Citation Nr: 21003501 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 16-41 590 DATE: January 21, 2021 ORDER An increased evaluation in excess of 10 percent for service-connected degenerative joint disease of the left knee is denied. An increased evaluation in excess of 10 percent for service-connected degenerative joint disease of the right knee is denied. FINDINGS OF FACT 1. The Veteran’s left knee degenerative joint disease has not limited the Veteran’s left knee flexion to 30 degrees or less and has not caused limitation of extension or instability or subluxation. 2. The Veteran’s right knee degenerative joint disease has not limited the Veteran’s right knee flexion to 30 degrees or less and has not caused limitation of extension or instability or subluxation. CONCLUSIONS OF LAW 1. The criteria for entitlement to an evaluation in excess of 10 percent for left knee degenerative joint disease have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.40, 4.45, 4.71a, Diagnostic Code 5260. 2. The criteria for entitlement to an evaluation in excess of 10 percent for right knee degenerative joint disease have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.40, 4.45, 4.71a, Diagnostic Code 5260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had multiple periods of active military service in the United States Army from February 1991 to June 1991, January 2003 to January 2004, January 2006 to March 2007, November 2007 to February 2009, August 2010 to September 2011, April 2013 to May 2014, and from November 2015 to November 2016. In August 2018, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A copy of the transcript has been associated with the electronic claims file. Increased Rating 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 diagnostic codes 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. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. An increased evaluation over 10 percent for service-connected degenerative joint disease of the bilateral knees, to include separate ratings for each knee The Veteran contends that a higher initial rating is warranted for his service-connected bilateral knee disability, to include separate ratings for each knee. The Veteran currently has a 10 percent rating for left knee degenerative joint disease under Diagnostic Code 5010-5260 as well as a separate 10 percent rating for right knee degenerative joint disease under Diagnostic Code 5010-5261. Knee disabilities are rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5256 to 5263. Included within 38 C.F.R. § 4.71a are multiple diagnostic codes that evaluate impairment resulting from service-connected knee disorders, including Diagnostic Code 5256 (ankylosis), Diagnostic Code 5257 (other impairment, including recurrent subluxation or lateral instability), Diagnostic Code 5258 (dislocated semilunar cartilage), Diagnostic Code 5259 (symptomatic removal of semilunar cartilage), Diagnostic Code 5260 (limitation of flexion), Diagnostic Code 5261 (limitation of extension), Diagnostic Code 5262 (impairment of the tibia and fibula), and Diagnostic Code 5263 (genu recurvatum). Under Diagnostic Code 5260, a 10 percent rating is warranted where flexion is limited to 45 degrees. To receive a rating of 20 percent, limitation of flexion of the leg must be actually or functionally limited to 30 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. A 30 percent rating is warranted when flexion is limited to 15 degrees. Under Diagnostic Code 5261, a 10 percent rating is warranted when extension is limited to 10 degrees. A 20 percent rating is warranted when extension is limited to 15 degrees. A 30 percent rating is warranted when extension is limited to 20 degrees and a 40 percent rating is warranted when extension is limited to 30 degrees. A 50 percent rating is warranted when extension is limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. If the knee condition involves arthritis, the knee disability may be rated under provisions for evaluating arthritis. Arthritis due to trauma is rated as degenerative arthritis according to Diagnostic Code 5003. Normal Range of Motion (ROM) of the knee is zero degrees extension to 140 degrees flexion. See 38 C.F.R. § 4.71a, Plate II. VA General Counsel has provided that separate ratings under 38 C.F.R. § 4.71a, DC 5260 (limitation of flexion of the leg) and under DC 5261 (limitation of extension of the leg), may be assigned for disability of the same joint. VAOPGCPREC 9-2004 (September 2004). VA General Counsel provided guidance in VAOPGCPREC 23-97 (July 1997) that a Veteran who has arthritis and instability of the knee may be rated separately under DCs 5003 and 5257, provided that a separate rating must be based upon additional disability. After review of the medical and lay evidence of record in March 2019, the Board of Veterans Appeals (the Board) decided that a remand for further development was necessary. In June 2016 the Veteran was scheduled for a VA examination to determine the severity of the service-connected bilateral knees. The record shows the examination was cancelled by the Veteran. During the August 2018 Board hearing, the Veteran reported that he had to cancel the examination because he had Reserve duty at the time. The Veteran last underwent a VA examination for the service-connected bilateral knee disabilities in October 2014. While the passage of time alone does not warrant a new examination, given the Veteran has shown good cause for cancelling the 2016 VA examination, and the extent of treatment the Veteran has received for the bilateral knees, the Board found that a current examination is necessary. Palczewski v. Nicholson, 21 Vet. App. 174 (2007); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran was given another VA examination in December 2019. During that exam, the Veteran denied any specific trauma or injury to the right or left knee during active duty service. He recalled gradual onset of bilateral knee pain for which he was evaluated during active duty service. He stated he had x-rays of both knees showing arthritis. The Veteran stated he has been managed with Viscosupplementation injections to bilateral knees with some improvement. Currently the Veteran works full-time as a physical education and health teacher for a county school system. He denies any functional impact that his bilateral knee arthritis has on his ability to perform his job duties but does state at the end of the day his knees are sore and he has to go home and rest. At the December 2019 examination, the Veteran reported that his right knee has no flare-ups but there is functional loss due to pain, intermittent swelling, impaired standing and walking. The right knee ROM: Flexion is 0 to 125, and extension 125 to 0. Pain was noted on extension but does not result in functional loss. There was objective evidence of crepitus. No evidence of pain on weight bearing. There was objective evidence of mild localized tenderness or pain on palpation of the joint or associated soft tissue. The Veteran could perform repetitive use testing with at least three repetitions without additional functional loss of range of motion after three repetitions. The Veteran was examined immediately after repetitive use over time. Pain, weakness, fatigability nor incoordination significantly limited functional ability. The 2019 VA right knee examination showed no ankylosis, no history of recurrent subluxation, no history of lateral instability, no history of recurrent effusion, and no joint instability. At the same December 2019 VA examination, the left knee results were the same as the right knee, except pain was noted on extension as well as flexion, but pain did not result in functional loss. The Veteran receives treatment for his knees and other conditions at his local VA Medical Center (VAMC). September 2020 VAMC medical notes show that both Veteran’s knees were injected with xylocaine 1% 1 mg, viscosupplement knee injections for pain, in August 2020. The Veteran reported having pain in both knees and described the intensity of the chronic pain as 2, on a scale from 0 to 10. While the Veteran was on active duty, July 2020 Bolling Service treatment medical records from December 2015 show the Veteran previously received Gel one injections to each knee in April 2014. The Veteran found them helpful and told medical staff he would like another round of injections, which he was given. The Veteran reported excellent results with gel-one injections in 2014, with pain relief for nine months and no significant adverse effects. The Bolling Service treatment records show the Veteran had ROM 0 – 130 for both knees. The October 2014 VA examination confirmed a 2009 diagnosis of bilateral knee osteoarthritis – with no subluxation, and no instability for either knee. The Veteran used no assistive device as a normal mode of locomotion. The Veteran reported pain when walking up stairs. The 2014 examiner found no flare-ups and no objective evidence of painful motion for either knee. Extension and flexion were 0 to 140 degrees for both knees. There was no limitation on ROM, no tenderness or pain on palpation for joint line or soft tissue of either knee. The examiner found no additional limitation in ROM of the knees and lower leg following repetitive-use testing. Thus, based on the forgoing, even considering use over time and flare-ups, the Veteran has maintained at least 125 degrees of flexion in his left knee throughout the period on appeal. As such, the Board finds that a rating in excess of 10 percent is not warranted under Diagnostic Code 5260. The Board further notes that the Veteran’s left knee extension has been tested to be normal throughout the period on appeal; therefore, a rating is not warranted under Diagnostic Code 5261. The Board has also considered whether a rating is warranted under Diagnostic Code 5257 for instability and subluxation but finds that it is not. Nowhere in the record has the Veteran reported any incident of his knee giving way. The Board is unable to locate any medical records or statements by the Veteran with respect to knee instability in which he describes any experiences of knee instability. Joint stability testing conducted during VA examinations in October 2014 and December 2019 were both normal. The Board thus finds that a preponderance of the evidence is against a separate rating under Diagnostic Code 5257. This same analysis above applies to the Veteran’s right knee disability, since both knees have had the same ROM and other results in VA examinations and treatment records throughout the appeal period except that the right knee has pain on extension as well as flexion. A 10 percent evaluation for the Veteran’s left and right knee degenerative joint disease based on painful motion of the knees under 38 C.F.R. § 4.59 allows consideration of functional loss due to painful motion to be rated to at least the minimum compensable rating for a joint. Since there is X-ray evidence of osteoarthritis of both his left and right knees which demonstrate painful motion, 38 C.F.R. § 4.59 is applicable, and the minimum compensable evaluation of 10 percent is assigned separately to both the Veteran’s left and right knees. The Board finds the benefit of the doubt rule is inapplicable, and an increased rating over 10 percent for the Veteran’s left and right knee disabilities is unwarranted. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Black, 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.