Citation Nr: 21003213 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 11-24 327 DATE: January 19, 2021 ORDER Entitlement to an initial rating of 20 percent for right knee degenerative joint disease with limitation of flexion prior to May 6, 2011, is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to an initial rating greater than 20 percent for right knee degenerative joint disease with limitation of flexion from May 6, 2011, is denied. Entitlement to a separate compensable rating prior to October 8, 2019, for limitation of extension is denied. Entitlement to an initial rating greater than 10 percent from October 8, 2019, for limitation of extension is denied. FINDING OF FACT In relevant part, the Veteran’s right knee degenerative joint disease results in limitation of flexion to no less than 30 degrees for the entire appellate time period and also limited extension to less than 10 degrees prior to October 8, 2019, and limits extension to no more than 10 degrees from October 8, 2018. CONCLUSIONS OF LAW 1. For the period prior to May 6, 2011, the criteria for a disability rating of 20 percent, but no more, for right knee degenerative joint disease with limitation of flexion have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5260 (2019). 2. For the period from May 6, 2011, the criteria for a disability rating greater than 20 percent for right knee degenerative joint disease with limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.71a, DC 5260. 3. For the period prior to October 8, 2019, the criteria for a compensable disability rating for right knee degenerative joint disease with limitation of extension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.71a, DC 5261. 4. For the period from October 8, 2019, the criteria for a disability rating greater than 10 percent for right knee degenerative joint disease with limitation of extension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.71a, DC 5261. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran had active duty in the United States Army from January 1984 to January 1993. In a May 2020 decision, the Board granted a separate rating for frequent episodes of locking, pain, and joint effusion (20 percent). July 2020 and November 2020 rating decisions granted separate ratings under DC 5258 (20 percent for frequent episodes of locking, pain, and joint effusion) and DC 5257 (10 percent for right knee degenerative joint disease with lateral instability). The Veteran has not expressed disagreement with the ratings assigned or effective dates. As such, no further consideration of these aspects of the Veteran’s right knee claim will be considered herein. A November 2020 rating decision granted entitlement to service connection for painful scars, right knee, status post meniscal repair, and assigned a 10 percent rating, effective September 15, 2020. The Veteran has not expressed disagreement with that determination and will not be considered further herein. The issue of entitlement to a separate rating for limitation of extension had been remanded by the Board in May 2020. A September 2020 rating decision granted a separate 10 percent rating for limitation of extension, effective from October 8, 2019. As the foregoing does not constitute a complete grant of benefits, the Board will consider the issue to remain in appellate status and will be adjudicated herein. 1. Entitlement to an initial rating greater than 10 percent for right knee degenerative joint disease with limitation of flexion prior to May 6, 2011 2. Entitlement to an initial rating greater than 20 percent for right knee degenerative joint disease with limitation of flexion from May 6, 2011 3. Entitlement to a separate compensable rating prior to October 8, 2019, for limitation of extension 4. Entitlement to an initial rating greater than 10 percent from October 8, 2019, for limitation of extension Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate DCs identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1. VA must consider whether the Veteran is entitled to “staged” ratings to compensate when his or her disability may have been more severe than at other times during the course of his or her appeal. The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various DCs 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 v. Brown, 6 Vet. App. 259, 261-62 (1994). Historically, the Veteran’s right knee degenerative joint disease with limitation of flexion has been rated under DC 5260 and right knee degenerative joint disease with limitation of extension under DC 5261. The Veteran contends that his current ratings (20 percent under DC 5260 from May 6, 2011, and 10 percent prior to that date and 10 percent under DC 5261 from October 8, 2019, and as noncompensably disabling prior to that date) do not accurately reflect the severity of his condition. Normal range of motion of the knee is to 0 degrees extension and to 140 degrees flexion. See 38 C.F.R. § 4.71a, Plate II. Under DC 5260, a 10 percent disability rating is warranted for flexion limited to 45 degrees. A 20 percent disability rating is assigned for flexion limited to 30 degrees; and a 30 percent disability rating is assigned for flexion limited to 15 degrees. Under DC 5261, a 10 percent disability rating is warranted 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. See 38 C.F.R. § 4.71a. In a September 2009 private treatment note the Veteran reported consistent aching in his right knee, aggravated by walking and climbing stairs. The Veteran reported that pain was relieved by over the counter medication. An October 2009 private treatment note indicated the Veteran had a long-standing history of right knee symptoms. He noted occasional pain that radiated to his right lower extremity with weakness and popping. The Veteran reported that he could not perform activities that involved being on his feet for an extended period of time. On examination, the clinician noted increased crepitus in the right knee when compared to the left. In a November 2009 private treatment note, the Veteran was noted to have a history of degenerative joint disease of the right knee. The clinician further noted crepitus and tenderness at the lateral joint line. An MRI study demonstrated significant degenerative changes in the lateral compartment. In August 2010, the Veteran was afforded a VA examination. In his right knee, the Veteran reported joint pain, stiffness, clicks, swelling, decreased speed of joint motion, inability to stand more than two hours, ability to walk no more than a quarter-mile, and use of a cane on a frequent basis. The Veteran indicated he was laid off due to his right knee because he could no longer fulfill his duties as a truck driver. The examiner noted a moderate effect on driving and listed the Veteran’s usual occupation would be significantly affected due to decreased mobility, problems with lifting and carrying, decreased strength, and pain. He had a flexion limited to 105 degrees with pain beginning at 70 degrees. He had full extension. On examination the Veteran demonstrated an antalgic gait, crepitus, tenderness, abnormal motion, and guarding of movement. The examiner also noted clicks or snapping, grinding, and patellar abnormality. In October 2010, the Veteran reported that during his August 2010 VA examination, the examiner encouraged him to move his knee past the point when it started hurting, resulting in a misleading range of motion. The Veteran also stated he has a scar from knee surgery. The Veteran noted that his previous knee surgery was attempted using a “new method” and stated the surgeon was referencing a book for assistance while conducting the surgery. In April 2011, the Veteran was afforded a VA examination for his right knee. The Veteran reported weakness, stiffness, swelling, heat, redness, giving way, lack of endurance, locking, fatigability, deformity, tenderness, effusion, pain, and dislocation. The Veteran indicated flare-ups caused by physical activity and stress as often as five times per week, sometimes alleviated by Meloxicam. The Veteran reported difficulty standing, walking, and running but denied incapacitation over the previous 12 months. On examination of the right knee, there was one linear and two non-linear superficial scars, none caused pain, limitation of motion or function, and had no underlying tissue damage. The linear scar measures 4 cm by 0.6 cm and the nonlinear scars are 0.8 cm by 0.9 cm and 1.4 cm by 1.4 cm. The examiner noted guarding of movement, tenderness, malalignment, and abnormal movement. The Veteran had a flexion from 0 to 25 degrees on the right side with no additional limitation after repetitive use. The Veteran reported he could no longer perform his usual occupation as a truck driver due to knee pain while loading/unloading the truck. He reported employment driving a cargo van which caused pain in his knee while driving. In an August 2011 VA treatment record the Veteran reported sharp pain, locking, giving way, and swelling. The Veteran reported using a cane in crowded areas and when walking in the mall and requested a knee brace. An MRI study showed mild myxoid degeneration in the posterior horn of the medial meniscus. In an April 2013 occupational medical examination the Veteran reported pain when crawling, kneeling, climbing, walking, or lifting. The Veteran stated his knee locks, gives way, swells, and is in constant pain. The examiner noted limited range of motion in the Veteran’s right knee and the use of a knee brace. In May 2013, the Veteran was afforded a VA examination for his right knee. The Veteran reported that he was in a lot of pain, found it very hard to walk, and experienced flare-ups which worsened his symptoms. On examination the Veteran had a flexion limited to 30 degrees with pain beginning at 5 degrees. Right knee extension was to 5 degrees with pain at 5 degrees. The examiner noted the Veteran was capable of getting on the examination table and sitting with his knee at an estimated 70 degrees without complaint. The examiner noted the Veteran’s statements that his knee hurts continually with any motion. The examiner opined the Veteran was not truthful and cooperative enough for a complete assessment. The examiner noted a non-painful, stable scar of less than 39 square centimeters. In July 2013, the Veteran was afforded a VA examination for his right knee by the same examiner as the May 2013 examination. The Veteran reported walking with a limp, pain while sitting and standing, and use of a cane and knee brace. The Veteran reported that he could not bend his knee past 30 degrees. The examiner opined the Veteran was not cooperative and honest during the examination and noted the Veteran is able to sit normally without signs of distress. The examiner noted meniscal conditions including meniscal dislocation with symptoms of frequent locking, pain, and effusion of the joint. The examiner also noted some functional limitation and impact on the Veteran’s ability to work but stated the Veteran is still working. The examiner noted a non-painful, stable scar of less than 39 square centimeters. In an April 2015 private treatment note the Veteran’s gait is indicated to be normal with a flexion of 40 degrees. In VA treatment records from February 2016 through January 2017, the Veteran had continued complaints of knee pain, locking and inflexibility. In a February 2016 VA treatment record the Veteran had complaints of joint pain in his knees with his range of motion limited due to a pain. In a December 2016 VA treatment record the Veteran had complaints of right knee pain, locking, decreased strength, and impaired flexibility with a right knee flexion of 75 degrees. In a January 2017 VA treatment record the Veteran had complaints of knee pain and limited range of motion. In June 2016, the Veteran was afforded a VA examination for his right knee. The Veteran reported constant pain with weakness, stiffness, lack of endurance, popping, and swelling. Pain increased when sleeping, driving or riding in car, or walking. The Veteran indicated the use of a knee brace and cane and reported flare-ups about five times per week. The examiner could not test range of motion due to pain and was unable to sit in a chair or bend his knees at all during the examination. The examiner noted that when walking the Veteran had a significant limp but did have some active range of motion with gait. Functional impacts include a limitation on lifting, going up or down stairs, and required use of an elevated workstation. In December 2016, the Veteran had right knee range of active motion from 25 to 75 degrees. Passive range of extension was to 5 degrees. In February 2017, the Veteran was afforded a VA examination for his left knee. However, range of motion was tested for both knees during the examination and the Veteran’s right knee was capable of flexion to 140 degrees and no pain was noted on the examination report. He also had full extension. A February 2017 MRI study indicated normal alignment, minimal osteoarthritic changes, and no convincing evidence of knee joint effusion. In March 2017, right knee muscle strength was 3 out of 5 and range of motion was from 0 to 75 degrees. The Veteran was afforded a VA examination in October 2018. The Veteran reported daily flare-ups with weakness and pain. There was functional loss in the right knee that made it difficult to lift, walk, climb stairs, and sit. Right knee range of motion was from 0 to 30 degrees. There was pain on flexion and extension. There was no further loss after repetitive motion testing or during flare-ups. Right knee muscle strength was normal, with no muscle atrophy or ankylosis. The Veteran had a history of slight recurrent subluxation. Joint stability testing was normal. He regularly used a cane. In November 2018, the Veteran had right knee range of motion from 0 to 135 degrees. A December 2018 private treatment record documented right lower extremity atrophy with tenderness. Extension was limited by approximately 5 degrees with flexion to 120 degrees. There was pain at the extreme ends of the ranges of motion. A right knee replacement seemed like the best course of treatment, but due to the young age of the Veteran it was not recommended. Another December 2018 record noted right knee range of motion from 5 to 100 degrees with active painful motion, but no indication where in the range of motion the pain occurred. There was no muscle atrophy observed. In January 2019, the Veteran had active right knee motion from 20 to 43 degrees and passive motion from 10 to 46 degrees. He was limited by pain in all movements. Ambulation skills were noted to be significantly impaired. In February 2019, the Veteran had right knee range of motion from 5 to 100 degrees with pain on motion although the location of pain in the arc of motion was not noted. An October 8, 2019 VA examination report is of record. The Veteran reported right knee pain and stiffness. He had difficulty walking, standing, climbing stairs, and carrying things. Range of motion testing was from 10 to 15 degrees. There was no further loss of motion with repetitive motion testing. The above notwithstanding, the examiner noted that there were “gross inconsistencies noted between range of motion found on focused exam, versus observed range of motion in other parts of the exam and in transitions, indicating probable intentional manipulation of exam results. Therefore, these results are not valid to objectively assess functional loss, either at baseline, with repetitive use, or with flares.” Muscle strength was 4 out of 5. There was muscle atrophy in the central thigh most likely due to chronic right knee issues and resulting kinesiophobia and disuse. There was no ankylosis, history of recurrent subluxation, or lateral instability. A January 2020 VA muscle injuries examination is of record. The Veteran had a diagnosis of muscle wasting and disuse atrophy of the right thigh and right knee joint from 2011. The problem had gotten progressively worse over time. There was some impairment of muscle tone and substance, as well as visible or measurable muscle atrophy. Lower extremity muscle strength was 4 out of 5. The right thigh was 1cm smaller than the left. A July 2020 VA examination for housebound status or permanent need for regular aid and attendance indicated muscle wasting and disuse atrophy of the right lower extremity. The Veteran had a slow and unsteady gait requiring the use of a cane. His knees prevented him from standing for more than 5 minutes, ambulate for more than 5 minutes, or drive. He also had difficulty with stairs. The Veteran was afforded a VA contract examination in September 2020. The examiner noted a right knee meniscal tear in 2020 and degenerative joint disease of the right knee from 1987. The Veteran reported progressively worsening symptoms and flare-ups with symptoms that included swelling, tightness, and sharp pain. There was functional loss that the Veteran described as requiring a cane to walk and difficulty with stairs due to leg weakness. Testing showed right knee range of motion from 10 to 50 degrees. There was pain in both flexion and extension. There was pain with weight bearing and noted crepitus and tenderness to palpation. There was no further loss of motion with repetitive motion. That said, estimated limitation of motion with repetitive use over time and/or during flare-ups was from 15 to 45 degrees. Pain inhibited overall movement, walking, sitting, and standing. Muscle strength was 4 out of 5 and there was noted muscle atrophy, specifically above the knee of approximately 2.75cm compared to the left thigh. There was no ankylosis or history of recurrent subluxation or lateral instability. The Veteran did not have current or historical recurrent patellar dislocation, shin splints, stress fractures, chronic exertional compartment syndrome, or any other tibial or fibular impairment. The Veteran had a noted tear of the right meniscus with frequent episodes of joint locking, pain, and effusion. The Veteran had undergone a meniscectomy in 1987. The Veteran regularly used a knee brace and constantly used a cane. There was objective pain in non-weight bearing. Passive range of motion was the same as active range of motion. The Board concludes that the evidence of record shows right knee limitation of flexion that has been substantially similar throughout the appellate time period. As such, the Board finds that a 20 percent disability rating under DC 5260 is appropriate for the entire appellate time period. In reaching that conclusion, the Board is cognizant that there is significant evidence of overreporting of symptoms and malingering during VA examinations that has frustrated efforts to accurately assess the severity of the Veteran’s right knee disability. That said, there is substantial evidence of significant limitation of flexion that has consistently limited functioning and resulted in a significant limp and the use of a cane and ultimately a knee brace. As such, the Board affords the Veteran the benefit of the doubt and concludes that a 20 percent rating under DC 5260 is warranted for the entire appellate time period. (In that regard, the Board notes that any actual increase in monetary compensation will be governed by 38 C.F.R. § 4.68 that states that the combined rating for disabilities of an extremity shall not exceed the rating for the amputation at the elective level, were amputation to be performed. In this case, that rating would be a 40 percent rating under DC 5165 for amputation at a level permitting prosthesis controlled by natural knee action.) The Board finds that a rating greater than 20 percent under DC 5260 is not warranted for any period on appeal. To the extent that testing results have shown flexion limited to less than 30 degrees, the VA examiners have found the reports inconsistent with the Veteran’s ability to flex his right knee during actual activities. These conclusions by the VA examiners are supported by the testing results of his treatment providers, who often have found flexion to as much as 100 degrees and exclusively or almost exclusively have found flexion greater than 30 degrees. As such, the preponderance of the evidence does not support a rating greater than 20 percent under DC 5260 for any period on appeal. As to the Veteran’s ratings under DC 5261 for limitation of extension, as with the limitation of flexion there are wildly varying recorded ranges of extension of record varying from full extension to extension limited to 20 degrees on testing. For the period prior to October 8, 2019, the Board finds the preponderance of the evidence is against assigning a compensable rating for limitation of extension. As noted above, in January 2019 the Veteran had noted flexion limited to 20 degrees. Testing results prior and subsequent to that incident, however, showed noncompensable limitation of extension to 5 degrees or full extension. As such, the Board finds the January 2019 finding an aberration and not reflective of the Veteran’s overall disability picture with respect to his limitation of extension for the period prior to October 8, 2019. The vast majority of other records prior to October 8, 2019, including findings of full extension or, at most, extension limited to 5 degrees. These findings are consistent with a noncompensable rating. For these reasons, the Board finds that a compensable rating is not warranted under DC 5261 for limitation of extension for any period prior to October 8, 2019. For the period from October 8, 2019, the Board concludes that a rating greater than 10 percent is not warranted. Testing results during that time period have shown extension limited to no more than 10 degrees. The Board recognizes that the September 2020 VA contract examination report estimated that the Veteran would have extension limited to 15 degrees with repetitive motion and during periods of flare-ups. The Board finds this conclusion inconsistent with the record, however, as the Veteran underwent repetitive motion testing at the time and had no further decrease in his range of motion. As such, the Board finds that the currently assigned 10 percent rating from October 8, 2019, under DC 5261 most closely approximates the severity of his disability with respect to his limited extension for the entirety of this time period. Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not “duplicative of or overlapping with the symptomatology” of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). As noted above, the Veteran already is in receipt of separate ratings under DC 5257, 5258, and 7804 and these DCs require no further consideration. The Board has considered the possibility of a higher or alternative rating under a different DC can be applied. The Board notes that other DCs relating to knee disorders include DC 5256 (ankylosis of the knee), DC 5259 (removal of semilunar cartilage), DC 5262 (impairment of the tibia and fibula), and DC 5263 (for genu recurvatum). As noted, the Veteran’s right knee disability is not manifested by impairment of the tibia or fibula or genu recurvatum. Thus, DCs 5262 and 5263 are not applicable. Ankylosis is “immobility and consolidation of a joint due to disease, injury, surgical procedure.” Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)). The Veteran is able to move his right knee with some limitation of motion, so it is clearly not ankylosed, and DC 5256 is not applicable. The Board has considered the applicability of DC 5259, as the Veteran has meniscal problems. That said, as the symptoms manifested by any removal, such as pain, swelling, and other problems, are contemplated in the current ratings under DC 5257, 5258, 5260, and 5261 the Board concludes that assigning separate ratings under DC 5259 would constitute impermissible pyramiding. DC 5258 specifically addresses cartilage damage and affords the Veteran a rating higher than that of DC 5259. The Board recognizes that the medical evidence shows some impairment of right knee function. For example, the Veteran does complain of swelling, pain, weakness, and locking of the knees, as well as intermittent instability. VA examinations, however, have shown ranges of flexion and extension of the knees that would not warrant higher ratings under DCs 5260 or 5261, even accounting for decreased motion on repetition (except as explained above). In general, evaluation of a service-connected disability involving a joint requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the Veteran undertaking the motion. See 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. See 38 C.F.R. § 4.45. Regarding symptoms such as abnormal gait and difficulty with extended walking and standing, the Veteran is also service-connected and compensated for disability of the lower back, left knee, right thigh muscle, and bilateral lower extremity radiculopathy. In this case, as discussed above, the separate ratings assigned under the criteria of DCs 5260, 5261, 5257, and 5258 contemplate the Veteran’s reported symptoms, including their effect on his functioning with repetitive motion. As noted, the VA examinations revealed no additional limitation of motion resulting from repetitive use that would meet the criteria for compensable ratings under either DCs 5260 or 5261. Instead, the ratings under DC 5010-5260 are assigned for the Veteran’s pain and limitation of function that limits motion, at most, to 30 degrees of flexion and 10 degrees of extension. As such, the Board finds that the ratings currently assigned for the Veteran’s right knee disabilities already contemplate the degree of functional loss demonstrated. As shown above, and as required by Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991), the Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the Veteran. In this case, the Board finds no provision upon which to assign higher ratings for any timeframe during the appellate period. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. J. Houbeck, 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.