Citation Nr: 22016398 Decision Date: 03/22/22 Archive Date: 03/22/22 DOCKET NO. 13-06 776 DATE: March 22, 2022 ORDER Prior to January 24, 2019, entitlement to a disability rating higher than 50 percent for limitation of motion associated with the service-connected left knee disability is denied. FINDING OF FACT Prior to January 24, 2019, the service-connected left knee disability was manifested by painful motion, which was not the equivalent of ankylosis. CONCLUSION OF LAW Prior to January 24, 2019, the criteria for a disability rating higher than 50 percent for limitation of motion associated with the service-connected left knee disability were not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a veteran (the Veteran) who had active duty service from September 1990 to November 1994. This appeal comes before the Board of Veterans' Appeals (Board) from a June 2020 Order of the United States Court of Appeals for Veterans' Claims (Veterans Court). The appeal originated from a November 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. In April 2015, the Veteran presented testimony at a Board hearing, chaired by a Veterans Law Judge sitting at the RO. At the Board hearing, the Veteran was informed of the basis for the RO's denial of this claim, and he was informed of the information and evidence necessary to substantiate the claim. 38 C.F.R. § 3.103. A transcript of the hearing is associated with the claims file. The Judge who conducted the hearing is no longer employed at the Board. The Veteran did not reply to a January 2021 letter regarding whether he wished to appear at another Board hearing. In a July 2019 decision, the Board denied this mater. The Veteran appealed to the Veterans Court. In a June 2020 Order, pursuant to a Joint Motion for Remand, the Veterans Court vacated the Board's decision regarding this issue, and remanded it to the Board for additional development consistent with the Joint Motion. In March 2021, September 2021, and October 2021, the Board remanded this issue for additional evidentiary development. The appeal has since been returned to the Board for further appellate action. The Veterans Court also vacated the Board's denial of a separate rating for instability of the left knee and a separate rating for dislocated semilunar cartilage. In a March 2021 decision, the Board granted a separate rating of 20 percent for dislocated semilunar cartilage, and a separate rating of 10 percent for instability. The Board denied any higher ratings for these conditions, thus resolving the appeal as to those matters. The Board has considered whether the issue of entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU) is a component of the increased rating claim on appeal in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009). However, the Veteran does not contend that his service-connected left knee disability rendered him unable to secure or follow a substantially gainful occupation during the period prior to the current effective date for TDIU (September 1, 2011). On his VA Form 21-8940 (Veterans Application for Increased Compensation Based on Unemployability), the Veteran listed September 1, 2011, as the date he became too disabled to work, and as the date of his last full time employment. Disability Ratings Laws and Regulations Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where a veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). The rating must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. Staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection of parts of the musculoskeletal system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. The functional loss may be due to absence of part, or all, of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). 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, supra; 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 (musculoskeletal system) or § 4.73 (muscle injury); 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). During the course of this appeal, the musculoskeletal ratings were amended effective February 7, 2021. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied. The Board may not apply a current regulation prior to its effective date unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board must consider the application of prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. Generally, lay evidence is competent with regard to identification of a disease with unique and readily identifiable features which are capable of lay observation. A lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir 2007). Lay persons may also provide competent evidence regarding a contemporaneous medical diagnosis or a description of symptoms in service which supports a later diagnosis by a medical professional. However, a lay person is not competent to provide evidence as to more complex medical questions, i.e., those which are not capable of lay observation. Lay statements are not competent evidence regarding diagnosis or etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); Jandreau, at 1377, n. 4 ('sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer'); 38 C.F.R. § 3.159(a)(2). After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C. § 7104(a). When there is an approximate balance of 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 claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. A VA claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must weigh against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), Gilbert at 54. Entitlement to a disability rating higher than 50 percent for limitation of motion associated with the service-connected left knee disability, prior to January 24, 2019. The current appeal arises from a service connection claim received at VA on December 9, 2010. In a November 2011 rating decision, VA granted service connection for a left knee disability and assigned an initial disability rating of 10 percent under Diagnostic Code 5260, effective June 4, 2010. The effective date was not explained in the rating decision, but is favorable to the Veteran in comparison to the date of claim. In an April 2019 rating decision, the disability rating was increased to 30 percent, effective March 1, 2020. In an August 2021 rating decision, the rating was increased to 50 percent for all periods not assigned temporary total ratings. The parties to the June 2020 Joint Motion stipulated that, in its July 2019 denial of a rating higher than 10 percent for the period prior to January 24, 2019, the Board relied on medical evidence that was not compliant with legal precedent regarding functional impairment during flares and with repeated use over a period of time, and measurements of passive and active range of motion, and during weight bearing and non-weight-bearing. The Board remanded the matter in March 2021, September 2021, and October 2021, to address these concerns. The Board finds that its remand instructions were substantially complied with. Regarding the most recent remand, the agency of original jurisdiction issued a supplemental statement of the case with respect to the prior Board remand of September 2021. See Stegall v. West, 11 Vet. App. 268 (1998). See also See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand). Although not specified in a Board remand, VA received notification from the Social Security Administration (SSA) in March 2020 that no SSA records exist. Under Diagnostic Code 5256 ankylosis is rated 60 percent where it is extremely unfavorable, in flexion at an angle of 45 degrees or more; a rating of 50 percent where in flexion between 20 degrees and 45 degrees; a rating of 40 percent where in flexion between 10 degrees and 20 degrees; and a rating of 30 percent where at a favorable angle in full extension, or in slight flexion between 0 degrees and 10 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5256. Under Diagnostic Code 5260, limitation of flexion of the knee is assigned a rating of 30 percent where flexion is limited to 15 degrees; a rating of 20 percent where flexion is limited to 30 degrees; a rating of 10 percent where flexion is limited to 45 degrees; or a rating of 0 percent where flexion is limited to 60 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5261, limitation of extension of the knee is assigned a rating of 50 percent where extension is limited to 45 degrees; a rating of 40 percent where extension is limited to 30 degrees; a rating of 30 percent where extension is limited to 20 degrees; a rating of 20 percent where extension is limited to 15 degrees; a rating of 10 percent where extension is limited to 10 degrees; or a rating of 0 percent where extension is limited to 5 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. On March 23, 2010, the Veteran was treated at Naval Medical Center, Portsmouth, for complaint of left knee pain. The left knee anterior aspect was tender on palpation. The patellofemoral region was tender on palpation. Pain was elicited by flexion. Pain was elicited by extension. There was no tenderness on palpation at the joint line. There was no crepitus on motion. Active flexion was not decreased. Active extension was not decreased. There was no medial instability with valgus stress or varus stress. Lachman test did not demonstrate one plane anterior instability. A December 2013 VA knee examination reveals the Veteran's complaint of pain with standing/walking. Range of motion was from 0 to 120 degrees. Joint stability was normal. There was no subluxation or dislocation. The examiner diagnosed an anterior cruciate ligament strain and chondromalacia. A January 30, 2014, orthopedic surgery note reveals full extension and flexion to 120 degrees with good stability. A January 2016 VA knee examination reveals the Veteran's complaint that, during flares, sitting or walking on level ground is okay, but any other activity gives him pain, like walking on ground that is not flat, stairs, or getting up and down from a chair. Range of motion was from 0 to 120 degrees. There was no additional loss of motion after 3 repetitions. The examiner could not estimate range of motion with repeated use over a period of time because the examination contradicted the Veteran's statements. The examiner could not estimate the Veteran's limitation of motion during flares, because the Veteran was not in a flare. Muscle strength was full, with no atrophy. There was no ankylosis. Joint stability was normal. The examiner diagnosed knee cartilage restoration surgery and patellofemoral pain syndrome. A February 2016 VA knee examination reveals the Veteran's complaint that he can only walk on straight and level surfaces. He cannot kneel or squat. Range of motion was from 0 to 125 degrees. There was no additional loss of motion after 3 repetitions. The examiner was unable to estimate limitation of motion with repeated use over a period of time or with flares. Muscle strength was full, with no atrophy. There was no instability or effusion. The examiner diagnosed knee cartilage restoration surgery and patellofemoral pain syndrome. A July 2021 VA knee examination reveals a retrospective opinion regarding range of motion during flares and with repeated use over a period of time. On prior examinations, examiners could not estimate range of motion during a flare, with reason being that the Veteran was not examined during a flare. On examination, from 2021, it was estimated that flares cause a loss of 50 percent of range of motion. Earlier flares caused pain and swelling after being used for too long. In 2021 the flare is an experience where his knee "dislocates," and the joint becomes locked and cannot be moved. It is estimated that, during a flare in which there is dislocation and knee locking, that the maximum amount of flexion and extension would both be 70 degrees. An October 2021 addendum found that the Veteran's left knee functional loss during a flare is less likely to be the functional equivalent of ankylosis. The rationale was that the Veteran describes his flares as occurring daily with duration from 20 minutes to a couple of hours. These are characterized by extreme intensification of pain and dislocated knee. Precipitating factors include when standing up from a chair, or stepping down off of something. The flares are described as severe. While dislocation was not seen during the examination, as the Veteran was not experiencing a flare, there was an abnormal amount of lateral patellar translation. The Veteran's flares likely involve patellar dislocation. Starting at the moment of dislocation, the Veteran experiences extreme pain. The Veteran pops his knee back into place which alleviates the severity of the pain, although he still experiences intensified pain above his baseline for 20 minutes to a couple of hours. In a study that assessed 10 ankylosed knees that were subsequently surgically replaced, the mean range of motion improved from 9.5 degrees (030 degrees) preoperatively to 78.5 degrees (15115 degrees). As is demonstrated in that study, ankylosed knees are knees in which there is abnormal bony fusion of the joint that severely restricts range of motion. VA considers ankylosis to be complete immobility with no range of motion whatsoever. This Veteran undoubtedly experiences severe pain and inability to move his knee during the precise moment of dislocation. The Veteran then pops his knee back into place. While his pain understandably remains severe for the following hours, the popping of his knee back into place restores his ability to move his knee. There would likely be some residual decrease in range of motion from the baseline due to lingering pain, but this would not be equivalent to the functional loss in ankylosis, which is unchanging and worsening over time, as is evidenced by the fact that it requires surgical intervention to increase range of motion in an ankylosed knee. In conclusion, the Veteran's functional loss during a flare, which can be immediately improved by popping his knee back into place, cannot be likened to the functional equivalent of ankylosis which is permanent and nonchanging without surgical intervention. After a review of all of the evidence, the Board finds that the criteria for a rating higher than 50 percent are not met for the period prior to January 24, 2019. The Veteran essentially asserts that, during flares, his knee range of motion is the functional equivalent of ankylosis. However, as described by the July 2021 VA examiner in the October 2021 addendum, although these episodes of dislocation are painful, they are quickly remediedat least in terms of range of motionby popping the artificial joint back into place. The Board must consider not only the type of symptomatology demonstrated during flares, but also the frequency and duration of such symptomatology. To warrant a rating on the basis of ankylosis in any degree, the overall disability picture must approximate complete joint fixation. Here, in light of the minimal duration of locking and dislocation, the Board finds that the overall disability picture does not approximate ankylosis, or complete inability to move the joint, during this period. In addition, the Board notes that the criteria for a rating higher than 50 percent on the basis of ankylosis not only require complete fixation of the joint, but require such ankylosis to be "extremely unfavorable," which is defined as flexion at an angle of 45 degrees or more. There is no showing or indication of fixation of the joint in such an extreme degree. The Board assigns substantial probative weight to the October 2021 addendum opinion regarding the crucial question of approximation of ankylosis to a degree warranting a rating higher than 50 percent. That opinion considered the medical evidence and the assertions of the Veteran, and included a rationale and thorough discussion. There is no medical opinion that conflicts with October 2021 addendum. Accordingly, the Board concludes that no higher rating than 50 percent is warranted for limitation of motion associated with the service-connected left knee disability prior to January 24, 2019. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the evidence weighs against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 371 (2017) (the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Cramp 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.