Citation Nr: 21002287 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 12-29 064 DATE: January 13, 2021 ORDER Entitlement to a rating higher than 10 percent prior to January 17, 2020, and higher than 20 percent thereafter, for left knee limitation of flexion is denied. Entitlement to a rating higher than 10 percent prior to January 17, 2020, and higher than 20 percent thereafter, for right knee limitation of flexion is denied. Entitlement to a compensable rating for left knee limitation of extension is denied. Entitlement to rating higher than 10 percent for right knee instability is denied. From January 9, 2013, entitlement to rating for 20 percent, and no higher, for right knee meniscal disability is granted. Restoration of a 10 percent rating for the Veteran’s right knee limitation of extension is granted. FINDINGS OF FACT 1. Prior to January 17, 2020, Veteran’s right and left knee flexion was, at worst, measured to 95 degrees in each knee. 2. From January 17, 2020, the Veteran’s right and left knee flexion was, at worst, measured to 30 degrees in each knee. 3. The Veteran’s left knee extension was, at worst, measured to five degrees. 4. The January 2020 VA exam showed the Veteran experienced slight instability in his right knee. 5. From January 9, 2013, the Veteran’s right knee meniscal condition caused pain, swelling, and stiffness. 6. The Veteran is in receipt of the maximum rating for his right knee meniscal condition. 7. The reduction in the right knee disability rating from 10 percent to zero percent was not based on maintained improvement in the Veteran’s ability to function under the ordinary conditions of life and work. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 10 percent prior to January 17, 2020, and higher than 20 percent thereafter, for bilateral knee limitation of flexion have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.71a, Code 5260. 2. The criteria for a compensable rating for left knee limitation of extension have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.71a, Code 5261. 3. From January 9, 2013, the criteria for a 20 percent rating, and no higher, for a meniscal condition of the right knee have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.71a, Code 5258. 4. The criteria to for a rating higher than 10 percent for right knee lateral instability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.71a, Code 5257. 5. The criteria for restoration of a 10 percent rating for right knee limitation of extension have been met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.105. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the U.S. Army from July 1986 to June 1989. The Veteran testified at a hearing before the undersigned Veterans Law Judge in July 2019. The Board remanded the appeal in August 2019 to obtain outstanding treatment records and afford the Veteran another VA orthopedic examination. The examination was conducted in January 2020. The June 2020 rating decision awarded increased ratings for the left and right knees to 20 percent each for limitation of flexion. The decision also granted a 20 percent rating for right knee meniscal residual, a 10 percent rating for right knee instability, a non-compensable rating for left knee limitation of extension, and reduced the right knee limitation of extension to zero percent. Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portrays the anatomical damage, and the functional loss, with respect to these elements. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. Under 38 C.F.R. § 4.45 consideration must be given where there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in 38 C.F.R. §§ 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned is based on the extent to which motion is limited, pursuant to either 38 C.F.R. § 4.71a (musculoskeletal system) or 38 C.F.R. § 4.73 (muscle injury). A separate or higher rating under 38 C.F.R. §§ 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of 38 C.F.R. § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the 38 C.F.R. § 4.71a [or 38 C.F.R. § 4.73 ] criteria.”). Separate ratings for knee disabilities may be assigned for disability of the same joint, if none of the symptomatology on which each rating is based is duplicative or overlapping. See VAOPGCPREC 9-04 (2004); 69 Fed. Reg. 59,990 (2004); 38 C.F.R. § 4.14. 1. Entitlement to a rating higher than 10 percent prior to January 17, 2020, and higher than 20 percent thereafter, for service-connected left knee flexion. 2. Entitlement to a rating higher than 10 percent prior to January 17, 2020, and higher than 20 percent thereafter, for service-connected right knee flexion. 3. Entitlement to a compensable rating for service-connected left knee extension. 4. Entitlement to rating higher than 10 percent for service-connected right knee instability. 5. Entitlement to rating higher than 20 percent for service-connected right knee, meniscal residual. The Veteran filed a notice of disagreement with the December 2010 rating decision, which assigned a single 10 percent rating for bilateral knees under diagnostic code (DC) 5260, and the October 2013 rating decision, which assigned a separate 10 percent rating for the left knee under DC 5260 and a 10 percent rating for the right knee under DC 5261. Treatment records show the Veteran complained of ongoing knee pain and stiffness, which had progressed to a point where it was affecting his quality of life. In November 2011, the Veteran complained of tenderness of the right knee, decreased range of motion, mild edema, and altered gait. X-rays from February 2012 show mild to moderate narrowing of the medial joint compartment with small bone spurs. There was no change from x-rays conducted in April 2010. Functional limitations included squatting and flexion. He was unable to run, perform any physically demanding activities or walk for long periods. The right knee gave out on him, on occasion, and felt unstable. He had injections in his left knee, but the effect never lasted long. He was told injections for his right knee would not be useful and it was suggested that he needed a knee replacement in the future. In 2013, his osteoarthritis had worsened, with evidence of bilateral weakness and crepitus, left knee laxity, and visible right knee deformity. In 2014, the Veteran complained of ongoing pain and swelling. He reached out to his physician on multiple occasions to discuss his concerns regarding his treatment and increasing symptoms. He was seen by a private orthopedist in February 2018 and was diagnosed with bilateral knee degenerative joint disease. The physician noted that his knees had a varus deformity. He had constant pain that worsened with activity and walking. He had bilateral knee flexion to 10 degrees with flexion to 95 degrees. X-rays showed medial joint space narrowing, worse on the right with spurring around the patellofemoral joint. In May 2020, the Veteran complained of intense right knee pain that felt like a new injury. Notes indicated that he may eventually opt for a knee replacement. The Veteran was afforded several VA examinations during the appeal period. As noted in the prior Board decision, the July 2010, January 2013, and May 2015 examinations did not include range of motion studies in both passive and active motion and in weight-bearing and non-weightbearing. At the time of the July 2010 exam, the Veteran used braces and acetaminophen to alleviate some of his bilateral knee pain while ambulating. He indicated that he would often have to compensate for one knee with the other. The examiner diagnosed mild degenerative joint disease. During the January 2013 examination, he described flare-ups with swelling and pain with any activity. He had difficulty climbing stairs and was unable to squat or kneel. He denied use of braces or any other assistive devices. Range of motion for the right knee was measured to 110 degrees of flexion, with pain at 100 degrees and to 10 degrees of extension, with pain at zero (or hyperextension.) Range of motion for the left knee was measured to 140 degrees of flexion and zero degrees of extension, both with no evidence of painful motion. Repetitive motion testing did not result in additional limitation of motion. However, there was functional loss or impairment in the form of less movement than normal, pain on movement, deformity and disturbance of locomotion in the right knee and weakened movement in both knees. The examiner confirmed that the Veteran’s knee disability symptoms had worsened. The August 2013 examiner did not complete the Veteran’s medical history or initial range of motion. There was also no data as to whether he suffered flare-ups. The Veteran was able to complete repetitive use testing for his left knee and flexion was measured to 135 degrees and there was no limitation of extension. The right knee was not tested. Stability testing in both knees was normal. During the May 2015 exam, the examiner noted multiple diagnoses including bilateral knee strain, tendonitis/tendinosis, osteoarthritis, right knee meniscal tear, and right knee ligament tear. Both knees had worsened in the months prior to the exam. The left knee symptoms were greater than the right, but both knees experienced swelling. He wore a brace on the left knee and used a cane. Range of motion testing was measured at 95 degrees of flexion and zero degrees of extension, bilaterally. He experienced sharp pain with motion and on weight bearing. There was also evidence of crepitus and localized tenderness or pain on palpation of the joint. The Veteran was able to complete repetitive use testing without any additional functional loss or range of motion. Muscle strength was reduced bilaterally and worse on the left. There was no subluxation or instability. Most recently, the Veteran underwent a VA examination in January 2020 and reported his bilateral knee symptoms worsened in the last three years. He had constant pain, frequent swelling, and stiffness. There was also significant instability in his right knee, but it was mild on the left. He managed his symptoms with medication and knee braces. His flare-ups were moderately severe, occurred twice a week, and lasted one to two days. He was unable to do anything during these flare-ups and occasionally called out from work. He also described an inability to squat, limited walking, difficulty with heavy lifting, and prolonged standing for longer than 10 minutes. Range of motion was measured to 85 degrees of flexion and five degrees of extension, which caused decreased kneeling ability. Pain was noted on flexion and extension on passive motion and with non-weight bearing. There was mild tenderness of the medial and lateral aspect of the knee joint. The Veteran was able to perform repetitive use testing without any additional loss of function or range of motion. Muscle strength was slightly decreased. There was no ankylosis. There was slight instability in the right knee following a positive Lachman test. Pain, fatigue, and weakness significantly limited functional ability with repeated use and on flare-ups. Following repeated use, when described in terms of range of motion, flexion was measured to 70 degrees and five degrees, bilaterally. Following flare-ups, when described in terms of range of motion, flexion was measured to 30 degrees and extension to five, bilaterally. The Veteran experienced a right knee meniscal tear and had frequent episodes of joint pain and effusion. The examiner observed bilateral varus deformity in both lower extremities. For clarity, this analysis will go through each diagnostic code applicable to the knees. DC 5257 Under DC 5257, slight impairment is assigned a 10 percent rating, moderate impairment a 20 percent rating, and severe impairment a 30 percent rating. The terms “mild,” “moderate,” and “severe” are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. It should also be noted that 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 a higher rating. 38 C.F.R. §§ 4.2, 4.6. As noted above, the Veteran is in receipt of a 10 percent rating for instability in his right knee. The Board finds that the preponderance of the evidence does not support a higher rating in the right knee for instability or a separate rating for the left knee. Specifically, prior to the January 2020 examination, there was no probative evidence of subluxation or instability in either knee. During the July 2010 exam, the Veteran reported a chronic sense of instability in either knee when swollen; however, the examiner noted that there was no ligament laxity and the Lachman’s test was normal, with no movement on either side. Although the Veteran is competent to report the sense of instability in his knees, he is not competent to determine whether this rises to a level for a separate rating under DC 5257 for recurrent subluxation or lateral instability. The clinical findings, including formalized stability testing, did not show symptoms of recurrent subluxation or lateral instability in his right knee prior to January 2020. Further, the multiple examinations of record show no recurrent subluxation or lateral instability in the left knee at any time during the appeal period. These examiners considered the Veteran’s own reports when concluding there was no left knee instability at any time during the appeal period, and no right knee instability prior to January 2020. The January 2020 examiner noted slight anterior instability in the right knee at zero to five millimeters. As such, the assigned 10 percent is an appropriate rating for the Veteran’s symptoms. DC 5258 Under DC 5258, a maximum 20 percent rating is warranted for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. As noted above, the Veteran was awarded a 20 percent rating for right knee meniscal condition from January 17, 2020. Prior to that time, the evidence shows that his right knee meniscal issue caused pain, swelling, and stiffness as early as the January 9, 2013 VA examination. As such, the Board finds that the 20 percent rating should be awarded back to that date. An earlier date is not warranted as the medical evidence only confirms pain but does not show effusion or episodic locking. The Veteran has been awarded the highest rating available at 20 percent based on a meniscal tear in his right knee. As such, a higher rating is not warranted. DC 5260 & 5261 Range of motion of the knee is measured in flexion and extension. For VA purposes, normal range of knee motion is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. Under Code 5260, a 0 percent disability rating is assigned when flexion of the leg is limited to 60 degrees; a 10 percent disability rating is assigned when flexion is limited to 45 degrees; a 20 percent disability rating is assigned when flexion is limited to 30 degrees; and a 30 percent disability rating is assigned when flexion is limited to 15 degrees. Under Code 5261, a 0 percent disability rating is assigned for extension limited to 5 degrees; a 10 percent disability rating is assigned for extension limited to 10 degrees; a 20 percent disability rating is assigned for extension limited to 15 degrees; a 30 percent disability rating is assigned for extension limited to 20 degrees; a 40 percent disability rating is assigned for extension limited to 30 degrees; and a 50 percent disability rating is assigned for extension limited to 45 degrees. - Prior to January 17, 2020 The Board finds that the criteria for ratings higher than 10 percent for the right and left knee under Diagnostic Codes 5260 have not been satisfied or more nearly approximated. At worst, the Veteran’s bilateral knee flexion was measured to 95 degrees. Yet, he was awarded a 10 percent rating based on painful movement and evidence of degenerative arthritis. A higher rating is not contemplated, as his symptoms do not meet the required criteria of flexion limited to 30 degrees or worse. As for limitation of extension under DC 5261, at worst, it was measured to 10 degrees on the right and zero degrees on the left. As such, the Veteran was assigned a 10 percent rating for the right knee and a noncompensable rating for the left. The reduction of the right knee limitation of extension is addressed below. - After January 17, 2020 The Board finds that the criteria for ratings higher than 20 percent for the right and left knee under Diagnostic Code 5260 have not been satisfied or more nearly approximated. At worst, the Veteran’s bilateral knee flexion was measured to 30 degrees based on pain, fatigue, and weakness during flare-ups. A higher rating is not contemplated, as his symptoms do not meet the required criteria of flexion limited to 15 degrees or worse. As for extension, as noted above the Veteran’s right knee was reduced from 10 percent to noncompensable, which is discussed in the next section. For the left knee, extension was at worst to 5 degrees, which amounts to a zero percent rating. As such, the evidence does not show the Veteran’s left knee extension would warrant a compensable rating. The Veteran does not have any other pathology or abnormality of the knee that might warrant a separate rating under the diagnostic codes applicable to the knee. Diagnostic Codes 5256 (ankylosis), 5262 (impairment of tibia or fibula), and 5263 (genu recurvatum) are not raised by the record, because the record does not show that the Veteran has been diagnosed with ankylosis, a tibia impairment, a fibula impairment or genu recurvatum; at any time during the period on appeal. Therefore, Diagnostic Codes 5256, 5259, 5262, and 5263 do not provide any basis for an increased disability rating. 38 C.F.R. § 4.71a. Additionally, with respect to flare-ups, the Board finds that there is adequate evidence to base a determination consistent with the requirements in Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Veteran has reported additional pain and swelling resulting from flare-ups. These increased symptoms have been contemplated in the assigned disability ratings under the applicable diagnostic codes. In arriving at this conclusion, the Board has carefully considered both the lay assertions of the Veteran and the medical evidence. The Board understands his belief that his symptoms warrant a disability rating in excess of those assigned. However, he is not competent to determine whether the current severity of his bilateral knee disabilities warrant a higher rating. The most probative evidence of record does not support a rating in excess of those currently assigned. Rating Reduction Where a reduction in evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor. Additionally, the beneficiary must be given notice that he has 60 days to present additional evidence to show that compensation payments should be continued at the present level. Unless otherwise provided in paragraph (i) of this section, if additional evidence is not received within that period, final rating action will be taken, and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. 38 C.F.R. § 3.105(e). However, VA’s General Counsel has held that the provisions of 38 C.F.R. § 3.105(e) do not apply where there is no reduction in the overall amount of compensation payable. VAOPGCPREC 71-91 (Nov. 1991); VAOPGCPREC 29- 97 (Aug. 1997). In this case, no reduction notification procedures were undertaken, but the Board finds that none were required, as the overall compensation paid to the Veteran remained the same. See 38 C.F.R. § 3.105(e); VAOPGCPREC 71-91 (Nov. 1991); 57 Fed. Reg. 2,316 (1992). The provisions of 38 C.F.R. § 3.344(a), (b) prescribe additional requirements for rating reductions but only apply to ratings that have continued for long periods at the same level (5 years or more). They do not apply to disabilities which have not become stabilized and are likely to improve. Reexaminations disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating. 38 C.F.R. § 3.344(c). 6. Whether the reduction from 10 percent to noncompensable for the Veteran’s service-connected right knee limitation of extension was proper. In an October 2013 rating decision, the RO granted service connection for right knee limitation of extension with a 10 percent, effective January 9, 2013. In the June 2020 rating decision, the RO reduced the rating from 10 to 0 percent for the Veteran’s service-connected right knee limitation of extension disability. As the rating had been in effect for more than five years, the provisions of 38 C.F.R. § 3.344 (a) and (b) apply. Under 38 C.F.R. § 3.344 (a) and (b), VA must find the following before reducing a rating: (1) based on a review of the entire record, the examination forming the basis for the reduction is full and complete, and at least as full and complete as the examination upon which the rating was originally based; (2) the record clearly reflects a finding of material improvement; and, (3) it is reasonably certain that the material improvement found will be maintained under the ordinary conditions of life. See Kitchens v. Brown, 7 Vet. App. 320 (1995). The June 2020 rating decision was based on the findings of the January 2020 examination, which was a full and complete exam of the Veteran’s bilateral knees. The examiner reviewed the record and conducted a thorough physical examination, noting all symptoms and complications, including flare-ups. The Veteran was initially granted a 10 percent rating based on limitation of extension in the right knee to 10 degrees found during the January 2013 VA examination. The April 2015 examination showed right knee extension measured to zero degrees. The January 2020 examination showed right knee extension measured to five degrees. It is clear the more recent exams show improvement in extension for the right knee when compared to examination findings in 2013 but do not confirm that it was a sustainable change, as extension decreased from 2015 to the 2020 exams. Moreover, the most probative evidence does not support that the Veteran’s ability to function under ordinary conditions of life and work has improved. During the July 2019 hearing, he indicated that the pain in both knees had worsened to the point where he was unable to walk for even short periods. He wore a brace for his right knee. His most recent treatment records show constant complaints of increased pain, specifically in his right knee. As noted above, prior to January 17, 2020, the Veteran was in receipt of a 10 percent rating for his right knee flexion based on painful motion and for his left based on evidence of arthritis under diagnostic code 5003. The Board notes that a separate rating based on painful motion due to extension constitutes impermissible pyramiding. See 38 C.F.R. §§ 4.14, 4.59, 4.71a. Any such separate rating must be based on additional disabling symptomatology. Where there is a compensable limitation of motion under either diagnostic code 5260 or 5261, a rating under diagnostic code 5003 or 38 C.F.R. §§ 4.59 due to painful motion in that same joint is not warranted. 38 C.F.R. § 4.59 indicates “it is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.” As the Board is prevented from addressing this issue in the first instance, the ratings prior to January 17, 2020 for the Veteran’s right knee will remain. The evidence of record indicates that the Veteran’s right knee limitation of extension continues to have significant effects on his life, and that it remains at a substantially similar level of severity from the initial assignment. (Continued on the next page)   Thus, after considering the record as a whole and affording the Veteran the benefit-of-the-doubt, the Board finds that the rating reduction was not proper, and the 10 percent rating is restored as though the reduction had not occurred. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Price, 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.