Citation Nr: 20009684 Decision Date: 02/06/20 Archive Date: 02/05/20 DOCKET NO. 09-39 131 DATE: February 6, 2020 ORDER Entitlement to an initial evaluation in excess of 10 percent prior to March 24, 2010, and in excess of 20 percent thereafter, for right knee degenerative joint disease is denied. Entitlement to an initial evaluation in excess of 10 percent prior to March 24, 2010, and in excess of 20 percent thereafter, for left knee degenerative joint disease is denied. Entitlement to a separate rating of 10 percent for left knee lateral instability is granted, subject to the law and regulations governing the award of monetary benefits. Entitlement to a separate 10 percent rating for right knee lateral instability is granted, subject to the law and regulations governing the award of monetary benefits. FINDINGS OF FACT 1. The Veteran’s left knee disorder manifested as limitation of flexion at worst to 45 degrees with pain and swelling with full extension. Prior to March 24, 2010, there was noncompensable painful limitation of motion. 2. The Veteran’s right knee disorder manifested as limitation of flexion at worst to 45 degrees with pain and swelling with full extension. Prior to March 24, 2010, there was noncompensable painful limitation of motion. 3. The evidence is at least evenly balanced as to whether symptoms of the Veteran’s right and left knee disability have more nearly approximated slight lateral instability, but the preponderance of the evidence reflects that they have not more nearly approximated moderate lateral instability. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent prior to March 24, 2010 and in excess of 20 percent thereafter for degenerative joint disease of the left knee have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.124, Diagnostic Codes 5010-5260 (2019). 2. The criteria for a rating in excess of 10 percent prior to March 24, 2010 and in excess of 20 percent thereafter for degenerative joint disease of the right knee have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.124, Diagnostic Codes 5010-5260 (2019). 3. With reasonable doubt resolved in favor of the appellant, the criteria for a separate 10 percent rating, but no higher, for left knee lateral instability are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1 - 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5257 (2019). 4. With reasonable doubt resolved in favor of the appellant, the criteria for a separate 10 percent rating, but no higher, for left knee lateral instability are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1 - 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5257 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from October 1975 to March 1976 and from June 1977 to September 1989. He is deceased. The appellant is his wife and was properly substituted in these claims. This matter was previously decided by the Board in August 2018. It has been returned to the Board following a Joint Motion entered by the Court of Veterans Appeals for Veterans Claims. A Board hearing was held in February 2017. 1. Entitlement to an initial evaluation in excess of 10 percent prior to March 24, 2010, and in excess of 20 percent since March 24, 2010, for right knee degenerative joint disease. 2. Entitlement to an initial evaluation in excess of 10 percent prior to March 24, 2010, and in excess of 20 percent since March 24, 2010, for left knee degenerative joint disease. Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2019). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during active service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (20179). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). Prior to his death, the Veteran was in receipt of a 10 and 20 percent ratings for degenerative joint disease of the bilateral knee under Diagnostic Code 5010-5260. This was assigned when evidence revealed full extension and noncompensable limitation of flexion of the knee to less than 140 degrees. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is to recognize painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Under Diagnostic Codes 5010, 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 involves is noncompensable under the appropriate diagnostic code, a rating of 10 percent is for application for each such major joint or group of minor joints affect by limitation of motion. Under Diagnostic Code 5260, a noncompensable rating is assigned when flexion of the leg is limited to 60 degrees; a 10 percent rating is assigned when flexion is limited to 45 degrees; a 20 percent rating is assigned when flexion is limited to 30 degrees; and a 30 percent rating is assigned when flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5261, a noncompensable rating is assigned when extension of the leg is limited to 5 degrees; a 10 percent rating is assigned when extension is limited to 10 degrees; a 20 percent rating is assigned when extension is limited to 15 degrees; a 30 percent rating is assigned when extension is limited to 20 degrees; a 40 percent rating is warranted for extension limited to 30 degrees; and a 50 percent rating is assigned when extension is limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. The normal range of knee motion is 140 degrees of flexion and zero degrees of extension. 38 C.F.R. § 4.71, Plate II. The Veteran underwent a VA examination of his bilateral knees in September 2007. The Veteran reported pain, weakness, swelling, heat, redness, and locking. He denied stiffness, giving way, or fatigability. He used a cane but did not use crutches, brace, or corrective shoes. He had no history of dislocation or recurrent subluxation or inflammatory arthritis. A physical examination showed range of motion from 0 to 140 degrees bilaterally with pain reported at 140 degrees. There was no tenderness. Crepitus was +1 on the right and +3 on the left. The examiner estimated that with flares, the Veteran would have a 5 degree of loss of flexion on the right and a 10-degree loss of flexion on the left. An x-ray showed patellofemoral syndrome and degenerative joint disease with mild severity of the right and moderate severity on the left. At an April 2008 VA examination, the Veteran reported pain in his knees since service. The pain was aggravated by walking, sitting, and squatting. He had episodes of swelling and locking but no history of knees giving out or dislocation. Range of motion testing showed full extension bilaterally and flexion to 135 degrees in the right knee and to 140 degrees in the left knee with mild pain in his right knee and crepitus on motion. He was additionally limited to 130 degrees of flexion after repetitive use. In the Veteran’s November 2008 notice of disagreement, he stated that his bilateral knee disorders warrant a higher rating because he had difficulty balancing, experienced frequent leg cramps, his legs tired easily and he was sometimes unable to walk. At a hearing in March 2010 before a Decision Review Officer, the Veteran testified that he had swelling in his knees and was unable to walk more than half a block. He also reported instability causing him to fall. The Veteran was afforded a VA examination in March 2010. The Veteran reported pain in both knees, three times per week. The pain is exacerbated by walking or standing for extended periods of time. He also reported bilateral popping and swelling and buckling of the left knee. A physical examination showed flexion limited to 120 degrees on the right with a loss of 10 degrees after repetitive motion. On the left knee, the Veteran was limited to 100 degrees of flexion with a 10-degree loss after repetitive motion. The examiner estimated a 50 percent loss in range of flexion bilaterally upon a flare-up. The Veteran had full extension bilaterally. The examiner noted mild varus deformity but no laxity. X-rays showed moderately severe degenerative joint disease of the left knee and moderate degenerative joint disease of the right knee with chronic pain bilaterally. In an August 2010 rating decision, the Veteran’s ratings for his bilateral knee disorders were increased to 20 percent, effective March 24, 2010, the date of the VA examination. A July 2013 VA treatment record showed the Veteran had full range of motion of the bilateral lower extremities. The Veteran underwent a VA examination of his knees in November 2013. The examiner noted diagnoses of arthritis of the bilateral knees and a diagnostic right knee arthroscopy. The Veteran reported symptoms of pain and an inability to climb stairs or perform heavy lifting. He denied swelling, redness, and signs of infection. The Veteran did not report flare-ups. Objective testing showed range of motion of the both knees from 0 to 100 degrees. The Veteran was unable to perform repetitive use testing due to severe pain. His functional loss was due to less movement than normal and weakened movement. Muscle strength testing was 3 out of 5 bilaterally for flexion and extension. Joint stability testing was normal. There was no evidence or history of recurrent subluxation or dislocation, no tibial or fibular impairment, and no meniscal conditions. The examiner noted that his functional limitations precluded prolonged standing, walking, bending, and lifting. In a February 2017 disability benefits questionnaire (DBQ), the examiner diagnosed bilateral degenerative joint disease. The Veteran reported a worsening of his disorders, including swelling and flare-ups causing a lack of sensation, bad circulation, and broken veins in his legs. Range of motion testing showed 0 to 50 degrees of flexion, bilaterally. Pain was noted on weight-bearing and non-weight bearing tests. The Veteran was able to perform repetitive use testing with no additional limitations. The factors contributing to disability were less movement, weakened movement, disturbance of locomotion, and interference with standing and sitting. Muscle strength testing was 4 out of 5, with no atrophy. The examiner noted no evidence of subluxation, instability, or effusion. Stability tests were normal. There was no history of patellar dislocation, tibial or fibular impairment, or meniscal conditions. The Veteran appeared at a Board hearing in February 2017. The appellant testified that the Veteran was unable to move his knees, bend over, run, or walk. The Veteran stated that he had instability and wears nylons and pads on his knees while waiting to get braces from the VA. The appellant testified that the Veteran had “excruciating pain” every four or five days. After a review of the evidence of record, the Board finds that ratings in excess of the currently assigned 10 percent rating prior to March 24, 2010 and 20 percent thereafter are not warranted. Although the Veteran and appellant described painful motion, the rating criteria requires flexion limited to 15 degrees or less or extension limited to 10 degrees or less for higher or separate ratings. At worst, the Veteran’s bilateral flexion was limited to 45 degrees during a flare-up and the Veteran maintained full bilateral extension throughout the appeal period. In determining that higher ratings are not warranted based on limitation of motion, the Board acknowledges that during the November 2013 VA examination the Veteran could not perform any repetitive use testing due to pain. However, the Board finds that this singular event does not warrant the assignment of higher disability ratings under Diagnostic Codes 5260 and 5261 when viewed in the context of the evidence as a whole. The Veteran's complete disability picture does not present as a complete inability to move the knee joints, even during a flare up or upon repetitive motion, as it is not supported by the other evidence of record. In that regard, although the 2013 VA examiner reported that the Veteran was unable to perform active repetitive use testing, the examiner also noted that his functional abilities were limits for prolonged standing, bending, and lifting. Additionally, subsequent 2015 physical therapy records showed the Veteran ambulated with normal gait and without pain. At the February 2017 VA examination, the Veteran was able to flex to 50 degrees and was not additionally limited after repetitive movement. Therefore, taken as a whole, the functional impairment of his bilateral knees was not comparable to ankylosis, when a knee is essentially permanently fixed at a particular range of motion. The level of impairment described in the Veteran’s hearing testimony was consistent with the limitation, at worst, to 50 degrees of flexion shown by the record. In short, the Board acknowledges the pain and functional limitations that the Veteran experienced as a result of his bilateral knee disability, especially during flare-ups and with repetitive use. However, when considering the evidence of record as a whole, the assigned ratings adequately consider his symptoms and functional limitation. Therefore, bilateral ratings in excess of 10 percent prior to March 24, 2010 and in excess of 20 percent thereafter are not warranted and the appellant’s claims are denied. 3. Entitlement to a separate rating for left knee lateral instability 4. Entitlement to a separate rating for right knee lateral instability Under 38 C.F.R. § 4.71a, Diagnostic Code 5257, a 10 percent rating is in order if there is slight recurrent subluxation or lateral instability. A 20 percent rating is in order if there is moderate recurrent subluxation or lateral instability, and a 30 percent rating is in order if there is severe recurrent subluxation or lateral instability. The Board notes that the rating schedule does not define the terms “slight,” “moderate,” or “severe.” Therefore, the Board must evaluate the evidence of record and reach a decision that is equitable and just. See 38 C.F.R. § 4.6. Regarding instability, in April 2019, the Court issued an Order granting the Parties’ Joint Motion for Remand vacating and remanding this appeal to the Board for additional action. Specifically, the Court found that the Board erred because it declined to assign a separate rating for instability of the left and/or right knees, despite the Veteran’s complaints of instability of both knees. It was noted that these findings are not consistent with the Court’s recent decision in English v. Wilkie, 30 Vet. App. 347 (2018), which held that objective evidence of lateral instability is not required for a separate rating under 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2019). The Board again notes that the objective stability tests upon examination have been normal. However, the Veteran has provided lay evidence that he experiences instability of the knees. In September 2007, the Veteran reported use of a cane. In a November 2008 statement, he reported difficulty with balance. In his testimony at the March 2010 DRO hearing, he stated that instability caused him to fall and at the February 2017 Board hearing, he stated that he had instability and was awaiting braces from the VA. Given the Veteran’s testimony as to instability, the evidence is at least evenly balanced as to whether he has experienced lateral instability warranting separate compensable ratings under DC 5257. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to separate 10 percent initial ratings for right and left knee disorders under DC 5257 is granted. Higher ratings are not warranted, however, as there is no clinical evidence that such instability is of a moderate or severe nature, and where contemporary VA examination reports have not found objective evidence of instability. The Board therefore finds that the symptoms most nearly approximated slight lateral instability during the pendency of the claim and the preponderance of the evidence reflects that they did not more nearly approximate moderate instability. The Board has considered whether higher or separate ratings are available under other diagnostic codes; however, there is no evidence of ankylosis, meniscal conditions, or tibial or fibular impairment. Therefore, ratings under Diagnostic Codes 5256, 5258, 5259, 5262 and 5263 are not warranted. The Board is cognizant of the testimony proffered at the February 2017 Board hearing regarding the symptoms of poor circulation and possible amputation but notes that the Veteran was denied service connection for service connection for a circulatory disability of the right lower extremity in an April 2012 Board decision. The Board finds that the findings of the VA examiner in the February 2017 DBQ are more probative in assigning a rating for his service-connected disorders in accordance with the relevant rating criteria. MIICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Shana Z. Siesser, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.