Citation Nr: 21005189 Decision Date: 01/29/21 Archive Date: 01/29/21 DOCKET NO. 10-44 603 DATE: January 29, 2021 ORDER Entitlement to a rating in excess of 10 percent for left knee degenerative joint disease (DJD), limitation of extension, is denied. Entitlement to a separate, 20 percent rating for dislocated cartilage, with frequent episodes of "locking," pain, and effusion into the joint, is granted. REMANDED Entitlement to service connection for erectile dysfunction claimed as secondary to medications for service-connected left knee, low back, and hypertension disabilities is remanded. FINDINGS OF FACT 1. The Veteran’s left knee has been manifested by pain with movement; limitation of extension beyond 10 degrees has not been evidenced. 2. The Veteran’s has a left knee meniscal condition, manifested by frequent episodes of “locking,” pain, and effusion into the joint. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 10 percent for left knee degenerative joint disease (DJD), limitation of extension, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5010-5261. 2. The criteria for entitlement to a separate 20 percent rating for dislocated cartilage, with frequent episodes of "locking," pain, and effusion into the joint have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5258. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Marine Corps from January 1981 to January 1985. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an October 2010 rating decision by the Regional Office (RO) of the United States Department of Veterans Affairs (VA). This matter was previously before the Board in February 2018, at which time it was remanded for additional development. Examinations were completed in September 2018 and May 2019. Subsequent development letters were sent to the Veteran to assist in identifying any outstanding treatment records. The claim is once again before the Board. Substantial compliance with the Board’s prior remand orders is demonstrated. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). Notably, this matter originally included a claim for service connection for a right knee disability, hypertension, and bilateral lower extremity radiculopathy. In a September 2019 rating decision, the agency of original jurisdiction (AOJ) granted service connection for meniscus tear, right knee, with patellar chondromalacia; hypertension; left lower extremity radiculopathy, femoral nerve; left lower extremity radiculopathy, sciatic nerve; right lower extremity radiculopathy, femoral nerve; and right lower extremity radiculopathy, sciatic nerve. This represents a full grant of benefits and therefore, these issues are no longer on appeal. Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). These duties have been satisfied in this case. Appropriate notice was provided in March 2010. The RO associated the Veteran’s service and VA and private outpatient treatment records with the claims file. All released or submitted private treatment records have been associated with the claims file. No other relevant records have been identified and are outstanding. Appropriate and necessary examinations were afforded the Veteran, and are adequate for evaluation, as they include needed findings to permit application of the rating schedule and identification of current disability. As such, VA has satisfied its duty to assist with the procurement of relevant records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Increased Rating Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 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 the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3 (2013). A claim will be 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, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. 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. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran is currently rated 10 percent disabled by degenerative joint disease, left knee, under 38 C.F.R. § 4.71a, Diagnostic Code 5010-5261, which pertains to arthritis and limitation of extension of the knee, respectively. 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 Veteran has alleged that his condition has worsened over time and argues that his assigned rating should reflect a greater degree of impairment. Diagnostic Code 5010 assigns evaluations for arthritis, due to trauma, substantiated by X-ray findings, and provides that the condition is rated as arthritis, degenerative. The rating criteria for degenerative arthritis provides that when the limitation of motion of a specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is applicable for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. A 20 percent evaluation is assigned for x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5010. Diagnostic Code 5261 provides that a 10 percent rating is assignable for extension of the leg limited to 10 degrees. A 20 percent rating is assignable for extension of the leg limited to 15 degrees. A 30 percent rating is assignable for extension of the leg limited to 20 degrees. A 40 percent rating is assignable for extension of the leg limited to 30 degrees. A 50 percent rating is assignable for extension of the leg limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Multiple diagnostic codes are potentially applicable to evaluation of the knees. Simultaneous compensation under several Codes is permissible so long as differing symptomatology is being compensated by each Code. For example, limitations of flexion (Code 5260) and extension (Code 5261) may both be rated, but a rating for arthritis (Code 5003) cannot be combined with either, as it refers to general limitations of motion and would include both flexion and extension. Similarly, instability (Code 5257) and meniscal disabilities (Codes 5258 and 5259) can be rated with limits of motion, and with each other, so long as differing symptoms and manifestations are being compensated. VAOGCPREC 9-2004; VAOPGCPREC 23-97; VAOPGCPREC 9-98. All of these potentially applicable Codes have been considered. In VA treatment records from January 2009, the Veteran reported that his knees get wobbly and give out. In October 2009 he reported that his left knee was “making a sound.” In January 2010, he further reported that his left knee had continued “popping and crunching.” In March 2010, the Veteran reported that his knee was locking up and giving way, causing him to have loss of balance. The Veteran reported having several falls and experiencing his knees giving out, “popping out and in.” He indicated that it feels like something is probing his left knee. The Veteran’s VA treatment records contain several notations of active range of motion (ROM) testing from 2010. In a March 2010 physical therapy consult, active range of motion was 25-41 degrees as measured in a supine position. In a June 2010 physical therapy consult, active range of motion was 30-33 degrees as measured in a supine position. It was noted that in sitting, the Veteran could flex to at least 50 degrees. In a July 2010 physical therapy consult, active range of motion was 32-42, with notation that in sitting, the Veteran could flex at least 50 degrees. In August 2010, the Veteran was afforded a VA joints examination. Upon examination, no deformity, giving way, instability, stiffness, weakness, incoordination, episodes of dislocation or subluxation, locking episodes, effusions, or flare-ups of joint disease were identified. However, pain, decreased speed of joint motion, and symptoms of inflammation such as tenderness were found. The Veteran reported standing limitations, stating that he was only able to stand for 15 to 30 minutes. He further reported functional limitations of walking, indicating that he was unable to walk more than a few yards. He reported constant use of a cane and brace. Upon physical examination, it was found that the weight-bearing joint was affected, but that the Veteran’s gait was normal. Tenderness was found behind the knee and the quadricep tendon was identified as “abnormal.” No mass was identified behind the knee. Crepitation, clicks or snaps, grinding, instability, patellar abnormality, and meniscus abnormality were not found. Objective evidence of pain with active motion was identified on the left side, and flexion measured from 0 to 130 degrees. Left knee extension was identified as normal. No objective evidence of pain was found following repetitive motion, and no additional limitations were identified following three repetitions of range of motion. The Veteran was afforded an additional VA knee examination in September 2018. It was noted that the Veteran’s condition has caused progressive pain over time. Current symptoms include pain with impact loading, and a need to rest after walking roughly two blocks. The Veteran reportedly takes oxycodone for pain. The Veteran reported experiencing flare-ups, which was described as, “has pain if up and about more than 30 minutes.” The Veteran further reported functional loss or functional impairment, which he indicated causes him to avoid stairs and only walk for less than 30 minutes. Upon physical examination, the Veteran displayed 110 degrees of flexion with painful motion. No limitation of left knee extension was identified. The range of motion itself was found to contribute to functional loss. The examiner explained that it was hard for the Veteran to get up from his chair and that he had a lot of kneecap pain. There was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue, which included moderate painful kneecap and lateral joint line due to arthritis. There was evidence of pain with weight bearing and objective evidence of crepitus. The Veteran was found able to perform repetitive use testing with at least three repetition without any additional loss of function or range of motion. The Veteran was not examined immediately after repetitive use over time. However, the examiner found that the examination was medically consistent with the Veteran’s statements describing functional loss with repetitive use over time. Specifically, pain was identified as significantly limiting functional ability with repeated use over a period of time. The examiner described this in terms of ROM, as 0 to 110 degrees on flexion and 110 to 0 degrees on extension. The examination was not conducted during a flare-up, but it was determined that the examination was medically consistent with the Veteran’s statements describing functional loss during a flare-up. Pain was found to significantly limit functional ability with flare-ups. It was described in terms of ROM as 0 to 110 degrees on flexion and 110 to 0 degrees on extension. The examiner found that there were additional factors contributing to disability, including less movement than normal due to ankylosis, adhesions, etc.; disturbance of locomotion; interference with sitting; interference with standing; and having to alternate sitting and standing due to pain. Muscle strength testing was normal and there was no muscle atrophy. No ankylosis was found. There was no identified history of recurrent subluxation or lateral instability, but a history of recurrent effusion was found. Specifically, the examiner noted that the Veterans knee was previously swollen and had been drained. Joint stability testing was performed, but no instability was identified. The examiner found that the Veteran did not have, and never had, recurrent patellar dislocation, “shin splints,” stress fractures, chronic exertional compartment syndrome, or any other tibial or fibular impairment. The examiner further found that the Veteran did not have a meniscus condition. Regarding assistive devices, the Veteran reported using a brace and cane regularly. There was objective evidence of pain when the left knee was used in non-weight bearing. Passive range of motion testing was identified as the same as active ROM. The examiner indicated that there was objective evidence of pain present on passive ROM, same as active ROM. The Veteran was again afforded a VA knee examination in May 2019. Here, the examination report referenced a meniscal tear, chondromalacia patella, and degenerative arthritis. The Veteran reported that his pain had worsened since onset and that his current symptoms included sharp pain with popping. Treatment included physical therapy and Voltaren gel. The Veteran reported flare-ups of the knee that include sharp pain with popping. He also reported functional loss or impairment by way of difficulty walking and standing. Upon physical examination, the Veteran displayed 0 to 100 degrees of left knee flexion and 100 to 0 degrees of left knee extension. No pain was noted on examination. The abnormal ROM itself was found to contribute to functional loss, causing the Veteran difficulty bending his knees. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. No evidence of pain with weight bearing was identified, but objective evidence of crepitus was noted. The Veteran was able to perform repetitive use testing with at least three repetitions and no additional loss of function or range of motion was found. The Veteran was not examined immediately after repetitive use over time, but the examination was found to be medically consistent with the Veteran’s statements describing functional loss with repetitive use over time. Pain was found to significantly limit functional ability with repeated use over a period of time. The examiner estimated the loss in terms of ROM as 0 to 100 on flexion and 100 to 0 on extension. The examination was not conducted during a flare-up, but it was found to be medically consistent with the Veteran’s statements describing functional loss during flare-ups. Pain does not significantly limit functional ability with flare-ups. The examiner estimated loss in terms of ROM as 0 to 100 on flexion and 100 to 0 on extension. Muscle strength testing was normal on flexion and 4/5 on extension. This muscle strength reduction was attributed entirely to the claimed conditions in the diagnosis section. The Veteran did not have any muscle atrophy or ankylosis. No history of recurrent subluxation, lateral instability, or recurrent effusion was found. Joint stability testing was performed, but no instability was identified. There was no recurrent patellar dislocation, “shin splints,” stress fractures, chronic exertional compartment syndrome or any other tibial or fibular impairment. The Veteran was found to have a meniscus (semilunar cartilage) condition resulting in frequent episodes of joint “locking,” frequent episodes of joint pain, and daily episodes of pain and sensation of knees locking. Regarding use of assistive devices, the Veteran reported using a brace constantly. Diagnostic testing confirmed that the Veteran has degenerative or traumatic arthritis. The examiner described the functional impact of the condition as difficulty with prolonged standing and walking, squatting and bending. There is no objective evidence of pain when the knee is used on non-weight bearing. Passive ROM testing was found to be the same as active ROM. Objective evidence of pain was found present on passive ROM but was the same as on active. As noted above, there are numerous Diagnostic Codes which are potentially applicable to evaluation of a knee disability. Code 5256 is utilized for evaluation of ankylosis or the functional equivalent. Although the September 2018 examiner noted that the Veteran’s symptoms include less movement than normal due to ankylosis, adhesions, etc., no ankylosis was noted on the examinations. Accordingly, this Code is not applicable here. Code 5257 evaluates disabilities of the knee based on the degree of subluxation and instability of the joint. Although the Veteran reported several incidents of the left knee being wobbly, giving out, and loss of balance in 2009 and early 2010, his subsequent August 2010, September 2018, and May 2019 examinations do not reflect any complaints or symptoms of instability. This Code is therefore inapplicable. Code 5262 pertains to impairment of the tibia and fibula. While evaluations under Code 5262 may be based in part upon knee disability, the underlying impairment must be related to damage to the bones of the lower leg. As no tibia or fibula impairment have been shown here, this Code is not for application. Limitation of extension is rated under Code 5261. As noted above, a 10 percent evaluation is for assignment when extension is limited to 10 degrees. Fifteen degrees limitation merits a 20 percent evaluation, and 20 degrees merits a 30 percent evaluation. Limitation to 30 degrees is evaluated as 40 percent disabling, and limitation to 45 degrees warrants a 50 percent evaluation. 38 C.F.R. § 4.71a, Code 5261. The Veteran is currently assigned a 10 percent evaluation based on a prior February 2008 VA examination in which the Veteran displayed extension limited to 10 degrees. Although the Veteran does continue to evidence pain with movement, no impairment of extension was observed on the August 2010, September 2018, or May 2019 examinations. Accordingly, the demonstrated and subjectively reported functional limitations simply do not approximate the criteria for the next higher 20 percent rating. DeLuca v. Brown, 8 Vet. App. 202 (1995). Code 5260 assigns evaluations based on limitation of flexion. Limitation to 60 degrees merits a noncompensable, or 0 percent, evaluation. A 10 percent evaluation is assigned for limitation to 45 degrees. Limitation to 30 degrees flexion warrants a 20 percent evaluation, and a 30 percent evaluation is assigned for limitation to 15 degrees of flexion. 38 C.F.R. § 4.71a, Code 5260. At the August 2010 examination, range of motion was measured to 130 degrees flexion with no changes on repeated motion. At the September 2018 examination, range of motion was measured to 110 degrees flexion with pain, but no changes on repeated motion. At the May 2019 examination, range of motion was measured to 100 degrees of flexion. Accordingly, compensable limitation of motion has not been reached. Notably, as mentioned above, there are three active range of motion measurements that were taken in March 2010, June 2010, and July 2010 respectively, which indicate that the Veteran had range of motion limitations significantly more severe than that which was reflected on the examinations. However, the August 2010 examination, completed less than two weeks after the July 2010 measurements were completed, show 130 degrees on flexion. The most limited flexion shown upon examination was that recorded in the prior February 2008 examination, in which the Veteran evidenced 85 degrees of flexion, which remains noncompensable. Accordingly, chronic impairment of flexion has not been identified. The overall disability picture, therefore, does not support assignment of compensable evaluations under Code 5260 at this time. Disability in that plane of motion is not shown. Additionally, Codes 5258 and 5259 evaluate impairment of the semilunar cartilage, or menisci. Under 5258, a maximum 20 percent rating is warranted for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. 38 C.F.R. § 4.71a, Diagnostic Code 5258. Symptoms due to the removal of the semilunar cartilage of either knee warrant a 10 percent rating, which is the maximum rating under the diagnostic code. 38 C.F.R. § 4.71a, Diagnostic Code 5259. In March 2010, the Veteran reported that his knee was locking up and giving way, causing him to have loss of balance. In the September 2018 examination, a history of recurrent effusion was found. It was specifically noted that the Veterans knee was previously swollen and had been drained. In the May 2019 examination, the Veteran was found to have a meniscus (semilunar cartilage) condition resulting in frequent episodes of joint “locking,” frequent episodes of joint pain, and daily episodes of pain and sensation of knees locking. Although it is unclear whether the Veteran’s semilunar cartilage is dislocated, his diagnoses include meniscal tear and chondromalacia. Accordingly, a separate evaluation under Code 5258 is warranted by analogy. It does not appear from the record that the Veteran has had surgical removal of the semilunar cartilage. As such, evaluation under Code 5259 is not appropriate. Therefore, the Board finds that a rating in excess of 10 percent under Code 5261 for the Veteran’s limitation of extension is not warranted; however, a separate rating of 20 percent under Code 5258 is warranted. REASONS FOR REMAND In February 2018, the Board remanded the issue of service connection for erectile dysfunction, claimed as secondary to medications for service-connected left knee and low back disabilities, for additional development. The examiner was instructed to identify and note all medications that the Veteran takes or has been prescribed for his low back and left knee disabilities. Based on a thorough review of the records, the examiner was asked to opine whether the Veteran’s erectile dysfunction is at least as likely as not caused or aggravated by medications prescribed for his low back and left knee disabilities. A reproductive systems VA examination was obtained in May 2019 and the matter is again before the Board. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. The Board finds that the Agency of Original Jurisdiction (AOJ) did not substantially comply with the February 2018 remand directives. As such, another remand is warranted. In the opinion, the examiner found that the Veteran’s erectile dysfunction condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. By way of rationale, the examiner merely stated that there was no supporting evidence in the claims file to document the condition in service. The examiner failed to identify any medications used by the Veteran for his other service-connected conditions or provide any reasoning for her determination. This constitutes an inadequate rationale, therefore requiring an additional remand. Furthermore, as noted previously, the Veteran was awarded service connection for hypertension in September 2019. In correspondence provided by the Veteran in October 2019, he raised the contention that medical literature states hypertension medication will cause erectile dysfunction. Accordingly, this theory of entitlement should also be considered upon remand. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA male reproductive organ examination. The claims file must be reviewed in conjunction with the examination. The examiner must state whether it is at least as likely as not (50 percent probability or greater) that any currently diagnosed erectile dysfunction is caused or aggravated by service or a service-connected disability, to include as due to medications for such. Specifically, medications used to treat the Veteran’s service-connected knee conditions, back condition, and hypertension should be considered. A full and complete rationale for the opinion is required. 2. Then, readjudicate the claim; if the benefit sought remains denied, issue an appropriate supplemental statement of the case and, after the necessary time for response, return the matter to the Board for further consideration, if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.P. Faris 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.