Citation Nr: 21003238 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 10-04 928 DATE: January 21, 2021 ORDER A disability rating of 10 percent, but no higher, since March 31, 2008, for the entire period on appeal, for service-connected right knee degenerative arthritis is granted. A disability rating of 10 percent, but no higher, since March 31, 2008, for the entire period on appeal, for service-connected right knee instability is granted. A disability rating of 20 percent, but no higher, since March 31, 2008, for the entire period on appeal, for service-connected right knee locking and effusion is granted. FINDINGS OF FACT 1. The Veteran’s right knee arthritis is manifested by painful motion; it does not meet the criteria for a compensable rating for limitation of motion, since March 31, 2008 for the entire period on appeal. 2. The Veteran’s right knee symptomology is manifest by slight lateral instability since March 31, 2008 for the entire period on appeal. 3. The Veteran’s right knee symptomology is manifest by locking and effusion since March 31, 2008 for the entire period on appeal. CONCLUSIONS OF LAW 1. The criteria for a separate rating of 10 percent disabling, but no higher, for right knee degenerative arthritis since March 31, 2008, for the entire period on appeal, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5010. 2. The criteria for a separate rating of 10 percent disabling, but no higher, for right knee instability since March 31, 2008 for the entire period on appeal, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5257. 3. The criteria for a separate rating of 20 percent disabling, but no higher, for right knee locking and effusion since March 31, 2008 for the entire period on appeal, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5258. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 1964 to February 1966 and from December 1975 to November 1979, including combat service in the Republic of Vietnam and his decorations include the Combat Infantryman Badge. By way of background, the Veteran’s claim for an increased rating for his service-connected right knee was received by VA on March 31, 2008. A February 2009 rating decision continued the noncompensable rating for the Veteran’s right knee disability. The Veteran submitted a timely appeal in March 2009, and the right knee disability has been on appeal since. Subsequently, it was remanded by the Board for additional development. In December 2017 the Board decided that a compensable rating prior to March 20, 2009 and a rating in excess of 10 percent thereafter for the Veteran’s right knee arthritis was not warranted and in the same decision granted a 10 percent disability rating for the Veteran’s right knee instability, effective March 20, 2009, correcting the previously assigned effective date of September 13, 2012. The Veteran appealed that decision to the Court of Appeals for Veterans Claims (Court). In August 2018 the Court issued a Joint Motion for Partial Remand (JMR) wherein the Court directed the Board to consider the functional loss factors when rating disability on limitation of motion under DeLuca v. Brown, 8 Vet. App. 202 (1995) and to consider whether the Veteran was entitled to a separate rating under either DC 5258 or 5259 for his right knee symptomology. The Board remanded for a VA examination to develop the information necessary to comply with the Court’s Order. The remand directives have been complied with and the claim is now ready for appellate review. Stegall v. West, 11 Vet. App. 268 (1998). Finally, the Board observes that the period on appeal is from March 31, 2008, the date that the Veteran’s claim for an increased rating for his right knee was received by VA, and not March 20, 2009, the date of a VA examination. As such, the Board has recharacterized the period on appeal as shown above. 38 C.F.R. § 3.400. Increased Rating Disability evaluations are determined by the application of the VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual disorders in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. When rating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. Painful motion is considered limited motion at the point that pain actually sets in. See VAOPGCPREC 9-98. Thus, 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; DeLuca v. Brown, 8 Vet. App. 202 (1995). The United States Court of Appeals for Veterans Claims (Court) 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). 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. With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. 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. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59 Under DC 5010, the disability is to be rated under degenerative arthritis, DC 5003. DC 5003 provides 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. When, limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is generally for application. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. A rating for arthritis cannot be combined with a rating based on limitation of motion of the same joint. In the absence of limitation of motion, a 10 percent rating is applied for X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups; a 20 percent rating is applied for X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, DC 5003. The knee is rated under diagnostic codes 5256 to5263. Of relevance to this appeal, VA’s Office of General Counsel held that a claimant who has both arthritis and instability of the knee may receive two separate disability ratings under DCs 5003-5010 and DC 5257 (or under DCs 5258, 5259) without violating the prohibition of pyramiding of ratings. VAOPGCPREC 23-97. It was specified that, for a knee disorder already rated under DC 5257, a claimant would have additional disability justifying a separate rating if there is limitation of motion under DC 5260 or DC 5261. However, a separate rating can only be assigned where additional compensable symptomatology is shown that is not duplicative of that used to assign another rating. 38 C.F.R. § 4.14; VAOPGCPREC 09-04 (2004), 69 Fed. Reg. 59990 (2004); VAOPGCPREC 23-97 (1997), 62 Fed. Reg. 63604 (1997); VAOPGCPREC 9-98 (1998), 63 Fed. Reg. 56704 (1998); Lichtenfels v. Derwinski, 1 Vet. App. 484 (1991). Normal range of motion of the knee is to 0 degrees extension and to 140 degrees flexion. 38 C.F.R. § 4.71a, Plate II. DC 5256, which evaluates ankylosis of the knee, provides for a 30 percent rating for favorable angle in full extension, or in slight flexion between 0 degrees and 10 degrees. A 40 percent rating is assigned when there is ankylosis of the knee in flexion between 10 and 20 degrees. A 50 percent rating is assigned when there is ankylosis of the knee in flexion between 20 and 45 degrees. A 60 percent rating is assigned for extremely unfavorable ankylosis in flexion at the angle of 45 degrees or more. 38 C.F.R. § 4.71a, DC 5256. DC 5257 evaluates recurrent subluxation or lateral instability of a knee, and provides for a 10 percent disabling for a slight impairment; a 20 percent disabling for a moderate impairment; and a 30 percent disabling for a severe impairment. 38 C.F.R. § 4.71a, DC 5257 Under DC 5258, when semilunar cartilage is dislocated with frequent episodes of locking, pain and effusion into the joint, a 20 percent rating is assigned. 38 C.F.R. § 4.71a, DC 5258. Under DC 5259, when semilunar cartilage has been removed, but remains symptomatic, a 10 percent rating is assigned. 38 C.F.R. § 4.71a, DC 5259. Under DC 5260, which evaluates limitation of flexion, a 10 percent rating is assigned when flexion is limited to 45 degrees; a 20 percent rating is assigned when flexion is limited to 30 degrees; and a 30 percent rating is assigned when flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. Under DC 5261, which evaluates limitation of extension, a 10 percent rating is assigned when extension is limited to 10 degrees; a 20 percent rating is assigned when extension is limited to 15 degrees; a 30 percent rating is assigned when extension is limited to 20 degrees; a 40 percent rating is assigned when extension limited to 30 degrees; and a 50 percent rating is assigned when extension is limited to 45 degrees. 38 C.F.R. § 4.71a, DC 5261. DCs 5262 and 5263 provide ratings for impairment of tibia and fibula and genu recurvatum, respectively. 1. Entitlement to a disability rating of 10 percent since March 31, 2008, for the entire period on appeal, for service-connected right knee degenerative arthritis is granted, subject to the laws and regulations governing the payment of monetary benefits The Veteran seeks a compensable rating for the period on appeal prior to March 20, 2009 and a rating in excess of 10 percent thereafter and the Court ordered the Board to address any functional loss due to the Veteran’s painful motion. The Board finds that the Veteran’s right knee arthritis symptomology warrants a 10 percent disability rating for the entire period on appeal. Turning to the relevant, probative evidence of record, the Board notes that the Veteran has a diagnosis of severe osteoarthritis in his right knee, see March 2009 VA examination. The Veteran attended a VA Knee examination in November 2019. The Veteran reported flare-ups twice monthly, lasting for 1 to 2 days, described as moderate-severe. The examination revealed that right knee flexion was limited to 105 degrees, with pain, and extension was limited to 0 degrees, with pain. The Veteran was also able perform repetitive-use testing without additional loss of range of motion or loss of function due to his range of motion. The examiner checked yes when queried whether pain, weakness, fatigability or incoordination significantly limits functional ability with repeated use over time. The examiner wrote, “It can be assumed that Veteran has increased pain, weakness and lack of endurance after repetitive use over time due to decreased ROM and pain on exam. This is likely due [to] his degenerative joint disease.” The Board observes that the Veteran reported that painful flare ups in his right knee occur once a month (March 2009) or when he sits for extended periods of time (November 2019). He reported no flare-ups in the April 2015 examination. The evidence of record shows that at no time during the period on appeal did the Veteran’s right knee show limitation of motion, either flexion or extension, that met the rating criteria to award compensation. As noted above, under DC 5010, when limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is generally for application to compensate for painful motion. Here, the Veteran’s painful motion with loss of functional use, as described in the VA examination, is compensated under DC 5010, which also addresses the attendant loss of functional use due to painful repetitive motion. Accordingly, the Board finds that a 10 percent disability rating under DC 5010 for the entire period on appeal compensates him for his painful limited range of motion, flareups, and any functional loss. 38 C.F.R. §§ 4.40, 4.59, 4.71a, DC 5003, 5010; DeLuca, 80 Vet. App. at 206-207; Mitchell, 25 Vet. App. at 36-38. 2. Entitlement to a disability rating of 10 percent disabling since March 31, 2008, for the entire period on appeal, for service-connected right knee slight instability is granted, subject to the laws and regulations governing the payment of monetary benefits Of note, the words “slight,” “moderate,” and “severe” as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. 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. All the medical evidence must be evaluated to determine the appropriate rating that compensates the Veteran for his impairment in earning capacity, functional impairment, and functional loss. 38 C.F.R. §§ 4.2, 4.6. Turning to the probative evidence of record, the Board notes that although the Veteran’s right knee was not diagnosed with instability in the November 2019 VA examination nor in the April 2015 examination, slight medial-lateral instability was reported in the September 2012 examination, and in the March 2009 VA examination, the examiner reported occasional instability. In addition, the Veteran has consistently reported in treatment notes that his knee sometimes “gives out” or buckles. The Board finds that the Veteran is competent to describe his knee symptomology, see English v. Wilkie, 30 Vet. App. 347 (2018), and that his statements are credible. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Accordingly, the Board finds that the probative evidence of record shows that the Veteran’s right knee has slight lateral instability, due to the intermittent and infrequent nature of his right knee buckling or giving way. Thus, a 10 percent disability rating is warranted for the entire period on appeal. However, the Board finds that a 20 percent disability rating for moderate lateral instability is not for application, as the medical and lay evidence described above does not show frequent symptoms of giving way or buckling or the functional loss and impairment for a moderate rating. 38 C.F.R. § 4.71a, DC 5257, 4.2. 3. Entitlement to a disability rating of 20 percent, but no higher, since March 31, 2008, for the entire period on appeal, for service-connected right knee locking and effusion is granted, subject to the laws and regulations governing the payment of monetary benefits As noted above, the Court ordered that the Board address whether the Veteran’s right knee symptomology should be rated under DC 5258 or 5259. The Board finds that DC 5258, cartilage, semilunar, dislocated, with frequent episodes of “locking,” pain, and effusion in the joint is most advantageous to the Veteran and most closely approximates his symptoms. (Continued on the next page)   The medical evidence throughout the period on appeal documents the Veteran’s effusion (swelling) as well as locking and pain. See VA examinations in March 2009, September 2012, April 2015, and November 2019, as well as VA treatment notes. Thus, the Board finds that a 20 percent disability rating, the maximum allowed under this diagnostic code, is warranted for the entire period on appeal. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Nelson 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.