Citation Nr: 20056830 Decision Date: 08/27/20 Archive Date: 08/27/20 DOCKET NO. 10-29 450 DATE: August 27, 2020 ORDER Subject to the laws and regulations governing the award of VA monetary benefits, a 20 percent rating, but no more, for fractured right knee medial femoral condyle with medial collateral ligament damage and instability is granted. A rating in excess of 10 percent for right knee degenerative joint disease (DJD) is denied. FINDINGS OF FACT 1. Throughout the entire appeal period, the Veteran’s right knee disability demonstrated recurrent subluxation or lateral instability resulting in moderate impairment. 2. Throughout the entire appeal period, the Veteran’s right knee disability has resulted in objectively confirmed painful limitation of motion but has not resulted in incapacitating exacerbations. CONCLUSIONS OF LAW 1. The criteria for a 20 percent rating, but no more, for fractured right knee medial femoral condyle with medial collateral ligament damage and instability have been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code (DC) 5255-5257. 2. The criteria for a rating in excess of 10 percent for right knee DJD have not been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, DC 5257-5010. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from January 1987 to August 1992. These matters were previously before the Board in May 2013, April 2015, and January 2020 at which time they were remanded for further evidentiary development. Substantial compliance with the remand requests having been accomplished, the Board may proceed to consider the claims. See Stegall v. West, 11 Vet. App. 268 (1998). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Increased Ratings The Veteran was granted service connection for fractured right medial femoral condyle with medial collateral ligament damage, effective March 3, 1994, at a noncompensable rate. Following a claim for increase in July 2009, that rating was increased to 10 percent and an additional, separate rating for the right knee was awarded at 10 percent, both effective July 23, 2009. Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The veteran’s entire history is reviewed when making disability evaluations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; separate ratings may be assigned for distinct disabilities resulting from the same injury only where the symptomatology for one condition is not duplicative or overlapping with the symptomatology of the other condition. See 38 C.F.R. § 4.14; see also Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of his symptoms. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007); Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Court, in Correia v. McDonald, 28 Vet. App. 158 (2016), held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Thus, the Court’s holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate. Further, in evaluating joint disabilities, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. at 592. Additionally, the Court has stated that flare-ups must be factored into an examiner’s assessment of functional loss. Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017). The Veteran’s right knee disability is rated under two separate diagnostic codes. He is in receipt of a 10 percent rating under DC 5255-5257 and a 10 percent rating under DC 5257-5010. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating, with the first code representing the underlying condition and the second code representing the residuals. 38 C.F.R. § 4.27. Here, the hyphenated diagnostic codes indicate that his right knee disability is rated based on slight recurrent subluxation or lateral instability (DC 5255-5257) and evidence of traumatic arthritis with painful motion (DC 5257-5010). Under DC 5255, pertaining to impairment of the femur, malunion of the femur receives a 10 percent rating for malunion with slight knee or hip disability, a 20 percent rating for malunion with moderate knee or hip disability, and a 30 percent rating for malunion with marked knee or hip disability. Fracture of the surgical neck with a false joint receives a 60 percent rating. Fracture of the shaft or anatomical neck of the femur with nonunion, without loose motion, weight bearing preserved with aid of brace warrants a 60 percent rating. Fracture of the shaft or anatomical neck of the femur with nonunion, with loose motion (spiral or oblique fracture) warrants an 80 percent rating. Under DC 5257, slight recurrent subluxation or lateral instability will be rated as 10 percent disabling, moderate recurrent subluxation or lateral instability will be rated as 20 percent disabling, and severe recurrent subluxation or lateral instability warrants a 30 percent rating. Degenerative and/or traumatic arthritis as shown by x-ray studies are rated based on limitation of motion of the affected joint. 38 C.F.R. § 4.71a, DCs 5003, 5010. When, however, the limitation of motion is noncompensable under the appropriate diagnostic code, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion. A rating of 20 percent may be applied where there are occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, DCs 5003, 2010. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. Also relevant to any discussion of knee disabilities are the criteria under Diagnostic Codes 5256 through 5263. 38 C.F.R. § 4.71a. Under DC 5256, favorable ankylosis of the knee, in full extension or in slight flexion between 0 degrees and 10 degrees warrants a 30 percent disability rating; ankylosis in flexion between 10 degrees and 20 degrees warrants a 40 percent disability rating; ankylosis in flexion between 20 degrees and 45 degrees warrants a 50 percent disability rating; and extremely unfavorable ankylosis in flexion at an angle of 45 degrees or more warrants a 60 percent disability rating. Under DC 5258, a claimant is entitled to a 20 percent rating for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint. Under DC 5259, a 10 percent evaluation is assigned for symptomatic removal of semilunar cartilage. Under DC 5260, flexion of the leg limited to 60 degrees is rated noncompensably (0 percent) disabling; flexion of the leg limited to 45 degrees is rated 10 percent disabling; flexion of the leg limited to 30 degrees is rated 20 percent disabling; and flexion of the leg limited to 15 degrees is rated 30 percent disabling. Under DC 5261, extension of the leg limited to 5 degrees is rated noncompensably (0 percent) disabling; extension of the leg limited to 10 degrees is rated 10 percent disabling; extension of the leg limited to 15 degrees is rated 20 percent disabling; extension of the leg limited to 20 degrees is rated 30 percent disabling; extension of the leg limited to 30 degrees is rated 40 percent disabling; and extension of the leg limited to 45 degrees is rated 50 percent disabling. Under DC 5262, a 10 percent rating is warranted for malunion of the tibia and fibula with slight knee or ankle disability. A 20 percent rating is warranted for malunion of the tibia and fibula with moderate knee or ankle disability. A 30 percent rating is warranted for malunion of the tibia and fibula with marked knee or ankle disability. A maximum 40 percent rating is warranted with nonunion of the tibia and fibula, with loose motion, requiring a brace. Under DC 5263, a 10 percent rating is warranted for genu recurvatum (acquired, traumatic, with weakness and insecurity in weight-bearing objectively demonstrated). Normal ranges of motion of the knee are to 0 degrees in extension, and to 140 degrees in flexion. 38 C.F.R. § 4.71, Plate II. The Board notes that the terms “mild,” “moderate,” “moderately severe,” and “severe” are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. Although a medical examiner’s use of descriptive terminology such as “mild” is an element of evidence to be considered by the Board, it is not dispositive of an issue. The Board must evaluate all evidence in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Turning to the evidence of record, several lay statements were submitted by the Veteran and his friends and family in September 2009. One friend stated that if the Veteran sat for a prolonged time, he had to get up and stretch periodically. Another statement described difficulties with prolonged sitting while driving. The Veteran reported that he could only sit for short periods of time before needing to stand up and stretch out his right knee to relieve pain. A VA examination was conducted in December 2009. The Veteran described symptomology of weakness, stiffness, swelling, giving way, tenderness, and pain. He stated that he did not experience heat, redness, lack of endurance, locking, fatigability, deformity, drainage, effusion, subluxation, or dislocation. He described flare-ups as often as twice a day, each time lasting for one hour, reaching a 10 out of 10 pain level. Flare-ups were precipitated by physical activity and sitting in a chair and relieved by rest and Motrin. During flare-ups he experienced swelling in the knee such that he could not bend it and difficulty with standing and walking. He noted that his condition had not resulted in any incapacitation in the past 12 months. The Veteran described his functional impairment as being unable to play basketball or to work out regularly. Upon observation, range of motion was from 0 to 110 degrees with no additional limitation of motion upon repetition but with pain, fatigue, weakness, and lack of endurance with repetitive use. There was instability, weakness, tenderness, and guarding of movement. There were no signs of edema, abnormal movement, effusion, redness, heat, deformity, malalignment, drainage, locking pain, genu recurvatum, or crepitus. Anterior and posterior cruciate ligaments stability testing was normal but medial and lateral collateral ligaments stability testing results were abnormal with slight instability demonstrated. The Veteran’s gait was normal and he did not require use of any assistive devices. X-rays revealed mild DJD of the right knee and patella. The effect on his occupational functioning was stiffness, pain, and difficulty with prolonged walking or climbing stairs. The Veteran underwent another VA examination in June 2010. The right knee showed no signs of edema, instability, abnormal movement, effusion, weakness, tenderness, redness, heat, deformity, malalignment, drainage, subluxation, or guarding of movement. Range of motion was from 0 to 90 degrees with no additional degrees of limitation upon repetition. Joint function was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. Stability tests were within normal limits for anterior and posterior cruciate ligaments, medial and lateral collateral ligaments, and the medial and lateral meniscus. The knee showed no signs of subluxation. A December 2010 VA treatment record noted that the Veteran had normal range of motion in the right knee with no erythema and warmness. There was minimal swelling and tenderness. The Veteran told VA clinicians in September 2012 that his right knee made a popping sound if it was out of place. He also reported ongoing instability. Upon evaluation, he had normal range of motion and a mild suprapatellar effusion. In November 2012, the Veteran complained of instability. Range or motion was from 0 to 120 degrees. Physical therapy was ordered for the Veteran’s bilateral knees. In January 2013, the Veteran reported intermittent, non-radiating, dull and aching right knee pain that increased with walking, activity, bending, and stooping, and that was relieved by rest, medication, and use of Naproxen. His knee had normal range of motion with grinding and crepitus but with no effusions. Bilateral knee braces were ordered. Another VA knee examination was conducted in June 2013. Range of motion was from 0 to 125 degrees with pain beginning at 10 degrees and 125 degrees. Repetitive use testing resulted in motion from 0 to 120 degrees. After repetitive use, less movement than normal, weakened movement, excess fatigability, pain on movement, swelling, instability of station, disturbance of locomotion, and interference with sitting, standing, and weight-bearing resulted. There was pain on palpation and muscle strength testing was 4 out of 5. Stability tests yielded normal results other than in testing anterior instability. There was no patellar subluxation or dislocation. Meniscal conditions in the right knee included meniscal tear and frequent episodes of joint locking and pain. The Veteran reported constant use of a knee brace. The examiner noted that the functional impact of the Veteran’s bilateral knee disabilities included contributing factors of pain, weakness, fatigability, and/or incoordination and that during flare-ups and with repeated use over time he had additional limitation described as pain with movement and subjective range of motion loss. Degrees of additional loss of range of motion were unable to be estimated without resorting to speculation. The Veteran underwent another VA knee examination in July 2013. He stated that his right knee popped in and out of place, hurt over the kneecap and the outside of the knee, and that it gave out when he got off a stationary bike or when climbing stairs. He denied flare-ups. Range of motion was from 0 to 105 degrees with pain at 105 degrees. Range of motion was the same after repetitive-use testing and there was no additional limitation or functional impairment. Muscle strength testing and joint stability testing were normal. There was no history of recurrent patellar subluxation/dislocation and no meniscal conditions. The Veteran reported regular use of a knee brace. The functional impact included having to stand and walk from time to time. Another examination was conducted in April 2014. The Veteran reported flare-ups in his knee of pain and stiffness after prolonged sitting. Range of motion was from 0 to 135 degrees with pain at 135 degrees. Repetitive-use testing yielded similar results. The examiner noted that there was no additional limitation of motion with repeated use but that less movement than normal and pain resulted. Muscle strength testing and joint stability testing yielded normal results. There was no history of recurrent patellar subluxation or dislocation. Although the Veteran previously had a meniscal condition, he did not currently have one. He reported regular use of a knee brace for support and pain relief. An MRI conducted in July 2014 revealed a joint effusion, severe degenerative changes involving the lateral patellofemoral joint space with obliteration of the joint space, extensive tendinosis involving the infrapatellar tendon, an oblique tear in the medial meniscus involving the posterior horn, extensive tendinosis involving the anterior cruciate ligament and the proximal half of the posterior cruciate ligament with no complete tear, an oblique tear in the lateral meniscus involving the posterior horn and body, and a horizontal tear in the anterior horn. The Veteran underwent another VA examination in January 2016. He reported having swelling, increasing dull pain and discomfort from prolonged sitting. He also experienced sharp pain at a 10 out of 10 with minimal relief from over-the-counter medications. He described flare-ups occurring with prolonged sitting, standing, walking, and stair-climbing in which his knee felt weak. Range of motion was from 0 to 110 degrees in flexion and 140 to 0 degrees in extension. Pain was noted upon flexion. There was no evidence of pain with weight-bearing, evidence of localized tenderness or pain on palpation, or crepitus. The examiner determined that she could not state whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over time or during flare-ups without speculation as an actual examination at those times would be required. Muscle strength testing and joint stability testing were normal. There was no history of recurrent subluxation or lateral instability and no ankylosis. The Veteran had a history of recurrent effusion, based on previously noted effusions in September 2012 and July 2014 and a current small right suprapatellar effusion upon x-ray. He had no current meniscal conditions. He reported regular use of a knee brace. The examiner determined that the Veteran’s right knee disability would not result in a functional impact. An x-ray of the right knee in February 2017 demonstrated no acute fracture or dislocation, a stable prepatellar ossification/calcification representing chronic sequela of old trauma, a stable osseous fragmentation adjacent to the tibial tuberosity suggesting prior Osgood-Schlatter’s disease, mild tricompartmental osteoarthritis, and no significant joint effusion. Another VA knee examination was conducted in January 2020. The Veteran reported chronic right knee pain with intermittent episodes of swelling and weakness. He also stated that the knee popped out of the socket sideways several times a week, requiring him to straighten the leg to pop it back into place. He used Diclofenac gel with minimal improvement in symptoms and had had physical therapy and corticosteroid injections in the past with significant improvement. He described flare-ups in his bilateral knees, with symptoms in the left knee worse than the right. He stated that they occurred when his knees were bent from prolonged sitting and with stairs or physical activities. Flare-ups consisted of worsening pain with a burning and throbbing sensation. The Veteran reported that he was unable to play basketball and has difficulty with climbing, repeated use of stairs, stooping, prolonged sitting, and prolonged standing. Range of motion was from 0 to 95 degrees with pain on flexion and extension. Repetitive use testing yielded similar results without additional functional loss. He had pain with weight-bearing, nonweight-bearing, and with passive range of motion. There was tenderness to palpation in the medial and lateral aspect of the knee and crepitus. Muscle strength testing was normal and there was no ankylosis. There was no history of recurrent subluxation, lateral instability, or recurrent effusion. Joint stability testing yielded normal results. The examiner noted a prior meniscal tear but no current associated symptoms. The Veteran stated that he regularly used a knee brace for symptoms and stability. Regarding repetitive use over time and during flare-ups, the examiner stated that pain, fatigue, and weakness would result. However, she could not provide an actual decrease in terms of degrees of range of motion with repeated use over time or during flare-ups based on a single examination. She noted that the Veteran himself described his increased functional limitation with repeated use over time and during flare-ups as limitations with bending, stooping, climbing, repeated use of stairs, prolonged standing, and prolonged sitting. The Board notes at the outset that although several examinations of record did not discuss the additional requirements outlined in Correia or provide limitation of motion after repeated use over time or during flare-ups in terms of degrees of motion, the Veteran himself has provided ample statements regarding the limitation of his activities from which to extrapolate the extent and severity of his right knee disability. His own depictions of the symptomology and practical effects of his condition provide an adequate basis upon which to evaluate the disability. For instance, he has repeatedly stated that he experiences increased pain with prolonged sitting, suggesting pain with nonweight-bearing and he has given examples of activities he cannot engage in during flare-ups, such as prolonged standing and walking. His comments that after prolonged sitting he needed to get up and move his knee suggested that range of motion would be limited at first but would improve with additional movement. Further, the Board finds that the most recent VA examination is adequate to determine the nature, extent, and severity of the Veteran’s right knee disability. Although additional impairment in terms of degrees of range of motion could not be estimated after repetitive use over time or during flare-ups, the examiner found that pain, fatigue, and weakness would cause additional functional loss, she used the Veteran’s own description of his limitations to describe the functional impact, and she provided a medical reason for why additional limitation in terms of degrees of motion could not be provided. DeLuca v. Brown, 8 Vet. App. At 202; Sharp v. Shulkin, 29 Vet. App. at 32. Further, the requirements of Correia, were addressed. Correia v. McDonald, 28 Vet. App. at 158. Based on the foregoing, the Board finds that rating the Veteran’s right knee disability under DC 5255-5257 and DC 5257-5010 continue to be the most appropriate and advantageous to the Veteran. There is no evidence throughout the entire appeal period of ankylosis, malunion of the tibia and fibula, or genu recurvatum, warranting evaluation under DCs 5256, 5262, or 5263. Further, range of motion testing has not demonstrated (and the Veteran has not described) flexion and extension to be limited to such an extent that they are compensable under DCs 5260 and 5261. Although a July 2014 MRI revealed meniscal tears and the Veteran has frequent episodes of pain and effusion, at only one examination was locking noted to be a symptom. At six other VA examinations, locking was denied, and the Veteran did not complain of locking at any point to his treating clinicians. As such, frequent episodes of locking have not been demonstrated such that the rating criteria of DC 5258 are met. Finally, although he has had a meniscal condition, he has not undergone a meniscectomy, warranting rating under DC 5259. Accordingly, the Board finds that rating under DC 5255-5257 and DC 5257-5010 throughout the appeal period is most appropriate. 1. A 20 percent rating, but no more, for fractured right knee medial femoral condyle with medial collateral ligament damage and instability is granted. At several VA examinations, lateral instability has been demonstrated. Further, the Veteran has reported ongoing instability to treating clinicians and has stated that he wears a knee brace in part to aid in stability. Additionally, he has consistently described a popping out of his kneecap to the side several times a week, also suggesting instability or partial dislocation/subluxation. Based on the frequency and severity of the instability symptomology as demonstrated on examination and as described by the Veteran himself, the Board finds that the overall picture of the right knee disability best approximates moderate recurrent subluxation or lateral instability. Under DC 5257, a moderate level of impairment warrants a 20 percent rating. The disability has not exhibited severe impairment, as instability was not demonstrated on all examinations, including on the most recent evaluation. The Board notes that whether under DC 5255 or DC 5257, a moderate level of impairment results in a 20 percent rating. Accordingly, the Board finds that the Veteran’s right knee disability warrants a 20 percent rating under DC 5255-5257 throughout the entire appeal period. 2. A rating in excess of 10 percent for right knee DJD is denied. The Veteran’s right knee disability has demonstrated limitation of motion that is noncompensable under the diagnostic codes pertaining to the knees and there is objective evidence of painful motion. As such, a 10 percent rating under DC 5010 is warranted. Because there is objectively confirmed limitation of motion and no evidence of incapacitating exacerbations, a rating in excess of 10 percent under the criteria of DC 5010 is not merited. Accordingly, the Board finds that the Veteran’s right knee disability does not warrant a rating in excess of 10 percent under DC 5257-5010 throughout the entire appeal period. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). SHEREEN M. MARCUS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Rachel E. Jensen, 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.