Citation Nr: 1751060 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 10-22 681A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to a rating in excess of 10 percent for degenerative joint disease (DJD) of the left knee. 2. Entitlement to a rating in excess of 10 percent for DJD of the right knee. 3. Entitlement to a higher rating for instability of the right knee, rated as 10 percent disabling prior to May 27, 2008 and noncompensable thereafter. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Riley, Counsel INTRODUCTION The Veteran served on active duty from August 1984 to March 1992. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The Veteran testified before a Veterans Law Judge (VLJ) at a hearing at the RO in March 2016. A transcript of the hearing is included in the claims file. In a May 2017 letter, the Veteran was informed that the VLJ who conducted the March 2016 hearing is no longer available to participate in the adjudication of his claims. The Veteran was provided the opportunity to request a new hearing in accordance with 38 C.F.R. § 20.707 and 20.717 (2017), but responded in June 2017 that he did not want another hearing. The Board will therefore proceed with a decision in this case. In May 2016, the Board remanded the case for additional development. It has now returned for further appellate action. FINDINGS OF FACT 1. The Veteran's left knee disability manifests arthritis with limitation of flexion to 44 degrees with full extension to 0 degrees, slight instability, and frequent episodes of locking, joint pain, and effusion. 2. The Veteran's right knee disability manifests arthritis with limitation of flexion to 70 degrees with extension limited to -5 degrees, slight instability, and frequent episodes of locking, joint pain, and effusion. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for left knee DJD are not met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5260, 5261 (2017). 2. The criteria for a separate rating of 10 percent, but not higher, for left knee instability throughout the claims period are met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5257. 3. The criteria for a separate rating of 20 percent, but not higher, for left knee locking, joint pain, and effusion throughout the claims period are met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5258. 4. The criteria for a rating in excess of 10 percent for right knee DJD are not met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5010, 5260, 5261. 5. The criteria for a separate rating of 10 percent, but not higher, for right knee instability throughout the claims period are met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5257. 3. The criteria for a separate rating of 20 percent, but not higher, for right knee locking, joint pain, and effusion throughout the claims period are met. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5258. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Service connection for right and left knee DJD was granted in a June 2005 rating decision. The Veteran was assigned 10 percent ratings for arthritis and associated limitation of motion of each knee, as well as a separate 10 percent rating for instability of the right knee, all effective from December 30, 2004. The November 2008 rating decision on appeal continued the 10 percent ratings for DJD and limitation of motion, but reduced the 10 percent evaluation for right knee instability to a noncompensable (0 percent) rating effective May 27, 2008. The Veteran contends that increased ratings are warranted for each knee as they are productive of daily pain, locking, instability, and loss of motion that results in significant functional impairment. Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 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. 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. The Veteran's entire history is reviewed when making disability ratings. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are, however, 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. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). As a preliminary matter, the Board finds that separate 20 percent ratings are warranted for each knee under Diagnostic Code 5258 for symptoms of locking and joint effusion. Under Diagnostic Code 5258, a maximum 20 percent evaluation is possible for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion. 38 C.F.R. § 4.71a, Diagnostic Code 5258. Although there are no findings of dislocated cartilage, the Veteran has consistently complained of locking and effusion, i.e. fluid and swelling, with respect to both knees, and credibly testified in March 2016 that he experiences daily episodes of locking in both knees. Private treatment records and MRIs also document consistent findings of joint effusion and swelling, as well as further complaints of locking. Based on the lay and medical evidence of frequent episodes of locking, pain, and effusion into the bilateral knee joints, a 20 percent rating is warranted under Diagnostic Code 5258 for each knee throughout the claims period. The Board will now address whether higher ratings are warranted for the Veteran's bilateral knee arthritis based on limitation of motion. The Veteran's right knee disability is currently rated as 10 percent disabling under Diagnostic Code 5003 and 5260 for degenerative arthritis and associated limitation of motion. Under Diagnostic Code 5003, a 10 percent evaluation is assigned when limitation of motion is noncompensable for a major joint or group of minor joints. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. The Veteran manifests some limitation of motion of the right knee, but it does not most nearly approximate the criteria associated with a compensable rating under the relevant diagnostic codes. He is therefore in receipt of a 10 percent rating under Diagnostic Code 5003 for noncompensable limitation of motion. In contrast, the left knee disability is currently rated as 10 percent disabling under Diagnostic Code 5260 for limitation of flexion-as the Veteran manifests compensable limitation of motion of the left knee, rating the disability under Diagnostic Code 5003 and assigning a 10 percent evaluation based on noncompensable limitation of motion is not appropriate. For rating purposes, normal range of motion in a knee joint is from 0 to 140 degrees. 38 C.F.R. § 4.71, Plate II. Limitation of flexion of a leg warrants a 10 percent evaluation if flexion is limited to 45 degrees and a 20 percent evaluation is assigned if flexion is limited to 30 degrees. Flexion that is limited to 15 degrees is evaluated as 30 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Limitation of extension of a leg warrants a 10 percent evaluation when it is limited to 10 degrees and a 20 percent evaluation when it is limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. The Veteran's right knee is currently in receipt of a 10 percent evaluation for limitation of flexion (assigned for noncompensable limitation of motion in accordance with Diagnostic Code 5003). Range of motion of the right knee was most limited at a May 2012 VA examination with flexion limited to 70 degrees and extension limited to -5 degrees. The left knee is also rated as 10 percent disabling under Diagnostic Code 5260. Range of motion of the left knee was most limited at the May 2008 VA examination, when flexion measured to 44 degrees and extension was full to 0 degrees. These findings are contemplated by the current 10 percent ratings assigned each knee under Diagnostic Codes 5003 and 5260. With respect to functional factors, the Veteran's knees have never demonstrated additional loss of motion with repetitive testing, in fact, his left knee motion improved after use at the May 2008 VA examination. The Veteran has reported a significant change in his functional ability since his claim was filed, with the cessation of physical activities such as bowling and playing softball, as well as limitations to standing, walking, and sitting due to pain, locking, and swelling associated with fluid in his knees. The Board takes note of these reports of functional impairment, but finds that they are considered by the assignment of separate 20 percent evaluations under Diagnostic Code 5258 for frequent episodes of joint pain, locking, and effusion. Thus, with respect to limitation of motion alone, the record does not demonstrate that the Veteran experiences a loss of function that most nearly approximates the criteria associated with a compensable evaluation for the right knee or a higher evaluation for loss of flexion or extension of the left knee, even with consideration of all relevant functional factors. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59. Instead, the Veteran's impairment due to painful motion of the knees is contemplated by the current noncompensable ratings under Diagnostic Codes 5261 and 5260, respectively. VA's General Counsel has held that separate ratings are available for limitation of flexion and limitation of extension, but specified that these separate ratings were only appropriate under Diagnostic Codes 5260 and 5261. VAOPGCPREC 9-2004, 69 Fed. Reg. 59,990 (2004). The medical evidence throughout the claims period demonstrates that the Veteran has consistently manifested full extension of the left knee and a separate rating is not appropriate under Diagnostic Code 5261. Additionally, regarding the right knee, the Veteran manifested some limitation to extension at the May 2012 VA examination. At that time, extension was to -5 and this degree of limited motion is noncompensable under Diagnostic Code 5261. The Veteran is in receipt of a 10 percent evaluation for right knee arthritis under Diagnostic Code 5003 which provides that a 10 percent rating is combined, not added, for each major joint affected by noncompensable limited motion. Thus, the Veteran cannot receive a separate rating for noncompensable limitation of extension of the right knee under Diagnostic Code 5003 in addition to the current 10 percent rating assigned for noncompensable limitation of flexion. Therefore, the current single 10 percent ratings for each knee based on limitation of motion are appropriate. Finally, the Board finds that separate 10 percent ratings, but not higher are warranted for instability of both knees under Diagnostic Code 5257. See VAOPGCPREC 23-97 (a claimant who has arthritis and instability of the knee may be rated separately under diagnostic Codes 5003 and 5257). Recurrent subluxation or lateral instability warrants a 10 percent evaluation if it is slight, a 20 percent evaluation if it is moderate, or a 30 percent evaluation if it is severe. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The Veteran has consistently complained of instability and giving way of both knees throughout the claims period. The May 2008 VA examiner diagnosed instability of both knees and private treatment records document findings of positive instability tests in September 2009, May 2010, and March 2016. Although instability was not observed with respect to either knee during the most recent VA examinations in May 2012 and August 2016, the Veteran has provided competent and credible testimony that both his knees give out and require braces for stabilization. The Board accordingly finds that separate 10 percent evaluations for slight instability are warranted throughout the claims period. The Board has considered whether higher ratings are warranted, but as the bilateral knee joints were stable upon VA examinations performed in October 2010, May 2012, and August 2016, and the knees were often stable upon private examination at various times during the claims period, the Board finds that ratings in excess of 10 percent for joint instability are not warranted. The Board has considered whether the assignment of separate 10 percent ratings for instability of the knees under Diagnostic Code 5257 violates the rule against pyramiding as the Veteran is also in receipt of separate 20 percent ratings under Diagnostic Code 5258 which contemplates dislocation of the knee. The evaluation of the same disability or the same manifestations under various diagnoses is prohibited. 38 C.F.R. § 4.14. Diagnostic Code 5258 contemplates dislocation of the cartilage of the knee which can result in giving way of the knee joint. Similarly, Diagnostic Code 5257 relates to instability and subluxation of the joint, i.e., incomplete or partial dislocation. See Dorland's Illustrated Medical Dictionary, 31st Ed. (2007), p.1817. Hence, rating the Veteran's knee conditions under both diagnostic codes would violate the rule against pyramiding detailed in 38 C.F.R. § 4.14 if the symptomatology contemplated by both is not separate and distinct. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In this case, however, the Board finds that the two diagnostic codes refer to sufficiently separate symptomatology. None of the examining VA or private physician has identified dislocation of the joint and the Veteran's complaints of giving way and instability appear to refer to weakness of the knees instead of actual dislocation. The separate 20 percent ratings under Diagnostic Code 5258 were assigned to account for the objective and subjective lay evidence of frequent knee locking, joint pain, and effusion (which have required aspiration by private physicians on several occasions) as opposed to dislocation. The Board therefore finds that the assignment of separate ratings under Diagnostic Codes 5257 and 5258 does not violate the rule against pyramiding in this specific case. In sum, the Veteran's left knee DJD warrants a 20 percent rating under Diagnostic Code 5258 for frequent episodes of locking, pain and effusion, and separate 10 percent ratings under Diagnostic Codes 5260 and 5257 for limitation of flexion and instability, respectively. The right knee also warrants a 20 percent rating under Diagnostic Code 5258 for locking, pain, and effusion, as well as 10 percent ratings for noncompensable limitation of motion under Diagnostic Code 5003 and slight instability under Diagnostic Code 5257. The Board has considered whether there is any other schedular basis for granting other higher or separate ratings, but has found none. The Veteran has not demonstrated knee ankylosis or impairment of the tibia and fibula and Diagnostic Codes 5256 and 5262 are not for application. Separate or increased ratings are also not possible under Diagnostic Code 5259 for removal of the semilunar cartilage. This diagnostic code provides for a maximum 10 percent rating and contemplates limitation of motion; therefore, assigning a separate rating under this diagnostic code would violate the rule against pyramiding. In addition, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable because the preponderance of the evidence is against the claim for any separate or increased schedular ratings in addition to the ratings assigned above. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.7, 4.21. ORDER Entitlement to a rating in excess of 10 percent for DJD of the left knee based on limitation of motion is denied. Entitlement to a separate 10 percent rating, but not higher, for left knee instability is granted. Entitlement to a separate 20 percent rating, but not higher, for left knee locking, pain, and effusion is granted. Entitlement to a rating in excess of 10 percent for DJD of the right knee based on limitation of motion is denied. Entitlement to a separate 10 percent rating, but not higher, for right knee instability throughout the claims period is granted. Entitlement to a separate 20 percent rating, but not higher, for left knee locking, pain, and effusion is granted. ____________________________________________ M. H. Hawley Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs