Citation Nr: 0814462 Decision Date: 05/01/08 Archive Date: 05/12/08 DOCKET NO. 05-32 801 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to restoration of a 50 percent rating for osteoarthritis of the left knee with limited range of motion, currently rated at 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Andrew Mack, Associate Counsel INTRODUCTION The veteran served on active duty from September 1979 to August 1989. This matter has come before the Board of Veterans' Appeals (Board) on appeal from an August 2004 rating decision of the Reno, Nevada, Department of Veterans Affairs (VA) Regional Office (RO) that reduced the evaluation of the veteran's service-connected left knee osteoarthritis with limited range of motion, from 50 percent to 10 percent, effective December 1, 2004. The veteran perfected a timely appeal of this determination to the Board. The veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in May 2006. A transcript of that hearing is associated with the claims file. This matter was before the Board in March 2007, and was then remanded for further development. FINDINGS OF FACT 1. By a rating decision dated in September 2002, the RO established service connection for osteoarthritis of the left knee with limited range of motion, evaluated as 50 percent disabling, effective from March 9, 2001. 2. By a rating decision dated in August 2004, the RO reduced the rating for the veteran's service-connected osteoarthritis of the left knee with limited range of motion from 50 percent to 10 percent, effective from December 1, 2004. 3. The preponderance of the evidence did not support the reduction of the veteran's osteoarthritis of the left knee with limited range of motion from 50 percent to 10 percent. 4. The preponderance of the evidence does support a finding that, even considering any additional functional loss due to pain, weakness, excess fatigability, incoordination, or other such factors not contemplated in the relevant rating criteria, the veteran's limitation of left knee flexion beginning in April 2004 more closely approximates flexion to only 45 degrees than flexion to only 30 degrees. 5. The preponderance of the evidence does support a finding a that the veteran's service-connected osteoarthritis of the left knee with limited range of motion is productive of moderate recurrent subluxation. CONCLUSION OF LAW The reduction in the disability rating assigned to the veteran's osteoarthritis of the left knee with limited range of motion from 50 percent to 10 percent, by rating decision dated in August 2004, was not proper; and a separate 20 percent rating under diagnostic code 5257 is warranted in addition to the 10 percent rating under diagnostic code 6260, for the left knee disability, with each rating effective from December 1, 2004. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.105, 3.344 (2007); 38 C.F.R. Part 4 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran was initially notified of the RO's proposed reduction in a May 2004 rating decision. The Board finds that this rating decision and its accompanying letter complied with the provisions of 38 C.F.R. § 3.105(e), which require notification of the proposed reduction in evaluation, a statement of the material facts and reasons for such reduction, and an opportunity to submit evidence within 60 days to show that compensation payments should be continued at their present level. The RO has complied with the procedural due process requirements provided for in 38 C.F.R. § 3.105(e). Also, the reduction, taken within five years from the award of the initial 50 percent rating, is not governed by the provisions of 38 C.F.R. § 3.344 (a) and (b), regarding stabilization of ratings . Therefore, 38 C.F.R. § 3.344(c) is applicable. Pursuant to section (c), reexamination disclosing improvement of a condition warrant a reduction in the evaluation assigned the condition. It should be emphasized at this point that in order to sustain a reduction in rating, it must be shown by a preponderance of the evidence that the reduction is warranted. See Brown v. Brown, 5 Vet. App. 413 (1993). The veteran argues that he is entitled to restoration of a 50 percent rating for osteoarthritis of the left knee with limited range of motion, currently rated at 10 percent disabling. When any change in evaluation is to be made, there must be an actual change in the condition, for better or worse, and not merely a difference in the thoroughness of the examination or in use of descriptive terms. 38 C.F.R. § 4.13. Disability evaluations are determined by comparing present symptomatology with the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. See 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. In a September 2002 rating decision, the veteran was awarded a 50 percent evaluation for osteoarthritis of the left knee with limited range of motion under hyphenated Diagnostic Code (DC) 5003-5256, and was thus rated by analogy under the criteria for ankylosis of the knee. See 38 C.F.R. § 4.71a, DC 5256; see also 38 C.F.R. § 4.27. In the August 2004 rating decision that reduced the veteran's evaluation for osteoarthritis of the left knee with limited range of motion, the veteran's disability was rated under DC 5260 for limitation of knee motion. DC 5256 provides ratings for ankylosis of the knee. Favorable ankylosis of the knee, with angle in full extension, or in slight flexion between zero degrees and 10 degrees, is rated 30 percent disabling. Unfavorable ankylosis of the knee, in flexion between 10 degrees and 20 degrees, is to be rated 40 percent disabling. Unfavorable ankylosis of the knee, in flexion between 20 degrees and 45 degrees, is rated 50 percent disabling. Extremely unfavorable ankylosis, in flexion at an angle of 45 degrees or more, is rated 60 percent disabling. 38 C.F.R. § 4.71a, DC 5256. Limitation of knee motion is rated under DC 5260 and DC 5261. Under DC 5260, the following evaluations are assignable for limitation of leg flexion: zero percent for flexion limited to 60 degrees, 10 percent for flexion limited to 45 degrees, 20 percent for flexion limited to 30 degrees, and 30 percent for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. Under DC 5261, the following evaluations are assignable for limitation of leg extension: zero percent for extension limited to 5 degrees, 10 percent for extension limited to 10 degrees, 20 percent for extension limited to 15 degrees, 30 percent for extension limited to 20 degrees, 40 percent for extension limited to 30 degrees, and 50 percent for extension limited to 45 degrees. 38 C.F.R. § 4.71a, DC 5261. In addition, when evaluating joint disabilities rated on the basis of limitation of motion, VA may consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). The Board also notes that under DC 5257, for other impairment of the knee, the following evaluations are assignable: slight recurrent subluxation or lateral instability, 10 percent; moderate recurrent subluxation or lateral instability, 20 percent; and severe recurrent subluxation or lateral instability, 30 percent. 38 C.F.R. § 4.71a, DC 5257. Separate ratings under Diagnostic Codes 5260 and 5261 may be assigned for disability of the same joint. VAOPGCPREC 9- 2004, 69 Fed. Reg. 59988, 59990 (2004). Also, limitation of knee motion may be rated separately from recurrent subluxation or lateral instability of the knee. See VAOPGCPREC 23-97; 62 Fed. Reg. 63604 (1997). Thus, it is possible to have separate ratings under DC 5260, DC 5261, and DC 5257. In this case, the veteran's 50 percent evaluation under DC 5256, given in the September 2002 rating decision, was based on the findings of an August 2002 VA compensation and pension examination. On physical examination of the veteran at that time, the following was noted: range of motion of the left knee was 40 degrees active and 55 degrees passive, with extension to 5 degrees; he showed guarding and grimacing especially with any activity dealing with the knee; there was no obvious effusion or edema of the knees, and crepitus was difficult to judge, but none was noted; his range of motion and guarding were so limited that stability during range of motion was not able to be assessed due to the severe limitation of range of motion; with most activities of the left knee, he described upper lateral knee pain; medial and lateral collateral ligaments were intact; he had a limited 30 degree flexion; the anterior posterior cruciate ligaments appeared to be intact; the paella did appear to be somewhat high-rising in the knee joint, however, there was no apprehension sign when he relaxed, and the quadriceps of both patellae moved freely but without excess laxity. Magnetic resonance imaging (MRI) showed diminutive or absent anterior horn of the lateral meniscus, with mild to moderate osteoarthritis of the left knee, and x-rays were read as negative, with no signs of soft tissue abnormality or arthropathy. Nerve conduction study was noted to be incomplete, with no electromyography (EMG) portion performed secondary to the veteran's refusal due to pain, but the impression did suggest a right ulnar neuropathy sensory nature, most likely axonal, but an absolute diagnosis could not be made since the veteran refused to undergo the EMG portion of the examination. The veteran was diagnosed as having the following: an extreme hyperalgesia throughout the examination, especially with any hands-on activities to elicit range of motion, even with just a mild touch, especially in regard to his knees; diminutive or absent anterior horn of the lateral meniscus of the left knee, where he showed more extreme pain on the left knee examination; mild to moderate osteoarthritis of the left knee, as per the MRI examination; marked restriction of range of motion, with the veteran stating that the restriction was secondary to pain, and severe guarding during the examination to try to forcibly increase the range motion; and antalgic gait, described as waddling, secondary to stiffness and pain in his knees. On VA re-examination of the knee in April 2004, the following was noted: there was no swelling, heat, edema, or effusion to the bilateral knees; the veteran was unable to walk on his heel or toe or squat secondary to significant pain as reported by the veteran; the examiner was not able to do a reasonable examination on his knees because the veteran complained of significant pain with minimal light touch to his knees; the major limitation to his knee, in terms of function, was due to pain and stiffness reported by the veteran, but since the examiner was not able to do a full examination, the examiner could not estimate the veteran's level of functional limitation; the veteran walked with a limp; no ankylosis was present; there was no inflammatory arthritis. On range of motion testing, active and passive flexion of the left knee was 0 to 90 degrees, with reported pain at 90, and bilateral extension was 0 degrees. The examiner was not able to perform stability testing, as the veteran would not flex his knee nor allow the examiner to touch his knees. Standing bilateral x-rays, completed in March 2004, revealed the following: minimal; pointing of the left tibial spine, suggesting minimal early osteoarthritis; round soft tissue calcification in the upper lateral left calf, most likely a phlebolith, although nonspecific; minimal early medial and patellofemoral compartment osteoarthritis without appreciable associated joint effusion; 7 millimeter round calcification in the superficial soft tissue of the left lateral calf, most likely phlebolith. The veteran was diagnosed as having no evidence of bony fracture of the left knee, as reported by the veteran, mild to moderate degenerative osteoarthritis of the left knee, and the examiner could not explain the degree of pain as reported by the veteran in either knee, given the radiographic evidence they had. A May 2004 VA note indicates that the veteran complained of bilateral knee pain with giving way. It was noted that there was full range of motion with crepitus and positive McMurray's test, negative effusion, negative drawer, negative Lachman's, and good vastus medialis oblique, with tone intact. The veteran was diagnosed as having acute knee pain, osteoarthritis, and meniscus degeneration from previous 2002 MRI. A private medical note, dated in July 2004, indicates that the veteran complained of a longstanding history of pain and problems in both knees, with pain in and around the kneecaps, and pain with ascending and descending stairs. X-rays were noted to show some mild narrowing of the medial joint space on the anterior/posterior views bilaterally, and, on the 20 degree Lauren x-ray, there was noted to be some mild tilt to the bilateral patella and some mild lateral subjugation to the bilateral patella, left greater than right. On examination of the knees, there was no effusion, range of motion was 140 degrees bilaterally, there was palpable retropatellar click with range of motion testing bilaterally, left greater than right, patellofemoral grind testing was markedly positive for his home-ward type pain, all ligaments were stable to stress testing bilaterally, and straight leg raising was negative for nerve tension signs. The veteran was diagnosed as having anterior knee pain/patellofemoral syndrome with early degenerative joint disease, bilateral knees, left greater than right. June 2005 VA treatment notes indicate the following: left knee range of motion of 80 degrees active and 100 degrees passive; the veteran ambulated with knee braces using a mild antalgic gait pattern without a cane; there was mild edema on both knees and tenderness to pressure in the medial area of both patellas; and there was palpable moderate crepitus on both knees. The veteran was diagnosed as having pain of the knees, impaired gait pattern, and general weakness of both lower extremities. The veteran was afforded another VA examination in December 2007. On examination, the following was noted: the veteran walked with a cane, had braces on the knees, limped and stated that he limped all the time, and walked with a slow, guarded manner, favoring the right leg over the left leg; any movement of the left knee joint was painful; the veteran was able to stand erect, but on flexing and extending the knee joint in any direction, complained of an escalation of pain discomfort; there was no effusion of the left knee joint; the veteran had pain discomfort along the lateral thigh medial and lateral side of the knee joint and at the calf, which was diffuse in nature; Tinel's was positive along the lateral leg in a non-dermatome pattern; sensation to light touch was diminished along the distal lateral thigh, lateral calf, and anterior aspect of the left foot; the veteran had active and passive movement of the knee in the slow, guarded manner; he complained of pain discomfort throughout the entire arc of motion; there were no calluses of the feet; no redness or heat of the knee joint; and pressure of the patellofemoral region increased pain discomfort, and just light touching the tissues medially and laterally produced significant pain discomfort, as perceived by the veteran. Motor strength testing of the major muscle groups involving the knee quadriceps extensors indicated that he veteran had satisfactory motor control and motor strength at +4, but complained of pain on flexion and extension. There was no ankylosis of the knee joint, and no constitutional signs of inflammatory arthritis. On range of motion testing, left knee flexion was 0 to 75 degrees, with full extension, and, in the standing position, the veteran was able to complete only 10 percent of a squat and developed pain and weakness of the knees and left lower limb and needed to hold onto the examination table. Stress testing of the knee joint for instability included Lachman, pivot shift, anterior and posterior drawer sign, all within normal limits, with no positive drawer test. Lateral ligaments were stressed in varus and valgus and there was no excessive looseness or laxity, and the examiner stated that the veteran had a stable left knee joint. Repetitive movement of he left knee joint was noted to be painful, guarded, and slow, but, after repetitive usage, there was no apparent additional functional impairment or loss of range of motion. It was noted that there was no lateral instability of the knee joint, but that movement and pressure over the patella femoral joint of the left knee caused the veteran to complain of an escalation of pain discomfort, and guarding and apprehension of the patella in all planes occurred. It was also noted that the degree of subluxation could be classified slight to moderate to moderate in intensity, and that the veteran did not demonstrate functional loss of movement due to pain. It was furthermore noted that excessive fatigability and incoordination were not demonstrated, but weakness, secondary to pain was noted during testing. MRI testing showed medical and lateral meniscus intact, mild scarring of the anterior cruciate ligament, and mild chondromalacia medial patellar facet. The veteran was diagnosed as having chondromalacia patella, with scarring of the anterior cruciate ligament, secondary to ligamentous strain, left knee, with residuals. It was noted that the MRI findings of the left knee indicated that the veteran had sustained prior injury and remained with degenerative changes of the patellofemoral joint, which would account for persistent progressive symptomatology and impairment. On December 2007 electrodiagnostic examination, the veteran was found to have normal EMG of both lower extremities, normal nerve conduction studies of both lower extremities, no evidence of neuropathy, myopathy, or radiculopathy, and no evidence of any neurological dysfunction or nerve damage having to do with the injury to the left knee. The Board determines that the restoration to a higher rating is justified, but only to the extent that the veteran is entitled to a separate 20 percent rating, under DC 5257, in addition to his current 10 percent rating under DC 5260. VA reexaminations in April 2004 and December 2007, as well as VA treatment records from May 2004 to June 2005, indicate improvement in the veteran's osteoarthritis of the left knee with limited range of motion since the time of the August 2002 VA examination. Specifically, these records indicate improvement in range of left knee motion. However, while the record reflects improvement in the veteran's left knee disability, the veteran's reduced rating must reflect the actual improvement in veteran's knee condition, and therefore must contemplate the residual subluxation noted on December 2007 VA examination. Thus, such actual improvement in condition is most accurately reflected in a reduction from a rating of 50 percent, under DC 5256, to both a rating of 10 percent, under 5260, as well as a rating under DC 5257 for recurrent subluxation. As the December 2007 VA examiner characterized such subluxation as slight to moderate to moderate, affording the veteran the benefit of the doubt, the Board finds that the veteran's service-connected osteoarthritis of the left knee with limited range of motion is also productive of moderate recurrent subluxation. Thus, in addition to the 10 percent rating under DC 5260, an additional 20 percent rating under DC 5257 is warranted. However, the veteran is not entitled to a full restoration of his 50 percent disability rating under DC 5256. The record does not reflect that the veteran's osteoarthritis of the left knee with limited range of motion approximates ankylosis of the knee, in flexion between 20 degrees and 45 degrees, and there has been no ankylosis noted in record. In this regard, the Board notes that, on VA examination in August 2002, the veteran was noted to have limitation of flexion to 40 degrees active, as well as limitation of extension to 5 degrees. From the veteran's April 2004 reexamination to the present, the most limited the veteran's left knee has been noted to be has been to 75 degrees flexion and 0 degrees extension, with flexion ranging from 80 degrees to 140 degrees in April 2004, May 2004, July 2004, and June 2005. Thus, the record reflects both improvement in veteran's condition, in terms of range of motion, and that current range of motion only warrants a 10 percent rating under DC 5260. The Board notes that, on December 2007 VA examination, the following was noted: that the veteran walked with a cane, had braces on the knees, limped, stated that he limped all the time, and walked with a slow, guarded manner, favoring the right leg over the left leg; that, on range of motion testing, he complained of pain discomfort throughout the entire arc of motion; that just light touching on the tissues medially and laterally produced significant pain discomfort, as perceived by the veteran; that the veteran was able to complete only 10 percent of a squat and developed pain and weakness of the knees and left lower limb and needed to hold on to the examination table; that repetitive movement of he left knee joint was noted to be painful, guarded, and slow, but, after repetitive usage, there was no apparent additional functional impairment or loss of range of motion; and that excessive fatigability and incoordination were not demonstrated, but weakness, secondary to pain, was noted during testing. However, as the most limited the veteran's left knee has been noted to be since his reduction has been to 75 degrees flexion and 0 degrees extension, even considering any additional functional loss due to pain, weakness, excess fatigability, incoordination, or other such factors not contemplated in the relevant rating criteria, veteran's loss of left knee flexion beginning in April 2004 more closely approximates flexion to only 45 degrees than flexion to only 30 degrees. For the reasons discussed above, the preponderance of the evidence supports a finding that the veteran is entitled to restoration to a higher level of VA compensation for his osteoarthritis of the left knee with limited range of motion, but only to the extent that he is entitled to a separate 20 percent rating, but no more, under DC 5257, in addition to his current 10 percent rating under DC 5260. The assignment of such ratings effectively restores a 30 percent rating for his overall left knee disability under the combined rating provisions of 38 C.F.R. § 4.25. Accordingly, the restoration to a 30 percent rating effective from December 1, 2004, is a partial grant of the benefit at issue in this appeal. ORDER Assignment of a 20 percent rating for subluxation due to osteoarthritis of the left knee with limited range of motion, effective from December 1, 2004, is warranted under diagnostic code 5257. Assignment of a 10 percent rating for osteoarthritis of the left knee with limited range of motion, effective from December 1, 2004, is warranted under diagnostic code 5260. To this extent, the appeal is granted. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs