Citation Nr: 21001199 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 14-04 238 DATE: January 7, 2021 ORDER A rating higher than 10 percent for right knee degenerative joint disease with Osgood-Schlatter’s disease is denied. A rating higher than 10 percent for left knee degenerative joint disease with Osgood-Schlatter’s disease is denied. FINDINGS OF FACT 1. The evidence does not establish that the Veteran’s right knee degenerative joint disease with Osgood-Schlatter’s disease has manifested in symptoms analogous to malunion of the tibia and fibula with moderate knee or ankle disability; in arthritis involving two or more major joints with occasional incapacitating exacerbations; in limitation of motion of the right leg to 30 degrees flexion or to 15 degrees extension; in frequent episodes of locking or in effusion into the joint; or, in recurrent subluxation or lateral instability. 2. The evidence does not establish that the Veteran’s left knee degenerative joint disease with Osgood-Schlatter’s disease has manifested in symptoms analogous to malunion of the tibia and fibula with moderate knee or ankle disability; in arthritis involving two or more major joints with occasional incapacitating exacerbations; in limitation of motion of the left leg to 30 degrees flexion or to 15 degrees extension; in frequent episodes of locking or in effusion into the joint; or, in recurrent subluxation or lateral instability. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 10 percent for right knee degenerative joint disease with Osgood-Schlatter’s disease have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.14, 4.20, 4.71a, Diagnostic Codes 5003, 5257, 5258, 5260, 5261, 5262. 2. The criteria for a rating higher than 10 percent for left knee degenerative joint disease with Osgood-Schlatter’s disease have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.14, 4.20, 4.71a, Diagnostic Codes 5003, 5257, 5258, 5260, 5261, 5262. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1980 to October 2000. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2020, the Board remanded the claims for a VA medical examination and to obtain any outstanding treatment records. As there has been substantial compliance with the directives of that decision, the Board will now adjudicate the claims on the merits. Dyment v. West, 13 Vet. App. 141, 146–47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). As a preliminary matter, the Board notes the Veteran filed in May 2020 an appeal for the Board’s direct review of his claims for service connection for neck pain and for bilateral shoulder pain. The appeal concerning these claims must be adjudicated separately from the present matter, and therefore the May 2020 appeal will be the subject of a future Board decision. In the present appeal, the Veteran seeks ratings higher than 10 percent for his bilateral knee degenerative joint disease with Osgood-Schlatter’s disease. Disability evaluations (ratings) are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects the Veteran’s ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Veteran’s bilateral degenerative joint disease with Osgood-Schlatter’s disease is both rated under Diagnostic Code (DC) 5262, as analogous to impairment of tibia and fibula. 38 C.F.R. §§ 4.20, 4.71a. Under DC 5262, a 10-percent rating is warranted where there is malunion of the tibia and fibula with slight knee or ankle disability; a 20-percent rating is warranted where there is malunion of the tibia and fibula with moderate knee or ankle disability; a 30-percent rating is warranted where there is malunion of the tibia and fibula with marked knee or ankle disability; and, a 40-percent rating, which is the highest available under this DC, is warranted where there is nonunion of the tibia and fibula, with loose motion and requiring a brace. 38 C.F.R. § 4.71a, DC 5262. Ratings for knee disabilities are alternatively available under other DCs. Under DC 5003, degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a. When, however, the limitation of motion is non-compensable under the appropriate diagnostic codes, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion, if the limitation of motion is objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, x-ray evidence of arthritis involving two or more major joints or two or more minor joint groups will warrant a 10-percent rating, or a 20-percent rating where there are occasional incapacitating exacerbations. Id. For a knee disability, limitation of motion is rated under DCs 5260 and 5261, or under DC 5258. 38 C.F.R. §§ 4.14, 4.71a. Under DC 5260, where there is limitation of the flexion of the leg, a 10-percent rating is warranted where flexion is limited to 45 degrees; a 20-percent rating is warranted where flexion is limited to 30 degrees; and, a 30-percent rating, the highest rating available under this schedule, is warranted where flexion is limited to 15 degrees. 38 C.F.R. § 4.71a. Under DC 5261, where there is limitation of extension of the leg, a 10-percent rating is warranted where extension is limited to 10 degrees; a 20 percent-rating is warranted where extension is limited to 15 degrees; a 30-percent rating is warranted where extension is limited to 20 degrees; a 40-percent rating is warranted where extension is limited to 30 degrees; and, a 50-percent rating, the highest rating available under this schedule, is warranted where extension is limited to 50 degrees. 38 C.F.R. § 4.71a. Under DC 5258, a single rating of 20 percent rating is available where there is cartilage, semilunar, dislocated, with frequent episodes of “locking,” pain, and effusion into the joint. 38 C.F.R. § 4.71a. In addition to a rating based upon limitation of motion of the knee, a rating is available for instability in the knee. VAOPGCPREC 23-97 & 9-98; Lyles v. Shulkin, 29 Vet. App. 107 (2017). Under DC 5257, where there is recurrent subluxation or lateral instability, a 10-percent rating is warranted where slight; a 20-percent rating warranted where moderate; and, a 30-percent rating, the highest schedular rating, where severe. 38 C.F.R. § 4.71a. The Veteran’s claim was received on May 21, 2010. The Board will consider evidence up to one year prior to determine the earliest date on which it is ascertainable that an increase in disability occurred. 38 U.S.C. § 5110(b)(3); 38 C.F.R. § 3.400(o)(2); Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). Turning to the evidence, treatment records from April 23, 2010, found range of motion of 120 degrees flexion bilaterally and extension to 0 degrees bilaterally, with no history of effusion, and no history of locking or giving-out. In August 2010, the Veteran submitted a letter describing worsening knee pain since 1987. At that time, it was difficult for the Veteran to stand for any period without feeling pain. The pain was all around the knee and “feels like someone is trying to push a nail” through it. “Inside the knees it feels like my knee freezes up and gets stiff,” and moving it causes pain. Letters from his family and friends describe the Veteran massaging his knees due to constant pain and feeling pain in his knees after standing for a short time or while driving. A VA examination was provided on September 9, 2010. The Veteran’s symptoms included pain, stiffness, and weakness. The Veteran reported being limited to standing up to one hour and walking up to one-quarter mile. Range of motion was 115 degrees of flexion and extension from 115 degrees to 0 degrees bilaterally. With repetitive motion there was pain but no additional lost motion. The Veteran did not report any flare-ups. Though instability was marked as “Yes” on the summary of symptoms, elsewhere in the examination there was found no giving way, no episodes of dislocation or subluxation, no locking, and no incoordination. No effusion was found. Regarding the Veteran’s employment in aircraft maintenance at that time, he had not lost any time at work due to his knee disabilities, but it was noted that he had needed to be assigned different duties. The examiner remarked that “the Osgood-Schlatter condition is inactive, only the ‘bumps’ remain. This Veteran’s current knee problems are further development of the arthritis.” In his May 24, 2011 notice of disagreement, the Veteran wrote that “the pain in both knees is present every day, making it very hard for [him] to perform the smallest task.” Treatment records on September 12, 2012, and October 17, 2012, found normal motion, no evidence of instability, and no effusion. In his February 7, 2014 substantive appeal, the Veteran wrote that both of his knees had worsened, with constant pain and decreased range of motion. He described experiencing pain also in his feet. He expressed that “[a]t the rate my knees are failing me, I know the pain will prevent me from walking.” Private treatment records from March to May 2014 reflect the Veteran still reporting high levels of pain. On March 6, the Veteran’s flexion was limited to 135 degrees bilaterally. On March 14, March 28, April 11, and May 2, the Veteran’s range of motion were normal. Treatment records from Martin Army Community Hospital in January 2014 and March 2014 found no effusion, corroborated by x-rays. Another VA examination was provided on July 1, 2014. The Veteran’s range of motion in the right knee was 125 degrees of flexion and extension to 0 degrees; range of motion in the left knee was 120 degrees of flexion and extension to 0 degrees. There was no additional lost motion with repetitive use. Joint stability testing was normal, and no history of recurrent instability or subluxation was found. There was no effusion or meniscal condition. The Veteran reported flare-ups of pain in the ankles, which forced him to alter his gait. The examiner noted that while flare-ups and repeated use over time did result in additional pain, weakness, fatigability, and incoordination, these factors did not create any additional limitation of functional ability. The Veteran regularly used a brace and occasionally used a cane. Overall functional impact included difficulty standing, walking, and driving. Imaging on July 12, 2017 found mild degenerative changes and “no significant knee joint effusion.” The Veteran testified at an August 15, 2017 Board hearing before the undersigned Veterans Law Judge. The Veteran reported daily pain rated 5 out of 10, and that standing caused excruciating pain for 30 seconds before dissipating. He reported being unable to “put [any] pressure on [his] knees,” and standing too long made him unable to bend his knees enough to squat down. He had not ever fallen, but while going up stairs he had to brace himself on the handrails. Overall, he was limited in standing for long periods, sitting for long periods, walking for long periods, and in bending to pick up things. At the time of the hearing, the Veteran worked as an inspector, a job that allowed him “to sit and stand at will.” An undated “functional assessment evaluation” by Dr KE was uploaded to the record on September 25, 2017. The evaluation remarked that overall the Veteran had severe pain in his knees, worst when standing. He felt numbness in the knees when standing, sitting, walking, or bending. He could only walk short distances, had to sit most of the day, and had difficulty climbing stairs. No range-of-motion testing for the knees was reported in the evaluation. A December 28, 2017 treatment note found range of motion of 130 degrees flexion and extension to 0 degrees. There was no history of locking or giving out, and no history of effusion. On January 19, 2018, left-knee range of motion was 120 degrees of flexion and extension to 5 degrees, and no change in the right knee. An August 10, 2018 treatment record found mild effusion in the left knee and the same range-of-motion findings from January 19, 2018. A January 22, 2019 treatment record found range of motion of 130 degrees flexion and extension to 0 degrees. There was no history of locking or giving out, and no history of effusion. The Veteran reported pain rated 0 out of 10, rising to 6 out of 10 with stairs or long walks. Following the Board’s prior decision, a new VA examination was provided on September 26, 2020. The Veteran’s current symptoms included constant burning, achy pain, without pain radiating beyond the knees. Range of motion bilaterally was flexion to 110 degrees and extension to 0 degrees, with pain in both motions. There was no additional lost motion with repeated use over time. The Veteran did not report flare-ups. The examiner did not find any additional contributing factors of disability. Instability testing was normal, and there was no history of recurrent instability or recurrent subluxation. There was no history of effusion. A September 12, 2020 MRI showed a tear in the right knee meniscus; in the left knee, there was no meniscal condition. The Veteran used a knee brace on a constant basis and occasionally used a cane. Based on all the evidence of record, the Board unfortunately finds that ratings higher than 10 percent are not warranted. Under the currently-assigned analogous rating under DC 5262, the Board does not find that the evidence shows a disability analogous to malunion of the tibia and fibula with moderate knee or ankle disability. To the extent the analogous rating was assigned to account for the functional impairment created by the Osgood-Schlatter condition for which no direct Diagnostic Code exists, the September 9, 2010 examiner remarked that “the Osgood-Schlatter condition is inactive, only the ‘bumps’ remain. This Veteran’s current knee problems are further development of the arthritis.” Regarding the Veteran’s degenerative arthritis, for which a direct Diagnostic Code does exist, a higher rating of 20 percent requires evidence of arthritis involving two or more major joints with occasional incapacitating exacerbations. Even if the evidence in this case were sufficient to establish occasional incapacitating exacerbations, each of the Veteran’s service-connected knee disabilities involves only the respective knee joint, and therefore does not involve two or more major joints. Thus, a rating higher under DC 5003 for degenerative arthritis is not warranted. 38 C.F.R. § 4.71a. Regarding the DCs for limitation of motion, the evidence of record does not show that either leg has been limited to 30 degrees of flexion or 15 degrees extension, even accounting for repeated use over time and any reported flareups. 38 C.F.R. § 4.71a, DCs 5260, 5261. Regarding a rating under DC 5258, the Board acknowledges the September 26, 2020 VA examination’s report that a September 12, 2020 MRI showed a tear in the right-knee meniscus. However, the criteria for the 20-percent rating under DC 5258 also require evidence of frequent episodes of locking as well as evidence of effusion into the joint, and the September 26, 2020 examination report found no instability and no effusion (and there is no evidence after this date supporting that there is instability or effusion). Thus, without evidence of such symptoms, a rating under DC 5258 cannot be supported. 38 C.F.R. § 4.71a, DC 5258. Finally, a rating is not available under DC 5257, as there is no evidence of recurrent lateral instability or recurrent subluxation. 38 C.F.R. § 4.71a, DC 5257. The Board acknowledges that the September 9, 2010 VA examination at one point marked “Yes” to instability in the summary of symptoms; however, at multiple points elsewhere in that examination report, the examiner made clear that no symptoms of instability were found. Even if a finding of instability were supported at this time, the remainder of the evidence across the record did not show reported symptoms or findings of instability, and therefore the preponderance of the evidence would be against a disability picture that includes recurrent instability in either knee. Id. The Board acknowledges the Veteran’s multiple statements, as well as reports from his family and friends, that he experiences pain in his knees that limits standing and walking. However, the regulations provide that where the limitation of motion is not severe enough to warrant a compensable rating under the applicable rating criteria, the minimum rating for limitation of motion should be assigned. See Burton v. Shinseki, 25 Vet. App. 1, 5 (2011) (interpreting 38 C.F.R. § 4.59); 38 C.F.R. § 4.71a, DC 5260, 5261. For a knee disability, the minimum rating is 10 percent, and a 10-percent rating has already been assigned via the analogous rating under DC 5262. Since this rating already compensates the Veteran for the functional impairment resulting from his pain, an additional rating under any other DC would compensate the Veteran multiple times for the same symptom, which is prohibited by the applicable regulations. 38 C.F.R. § 4.14. The Board also acknowledges the Veteran’s statement in his February 2014 substantive appeal that he experiences pain in his feet and his report at the July 2014 examination that he experiences pain in his ankles. Though the Veteran is competent to describe his symptoms of pain in the ankles and feet, there is no evidence of record to show that the Veteran has education, training, or experience to opine that the pain is caused by his knee disabilities, as such etiology is a medically complex issue beyond observation by the senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). If the Veteran believes he has a disability of his ankles or feet that is secondary to his service-connected knee conditions, he may file a claim for service connection for those conditions. Similarly, the Board notes the Veteran’s statement in his February 2014 substantive appeal that he believes at the rate his knees are worsening he will eventually be prevented from walking. The rating criteria are intended to compensate for the current level of disability, and the current level of disability is the adjudication that has been made in this decision. See Francisco, 7 Vet. App. at 58. If the Veteran’s knee disabilities continue to worsen, he is welcome at any time to file another claim for an increased rating. A rating higher than 10 percent for right- and left-knee degenerative joint disease with Osgood-Schlatter’s disease is denied. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.14, 4.20, 4.71a, Diagnostic Codes 5003, 5257, 5258, 5260, 5261, 5262. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Davis, 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.