Citation Nr: 21001991 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 13-00 215A DATE: January 12, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for right knee degenerative joint disease is denied. Entitlement to a 20 percent disability rating, but no higher, for right knee instability, from August 15, 2020, is granted. FINDINGS OF FACT 1. The preponderance of the evidence shows that the right knee degenerative joint disease is manifested by a limited range of motion to include flexion limited to no less than 50 degrees and extension limited to no more than 0 degrees, when considering the Veteran’s complaints of pain with and without weight bearing and resistance in active and passive range of motion as well as during flare-ups. 2. Giving the Veteran the benefit of the doubt, the evidence is in equipoise demonstrating that his right knee instability equates to a “moderate” instability manifested by findings of anterior instability reported as 2+ (moderate), posterior instability reported as 1+ (slight), no medial or lateral instability, slight subluxation, regular use of a knee brace for ambulation and locomotion, as well as symptoms of instability reported as moderate to severe by a medical professional. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for right knee degenerative joint disease under Diagnostic Code 5003, or under any other Diagnostic Code, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003-5261. 2. The criteria for a 20 percent rating, but no higher, for right knee instability, from August 15, 2020, under Diagnostic Codes 5003 - 5257, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003 - 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 2003 to May 2010. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an August 2010 rating decision issued by a Department of Veterans Affairs (VA) regional office (RO). The Veteran requested a videoconference hearing in his January 2013 substantive appeal (VA Form 9). However, in correspondence dated January 2014, the Veteran, through his representative, requested that his hearing request be withdrawn. As such, his hearing request is considered withdrawn. 38 C.F.R. § 20.704(e). The Veteran’s appeal previously came before the Board in March 2015 and June 2020. In both cases, the Board remanded the claim for further development. During the pendency of the appeal, in August 2020, the RO issued a rating decision granting a separate service connection award for right knee instability with an evaluation of 10 percent, effective August 15, 2020. Since the Veteran’s right knee instability was stated as a progression of his service-connected right knee degenerative joint disease still on appeal at that time and since the Veteran is presumed to be seeking the maximum benefit allowed by law and regulation, the additional assignment of benefits in the August 2020 rating decision was not considered to have resolved the Veteran’s claim at that time. AB v. Brown, 6 Vet. App. 35 (1993). Therefore, the issues of entitlement to a higher rating for the Veteran’s right knee degenerative joint disease and instability remain on appeal. The Board believes that further delay in this case must be avoided. In this regard, the Board apologizes for the delays in the full adjudication of this case. Increased Rating The Veteran seeks a higher disability rating for his right knee disability. Ratings for service-connected disabilities are determined by comparing the Veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 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 (2009). The assignment of a particular diagnostic code to evaluate a disability is “completely dependent on the facts of a particular case.” See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual’s relevant medical history, the diagnosis, and demonstrated symptomatology. Importantly, the evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. 38 C.F.R. § 4.14. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. Id. 1. Entitlement to a higher disability rating for right knee degenerative joint disease 2. Entitlement to a higher disability rating for right knee instability The Veteran has been assigned separate ratings for degenerative joint disease of his right knee under Diagnostic Codes 5003 and for his right knee instability under Diagnostic Codes 5003 – 5257. See 38 C.F.R. § 4.71a. Generally, hyphenated diagnostic codes are used when a residual disability is at issue. See 38 C.F.R. § 4.27. If the rating is determined on the basis of residual conditions, the number appropriate to the residual condition will be added, preceded by a hyphen. Id. Use of the second diagnostic code in the hyphenated grouping helps provide further detail regarding the origins of the residual disability, the bodily functions affected, the symptomatology, and anatomical location. Id.; see Tropf v. Nicholson, 20 Vet. App. 317, 321 (2006). In the case of the Veteran’s right knee instability rating, the diagnostic code following the hyphen is the diagnostic code by which the disability is evaluated. Diagnostic Code 5003 states that 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, Diagnostic Code 5003. When, however, the limitation of motion is noncompensable 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. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. 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 rating of 10 percent; in the absence of limitation of motion, x-ray evidence of arthritis involving two or more major joint groups with occasional incapacitating exacerbations will warrant a 20 percent rating. The above ratings are to be combined, not added under Diagnostic Code 5003. 38 C.F.R. § 4.71a, Diagnostic Code 5003, Note 1. With regard to limitation of motion, 38 C.F.R. § 4.71a, Diagnostic Code 5260 states that flexion of the leg limited to 60 degrees warrants a 0 percent 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. Under 38 C.F.R. § 4.71a, Diagnostic Code 5261, extension of the leg limited to 5 degrees warrants a 0 percent 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. Flexion of the knee to 140 degrees is considered full and extension to 0 degrees is considered full. See 38 C.F.R. § 4.71, Plate II. As to the second part of the Veteran’s hyphenated rating for his right knee instability, 38 C.F.R. § 4.71a, Diagnostic Code 5257, states that slight recurrent subluxation or lateral instability will be rated as 10 percent disabling; moderate recurrent subluxation or lateral instability will be rated as 20 percent disabling; and, severe recurrent subluxation or lateral instability warrants a 30 percent rating. The terms “slight,” “moderate” and “severe” are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. The use of terminology such as “slight,” “mild,” “moderate,” “moderately severe” or “severe” by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The Board also considered whether separate or increased evaluations are warranted under any other Diagnostic Codes pertaining to the Veteran’s knee condition that would afford the Veteran higher ratings. See BVA Memorandum by Attorney R.R. dated January 17, 2014 (arguing that additional Diagnostic Codes such as 5256 and 5262 should be considered in the Veteran’s claim). Under 38 C.F.R. § 4.71a, Diagnostic Code 5256, ankylosis at a favorable angle in full extension or in slight flexion between 0 degrees and 10 degrees warrants a 30 percent rating; ankylosis with flexion between 10 degrees and 20 degrees warrants a 40 rating; ankylosis with flexion between 20 degrees and 45 degrees warrants a 50 rating; and extremely unfavorable ankylosis (flexion at an angle of 45 degrees or more) warrants a 60 percent rating. Under 38 C.F.R. § 4.71a, Diagnostic Code 5258, dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint warrants a 20 percent rating, while 38 C.F.R. § 4.71a, Diagnostic Code 5259, removal of the semilunar cartilage when symptomatic warrants a 10 percent rating. Under 38 C.F.R. § 4.71a, Diagnostic Code 5262, impairment of the tibia and fibula with slight knee or ankle disability warrants a 10 percent rating; with moderate knee or ankle disability warrants a 20 percent rating; with marked knee or ankle disability warrants a 30 percent rating; and with nonunion (loose motion requiring brace) warrants a 40 percent rating. Also, under 38 C.F.R. § 4.71a, Diagnostic Code 5263, Genu recurvatum (acquired, traumatic, with weakness and insecurity in weight-bearing objectively demonstrated) warrants a 10 percent rating. However, in this case, the Veteran is in receipt of two separate disability ratings for the same right knee problem and there is no evidence of ankylosis of the right knee to warrant a separate rating under Diagnostic Code 5256; there is no evidence of dislocated semilunar cartilage to warrant a rating under Diagnostic Code 5258; no evidence of malunion or nonunion of the tibia and fibula to warrant a rating under Diagnostic Code 5262 for impairment of the tibia, and; no evidence of genu recurvatum to warrant a separate rating under Diagnostic Code 5263. See August 2010, August 2013, September 2019 and August 2020 VA Examinations. Thus, the Board will not discuss these Diagnostic Codes any further. Furthermore, in Esteban v. Brown, 6 Vet. App. 259, 261 (1994), the United States Court of Appeals for Veterans Claims (Court) held that in cases where the record reflects that the Veteran has multiple problems due to service-connected disability, it is possible for a Veteran to have “separate and distinct manifestations” from the same injury, permitting separate disability ratings. The critical element is that none of the symptomatology for any of the conditions is duplicative or overlapping with the symptomatology of the other conditions. Id. In this regard, VA General Counsel has held that separate ratings may be assigned in cases where a service-connected knee disorder includes both a compensable limitation of flexion under Diagnostic Code 5260, and a compensable limitation of extension under Diagnostic Code 5261 provided that the degree of disability is compensable under each set of criteria. VAOPGCPREC 9-2004; 69 Fed. Reg. 59990 (2004). The basis for the opinion was a finding that a limitation in different planes of movement were each compensable. Id. VA General Counsel has also held that separate ratings may be assigned in cases where the service-connected knee disorder includes both arthritis and instability, provided of course, that the degree of disability is compensable under each set of criteria. VAOPGCPREC 23-97 (July 1, 1997). 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 (2016); DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court has clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Moreover, the Court in Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (2016) held that the provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to the evaluation of musculoskeletal disabilities under Diagnostic Codes predicated on range of motion measurements. The Board now turns to the merits of the Veteran’s claim for a higher disability rating for his right knee disability. As to a higher rating for the Veteran’s right knee degenerative joint disease under Diagnostic Code 5003 combined with Diagnostic Code 5260 (limitation of flexion), the Board finds that even when considering functional limitations on his limitation of motion due to pain with and without weight bearing and resistance in active and passive range of motion as well as during flare-ups and the other factors identified in 38 C.F.R. §§ 4.40, 4.45, 4.59 as well as the Court’s holdings in Correia, Sharp, Mitchell, Burton, Southall-Norman, and DeLuca, and when considering the Veteran’s competent reports of his observable adverse symptomatology, his functional losses on limitation of motion in flexion do not equate to the criteria required for a 20 percent rating, or any higher rating, where flexion of his right knee has not been shown to be limited to 30 degrees, or less, at any time during the appeal period. See August 2010, August 2013, September 2019 and August 2020 VA Examinations. As to a higher rating and/or a separate compensable rating for the Veteran’s right knee degenerative joint disease under Diagnostic Code 5003 and under Diagnostic Code 5261 (limitation of extension) and pursuant to VAOPGCPREC 9-2004, the Board finds that even when considering functional limitations on limitation of motion due to pain with and without weight bearing and resistance in active and passive range of motion as well as during flare-ups and the other factors identified in 38 C.F.R. §§ 4.40, 4.45, 4.59 as well as the Court’s holdings in Correia, Sharp, Mitchell, Burton, Southall-Norman, and DeLuca, and when considering the Veteran’s competent reports of his observable adverse symptomatology, his functional losses on limitation of motion in extension do not equate to the criteria required for even a compensable rating, much less a 10 percent rating, because extension of the right knee has not been shown to be limited to 5 degrees, much less 10 degrees or higher, at any time during the appeal. See August 2010, August 2013, September 2019 and August 2020 VA Examinations. Here, the Board notes the most recent VA examination in August 2020 revealed the Veteran’s current symptoms are knee pain and a loss of range of motion. The range of motion for his right knee condition showed flexion limited to 100 degrees and extension limited to 0 degrees. Functional loss in range of motion was reported as no deep squats or lunges. Pain was noted on flexion and extension causing functional loss. No objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue was noted. Evidence of pain with weight bearing was noted and there was no evidence of crepitus. Repeated use over time was measured in terms of range of motion with flexion limited to 50 degrees and extension limited to 0 degrees. Flare-ups were noted with flexion limited to 50 degrees and extension limited to 0 degrees. Private medical records show the Veteran reported problems with his right knee pain worsening, no swelling but he felt grinding and significant pain in his right knee. See UPMC Medical Records dated September 12, 2019; UPMC Medical Records dated May 17, 2018. It is important for the Veteran to understand that he is in receipt of a 10 percent evaluation for limited range of motion due to pain under Diagnostic Code 5003 and a higher rating is not warranted under Diagnostic Code 5260, nor has a separate rating pursuant to Diagnostic Code 5261 and VAOPGCPREC 9-2004 been established, based on the most competent, credible and probative evidence of record as cited above. Thus, as the preponderance of the evidence is against the Veteran’s increased rating claim for right knee degenerative joint disease under Diagnostic Code 5003, the benefit-of-the-doubt doctrine is not applicable, and the claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As to a higher rating for the Veteran’s right knee instability under Diagnostic Code 5257, the Veteran is in receipt of a separate 10 percent rating for his right knee instability, as contemplated under VAOPGCPREC 23-97, from August 15, 2020. The August 2020 VA examination findings noted objective testing revealed anterior instability as 2+ (moderate), posterior instability as 1+ (mild or slight), with no medial or lateral instability. The examiner reported the Veteran had slight subluxation due to the instability in the right knee and that he used a knee brace regularly for ambulation. The examiner also noted that there was no history of recurrent subluxation, lateral instability, or recurrent effusion. In terms of symptoms of pain that can be considered separate from the pain associated with his degenerative joint disease rating for limitation of motion, the Veteran reported that he could not run, jump, play sports, stand or walk long distances at the August 2020 VA examination. The examiner confirmed in the report that the Veteran had a disturbance of locomotion (as opposed to disturbance of range of motion) and that he could not perform prolonged standing or extended ambulation and could not support high impact exercises or activities due to his knee condition. The examiner further opined that functional loss due to his instability is a residual of the Veteran’s previous PCL tear and right knee injury and that there is “definitely instability” shown on examination. The examiner reported that the Veteran’s symptoms of instability are moderate to severe. Prior medical records show, at best, a slight instability problem. See August 2010 VA Examination (examiner finding no objective evidence of instability); August 2013 VA Examination (no evidence of history of recurrent patellar subluxation/dislocation, normal anterior, posterior and medial-lateral instability testing results, pain reported with some buckling, no falls, brace worn occasionally for pain); and September 2019 VA Examination (no joint instability found upon examination, no history of recurrent subluxation, lateral instability, or recurrent effusion and normal anterior, posterior and medial-lateral instability testing results). The Veteran’s spouse previously reported more severe symptoms of knee instability that were manifested by the Veteran limping several times per week at home, which gets more severe with repetitive use and in cold weather. See Spouse’s Lay Statement dated January 16, 2014. The Veteran’s Spouse also provided competent and credible reports of the Veteran’s knee randomly “giving out” causing him to fall on several occasions. Id. Therefore, where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, as is the case here, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Here, the evidence of record, as between rating the Veteran’s right knee instability as “slight” or “moderate,” is in relative equipoise, when taking into account the most competent, credible and probative medical and lay evidence. When the evidence for and against the claim is in equipoise, by law, the Board must resolve all reasonable doubt in favor of the appellant. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Accordingly, the Board finds that the criteria for a higher rating of 20 percent, but no higher, for his right knee instability is warranted. It is important for the Veteran to understand that there is a limited basis for a finding of 20 percent which the Board can take based on a detailed review of the Veteran’s complaints and the medical evidence of record. There is no basis for a higher rating beyond this. Some of the evidence cited above does not support the grant of this claim to 20%, let alone a higher rating. Lastly, as to a separate rating for the Veteran’s right knee disorder at any time during the appeal under Diagnostic Code 5259 for the Veteran’s prior partial meniscectomy and torn meniscus when symptomatic, the Board notes that the August 2020 VA examiner found the Veteran had frequent episodes of locking and pain but had no dislocation and no effusion. Locking with pain is otherwise symptomatic of a limited range of motion problem and/or instability issue. The examiner found that the Veteran experienced symptoms such as decreased range of motion with pain on walking, standing, sitting, squatting, lunging and performing weight bearing exercises that became worse with repetitive use or in cold weather. The Board finds that the symptomatic residuals associated with the Veteran’s prior partial meniscectomy have already been compensated in his assigned ratings under Diagnostic Codes 5003 and 5257. The most competent, credible and probative evidence of record shows that the Veteran’s overall knee disability is manifested by findings and symptoms which include arthritis, noncompensable limitation of motion, and functional loss due to pain and instability in the right knee. These symptoms are already being contemplated in the currently assigned ratings under Diagnostic Codes 5003 and 5257. In this regard, it is important for the Veteran to understand that his 20% knee disability rating (e.g., the two separate 10% disability ratings he currently has for his right knee condition) will cause him many problems (as he has reported in the medical records). However, the critical element in permitting the assignment of separate ratings under various Diagnostic Codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban, at 261-62. The Veteran’s decreased range of motion with pain on walking, standing and weight bearing, along with the instability after his partial meniscectomy and torn meniscus surgeries in 2005 and 2008, are symptoms upon which the ratings under Diagnostic Codes 5003 and 5257 have already been based and they clearly overlap with the symptomatology contemplated under Diagnostic Code 5259. Therefore, based on all of the above, the Board finds that assigning a separate compensable rating under Diagnostic Code 5259 would constitute pyramiding prohibited by 38 C.F.R. § 4.14 because the symptoms of the Veteran’s partial meniscectomy and torn meniscus surgery are already contemplated in the rating assigned under Diagnostic Code 5003 for arthritis with painful limitation of motion and under Diagnostic Code 5257 for instability. See 38 C.F.R. § 4.14. To assign the Veteran a separate rating under Diagnostic Code 5259 would compensate the Veteran twice for the same symptoms. Moreover, the highest available rating under Diagnostic Code 5259 in this case is 10 percent; thus, Diagnostic Code 5259 does not allow for a higher rating than the separate 10 percent disability rating currently assigned under Diagnostic Code 5003, and the 20 percent disability rating now being assigned under Diagnostic Code 5257. Therefore, a separate and/or increased rating under Diagnostic Code 5259 must be denied. See 38 C.F.R. § 4.14. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine for the remaining claims asserted by the Veteran pertaining to his right knee disability. However, for the reasons already discussed, the preponderance of the evidence is against the Veteran’s remaining claims for separate ratings of his right knee disability and that doctrine is not applicable to those claims. See U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Christopher M. Davidson 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.