Citation Nr: 1751856 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 11-13 826 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for post-traumatic arthritis of the right hip, to include as secondary to the service-connected right knee. 2. Entitlement to a rating in excess of 10 percent for arthritic residuals of a right knee injury, post operatively. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Edwards, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1978 to October 1990. This matter comes before the Board of Veterans Appeals (Board) on appeal from a May 2010 rating decision by the Department of Veterans' Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The Veteran has relocated and is now serviced by the RO in Cleveland, Ohio. In June 2017, the Veteran testified during a videoconference hearing before the undersigned Veterans Law Judge (VLJ); a transcript of the hearing is of record. The Board acknowledges that other issues are pending via a notice of disagreement (NOD) but not yet certified to the Board. The Board's review of the claims file reveals that the RO is still taking action on these issues. As such, the Board will not accept jurisdiction over them at this time, but they will be the subject of a subsequent Board decision, if otherwise in order. In this decision, the Board is granting service connection for the right hip and separate ratings for right knee "popping," pain, and joint swelling and severe instability. An increased rating for arthritis of the right knee is denied. FINDINGS OF FACT 1. During the period on appeal, the Veteran's right knee disability has been shown to be manifested by no more than pain, flare-ups, popping, crepitus, tightness, inflammation, severe instability, evidence of pain with weight-bearing, sitting, and change of position; arthritis, and limitation of flexion and extension to, at worst, 120 degrees. 2. Resolving all doubt in the Veteran's favor, his right hip arthritis is the result of his service-connected right knee disability. CONCLUSIONS OF LAW 1. The criteria for service connection for right hip arthritis are met. 38 U.S.C. §§ 1101, 1131, 1132, 1133, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 2. The criteria for a rating of 20 percent for episodes of right knee "popping," pain, and joint swelling and tightness have been met or more nearly approximated since February 18, 2016. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5258. 3. The criteria for a rating of 30 percent for severe right knee instability have been met or more nearly approximated since February 18, 2016. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, DC 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service. 38 U.S.C. § 1110, 1131; 38 C.F.R. §§ 3.303(a), 3.304. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and, (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Disability evaluations are determined by comparing the Veteran's current symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Degenerative arthritis, established by X-ray, will be rated on the basis of limitation of motion under the appropriate diagnostic criteria for the specific joint or joints involved. When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent 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. 38 C.F.R. § 4.71a, DC 5003. DC 5257 provides ratings for recurrent subluxation or lateral instability. Slight disability warrants a 10 percent rating and a moderate disability warrants a 20 percent rating. Severe disability warrants a 30 percent rating. 38 C.F.R. § 4.71a, DC 5257. Because the rating schedule offers no further guidance on the issue, the Board will rely on Webster's definitions of the terms used. "Slight" means small in amount. "Moderate" means limited in scope or effect. "Severe" means very painful or harmful or of a great degree. DC 5258 provides that a 20 percent rating is warranted for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. 38 C.F.R. § 4.71a, DC 5258. DC 5260 provides ratings based on limitation of flexion of the leg. Limitation of flexion to 60 degrees warrants a noncompensable rating. Limitation of flexion to 45 degrees warrants a 10 percent rating. Flexion limited to 30 degrees warrants a 20 percent rating. 38 C.F.R. § 4.71a, DC 5260. The Veteran's service-connected right knee disability is not entitled to compensation under DCs 5256, 5259, 5261, 5262, and 5263, as they require evidence of ankylosis, residuals of cartilage removal, limitation of extension, tibia/fibula impairment, and/or genu recurvatum, respectively. 38 CFR 4.71a; see Butts v. Brown, 5 Vet. App. 532, 538 (1993) (holding that the assignment of a particular DC is "completely dependent on the facts of a particular case"). In March 2011, a VA examiner noted that the Veteran reported experiencing flare-ups that occurred weekly and lasted all day; pain, stiffness, and weakness; and difficulty tying his boots and bending over at times. He used corrective shoes. The Veteran's range of motion was 124 degrees without pain. The examiner noted tenderness or pain in the medial aspect of the knee and a surgically absent meniscus with a positive McMurry's test. X-rays showed lateral compartment and patellofemoral spurring with minimal degenerative joint disease. He was diagnosed with post-arthroscopy with minimal degenerative joint disease. In February 2016, a VA examiner noted that the Veteran reported constant daily knee pain manifested by a hot burning sensation when sitting and driving, sharp pains when standing, and severe throbbing at night; in addition to, stiffness, popping, periodic swelling, and episodes of giving out. The Veteran reported pain when walking and having to rely on his left leg for stability and to climb stairs. Physical examination showed flexion to 120 degrees with pain that caused functional loss, evidence of pain with weight-bearing, a history of a partial meniscectomy and debridement, degenerative arthritis, and occasional use of braces. The examiner noted that the examination was conducted during a flare-up, and the Veteran reported a sensation of instability not demonstrated on examination. For the period on appeal, the Veteran has reported constant, daily knee pain that worsened when he walked, sensations of instability, "popping" of the right knee and hip, and swelling of the joint. Medical records document increasing pain and an altered gait. In March 2017, a private medical opinion described the Veteran's right hip pain as insidious. The physician noted hip and thigh pain, cramping, pain when changing positions, and difficulty ambulating. He stated that compensating for the right knee has altered the Veteran's gait, causing him to walk with an antalgic and Trendelenburg gait with his leg externally rotated. X-rays showed osteoarthritis of the right hip which he opined to be advanced for the Veteran's age and likely the result of the Veteran's altered gait. At his June 2017 hearing, the Veteran testified that he carried his leg in a protective position; he suffered sharp, stabbing pains when stepping down and a burning sensation when sitting and driving; and he had to stiffen his knee because bending too much while bearing weight caused it to collapse. He reported that his knee was often tight, gave out three to four times per day, swelled when he walked too much, and incapacitated him every few months. He demonstrated that he could flex his leg to roughly 90 degrees. The Veteran stated that his job prevented him from wearing a brace at work and a doctor cautioned against wearing a brace at night due to the risk that swelling would cause a clot to form in his calf. With regard to his hip, he reported that it resulted from the same event as his right knee but had worsened over the years. The Board finds the Veteran competent to report his symptoms and finds his statements credible. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Thus, there is competent and credible evidence linking the Veteran's right hip to his service-connected disability. Accordingly, service connection for right hip arthritis is warranted. Given these facts, the Board finds that a 30 percent rating is warranted under diagnostic code 5257 for severe instability and frequent flare-ups, and a 20 percent rating is warranted under diagnostic code 5258 for "popping," pain, and tightness and swelling. A 30 percent rating is the maximum available under diagnostic code 5257; a 20 percent rating is the maximum available under diagnostic code 5258. 38 C.F.R. § 4.71a, DCs 5257, 5258. The Board also finds that the Veteran's current 10 percent rating for limitation of flexion under DC 5010 adequately reflects his pain on motion, as he has range of motion in excess of 60 degrees and the aforementioned codes adequately compensate for his other symptoms. 38 C.F.R. § 4.7. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In making these determinations, the Board has considered, along with the schedular criteria, the Veteran's functional loss due to pain. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206-207 (1995). ORDER Service connection for right hip arthritis is granted. A rating in excess of 10 percent for right knee arthritis due to limitation of flexion is denied. A 30 percent rating for severe right knee instability since February 18, 2016, is granted. A 20 percent rating for episodes of right knee "popping," pain, and joint swelling and tightness since February 18, 2016, is granted. ______________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs