Citation Nr: 18151099 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 10-11 262 DATE: November 16, 2018 ORDER Entitlement to an increased evaluation for degenerative joint disease with severe osteopenia and limited extension, left knee, currently rated as 40 percent disabling is denied. Entitlement to an increased evaluation for degenerative joint disease with severe osteopenia and limited extension, right knee, currently rated as 40 percent disabling is denied. FINDINGS OF FACT 1. There is no objective evidence of the Veteran’s left knee flexion limited to 45 degrees or less; extension limited to 45 degrees or more; recurrent subluxation or objective evidence of slight lateral instability; dislocated semilunar cartilage with frequent locking, pain, or effusion into the joint; impairment of the tibia or fibula; or objective evidence of ankylosis, including on repetitive use and/or during flare-ups. 2. There is no objective evidence of the Veteran’s right knee flexion limited to 45 degrees or less; extension limited to 45 degrees or more; recurrent subluxation or objective evidence of slight lateral instability; dislocated semilunar cartilage with frequent locking, pain, or effusion into the joint; impairment of the tibia or fibula; or objective evidence of ankylosis, including on repetitive use and/or during flare-ups. 3. The rating criteria reasonably describe the level of severity and symptomatology of the Veteran’s left and right knee disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to an increased evaluation for degenerative joint disease with severe osteopenia and limited extension, left knee, currently rated as 40 percent disabling have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.21, 4.31, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003-5261 (2017). 2. The criteria for entitlement to an increased evaluation for degenerative joint disease with severe osteopenia and limited extension, right knee, currently rated as 40 percent disabling have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.21, 4.31, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003-5261. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from November 1969 to September 1971 and from October 1972 to October 1974. He died in August 2011 and the appellant, his surviving spouse, has been substituted as the claimant for the purposes of processing the claim to completion. See 38 U.S.C. § 5121A (2012). In March 2017, the appellant appeared at a hearing held at the Regional Office (RO) before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In July 2017, the Board denied the claims of entitlement to increased evaluations for the left and right knee disabilities, entitlement to special monthly compensation (SMC) based on aid and attendance/housebound, entitlement to automobile and/or adaptive use equipment, and granted the claim of entitlement to a total disability evaluation based on individual unemployability (TDIU). A May 2018 Court of Appeals for Veterans Claims (Court) order vacated the Board’s decision with respect to the denial of the issues of entitlement to increased evaluations for the left and right knee disabilities, and adopted a Joint Motion for Partial Remand (JMPR) for reconsideration of the Veteran’s claim. The Court specified that the remaining issues considered in the Board’s July 2017 decision should remain undisturbed. The claim has since been returned to the Board for further consideration. The issues of entitlement to an increased rating for lumbar spine and posttraumatic stress disorder (PTSD), as well as entitlement to service connection for immune system disorder, bad teeth, fibromyalgia, rheumatoid arthritis, cervical spine, hip replacement, diabetes mellitus type II, renal failure, and ischemic heart disease were deferred by the Agency of Original Jurisdiction (AOJ) in June 2016. The AOJ also deferred the issues of entitlement to compensation under 38 U.S.C. § 1151 (2012) for residuals of stroke and blindness due to VA medical treatment. In March 2017, the Board received testimony on the 38 U.S.C. § 1151 claims. In May 2018, the Court implied that a claim for SMC based on loss of use of the Veteran’s feet may have been raised by the record. However, the Board does not have jurisdiction over any of the above listed issues, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). Increased Evaluations 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, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 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 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 condition. 38 C.F.R. § 4.14 (2017); Esteban v. Brown, 6 Vet. App. 259, 262 (1994). While it is necessary to consider the complete medical history of the Veteran’s condition in order to evaluate the level of disability and any changes in condition, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); Francisco v. Brown, 7 Vet. App. 55 (1994). In deciding the Veteran’s increased evaluation claim, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 21 Vet. App. 505 (2007), and whether the Veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. The claimant bears the burden of presenting and supporting his/her claim for benefits. 38 U.S.C. § 5107(a). See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). In its evaluation, the Board shall consider all information and lay and medical evidence of record. 38 U.S.C. § 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Entitlement to increased evaluations for degenerative joint disease with severe osteopenia and limited extension, left knee and/or right knee, each currently rated as 40 percent disabling. Included within 38 C.F.R. § 4.71a are multiple Diagnostic Codes (DC) that evaluate impairment resulting from service-connected knee disorders, including DC 5256 (ankylosis), DC 5257 (other impairment, including recurrent subluxation or lateral instability), DC 5258 (dislocated semilunar cartilage), DC 5259 (symptomatic removal of semilunar cartilage), DC 5260 (limitation of flexion), DC 5261 (limitation of extension), DC 5262 (impairment of the tibia and fibula), and DC 5263 (genu recurvatum). The criteria of DC 5256 pertain to ankylosis. Ankylosis refers to immobility and consolidation of a joint due to disease, injury, or surgical procedure). See Shipwash v. Brown, 8 Vet. App. 218, 221 (1995) (citing DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 91 (27th ed. 1988). According to DC 5257, a 10 percent rating will be assigned with evidence of slight recurrent subluxation or lateral instability of a knee; a 20 percent rating will be assigned with evidence of moderate recurrent subluxation or lateral instability; and a 30 percent rating will be assigned with evidence of severe recurrent subluxation or lateral instability. Under DC 5258, a 20 percent rating is warranted for dislocation of semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint. Under DC 5259, a 10 percent rating is warranted for symptomatic removal of semilunar cartilage. Under DC 5003, degenerative arthritis, when established by X-ray findings, will be rated on the basis of limitation of motion under the appropriate DCs for the specific joint or joints involved. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate DCs, 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 DC 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. The DCs that focus on limitation of motion of the knee are DCs 5260 and 5261. Normal range of motion of the knee is to zero degrees extension and to 140 degrees flexion. See 38 C.F.R. § 4.71a, Plate II. Under DC 5260, a noncompensable rating will be assigned for limitation of flexion of the leg to 60 degrees; a 10 percent rating will be assigned for limitation of flexion of the leg to 45 degrees; a 20 percent rating will be assigned for limitation of flexion of the leg to 30 degrees; and a 30 percent rating will be assigned for limitation of flexion of the leg to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. Under DC 5261, a noncompensable rating will be assigned for limitation of extension of the leg to 5 degrees; a 10 percent rating will be assigned for limitation of extension of the leg to 10 degrees; a 20 percent rating will be assigned for limitation of extension of the leg to 15 degrees; a 30 percent rating will be assigned for limitation of extension of the leg to 20 degrees; a 40 percent rating will be assigned for limitation of extension of the leg to 30 degrees; and a 50 percent rating will be assigned for limitation of extension of the leg to 45 degrees. 38 C.F.R. § 4.71a, DC 5261. The criteria of DC 5055 evaluate impairment arising from the prosthetic replacement of a knee joint. For one year following the implantation of a knee prosthesis, a 100 percent disability rating is assigned. Thereafter, the minimum disability rating which may be assigned, post-knee replacement is 30 percent. A 60 percent disability rating is assigned for chronic residuals consisting of severe painful motion or weakness in the affected extremity. With intermediate degrees of residual weakness, pain or limitation of motion, adjudicators are instructed to rate by analogy to DCs 5256 (knee ankylosis), 5261 (limitation of leg extension), or 5262 (impairment of the tibia and fibula). VA regulations also instruct that evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that 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. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45. Notably, the Court has held that pain alone does not equate with functional loss under 38 C.F.R. §§ 4.40 and 4.45 but may cause functional loss if affecting some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, and endurance. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The provisions of 38 C.F.R. §§ 4.40 and 4.45 do not apply to DC 5257 as those criteria are not predicated on loss of range of motion. See Johnson v. Brown, 9 Vet. App. 7, 11 (1996). Painful motion with joint or periarticular pathology and unstable joints due to healed injury are recognized as productive of disability entitled to at least a minimal compensable rating for the joint. 38 C.F.R. § 4.59. The application of 38 C.F.R. § 4.59 is not limited to arthritis-related claims. Burton v. Shinseki, 25 Vet. App. 1 (2011). In general, separate disability 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 condition. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Court has also held that “within a particular diagnostic code, a claimant is not entitled to more than one disability rating for a single disability unless the regulation expressly provides otherwise.” Cullen v. Shinseki, 24 Vet. App. 74 (2010). VA’s Office of General Counsel has stated that compensating a claimant for separate functional impairment under DCs 5257 and 5003 does not constitute pyramiding. VAOPGCPREC 23-97 (July 1, 1997). In this opinion, the VA General Counsel held that a Veteran who has arthritis and instability of the knee may be rated separately under DCs 5003 and 5257, provided that a separate rating is based upon additional disability. Subsequently, in VAOPGCPREC 9-98 (Aug. 14, 1998), the VA General Counsel further explained that if a Veteran has a disability rating under DC 5257 for instability of the knee, and there is also x-ray evidence of arthritis, a separate rating for arthritis could also be based on painful motion under 38 C.F.R. § 4.59. See also VAOPGCPREC 9-04 (Sept. 17, 2004) (which finds that separate ratings under DC 5260 for limitation of flexion of the leg and DC 5261 for limitation of extension of the leg may be assigned for disability of the same joint). Descriptive words, such as “slight,” “moderate” and “severe,” are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. The use of descriptive terminology by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision. 38 U.S.C. § 7104(a); 38 C.F.R. §§ 4.2, 4.6 (2017). The Veteran’s service-connected left knee and right knee degenerative joint disease with severe osteopenia and limited extension has been rated as 40 percent disabling for each knee under Diagnostic Code 5003-5261, based on limitation of extension. Hyphenated DCs, such as the one utilized here, are used when a rating under one DC requires use of an additional DC to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27 (2017). For reasons discussed below, the Board finds that an evaluation greater than 40 percent is not warranted for either the Veteran’s left or right knee disabilities. The Veteran’s most recent and pertinent VA examination for his knees was in May 2008. Range of motion testing of the Veteran’s right knee showed extension 0-40 degrees, and flexion 40 to 80 degrees. Range of motion testing of the Veteran’s left knee showed extension to 30 degrees, and flexion 30 to 80 degrees. The Veteran reported a pain level of 9 out of 10 during flare-ups. The examiner noted that range of motion is additionally limited by pain, fatigue, weakness, and lack of endurance. However, there was no incoordination after repetitive use. The examiner commented that both knees are very stable with varus and valgus, anterior, posterior drawer. The Veteran complained of extreme tenderness over the medial and lateral joint, but there was no effusion. X-ray findings disclosed severe joint disease of bilateral knees with severe osteopenia of the knee joint. The examiner remarked that the Veteran’s severe osteopenia is likely due to his renal failure. The Veteran received some VA treatment for complaints of knee pain through 2010. According to a January 2010 VA record, the Veteran had decreased knee flexion bilaterally at 90 degrees, with extension of -20 degrees on the left, and extension of -15 degrees on the right. A February 2010 VA physician’s letter stated that the Veteran was developing “progressive inability to walk due to limited range of motion as well as pain of the knees bilaterally” and was “currently unable to straighten his legs which prevents him from walking.” A July 2010 private letter from Dr. R. Hoxie stated that the Veteran “has ankylosis of both knees, which has resulted in limited extension of his knees.” The Board notes that it is unclear from these records as to the exact testing requirements or how they were measured. Unfortunately, the Veteran died in August 2011 and there were no additional knee measurements performed. As such, the Board places particular weight on the May 2008 VA examination. The competent and credible evidence of record indicates that the Veteran extension had been limited to 30 degrees extension in his left knee and 40 degrees extension in his right knee, including on repetitive use and/or during flare-ups. This entitles the Veteran to a 40 percent rating for limitation of extension. The Board likewise finds that the Veteran was not entitled to a higher rating for limitation of extension as there is no evidence, medical or lay, that the Veteran’s extension was limited to more than 30 degrees, which is required for the next higher rating. The Board has considered other DC and finds that the Veteran is not entitled to a higher rating under any other codes not already discussed. The Board notes that the July 2010 report from Dr. R. Hoxie mentioned that the Veteran suffers from ankylosis in both knees. Ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Lewis v. Derwinski, 3 Vet. App. 259 (1992). In other words, ankylosis by definition means no movement of the joint. However, the May 2008 VA examiner, as well as additional treatment through at least early 2010 confirms that there was movement in both knee joints, albeit somewhat limited. This stated finding from Dr. R. Hoxie makes an ultimate conclusory finding of ankylosis factually impossible. Therefore, the Board does not assign any probative value to Dr. R. Hoxie’s findings of ankylosis in both knees. There is no other competent or credible evidence of ankylosis at any other point during the period on appeal. As a compensable rating has been assigned for motion loss, a separate rating for arthritis with painful motion is not warranted under DC 5003-5010. As there is no history or lay evidence of malunion or nonunion of the tibia and fibula, or genu recurvatum, the criteria of DCs 5262 and 5263 also do not apply. The Board has further considered whether factors including functional impairment and pain as addressed under 38 C.F.R. §§ 4.40 and 4.45 would warrant higher ratings. See DeLuca, 8 Vet. App. at 202. However, higher ratings for the Veteran’s left and right knee disabilities are not warranted with consideration of these provisions. The Veteran’s complaints of discomfort and pain were considered and have been taken into account in the current rating assignments. The evidence of record does not reveal a lack of instability of the ligaments of the left or right knee on objective testing under DC 5257. While the Veteran was sincere in his report of any symptoms of instability, with respect to the presence of instability, or lack thereof, the Board places greater probative weight on the various medical reports that have repeatedly and consistently noted a lack of instability. The Board notes that the Veteran had stated pain varied in intensity, and he had reported his knees feeling like they would give way, locking up, instability, pain, stiffness, incoordination, and weakness. However, on examination, flexion was never limited to greater 45 degrees or less, and extension of the left and right knees was never greater than 30 degrees. Additionally, there was no grinding, no instability, no patellar abnormality, no meniscus abnormality and no abnormal tendons or bursae. Thus, based on the Veteran’s reported history, even if there was additional limitation of motion during any flare-ups that were extreme, based on the Veteran’s reported functional ability, the Board finds that the overall impairment resulting from his right knee disability would still more closely approximate no more than a 40 percent evaluation. Thus, a disability rating more than 40 percent is not warranted. Any other potentially applicable DCs would constitute impermissible pyramiding. Accordingly, the Board finds against a rating in excess of 40 percent for left and right knee degenerative joint disease with severe osteopenia and limited extension, during the appeal period. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is inapplicable. 38 U.S.C. § 5107. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Miller, Associate Counsel