Citation Nr: 21001488 Decision Date: 01/08/21 Archive Date: 01/08/21 DOCKET NO. 15-31 914 DATE: January 8, 2021 ORDER A 10 percent rating from February 13, 2012 to May 11, 2015 and a 30 percent rating from December 23, 2019 to May 6, 2020 for limitation of extension in the right knee is granted, subject to the laws and regulations governing the assignment of monetary benefits. However, a compensable rating outside of those periods for limitation of extension in the right knee is denied. A 10 percent rating for limitation of extension in the left knee is granted from February 13, 2012 to May 11, 2015 and from December 23, 2019 to May 6, 2020, subject to the laws and regulations governing the assignment of monetary benefits. However, a compensable rating outside of those periods for limitation of extension in the left knee is denied. A 30 percent rating for limitation of flexion in the left knee is granted from February 13, 2012 to May 11, 2015, subject to the laws and regulations governing the assignment of monetary benefits. However, a rating in excess of 20 percent outside of that period for limitation of flexion in the left knee is denied. A rating in excess of 20 percent for limitation of flexion in the right knee is denied. A rating in excess of 20 percent for instability of the right knee is denied. A rating in excess of 20 percent for instability of the left knee is denied. REMANDED The claim for a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The evidence shows that from February 13, 2012 to May 11, 2015, the Veteran’s right knee disability caused the extension to be functionally limited to 10 degrees (but not worse), and from December 23, 2019 to May 6, 2020, the right knee extension was functionally limited to 20 degrees (but not worse). However, outside those periods, the evidence does not show that Veteran’s right knee disability caused limitation of extension in the right knee. 2. The evidence shows that from February 13, 2012 to May 11, 2015 and from December 23, 2019 to May 6, 2020, the Veteran’s left knee disability caused the extension to be functionally limited to 10 degrees (but not worse). However, outside those periods, the evidence does not show that Veteran’s left knee disability caused limitation of extension in the left knee. 3. The evidence shows that from February 13, 2012 to May 11, 2015, the Veteran’s left knee disability caused the flexion in the left knee to be functionally limited to 15 degrees (but not worse); However, outside that period, the Veteran’s left knee disability has not been shown to result in the flexion being functionally limited to less than 30 degrees, despite pain, weakness, fatigability, or incoordination. 4. Despite pain, weakness, fatigability, or incoordination, the Veteran’s right knee disability has not been shown to result in the flexion in the right knee being functionally limited to less than 30 degrees. 5. The evidence does not show that the Veteran’s bilateral knee disability has resulted in “severe” recurrent subluxation or lateral instability in either knee. CONCLUSIONS OF LAW 1. The criteria for a 10 percent rating from February 13, 2012 to May 11, 2015 and a 30 percent rating from December 23, 2019 to May 6, 2020 for limitation of extension in the right knee have been met. However, the criteria for a compensable rating outside of those periods for limitation of extension in the right knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5261. 2. The criteria for a 10 percent rating for limitation of extension in the left knee from February 13, 2012 to May 11, 2015 and from December 23, 2019 to May 6, 2020 have been met. However, the criteria for a compensable rating outside of those periods for limitation of extension in the left knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5261. 3. The criteria for a 30 percent rating for limitation of flexion in the left knee from February 13, 2012 to May 11, 2015 have been met. However, a rating in excess of 20 percent outside of that period for limitation of flexion in the left knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260. 4. The criteria for a rating in excess of 20 percent for limitation of flexion in the right knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260. 5. The criteria for a rating in excess of 20 percent for instability of the right have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257. 6. The criteria for a rating in excess of 20 percent for instability of the left knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1978 to November 1988. In May 2011, he filed a claim to increase the ratings for his bilateral knee disabilities, which at that time were rated at 20 percent for limitation of flexion in each knee and 20 percent for instability in each knee. The Veteran testified at a Board hearing in February 2019 that his bilateral knee disabilities had worsened since his previous VA examination in May 2015. In March 2019, the Board remanded the case for a new VA examination to assess the severity of his bilateral knee disabilities. Such development has since been completed and the Board is satisfied that there has been substantial compliance with the remand directives. Of note, based on a VA examination in October 2019 and VA treatment records in July 2019, the Agency of Original Jurisdiction (AOJ) proposed in a rating decision in April 2020 to reduce the rating for instability in both knees to a noncompensable level. The Veteran objected and provided private treatment records. In July 2020, the AOJ issued a rating decision to continue the 20 percent rating for instability in each knee. As such, the Board will not discuss the issue of rating reduction in this decision. Increased Rating The Veteran’s bilateral knee disabilities are rated based on limitation of motion as well as instability. Diagnostic Code 5260 evaluates limitation of knee flexion. A noncompensable rating is assigned for flexion limited to 60 degrees. A 10 percent rating is assigned for flexion limited to 45 degrees. A 20 percent rating is assigned for flexion limited to 30 degrees. A 30 percent rating is assigned for flexion limited to 15 degrees. Diagnostic Code 5261 evaluates limitation of knee extension. A noncompensable rating is assigned for extension limited to 5 degrees. A 10 percent rating is assigned for extension limited to 10 degrees. A 20 percent rating is assigned for extension limited to 15 degrees. A 30 percent rating is assigned for extension limited to 20 degrees. A 40 percent rating is assigned for extension limited to 30 degrees. A 50 percent rating is assigned for extension limited to 45 degrees. 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. Diagnostic Code 5257 evaluates recurrent subluxation or lateral instability of a knee. A 10, 20, or 30 percent ratings is assigned for slight, moderate, or severe recurrent subluxation or lateral instability respectively. Neither the Rating Schedule nor the regulations provide definitions for descriptive words such as “slight,” “moderate,” and “severe.” See Sellers v. Wilkie, 30 Vet. App. 157 (2018). The use of terminology such as “slight” and “moderate” by VA examiners or other physicians, although an element of evidence to be considered by the Board, is not dispositive of an issue. Rather than applying a mechanical formula, the Board must instead evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. Diagnostic Code 5263 provides a single 10 percent rating for acquired or traumatic genu recurvatum with weakness and insecurity in weight-bearing objectively demonstrated. The VA regulations prohibit rating the same disability or the same manifestation of a disability under different diagnostic codes (which is called “pyramiding”). 38 C.F.R. § 4.14. To avoid the impermissible pyramiding, the critical element is that none of the symptomatology for any one of the conditions is duplicative of, or overlapping with, the symptomatology of the other conditions. Esteban v. Brown, 6 Vet. App. 259 (1994). Separate ratings under DC 5260 (limitation of flexion) and DC 5261 (limitation of extension) may be assigned for disability of the same joint. See VA General Counsel precedent opinion VAOGCPREC 9-2004. In addition, limitation of flexion under DC 5260, limitation of extension under DC 5261 and instability under DC 5257 may be rated separately without violating the rule against pyramiding. See VA General Counsel precedent opinion VAOGCPREC 23-97. However, the Board finds that separate ratings cannot be assigned for both DC 5263 (genu recurvatum) and 5257 (instability). The criteria of DC 5263 allow for a (single, maximum) 10 percent rating for acquired genu recurvatum with weakness and insecurity in weight-bearing objectively demonstrated. The criteria of DC 5257 allow for a 10, 20, and 30 percent rating for different levels of recurrent subluxation or lateral instability of a knee. Instability is a “lack of steadiness or stability” and functional instability is the “inability of a joint to maintain support during use”. Dorland’s Illustrated Medical Dictionary 958 (31st ed. 2007). In an August 2011 VA examination, the Veteran demonstrated bilateral acquired genu recurvatum with weakness and insecurity in weight-bearing, as well as bilateral moderate instability revealed by the medial and lateral collateral ligaments stability test. This aspect of disability is encompassed by the rating criteria under both Diagnostic Code 5263 and Diagnostic Code 5257, in the sense that insecurity in weight-bearing and weakness causes is analogous to instability. To assign ratings under both diagnostic codes would violate the rules prohibiting pyramiding because it would compensate the Veteran for the same instability under different diagnostic codes. See 38 C.F.R. § 4.14; Esteban, 6 Vet. App. at 261. As the Veteran has already been rated at 20 percent for each knee under DC 5257, and the maximum rating under DC 5263 is only 10 percent, the Board will only evaluate the weakness and insecurity/instability under DC 5257, which will result in a higher rating for the Veteran than being evaluated under DC 5263. The Veteran was afforded a VA examination in August 2011. On examination, he demonstrated bilateral knee flexion to 30 degrees and bilateral knee extension to zero degree (full extension). The examiner indicated that pain, fatigue, weakness or repetitive use did not cause additional loss of range of motion. The examiner noted that the Veteran walked with a limp due to knee pain and weakness, and that he required braces on both knees for ambulation. The examiner indicated that there was instability, weakness, tenderness and guarding of movement bilaterally without sign of edema, abnormal movement, effusion, redness, heat, deformity, mal-alignment, drainage, or subluxation. The examiner indicated that both knees showed acquired genu recurvatum with weakness and insecurity on weight bearing and locking pain. The examiner found no crepitus or ankylosis in either knee. The anterior and posterior cruciate ligaments stability test was within normal limits bilaterally; the medial and lateral meniscus test of both knees was within normal limits bilaterally; but the medial and lateral collateral ligaments stability test was abnormal with moderate instability bilaterally. X-rays of the right knee in August 2011 revealed degenerative change, but the knee joint space was well-maintained and articular surfaces were smooth and regular, and the patella was well located in the intercondylar notch. The Veteran was afforded a VA examination on February 13, 2012. On examination, his right knee demonstrated flexion to 60 degrees with pain started at 30 degree and extension to 15 degrees with pain started at 10 degrees. His left knee demonstrated flexion to 50 degrees with pain starting at 15 degrees and extension to 10 degrees with pain starting at 10 degrees. The examiner indicated that the Veteran did not perform repetitive tests due to pain. He reported flareups during which he experienced almost constant pain and weakness. Muscle strength testing was 3/5 bilaterally without atrophy. The examiner found no history of recurrent patellar subluxation/dislocation bilaterally. The examiner did not find any tibia or fibular impairment, or genu recurvatum, or meniscus condition in either knee. The examiner found weakened movement and instability bilaterally. The Veteran reported constant use of braces and cane. X-rays of left knee in February 2012 showed old fracture in the middle left tibia with internal fixation and advanced healing, and the fibular showed no fracture or abnormality. The Veteran was afforded a VA examination on May 11, 2015, at which his right knee demonstrated full extension and flexion to 90 degrees with pain noted but did not cause additional loss of motion. His left knee demonstrated full extension and flexion to 85 degrees with pain noted but did not cause additional loss of motion. The Veteran was able to perform repetitive use without causing additional functional loss. He reported flareups during which he could not stand, walk or ride for long periods of time. The examiner indicated that the estimated range of motion was not further limited during flareups. Muscle strength testing was 5/5 bilaterally with no atrophy or ankylosis. The examiner indicated there was no history of recurrent subluxation or lateral instability or recurrent effusion in both knees. Joint stability testing was normal for the left knee, but there was minor medial instability in the right knee with 1+ (0-5 mm). The examiner found no tibia or fibular impairment, or meniscus condition bilaterally. The examiner indicated that the Veteran did not use assistive devices. The examiner noted a left knee arthroscopic surgery in 1980s without residuals. The Veteran was afforded a VA examination in October 2019. On examination, his right knee demonstrated full extension and flexion to 105 degrees and left knee demonstrated full extension and flexion to 90 degrees. He was able to complete repetitive use without additional functional loss. The examiner indicated that the pain, weakness, fatigability or incoordination further reduced right knee flexion to 100 degrees and left knee flexion to 85 degrees, without affecting the full extension bilaterally. The Veteran reported flareups, which did not cause additional functional loss. Muscle strength test was 5/5 bilaterally without atrophy. The examiner indicated that there was no history of recurrent subluxation or lateral instability or recurrent effusion in either knee. Joint stability testing was normal bilaterally. The examiner found no tibia or fibular impairment, ankylosis, or meniscus condition in either knee. The Veteran reported regular use of both a cane and a brace. The examiner noted that the Veteran had resection of osteoid osteomalacia and ORIF left tibia with intramedullary rod in the 1980s, with residual symptoms of pain and limitation of range of motion. The examiner indicated that there was no evidence of right knee instability on physical examination and that right knee patellofemoral pain syndrome does not cause knee instability. VA treatment records in April 2019 show that the Veteran had minimal effusion in the right knee without laxity to valgus/varus stress and with full range of motion. His right knee had negative drawer sign. His left knee examination was limited by pain and was able to flex the knee to 30 degrees. Treatment notes in July 2019 showed mild swelling in the right knee, tender to palpation with 4/5 strength and range of motion from zero to 45 degrees. Left knee had mild swelling and tender to palpation with 4/5 strength and range of motion from zero to 30 degrees. Varus/valgus laxity test was negative bilaterally. Treatment notes on December 23, 2019 noted that the Veteran was walking slowly with mild limping gait and with a cane. There was minimal effusion and no erythema or lacerations bilaterally. Pain was noted. The right knee showed active range of motion from 20 to 80 degrees, and passive range of motion from five (5) to 95 degrees. The left knee showed active range of motion from 10 to 90 degrees, and passive range of motion from zero to 120 degrees. Both knees were stable to varus/valgus stress test and negative to anterior/posterior drawer and McMurray tests. The Veteran provided multiple statements describing the symptoms of his knee disabilities. In a recent statement received by VA in July 2020, he reported having experienced pain and swelling in his knees, usually worse after he got off work as a pest control technician. He stated that he had been doing physical therapy without improvement and that his left leg gave out from time to time. Private Treatment records showed that the Veteran was regularly seen for his bilateral knee problems. For example, in February 2019, he complained of bilateral knee pain with greater pain in the left knee than the right knee. His symptoms included difficulty in walking and working, popping and grinding, crepitus, limited range of motion, tender to palpation along medial and lateral joint line. His anterior/posterior drawer test was negative. He was given steroid injection. Private physical therapy records showed that the Veteran has been regularly treated with physical therapy. For example, physical therapy notes in May 2020 showed that the Veteran had symptoms of knee pain, difficulty walking, standing with stairs, decreased range of motion, decreased strength, as well as muscular tightness. Physical examination on May 6, 2020 and June 9, 2020 showed gait dysfunction with lack of proper heel strike and knee flexion, with range of motion in the right knee from zero to 125 degrees and from zero to 115 degrees in the left knee. Muscle strength was 4/5 in the right knee (both flexion and extension), and 4/5 for the left knee flexion and 3.5/5 for left knee extension. Extension The evidence shows that from February 13, 2012 to May 11, 2015 and from December 23, 2019 to May 6, 2020, the Veteran demonstrated limitation of extension in both knees. VA examination conducted on February 13, 2012 showed that after considering pain, the extension in the left knee and right knee was limited to 10 degrees, representing a 10 percent rating under DC 5261. However, VA examination dated May 11, 2015 and October 2019 showed that the Veteran had full range of extension in both knees even considering the pain. As such, a 10 percent rating is warranted for limitation of extension from February 13, 2012 to May 11, 2015 for each knee. VA treatment record dated December 23, 2019 showed that the Veteran again demonstrated limitation of extension in both knees with right knee’s active extension to 20 degrees, representing a 30 percent rating under DC 5261, and left knee’s active extension to 10 degrees, reparenting a 10 percent rating under DC 5261. However, private physical therapy records show that from May 6, 2020, the Veteran showed full extension bilaterally. In June 2020, physical therapy records showed bilateral full extension again. As such, from December 23, 2019 to May 6, 2020, a 30 percent rating is warranted for limitation of extension in the right knee and 10 percent rating is warranted for limitation of extension in the left knee. The Board also considered whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Here, the limitation of extension was evaluated after considering the pain and weakness, etc. However, pain, weakness, etc. were not shown to otherwise further limit the range of extension to be qualified for higher ratings from February 13, 2012 to May 11, 2015 and from December 23, 2019 to May 6, 2020 for the knees. Outside these periods, the evidence shows that even considering the pain and weakness, etc. both Veteran’s knees demonstrated full extension. As such, a compensable rating is not warranted outside the periods specified above. Flexion The evidence shows that from February 13, 2012 to May 11, 2015, the Veteran’s left knee flexion was functionally limited to 15 degrees, and outside of that period, the evidence does not show that the Veteran’s flexion in either knees was functionally limited to less than 30 degrees. VA examination dated August 2011 showed that even considering pain and weakness, the Veteran could flex both knees to 30 degrees, representing a 20 percent rating under DC 5260. VA examination dated February 13, 2012 showed that even considering pain and weakness, the Veteran could only flex his left knee to 15 degrees, representing a 30 percent rating under DC 5260, and he could flex his right knee to 30 degrees, representing a 20 percent rating under DC 5260. VA examination dated May 11, 2015 showed that even considering pain and weakness, the Veteran could flex his left knee to 85 degrees and flex his right knee to 90 degrees, These ranges of flexion are both much greater than a non-compensable rating under DC 5260 which requires limitation of flexion to 60 degrees. A VA examination dated October 2019 showed that even considering pain and weakness, the Veteran could flex his left knee to 85 degrees and flex his right knee to 100 degrees, These ranges of flexion are both much greater than a non-compensable rating under DC 5260 which requires limitation of flexion to 60 degrees. VA treatment records as well as private treatment records do not show that the range of flexion in either knee was functionally limited to less than 30 degrees. For example, VA treatment records in July 2019 showed right knee flexion to 45 degrees and left knee flexion to 30 degrees. Private physical therapy records in May and June 2020 showed right knee flexion to 125 degrees and left knee flexion to 115 degrees. As a 30 percent rating requires flexion to be limited to 15 degrees or less, a rating in excess of 20 percent is not warranted for either knee, except that from February 13, 2012 to May 11, 2015, a 30 percent rating is warranted for limitation of flexion in the left knee as the left knee could only flex to 15 degrees during the February 2012 VA examination. The Board also considered whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Here, the limitation of flexion was evaluated after considering the pain and weakness, etc. However, pain, weakness, etc. were not shown to otherwise limit the range of extension to be less than 30 degrees in either knee, except for the period between February 13, 2012 and May 11, 2015, when left knee flexion was further limited to 15 degrees due to pain. As such, a rating in excess of 20 percent under DC 5260 in either knee is denied, except for the period between February 13, 2012 to May 11, 2015, when that a 30 percent rating is granted for the left knee under DC 5260. Instability The evidence does not show that the Veteran’s bilateral knee disabilities caused “severe” recurrent subluxation or lateral instability in either knee. VA examination in August 2011 showed bilateral genu recurvatum with weakness and insecurity on with weight bearing. The examiner noted that the Veteran walked with a limp due to knee pain and weakness and he required braces on both knees for ambulation. The examiner indicated that there was instability, weakness, tenderness and guarding of movement bilaterally without sign of edema, abnormal movement, effusion, redness, heat, deformity, mal-alignment, drainage, or subluxation. The anterior and posterior cruciate ligaments stability test was within normal limits bilaterally; the medial and lateral meniscus test of both knees was within normal limits bilaterally; while the medial and lateral collateral ligaments stability test was abnormal with moderate instability bilaterally. VA examination in February 2012 showed weakened movement and instability bilaterally. The Veteran reported constant use of both braces and a cane. However, the examiner found no history of recurrent patellar subluxation/dislocation, or any tibia or fibular impairment, or genu recurvatum, or meniscus condition in either knee. X-rays showed old fracture on middle left tibia with internal fixation and advanced healing, the fibular showed no fracture or abnormality. Muscle strength test was 3/5 bilaterally without atrophy. A VA examination in May 2015 found joint stability testing was normal for the left knee, while there was minor medial instability in the right knee with 1+ (0-5 mm). The examiner found no history or recurrent subluxation or lateral instability or recurrent effusion in both knees. Muscle strength test was 5/5 bilaterally without atrophy. The examiner indicated that the Veteran did not use assistive devices. VA examination in October 2019 showed that joint stability testing was normal bilaterally. While the Veteran reported regular use of cane and brace, the examiner found no history of recurrent subluxation or lateral instability or recurrent effusion in either knee. The examiner found no tibia or fibular impairment, ankylosis, or meniscus condition in either knee. In addition, the examiner indicated that there was no evidence of right knee instability on physical examination. VA treatment records and private records do not show “severe” recurrent of subluxation or lateral instability. For example, VA treatment records in July 2019 showed mild swelling in both knees, muscle strength was 4/5 strength bilaterally. Varus/valgus laxity test was negative bilaterally. VA Treatment notes on December 23, 2019 noted that both knees were stable to varus/valgus stress test and negative to anterior/posterior drawer and McMurray test. Private treatment records in February 2019 showed negative anterior/posterior drawer test. The Board finds that evidence does not support a rating in excess of 20 percent for instability under DC 5257. A 30 percent rating under DC 5257 requires “severe” recurrent subluxation or lateral instability. Here, although the Veteran reported episodes of giving way and VA examinations in August 2011 and February 2012 showed instability in both knees, such instability was mild to moderate, and it was consistently found that there was no history of recurrent subluxation or lateral instability in either knee. The joint stability test conducted in the May 2015 VA examination showed normal result for the left knee and only mild instability in the right knee. The joint stability test conducted in October 2019 VA examination showed normal test in both knees and the examiner indicated that there was no right knee instability upon examination. Additionally, the private records also show negative anterior/posterior drawer test. Looking at the evidence as a whole, the Veteran’s instability in his knees has not reached the “severe” level which was required by the 30 percent rating. As such, the evidence is insufficient to support a finding of severe recurrent subluxation or lateral instability in each knee. A rating in excess of 20 percent under DC 5257 is denied. REASONS FOR REMAND In October 2020, the Veteran filed a claim for TDIU, citing among other disabilities, his knees as the reason he could not work. When TDIU is raised in connection with an increased rating claim for one disability (i.e., a Rice TDIU claim), the Board must consider entitlement to a TDIU in light of all service-connected disabilities—even those not at issue before the Board. Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised. The TDIU claim should be adjudicated. The matter is REMANDED for the following action: Adjudicate the TDIU claim. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Q. Wang, 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.