Citation Nr: 1752096 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 10-47 141A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent for degenerative joint disease of the left knee. 2. Entitlement to a disability rating in excess of 10 percent for degenerative joint disease of the right knee. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Scarduzio, Associate Counsel INTRODUCTION The Veteran had active service from October 1974 to October 1994. The matter comes before the Board of Veterans' Appeals (Board) from a June 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In July 2012, the Veteran testified at a Travel Board hearing before a Veterans Law Judge (VLJ). However, because the audio recording could not be transcribed, he was given another opportunity for a hearing which took place via videoconference before the undersigned VLJ in March 2013. A transcript of the latter hearing is of record. This case was most recently remanded by the Board in August 2013, and has since been returned for further appellate review. In 2013 the Board also remanded the issue of entitlement to a total disability rating based on individual unemployability (TDIU). A March 2017 rating decision granted TDIU and that issue is no longer before the Board. FINDINGS OF FACT 1. The Veteran's left knee degenerative joint disease has been manifested by arthritis with painful motion. Flexion has not been limited to 30 degrees and the disability did not result in limitation of extension, recurrent subluxation, ankylosis, or instability. 2. The Veteran's right knee degenerative joint disease has been manifested by arthritis with painful motion. Flexion has not been limited to 30 degrees and the disability did not result in limitation of extension, recurrent subluxation, ankylosis, or instability. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for degenerative joint disease of the left knee have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2016). 2. The criteria for a disability rating in excess of 10 percent for degenerative joint disease of the right knee have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Veteran asserts that his service-connected knee disabilities have worsened, and seeks increased ratings in excess of 10 percent, bilaterally. Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from diseases or injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform 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 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 which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). It is the intent of the schedule to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Degenerative arthritis is rated under Diagnostic Code 5003. Pursuant to Diagnostic Code 5003, degenerative arthritis established by x-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic codes 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 the 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, involvement of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations shall be rated as 20 percent disabling, and involvement of two or more major joints or two or more minor joint groups without occasional incapacitating exacerbations shall be rated as 10 percent disabling. The 20 percent and 10 percent ratings based on x-ray findings without limitation of motion will not be combined with ratings based on limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. The knee is considered a major joint. 38 C.F.R. § 4.45(f). Knee disabilities are rated under Diagnostic Codes 5256 to 5263. The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The Veteran's knee disabilities are currently rated under Diagnostic Code 5260. Diagnostic Code 5260 provides that flexion of the leg limited to 15 degrees warrants a 30 percent rating; flexion limited to 30 degrees warrants a 20 percent rating; flexion limited to 45 degrees warrants a 10 percent rating; and flexion limited to 60 degrees warrants a 0 percent (noncompensable) rating. 38 C.F.R. § 4.71a. Diagnostic Code 5261 provides that extension of the leg limited to 45 degrees warrants a 50 percent rating; extension limited to 30 degrees warrants a 40 percent rating; extension limited to 20 degrees warrants a 30 percent rating; extension limited to 15 degrees warrants a 20 percent rating; extension limited to 10 degrees warrants a 10 percent rating; extension limited to 5 degrees warrants a 0 percent (noncompensable) rating. Id. Diagnostic Code 5256 relates to ankylosis of the knee. Under Diagnostic Code 5257, slight recurrent subluxation or lateral instability warrants a 10 percent rating, moderate recurrent subluxation or lateral instability warrants a 20 percent rating, and severe recurrent subluxation or lateral instability warrants a 30 percent rating. Under Diagnostic Code 5258, dislocated semilunar cartilage, with frequent episodes of locking, pain, and effusion into the joint warrants a 20 percent evaluation. Removal of semilunar cartilage warrants a 10 percent evaluation if it is symptomatic under Diagnostic Code 5259. Finally, Diagnostic Code 5263 allows a rating for genu recurvatum. Id. VA's General Counsel has held that a claimant who has arthritis (resulting in limited or painful motion) and instability of a knee may be rated separately under Diagnostic Codes 5003 and 5257, cautioning that any such separate rating must be based on additional disabling symptomatology. See VAOPGCPREC 23-97, 62 Fed. Reg. 63,604 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (1998). VA's General Counsel has further held that separate ratings under 38 C.F.R. § 4.71a, Diagnostic Code 5260 (limitation of flexion of the leg) and Diagnostic Code 5261 (limitation of extension of the leg) may be assigned for disability of the same joint. See VAOPGCPREC 9-2004; 69 Fed. Reg. 59,990 (2004). The Veteran underwent VA examinations related to his increased rating claim in April 2009 and April 2012. The Board remanded the Veteran's claims in August 2013 for a more current VA examination and updated VA treatment records to determine the current severity of his knee disabilities. Two additional examinations were performed in August 2014 and February 2017. On examination in April 2009, the Veteran reported bilateral knee pain, with weakness, stiffness, swelling, heat, instability, and locking. Upon physical examination, tenderness was noted bilaterally. However, there were no signs of edema, effusion, weakness, redness, heat, guarding of movement, subluxation, locking pain, genu recurvatum or crepitus. Range of motion testing of the left knee showed flexion to 100 degrees with pain exhibited, and normal extension. Range of motion testing of the right knee showed flexion to 110 degrees with pain exhibited, and normal extension. The examiner noted that joint function was not additionally limited by pain, weakness, fatigue, lack of endurance or incoordination after repetitive use. Stability testing was normal. In April 2012 the Veteran reported bilateral knee pain, and that he was considering retiring from his employment as a mail carrier due to this pain. He denied flare-ups impacting the function of the knee. Physical examination revealed a right knee flexion to 140 degrees, with painful motion beginning at 125 degrees. Left knee flexion was to 130 degrees, with painful motion beginning at 120 degrees. Extension was normal bilaterally, with no evidence of painful motion. There was no change in range of motion after repetitive use testing with three repetitions. Muscle strength and joint stability testing were normal, and there was no evidence of patellar subluxation or dislocation. The examiner did note the Veteran's regular use of knee braces. The examiner compared X-rays taken in July 2010 with X-rays taken the previous February and mild bilateral tricompartmental osteoarthritic changes, with no fractures, dislocations or joint effusions, or tissue abnormalities. At his videoconference hearing before the undersigned VLJ in March 2013, the Veteran reported instability with both knees, with pain on weight bearing and with multiple repetitions. He noted that he had been receiving knee injections for pain relief. A submitted statement from a VA physician, Dr. E.W., noted the Veteran as being prescribed bilateral knee braces "for osteoarthritis with patellar instability." May and June 2013 VA treatment records note the Veteran receiving a number of cartilage injections (Supartz) in both knees, with a history of also receiving intra-articular and steroid injections. Pursuant to Board remand, the Veteran was afforded another VA knee examination in August 2014. He denied flare-ups impacting the function of the knee. Range of motion testing in the Veteran's left knee revealed flexion to 130 degrees and normal extension, with no objective evidence of painful motion. Range of motion testing in the Veteran's right knee revealed flexion to 125 degrees and normal extension. Painful motion was noted on extension at 125 degrees. There was no additional limitation in range of motion or functional loss after three repetitions. The examiner also noted no localized tenderness or pain on palpitation of the joint or associated soft tissue on either knee. Muscle strength and joint stability were normal and there was no evidence of patellar subluxation/dislocation. The examiner did note the Veteran's regular use of knee braces. An X-ray report indicated no significant osteoarthritic changes since 2012. Finally, upon VA examination again in February 2017, range of motion testing in the Veteran's left knee revealed flexion to 125 degrees, with normal extension. Range of motion testing in the Veteran's right knee revealed flexion to 130 degrees, with normal extension. While the examiner noted pain on examination, he stated that it did not result in/cause functional loss. There was no additional limitation in range of motion or functional loss after three repetitions. The examiner did note bilateral knee pain on weight-bearing, but no crepitus, or evidence of localized tenderness or pain on palpitation of the joint or associated soft tissue. The Veteran Muscle strength and joint stability were normal, although the Veteran's constant use of knee braces and regular use of a cane were noted. The examiner was unable to say without resorting to mere speculation as to whether pain, weakness, fatigueability or incoordination significantly limited functional ability with repeated use over a period of time, noting that the Veteran was not examined during a flare-up, and the measurement of range of motion during a flare-up is infeasible unless an examiner is present with a goniometer at the ready. In any event, the Veteran denied flare-ups impacting the function of the knee. Based on the foregoing, the Board finds that a disability rating in excess of 10 percent is not warranted for either knee during the entire period on appeal. Flexion has been limited to at most 100 degrees in either leg and extension has consistently been normal, to include after repetitive use. The Veteran has denied flare-ups impacting the function of the knee. Thus, higher ratings are not warranted for limitation of flexion or extension. 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. A rating based on ankylosis under Diagnostic Code 5256 is also not warranted as the evidence shows motion of both knees. As the evidence does not show symptomatic removal of semilunar cartilage, a rating under Diagnostic Code 5259 is also not warranted for either knee. Further, the Veteran does not have impairment of the tibia or fibula or genu recurvatum; thus, ratings under Diagnostic Codes 5262 and 5263 are not appropriate. 38 C.F.R. § 4.71a. The Board acknowledges the Veteran's use of knee braces and his consistent assertions that his knees "give way." The evidence is against a finding, however, that any instability exists in either of the Veteran's knees. While the March 2013 statement from Dr. E.W. noted that the Veteran was prescribed bilateral knee braces for instability, the only physical joint stability testing of record are upon the various VA examinations, all of which noted no instability. While the Veteran may experience a feeling that his knees may give way or are unstable, the medical findings regarding instability, dislocation, and subluxation are more probative as to the actual presence of these conditions. Notably, there are specific medical tests that are designed to reveal instability and laxity of the joints. These tests were administered by the medical professionals in this case and revealed no instability or laxity. Hence, the evidence is against a separate rating for either knee under Diagnostic Code 5257. 38 C.F.R. § 4.71a. Furthermore, a rating under Diagnostic Code 5258 entails frequent episodes of locking, pain, and effusion into the joint, symptoms that overlap to a significant extent with those for rating knee disabilities under Diagnostic Code 5003/5260. It would be inappropriate to assign two separate ratings for knee pain as would happen if the Veteran's knee disabilities were assigned a compensable rating under Diagnostic Code 5258 in addition to the already assigned 10 percent evaluations under Diagnostic Code 5260. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). To award a separate, additional rating under Diagnostic Code 5258 for the same symptoms and functional limitations would constitute impermissible pyramiding. See 38 C.F.R. § 4.14; Esteban, 6 Vet. App. at 261-62. The Board has considered whether there is any other basis for further granting the above claims but has found none. In reaching this decision, the Board has considered the Veteran's lay statements, and notes that he is competent to report his own observations with regard to the severity of his knee disabilities. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board finds his statements to be consistent with the ratings assigned. To the extent he argues his symptomatology is more severe, his statements must be weighed against the other evidence of record. Here, the specific examination findings of trained health care professionals are of greater probative weight than the Veteran's more general lay assertions. As the preponderance of the evidence is against a finding that the Veteran's disabilities more nearly approximate the criteria for higher ratings, higher ratings are not warranted. 38 C.F.R. §§ 4.3, 4.7, 4.71a. 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, 369-370 (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). ORDER Entitlement to a disability rating in excess of 10 percent for degenerative joint disease of the left knee is denied. Entitlement to a disability rating in excess of 10 percent for degenerative joint disease of the right knee is denied. ____________________________________________ Nathan Kroes Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs