Citation Nr: 18159965 Decision Date: 12/20/18 Archive Date: 12/20/18 DOCKET NO. 16-59 791 DATE: December 20, 2018 ORDER Entitlement to an evaluation in excess of 10 percent for osteoarthritis, left knee is denied. Entitlement to an evaluation in excess of 10 percent for degenerative joint disease of the right knee is denied. FINDINGS OF FACT 1. The competent and probative evidence shows the Veteran has at worst left knee flexion of 85 degrees, and extension of 0 degrees. 2. The competent and probative evidence shows the Veteran has at worst right knee flexion of 90 degrees, and extension of 0 degrees. CONCLUSIONS OF LAW 1. Entitlement to a rating in excess of 10 percent for osteoarthritis, left knee have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.321(b)(1), 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5260 (2017). 2. Entitlement to a rating in excess of 10 percent for degenerative joint disease of the right knee have not been met. U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102. 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5010-5260 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1945 to January 1949. The Veteran's claims come before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision of the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In July 2017, the Veteran testified before the undersigned Veterans Law Judge. A copy of the hearing transcript has been associated with the claims file. Laws and Regulations Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). Pertinent regulations also provide that it is not necessary for all of the individual criteria to be present as set forth in the Rating Schedule, but that findings sufficient to identify the disability and level of impairment be considered. 38 C.F.R. § 4.21 (2017). If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). DC 5003 assigns a disability rating for degenerative arthritis established by x-ray findings on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint(s) involved under DC 5200 etc. However, when the limitation of motion of specific joint(s) is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is assigned for each 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. Under DC 5260, a noncompensable rating will be assigned for limitation of flexion of the knee to 60 degrees, a 10 percent rating will be assigned for limitation of flexion of the knee to 45 degrees, a 20 percent rating will be assigned for limitation of flexion of the knee to 30 degrees, and a 30 percent rating will be assigned for limitation of flexion of the knee to 15 degrees. Under DC 5261, a 10 percent disability rating is warranted for knee extension limited to 10 degrees, a 20 percent disability rating is assigned for extension limited to 15 degrees, a 30 percent disability rating is assigned for extension limited to 20 degrees, a 40 percent disability rating is assigned for extension limited to 30 degrees, and a 50 percent disability rating is assigned for extension limited to 45 degrees. Under DC 5257, a rating of 10 percent is warranted when there is slight recurrent subluxation or lateral instability; a 20 percent rating is warranted when there is moderate recurrent subluxation or lateral instability; and a 30 percent rating is warranted when there is severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a. The Board notes that terms such as "slight", "moderate", and "severe" are not defined in the Rating Schedule. However, "severe" is defined as "of a great degree." Under DC 5262, impairment of the tibia and fibula warrants a 10 percent rating where there is malunion of the tibia and fibula with slight ankle or knee disability. A 20 percent rating is warranted where there is malunion of the tibia and fibula with moderate ankle or knee disability. A 30 percent rating is warranted where there is malunion of the tibia and fibula with marked ankle or knee disability. A maximum 40 percent rating is warranted for nonunion of the tibia and fibula with loose motion, requiring brace. DC 5256 governs ankylosis of the knee and permits a 30 percent rating for favorable angle in full extension, or in slight flexion between 0 degrees and 10 degrees, while a 40 percent rating is called for with flexion between 10 and 20 degrees, and a 50 percent rating for flexion between 20 and 45 degrees. Extremely unfavorable ankylosis, with flexion at an angle of 45 degrees or more warrants a maximum 60 percent evaluation. Under DC 5258, dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint warrants a 20 percent evaluation. Under DC 5259, symptomatic removal of semilunar cartilage warrants a 10 percent rating. The VA General Counsel held that a knee disability may receive separate ratings under diagnostic codes evaluating instability (Code 5257) and those evaluating range of motion (Codes 5003, 5010, 5256, 5260, and 5261). See VAOPGCPREC 23-97. Additionally, the General Counsel held that separate ratings under Code 5260 (limitation of flexion of a knee) and Code 5261 (limitation of extension of a knee) may be assigned for disability of the same joint. See VAOPGCPREC 9-2004. Normal range of knee motion is 140 degrees of flexion and zero degrees of extension. 38 C.F.R. § 4.71, Plate II. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id. Evidence By way of history, in a November 1950 rating decision, the RO granted service connection for torn semilunar cartilage of the left knee and assigned a 20 percent rating under Diagnostic Code 5258 effective August 25, 1950. A March 1951 rating decision assigned an earlier effective date of December 12, 1949. A February 1961 rating decision reduced the 20 percent rating to a 10 percent rating and reassigned the disability to Diagnostic Code 5257 effective April 24, 1961. In an April 1993 rating decision, the 10 percent evaluation was continued. In a January 2009 rating decision, the RO recharacterized the disability as “osteoarthritis, left knee formally rated as residuals of torn semilunar cartilage, left knee” and continued the 10 percent rating but reassigned the disability to Diagnostic Code 5260. The RO also denied service connection for a right knee condition, which the Veteran appealed to the Board. In a November 2012 rating decision, the RO granted service connection for right knee, degenerative joint disease and assigned a 10 percent rating under Diagnostic Code 5261 effective July 21, 2008. The disability rating was based on painful motion. In a November 2013 rating decision, the RO continued the left knee evaluation. The Veteran filed the instant claim for an increased rating for both knees in May 2014. In a September 2014 rating decision the evaluations were continued. Notably, the code sheet shows that the RO reassigned the right knee to Diagnostic Code “5010-5260.” In a September 2018 rating decision, the RO granted service connection for scars of the lower extremity as secondary to the right knee degenerative joint disease and assigned a noncompensable evaluation under Diagnostic Code 7805 effective October 23, 2008. The July 2014 VA examination report noted a diagnosis of osteoarthritis affecting the knees. The Veteran complained of progressive pain, stiffness, and weakness of his knees and lower legs. He reported that flare-ups impacted the function of the knees with prolonged walking, standing, sitting, squats, stairs, lifting, and carrying. Initial range of motion indicated that the Veteran’s bilateral knee flexion ended at 125 degrees. The objective evidence of painful motion began at 125. The Veteran’s bilateral knee extension ended at 0. After the Veteran performed the repetitive-use tests with three repetitions, his bilateral knee flexion ended at 125 degrees. The knee extension was reported as having no limitation of extension and no objective evidence for painful motion. There was no additional limitation in range of motion following repetitive-use testing. The Veteran was reported to have functional loss and/or functional impairment of his knees. The contributing factors to his functional loss were knees having “less movement than normal” and “pain on movement”. Pain on palpation for his joint line or soft tissue was reported. Muscle strength testing showed normal strength. The joint stability test was normal. There was no evidence of history of patellar dislocation. The Veteran reported that flare-ups impacted the function of his knees. A history of arthroscopic surgery for cartilage debridement in 1960 was noted. The symptoms of this surgery were arthrofibrosis and joint line tenderness. There were scars present that were related to the Veteran’s condition. The scars are reported as not being painful. The July 2014 examination report further noted that the Veteran used a wheelchair, brace, cane, and a walker all on a regular basis. The wheelchair, brace and cane were all to assist with ambulation due to the knee condition. Imaging studies of the knees showed mild arthritis. There was no x-ray evidence of patellar subluxation. The examiner indicated that the functional impact on the Veteran’s ability to work was limited prolonged standing and walking. The examiner further noted that it would be “speculative to provide accurate range of motions during a flare or after repetitive use over time since there is no flare up at the time of examination.” Information based on a hypothetical situation could not be provided. In the October 2014 notice of disagreement, the Veteran indicated that he was entitled to a 20 percent rating for both knees. He indicated that he had decreased mobility in his knees which made it difficult to get in and out of cars, use the stairs, and walk. He suffered from constant pain and swelling. He also heard grinding, cracking, and popping sounds whenever he tried to move his knees. There was loss of range of motion. There was great restriction for whatever physical activity that he attempted to engage in which made it difficult to perform every day tasks. VA treatment records include a May 2017 record that showed that the Veteran reported that he had a worsening of a bilateral “burning” sensation of the bilateral lower extremities under the knees with associated numbness. The Veteran reported that the Lyrica 75 mg, taken twice daily, and the oxycodone 5/325, taken four times daily, provided temporary relief. The Veteran took a Percocet four times a day and stated that it barely kept his pain at a manageable sensation. The Veteran stated that his pain was constant while sitting in his wheelchair. He stated that using a walker exacerbated the pain. An October 2017 VA disability benefits questionnaire examination noted a diagnosis of knee joint osteoarthritis for his knees. The Veteran reported symptoms of daily bilateral knee pain with walking and standing. He related that his bilateral knees get weak and stiff. Daily pain was diffuse; 4/10 bilaterally. He currently took Percocet for knee pain. He did not report flare-ups of the knees. The Veteran reported having functional loss or functional impairment of the joint including but not limited to repeated use over time as limiting his bilateral knee conditions in walking, standing and getting up from a chair. The Veteran’s range of motion testing for the left knee revealed active motion flexion to 85 degrees and extension to 0 degrees. Range of motion testing for the right knee revealed active motion flexion to 90 degrees and extension to 0 degrees. There was no functional loss due to range of motion. Testing pursuant to Correia was conducted and there was no change in the findings. Pain was noted on examination and it caused functional loss. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. There was evidence of pain on weight bearing but no evidence of crepitus. The Veteran was able to perform repetitive-use testing and the exam confirmed there was no additional loss of function or range of motion after three repetitions. The examination was reported as being medically consistent with the Veteran’s statements describing functional loss with repetitive use over time. The examiner noted that pain significantly limits the Veteran’s functional ability with repeated use over a period of time. The examiner could not describe this in terms of range of motion because the Veteran did not report flare ups. The examination was not being conducted during a flare up and it was noted that pain, fatigability, nor incoordination significantly limited the Veteran’s functional ability with flare ups. There were no contributing factors of disability noted. Muscle strength testing was reported as normal. No muscle atrophy was noted. No ankylosis was detected. Joint stability test showed both joints as normal. There was no recurrent patellar dislocation. There was no current left knee pain from the Veteran’s prior meniscectomy; rather, the left knee pain was from the osteoarthritis. It was noted that the Veteran was currently using a wheelchair and a walker for both conditions. The functional impact upon the Veteran’s knees was reported as bilateral knee condition limiting any job requiring standing and walking. The examiner noted scars on the knee related to the Veteran’s condition but that they were not painful or unstable. The diagnostic testing showed findings of a mild osteoarthritis directly related to the knees. VA treatment records include a record dated in August 2018 in which the Veteran reported that he had a wheelchair ramp installed at his home. The Veteran reported that he was wheelchair bound. His ability to walk around, either without any help or with a cane or walker, but not including a wheelchair was rated as not being able to walk at all. The examiner noted that the Veteran needed and received total help with wheeling. The Veteran reported that he fell three times within the week before this appointment and stated that he “felt his knees buckle.” Analysis As the summary of the medical evidence reveals, the VA examiners have consistently found that the Veteran has full extension and noncompensable limitation of motion on flexion of his knees. The Veteran does not meet the criteria for a compensable rating under DC 5260 or 5261 based on actual limitation of flexion or extension. His worst limitation of flexion was noted to be 85 degrees (left knee) and 90 degrees (right knee) at his October 2017 VA examination. He had full extension. Thus, the currently assigned 10 percent rating for each knee for painful limitation of motion under DeLuca is warranted. In so finding, the Board is cognizant that the Veteran reported on experiencing flare-ups in the past; however, at the most recent October 2017 VA examination he denied experiencing flare-ups. Thus, to the extent the Veteran may periodically experience flare-ups, the Board concludes that they are not of such length and frequency such that the level of impairment associated with the service connected bilateral knee disability is analogous to an individual who experiences impairment associated with the higher ratings chronically. Crucially, the Board further emphasizes that the Veteran’s lay statements and testimony have been carefully considered but a review of his treatment records clearly shows that the functional impairment associated with his legs has been attributed to nonservice connected disabilities. For example, in a June 2014 VA treatment record, it was noted that the Veteran was largely confined to a motorized wheelchair. He was last seen in February at which time he had his Lyrica gradually increased for his neuropathic leg and feet pain. He tolerated the pain medication well but he denied any improvement of his pain. The Veteran stated that when he walked with a cane for approximately one half blocks he experienced pain in his lower extremities and his legs went numb. He also complained of focal knee pain while gardening and occasional giving out due to pain but he denied “locking” of the knees. The examiner noted that the Veteran’s lower extremity pain was secondary to neurogenic claudication and/or peripheral neuropathy and that his knee pain was likely secondary to the progression of his osteoarthritis. The July 2014 x-rays only revealed “very mild” degenerative changes of the knees. A March 2015 record showed that the Veteran complained of pain in his lower back and hips while standing and sitting on a hard surface. He indicated that he had experienced back issues for 30 years and that he could not walk too far so he used a motorized wheelchair. His wife assisted him with the activities of daily living and he had equipment in his shower to assist him. He experienced pain in his hips; he could not stand too long because his legs gave out due to the “fire” sensation and numbness so he tended to fall. A May 2016 record noted that the Veteran was recently hospitalized due to low back pain. The pain was in the lower back/sacral area and radiated to both knees. The assessment included low back pain and right hip pain secondary to severe spinal stenosis and hip osteoarthritis. A May 2017 record showed the Veteran continued to complain of bilateral lower extremity pain. The pain was constant while sitting in his wheelchair and use of the walker to ambulate exacerbated the pain. A July 2017 record showed the Veteran continued to complain of bilateral lower extremity burning pain. He had been treated with a caudal epidural and he thought the effect had been wearing off. His pain level went up when he walked. It was noted that a June 2017 EMG revealed electrodiagnostic evidence of a sensorimotor polyneuropathy affecting his lower extremities. A November 2017 record noted that the Veteran continued to complain of bilateral lower extremity pain described as a “blow torch on both legs.” The pain was worse with walking; he barely walked at home and used a wheelchair for mobilization. The physical examination showed the Veteran was unable to stand due to pain. There was numbness over the lower extremities below the knees. A November 2018 record noted that the Veteran had chronic low back pain and a prior history of lumbar spine surgery and multiple epidurals. He had fallen three times in the past week. He fell while using his walker; he felt his knees buckle. Thus, the Veteran’s use of assistive devices (cane, wheel chair, and walker) are clearly due to his severe low back disability and neurological condition affecting his lower extremities notwithstanding the notations suggesting otherwise in the VA examination reports. Based on all of the foregoing, the Board is not persuaded that the day-to-day functional impairment described as limitation in walking, standing, and sitting associated with the Veteran’s legs is attributable to the service-connected mild arthritic condition associated with the Veteran’s knees. Additionally, the Veteran is not entitled to a higher rating under any other potentially applicable diagnostic code. A rating under Diagnostic Code 5256 is not warranted as the Veteran's knees have not demonstrated ankylosis at any point during the appeal period. In regard to Diagnostic Code 5257, although the Veteran has complained of knee instability, the evidence of record shows no objective evidence of recurrent instability or subluxation on joint stability testing that can be attributed to the service connected bilateral knee disability. As discussed above, the symptoms of weakness the Veteran experiences have been associated with nonservice connected disabilities. Accordingly, the Board finds that a separate rating for instability or subluxation under Diagnostic Code 5257 is not warranted. Lastly, while the Veteran does have a history of meniscal condition associated with his knees, the VA examiners have indicated that the current condition is arthritis. This is consistent with the x-ray and MRI findings noted in the Veteran’s VA treatment records. Thus, ratings under Diagnostic Codes 5258 and 5259 are not appropriate. The Board has considered the statements submitted by the Veteran in support of the claim, specifically that his functional capacity is limited beyond what is set forth in his current rating, and the Board is sympathetic to the Veteran's complaints. However, the Board finds that the Veteran is a lay person and though is competent to report observable symptoms he experiences through his senses such as pain and stiffness he is not competent to identify a specific level of disability according to the appropriate diagnostic codes. Layno v. Brown, 6 Vet. App. 465 (1994). The identification of a knee disability and the determination of the range of motion of the knee requires medical expertise that the Veteran has not shown he possesses. Determining whether the Veteran meets some of the criteria for a higher rating requires medical diagnostic testing. Competent evidence concerning the nature and extent of the Veteran's left and right knee disabilities has been provided by the medical personnel who have examined him and who have made pertinent clinical findings in conjunction with the examinations. The medical findings, as provided in the examination reports, directly address the criteria under which his disability is rated. The Board finds that evidence is the most persuasive and outweighs the Veteran's statements in support of his claim. For the foregoing reasons, the Board finds that ratings in excess of 10 percent for the Veteran's service-connected right knee degenerative joint disease and left knee osteoarthritis are not warranted. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine; however, the preponderance of evidence is against the claim so the rule is not applicable. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). The Veteran has not raised any other issues with respect to the increased rating claim, nor have any other assertions been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. C. Roberson; Law Clerk