Citation Nr: 20021326 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 10-16 415 DATE: March 25, 2020 ORDER Entitlement to an initial evaluation in excess of 10 percent for chronic left knee sprain with minimal degenerative joint disease (DJD) is denied. FINDING OF FACT For the entire appeal period, the Veteran’s left knee disability did not exhibit moderate subluxation, lateral instability, malunion, tibia or fibula impairment, ankylosis, flexion limited to 30 degrees, or extension limited to 15 degrees. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for chronic left knee sprain with minimal DJD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5257. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1989 to August 1992. In April 2017, the Board most recently remanded the issue below on appeal for further development, and the case has since been returned to the Board. The Board finds that the agency of original jurisdiction (AOJ) has substantially complied with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to an initial evaluation in excess of 10 percent for chronic left knee sprain with minimal DJD In the August 2008 rating decision, the RO, in pertinent part, granted service connection for chronic left knee strain with minimal degenerative joint disease, evaluated as 10 percent disabling, effective December 18, 2007. The Veteran disagreed with this decision, Therefore, the issue before the Board is whether the Veteran is entitled to an initial evaluation in excess of 10 percent for chronic left knee sprain with minimal DJD. The Veteran’s left knee disability is evaluated under DC 5257. DC 5257 provides for a 10 percent rating for slight recurrent subluxation or lateral instability. A 20 percent rating is warranted for moderate subluxation or lateral instability. A maximum 30 percent rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, DC 5257. Pursuant to 38 C.F.R. §§ 4.40 and 4.45, pain is inapplicable to ratings under DC 5257 because it is not predicated on loss of range of motion. See Johnson v. Brown, 9 Vet. App. 7, 11 (1996). “DC 5257 is unambiguous; by its plain language, it provides compensation for impairments of the knee, other than those enumerated elsewhere in the relevant regulations, that cause the symptoms of recurrent subluxation or lateral instability.” Delisle v. McDonald, 789 F.3d 1372 (Fed.Cir. 2015) (noting that this interpretation is consistent with the language of DC 5257 and the remainder of the relevant regulations; and observing that 38 C.F.R. § 4.71a, DC 5284 creates a “catch-all” DC for “Foot Injuries, other” but DC 5257 is not a “catch-all” provision for rating knee disorders (in the absence of past surgery, limited motion of dysfunction from painful motion); and, so, the Federal Circuit was persuaded that DC 5257 was limited to establishing compensation for disabilities causing symptoms specifically enumerated in DC 5257). Other DCs available for knee disabilities under 38 C.F.R. § 4.17a are as follows: DC 5256 provides for ratings between 30 and 60 percent for ankylosis of a knee. Ankylosis is immobility and consolidation of a joint due to disease, injury, surgical procedure. Shipwash v. Brown, 8 Vet. App. 218, 221 (1995). DC 5262 provides for evaluation of impairment of the tibia and fibula. With malunion and slight knee or ankle disability a 10 percent rating is warranted; with moderate knee or ankle disability a 20 percent rating is warranted; and with marked knee or ankle disability a 30 percent rating is warranted. For a 40 percent rating there must be nonunion of the tibia or fibula with loose motion, requiring a brace. 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. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Compensating a claimant for separate functional impairment under DC 5257 and 5003 does not constitute pyramiding. VAOPGCPREC 23-97 (July 1, 1997) held that arthritis and instability of the same knee may be rated separately under DCs 5003 and 5257. Subsequently, VAOPGCPREC 9-98 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 (holding that separate ratings under DC 5260 for limitation of flexion of the knee and DC 5261 for limitation of extension of the knee may be assigned). In July 2008, the Veteran attended a VA Knee examination. The examiner did not indicate a diagnosis because there was no pathology to render a diagnosis. The Veteran endorsed symptoms of weakness, stiffness, swelling, giving way, locking, dislocation, sharp pain, frequent episodes of locking, grinding noise, and moderate subluxation around the knee cap. Upon examination, range of motion (ROM) was noted as flexion to 90 degrees with pain occurring at 90 degrees, and normal extension. All other test including an x-ray indicated normal findings. In May 2016, the Veteran attended a VA Knee and Lower Leg Conditions Disability Benefits Questionnaire (DBQ) examination. The examiner diagnosed left knee DJD. The Veteran reported functional loss/impairment as inability to bend knee, uncomfortable driving, inability to work outside or desk work as a police officer, inability to kneel at church, and home accommodations to climb stairs. Upon examination, ROM was noted as flexion to 90 degrees and extension from 90 degrees to 0 degrees. No functional loss or additional loss of ROM after repetitive-use testing was noted. Pain was noted on flexion. No atrophy, ankylosis, subluxation, or instability were noted. Recurrent effusion was noted as 3-4 times a year requiring drainage and cortisone injections. In May 2017, the Veteran attended another VA Knee and Lower Leg DBQ examination. The examiner diagnosed left knee strain and bilateral knee DJD. The Veteran indicated daily severe pain and continual swelling along with periodic draining of the knee fluid and steroid injections. The examiner noted that the Veteran does not experience flare-ups because of constant pain limiting knee function. Upon examination, ROM was noted as flexion 10 to 100 degrees and extension 100 to 10 degrees. Pain was noted on exam but does not cause any functional loss. Pain, weakness, fatigability, or incoordination significantly limit the Veteran’s functional ability with repeated use over a period of time without any additional loss of ROM. No atrophy, ankylosis, subluxation, or instability were noted. Recurrent effusion was noted as 3-4 times a year requiring drainage and cortisone injections. Constant use of a brace was noted. In June 2019, as required by the December 2017 Board remand, the Veteran attended another VA Knee and Lower Leg Conditions DBQ examination. The examiner diagnosed bilateral knee joint osteoarthritis. The Veteran did not report any flare-ups. He described functional impairment as very limited mobility, inability to drive, and daily assistance with activities. Upon examination, ROM was noted as flexion to 120 degrees and extension 120 degrees to 0. No pain was noted on examination. The examiner was unable to say without mere speculation whether pain, weakness, fatigability or incoordination significantly limit functional ability with repeated use over a period of time. In explanation, he noted that the Veteran does not do any activities that require repeated use over time. No atrophy, ankylosis, subluxation, effusion, or instability were noted. Regular use of crutches was noted. Finally, the examiner noted evidence of pain on passive ROM testing and when the joint is used in non-weight bearing. The opposing joint is currently described with chronic residuals consisting of severe painful motion or weakness. The remaining evidence of record details continued complaints and treatment of the Veteran’s left knee condition but no ROM measurements. Of further note, the Veteran, in a January 2018 development letter, was asked to submit, or provide VA sufficient information and authorization to obtain any private treatment records related to his knee disability not limited to those reference in the December 2017 Board remand. To date, the Board has not received a response to this request. Based on the foregoing evidence of record, the Board finds that a higher evaluation is not warranted at any point of the appeal period. Indeed, the entire evidence of record during the appeal period is silent for moderate subluxation or lateral instability, nor does it indicate knee ankylosis, flexion limited to 30 degrees, extension limited to 15 degrees, or nonunion of the tibia and fibula, symptomatology indicative of a higher evaluation across applicable knee criteria. The Board concludes that the preponderance of the evidence is against the claim, and that a higher evaluation during the period is not warranted. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim must be denied. Gilbert, 1 Vet. App. at 55. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R.A. Elliott II, Associate 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.