Citation Nr: 1802729 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 01-07 122A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial rating higher than 10 percent for residuals of a right knee injury. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Smith-Jennings, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1991 to October 1994. This matter comes to the Board of Veteran's Appeals (Board) on appeal from an April 2000 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The April 2000 rating decision granted service connection for right knee residuals with an evaluation of 0 percent effective December 14, 1999. In a July 2001 rating decision, the RO increased the rating for right knee injury residuals from 0 percent disabling to 10 percent disabling effective December 14, 1999 based on treatment for pain with evidence of residual atrophy. The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) via videoconference in January 2017. A transcript of the hearing is of record. The Veteran's claim was previously before the Board in March 2017 and May 2017, at which times it was remanded for further development. FINDING OF FACT The Veteran's right knee disability is productive of painful flexion and frequent episodes of "locking" pain, and effusion into the joint. It has not been productive of flexion limited to 60 degrees or less; extension limited to 5 degrees or more; ankylosis; symptoms associated with the removal of semilunar cartilage; malunion or nonunion of the tibia and fibula; genu recurvatum; or arthritis involving two or more major joint or minor joint groups. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for painful right knee motion have not been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. § 4.1, 4.2, 4.7, 4.10, 4.14, 4.21, 4.25, 4.27, 4.40, 4.71a, Diagnostic Codes 5010, 5260, 5261 (2017). 2. The criteria for an additional, separate 20 percent rating for frequent episodes of "locking" pain and effusion into the joint have been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. § 4.1, 4.2, 4.7, 4.10, 4.14, 4.21, 4.25, 4.40, 4.71a, Diagnostic Code 5258 (2017). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran contends that he is entitled to a higher rating for his service-connected right knee disability currently rated under Diagnostic Codes 5010-5257. Disability ratings are determined by applying the rating criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule) and represent the average impairment of earning capacity. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10 (2017). In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA compensation as well as the whole recorded history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2 (2017); see generally Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria for that rating. 38 C.F.R. § 4.7 (2017). Otherwise, the lower rating is assigned. Id. Additionally, while it is not expected that all cases will show all the findings specified, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21 (2017). The Board has considered whether separate ratings for different periods of time are warranted based on the facts, which is a practice of assigning ratings that is referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, pyramiding, or evaluating the same manifestation of a disability under different diagnostic codes, is to be avoided. See 38 C.F.R. § 4.14 (2017). Thus, separate ratings under different diagnostic codes are only permitted if, for example, those separate ratings are assigned based on manifestations of the Veteran's disability that are separate and apart from manifestations for which the Veteran has already been rated. Esteban v. Brown, 6 Vet. App. 259, 261 (1994). Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss in light of 38 C.F.R. § 4.40, taking into account any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions regarding the avoidance of pyramiding do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare ups. 38 C.F.R. § 4.14 (2017). Currently, the Veteran has a 10 percent disability rating for right knee instability under Diagnostic Code 5010-5257 for the entire period on appeal. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. Diagnostic Code 5010 concerns arthritis due to trauma; it requires establishment by X-ray evidence. Diagnostic Code 5010 is to be rated the same as Diagnostic Code 5003. Under Diagnostic Code 5003, degenerative or traumatic 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. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. However, in the absence of limitation of motion, the disability is to be rated as 10 percent disabling with x-ray evidence of involvement of two or more major joints or two or more minor joint groups; and as 20 percent disabling with x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. Disability ratings under Diagnostic Code 5003 is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added. Under 38 C.F.R. § 4.71a , Diagnostic Code 5257, a 10 percent rating is warranted where there is slight recurrent subluxation or lateral instability, a 20 percent rating is warranted where there is moderate recurrent subluxation or lateral instability, and a 30 percent rating is warranted where there is severe recurrent subluxation or lateral instability. Here, the Veteran's service treatment records document that he experienced mild instability of the right knee. He was afforded an initial VA examination in March 2000. At the time of the examination the Veteran complained of increased pain with activities and pain after going up and down stairs, but denied locking of the knee, and swelling or fluid. Upon examination, the examiner documented mild atrophy of the right quadriceps, but noted that there was no subpatellar crepitus or pain on patellar grinding, no fluid, no ligamentous instability, and no tenderness. The Veteran was also afforded a VA examination in March 2016. At the time of the examination the Veteran complained of increased intermittent pain and stiffness. The Veteran also endorsed experiencing flare-ups resulting in daily intermittent pain lasting several hours with prolonged standing and walking. Upon range of motion testing, the Veteran demonstrated flexion to 115 degrees and extension to 0 degrees. The Veteran was able to perform repetitive-use testing and the examiner indicated that the Veteran did not have additional limitation in range of motion of the right knee following repetitive use testing. Right knee joint stability testing was also performed and there was no joint instability. The examiner also endorsed that the Veteran did not have muscle atrophy and there was no evidence or history of recurrent patellar subluxation, or lateral instability. In March 2017, the Board remanded the Veteran's claim for a contemporaneous VA examination which included the range of motion testing results required in Correia and a July 2017 VA examination was associated with the claims file. Correia v. McDonald, 28 Vet. App. 158 (2016). At the time of the examination the Veteran endorsed flare-ups and complained of pain with prolonged standing and walking. The Veteran also complained of weakness, warmth, cracking, and locking. The Veteran denied swelling and giving way. Range of motion testing demonstrated flexion to 115 degrees and extension to 0 degrees. The Veteran was able to perform repetitive-use testing and the examiner indicated that the Veteran did not have additional limitation in range of motion of the right knee following repetitive use testing. Notably, the examiner also indicated that the Veteran did not have muscle atrophy and there was no evidence or history of recurrent patellar subluxation, lateral instability, or a meniscus (semilunar cartilage) condition. The evidence of record also includes VA treatment records which document the Veteran's complaint of knee pain, but which note that the Veteran's extremities had normal range of motion and normal gait and that the Veteran's x-rays were normal. See April 2015 VA treatment records (which document the Veteran's complaint of knee pain from jumping from airplanes. Upon examination, the examiner found that the Veteran's extremities had good range of motion.) See also May 2015 VA treatment records (which document that the Veteran's x-rays were normal.) As previously stated, under Diagnostic Code 5257, a 10 percent rating is warranted where there is slight recurrent subluxation or lateral instability, a 20 percent rating is warranted where there is moderate recurrent subluxation or lateral instability, and a 30 percent rating is warranted where there is severe recurrent subluxation or lateral instability. The March 2000 VA examiner found no instability upon examination and the March 2016 and July 2017 VA examiners indicated no evidence or history of recurrent patellar subluxation or lateral instability. The Veteran also specifically denied giving way during the July 2017 VA examination. The Board has also considered whether the Veteran is entitled to a rating under additional potentially applicable diagnostic codes. Diagnostic Code 5010 addresses traumatic arthritis and is rated identically to degenerative arthritis under Diagnostic Code 5003. For the purpose of rating disability due to arthritis, the knee is considered a major joint. 38 C.F.R. § 4.45 (f) (2017). A rating higher than the current rating for arthritis is not warranted under Diagnostic Code 5003 because the Veteran's arthritis does not affect two or more major joint or minor joint groups. See 38 C.F.R. § 4.71a. In regard to DeLuca criteria, there is no medical evidence to show any additional loss of motion of the knee due to pain or flare-ups of pain, supported by objective findings, or due to excess fatigability, weakness or incoordination, to a degree that supports a rating in excess of 10 percent. The Board notes that the 10 percent rating assigned for the entire period on appeal for the Veteran's residuals of a right knee injury contemplates functional loss. Lastly, the Board has also considered Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). The Board finds that prior to stating that it would be speculative to provide accurate range of motion during a flare-up, the examiners ascertained adequate information regarding the characteristics of the Veteran's flare-ups. Specifically, in the section labeled "document the Veteran's description of the flare-ups in his or her own words" the July 2017 VA examination report noted that the Veteran reported that during a flare-up he has to sit down to relieve the pain. Next the Board considered whether the Veteran's right knee disability presents any additional manifestations that would warrant the assignment of a separate rating. The record is negative for evidence of ankylosis; the removal of semilunar cartilage; impairment of tibia and fibula; and genu recurvatum; therefore the Board finds that the following diagnostic codes are not applicable in the present case: 5256 (ankylosis of the knee); 5259 (symptomatic removal of semilunar cartilage); 5262 (impairment of tibia and fibula); and 5263 (genu recurvatum). The Board acknowledges that the July 2017 VA examination report documents that the Veteran has had shin splints (medial tibial stress syndrome). However, the examiner noted that the condition does not affect range of motion of the knee or ankle and there is no evidence that the Veteran had nonunion or malunion of the tibia or fibula. The Board does however find that a separate 20 percent rating is warranted for dislocation of cartilage semilunar with frequent episodes of "locking" pain, and effusion into the joint under 38 C.F.R. § 4.71a, Diagnostic Code 5258. Throughout the appeal period, the Veteran reported his knee "pops when he walks." The Veteran has also reported locking, and swelling at times during the appeal period. During the January 2017 Board hearing, the Veteran reported chronic knee pain and popping in the knee when he bends down. He also reported that his knee locks at times. During a July 2017 VA examination the Veteran reported cracking and locking of the knee. The Board notes that the rating schedule does not require medical evidence to substantiate the dislocation of cartilage semilunar with frequent episodes of "locking" pain, and effusion into the joint. Accordingly, resolving reasonable doubt in the Veteran's favor, the Board finds that a separate rating is warranted based on the Veteran's reports of popping throughout the appeal period and, swelling, and locking. In summary, an initial evaluation in excess of 10 percent for residuals right knee injury is not warranted, however a separate 20 percent rating for dislocation of cartilage semilunar with frequent episodes of "locking" pain, and effusion into the joint is granted. (CONTINUED ON NEXT PAGE) ORDER A rating in excess of 10 percent for painful right knee motion is denied. A separate rating of 20 percent for frequent episodes of "locking" pain, and effusion into the joint is granted. ____________________________________________ S.C. KREMBS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs