Citation Nr: 21000075 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 14-34 899A DATE: January 4, 2021 ORDER An initial disability rating greater than 10 percent for left knee degenerative joint disease (DJD) is denied. An initial disability rating greater than 20 percent for left knee lateral instability is denied. An initial disability rating greater than 30 percent for right knee recurrent subluxation is denied. FINDINGS OF FACT 1. The Veteran’s left knee DJD has been manifested by painful motion, with limitation of extension to 10 degrees and limitation of flexion to 75 degrees prior to May 2013 and full extension and limitation of flexion to 35 degrees thereafter. 2. Beginning October 18, 2011, the Veteran’s service-connected left knee lateral instability has demonstrated no more than moderate instability and subluxation. 3. Beginning October 18, 2011, the Veteran’s service-connected right knee recurrent subluxation has demonstrated no more than severe instability and subluxation. CONCLUSIONS OF LAW 1. Since October 18, 2011, the criteria for a separate initial disability rating greater than 10 percent for left knee DJD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.20, 4.25, 4.40, 4.45, 4.71a, Diagnostic Codes (DC) 5260-5261. 2. Since October 18, 2011, the criteria for a separate initial disability rating greater than 20 percent for left knee lateral instability have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5257. 3. Since October 18, 2011, the criteria for a separate initial disability rating greater than 30 percent for right knee recurrent subluxation have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5257.   REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1990 to May 1993. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a May 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In July 2019, given the Veteran’s significant unrelated health issues that prevent him from effective communication, his sister testified on his behalf as the power of attorney before the undersigned at a Board hearing. A transcript is of record. This case was previously before the Board in November 2019 at which time the above issues were remanded for additional development. Notably, during the course of this appeal beginning October 18, 2011, the Veteran has alleged that he is unable to work due to his service-connected bilateral knee disabilities which raised a claim of entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) pursuant to Rice v. Shinseki, 22 Vet. App. 447, 454-455 (2009). However, such TDIU claim was granted by rating decision dated in July 2020 with an effective date of October 18, 2011. As such, no claim regarding a TDIU is currently pending. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability.  Separate diagnostic codes identify the various disabilities.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.  If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria for the higher rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran.  38 C.F.R. § 4.3.  A Veteran’s entire history is to be considered when assigning disability ratings.  38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).  When evaluating joint disabilities rated on the basis of limitation of motion, 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 also has issued the opinion of Correia v. McDonald, 28 Vet. App. 158 (2016), which clarifies additional requirements that VA examiners should address when assessing musculoskeletal disabilities, holding specifically, that the joints involved should be 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.  In addition, assignment of a disability rating should take into account consideration of limitation of functional ability during flare-ups or when a joint is used repeatedly over a period of time.  See DeLuca, supra. Specifically, in Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court stated that flare-ups must be considered in providing an estimate of additional functional loss based on range of motion. Unfortunately, the guidance on how to evaluate flare-ups has not been particularly clear. As a consequence, it is determined that the holding in Mitchell v. Shinseki, 25 Vet. App. 32 (2011), will be expanded and flare-ups must be quantifiable and must result in limitation of motion of function beyond that contemplated by the already provided evaluation. Knee disabilities are generally rated pursuant to 38 C.F.R. § 4.71a, DC 5260 and/or 5261.  Pursuant to DC 5260, a noncompensable rating is assigned when flexion of the leg is limited to 60 degrees; a 10 percent rating is assigned when flexion is limited to 45 degrees; a 20 percent rating is assigned when flexion is limited to 30 degrees.  Pursuant to DC 5261, a noncompensable rating is assigned when extension of the leg is limited to 5 degrees; a 10 percent rating is assigned when extension of the leg is limited to 10 degrees; and a 20 percent rating is assigned when extension is limited to 15 degrees.  The standardized description of joint measurements is provided in Plate II under 38 C.F.R. § 4.71.  Normal extension and flexion of the knee is from 0 to 140 degrees.  Of note, the Board must consider whether the Veteran is entitled to separate ratings under DC 5260 (limitation of flexion of the leg) and DC 5261 (limitation of extension of the leg).  VAOPGCPREC 9-04 (September 17, 2004), published at 69 Fed. Reg. 59,990 (2004).  Specifically, where a Veteran has both a limitation of flexion and a limitation of extension of the same leg, the limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg. Id.  A number of other diagnostic codes also potentially apply to knee ratings.  Under DC 5256, a 30 percent rating is warranted for ankylosis of the knee with favorable angle in full extension or slight flexion between 0 degrees and 10 degrees.  Under DC 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.  Under DC 5258, dislocated semilunar cartilage, with frequent episodes of “locking,” pain, and effusion into the joint, is rated as 20 percent disabling.  Under DC 5259, a 10 percent disability rating is warranted for symptomatic removal of the semilunar cartilage.  Under DC 5262, a malunion of the tibia and fibula of either lower extremity warrants a 20 percent evaluation if there is a marked knee or ankle disability.  In Lyles v. Shulkin, 29 Vet. App. 107 (2017), the Court held that under 38 C.F.R. § 4.71a, a separate evaluation may be assigned for meniscal problems under DCs 5258 or 5259, even when ratings are in effect under DCs 5257 and 5261. The Veteran seeks higher disability ratings for his service-connected bilateral knee disabilities. By way of history, service treatment records show complaints of knee pain and a diagnosis of retropatellar pain syndrome. By rating decision dated in November 1993, the RO granted service connection for retropatellar pain syndrome of the knees, assigning noncompensable disability ratings for each knee effective May 22, 1993 pursuant to DC 5257 (recurrent subluxation or lateral instability). Subsequently, by rating decision dated in June 2004, the RO increased the Veteran’s disability rating for retropatellar pain syndrome of the right knee from noncompensable to 30 percent disabling effective August 18, 1997. The Veteran filed a claim for increased rating that was received on October 18, 2011. In the May 2012 rating decision that is the subject of this appeal, the RO recharacterized the right knee retropatellar pain syndrome as right knee DJD and decreased the rating for this disability from 30 to 10 percent rating pursuant to DC 5260 (limitation of flexion); recharacterized the left knee retropatellar pain syndrome as left knee DJD and increased the rating for this disability from noncompensable to 10 percent disabling pursuant to DC 5261 (limitation of extension); granted service connection for right knee recurrent subluxation, assigning a 30 percent disability rating pursuant to DC 5257 (recurrent subluxation or lateral instability); and, granted service connection for left knee lateral instability, assigning a 20 percent disability rating pursuant to DC 5257 (recurrent subluxation or lateral instability); each effective October 18, 2011. The Veteran disagreed with this decision and perfected this appeal pertaining to all ratings assigned for his service-connected bilateral knee disabilities except for the right knee DJD. Notably, by rating decision dated in August 2014, the RO restored the 30 percent disability rating for the Veteran’s right knee DJD. Evidence relevant to the current level of severity of the Veteran’s bilateral knee disabilities includes VA knee examinations dated in December 2011, May 2013, and June 2015. Also of record are VA and private treatment records dated through July 2020. During the December 2011 VA knee examination, the examiner noted a diagnosis of bilateral knee DJD. At that time, the Veteran reported a history of bilateral knee disorders since 1990 with multiple injuries to both knees on active duty, including overuse, a medical discharge, and medical care for his knees after discharge. The Veteran denied experiencing flare-ups of the knees. Range of motion testing revealed flexion to 75 degrees and extension to 10 degrees, bilaterally. The Veteran was unable to perform repetitive use testing with three repetitions due to extreme pain. The examiner noted that there was functional loss and/or functional impairment of both knees in the form of pain on movement, instability of station, disturbance of locomotion, and interference with sitting, standing and weight-bearing. The examiner also noted tenderness or pain to palpation of the joint line or soft tissues of the bilateral knees. Muscle strength testing was abnormal for both knees, described as 3/5 or “active movement against gravity.” The examiner was unable to perform anterior instability (Lachmann test) and posterior instability (posterior drawer test) but medial-lateral instability testing revealed moderate instability of 2+ (5-10 millimeters). There was evidence/history of recurrent patellar subluxation or dislocation of the right knee, described as “severe.” There was evidence of bilateral stress fracture of the lower extremity but no evidence of a meniscal condition. The Veteran had not undergone total knee joint replacement and/or arthroscopic knee surgery. There were no other pertinent physical findings. With regard to assistive devices, the examiner noted that the Veteran regularly used a wheelchair, brace, cane, and/or a walker to aid with activities of daily living. There was no functional impairment of an extremity such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. Imaging studies revealed degenerative/traumatic arthritis but there was no x-ray evidence of patellar subluxation. Imaging studies of the right knee also revealed narrowing of medial compartment. The examiner indicated that the Veteran’s bilateral knee disability impacted his ability to work due to marked limitation of standing and walking. During the May 2013 VA knee examination, the examiner continued a diagnosis of bilateral knee DJD. At that time, the Veteran reported that his knees do not bend, that he is in chronic pain, and that he used a walker to ambulate. The Veteran denied experiencing flare-ups of the knees. Range of motion testing revealed flexion to 35 degrees and extension to 0 degrees, bilaterally. The Veteran was able to perform repetitive use testing with three repetitions with no additional loss of motion. The examiner noted that there was functional loss and/or functional impairment of both knees in the form of less movement than normal, weakened movement, incoordination with impaired ability to execute skilled movements smoothly, disturbance of locomotion, and interference with sitting, standing and weight-bearing. The examiner also noted tenderness or pain to palpation of the joint line or soft tissues of the bilateral knees. Muscle strength testing was abnormal for both knees, described as 4/5 or “active movement against some resistance.” Joint stability testing was normal and there was no was evidence/history of recurrent patellar subluxation or dislocation. There was no evidence of “shin splints” (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome, or any other tibial and/or fibular impairment. There was also no evidence of a meniscal condition. The Veteran had not undergone total knee joint replacement and/or arthroscopic knee surgery. There were no other pertinent physical findings. With regard to assistive devices, the examiner noted that the Veteran constantly used a walker to aid with activities of daily living. There was no functional impairment of an extremity such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. Imaging studies were negative for degenerative/traumatic arthritis and/or evidence of patellar subluxation. The May 2013 VA examiner also noted that the Veteran was involved in a motor vehicle accident post-service resulting in multiple traumas in August 2011 and that the Veteran had “adequate function in his knees until 2011, years after discharge.” During the June 2015 VA knee examination (which only pertains to the right knee), the examiner noted a diagnosis of right knee joint osteoarthritis. At that time, the Veteran reported that he was status post open excision of heterotopic ossification at the right anteromedial femur just 13 days earlier. The Veteran reported experiencing flare-ups of the knees, described as “increased pain and swelling” and also reported experiencing functional loss of the knees, described as “decreased weightbearing tolerance.” Range of motion testing revealed flexion to 80 degrees and extension to 10 degrees for the right knee (range of motion testing was not done for the left knee). There was evidence of pain with weight bearing as well as objective evidence of localized tenderness or pain on palpation of the knee joint (specifically, diffusely TTP), however, there was no evidence of crepitus. The Veteran was unable to perform repetitive use testing with three repetitions due to pain exacerbation. The Veteran’s right knee was not examined immediately after repetitive use over time but was medically consistent with the Veteran’s statements describing functional loss with repetitive use over time. Pain significantly limited functional ability with repeated use over a period of time, but the examiner was unable to describe this in terms of range of motion. The Veteran’s right knee was not examined during a flare-up but was medically consistent with the Veteran’s statements describing functional loss during a flare-up. Pain, weakness, fatigability, and incoordination significantly limited functional ability with repeated use over a period of time, but the examiner was unable to describe this in terms of range of motion. Muscle strength testing was normal for the right knee and there was no reduction in muscle strength and/or muscle atrophy. Joint stability testing was not performed as it was “not indicated.” There was no evidence of “shin splints” (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome, or any other tibial and/or fibular impairment. There was also no evidence of a meniscal condition. As above, it was noted that the Veteran underwent right knee surgery (HO excision) 13 days earlier with current residuals of pain, decreased range of motion, and poor wound healing. There were no other pertinent physical findings. With regard to assistive devices, the examiner noted that the Veteran regularly used a cane and occasionally used a rollator to aid with activities of daily living. Specifically, the Veteran used a standard cane for ambulation and a rollator for long distances during the post-operative period. There was no functional impairment of an extremity such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. Imaging studies of the right knee revealed extensive ossification adjacent to the medial and anterior aspect of the distal femur. There was probable loss of the patellofemoral joint space with hypertrophic spurs at the inferior surface of the patella. The medial and lateral meniscus/cartilage was minimally narrowed. The examiner also opined that the Veteran’s right knee disability did not impact his ability to perform any type of occupational task (such as standing, walking, lifting, sitting, etc.) Notably, in January 2016, the Veteran was hospitalized for cardiac arrest with severe hypoxic brain injury and has required nursing home care since that time since the Veteran is no longer able to walk or effectively communicate. The Veteran was scheduled for another VA knee examination in June 2017, but the Veteran cancelled this examination due to his significant health problems and inability to travel. During the July 2019 Board hearing, the Veteran’s sister identified relevant outstanding private treatment records from the Veteran’s current nursing home and testified that the Veteran underwent a knee surgery at Medical University of South Carolina in June 2016. As such, in November 2019, remanded the claim to obtain these outstanding records. Pursuant to the November 2019 Board remand, additional private treatment records were obtained regarding the Veteran’s bilateral knee disabilities. Unfortunately, the additional medical records obtained do not contain sufficient objective testing to demonstrate the severity of any knee subluxation and or loss of motion. Furthermore, the medical records concerning a knee surgery consist of a single August 2015 post-operative treatment visit which provides range of motion findings for the right knee (5 to 90 degrees) but not the left knee. As such, VA has made all reasonable attempts to obtain any outstanding treatment records. 1. An initial disability rating greater than 10 percent for left knee DJD is denied. Upon review of the medical evidence, the Board finds an initial disability rating greater than 10 percent for left knee DJD is not warranted. The Veteran’s left knee DJD is currently rated as 10 percent disabling under DC 5261 pertaining to loss of extension. As above, pursuant to DC 5261, a 20 percent rating is assigned when extension is limited to 15 degrees. Pursuant to DC 5260, a 10 percent rating is assigned when flexion is limited to 45 degrees.   The Veteran had left knee flexion to 75 degrees and extension to 10 degrees in December 2011. He had left knee flexion to 35 degrees and extension to 0 degrees in May 2013. While the Veteran met the criteria for a 10 percent disability rating under DC 5261 during the December 2011 VA examination, he does not currently meet the criteria for a 10 percent disability rating under DC 5261 based on his full extension in May 2013. However, the Veteran does currently meet the criteria for a 10 percent rating under DC 5260 based on his limitation of flexion to 35 degrees during the May 2013 VA examination. As such, the Board finds that the Veteran’s left knee DJD has been appropriated rated as 10 percent disabling for the pendency of the appeal period. While the Veteran reported experiencing flare-ups of the knees during the June 2015 VA knee examination, the Board notes that this examination was specific to the right knee. Even if this history of flare-ups pertained to the left knee, the June 2015 VA examiner did not give an estimate of additional loss during flare-ups or after repeated use over time and there is no indication that any flare-ups for the left knee disability result in any additional loss of motion over that outlined below.  As above, the guidance on how to evaluate flare-ups has not been particularly clear and, pursuant to Mitchell, flare-ups must be quantifiable and must result in limitation of motion of function beyond that contemplated by the already provided evaluation.  Additionally, because there is a regulation addressing the stabilization of ratings, flare-ups must be of such length as to establish that the overall impairment is more severe than currently evaluated.  The statements made in this case do not show that any flare-ups or repeated use over time have additionally limited function in a quantifiable way, nor do they show that they are of such length or duration that a higher or staged rating would not violate the rule regarding stabilization of ratings. In particular, the VA examiner attempted to elicit information from the Veteran in this regard but none was provided. In sum, 38 C.F.R. § 4.1 provides that the degrees of disability specified by the ratings in particular diagnostic codes are considered adequate to compensate for considerable loss of working time from exacerbations or illness proportionate to the severity of the several grades of disability.  Here, the Veteran’s reports of exacerbation or flare-ups for his left knee DJD is not quantifiable and not of sufficient duration to warrant a change in evaluation without violating the spirit of Mitchell, 38 C.F.R. § 4.1, and the rule regarding stabilization of ratings. Furthermore, the lack of an opinion without speculation to estimate any additional range of motion loss during flare-ups or after repeated use due to not observing the disabilities during increased pain, as noted in Sharp, is not prejudicial. Therefore, no further VA examination or medical opinion is necessary. Also, while neither the December 2011 nor the May 2013 VA examinations comply with Correia, as above, the Veteran was scheduled for another VA knee examination in June 2017, but the Veteran cancelled this examination due to his significant health problems and inability to travel. As such, VA has made all reasonable attempts to afford the Veteran a VA examination that complies with Correia. The Board acknowledges the Veteran’s consistent reports that prolonged walking, sitting, and weight-bearing have been the precipitating factors for increased knee pain; however, he was able to take care of his activities of daily living prior to his January 2016 hospitalization for cardiac arrest with severe hypoxic brain injury.  Prior to this event, the record showed that he had flexion to at least 35 degrees and full extension. These range of motion findings consider additional functional loss and clinical findings from the VA examination reports and do not suggest that range of motion would change to the degree required for a higher rating with repeated use over time, due to pain, with weight bearing, or during flare-ups.  Given that his complaints do not prevent him from achieving substantial measured range of motion of the left knee they do not support a finding of additional functional loss for a higher rating.  The Veteran’s complaints have been taken into consideration, but there is no evidence that his left knee DJD causes significant or additional functional loss beyond that contemplated by the assigned 10 percent evaluation.  See 38 C.F.R. § 4.71, DCs 5260, 5261; 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, Mitchell, Correia, and Sharp, all supra.  In short, an increased rating for the left knee DJD is not warranted, nor is a separate compensable evaluation based on additional limitation of flexion or extension of the left knee.  See 38 C.F.R. § 4.71a, DCs 5260, 5261.  2. An initial disability rating greater than 20 percent for left knee lateral instability is denied. Upon review of the medical evidence, the Board finds an initial disability rating greater than 20 percent for left knee instability is not warranted. As above, pursuant to DC 5257, slight impairment is assigned a 10 percent rating, moderate impairment a 20 percent rating, and severe impairment a 30 percent rating. The December 2011 VA examination report shows moderate instability of the left knee. While the May 2013 VA examination report shows no instability of the left knee, the Board will not disturb the current award. As such, an initial disability rating greater than 20 percent for left knee instability is not warranted. (CONTINUED ON NEXT PAGE) 3. An initial disability rating greater than 30 percent for right knee recurrent subluxation is denied. Upon review of the medical evidence, the Board finds an initial disability rating greater than 30 percent for right knee recurrent subluxation is not warranted. As above, pursuant to DC 5257, slight impairment is assigned a 10 percent rating, moderate impairment a 20 percent rating, and severe impairment a 30 percent rating. Significantly, a 30 percent is the highest rating possible under DC 5257. The December 2011 VA examination report shows severe recurrent subluxation of the right knee. While the May 2013 VA examination report shows no subluxation of the right knee, the Board will not disturb the current award. As such, an initial disability rating greater than 30 percent for right knee recurrent subluxation is not warranted. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board April Maddox, 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.