Citation Nr: 22014174 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 17-36 291 DATE: March 11, 2022 ORDER Entitlement to a rating in excess of 20 percent for osteoarthritis of the right knee is denied. FINDING OF FACT The Veteran's right knee disability is manifest by pain causing loss of functional movement. CONCLUSION OF LAW The criteria for a rating more than 20 percent for right 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 5260. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1969 to May 1971. The Veteran had previously requested a hearing before the Board but waived that request in a January 2022 written correspondence. The Veteran contends that he is entitled to a higher rating because his right knee has worsened since 2015. The Veteran's right knee osteoarthritis 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, Diagnostic Code 5260. 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). The Board finds that the evidence of record persuasively weighs against a rating in excess of 20 percent for right knee osteoarthritis. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain, fatigue, repetitive use, and pain during flare-ups. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that flare-ups occur almost daily would not result in limitation of motion more nearly approximating flexion limited to 15 degrees. In March 2014, the Veteran was afforded a VA Examination. At the examination, his flexion was at worst 90 degrees and his extension was 0 degrees. He denied any functional impact from flare-ups. In January 2015, the Veteran was seen for an orthopedic consult for his right knee. The Veteran's flexion was measured at 80 degrees and extension was 10 degrees. The Veteran reported for an April 2015 VA Examination. He reported flare-ups occurring 3 times a week, lasting 1 to 2 days. The Veteran's flexion was recorded at worst 35 degrees and 5 degrees of extension after repetitive use. Range of Motion was not estimated at this examination for flare-ups, but it was noted the Veteran experiences pain, weakness, and fatigue. A June 2015 private examination was submitted. The examiner stated the Veteran's range of motion for flexion could not be performed as the Veteran reported too much pain and because it was "done in orthopedics" but did note the Veteran had full extension. A November 2015 orthopedic surgery note recorded the Veteran as having 30 degrees flexion and 5 degrees extension. In May 2017, the Veteran was afforded another VA Examination for his right knee. At worst, the Veteran's flexion was 80 degrees and extension 0 degrees. January 2018 private medical records noted the Veteran is capable of flexing his knee back 90 degrees. The Veteran reported for another VA Examination in January 2018 to assess the severity of his right knee disability. Upon examination, the Veteran's right knee flexion was at worst 60 degrees and 0 degrees of extension. In July 2018, a private examination report was submitted regarding the Veteran's right knee. The physician noted that the ROM was unable to be performed, but the Veteran can flex his knee to 90 degrees without pain. The Board notes this is the Veteran's private doctor. In May 2021, the Veteran submitted to another VA Examination for his right knee. The Veteran reported daily flare-ups if he is out of the house and are precipitated by walking or standing. The examiner found the Veteran's flexion at worst during flare-ups to be 80 degrees and extension of 0 degrees. The Board notes the Veteran's contention that his knee was forced to a point where a measurement was taken in the April 2015 and May 2017 VA Examinations, however, the Board finds that the findings of these examinations are consistent with other examinations and measurements of the knee during the period on appeal. 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). Diagnostic Code 5257 does not apply as the Veteran does not have a history of knee instability. The Board notes a June 2015 Private examination diagnosis of knee instability. The examiner did not conduct any joint stability testing, noted no history of instability, subluxation, or effusion. It was noted on the examination that the Veteran had stability limitations with ambulation, but nothing further noted regarding instability. No other medical evidence of record is favorable for knee instability. The Board notes that the Veteran's limitation of extension during the appeal period has once been recorded at 10 degrees in a January 2015 orthopedic surgery consult, 5 degrees at an April 2015 VA examination due to pain, and 5 degrees in a November 2015 orthopedic surgery consult. A July 2017 opinion noted the Veteran had "10?" degrees of extension due to pain. The following January 2018 VA examination, July 2018 private examination, and May 2021 VA examination found no limitation of extension. The Board considered granting a separate rating under Diagnostic Code 5261 for limitation of extension. However, the reports of limitation of extension in 2015 and 2017 were based on the Veteran's pain levels, of which he is currently being compensated for under Diagnostic Code 5260. Furthermore, the examinations conducted since July 2017 have shown no limitation of extension and the Veteran has not contended his limitation of extension has worsened. There is no evidence of a meniscal condition, tibia or fibia impairment, or gena recurvatum. In conclusion, the Board finds that the evidence of record persuasively weighs against the Veteran's claim for a rating in excess of 20 percent for his right knee disability. As the evidence of record persuasively weighs against a rating in excess of 20 percent, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021). B. G. LeMoine Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Jarman, 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.