Citation Nr: 1752332 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 06-18 701 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for a right knee disability. 2. Entitlement to an initial evaluation in excess of 10 percent for a left knee disability. 3. Entitlement to a separate compensable evaluation for right knee instability. 4. Entitlement to a separate compensable evaluation for left knee instability. 5. Entitlement to service connection for a separate neurological disability of the right lower extremity associated with the service-connected lumbar spine disability. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Mills, Counsel INTRODUCTION The Veteran served on active duty from July 1959 to July 1962. This case comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in July 2005 and December 2007 by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. The Veteran provided testimony at hearings in January 2008 and in March 2010. Transcripts of both proceedings are of record. The Veteran appealed the Board's September 2011 decision to the United States Court of Appeals for Veterans Claims (Court). In a March 2013 Memorandum Decision, the Court vacated the September 2011 Board decision with respect to the issues of higher initial ratings for the lumbar spine and bilateral knee disabilities. FINDINGS OF FACT 1. During the appellate period, the Veteran's right knee extension has never measured more than zero degrees and his flexion has never measured less than 60 degrees. His motion is limited by pain and there is x-ray evidence of arthritis. 2. During the appellate period, the Veteran's left knee extension has never measured more than zero degrees and his flexion has never measured less than 60 degrees. His motion is limited by pain and there is x-ray evidence of arthritis. 3. During the entire appeal period, the evidence shows slight impairment of the right knee, manifested by subluxation and instability. 4. During the entire appeal period, the evidence shows slight impairment of the left knee, manifested by subluxation and instability. 5. During the entire appeal period, the Veteran has been diagnosed with radiculopathy of the right lower extremity with right leg sciatica. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for a right knee disability, based on limitation of motion, are not met. 38 U.S.C.A. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.7, 4.10, 4.71a, Diagnostic Code 5010 (2017). 2. The criteria for a disability rating in excess of 10 percent for left right knee disability, based on limitation of motion, are not met. 38 U.S.C.A. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.7, 4.10, 4.71a, Diagnostic Code 5010 (2017). 3. The criteria for a 10 percent rating for right knee instability are met for the entire period on appeal. 38 U.S.C.A. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.7, 4.10, 4.71a, Diagnostic Codes 5257 (2017). 4. The criteria for a 10 percent rating for left knee instability are met for the entire period on appeal. 38 U.S.C.A. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.7, 4.10, 4.71a, Diagnostic Codes 5257 (2017). 5. The criteria for a separate 10 percent rating for a right lower extremity neurological disability are met for the entire period on appeal. 38 U.S.C.A. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 4.10, 4.71a, Diagnostic Code 8520 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA substantially complied with the duties to notify and assist in this case. The Veteran has not raised any procedural arguments regarding the notice or assistance provided. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Board also finds that the May 2014 Board remand directives have been substantially complied with. Stegall v. West, 11 Vet. App. 268 (1998). The Board notes the Veteran did not attend a scheduled VA examination requested in response to its May 2014 remand. In correspondence to the RO, the Veteran indicated he did not want to pursue the appeal. In 2017, the Board received no response to a letter sent to the Veteran requesting clarification. Increased Ratings Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. 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. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45. The determination of whether an increased evaluation is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. If the evidence is in support of the claim or is in equal balance, the claim is allowed. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where, as in this case, the claimant has appealed the initial rating given at the time service connection was established, in assigning the initial rating, the Board must consider the propriety of assigning one or more levels of rating "staged" ratings from the initial effective date forward, based on evidence as to the severity of disability. See Fenderson v. West, 12 Vet. App. 119, 126-7 (1999). The Veteran is claiming entitlement to initial evaluations in excess of 10 percent for his knee disabilities. The Veteran was granted entitlement to service connection for bilateral knee disabilities (degenerative joint disease) in a December 2007 rating decision that assigned 10 percent disability ratings effective March 23, 2004. During the course of his appeal, the Veteran has undergone several VA examinations and been seen by both VA and by private doctors. The medical evidence of record has been reviewed in its entirety, and will be discussed as appropriate in conjunction with the various potentially applicable Diagnostic Codes. At a June 2004 VA examination of his knees, X-rays revealed bilateral knee osteoarthritis. The examination report reveals that the Veteran reported bilateral knee pain. Upon examination, there was no instability, weakness, or redness. The right knee flexed to 140 degrees and the left knee flexed to 130 degrees without any additional loss of range of motion with repeated movement. The examiner diagnosed bilateral patellofemoral syndrome with mild osteoarthritis. A January 2005 VA treatment note indicates that the Veteran reported intermittent knee pain. He stated there was no pain with sitting, but pain with taking stairs. There was no effusion or tenderness in his knees and there was full range of motion, but pain with full flexion. A May 2006 letter from the Veteran's former chiropractor states that, from 1965 to 1973, he was treated for bilateral knee pain. A July 2006 letter from the Veteran's current orthopedist states that, by x-ray, he had narrowing of the medial joint lines of both knees that was consistent with degenerative meniscal tearing. At an August 2007 VA examination, the examiner stated review of x-rays showing degenerative joint disease. Upon examination, there was no instability and the Veteran was able to flex the right knee to 130 and the left knee to 125. Extension was zero degrees bilaterally. The examiner diagnosed bilateral knee degenerative joint disease. A December 2007 letter from the Veteran's private orthopedist discusses his back and knee disabilities. The orthopedist stated that he had directed the Veteran not to participate in any strenuous physical activity and that he had been issued disability license plates. A December 2007 VA treatment note states that the Veteran stated that he did not experience pain that interfered with his activities of daily living. VA received three lay statements in August 2008. The letters attest to the Veteran's level of disability from the knee disabilities. Specifically, a friend of the Veteran observed that knee pain prevented him from standing up without a cane or bending over. A letter from his son reiterates that observation. The Veteran's wife stated that she has to assist the Veteran in taking stairs and that his knee pain prevents him from moving around without pain. A December 2008 VA treatment note states that the Veteran was seen for fall-related injuries after his knees "gave out and [he] went down intentionally." A June 2009 VA treatment note states that the Veteran reported trying to avoid knee replacement surgery and that his movement was limited by knee pain. In December 2008, the Veteran's private orthopedist wrote another letter to VA stating that the current knee pathology was likely to progress. The orthopedist opined that the Veteran did not currently need knee replacements, but likely would need replacement surgery in the future. The Veteran submitted a March 2010 statement that his knee pain is severe and his knees "are locked up." He reiterated those contentions at a March 2010 hearing before a decision review officer. A September 2010 statement from the Veteran's orthopedist states that he is in persistent pain due to bilateral knee osteoarthritis. An October 2010 VA examination report reflects that the Veteran indicated that he had knee pain, but reported no incapacitating episodes or flare-ups. He reported that his knee disabilities interfere with his daily activities, limit how long he can stand and how far he can walk, and limit how many stairs he can climb. Upon examination, the examiner noted no instability, right knee flexion to 125 degrees, left knee flexion to 130 degrees, and bilateral extension to zero degrees. The Veteran reported pain through all movements, but there was no additional loss of range of motion with repeated movement. The examiner diagnosed left knee degenerative joint disease and bilateral knee patellofemoral syndrome. X-rays showed osteoarthritis only in the left knee. The examiner opined that the knee disabilities interfered with the Veteran's ability to perform physical labor, standing and walking, but did not interfere with his ability to do sedentary labor. At a May 2013 VA examination, the examiner noted a negative McMurray's sign and no patella subluxation, bilateral knee flexion to 120 degrees and bilateral knee extension to 0 degrees. There was no additional limitation of joint function due to pain, fatigue, or lack of endurance following repetitive motion testing. Knee Limitation of Motion The Veteran's knee disabilities are currently rated at 10 percent disabling under Diagnostic Code 5010, traumatic arthritis, which directs a rating under Diagnostic Code 5003 for degenerative arthritis. 38 C.F.R. § 4.71a. Diagnostic Code 5003 states that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003. When, however, the limitation of motion is noncompensable under the appropriate diagnostic codes, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Here, the Veteran has already been assigned a 10 percent rating on the basis of painful motion of a major joint. A higher evaluation cannot be assigned based on Diagnostic Code 5003 alone. During the course of the appeal, there is no indication that the Veteran has limitation of motion of the bilateral knees that meets or approximates the criteria for a compensable evaluation based on limitation of motion under Diagnostic Code 5260 or 5261. The Veteran's knee flexion has never measured less than 60 degrees and his extension has never been measured more than zero degrees. Limitation of flexion of a leg warrants a noncompensable evaluation when flexion is limited to 60 degrees or better. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Limitation of extension of a leg is noncompensable when extension is limited to 5 degrees or less. 38 C.F.R. § 4.71a, Diagnostic Code 5261. A higher initial evaluation based on limitation of motion of either the right or left knee is therefore not warranted. Knee Instability A claimant who has arthritis and instability of a knee may be rated separately under Diagnostic Codes 5003 and 5257, but any separate rating must be based on additional disabling symptomatology. VAOPGCPREC 23-97 (1997), 62 Fed. Reg. 63,604 (1997); VAOPGCPREC 9-98 (1998), 63 Fed. Reg. 56,704 (1998). In regard to the disability addressed in Diagnostic Code 5257, recurrent subluxation or lateral instability, based on the evidence of record, the Board finds that the Veteran experiences separate disabilities of the bilateral knees manifested by instability. Gilbert, 1 Vet. App. at 53-56. The Board considered the Veteran's lay statements regarding the functional impact of his bilateral knees, with regard to the severity of his disability, including reports of instability. The Board observes that the Veteran contended in a March 2010 letter that his knees "locked" and that he was seen for residuals of a fall that he reported was caused by his knees "giving out" but no medical professional has diagnosed either subluxation or instability and the Veteran did not report any such symptoms to VA examiners. Even still, the Board recognizes the lay statements written by the Veteran's friend, son, and wife. The wife stated that she had to assist the Veteran in taking stairs. The son and friend observed that knee pain prevented the Veteran from standing up without a cane. Under these circumstances, and affording the Veteran the benefit of the doubt, the Board finds that that Veteran is entitled to separate 10 percent evaluations based on instability of the left and right knees. Under Diagnostic Code 5257, for rating recurrent subluxation or lateral instability, a 10 percent rating is assigned for slight impairment, a 20 percent rating is assigned for moderate impairment, and a 30 percent rating is assigned for severe impairment. 38 C.F.R. § 4.71a. The symptoms reported by the Veteran and friends and family are no more that slight in severity, and no physician has observed any laxity in the bilateral knees. As such, the Board finds that a 10 percent rating is appropriate for right knee instability. Additionally, the Board finds that a 10 percent rating, is appropriate for left knee instability The Board has also considered other potentially relevant diagnostic codes. Other diagnostic codes relating to the knee are Diagnostic Code 5256 (ankylosis), Diagnostic Code 5259 (symptomatic removal of semilunar cartilage) Diagnostic Code 5258 (dislocated semilunar cartilage with frequent episodes of locking, pan, and effusion into the joint) 5262 (for impairment of tibia and fibula), and Diagnostic Code 5263 (genu recurvatum). These conditions are not shown on examination and the Board finds that application of those diagnostic codes is not warranted. 38 C.F.R. § 4.71a. Separate Neurological Evaluation The Veteran is claiming entitlement to a separate neurological disability of the right lower extremity associated to the service-connected lumbar spine disability. Additional evaluation can be assigned for any associated objective neurologic abnormalities. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243, Note 1. Service connection has already been granted for left lower extremity radiculopathy. The Veteran has repeatedly reported pain radiating from his back to both lower extremities. A July 2005 VA spine examination reflects the Veteran reported pain radiating from the lower back into the right lower extremity. Although a September 2008 neurological examination found no clinical findings of any radiculopathy, he has, during the appellate period, been found to have positive neurological manifestations. See April 2013 private treatment. A December 2007 private treatment record shows treatment for leg with sciatic neuritis. Moreover on VA examination in October 2008, the examiner assessed bilateral lumbar radiculopathy historically. He has also reported, on occasion, some loss of sensation in his right lower extremity. See June 2009 VA treatment record. Providing the benefit of the doubt to the Veteran, the Board finds that he experiences radiculopathy of the right lower extremity. Gilbert, 1 Vet. App, at 53-56. Peripheral nerves are rated under 38 C.F.R. § 4.124a, Diagnostic Codes 8510 to 8540, which specifies that when there is no paralysis and the involvement is wholly sensory, the rating should be for the mild, or at most moderate, degree. Diagnostic Code 8520 is applicable to symptoms related to the sciatic nerve; mild symptoms warrant a 10 percent rating, moderate warrant 20 percent, moderately severe warrant 40 percent, and severe with marked muscle atrophy warrant 60 percent. The symptoms reported by the Veteran, pain and some loss of sensation, are wholly sensory in nature and no physician has observed any atrophy in the right lower extremities. As such, the Board finds that a mild, or 10 percent rating, is appropriate for the right lower extremity. ORDER An initial rating in excess of 10 percent for a right knee disability, based on limitation of motion, is denied. An initial rating in excess of 10 percent for a left knee disability, based on limitation of motion, is denied. Throughout the period on appeal, a separate 10 percent evaluation, but no higher, for right knee instability is granted, subject to the regulations governing the award of monetary benefits. Throughout the period on appeal, a separate 10 percent evaluation, but no higher, for left knee instability is granted, subject to the regulations governing the award of monetary benefits. Throughout the period on appeal, a separate disability rating of 10 percent for a right lower extremity neurological disability, associated with his service-connected spine disability, is granted, subject to the regulations governing the award of monetary benefits. ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs