Citation Nr: A20009167 Decision Date: 05/21/20 Archive Date: 05/21/20 DOCKET NO. 190716-57162 DATE: May 21, 2020 ORDER 1. For the period from April 5, 2019, an increased rating in excess of 10 percent for left knee arthritis is denied. 2. For the period from April 5, 2019, an increased rating in excess of 10 percent for right knee arthritis is denied. 3. For the period from April 5, 2019, an increased rating in excess of 10 percent for left knee instability is denied. 4. For the period from April 5, 2019, an increased rating in excess of 10 percent for a right wrist arthritis is denied. FINDINGS OF FACT 1. For the period from April 5, 2019, the left knee arthritis has been manifested by painful noncompensable limitation of motion, flexion to greater than 60 degrees, and extension limited to less than 5 degrees, without ankylosis, dislocation or removal of semilunar cartilage, nonunion or malunion of the tibia and fibular, or genu recurvatum. 2. For the period from April 5, 2019, the right knee arthritis has been manifested by flexion to greater than 60 degrees, extension limited to less than 5 degrees, and painful motion, with arthritis, and without ankylosis, recurrent subluxation or lateral instability, dislocation or removal of semilunar cartilage, nonunion or malunion of the tibia and fibular, or genu recurvatum. 3. For the period from April 5, 2019, the left knee instability has not more nearly approximated moderate recurrent subluxation or lateral instability. 4. For the period from April 5, 2019, the symptomatology and functional impairment of the right wrist arthritis disability has not approximated X-ray evidence of involvement of arthritis of two or more major joints or two or more minor joint group with occasional incapacitating exacerbations, favorable ankylosis of the right wrist in 20 to 30 degrees of dorsiflexion, or loss of use of the hand (amputation) of the major extremity. CONCLUSIONS OF LAW 1. For the period from April 5, 2019, the criteria for an increased rating in excess of 10 percent for left knee arthritis have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.3, 4.7, 4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003. 2. For the period from April 5, 2019, the criteria for an increased rating in excess of 10 percent for a right knee arthritis have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.3, 4.7, 4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003. 3. For the period from April 5, 2019, the criteria for an increased rating in excess of 10 percent for a left knee instability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.3, 4.7, 4.71a, Diagnostic Code 5257. 4. For the period from April 5, 2019, the criteria for a disability rating in excess of 10 percent for the (major) right wrist arthritis have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5125, 5214, 5215. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1992 to April 1997. The Veteran selected the Direct Review lane on the July 2019 Decision Review Request: Board Appeal, thus declining a Board of Veterans’ Appeals (Board) hearing in this case. The Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA), creates a new framework of review for veterans disagreeing with VA’s decision on their claim. This decision has been written consistent with the new AMA framework. Disability Rating Legal Authority Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability 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. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Separate ratings may be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. 38 C.F.R. § 4.2; Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). If an increase in disability occurred within one-year prior to the claim for increase, the increase is effective as of the date the increase was factually ascertainable. See 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010) (holding “that an increase in a veteran’s service-connected disability must have occurred during the one year prior to the date of the veteran’s claim in order to receive the benefit of an earlier effective date”). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran’s service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits compensating a veteran twice for the same symptoms or functional impairment). When an unlisted condition is encountered, it will be permissible to rate it under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. Painful motion is considered limited motion at the point that pain actually sets in. See VAOPGCPREC 9-98. The Veterans’ Claims Assistance Act of 2000 (VCAA) enhanced VA’s duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Specifically, the VCAA enhanced VA’s duty to notify and assist claimants in substantiating their claim for VA benefits. The record reflects that VA provided the Veteran with notice throughout the claims process, including the decisions that were made and the reasons behind them. The record also reflects that VA provided notice of what additional information was needed to substantiate the claim and ways in which the Veteran could assist with the process. The Board has considered the Veteran’s May 2019 assertion that x-rays of the bilateral knees were conducted in February 2018 at the Tulsa VA Outpatient Clinic, and that these x-rays must be obtained. However, the Board finds that an imaging report from February 2019 x-rays of the bilateral knees is currently of record, which shows mild osteoarthritis in the bilateral knees. The May 2019 VA examiner indicated that he reviewed the VA treatment records, which contained the February 2019 x-ray interpretation of the bilateral knees. For this reason, the Board finds that there is no reasonable possibility that the February 2018 x-rays of the bilateral knees would substantiate any rating fact. The essential rating facts, including the presence of mild osteoarthritis, have already been substantiated. The only relevant fact for rating purposes that could be shown by the February 2018 x-rays is the presence of arthritis and the level of severity of arthritis. As it has already been established by the more recent February 2019 VA treatment records that x-rays of the bilateral knees show mild osteoarthritis, requesting the February 2018 records would only result in unnecessary delay for the Veteran, as these records carry no reasonable possibility of substantiating any fact that would result in a higher rating. For these reasons, the Board finds that VA has met the duties under the VCAA to notify and assist. 1. An Increased Rating in Excess of 10 Percent for Left Knee Arthritis from April 5, 2019 2. An Increased Rating in Excess of 10 Percent for Right Knee Arthritis from April 5, 2019 For the entire rating period on appeal from April 5, 2019, the Veteran is in receipt of 10 percent disability ratings each for the right and left knee arthritis disabilities (includes chondromalacia patella and limitations of motion). For the entire period on appeal from April 5, 2019, the evidence of record shows that the Veteran does not meet the criteria for the assigned 10 percent rating under DC 5260, and meets only the criteria for a 10 percent rating under DC 5003. Thus, while the regional office (RO) assigned the 10 percent rating under DC 5260, they actually applied the substantive rating criteria of DC 5003; therefore, only a rating under DC 5003 has actually been assigned for this period on appeal, and the 10 percent rating was not assigned under the criteria at DC 5260 because the evidence does not show compensable limitation of motion of either knee for any period. 38 C.F.R. § 4.71a. Degenerative joint disease is the same as arthritis. The Veteran contends that higher disability ratings for the right and left knee arthritis disabilities are warranted. See April 2019 Fully Developed Claim. The appropriate diagnostic codes for rating compensable limitation of motion of the knees are Diagnostic Codes 5260 and 5261. 38 C.F.R. § 4.71a. Normal range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. In VAOPGCPREC 9-2004, the VA General Counsel interpreted that, when considering Diagnostic Codes 5260 and 5261 together with 38 C.F.R. § 4.71, a veteran may receive a rating for compensable limitation in flexion only, compensable limitation of extension only, or both, if the 10 percent criteria are met for both limitations of flexion and extension, and separate ratings for compensable limitations in both flexion and extension under Diagnostic Code 5260 (leg, limitation of flexion) and Diagnostic Code 5261 (leg, limitation of extension). Under Diagnostic Code 5260, limitation of knee flexion is rated 30 percent disabling where flexion is limited to 15 degrees; 20 percent disabling where flexion is limited to 30 degrees; 10 percent disabling where flexion is limited to 45 degrees; and noncompensable (0 percent) where flexion is limited to 60 degrees. 38 C.F.R. § 4.71a. Under Diagnostic Code 5261, limitation of knee extension is rated 50 percent disabling where extension is limited to 45 degrees; 40 percent disabling where extension is limited to 30 degrees; 30 percent disabling where extension is limited to 20 degrees; 20 percent disabling where extension is limited to 15 degrees; 10 percent disabling where extension is limited to 10 degrees; and noncompensable (0 percent) where extension is limited to 5 degrees. 38 C.F.R. § 4.71a. Diagnostic Code 5262 contemplates impairment of the tibia and fibula, assigning a 40 percent rating for nonunion of the tibia and fibula, and 10, 20, and 30 percent ratings for slight, moderate or marked knee or ankle disabilities. The words “slight,” “moderate,” “severe,” and “marked” as used in the various diagnostic codes are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for “equitable and just decisions.” Under Diagnostic Code 5256, disability ratings are assigned when ankylosis is present. Ankylosis is “[s]tiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint.” Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) (quoting from Stedman’s Medical Dictionary 87 (25th ed. 1990)). Diagnostic Code 5258 provides a 20 percent disability rating when a dislocated semilunar cartilage is present with frequent episodes of “locking,” pain, and effusion into the joint. Diagnostic Code 5259 provides for a 10 percent disability rating when semilunar cartilage has been removed and related symptoms are present. A 10 percent disability rating is assigned under Diagnostic Code 5263 when genu recurvatum is identified. Diagnostic Code 5003 provides that degenerative arthritis established by X-ray findings is to be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved 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 affected by limitation of motion, to be combined, not added under DC 5003. 38 C.F.R. § 4.71a. After a review of all the lay and medical evidence, the Board finds that for the entire rating period on appeal from April 5, 2019 the criteria for ratings in excess of 10 percent for the right and left knee arthritis disabilities, or for separate compensable ratings for limitations of extension and limitation of flexion, have not been met or more nearly approximated. 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Codes 5260, 5261. The May 2019 VA examination report reflects right knee flexion was measured to 110 degrees and extension to 0 degrees, and left knee flexion was measured to 110 degrees and extension to 0 degrees, with pain noted upon examination of both knees that causes functional loss. Regarding Diagnostic Code 5260, the evidence of record, including the May 2019 VA examination, shows that the Veteran had, at worst, right and left knee flexion to 110 degrees during the entire period on appeal. This constitutes noncompensable limitation of motion under DC 5260. Regarding Diagnostic Code 5261, the evidence of record, including the May 2019 VA examination, shows that the Veteran had, at worst, extension to 0 degrees during the entire period on appeal. This constitutes noncompensable limitation of motion under DC 5261. As the May 2019 VA examination reflects that the right and left knee arthritis disabilities have been manifested by symptoms of arthritis and painful noncompensable limitation of motion; thus, a rating higher than 10 percent is not warranted under Diagnostic Codes 5260 or 5261. As 10 percent is the maximum rating under DC 5003 for a major joint that has noncompensable painful motion, a higher rating under DC 5003 is not possible. Next, the Board has considered whether a separate 10 percent rating is warranted for limitation of flexion and extension from April 5, 2019 forward. The Board finds that a separate 10 percent rating for limitation of flexion and extension is not warranted because both the left and right knee have exhibited only noncompensable limitation of motion for the entire period on appeal, which has been recognized and compensated for by the 10 percent rating under the criteria of DC 5003. Specifically, the left and right knee have exhibited flexion no worse than 110 degrees and extension to 0 degrees during the entire period on appeal. Therefore, the Board finds that the current left and right knee disabilities are appropriately rated under the criteria of DC 5003 for arthritis with noncompensable limitation of motion, and that separate compensable disability ratings of 10 percent are not warranted under Diagnostic Codes 5260 or 5261 for limitation of flexion and extension of the knees for the entire rating period from April 5, 2019, as this limitation of flexion and extension is noncompensable. 38 C.F.R. § 4.71a. The Board has considered whether higher disability ratings for the right and left knees are warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40, 4.45, and 4.59. See also DeLuca. Here, there is no question that the knee disabilities have caused pain which has caused some restriction of motion. The Veteran has reported bilateral knee pain, popping in both knees, and pain while climbing stairs. However, as noted above, even taking into account additional functional limitation due to pain, the ranges of motion of the left and right knee do not more nearly approximate the 10 percent criteria. The May 2019 VA examination report notes that the right and left knee flexion was limited to, at worst, 110 degrees, with extension to 0 degrees, and VA treatment records do not show compensable limitations of flexion or extension. Based on the above, the degree of functional impairment in the left and right knees does not warrant a 10 percent rating based on limitation of motion. A separate 10 percent rating has been assigned for the left knee instability under DC 5257, which is discussed below. The Board has also considered whether a separate disability rating is warranted for any other knee disability. As the evidence of record does not reflect that the right or left knee is ankylosed, that there is recurrent subluxation, that the semilunar cartilage is dislocated with frequent episodes of locking, pain, and joint effusion, that the semilunar cartilage has been removed, that there is malunion or nonunion of the tibia and fibula, that there is a current diagnosis of genu recurvatum, and/or that the Veteran’s right or left knee disabilities have been manifested by limitation of flexion or extension to a compensable degree, a separate disability rating or higher disability rating under an alternative Diagnostic Code is not warranted. See Diagnostic Codes 5256, 5257, 5258, 5259, 5261, 5262, or 5263. 38 C.F.R. § 4.71a. 3. An Increased Rating in Excess of 10 Percent for Left Knee Instability Under DC 5257 from April 5, 2019 For the rating period on appeal from April 5, 2019, the Veteran is currently assigned a 10 percent rating under DC 5257 for left knee instability. The Veteran appeals for a higher rating. See July 2019 Decision Review Request: Board Appeal. After a review of all the lay and medical evidence, the Board finds that, for the rating period from April 5, 2019, the weight of the evidence is against a higher than 10 percent rating under DC 5257, as the left knee instability has not been manifest by moderate recurrent subluxation or lateral instability. DC 5257 provides for a 10 percent rating when there is evidence of slight impairment of the knee manifested by recurrent subluxation or lateral instability, a 20 percent rating for moderate impairment of the knee manifested by recurrent subluxation or lateral instability, and a 30 percent rating for severe impairment of the knee manifested by recurrent subluxation or lateral instability. 38 U.S.C. § 4.71a. The words “slight,” “moderate,” “severe,” and “marked” as used in the various diagnostic codes are not defined in the VA Rating Schedule. A May 2019 VA examination does not show left knee instability; however, the Board has considered all evidence of record, including the Veteran’s reports of symptoms and impairment. The Veteran has asserted that he continues to experience left knee instability. See July 2019 Decision Review Request: Board Appeal. The Board finds this report credible. The evidence does not show that the Veteran experiences moderate impairment of the knee manifested by recurrent subluxation or lateral instability. For these reasons, a rating higher than 10 percent under DC 5257 is not warranted for the period from April 5, 2019. 4. Rating Right Wrist Disability from April 5, 2019 For the rating period on appeal from April 5, 2019 forward, the right (dominant) wrist disability is assigned a 10 percent disability rating under Diagnostic Codes 5003-5215. 38 C.F.R. § 4.71a. The Veteran asserts that a rating higher than 10 percent is warranted for the right wrist disability. See July 2019 Decision Review Request: Board Appeal. Under 38 C.F.R. § 4.71, Plate I, the standard range of motion for the wrist is extension from 0 to 70 degrees, palmar flexion from 0 to 80 degrees, forearm pronation 0 to 80 degrees, forearm supination 0 to 85 degrees, ulnar deviation from 0 to 45 degrees, and radial deviation from 0 to 20 degrees. Under Diagnostic Code 5215 (limitation of motion of the wrist), a 10 percent disability rating (maximum) is warranted for palmar flexion limited in line with the forearm or dorsiflexion less than 15 degrees. Diagnostic Code 5215 does not provide for a rating in excess of 10 percent. 38 C.F.R. § 4.71a. Under Diagnostic Code 5214, for ankylosis of the wrist, a 30 percent disability rating is assigned for ankylosis favorable in 20 to 30 degrees dorsiflexion of the major extremity, and a 20 percent disability rating assigned for the minor extremity; a 40 percent disability rating is assigned for any other position except favorable ankylosis for the major extremity, and a 30 percent disability rating assigned for the minor extremity; a 50 percent disability rating is assigned for unfavorable ankylosis, in any degree of palmar flexion, or with ulnar or radial deviation for the major extremity, and a 40 percent disability rating assigned for the minor extremity. Extremely unfavorable ankylosis is rated as loss of use of hands under Diagnostic Code 5125. After a review of all the evidence, both lay and medical, the Board finds that for the rating period from April 5, 2019 to present, the criteria for a disability rating in excess of 10 percent for the right (major) wrist disability have not been met or more nearly approximated. 38 C.F.R. §§ 4.3, 4.7, 4.71a. A 10 percent rating is the maximum schedular disability rating for limitation of motion of the wrist under Diagnostic Code 5215. The Board has also considered whether a higher rating is available under DC 5214. However, as the May 2019 VA examination shows that the Veteran has not been diagnosed with ankylosis of the right wrist, DC 5214 does not apply. 38 C.F.R. § 4.71a, DC 5214. The Board has considered whether a higher disability rating for the left wrist is warranted on the basis of functional loss due to pain, weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40, 4.45, and 4.59. See also DeLuca. Here, there is no question that the service-connected right wrist disability has caused intermittent pain, as reported on the May 2019 VA examination. However, as noted above, even taking into account additional functional limitation due to pain, the evidence of record including a May 2019 VA examination report indicates a range of motion for this period that does not more nearly approximate ankylosis of the right wrist, to include favorable ankylosis limited to 20 to 30 degrees of dorsiflexion. (Continued on the next page)   For these reasons, the degree of functional impairment of the right wrist does not warrant a higher rating based on limitation of motion for the right wrist arthritis for the rating period from April 5, 2019, forward. As such, the Board finds that a disability rating in excess of 10 percent is not warranted under Diagnostic Code 5214 (ankylosis of the wrist) for the right wrist arthritis disability. 38 C.F.R. § 4.71a. See May 2019 VA examination. For these reasons, from April 5, 2019 forward, a disability rating higher than 10 percent for the service-connected right wrist disability is not warranted. See 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59; DeLuca at 206-07. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Department of Veterans Affairs A. Caruso, Attorney for the Board 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.