Citation Nr: 1759928 Decision Date: 12/22/17 Archive Date: 01/02/18 DOCKET NO. 10-11 142 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to a rating in excess of 10 percent for degenerative arthritis, left knee. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD P. Lopez, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1975 to July 1979, and June 1981 to June 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Board last considered this matter in April 2017, at which time it remanded for a new VA examination. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing held at the RO in April 2015. A transcript of that hearing is of record. FINDINGS OF FACT 1. The weight of the evidence is against a finding that the Veteran's left knee disability has been manifested by flexion limited to 30 degrees or less, meniscal impairment, ankylosis, impairment of tibia or fibula, or genu recurvatum. 2. Since April 13, 2015, the weight of the evidence supports a finding that the Veteran's left knee disability has been manifested by slight instability. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for degenerative arthritis, left knee, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2016); 38 C.F.R. §§ 3.321(b)(1), 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5024, 5226-5263 (2017). 2. Since April 13, 2015, the criteria for a separate rating of 10 percent under DC 5257 for degenerative arthritis, left knee, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2016); 38 C.F.R. §§ 3.321(b)(1), 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DCs 5024, 5226-5263 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist VA notified the Veteran of the evidence and information necessary to substantiate his service connection and increased rating claims in September 2008, prior to the initial adjudication of the claim. Concerning the duty to assist, all identified, pertinent treatment records have been obtained and considered. Pursuant to the April 2017 Board remand, VA provided a VA examination in July 2017 to determine the current severity of the Veteran's left knee disability. The examination included joint testing for pain on both active and passive motion, and in weight-bearing and nonweight-bearing, in compliance with Correia v. McDonald, 28 Vet. App. 158 (2016). As discussed below, the July 2017 VA examination contradicts certain findings from the previous July 2016 VA examination. The Board has resolved any doubt with regard to these discrepancies in the Veteran's favor. Otherwise, there is no argument or indication that these examinations are inadequate or that their findings do not reflect the current severity of the disability. In sum, there is no additional notice or assistance that would be reasonably likely to aid in substantiating the Veteran's claim. Any errors committed were not harmful to the essential fairness of the proceedings, and the Veteran will not be prejudiced by a decision. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.103(c)(2), 3.326; Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Bryant v. Shinseki, 23 Vet. App. 488 (2010); Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). II. Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, 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. All reasonable doubt as to the degree of the disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board must also consider staged ratings, which are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). When evaluating musculoskeletal disabilities based on limitation of motion, a higher rating must be considered where the evidence demonstrates additional functional loss due to pain, excess fatigability, or incoordination, pursuant to 38 C.F.R. §§ 4.40 and 4.45, if such factors are not contemplated in the rating criteria. The codes pertaining to range of motion do not subsume sections 4.40 and 4.45, and the rule against pyramiding does not forbid consideration of a higher rating based on greater limitation due to pain on use, including during flare-ups. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Veteran is service-connected for arthritis of the left knee. See January 1998 rating decision. This appeal stems from a July 2008 claim for a higher rating. The Veteran's left knee is currently rated as 10 percent disabling pursuant to Diagnostic Code 5260 for the entire rating period. See December 2008 rating decision. The Board will consider whether he is entitled to higher or separate ratings under all applicable diagnostic codes. DC 5003 provides that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion. 38 C.F.R. § 4.71a. Under DC 5260, a noncompensable rating will be assigned for limitation of flexion of the leg to 60 degrees. To warrant a rating of 10 percent, flexion of the leg must be limited to 45 degrees. Higher ratings of 20 to 30 percent are available for more limited degrees of flexion. 38 C.F.R. § 4.71a. Under DC 5261, a noncompensable rating will be assigned for limitation of extension to 5 degrees. To warrant a rating of 10 percent under this code, extension must be limited to 10 degrees. Higher ratings of 20 to 50 percent are available for more limited degrees of extension. 38 C.F.R. § 4.71a. Separate ratings may be assigned for compensable limitation of flexion and limitation of extension of the same knee, in order to compensate adequately for functional loss. VAOGCPREC 9-04 (Sept. 17, 2004), 69 Fed. Reg. 59990 (2004). Alternatively, where limitation of motion is not compensable under DC 5260 or 5621, a minimum compensable rating may be granted for arthritis under § 4.59, if it is productive of actually painful motion due to unstable or malaligned joints due to healed injury. VAOGCPREC 9-98 (August 14, 1998), 63 Fed. Reg. 56704 (1998). Further, whether or not arthritis is present, painful motion should be considered to determine whether a separate or higher rating is warranted under 38 C.F.R. § 4.59, which provides that the Rating Schedule is meant to allow for at least the minimum compensable rating for the joint to recognize actually painful, unstable or malaligned joints, due to healed injury. Burton v. Shinseki, 25 Vet. App. 1 (2011). Separate ratings may be assigned for arthritis under DC 5003 and for subluxation or instability under DC 5257 without constituting pyramiding, as long as the separate rating is based on additional disability. VAOGCPREC 23-97 (July 1, 1997), 62 Fed. Reg. 63604 (1997); see also 38 C.F.R. § 4.14. Under DC 5257, a 10 percent rating will be assigned for slight recurrent subluxation or lateral instability. A 20 percent rating will be assigned for moderate recurrent subluxation or lateral instability, and a 30 percent rating will be assigned for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, DC 5257. The terms "moderate" and "marked" are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to determine the appropriate rating. 38 C.F.R. § 4.6. Consideration of pain or other factors under 38 C.F.R. §§ 4.40 and 4.45 is not appropriate under DC 5257 because it is not based on loss of range of motion. Johnson v. Brown, 9 Vet. App. 7, 11 (1996). Turning to the evidence, an October 2008 VA examination shows reports of constant left knee pain, described as aching, sharp, and at a 6/10 level, elicited by physical activity and relieved by Motrin. The Veteran also reported weakness, stiffness, swelling, and giving way. As noted by the examiner, the Veteran did not have heat, redness, lack of endurance, locking, fatigability, and dislocation. The Veteran had not had any joint replacement. He reported limitations in squatting and stomping. On physical examination, the examiner noted redness and grinding, but no signs of edema, effusion, weakness, tenderness, redness, heat, guarding of movement, subluxation, locking pain, genu recurvatum, or crepitus. Range of motion tests revealed flexion to 125 degrees and extension to 0 degrees. Joint function was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use. Stability testing was within normal limits. Lateral and medial meniscus testing was also normal. The examiner continued the diagnosis of degenerative arthritis, with subjective pain and objective tenderness. In his February 2009 notice of disagreement, the Veteran reported increasing pain, stiffness, popping, weakness, and occasional swelling of his left knee. VA treatment records shows complaints of knee pain and occasional swelling, with prescribed use of knee brace, in April 2015. In his April 2015 Board hearing, the Veteran testified that he had popping and increased pain in his left knee; had recently been given a support brace due to pain and swelling; and sometimes felt that his knee was about to lock up or give way, at which times he would need to change his stride or walk to avoid falling. A July 2016 VA examination shows that the Veteran reported some popping, grinding, and occasional swelling. He reported intermittent pain in the joint, feelings of instability, and regular use of a knee brace for stability. He did not report flare-ups. Range of motion tests revealed flexion to 130 degrees and extension to 0 degrees, with no associated functional loss. Pain was noted but did not result in functional loss. There was objective evidence of crepitus and localized tenderness in the medial joint line. The examiner indicated that there was no evidence of pain with weight bearing. There was no additional functional loss after repetitive use. Regarding additional limitations due to pain, weakness, fatigability, or incoordination over time, the examiner stated that he was unable to determine the extent of these without resort to mere speculation, since the examination was not conducted after repeated use over time. The examination was negative for ankylosis. Regarding joint stability, the examiner noted a history of slight left knee subluxation. Nevertheless, joint stability testing was negative. The examiner was also negative for meniscal or any other knee conditions. Regarding functional impairment, the examiner noted occasional instability of the left knee. A July 2017 VA examination shows that the Veteran reported pain, swelling, popping, grinding, and stiffness in both knees. He also reported difficulty ascending and descending stairs. He denied flare-ups. Range of motion tests revealed flexion to 140 degrees and extension to 0 degrees, with no pain noted. The examination was also negative for tenderness or pain on palpation, pain with weight bearing, nonweight-bearing, or passive range of motion, or additional loss of function after repetitive use. There was evidence of crepitus. Regarding additional limitations due to pain, weakness, fatigability, or incoordination over time, the examiner stated that he was unable to determine the extent of these without resort to mere speculation, since the examination was not conducted during flare-up or after repeated use over time. The examination was negative for ankylosis or joint stability. The examiner indicated that there was no history of recurrent subluxation or lateral instability. Similarly, the examiner indicated that the Veteran did not use assistive devices. Regarding meniscal conditions, the examiner noted the Veteran's history of a medial meniscus tear in 1996. Functional impact was described as difficulty negotiation stairs. In a September 2017 addendum, a different VA examiner indicated that she could not estimate the passive range of motion for the Veteran's left knee at the time of the prior VA examinations without resort to mere speculation. She noted that both active and passive range of motion at the time of the July 2017 VA examination were normal, adding that, without direct observation, she could not estimate how far back in time the current range of motion finding would apply. Again, the Veteran's left knee is rated as 10 percent disabling under DC 5260. To warrant a rating higher than 10 percent under DC 5260, the disability must be manifested by leg flexion limited to 30 degrees or less. Here, however, the evidence shows limitation of flexion of no worse than 125 degrees for the left knee. There is no objective evidence that the Veteran had any additional limitation of motion due to pain, weakness, incoordination, or fatigability with repetitive testing. Regarding additional functional limitation caused over a period of time or during a period of flare-up, VA examiners have concluded that it would involve speculation to provide specific findings in that regard. However, the Veteran has denied flare-ups, thus any deficiency in the opinion in this regard is not material to the facts of this case. Moreover, it does not appear that additional development is likely to yield probative findings as to additional limitation over time. Indeed, additional development would likely only serve to delay the adjudication of the claim and provide no meaningful benefit to the Veteran. Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). In sum, the evidence does not support a higher rating under DC 5260. Also, a separate rating under DC 5261 is not warranted, as there is no evidence of limitation of extension. The evidence, however, does support a separate rating of 10 percent under DC 5257 for slight left knee instability, but only from April 13, 2015, forward. VA treatment records show that, on that date, the Veteran was prescribed use of a knee brace. Further, the July 2016 VA examination report documents a history of slight left knee subluxation and describes functional impairment as occasional instability of the left knee. The Board acknowledges that a subsequent July 2017 VA examination shows a negative history of recurrent subluxation or instability. The Board, however, finds that the July 2016 VA examination has more probative value, as it is consistent with VA treatment records. Accordingly, and resolving any doubt in favor of the Veteran, the Board finds that there is evidence of slight knee instability, but only from April 13, 2015, forward. Prior to that date, the evidence fails to show that the Veteran's left knee disability manifested as instability. Rather, stability testing was normal during the October 2008 VA examination. Ratings are also available for a knee disability under DC 5256 (ankylosis), DC 5258 (dislocated semilunar cartilage or meniscus), DC 5259 (symptomatic removal of semilunar cartilage or meniscus), DC 5262 (impairment of the tibia and fibula), and DC 5263 (genu recurvatum). See 38 C.F.R. § 4.71a. However, the evidence does not establish any such impairment that is connected to the service-connected left knee disability. Moreover, the Veteran's knee symptoms and associated functional limitations are contemplated by the currently assigned ratings of 10 percent for painful motion and instability. This includes consideration of additional impairment during flare-ups or with repetitive use due to pain or other factors, such as decreased endurance and less movement than normal due to symptoms such as swelling or stiffness, per DeLuca and Mitchell. In sum, the weight of the evidence fails to establish entitlement to rating in excess of 10 percent under DC 5260 or any other diagnostic code. Nevertheless, the evidence does support entitlement to a separate rating of 10 percent under DC 5257 for left knee instability, but only from April 13, 2015, forward. ORDER A rating in excess of 10 percent for degenerative arthritis, left knee, is denied. From April 13, 2015, forward, rating of 10 percent under DC 5257 for degenerative arthritis, left knee, is granted. ____________________________________________ Eric S. Leboff Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs