Citation Nr: 21001130 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 12-14 270 DATE: January 7, 2021 ORDER Entitlement to a rating in excess of 20 percent based on limitation of flexion prior to April 19, 2017, for a left knee disability is denied. Entitlement to a rating in excess of 30 percent based on limitation of flexion from April 19, 2017, for a left knee disability is denied. Entitlement to a separate 20 percent rating based on limitation of extension from April 19, 2017, to January 16, 2020, is granted. Entitlement to an initial rating in excess of 10 percent for a right knee disability is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The left knee disability does not result in ankylosis, limitation of flexion to fewer than 45 degrees, or impairment of the tibia and fibula. The left knee disability is associated with a 20 degree flexion contracture only from April 19, 2017, to January 16, 2020. 2. The right knee disability does not result in ankylosis, limitation of flexion to fewer than 45 degrees, limitation of extension, or instability. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent prior to April 19, 2017, or 30 percent thereafter based on limitation of flexion have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5258, 5260. 2. The criteria for a separate 20 percent rating or limitation of extension from April 19, 2017, to January 16, 2020, have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5261. 3. The criteria for an initial rating in excess of 10 percent for a right knee disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5257, 5258, 5260, 5261. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February to August 1962. This matter was previously before the Board in July 2020, when it was remanded for additional development. At that time, the Board noted that the Veteran was granted a separate rating for left knee instability effective January 15, 2020, in a May 2020 rating decision and that the Veteran had not appealed the decision. The Veteran has still not appealed the decision; the Board finds the matter is not before it at this time. Increased Rating In determining the degree of limitation of motion, the provisions of 38 C.F.R. § 4.40 concerning lack of normal endurance, functional loss due to pain, and pain on use and during flare-ups; the provisions of 38 C.F.R. § 4.45 concerning weakened movement, excess fatigability, and incoordination; and the provisions of 38 C.F.R. § 4.10 concerning the effects of the disability on the veteran’s ordinary activity are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Ankylosis of the knee in a favorable angle in full extension or in slight flexion between 0 degrees and 10 degrees is assigned a 30 percent rating. A 40 percent rating is assigned for with flexion between 10 and 20 degrees and a 50 percent rating for flexion between 20 and 45 degrees. Extremely unfavorable ankylosis, with flexion at an angle of 45 degrees or more warrants a maximum 60 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5256. Flexion of the leg limited to 60 degrees warrants a noncompensable rating, flexion limited to 45 degrees warrants a 10 percent rating, flexion limited to 30 degrees warrants a 20 percent rating, and flexion limited to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Extension limited to 5 degrees warrants a noncompensable rating, extension limited to 10 degrees warrants a 10 percent rating, extension limited to 15 degrees warrants a 20 percent rating, extension limited to 20 degrees warrants a 30 percent rating, extension limited to 30 degrees warrants a 40 percent rating, and extension limited to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Normal range of motion (ROM) of the knee is extension to 0 degrees and flexion to 140 degrees. 38 C.F.R. § 4.71a, Plate II. Separate ratings may be assigned for disability of the same joint under Diagnostic Codes 5260 (for limitation of flexion) and 5261 (for limitation of extension). VAOGCPREC 9-2004 (September 2004). Dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint warrants a 20 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5258. Left Knee Disability In August 2010, the Veteran filed a claim for increased rating for the left knee disability. The left knee disability is rated at 20 percent prior to April 19, 2017, and 30 percent thereafter, based on limitation of motion. During the period of the claim, the left knee disability has been rated under Diagnostic Code 5260 based on limitation of flexion. The Board acknowledges that code sheets dated in September 2017 and September 2019 report that the ratings are assigned under different rating codes, notably Diagnostic Code 5010-5258 and 5010-5261 respectively. VA regulations do not preclude separate ratings for limitation of flexion and limitation of extension or impairment of the tibia and fibula. Thus, the Board will consider the matter as if the ratings were assigned under Diagnostic Code 5260. An April 2010 VA treatment record reveals that the left knee had flexion limited to 85 degrees and small effusion. A June 2010 VA treatment record reveals the Veteran’s history of left knee “aching” “pretty much all the time.” He denied locking. Examination revealed full extension and flexion to about 100 degrees. There was no effusion. A November 2010 VA examination record reveals the Veteran’s history of constant left knee pain. He also reported weakness, stiffness, and occasional swelling. He reported flares with weather changes, prolonged sitting, walking, and going downstairs. He reported that the flares cause additional limitation of motion. Examination revealed normal gait. Range of motion testing revealed motion from 0 to 85 degrees with pain at the end of movement. There was no loss of motion after repetition and no fatigue, lack of endurance, weakness, or incoordination. A December 2013 VA examination record reveals the Veteran’s history of flares of knee pain with cold weather. He denied loss of motion during flares. The examiner found no evidence that pain, weakness, fatigability, or incoordination could limit functional ability during a flare or after repeated use over time. Range of motion testing revealed motion from 0 to 70 degrees, with pain from 70 degrees. There was no change in range of motion after repetition. Motor strength was normal. The examiner determined the knee disability would not affect occupational functioning and that the Veteran would be able to work at a sedentary position or light physical job. The examiner explained that the Veteran was able to drive to the examination and walk into the hospital without assistance other than the use of a single point cane. In a January 2014 addendum, the examiner stated that the Veteran could stand two to three hours, break, and stand for another two to three hours and that although there are episodes of knee instability, the episodes occurred periodically. A March 2014 VA examination record reveals the Veteran’s history of knee pain. The Veteran estimated his left knee pain as 8/10. The Veteran reported flares of pain of 8-10/10 with change of weather, prolonged standing, and overuse. He reported that during flares, he is able to perform activities that do not require standing, walking. He reported flares at least three to four times per week. He reported flares at least three to four times per week. Range of motion testing revealed motion from 0 to 50 degrees with pain from 50 degrees. There was no change in range of motion after repetition. Motor strength was full. The examiner reported that the Veteran’s meniscal condition was associated with frequent episodes of pain. The examiner reported that the knee disabilities would affect occupational functioning because the Veteran was unable to perform activities that re quire long standing or long distance walking, but he would be able to perform sedentary activities. A September 2015 VA examination record reveals the Veteran’s history of constant knee pain estimated as 5/10 with flares four times per week with increased pain. He reported difficulty walking downstairs and standing for a prolonged period and inability to squat. Range of motion testing revealed motion from 0 to 70 degrees. There was pain with motion and on weight-bearing. There was no change in range of motion after repetition. The examiner noted that the Veteran was examined after repeated use over time. The examiner reported inability to state whether pain, weakness, fatigability, or incoordination would significantly limit functional ability with repeated use over time or flares because there was no conceptual or empirical basis for that determination without observing function under that condition. Motor strength was full, and there was no atrophy. The record notes that the Veteran worked, though his work was limited to working at the customer desk. An addendum states that the Veteran did not have ankylosis. A February 2017 VA examination record reveals the Veteran’s history of knee pain. He denied significant flares. Range of motion testing revealed motion from 0 to 100 degrees. There was pain with motion. There was no change in range of motion after repetition, and the examiner determined that although symptoms would significantly limit functional ability with repeated use over time, there would be no additional loss of motion. Motor strength was full, and there was no ankylosis. April 2017 private treatment record reports that the Veteran had “20 degrees flexion contracture, 80 degrees of flexion.” An April 2017 Disability Benefits Questionnaire (DBQ), submitted by the medical professional associated with the April 2017 treatment record, reveals the Veteran’s history of bilateral knee pain. The record reports a 20 degree flexion contracture and 80 degrees of flexion. There was no change in motion after repetition. The examiner stated that after repeated use over time or during a flare, motion would be limited to 20 degrees to 80 degrees. The examiner reported that there was left side ankylosis in flexion between 20 and 45 degrees. The examiner reported that there was meniscal condition with frequent episodes of pain. A September 2017 VA examination record reveals the Veteran’s history of knee pain with flares. The Veteran reported that the pain was 7/10 in the left knee. He reported flares with pain of 9/10 that occur with weather changes. The examiner could not perform range of motion testing due to edema in the lower extremities. There was no ankylosis or effusion. The examiner stated that the meniscal condition was associated with frequent episodes of pain. The examiner stated that there was chronic left knee deformity and pain that limited walking, sitting, and standing which would prevent a physically-active occupation that required walking or standing and sedentary work. The examiner noted that the Veteran had severe cellulitis in the left leg. A June 2019 VA examination record reveals the Veteran’s history of knee pain. He denied locking. He reported weekly flares of severe pain that prevent him from doing his “usual chores.” Range of motion testing revealed motion from 20 to 75 degrees. There was pain with flexion. There was no pain with weight-bearing. There was no change after repetition. The examiner reported that pain, weakness, fatigability, and incoordination did not significantly limit functional ability with repeated use over time. The examiner determined that flares would further diminish performance during a flare. There was no ankylosis. The meniscal condition manifested by frequent episodes of joint pain. The examiner reported that the knee disabilities would affect occupational functioning by limiting walking and standing. A January 2020 VA examination record reports that the Veteran had pitting edema of the left lower extremity that would affect range of motion, laxity, and pain and that was due to something other than the knee disability. The examiner noted that the reported bilateral range of motion reported in the 2015 VA examination would prevent the Veteran from using stairs, drive, or sit/get out of a chair and was likely poor performance on the Veteran’s part rather than true functional impairment. The Veteran reported constant left knee pain. The record notes that the Veteran drove himself to the examination. The Veteran reported that he was laid off from his job. He denied flares. Range of motion testing and clinical observation revealed motion from 0 to 90 degrees. The examiner explained that range of motion was normal for the Veteran due to body habitus – pitting edema. The examiner explained that the range of motion finding was based on exam and observations. There was pain with motion and weight-bearing. After repetition, motion was from 0 to 70 degrees. The examiner stated that with repeated use over time, motion would be from 0 to 70 degrees. There was no ankylosis. The record reveals the examiner’s determination that the Veteran could perform sedentary work. The examiner reported that the excessive swelling (pitting edema) was twice as excessive on the left side influenced the knees range of motion and pain. The examiner added that full and objective range of motion related to service connected disability could be demonstrated only if the knee/leg was free from swelling. The examiner noted that past measurements showed best range of motion as 100 degrees for the left knee. The examiner added that during the range of motion testing, the Veteran demonstrated 70 degrees bilaterally but he was observed performing 90 degrees in the left knee during the examination. Regarding flares, the examiner noted that the Veteran reported constant 8/10 left knee pain, which could be considered a constant flare. The examiner stated that it was not possible to determine how much pain was related to the service-connected disability and how much was related to circulatory issues and edema. A September 2020 VA examination record reveals the Veteran’s history of bilateral knee pain. He reported daily flares in the right knee that were moderate to severe and last off and on all day. He reported that the left knee flares occurred daily and were moderate to severe. Examination revealed motion from 0 to 50 degrees in the left knee. There was pain with motion and with weight-bearing. There was no change in ranges of motion after repetition. The examiner estimated that after repeated use over time, the left knee would have motion from 0 to 40 degrees. The examiner estimated that during flares, left knee would have motion from 0 to 30 degrees. Motor strength was 5/5, and there was no atrophy. There was no ankylosis. There was no history of recurrent subluxation or recurrent effusion. After consideration of the record, the Board finds a higher rating is not warranted at any time based on limitation of flexion. Specifically, the Board finds the record does not support a finding of limitation of flexion to fewer than 30 degrees prior to April 19, 2017, or ankylosis thereafter. Range of motion testing consistently reveals flexion to at least 50 degrees, and the 2020 VA examiner determined that at most limited, which would occur during flares, flexion would reach 45 degrees. Based on the Veteran’s consistent histories of progressive worsening of his knee disability, the Board finds the September 2020 VA examiner’s determinations as to the effects of repeated use over time and flares is probative evidence of the greatest possible limitation of motion throughout the appeal. The Board acknowledges that the April 2017 DBQ reveals a finding of ankylosis of the left knee. Ankylosis is defined as “immobility and consolidation of a joint due to disease, injury, surgical procedure.” Lewis v. Derwinski, 3 Vet. App. 259 (1992) (internal medical dictionary citation omitted). The Board finds the April 2017 DBQ finding of ankylosis is not probative because it is contradicted internally by the concurrent findings of both extension and flexion in the left knee and externally by every other examination record which reveal findings of no ankylosis. The Board finds the criteria for a higher rating based on limitation of extension are met from April 19, 2017, to January 16, 2020. Specifically, the Board finds a 20 percent rating is warranted during this period based on the April 2017 DBQ and September 2019 VA examination records’ findings of extension limited to 20 degrees. Although the record suggests the flexion contracture may be due to pitting edema during this period (as suggested by the return to normal flexion when the pitting edema receded), the record is ambiguous and resolving all doubt, the Board finds the rating is warranted. The Board finds a separate rating for extension is not warranted prior to April 19, 2017, or from January 16, 2020, forward because the records consistently reveal findings of full extension, and the September 2020 VA examiner determined extension would remain full during flares and after repeated use over time. The Board has considered whether a separate or higher rating is warranted based on alternate diagnostic code. The record does not suggest that the Veteran has malunion or nonunion of the tibia and fibula so a rating is not warranted under Diagnostic Code 5262. Furthermore, although the Veteran is status-post meniscectomy the record does not indicate that the Veteran has locking or frequent episodes of effusion with which a separate rating might be warranted under Diagnostic Code 5258, and there is no current symptom not considered in the current ratings which could warrant a separate rating under Diagnostic Code 5259. Rather, the record indicates that the meniscal condition is associated with pain, which was contemplated in the rating assigned. Right knee disability A December 2006 VA treatment record indicates that the Veteran had motion from 0 to 130 degrees. A January 2007 VA examination record reveals the Veteran’s history of right knee pain. Examination revealed motion from 0 to 140 degrees. He reported flares every two weeks that result in approximately 50 percent function. The examiner diagnosed degenerative arthritis. A November 2010 VA examination record reveals the Veteran’s history of right knee pain, soreness, and weakness and “feelings” of instability. He did not use a brace. He then reported intermittent pain and unstableness at times but denied giving way or locking. He also denied swelling. He reported flares that caused additional limitation of motion. Range of motion testing revealed motion from 0 to 112 degrees with pain at the end of movement. There was no loss after repetition. There was no fatigue, weakness, lack of endurance, or incoordination after repetition. A December 2013 VA examination record reveals the Veteran’s history of right knee pain, including at the time of examination. He reported flares but no loss of motion during flares. The examiner found no evidence that pain, weakness, fatigability, or incoordination could limit functional ability during a flare or after repeated use over time. Range of motion testing revealed motion from 0 to 110 degrees, with pain from 110 degrees. There was no change in range of motion after repetition. Joint stability tests were normal. The examiner determined the knee disability would not affect occupational functioning and that the Veteran would be able to work at a sedentary position or light physical job. The examiner explained that the Veteran was able to drive to the examination and walk into the hospital without assistance other than the use of a single point cane. In a January 2014 addendum, the examiner stated that the Veteran could stand two to three hours, break, and stand for another two to three hours and that although there are episodes of knee instability, the episodes occurred periodically. A March 2014 VA examination record reveals the Veteran’s history of knee pain. The Veteran estimated his right knee pain as 4/10. The Veteran reported flares with change of weather, prolonged standing, and overuse. He reported that during flares, he is able to perform activities that do not require standing, walking. He reported flares with pain of 5/10 once or twice a week. He reported inability to stand or walk for a long period of time during a flare. He reported that he could not work during a flare. The Veteran reported that he worked part-time, two to three hours per day. Range of motion testing revealed motion from 0 to 115 degrees without pain. After repetition, the Veteran had flexion to 125 degrees. Motor strength was full. Joint stability tests were normal. The examiner reported that the knee disabilities would affect occupational functioning because the Veteran was unable to perform activities that require long standing or long distance walking but he would be able to perform sedentary activities. A September 2015 VA examination record reveals the Veteran’s history of knee pain with flares 4 times per week. He reported difficulty walking downstairs and standing for a prolonged period and inability to squat. Range of motion testing revealed motion from 0 to 80 degrees. There was pain with motion and on weight-bearing. There was no change in range of motion after repetition. The examiner noted that the Veteran was examined after repetitive use over time. The examiner reported inability to state whether pain, weakness, fatigability, or incoordination would significantly limit functional ability with repeated use over time or flares because there was no conceptual or empirical basis for that determination without observing function under that condition. Motor strength was full, and there was no atrophy. Joint stability tests were normal, and there was no history of subluxation or lateral instability. The record notes that the Veteran worked, though his work was limited to working at the customer desk. An addendum states that the Veteran did not have ankylosis. A February 2017 VA examination record reveals the Veteran’s history of knee pain. He denied significant flares. Range of motion testing revealed motion from 0 to 110 degrees. There was pain with motion. There was no change in range of motion after repetition, and the examiner determined that although symptoms would significantly limit functional ability with repeated use over time, there would be no additional loss of motion. Motor strength was full, and there was no ankylosis. The Veteran denied a history of lateral instability. An April 2017 private treatment record reveals the Veteran’s history of bilateral knee pain and sensation of giving way. The record reports that there was crepitation through range of motion and tenderness over the joint line. The record reports limed range of motion although there was a positive bounce home test. An April 2017 Disability Benefits Questionnaire (DBQ), submitted by the medical professional associated with the April 2017 treatment record, reveals the Veteran’s history of knee pain. The record reports full range of motion in the right knee. There was no change in range of motion after repetition. There was pain with motion and weight-bearing. The examiner estimated that during flares or after repeated use, motion would be limited from 0 to 120 degrees. The record reports that the Veteran had ankylosis of the right knee. There was no history of subluxation or lateral instability. The examiner reported that the Veteran had frequent episodes of joint pain and effusion. A September 2017 VA examination record reveals the Veteran’s history of knee pain with flares. The examiner could not perform range of motion testing due to edema in the lower extremities. There was no history of subluxation, lateral instability, or effusion. A June 2019 VA examination record reveals the Veteran’s history of knee pain. He denied locking. He reported subjective instability on a weekly basis. He reported flares of severe pain that prevent him from doing his “usual chores.” Range of motion testing revealed motion from 0 to 100 degrees. There was no pain with motion or weight-bearing. There was no change after repetition. The examiner reported that pain, weakness, fatigability, and incoordination did not significantly limit functional ability with repeated use over time. The examiner determined that flares would further diminish performance during a flare. There was no ankylosis. There was no history of instability or subluxation, and joint stability tests were normal. A January 2020 VA examination record reports that the Veteran had pitting edema of the left lower extremity. The examiner also noted that the reported bilateral range of motion reported in the 2015 VA examination would prevent the Veteran from using stairs, drive, or sit/get out of a chair and was likely poor performance on the Veteran’s part rather than true functional impairment. The record reveals the Veteran’s history of right knee pain and “feeling” unstable. The record notes that the Veteran drove himself to the examination. The Veteran reported that he was laid off from his job. He denied flares. Range of motion testing and clinical observation revealed motion from 0 to 110 degrees. The examiner explained that he was observed getting on and off a table and in and out of a chair, using the right leg to push himself out of a chair, and that 110 degrees was needed to get out of a chair using one leg. There was pain with motion. There was no change in range of motion after repetition. Pain, weakness, fatigability, and incoordination did not significantly limit functional ability with repeated use over time. There was no ankylosis. The Veteran denied subluxation or lateral instability and joint stability testing was normal. The record reveals the examiner’s determination that the Veteran could perform sedentary work. The examiner reported that the excessive swelling (pitting edema) was twice as excessive on the left side influenced the knees range of motion and pain. The examiner added that full and objective range of motion related to service connected disability could be demonstrated only if the knee/leg was free from swelling. The examiner noted that past measurements showed best range of motion as 110 degrees for the right knee. The examiner added that during the range of motion testing, the Veteran demonstrated 70 degrees bilaterally but he was observed performing 110 degrees of motion in the right knee during the examination. Regarding flares, the examiner noted that the Veteran reported constant 8/10 left knee pain, which could be considered a constant flare. The examiner stated that it was not possible to determine how much pain was related to the service-connected disability and how much was related to circulatory issues and edema. A September 2020 VA examination record reveals the Veteran’s history of bilateral knee pain. He reported daily flares in the right knee that were moderate to severe and last off and on all day. Examination revealed motion from 0 to 65 degrees in the right knee. There was pain with motion and with weight-bearing. There was no change in ranges of motion after repetition. The examiner estimated that after repeated use over time, the right knee would have motion from 0 to 55 degrees. The examiner estimated that during flares, the right knee would have motion from 0 to 45 degrees. Motor strength was 5/5, and there was no atrophy. There was no ankylosis. There was no history of recurrent subluxation or recurrent effusion. There was no history or clinical evidence of lateral instability in the right knee. The right knee disability is rated at 10 percent for limitation of motion that is not otherwise compensable under the limitation of motion regulations. The Board finds the criteria for a higher rating based on limitation of motion are not met. The record does not suggest limitation of extension. Range of motion testing consistently reveals flexion to at least 65 degrees, and the 2020 VA examiner determined that at most limited, which would occur during flares, flexion would reach 45 degrees. Based on the Veteran’s consistent histories of progressive worsening of his knee disability, the Board finds the September 2020 VA examiner’s determinations as to the effects of repeated use over time and flares is probative evidence of the greatest possible limitation of motion throughout the appeal. The Board acknowledges that the April 2017 DBQ reveals a finding of ankylosis of the right knee. The Board finds the April 2017 DBQ finding of ankylosis is not probative because it is contradicted internally by the concurrent findings of both extension and flexion in the right knee and externally by every other examination record which reveal findings of no ankylosis. There is no evidence, including history, that the Veteran had limitation of extension or sufficient limitation of flexion to warrant more than the 10 percent rating assigned for limitation of motion including during flares or after repetitive use during this period. With respect to other potentially applicable Diagnostic Codes, there is no clinical evidence of impairment of the tibia and fibula or meniscal abnormality. The Veteran has reported instability or “feelings” of instability. Clinical testing is consistently normal, however, and the Board notes that the record indicates that the Veteran has had pitting edema of the lower extremities due to nonservice connected disorders which a VA examiner reported results in instability. In light of the pitting edema, the VA examiner’s determination, and the normal clinical findings for knee joint stability, the Board finds the right knee disability did not result in even slight instability or subluxation during this period. Thus, the claim for increased rating for the right knee disability is denied. REASONS FOR REMAND In July 2020, the Veteran submitted a VA form 21-8940 on which he reported unemployability due to the knee disabilities. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran reported that he stopped working full-time in August 2017 and part-time on May 15, 2020. A June 2020 statement from the Veteran reports that he was still working part-time, however, and a July 2020 VA form 21-4192 reports that the Veteran last worked June 15, 2020. The record also includes the Veteran’s May 2014 history that he worked 10 to 12 hours per week. The Veteran should be requested to clarify his employment history, notably when he went to part-time and when he stopped working. The matters are REMANDED for the following action: Provide the Veteran with appropriate notice regarding the TDIU claim and request that he complete another VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. Explain what is needed to establish entitlement to TDIU due to his service-connected disabilities. Ask the Veteran to clarify his last date of full-time employment and then the last date of part-time employment and his salary history. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Snyder, 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.