Citation Nr: 20042330 Decision Date: 06/22/20 Archive Date: 06/22/20 DOCKET NO. 18-39 764 DATE: June 22, 2020 ORDER Entitlement to a rating higher than 10 percent for left knee degenerative arthritis prior to December 12, 2019, is denied; entitlement to a compensable rating for left knee limitation of extension is denied. From December 12, 2019, the Veteran’s left knee disability is more appropriately rated under Diagnostic Code 5258. A 20 percent rating for severe left knee patellar dislocation is granted. FINDINGS OF FACT 1. The evidence establishes that during the appeal period, at worst, the Veteran’s left knee flexion was limited to 105 degrees. He has degenerative arthritis with noncompensable painful motion. His left knee disability has not manifested by recurrent or lateral instability, flexion actually or functionally limited to 30 degrees or less, extension actually or functionally limited to 10 degrees or more, or impairment of the tibia and fibula or genu recurvatum. 2. Resolving all reasonable doubt in his favor, since December 12, 2019, the Veteran has experienced severe left knee patellar dislocation. CONCLUSIONS OF LAW 1. Prior to December 12, 2019, the criteria for entitlement to a rating higher than 10 percent for left knee degenerative arthritis have not been met; the criteria for entitlement to a compensable rating for left knee limitation of extension have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.71a, Diagnostic Codes 5256, 5257, 5258, 5259, 5260-5263. 2. The criteria for entitlement to a 20 percent rating for severe left knee patellar dislocation from December 12, 2019, have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.71a, Diagnostic Code 5258. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the United States Marine Corps from November 1986 to August 1992. In a statement dated in May 2020, he reported that he is still working. As a result, the Board will not address the issue of individual unemployability (TDIU). Increased Rating The Veteran seeks entitlement to increased ratings for his service-connected left knee disability. His knee is currently rated as 10 percent disabling under hyphenated Diagnostic Codes 5260-5003 and noncompensable under Diagnostic Code 5261. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the rating assigned. The additional code is shown after a hyphen. 38 C.F.R. § 4.27. Thus, in this case, Diagnostic Code 5260, which pertains to limitation of flexion of the knee, acknowledges the disability resulting from the Veteran’s left knee disability, and Diagnostic Code 5003, which pertains to traumatic/degenerative arthritis, contemplates the current manifestations of the Veteran’s disability, which is painful motion due to arthritis. Disability evaluations are determined by application of criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. 38 C.F.R. § 4.40. Consideration is to be given to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse, instability of station, or interference with standing, sitting, or weight bearing. Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. This regulation also requires that, whenever possible, the joints involved are tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Under 38 C.F.R. §§ 4.40 and 4.45, a Veteran’s pain, swelling, weakness, and excess fatigability must be considered when determining the appropriate evaluation for a disability using the limitation of motion Diagnostic Codes. See Johnson v. Brown, 9 Vet. App. 7, 10 (1996). The Court held in DeLuca that all complaints of pain, fatigability, etc., shall be considered when put forth by a Veteran. Therefore, consistent with DeLuca and 38 C.F.R. § 4.59, the Veteran’s complaints of pain have been considered in the Board’s review of the Diagnostic Codes for limitation of motion. In Sharp v. Shulkin, 29 Vet. App. 26 (2017) the Court addressed what constitutes an adequate explanation for an examiner’s inability to estimate motion loss in terms of degrees during periods of flare-ups. The Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. In this case, the Veteran was afforded a VA examination for his left knee disability in December 2019. The examiner noted that the Veteran experiences flare-ups and explained that she could not describe the functional loss in terms of range of motion because “after further review of the order request, DBQ, physical examination, reported history and subjective complaints, relevant evidence of record and using my medical knowledge and expertise, there remains no basis to offer additional loss of function or motion when it comes to flare-ups.” The examination report also tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing, and with the range of the opposite undamaged joint. As such, it is sufficient for adjudication purposes. Left knee Knee disabilities are rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5256 to 5263. Included within 38 C.F.R. § 4.71a are multiple diagnostic codes that evaluate impairment resulting from service-connected knee disorders, including Diagnostic Code 5256 (ankylosis), Diagnostic Code 5257 (other impairment, including recurrent subluxation or lateral instability), Diagnostic Code 5258 (dislocated semilunar cartilage), Diagnostic Code 5259 (symptomatic removal of semilunar cartilage), Diagnostic Code 5260 (limitation of flexion), Diagnostic Code 5261 (limitation of extension), Diagnostic Code 5262 (impairment of the tibia and fibula), and Diagnostic Code 5263 (genu recurvatum). Under Diagnostic Code 5260, a noncompensable rating is warranted when flexion is actually or functionally limited to 60 degrees. To receive a rating of 10 percent, limitation of flexion of the leg must be actually or functionally limited to 45 degrees. To receive a rating of 20 percent, limitation of flexion of the leg must be actually or functionally limited to 30 degrees. See 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5261, a noncompensable rating is warranted when extension is actually or functionally limited to 5 degrees. A 10 percent rating is warranted when limitation of extension is to 10 degrees. A 20 percent rating is warranted when limitation of extension is to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Additionally, if the knee condition involves arthritis, the knee disability may be rated under provisions for evaluating arthritis. Arthritis due to trauma is rated as degenerative arthritis according to Diagnostic Code 5003. Under Diagnostic Code 5003, degenerative 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 involved is noncompensable under the appropriate diagnostic codes, 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 diagnostic code 5003. 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. VA treatment records from October 2017 document occasional knee pain. In April 2016, he reported a lot of pain in his left knee due to an injury and two surgeries. He stated he still had a screw in his left knee, and he was out of work for six weeks due to knee problems. He underwent physical therapy. At the time, he reported 2/10 pain. VA treatment records from March 2020 document the Veteran’s reports of bilateral knee pain with small bony lesion on patella. The records do not state that the Veteran’s patella dislocated. He denied injury and X-rays came back normal. Bilateral knee examination noted mild crepitus on flexion and extension with no swelling noted. VA obtained private treatment records on the Veteran’s behalf. These records show that the Veteran underwent surgery on his left patella and in May 2011, postsurgical changes in the patella were found. The impression was early degenerative changes. Records from January 2016 show normal gait, no effusion, and no tenderness to medial or lateral patella. On range of motion testing, the Veteran had flexion to 110 degrees but “lack[ed] about three to five degrees of extension.” Private treatment records dated in March 2017 from Dr. R.S. state: There is osteoarthritic change in the patellofemoral articulation probably related to previous trauma. A small bone anchor screw is present in the superior aspect of the patella. The posterior surface of the patella particularly caudally is also quite irregular. The medial and lateral cartilage spaces are normal without reactive sclerosis or marginal osteophyte formation. There is slight elongation of the tibial spines. No evidence of joint effusion. Impression: posttraumatic osteoarthritic changes in the patellofemoral articulation of the knee. These records also did not indicate dislocation of the patella. In connection with his claim for an increase, the Veteran was afforded a VA examination for his left knee in April 2018. The examiner confirmed the diagnosis of degenerative arthritis of the left knee. The Veteran denied experiencing flare-ups and denied having any functional loss or functional impairment in the left knee including after repeated use over time. Range of motion testing revealed full range of motion – flexion to 140 degrees and extension to zero degrees with no pain noted on examination. There was no evidence of pain with weight-bearing and no objective evidence of localized tenderness or crepitus. The Veteran performed repetitive use testing with at least three repetitions with no additional functional or range of motion loss. Muscle strength testing was normal with no evidence of muscle atrophy or ankylosis. Joint testing was normal with no indication of recurrent subluxation, lateral instability, or recurrent effusion. The examiner found that the Veteran did not experience recurrent patellar dislocation. A June 2018 private treatment X-ray of the left knee noted effusion. On his Notice of Disagreement (NOD) filed in July 2017, the Veteran stated that his kneecap still had a pin or screw embedded, which caused discomfort and pain. In addition, as noted by the Board in its July 2019 remand, on his August 2018 VA Form 9, the Veteran indicated that his left knee degenerative arthritis had increased in severity since his last VA examination. As a result, the Veteran was afforded an additional VA examination in December 2019. On examination, the Veteran reported current symptoms of pain in the left kneecap, limited range of motion, and locking knee. He endorsed flare-ups in that his left knee swells up and he is unable to work or perform daily activities. The flare-ups are moderate in severity and occur once a month for several days. He reported not being able to work at a normal pace and that he is on light duty due to his left knee disability. On range of motion testing, he had flexion to 110 degrees and extension to zero degrees. Pain was noted during flexion. There was no evidence of localized tenderness or pain on palpation of the joint. Evidence of pain with weight bearing and crepitus was also noted. The Veteran refused to perform repetitive use testing. The examiner stated that she could not described the impact of repetitive use over time or during flare-ups as “following further review of the Veteran’s records and giving consideration to their subjective complaints and objective exam findings, given my clinical knowledge and medical expertise, there remains no rational basis to make a notation regarding any additional loss of function or motion when it comes to repeated use over time [or during flare-ups].” The examiner stated that the Veteran had weakness in the left knee that caused his flexion to decrease to 105 degrees. He is still able to extend his left knee to zero despite the weakness. Muscle strength testing showed 4/5 strength (active movement against some resistance). No muscle atrophy or ankylosis was found. Joint stability testing was normal. The examiner stated that the Veteran did not have recurrent subluxation or lateral instability. A history of effusion was noted as the Veteran described swelling to his left knee once a month. The examiner noted that the Veteran had severe recurrent patellar dislocation but no meniscus condition at the time of examination. Occasional use of a cane was noted. There was no objective evidence of pain on passive motion or in non-weight bearing. As noted above, the Veteran’s left knee disability is currently rated as 10 percent disabling under Diagnostic Codes 5260-5003, for noncompensable painful motion, and noncompensable under Diagnostic Code 5261, for limitation of extension. When considering all of the evidence of record, the Board finds that prior to December 12, 2019, the date of the Veteran’s VA examination which first documented severe recurrent patellar dislocation, higher ratings for the Veteran’s left knee are not warranted. Since that date, the Veteran’s left knee disability is more appropriately rated as 20 percent disabling under Diagnostic Code 5258. This Diagnostic Code specifically contemplates pain, locking, and effusion/swelling. A separate rating under Diagnostic Code 5260 would therefore constitute impermissible pyramiding given the Veteran’s lack of compensable loss of flexion or extension. Prior to December 12, 2019, the Veteran demonstrated flexion to, at worst, 140 and extension to zero degrees. He denied experiencing flare-ups and instead stated that his left knee was constantly in pain. Such pain was contemplated, along with his degenerative arthritis, when a 10 percent rating was awarded under Diagnostic Code 5260. Under that Diagnostic Code, absent arthritis, flexion must be limited to 60 degrees to warrant a 10 percent rating. As much was not shown at any point during the appeal period. Similarly, in order to warrant a compensable rating under Diagnostic Code 5262, the evidence must show that the Veteran’s extension was limited to 10 degrees. The Veteran’s extension was noted to be limited, at most, to 5 degrees, which equates to a noncompensable rating under Diagnostic Code 5262. See private treatment records. Further, at no point during the appeal period has the Veteran demonstrated ankylosis or contended he experiences ankylosis. As such, Diagnostic Code 5256 is not applicable. Diagnostic Code 5257 is also not applicable. Throughout the appeal period, all joint stability tests were normal and there is no medical evidence of recurrent patellar subluxation or lateral instability. In addition, there is no evidence of genu recurvatum or tibia impairment. Therefore, Diagnostic Codes 5262 and 5263 are also not applicable. Prior to December 12, 2019, the Veteran reported that he experienced pain in his knee cap. For example, on his July 2017 NOD, he stated that his kneecap still had a pin or screw embedded and it caused discomfort and pain. His left kneecap pain was also noted throughout the private and VA treatment records. On his VA examination in April 2018, no dislocation of the patella was found, and no pain was noted on examination. Further, joint stability testing was performed and was normal. On his August 2018 VA Form 9, the Veteran reported that his left knee degenerative arthritis had increased in severity. He did not report that his kneecap would become dislocated. The private and VA treatment records also do not indicate as much. It was not until the Veteran’s VA examination on December 12, 2019, that severe recurrent patella dislocation was shown. As a result, the Board finds that a 20 percent rating under Diagnostic Code 5258 is warranted as of that date. Under Diagnostic Code 5258, a 20 percent rating is warranted for dislocated cartilage with frequent episodes of “locking,” pain, and effusion into the joint. This Diagnostic Code most closely contemplates the Veteran’s symptoms of severe recurrent patella dislocation, swelling, and pain. Diagnostic Code 5259 contemplates removal of the semilunar cartilage, which has not been demonstrated in this case. Regardless, this Diagnostic Code allows for a maximum 10 percent rating and therefore would not afford the Veteran the highest possible rating available. Finally, Diagnostic Code 5257 contemplates recurrent subluxation and lateral instability, which has not been demonstrated in this case. The Board recognizes that the Veteran experiences severe recurrent patellar dislocation; however, the evidence does not show that the knee joint itself (tibio-femoral) and not the patella-femoral portion of the joint is unstable/becomes dislocated. Therefore, this Diagnostic Code is not applicable. The Board recognizes the Veteran’s contentions regarding his left knee symptomatology and his sincere belief that his rating should be increased to at least 50 percent. See May 2020 Statement. He is competent to report certain obvious symptoms of disability, such as pain and swelling, but not to identify a specific level of disability. Barr v. Nicholson, 21 Vet. App. 303 (2007). Competent evidence concerning the nature and extent of the Veteran's service-connected disability has been provided by the medical professionals who have examined him, and they included consideration of his lay reports of symptoms. The overall medical findings adequately address the criteria under which this disability is evaluated. The VA examination reports of record document the Veteran’s lay complaints, including complaints of constant pain in his kneecap. However, pain alone, without functional loss, does not warrant a higher rating. Instead, ratings are based on functional loss caused by the pain. On VA examination, the Veteran consistently endorsed that his left knee was constantly in pain. He was examined during these times and demonstrated full range of motion and mildly limited range of motion. Thus, the Board accords the objective medical findings greater weight than subjective complaints of increased symptomatology. Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). Put differently, even considering the Veteran's pain and limitation of function, there is no persuasive evidence that his left knee disability warrants a rating higher than 10 percent prior to December 12, 2019, and a 20 percent thereafter. The Board also recognizes the limitations that the Veteran has as a result of his service-connected left knee disability, including swelling once a month, which was described on his most recent VA examination. This symptom is specifically contemplated by Diagnostic Code 5258. Indeed, the Board has considered all functional limitations in determining the current ratings. In sum, the Board finds that prior to December 12, 2019, the most probative evidence shows that the Veteran had painful motion with arthritis such that a 10 percent rating under Diagnostic Code 5260 most appropriately contemplated the impairment caused by his left knee disability. He did not demonstrate compensable limitation of flexion or extension or any evidence of dislocation of the patella prior to December 12, 2019. His only complaints were pain emanating from the patella causing functional loss. The VA examination report dated in December 12, 2019, is the first and only evidence of record to indicate that the Veteran experiences severe patella dislocation. Therefore, as of December 12, 2019, it is factually ascertainable that an increased rating of 20 percent under Diagnostic Code 5258 is warranted.   Because this Diagnostic Code specifically contemplates pain, it should be combined and not added, with the Veteran’s 10 percent rating under Diagnostic Code 5260. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Martha R. Luboch, 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.