Citation Nr: 18147094 Decision Date: 11/05/18 Archive Date: 11/02/18 DOCKET NO. 16-17 675 DATE: November 5, 2018 ORDER A rating in excess of the protected 10 percent for right knee instability is denied. From April 23, 2014, a separate 20 percent rating for right knee surgery residuals manifested by limitation of extension is granted. From April 23, 2014, a rating of 20 percent, but no higher, for painful and unstable right knee scars is granted. FINDINGS OF FACT 1. Throughout the appeal, the Veteran’s right knee surgery residuals have been manifested by symptoms more closely approximating slight instability. 2. Throughout the appeal, the Veteran’s right knee surgery residuals have been manifested by traumatic arthritis with limitation of flexion more closely approximating flexion to more than 60 degrees, and limitation of extension more closely approximating extension to 15 degrees, even when considering pain, but not ankylosis. 3. Throughout the appeal, the Veteran has had two painful right knee scars, one of which is also unstable. CONCLUSIONS OF LAW 1. The criteria for rating in excess of the protected rating of 10 percent for right knee instability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.951, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5010, 5257. 2. Throughout the appeal, the criteria for a separate 20 percent rating for limitation of extension of the right knee are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DCs 5010, 5261. 3. Throughout the appeal, the criteria for a rating of 20 percent, but no higher, for painful and unstable right knee scars are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.118, DCs 7804, 7805. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from May 1988 to May 1992, with additional Reserve service. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that since the July 2014 denial of service connection for type II diabetes, the Veteran has reiterated his assertion that the condition is related to his inability to exercise due to his right knee disability. See April 2016 VA Form 9. He is encouraged to file a claim to re-open on the appropriate VA-promulgated form should he wish to pursue this claim. Increased Rating for Right Knee The Veteran asserts that his right knee disability has gotten worse since he was rated at 20 percent in 2001. He states that he is entitled to a rating of 40 percent, as his knee extension is limited to 10 degrees, his extension and flexion are painful, after standing or sitting his knee swells and impairs his ability to “do anything,” and his knee locking suggests instability. See April 2016 VA Form 9. 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 represent, as far as can practicably be determined, the average impairment in earning capacity in civil occupations. 38 U.S.C. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. If two disability ratings 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. Reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. 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, 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). The Veteran is in receipt of a 10 percent rating for his right knee surgery residuals effective March 1997, and a 20 percent rating effective January 2001, as well as a 10 percent rating for his painful right knee scars effective March 24, 2016. The appeal period is from the date VA received the Veteran’s claim for an increased rating, April 23, 2014, plus the one-year “look back” period. Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010). The Veteran’s right knee surgery residuals are presently rated at 20 percent disabling under DC 5010-5257. The Board observes that since 1997, the Veteran has been in receipt of at least a 10 percent rating for instability of the right knee (DC 5010-5257). Thus, the Veteran’s 10 percent rating for right knee instability is protected from change, absent exceptional circumstances not present here. See 38 C.F.R. § 3.951. DC 5010 provides that traumatic arthritis is rated as degenerative arthritis (DC 5003). DC 5003 provides 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. 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, to be combined, not added under 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, DC 5003. In the absence of limitation of motion, a 10 percent rating is warranted for involvement of two or more major joints or two or more minor joint groups, and a 20 percent rating is warranted for involvement of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations. Id. Pursuant to DC 5257, 10, 20, and 30 percent ratings for instability are assigned depending on whether the impairment of the knee, involving either recurrent subluxation or lateral instability, is slight, moderate, or severe, respectively. 38 C.F.R. § 4.71a, DC 5257. Under DC 5260, a noncompensable rating is assigned for leg flexion limited to 60 degrees. A 10 percent rating is assigned for flexion limited to 45 degrees, and a 20 percent rating is assigned for flexion limited to 30 degrees, with higher ratings available for more severe limitation. 38 C.F.R. § 4.71a, DC 5260. Under DC 5261, a noncompensable rating is assigned for leg extension limited to 5 degrees, a 10 percent rating is assigned for extension limited to 10 degrees, a 20 percent rating is assigned for extension limited to 15 degrees, and a 30 percent rating is assigned for extension limited to 20 degrees, with higher ratings available for more severe limitation. 38 C.F.R. § 4.71a, DC 5261. Separate knee evaluations for limitation of motion and instability under the appropriate diagnostic codes may be assigned when specific symptoms are shown. See VAOPGCPREC 23-97; see also VAOPGCPREC 9-98. As a preliminary matter, the Board notes that although the Veteran presented for VA examinations in July 2014, March 2016, and February 2018, only the February 2018 VA examination is compliant with the requirements set forth by Correia v. McDonald, 28 Vet. App. 158 (2016). Accordingly, the Board’s analysis will focus on that examination report, as it is the only adequate examination of record. However, the Board will discuss and consider all evidence in the non-compliant examination reports that is more favorable to the Veteran than the February 2018 examination findings. The Veteran has a diagnosis of degenerative joint disease of the right knee with bony deformity, status post-Fulkerson realignment surgery, with retained hardware. See February 2018 VA Examination Report. He underwent multiple right knee surgeries during his active service after his knee dislocated, including a Fulkerson osteotomy and additional surgery after infection developed. Id. He has been advised by multiple doctors that his disability warrants a total knee replacement, although there is no indication that such replacement is imminent or has occurred. See id., December 2001 Dr. R.W.C. Letter. At the February 2018 VA examination, the Veteran reported right knee pain, which he described as a dull, aching, and constant moderately severe pain. He also reported stiffness with prolonged standing and walking, that sometimes his right knee swells and locks, that he had painful scars on his knee, and that when he moved his knee to relieve the scar pain he experienced pain inside the knee joint, swelling, and giving way. The Veteran stated he had tried every kind of knee brace, including the Donjoy, but that no brace helped him, and that he treated his knee with ice and Advil. He reported that when he was on his feet for a long time, he experienced flare-ups and his condition worsened at night. The Veteran stated that he could no longer exercise due to his knee disability, and that after using an elliptical machine he would limp to his car. The examiner noted right knee range of motion was from zero to 70 degrees with pain on flexion, and from 70 to zero degrees with pain on extension. The examiner endorsed pain on weight bearing, objective crepitus, and tenderness and pain on light touch. He conducted active and passive range of motion testing, in weight-bearing and non-weight bearing, opposite joint testing, and range of motion testing after three repetitions, without observing further range of motion loss. The examiner indicated that the examination was not conducted during a flare-up or after repetitive use over time; that the examination results were consistent with the Veteran’s reports of functional loss due to during a flare-up; that the examination results were neither consistent nor inconsistent with the Veteran’s reports of functional loss after repetitive use over time; that pain would significantly limit the Veteran’s functional ability during a flare-up or after repetitive use over time. The examiner also noted that the additional factors contributing to the Veteran’s right knee disability included less movement than normal, swelling, deformity, disturbance of locomotion, interference with sitting, and interference with standing. He noted normal muscle strength, no muscle atrophy, no ankylosis, no instability after joint testing, no meniscal condition, and no history of recurrent subluxation, instability, or effusion. The Board finds that the Veteran is not entitled to a rating for right knee instability higher than his protected rating of 10 percent under DC 5010-5257. The evidence of record shows that the Veteran’s right knee disability has not been productive of more than slight instability throughout the appeal. None of the VA examination reports during the appeal period documented recurrent reports of subluxation and/or instability, and objective stability testing has been normal. While the Veteran stated at the July 2014 VA examination that he had more trouble moving around than he had at his last examination in 2001, where he reported his right knee occasionally gave out, he also stated that his symptoms were consistent. See July 2014 VA Examination Report. Moreover, while he indicated instability of the right knee by reporting that his knee gave way at the March 2016 and February 2018 examinations, he also reported that his symptoms are not improved by the use of any brace, including a Donjoy brace. See February 2018 VA Examination Report. Thus, the Board finds the competent and credible evidence of record does not support a finding of more than slight instability of the right knee. The Board finds that a separate rating of 20 percent for limitation of extension of the right leg is warranted. The Board notes that while the Veteran’s limitations of motion recorded at the February 2018 VA examination were noncompensable, the examiner noted that the Veteran would experience additional functional limitations during flare-ups and after repetitive use, and that the examination results were not inconsistent with the Veteran’s reports of swelling, locking, stiffness, and pain. Moreover, the examiner was unable to describe the additional functional loss in terms of additional limitation in motion, as the Veteran was not being observed after repetitive use or during a flare-up. However, at the July 2014 examination the Veteran exhibited right knee extension limited to 15 degrees, and that at that examination the Veteran described his flare-ups as increased swelling productive of decreased range of motion after prolonged walking or standing. Furthermore, the Board observes that the Veteran has consistently and credibly described this symptomatology over time, and also exhibited limited leg extension at the March 2016 VA Examination. See, e.g., July 2014 and February 2018 VA Examination Reports; March 2016 VA Examination Report (extension limited to 10 degrees, Veteran reported that knee swells after walking at job); April 2016 VA Form 9 (after standing or sitting knee will painfully swell to “point of being rendered unable to do anything.”). Thus, the Board finds that, after resolving all reasonable doubt in favor of the Veteran, throughout the appeal the limitation of motion of the Veteran’s right knee is more closely approximated as limitation of right leg extension to 15 degrees, and therefore concludes that he is entitled to a separate rating of 20 percent for limitation of extension throughout the appeal. 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5010-5261. The Board concludes that the Veteran is not entitled to a higher rating based on limitation of extension, nor a compensable rating based on limitation of flexion. There is no evidence in the record that he has experienced a more severe limitation of extension, nor that he has experienced a limitation of flexion that more closely approximates a compensable rating, even after taking into account the DeLuca factors. Moreover, the Veteran’s competent and credible statements regarding his pain, swelling, and loss of motion are consistent with the criteria for a 20 percent rating for limitation of extension, but not any higher rating or a compensable rating for limitation of flexion. Notably, the provisions of DC 5003 permitting a 10 percent rating where limitation of motion is otherwise noncompensable do not apply to the Veteran’s limitation of flexion, as he is in receipt of a compensable rating for his limitation of extension. Additionally, the Board has considered whether higher or separate ratings are warranted under alternate diagnostic codes. However, there is no indication of ankylosis, dislocation or removal of semilunar cartilage, tibia and fibula malunion or nonunion, or genu recurvatum. As such, ratings under DCs 5256, 5258, 5259, 5262, and 5263 are precluded. Specifically, the Board notes that while imaging indicates a post-operative screw in the Veteran’s tibia, there is no indication of malunion; and while the Veteran has reported “locking” and pain in his knee, with a history of mild effusion, there is no evidence that his semilunar cartilage has been dislocated or removed. Increased Rating for Scars The Veteran asserts that he is entitled to a 20 percent rating for his scars, and reports that his two surgical scars are very painful, and that one frequently loses skin when his knee swells. See April 2016 VA Form 9. He is currently in a receipt of a noncompensable rating for his scars pursuant to DC 7805 effective April 23, 2014, and a 10 percent rating pursuant to DC 7804 effective March 24, 2016. See 38 C.F.R. § 4.118, DCs 7804, 7805. Under DC 7804, one or two scars that are unstable or painful are rated 10 percent disabling, three or four scars that are unstable or painful are 20 percent disabling, and five or more scars that are unstable or painful are rated 30 percent disabling. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. See 38 C.F.R. § 4.118, DC 7804, Note 1. If one or more scars are both unstable and painful, the Board must add 10 percent to the evaluation that is based on the total number of unstable or painful scars. See 38 C.F.R. § 4.118, DC 7804, Note 2. Under DC 7805, any disabling effects of scars not considered under DCs 7800-7804 should be considered under the appropriate diagnostic code. 38 C.F.R. § 4.118, DC 7805. The Veteran has reported two very painful surgery scars on his right knee, one of which loses skin over the top of the scar during severe swelling. See April 2016 VA Form 9. The Board notes that it has already determined that the Veteran experienced frequent right knee swelling throughout the appeal after repetitive use during daily activities. Accordingly, under DC 7804 the Veteran is entitled to a 10 percent rating for having two painful scars, plus an additional 10 percent rating because one of these scars is also unstable, for a total of 20 percent from April 23, 2014. A higher rating under DC 7804 is not warranted as the Veteran, does not have any additional service-connected painful or unstable scars. Additionally, the Board has considered whether higher or separate ratings are warranted under alternate diagnostic codes. While the Veteran reported that his painful scars contribute to instability in his right knee, he is already being separately compensated for his knee instability, and to compensate him again for this functional loss under DC 7805 would constitute impermissible pyramiding. See February 2018 VA Examination Report; 38 C.F.R. § 4.14. S. BUSH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D.M. Badaczewski, Associate Counsel