Citation Nr: 21002221 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 17-34 260 DATE: January 13, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for a service-connected left knee disability is denied. Entitlement to a disability rating in excess of 20 percent for a service-connected right knee disability is denied. FINDINGS OF FACT 1. The Veteran’s service-connected left knee disability is manifested by pain that results in a decrease in range of motion; however, it does not result in flexion limited to 16-30 degrees or extension limited to 11-15 degrees. 2. The preponderance of the evidence shows that the Veteran’s right knee disability is not manifested by at least severe recurrent subluxation or lateral instability. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating higher than 10 percent for a left knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5003-5260. 2. The criteria for Entitlement to a disability rating in excess of 20 percent for a service-connected right knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5003-5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1961 to December 1963. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). This matter was previously before the Board in August 2020, at which time it was remanded to the Department of Veterans Affairs (VA) Regional Office (RO) for further development. The RO most recently readjudicated the appeal in a November 2020 supplemental statement of the case. The Board finds that VA has substantially complied with the August 2020 Board remand. INCREASED RATING Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating Schedule is primarily a guide in the evaluation of a disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate Diagnostic Codes (DCs) identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be “staged.” Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct periods where the service- connected disability exhibits symptoms that would warrant different ratings). Where entitlement to compensation has already been established, as is the case here, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. A claim is denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Furthermore, any reasonable doubt regarding the degree of disability is resolved in favor of the claimant. 38 C.F.R. § 4.3. Entitlement to a disability rating in excess of 10 percent for a service connection left knee disability A November 2006 rating decision granted the Veteran service connection for a left knee disability and assigned a 10 percent disability rating under Diagnostic Code 5003-5260. Under DC 5003 and 5010, degenerative arthritis and traumatic arthritis established by X-ray findings are 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. Under DC 5260, a noncompensable rating is warranted for flexion limited to 60 degrees. A 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. A 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. When degenerative arthritis is established by x-ray findings and limitation of motion is noncompensable, a rating of 10 percent is appropriate for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Id. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id The Veteran underwent a VA knee examination of his left knee in December 2019. The examiner diagnosed the Veteran with osteoarthritis, which he noted was first diagnosed in 2014. The Veteran’s left knee range of motion was limited to 120 degrees. Pain was noted on the examination on flexion and extension, as well as with weightbearing. There was no objective evidence of tenderness or pain on palpation and no evidence of crepitus. The Veteran was found able to perform repetitive testing with additional functional loss after three observed repetitions due to pain and lack of endurance, with the Veteran’s left knee range of motion limited to 110 degrees. In terms of repetitive use over time, the examiner noted that, due to pain, the Veteran’s range of motion is limited to 100 degrees. During a flare-up, the examiner noted that pain and lack of endurance further reduced the Veteran’s left knee range of motion to 90 degrees. The Veteran did not have ankylosis in the left knee. The VA examiner noted that there was no recurrent subluxation, lateral instability, or recurrent effusion. Finally, the Veteran did not have a meniscal condition for his left knee. Following the August 2020 Board remand, the Veteran underwent another VA examination of his left knee in October 2020. Range of motion was limited to 105 degrees. Pain was noted on the examination on flexion and extension, as well as with weightbearing. The VA examiner noted that the this caused some limitation in walking and standing. There was objective evidence of tenderness and pain on palpation as well as evidence of crepitus. The Veteran was found able to perform repetitive testing with additional functional loss due pain limiting flexion to 100 degrees. In terms of repetitive use over time, the examiner again noted pain, however the Veteran’s range of motion continued to limited to 100 degrees. During a flare-up, the examiner noted that pain further reduced the Veteran’s left knee range of motion to 90 degrees. The examiner also did not find ankylosis, recurrent subluxation, lateral instability, or recurrent effusion, or a meniscal condition of the left knee. After considering the applicable diagnostic criteria, the Board finds that the Veteran does not warrant a higher disability for his service-connected right knee disability. A higher evaluation of 20 percent is not warranted for degenerative arthritis of the right knee as there is no indication that the x-ray evidence of record shows involvement of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations. Likewise, a higher evaluation of 20 percent is not warranted because the pertinent left knee evaluations do not show that the Veteran ever had limitation of flexion to 16 to 30 degrees; limitation of extension to 15 to 19 degrees; moderate recurrent subluxation or lateral instability; any ankylosis, or any meniscal condition associated with his left knee. The previously assigned 10 percent rating for the Veteran’s left knee disability contemplates the chronic pain and functional loss experienced by the Veteran and the evidence of record simply does not support a higher initial rating at this time. Unfortunately, the Veteran’s lay statements do not by themselves support an additional increased rating. His primary complaint appears to be pain, for which the Veteran is already being compensated under the provisions cited above. Again, it is important for the Veteran to understand that a disability rating at any level will cause the Veteran problems. The only question is the degree of the problems based on the criteria above. The Board has considered other diagnostic codes, but nothing we have reviewed provides a basis to grant the Veteran more compensation. If the Veteran’s condition worsens, he is free to file another claim. The preponderance of the evidence is against the assignment of a disability rating in excess of 10 percent for the Veteran’s service-connected left knee disability and the Veteran’s claim is accordingly denied. Entitlement to a disability rating in excess of 20 percent for a service-connected right knee disability The Veteran asserts that he is entitled to a higher disability rating for his service-connected right knee disability. The Veteran has been in receipt of a 20 percent disability rating for his right knee under diagnostic code 5003-5257 since July 1981. He filed a claim for an increased rating in September 2014. The Board notes that, in a separate November 2020 rating decision that is not currently before the Board, the RO granted the Veteran service connection for an ACL tear of the right knee, assigning a 10 percent disability evaluation under diagnostic code 5260. This is a separate part of the Veteran’s right knee issue which the VA is attempting to compensate as well as the issue before the Board. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.29. Under 38 C.F.R. § 4.71a, Diagnostic Code 5257, 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 “mild,” “moderate,” “moderately severe” 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 “mild” or “moderate” 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. Joint stability testing of the Veteran’s right knee was performed at a December 2019 VA examination of the Veteran’s right knee. The examiner found no joint instability. The Veteran exhibited full strength, however muscle atrophy above the right knee was noted. Pain was noted on exam, with and without weight bearing. The Veteran underwent a subsequent VA examination of the Veteran’s right knee in October 2020. The Veteran reported difficulty walking on surfaces that are not flat and reported 2 falls in November 2019 with worse pain and locking up after falls. After reviewing the Veteran’s claims file and examining the Veteran, the examiner found moderate recurrent subluxation, moderate lateral instability, and joint effusion in the right knee. The VA examination reports and the medical evidence in the claims file do not support a finding that that any subluxation or instability found to have been present was severe. Accordingly, separate disability ratings higher than the currently assigned 20 percent disability ratings for recurrent subluxation and lateral instability of the right knee is not warranted. As noted above, the Veteran is already in receipt of a separate 10 percent disability for a separate right knee issue. Overall, the Veteran has a 50% disability evaluation for the overall bilateral knee issue, which will cause the Veteran many problems as is a significant disability evaluation. The only question is the degree of each problem based on the evidence. The Board finds that the preponderance of the evidence shows that the Veteran’s right knee disability is not manifested by ankylosis; severe recurrent subluxation or lateral instability; dislocated semilunar cartilage with frequent locking pain and effusion; malunion or nonunion of the tibia and fibula; genu recurvatum; or limitation of flexion to 30 degrees or limitation of extension to 20 degrees. In sum, the Board finds that entitlement to a rating in excess of 20 percent for a right knee disability based on subluxation or instability is not warranted. See 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a. Accordingly, the Board finds that the preponderance of the evidence is against the assignment of a disability rating in excess of 20 percent for the Veteran’s service-connected right knee disability. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board V. Woehlke 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.