Citation Nr: 1804881 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 14-24 960 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent for a chondromalacia of the left knee. 2. Entitlement to a disability rating in excess of 10 percent for a chondromalacia of the right knee. REPRESENTATION Veteran represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD N.Yeh, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from July 1973 to July 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office in Detroit, Michigan. The Veteran testified at a Board hearing in May 2016. A copy of the hearing transcript is associated with the record. FINDINGS OF FACT 1. The Veteran's right knee disability has been manifested by subjective complaints of instability but no clinical findings of instability. 2. The Veteran's left knee disability has been manifested by subjective complaints of instability but no clinical findings of instability. 3. From March 27, 2013, the Veteran's right knee disability is manifested by limited motion due to pain. 4. From May 7, 2016, the Veteran's right knee disability demonstrated limited motion, with flexion limited to 40 degrees and full extension. 5. From August 19, 2014, the range of motion in the Veteran's left knee has been limited by pain. 6. The Veteran is not shown to have had any meniscal tear or surgery, and no ankylosis or genu recurvatum has been shown by the evidence of record or otherwise alleged. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for a right knee disability, manifested by instability have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. 4.71a, Diagnostic Code 5257 (2017). 2. The criteria for a rating in excess of 10 percent for a left knee disability, manifested by instability have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. 4.71a, Diagnostic Code 5257 (2017). 3. The criteria for a separate rating of 10 percent for a right knee disability, manifested by limitation of flexion have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. 4.71a, Diagnostic Code 5003 (2017). 4. The criteria for a separate rating of 10 percent for a left knee disability, due to pain on motion have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. 4.71a, Diagnostic Code 5003 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, required notice was met, and neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, adjudication of the claim at this time is warranted. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records, Social Security Administration (SSA) records, VA treatment records and private treatment records have been obtained. Additionally, the Veteran testified at a Board hearing in May 2016. The Veteran was also provided with several VA examinations and neither the Veteran, nor his representative, has objected to the adequacy of the examinations conducted during this appeal. See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011). As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. II. Increased Ratings The Veteran contends that he is entitled to a higher rating than 10 percent for both his left and right knee condition due to worsened symptoms. 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. § 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. Knee disabilities are rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5256 to 5263. Included within 38 C.F.R. § 4.71a are multiple diagnostic codes that evaluate impairment resulting from service-connected knee disorders, including Diagnostic Code 5256 (ankylosis), Diagnostic Code 5257 (other impairment, including recurrent subluxation or lateral instability), Diagnostic Code 5258 (dislocated semilunar cartilage), Diagnostic Code 5259 (symptomatic removal of semilunar cartilage), Diagnostic Code 5260 (limitation of flexion), Diagnostic Code 5261 (limitation of extension), Diagnostic Code 5262 (impairment of the tibia and fibula), and Diagnostic Code 5263 (genu recurvatum). Additionally, if the knee condition involves arthritis, the knee disability may be rated under provisions for evaluating arthritis. Arthritis due to trauma is rated as degenerative arthritis according to Diagnostic Code 5003. Under Diagnostic Code 5003, 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. 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. In the absence of limitation of motion, the disability is to be rated as follows: with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, 20 percent; with X- ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, 10 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5003. The Veteran underwent a VA examination of his knees in March 2013 after filing a claim for increased rating in August 2012. On physical examination, the Veteran's initial range of motion of the right knee showed a forward flexion of 125 degrees with pain. After a repetitive use testing, the Veteran demonstrated no additional loss of motion. He had normal muscle strength in both flexion and extension, scoring 5 out of 5. There was no indication of functional loss or impairment. He did not report any flare-ups. There was no evidence of instability, subluxation, dislocation, or meniscal condition. However, he reported tenderness or pain to palpation for joint line or soft tissue. An examination of the left knee showed full extension and 130 degrees flexion with no objective evidence of pain on motion. Like the right knee, the evidence did not indicate functional loss or impairment, instability, subluxation, dislocation, or meniscal condition. The Veteran also did not report any flare-ups in the left knee. The Veteran submitted a February 2013 buddy statement from his wife stating that his knees had gradually progressed from limping to him relying heavily on a cane to walk. Additionally, at times, the Veteran reported that he prefers to stay in bed, only getting up to go to the bathroom. After the Veteran timely filed a Notice of Disagreement to the May 2013 rating decision denying the claims for increased rating, he was afforded another examination in April 2014. There, he expressed difficulty going up and down stairs, and getting out of bed and chairs. His initial range of motion in the right knee showed a forward flexion of 90 degrees with pain beginning at 80 degrees. After a repetitive range of motion test, the Veteran's right knee remained the same at a flexion of 90 degrees and full extension. He denied any flare-ups. On range of motion testing the Veteran demonstrated 115 degrees flexion and full extension in his left knee . There were no flare-ups. Unlike the prior examination, the Veteran now reported functional loss, including less movement than normal, pain on movement, and disturbance of locomotion in both knees. There was still no clinical evidence of joint instability, patellar subluxation, or dislocation. At the May 2016 Board hearing, the Veteran testified to obtaining knee braces to help with mobilization. He continued to report pain and swelling. His activities such as cutting the grass and doing chores have been limited. He underwent another VA examination that same month. After a repetitive use test, the Veteran's right knee flexion was 40 degrees and his extension was 0 degrees. His left knee flexion was limited to 90 degrees and his extension at 0 degrees. There was evidence of pain with weight bearing with objective evidence of localized tenderness of both joints. There were no flare-ups in either knee. While there was indication of crepitus, there was no objective evidence of instability, recurrent effusion, or any meniscal condition found in either knee. Upon evaluation of the evidence of record, Diagnostic Code 5256 is not applicable because the evidence does not show ankylosis of the either knee. There is no allegation to the contrary. Diagnostic Code 5262 is not applicable for either knee because the Veteran's knees do not involve the impairment of the tibia or the fibula. There is no allegation to the contrary. There is no evidence of nonunion or malunion of the knee or ankle. There is no allegation to the contrary. Furthermore, without the showing of genu recuvatum (acquired, traumatic, with weakness and insecurity in weight-bearing), a disability rating under Diagnostic Code 5263 is not warranted. There is no allegation to the contrary. Under Diagnostic Code 5259, a disability rating of 10 percent is assigned for manifestations symptomatic of the removal of semilunar cartilage, and, under Diagnostic Code 5258, a disability rating of 20 percent is assigned for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. 38 C.F.R. § 4.71a, Diagnostic Code 5258, 5259. The Board acknowledges that the Veteran's March 2013 VA examination report noted an arthroscopic surgery in 2010. Additionally, the April 2014 VA examiner checked the "yes" box when asked if the Veteran had a meniscal tear in the right knee. However, the Board finds that the collective evidence does not support a diagnosis of a meniscal condition or any surgery. During his Board hearing, the Veteran testified that periodically, he suffers from a fluid build-up in his knees and has to seek medical treatment to drain or re-establish normal joint fluid. He has not indicated that the arthroscopic procedure involved the repair of meniscal pathology, nor has he reported any history of tears or meniscal injuries. Furthermore, images of both the left and right knee dated August 2012, September 2014, and April 2015 do not reveal a meniscal condition or a removal of the meniscus from either knee, but instead a mild degenerative change in the right knee. It is also noted that the file was reviewed but there is no surgical record describing any menisus surgery. As such, the Board can afford the April 2014 VA examination notation pertaining to a meniscal condition no probative weight as it is simply not supported by any other evidence, and the evidence of record actively suggests that no meniscus problems have been diagnosed in either knee. Therefore, without a meniscal condition, pain due to cartilage dislocation, or removal of cartilage, neither Diagnostic Code 5268 nor Diagnostic Code 5259 is applicable in this case. The Veteran is currently rated at 10 percent for instability in both knees based on his subjective reporting of his knees giving out. However, while the Veteran has reported instability, and been assigned compensable ratings based on such complaints, clinical testing has not uncovered any objective evidence of instability. Specifically, joint instability tests involving anterior instability, posterior instability, and medial lateral instability have been conducted in May 2013, April 2014, and May 2016, but were consistently found to be normal. Under Diagnostic Code 5257, a higher rating of 20 percent is assigned when moderate instability is found. The Board notes that words such as mild, moderate, and severe are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Here, the Veteran was assigned compensable ratings for both knees to address the mild instability. However, without any clinical evidence of instability, the Board cannot find moderate instability in either knee to support the assignment of a higher rating. The Board will now consider whether a separate compensable rating is warranted based on limitation of motion. 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 (DC 5200 etc.). When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 pct 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. With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. At the 2016 VA examination, the examiner wrote that the Veteran's overall presentation was most consistent with bilateral knee osteoarthritis, although x-rays did show degenerative changes in both knees. The examiner explained that while the Veteran was currently service connected for bilateral chondromalacia, he was of the opinion that bilateral knee osteoarthritis would be a more accurate diagnosis at this point. However, the examiner clarified that both of these are degenerative processes and moreover osteoarthritis represents a progression from his previous diagnosis of chondromalacia. The examiner noted that the arthritis had been present since 2006. As noted above, the Veteran has consistently demonstrated limitation of motion in both knees throughout the course of his appeal, as well as pain on motion. Accordingly, the Board assigns separate 10 percent ratings for each knee based on the presence of arthritis with pain and limitation of motion. The Board will no consider whether a rating in excess of 10 percent is warranted for either knee based on limitation of motion. Under Diagnostic Code 5261, a 10 percent disability rating is assigned when extension is limited to 10 degrees, and a 20 percent disability rating is assigned when extension is limited to 15 degrees. A 30 percent disability rating is assigned when extension is limited to 20 degrees, and a 40 percent disability rating is assigned when extension is limited to 30 degrees. Finally, a 50 percent disability rating is assigned when extension is limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. However, a separate rating under diagnostic Code 5261 is not warranted in this cases because at no point during the appeal did the Veteran demonstrate limited extension in either knee. At his March 2013, April 2014, and May 2016 VA examinations the Veteran consistently demonstrated full extension on range of motion testing. Under 5260, a rating in excess of 10 percent is warranted when the range of motion of a knee is functionally limited to 30 degrees or less. Here, the flexion in the Veteran's right knee was most limited at the most recent examination when he only had 40 degrees of flexion. The flexion in the left knee has reached at least 90 degrees at all of his examinations during the course of the appeal. As such, a rating in excess of 10 percent is not warranted for either knee based on limitation of flexion. In reaching this conclusion, the Board has considered whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. Additionally, painful motion is an important factor of disability; and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Here, as noted, the Veteran's range of motion was most limited at his 2016 VA examination when flexion was limited to 40 degrees. However, even then, the Veteran was able to complete repetitive motion testing without experiencing additional pain or additional loss of flexion, and the examiner noted that pain, weakness, fatigability and incoordination did not significantly limit the functional ability of either knee with repeated use over a period of time. With regard to the left knee, the Veteran consistently demonstrated flexion to at least 90 degrees and it was not suggested that repetitive motion or flare-ups so limited the left knee so as to warrant a higher rating. As such, the Board does not find the range of motion in either knee to be functionally limited beyond what was shown on clinical testing. While the Veteran undoubtedly experiences pain in both knees, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id. As discussed here, the Veteran's pain limited his range of motion, but it did not so functionally limit the range of motion in either knee as to approximate the criteria for a 20 percent rating based on either limitation of extension or limitation of flexion. The Veteran has submitted lay statements, testifying to his subjective complaints of pain, limited motion and mobility, and these statements have been taken into account in assigning the separate ratings for arthritis and limitation of motion. ORDER A rating in excess of 10 percent for right knee instability is denied. A rating in excess of 10 percent for left knee instability is denied. A separate 10 percent rating for right knee arthritis with limitation of motion is granted, subject to the laws and regulations governing the award of monetary benefits. A separate 10 percent rating for left knee arthritis with limitation of motion is granted is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs