner noted the Veteran used braces constantly for patellofemoral pain syndrome and degenerative joint disease of the knees. Diagnostic testing in December 2013 documented arthritis to the knees with minimal degenerative changes. Passive range of motion and objective evidence of pain on motion were noted to be the same as active range of motion findings. A September 2020 private treatment report noted the Veteran complained of pain and swelling in the knees with her left knee tending to lock up more. An examination of the right knee revealed no atrophy, ecchymosis, or swelling. There was a mild varus deformity and tenderness to palpation along the medial aspect of the proximal tibia and adjoining joint line. Range of motion was from 0 to 110 degrees with pain at the end of flexion. Strength testing was 5/5. McMurray and Appley tests were positive. Anterior drawer, Lachman, pivot shift, valgus stress, varus stress, posterior sag, patellar compression, and patellar apprehension tests were negative. Gait was antalgic favoring the affected side. X-ray studies revealed very mild arthritis and slight loss of joint space. The examiner's impressions included bilateral mild knee osteoarthritis and possible right knee medial meniscus tear. A March 2021 report noted there was no swelling, ecchymosis, or deformity to the right knee. There was medial joint line tenderness and full range of motion from 0 to 140 degrees. Gait pattern was normal for the Veteran. The examiner's impressions included bilateral mild knee osteoarthritis and possible left knee medial meniscus tear. It was noted that magnetic resonance imaging (MRI) including for the right knee had been ordered. No subsequent right knee MRI report was provided. VA treatment records dated in March 2021 noted bilateral knee pain, left worse than right. The examiner noted that MRI and X-ray studies for the right knee were ordered. Records show the Veteran did not report for a scheduled MRI study in June 2021 and there is no indication an X-ray study ordered in March 2021 was conducted. VA examination in December 2021 included a diagnosis of right patellofemoral syndrome. It was noted the Veteran complained of continued swelling with prolonged walking. No symptom flare-ups, functional impairments, history of instability or recurrent subluxations, or history of frequent effusions were reported. The examiner noted abnormal or outside of normal initial range of motion measurements but found the Veteran's effort had been suboptimal and that the measurements were not valid for rating purposes. Active and passive range of motion endpoint values, however, were reported as flexion to 100 degrees and extension to 0 degrees. There was no evidence of pain on motion or with weight bearing and non-weight bearing. There was no additional loss of function or range of motion after three repetitions nor evidence suggestive of pain, fatigability, weakness, lack of endurance, or incoordination which significantly limits functional ability with repeated use over time. The examiner noted the Veteran denied having flare-ups in the right knee. There was no evidence of muscle atrophy, ankylosis, recurrent subluxation, persistent instability, ligament tear (sprain), recurrent patellar instability, or a meniscus (semilunar cartilage) condition. Joint stability tests were normal. The examiner also noted that X-ray studies were not clinically indicated and that the current severity of the symptoms were minor in nature. There was no history of surgery, and no assistive devices were used. The Veteran was noted to work as a postal clerk and that the disorder impacted her ability to perform occupational tasks in that she had pain during activities that bend the knee, pain with extended periods sitting, and cracking and popping in the knees when standing or climbing stairs. Based upon the evidence of record, the Board finds that Veteran's service-connected right knee disability rated is manifested by no more than flexion limited to 50 degrees. Although at her December 2021 VA examination the Veteran reported having received private medical treatment, she did not respond to a September 2021 VA request for additional information or authorization for assistance in obtaining such evidence. It is additionally noted that arthritis of the right knee was documented by X-ray study in December 2013 and that there is no indication she reported for scheduled VA diagnostic testing in 2021. VA's "duty to assist is not always a one-way street" and if a claimant wishes help, she cannot passively wait for it in those circumstances where she may or should have information that is essential in obtaining relevant evidence. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Board finds the Veteran's service-connected right knee disability is most appropriately rated under the provisions of Diagnostic Code 5260. See Butts v. Brown, 5 Vet. App. 532, 539 (1993). Although VA records indicate the 10 percent rating was recorded in July 2014 as assigned under Diagnostic Codes 5260-5014, there is no evidence of osteomalacia to warrant an analogous rating under Diagnostic Code 5014. There is also no probative evidence demonstrating right knee manifestations such as leg extension limited to 10 degrees or more, subluxation, lateral instability, sprain involving ligament tear causing persistent instability, a condition involving the patellofemoral complex with recurrent instability, or dislocated semilunar cartilage with frequent episodes of "locking" pain and effusion into the joint for a higher or separate rating under other applicable diagnostic codes. The overall evidence demonstrates that the Veteran's right knee disability was manifested by evidence of arthritis with limitation of flexion greater than 45 degrees over the entire appeal period. The September 2020 VA examination is found to be most persuasive as to the nature and extent of the Veteran's right knee disability. The examination adequately addressed all pertinent matters, and the findings are consistent with the overall evidence of record. Range of motion findings for pain on active motion and passive motion and in weight bearing and non-weight bearing were reported and functional loss during flare-ups was adequately addressed. Although a September 2020 private treatment report noted McMurray and Appley tests were positive and provided a diagnosis of possible right knee medial meniscus tear, the subsequently dated reports from that provider do not confirm a diagnosis of right knee meniscal tear. The September 2020 and December 2021 VA examination findings indicative of normal joint stability upon testing are found to be more persuasive as to this matter based upon consistency with the other evidence of record. The Board notes that an adequate discussion of functional loss includes consideration of manifest functional loss during flare-ups. See Mitchell, 25 Vet. App. 32. Flare-ups must be quantifiable and must result in limitation of motion or function beyond that contemplated by the already provided evaluation. In addition, because VA regulations under 38 C.F.R. § 3.344(a) and 38 C.F.R. § 4.1 address the stabilization of ratings, flare-ups must be of such length as to establish that the overall impairment is more severe than currently evaluated, rather than a brief snapshot in time. Here, the Board finds the degrees of disability specified in this case are adequate to compensate for any loss of working time from exacerbations or illness proportionate to the severity of the several grades of disability. There are no reports of flare-ups that are quantifiable nor of sufficient duration to warrant a change in evaluation without violating the spirit of Mitchell and the provision of 38 C.F.R. § 4.1 and 38 C.F.R. § 3.344(a) regarding stabilization of ratings. The Board acknowledges that the Veteran is competent to report observable symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). She is not, however, competent to identify a specific level of disability. Competent evidence concerning the nature and extent of the Veteran's service-connected disability has been provided by VA medical professionals who have examined her. The medical findings, overall, adequately address the criteria under which the disability is evaluated and clearly demonstrate the degree of impairment over the period at issue. The Board accords these findings greater weight than the Veteran's complaints as to any increased symptomatology. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). The persuasive evidence of record in this case is against the claim for a rating in excess of 10 percent, and the appeal must be denied. ROBERT N. SCARDUZIO Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Douglas 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.