Citation Nr: 22016380 Decision Date: 03/22/22 Archive Date: 03/22/22 DOCKET NO. 17-27 163 DATE: March 22, 2022 ORDER Entitlement to a rating in excess of 10 percent for right knee strain with degenerative joint disease is denied. FINDING OF FACT Throughout the period on appeal, the Veteran's right knee strain with degenerative joint disease manifested as painful motion and flexion that was limited to 95 degrees, at worst and extension limited to zero degrees, at worst, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and a meniscus injury without flare-ups, instability, ankylosis, impairment of the tibia or fibula or genu recurvatum. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for right knee strain with degenerative joint disease has not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003-5261. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from March 1981 to January 1989. This matter is before the Board of Veteran's Appeals (Board) on appeal from a January 2017 rating decision by a Department of Veteran Affairs (VA) Regional Office (RO). The Board previously remanded this claim in January 2019 and October 2021 for further development, namely, to provide a new examination that tested the severity of the Veteran's right knee condition as well as provide range of motion testing after repeated use over time to determine functional loss and pain threshold. A new examination was conducted in November 2021 and adequate findings provided. In addition, updated VA treatment records have been associated with the record. The Board therefore finds that there has been substantial compliance with its previous remands. Stegall v. West, 11 Vet. App. 268 (1998). The case now returns to the Board for further appellate review. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered because of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the veteran's favor. 38 C.F.R. § 4.3. Separate ratings can be assigned for separate periods based on the facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). In this regard, 38 C.F.R. § 4.59 requires that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint." Correia v. McDonald, 28 Vet. App. 158 (2016). Further, 38 C.F.R. § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable or malaligned joints or periarticular regions, regardless of whether the Diagnostic Code under which the disability is evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Although the Board has an obligation to provide reasons and bases supporting its decision, there is no obligation to discuss, in detail, the extensive evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as it relates to the Veteran's claim. Entitlement to a rating in excess of 10 percent for right knee strain with degenerative joint disease (also claimed as knee) is denied. The Veteran's service-connected right knee strain with degenerative joint disease is rated as 10 percent disabling effective March 29, 2012 by analogy under Diagnostic Codes 5003-5261 for degenerative arthritis and limitation of extension. 38 C.F.R. § 4.71a. Separate ratings can be assigned for knee disabilities when none of the symptomatology overlaps and the separate rating is based on additional disabling symptomatology; this includes separate ratings based on limitation of flexion (Diagnostic Code 5260), limitation of extension (Diagnostic Code 5261), lateral instability or recurrent subluxation (Diagnostic Code 5257), and meniscal conditions (Diagnostic Codes 5258, 5259). See Lyles v. Shulkin, 29 Vet. App. 107 (2017). Under Diagnostic Code 5003, degenerative arthritis is 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 (Diagnostic Code 5200 etc.). When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 pct 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, rate as: A 10 percent rating is awarded with X-ray evidence of involvement of two or more major joints or two or more minor joint groups; a 20 percent rating is awarded when the disorder manifests in occasional incapacitating episodes. In this case, there is evidence of limitation of motion, so the Veteran's right knee disability will be rated under the appropriate diagnostic code. The normal range of motion of the knee is from zero degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. Limitation of flexion warrants 10, 20, and 30 percent ratings when limitation is to 45 degrees, 30 degrees, and 15 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Limitation of extension warrants 10, 20, 30, 40, and 50 percent ratings when limitation is to 10 degrees, 15 degrees, 20 degrees, 30 degrees, and 45 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5261. A 10 percent rating can also be assigned for the knee joint if there is painful motion without compensable limitation of motion. 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5010; see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that the applicability of 38 C.F.R. § 4.59 is not limited to arthritis claims). Recurrent subluxation and lateral instability of the knee warrants a 10, 20, or 30 percent rating if slight, moderate, or severe, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Ratings can also be assigned when the knee disability affects the meniscus, with a 20 percent rating for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint and a 10 percent rating for removal of semilunar cartilage (e.g., meniscectomy) and current residual symptoms. 38 C.F.R. § 4.71a, Diagnostic Codes 5258, 5259. Ratings can also be assigned for impairment of the tibia or fibula, genu recurvatum, or ankylosis of the knee. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5262, 5263. Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). Ankylosis is also defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary 93 (30th ed. 2003). In this case the evidence does not reflect, and the Veteran does not allege, that he has tibia or fibula impairment, genu recurvatum, or ankylosis of either knee. As such, those diagnostic codes are not for application. The Board notes that effective February 7, 2021, the criteria for schedule of ratings for the musculoskeletal system was revised. See 86 Fed. Reg. 8142 (Feb. 4, 2021) (codified at 38 C.F.R. pt. 4). In the instant case, the applicable rating period occurred before the implementation of these revised diagnostic criteria with regard to all evidence submitted before February 7, 2021. However, the diagnostic criteria for limitation of extension under Diagnostic Code 5261 is identical under both the former and revised criteria. Turning to the evidence, an October 2016 VA knee Disability Benefits Questionnaire (DBQ) report reflects complaints related to the Veteran's left knee. Right knee flexion was noted to be 90 degrees and right knee extension was noted to be to zero degrees, without pain noted on examination. Pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time. Examination was negative for right knee ankylosis, recurrent subluxation, and lateral instability. Anterior instability, posterior instability, medial instability, lateral instability were all found to be normal for the right knee. The Board notes that the examiner appears to indicate that the Veteran's service connected left knee disorder was being evaluated; therefore, the examiner's accuracy of these findings are not clear from the record. The Veteran was afforded a VA examination in December 2019. The examiner confirmed a diagnosis of right knee strain, right knee meniscal tear and bilateral knee joint osteoarthritis. The Veteran did not report any flare-ups of his right knee but reported functional loss due to pain. Range of motion testing found flexion to be to 110 degrees and extension was to zero degrees, with no pain on weight bearing, no localized tenderness or pain on palpation of the joint and no objective evidence of crepitus. The examiner noted that the Veteran was able to perform repetitive use testing with at least three repetitions but repetitive use over time was not testing. The examiner also noted the examination was neither medically consistent or inconsistent with the Veteran's statements describing functional loss with repetitive use over time. The Veteran was shown to have functional loss and/or functional impairment of the right knee that was manifested by pain and interference with sitting, kneeling, squatting, standing and walking for long periods of time and climbing stairs. Muscle strength testing of the right knee was normal. Joint stability testing for the right knee was normal. There was no evidence or history of recurrent patellar subluxation or dislocation. The Veteran did not have or ever had "shin splints" (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment. It was noted that the Veteran had a meniscectomy in May 1986. There were no other pertinent physical findings, complications, conditions, signs and/or symptoms shown. The Veteran reported using a brace regularly and a cane occasionally to assist him. Diagnostic imaging studies did document degenerative or traumatic arthritis of the right knee. The examiner noted the Veteran's knees impacted his ability to work in environments that require kneeling, squatting and uninterrupted sitting. As mentioned previously, the October 2021 Board remand deemed this examination incomplete for adjudicative purposes as it did not test for range of motion after repetitive use. The Veteran was afforded another VA examination in November 2021. At that time, the examiner confirmed a diagnosis of right knee strain and degenerative arthritis of the right knee. The Veteran reported knee pain. He denied flare-ups of his knee. He reported functional loss that was manifested by difficulties walking, climbing steps, standing and sitting for over 15 minutes. Range of motion measurements of the right knee were as follows: flexion was to 100 degrees; extension was to zero degrees, both for active and passive motion with pain on weight bearing. There was no localized tenderness or pain on palpation of the joint, but there was objective evidence of crepitus. Repetitive use testing found pain and weakness as a functional loss and the range of motion were as follows: flexion was to 95 degrees and extension was to zero degrees. Muscle strength testing of the right knee was normal. Joint stability testing for the right knee was normal. There was no evidence or history of recurrent patellar subluxation or dislocation. The Veteran did not have or ever had "shin splints" (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment. The Veteran was diagnosed with a meniscal tear, and it was noted that he had a meniscectomy in 1984. There were no other pertinent physical findings, complications, conditions, signs and/or symptoms shown. No use of an assistive device was reported. Diagnostic testing was not reported. The examiner noted that his knee pain affected his ability to perform occupational task, to include difficulty balancing while walking and difficulty sitting and standing for long periods without changing his positions. Further review of the record shows that the Veteran receives VA treatment and from private treatment providers for various disabilities. However, there is no indication from the treatment notes of record that the Veteran has reported knee symptoms that are worse than those noted above. Based on the foregoing, the Board finds that a rating in excess of 10 percent at any point during the appeal period is not warranted. The Veteran's right knee extension was found to be to zero degrees at worst with pain on extension in the November 2021 and December 2019 VA examination. Such range of motion does not amount to a rating higher than 10 percent, even in consideration of painful motion and other factors. Although the Veteran experience functional loss due to pain and weakness in the November 2021 VA examination, his extension with pain remained at zero degrees. Therefore, the Board finds that such factors do not result in functional loss more nearly approximating extension limited to 15 degrees in the right knee. See DeLuca v. Brown, supra; Mitchell v. Shinseki, supra. Therefore, the Veteran is not entitled to a rating in excess of 10 percent under Diagnostic Code 5261 in the right knee. The Board has considered whether the Veteran is entitled to a higher or separate rating under Diagnostic Code 5260 pertinent to limitation of flexion of the leg in the right knee. The Veteran's right flexion was found to be to 110 degrees in the December 2019 VA examination, to 100 degrees with objective evidence of pain in the November 2021 VA examination, and to 95 degrees after repetitive use in the same examination. In light of the limitation of flexion and painful motion, a higher rating based on limitation of flexion is not warranted throughout the appeal period. At worst, the Veteran's flexion was limited to 95 degrees, even in consideration of additional functional loss due to symptoms such as pain, swelling, weakness, fatigue, or incoordination as a result of repetitive motion and/or flare-ups. Therefore, the Board finds that such factors do not result in functional loss more nearly approximating flexion limited to 60 degrees in the right knee. See DeLuca v. Brown, supra; Mitchell v. Shinseki, supra. Therefore, the Veteran is not entitled to a separate higher rating for limitation of flexion under Diagnostic Code 5260 in the right knee. With respect to Diagnostic Code 5257, the Board finds that a higher or separate rating is not warranted in the right knee for any period on appeal. 38 C.F.R. § 4.71a. The Veteran did not allege experiencing instability and testing revealed no instability or laxity at the VA examinations of record. Hence, the most probative evidence is against a higher or separate rating for his right knee under Diagnostic Code 5257. 38 C.F.R. § 4.71a. With respect to Diagnostic Code 5258, the Board finds that a higher or separate rating is not warranted in the right knee for any period on appeal. 38 C.F.R. § 4.71a. Although the Veteran had a meniscectomy, the Veteran did not allege experiencing frequent episodes of "locking," pain, and effusion of the right knee. Hence, the most probative evidence is against a higher or separate rating for his right knee under Diagnostic Code 5258. 38 C.F.R. § 4.71a. The Board has considered the applicability of other potential diagnostic codes. As the evidence of record fails to demonstrate ankylosis, impairment of the tibia or fibula, or genu recurvatum, the Veteran is not entitled to a higher or separate rating under 5256, 5262, or 5263, respectively, for his right knee strain. Finally, the Board has considered the effects of repeated use over time and flare-ups along with the adequacy of the VA examinations in light of the Court's holdings in Correia and Sharp. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016), and Sharp v. Shulkin, 29 Vet. App. 26 (2017). In this case, the December 2019 VA examination was incomplete and provided only partial information as described above. However, pain was noted on examination in the December 2019 and November 2021 VA examination reports. The effect of pain on range of motion is described above. Regarding repeated use over time, the Board notes that the November 2021 VA examiner conducted repetitive-use testing and concluded there was functional loss due to pain and weakness with repetitive use over time, which was considered in the analysis. The November 2021 VA examination also reflected measurements for active and passive range of motion as well as range of motion testing in weight-bearing and nonweight-bearing. The Veteran denied flare-ups in the November 2021 VA examination. Therefore, the November 2021 examination of record is adequate for rating purposes. The Board also acknowledges the Veteran's sincerely held belief that his right knee strain with degenerative joint disease symptoms is more severe than currently contemplated. In this regard, the Board must consider the entire evidence of record when analyzing the criteria laid out in the rating schedule. While the Board recognizes that the Veteran is competent to describe his symptomatology and resulting functional difficulties, he is not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Ultimately, the Board finds the medical evidence in which professionals with specialized expertise examined the Veteran, acknowledged his reported symptoms, and described the manifestations of such in light of the rating criteria to be more persuasive than his own reports regarding the severity of his disability. The Board has considered whether a staged rating under Hart v. Mansfield, supra, are appropriate for the Veteran's service-connected right knee strain with degenerative joint disease; however, the Board finds that his symptomatology has been stable throughout this appeal period. Therefore, assigning staged ratings for such disability is not warranted. The Veteran has not raised any other issues, and no other issues have been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total disability rating due to individual unemployability (TDIU) is part of a rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. In this case, the record does not reflect, and the Veteran does not allege, that he is unemployable due to his right knee disability. In fact, the December 2019 examiner stated that the Veteran can engage in sedentary work with frequent breaks, as well as the November 2021 examiner. In addition, the Veteran reported that he was working full-time in a March 2021 VA treatment note. Therefore, the Board finds that a TDIU is not raised by the Veteran or reasonably raised by the record in connection with his initial rating claim decided herein and, consequently, no further consideration of such is necessary at this time. In sum, the Board finds that a rating in excess of 10 percent is not warranted for right knee strain with degenerative joint disease. The appeal is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Adeyemi, 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.