Citation Nr: 20051850 Decision Date: 08/05/20 Archive Date: 08/05/20 DOCKET NO. 16-11 499A DATE: August 5, 2020 ORDER Entitlement to an increased rating of 30 percent, but no higher, for degenerative joint disease of the left knee is granted, effective January 30, 2013, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to an increased rating higher than 30 percent for degenerative joint disease of the left knee, effective July 2, 2019, is denied. Entitlement to an increased rating of 30 percent, but no higher, for degenerative joint disease of the right knee is granted, effective January 30, 2013, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to an increased rating higher than 30 percent for degenerative joint disease of the right knee, effective July 2, 2019, is denied. Entitlement to a separate rating of 20 percent, but no higher, for instability of the left knee is granted, effective January 30, 2013, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to an increased rating higher than 20 percent for instability of the left knee, effective July 2, 2019, is denied. Entitlement to a separate rating of 20 percent, but no higher, for instability of the right knee is granted, effective January 30, 2013, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to an increased rating higher than 20 percent for instability of the right knee, effective July 2, 2019, is denied. FINDING OF FACT Effective January 30, 2013, the Veteran’s bilateral knee disability is manifested by flexion limited by pain in all ranges of motion; and moderate lateral instability. CONCLUSIONS OF LAW 1. The criteria for a rating of 30 percent, but no higher, for degenerative joint disease of the left knee, have been met, effective January 30, 2013. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.400(o)(2), 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5260. 2. The criteria for a rating in excess of 30 percent for degenerative joint disease of the left knee, have not been met, effective July 2, 2019. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5260. 3. The criteria for a rating of 30 percent, but no higher, for degenerative joint disease of the right knee, have been met, effective January 30, 2013. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.400(o)(2), 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5260. 4. The criteria for a rating in excess of 30 percent for degenerative joint disease of the right knee, have not been met, effective July 2, 2019. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5260. 5. The criteria for a rating of 20 percent, but no higher, for instability of the left knee have been met, effective January 30, 2013. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.400(o)(2), 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. 6. The criteria for a rating in excess of 20 percent for instability of the left knee have not been met, effective July 2, 2019. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. 7. The criteria for a rating of 20 percent, but no higher, for instability of the right knee have been met, effective January 30, 2013. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.400(o)(2), 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. 8. The criteria for a rating in excess of 20 percent for instability of the right knee have not been met, effective July 2, 2019. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1982 to November 1990. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a March 2015 rating decision. The Board remanded this case for additional development in September 2018. There having been substantial compliance with the Board remand directives by the AOJ, the case is now returned for appellate review. During the remand, in an October 2019 rating decision, the Agency of Original Jurisdiction (AOJ) granted increased ratings of 30 percent for degenerative joint disease for each knee, effective July 2, 2019; and granted separate 20 percent ratings for instability of the bilateral knees, effective July 2, 2019. As the Veteran has not indicated that this grant satisfies his appeal, this case is still before the Board. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). Increased Rating 1. Entitlement to an increased rating for degenerative joint disease of the bilateral knees The Veteran contends that he is entitled to a higher rating for the degenerative joint disease of his bilateral knees. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the United States Court of Appeals for Veterans Claims (Court) held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The Veteran bilateral degenerative joint disease, status post meniscectomy is rated pursuant to the provisions of Diagnostic Codes 5003-5260. Degenerative arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Diagnostic Code 5003 provides that when limitation of motion due to arthritis 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 Diagnostic Code 5003. In the absence of limitation of motion, Diagnostic Code 5003 provides for a 10 percent rating with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. A 20 percent rating under Diagnostic Code 5003 requires involvement of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations. Normal range of knee motion is 140 degrees of flexion and zero degrees of extension. 38 C.F.R. § 4.71, Plate II. Limitation of motion of the knee is rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5260 and 5261. Under Diagnostic Code 5260, a noncompensable rating is warranted for flexion limited to 60 degrees. A 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. A 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Effective prior to July 2, 2019, the Veteran’s bilateral knee degenerative joint disease is rated as 10 percent disabling for each knee. Effective July 2, 2019, the Veteran is assigned separate 30 percent ratings for degenerative joint disease of the bilateral knees. Upon review of the evidence, the Board concludes that a rating of 30 percent is warranted for degenerative joint disease of each knee for the entire appeal. While the Veteran was assigned the 30 percent rating based on the finding of limitation of flexion to less than 15 degrees under Diagnostic Code 5260 on a July 2019 VA examination report, the record shows that the Veteran has had limitation of flexion consistent with this finding due to pain during the entire appeal. The medical evidence shows that throughout the entire appeal the Veteran has had painful motion in the bilateral knees that has existed from 0 degrees of any motion. Specifically, the earliest VA examination report during this appeal dated in April 2014 shows that the Veteran’s painful motion on objective testing started at 0 degrees of flexion. Additional examinations of record mostly are consistent with this finding. An August 2014 VA examination report noted that the Veteran had pain with every step and every bending of the knees. A February 2017 VA examination report shows worsening and severe problems with both knees, with pain with all motions. The examiner noted, however, that there were times when the Veteran was observed without any evidence of pain and determined that the subjective statements regarding functional limitations were not objectively valid. A July 2019 VA examination report, which as noted, was used as the basis for the grant of the 30 percent rating for degenerative joint disease of the bilateral knees, shows that during flare-ups it was estimated that the Veteran had less than five degrees of flexion during active weight-bearing motion. The Veteran complained of severe pain, where he was not able to move his knees or allow his knees to be moved during flare-ups. While prior examinations of the knee did not address range of motion of the knees during active and passive weight-bearing, the Board resolves all doubt that based on the Veteran’s numerous statements that he had pain with all ranges of motion of the knees since 2014 that a rating of 30 percent was warranted for the entire appeal. Although the examiner in February 2017 doubted the Veteran’s veracity when describing his functional impairment, this was the only examiner who made such a note; and the Veteran’s complaints have been more or less consistent since 2014. As the Veteran is in receipt of the highest schedular rating for limitation of flexion of the leg, there is no basis to award a higher evaluation. The Board has also considered the other Diagnostic Codes pertaining to the knee and leg. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See 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 paying compensation twice for the same symptoms or functional impairment). Under Diagnostic Code 5256, ankylosis of the knee at a favorable angle in full extension, or in slight flexion between 0 degrees and 10 degrees warrants a 30 percent rating. Ankylosis is stiffening 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). Ankylosis is also defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 93 (30th ed. 2003). The Veteran’s knees are not immobile; however, given that he has pain at any motion of the knees and was found to have functional range of motion from 0 to negative five degrees of flexion, this is functional impairment that is akin to ankylosis of the knees. However, the medical evidence is not consistent with ankylosis of the knees between 10 and 20 degrees of flexion. Thus, a rating higher than 30 percent is not warranted under Diagnostic Code 5256. The medical evidence also does not show nonunion of the tibia and fibula with loss of motion requiring brace under Diagnostic Code 5262. The medical evidence includes a finding of torn meniscus with frequent episodes of “locking,” pain, and effusion into the joint in 2014, which is consistent with a 20 percent rating under Diagnostic Code 5258. See, e.g., April 2014 VA examination report. However, the Veteran it does not appear that overall the evidence indicates a separate rating under this Diagnostic Code is warranted, and further, the Board finds that any joint pain and locking are already contemplated. Specifically, Diagnostic Code 5260 is this case addresses limitation of motion of the knee due to the types of demonstrated impairment including pain and in this case, reported “locking” to the extent that the Veteran’s motion is reportedly severely limited; the Veteran has assigned the higher maximum rating with consideration of these factors. See also 38 C.F.R. §§ 4.14, 4.40, 4.45, 4.59; DeLuca, Mitchell, Correia, and Sharp, all supra. Notably, while the 2014 examiner indicated positive findings for locking, pain and effusion, the examiner also indicated the Veteran reported that his meniscectomy residuals were pain, weakness and instability. He did indicate some locking and popping reported by the Veteran elsewhere in the report. The Veteran did not report effusion on the 2014 examination or on reexamination in February 2017. Similarly, assigning a separate rating for symptomatic removal of semilunar cartilage would be rating the same impairment twice, as the Veteran’s impairment includes limitation of motion due to pain with swelling, and “locking.” There is no evidence of limitation of extension of the knees under Diagnostic Code 5261. Thus, a separate rating is not warranted under Diagnostic Code 5261. There also is no evidence of genu recurvatum under Diagnostic Code 5263. A separate rating based on lateral instability under Diagnostic Code 5257 is addressed in the section below. In conclusion, the Board finds that the evidence supports a 30 percent rating for degenerative joint disease of each knee for the entire appeal. As for the effective date, under 38 C.F.R. § 3.400(o)(2), the proper effective date for a grant of an increased rating is the earliest date as of which it is factually ascertainable based on all evidence of record that an increase in disability had occurred if a complaint claim or intent to file a claim is received within one year from such date, otherwise, date of receipt of claim. When medical records indicate an increase in a disability, receipt of such medical records may be used to establish effective date(s) for retroactive benefits based on facts found of an increase in a disability only if a complete claim or intent to file a claim for an increase is received within one year of the date of the report of examination, hospitalization, or medical treatment. Given that the Veteran had recent surgeries for his knees prior to his January 30, 2014 increased rating claim, and still had impairment within one year prior to his increased rating claim, the effective date of the 30 percent rating should be January 30, 2013 (i.e., one year prior to the January 30, 2014 claim). See, e.g., August 2012 VA treatment record showing left knee arthroscopy medial meniscal debridement with findings of left knee pain, popping and catching; November 2013 VA treatment record showing right knee medial meniscectomy; December 2013 complaints of sharp pain to the medial right knee causing him to nearly fall at times; January 2014 VA treatment record noting complaints of locking and catching symptoms that had improved but with pain that was worsening. Thus, based on the evidence of record a 30 percent rating, but no higher, is warranted for the degenerative joint disease of each knee, effective January 30, 2013. To the extent that a higher rating is not assigned, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to an increased rating for instability of the bilateral knees The Veteran was granted separate 20 percent ratings for instability of each knee, effective July 2, 2019, based on a VA examination report. The Veteran’s instability of the knees is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5257, for other impairment of the knee. Under Diagnostic Code 5257, a 10 percent rating is warranted for slight recurrent subluxation or lateral instability. A 20 percent rating is warranted for moderate recurrent subluxation or lateral instability. A 30 percent rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. According to MERRIAM WEBSTER’S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), “slight” means small in amount. “Moderate” means limited in scope or effect. “Severe” means very painful or harmful or of a great degree. Objective medical evidence is not required to establish lateral knee instability under Diagnostic Code 5257, so objective medical evidence cannot be categorically found more probative than lay evidence with respect to this Diagnostic Code. See English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). Prior to July 2, 2019, the objective medical findings did not show any instability in the knees. However, the Veteran had multiple complaints of bilateral knee instability. A May 2014 statement shows the Veteran had complaints of instability and walked with a cane to prevent falls due to the instability in the knees. He noted that he had instability on many occasions with feeling that his knees would give way. An August 2014 VA examination report shows the Veteran complained of instability of the knees. He constantly used a cane. A February 2017 VA examination report noted that the examiner determined that objective examination did not reveal any indication for the use of a cane. Nonetheless, the examiner acknowledged the Veteran’s reported difficulties with squatting and kneeling, getting up from sitting, and with stairs. A July 2019 VA examination report, which, as noted, was the basis for the assignment of a separate 20 percent rating for lateral instability, shows that on objective testing the Veteran had 1+ anterior and posterior instability, and 2+ medial and lateral instability in the bilateral knees. It was noted that the Veteran constantly used a brace, cane, and regularly used a rolling stool. The Veteran complained that during flare-ups his knees would lock up or give way. Thus, based on the evidence of record, a separate 20 percent rating for instability of the knees is warranted, effective for the entire appeal. The Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for instability of the knees, effective July 2, 2019. The Board has carefully considered the Veteran’s reports about instability. English, 30 Vet. App. 347, 352-53. However, overall, the lay and medical evidence indicates that the instability symptoms have varied and do not suggest the presence of symptoms more nearly approximating severe severity. The Board has also considered the other Diagnostic Codes pertaining to the knee and leg, which are addressed the section above. As for the effective date, under 38 C.F.R. § 3.400(o)(2), the proper effective date for a grant of an increased rating is the earliest date as of which it is factually ascertainable based on all evidence of record that an increase in disability had occurred if a complaint claim or intent to file a claim is received within one year from such date, otherwise, date of receipt of claim. When medical records indicate an increase in a disability, receipt of such medical records may be used to establish effective date(s) for retroactive benefits based on facts found of an increase in a disability only if a complete claim or intent to file a claim for an increase is received within one year of the date of the report of examination, hospitalization, or medical treatment. Given that the Veteran had recent surgeries for his knees prior to his January 30, 2014 increased rating claim, and still had impairment within one year prior to his increased rating claim, the effective date of the 30 percent rating should be January 30, 2013 (i.e., one year prior to the January 30, 2014 claim). See, e.g., August 2012 VA treatment record showing left knee arthroscopy medial meniscal debridement with findings of left knee pain, popping and catching; November 2013 VA treatment record showing right knee medial meniscectomy; December 2013 complaints of sharp pain to the medial right knee causing him to nearly fall at times; January 2014 VA treatment record noting complaints of locking and catching symptoms that had improved but with pain that was worsening. Thus, based on the evidence of record a 20 percent rating, but no higher, is warranted for the lateral instability of each knee, effective January 30, 2013. To the extent that a higher rating is not assigned, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sarah B. Richmond, 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.