Citation Nr: 21061329 Decision Date: 10/01/21 Archive Date: 10/01/21 DOCKET NO. 10-42 664 DATE: October 1, 2021 ORDER A rating higher than 10 percent for degenerative joint disease of the left knee with limited flexion is denied. FINDING OF FACT The Veteran's flexion of the left knee has not been limited to 30 degrees or less. CONCLUSION OF LAW The criteria for a rating higher than 10 percent for degenerative joint disease with limited flexion of the left knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.71a, Diagnostic Codes 5003, 5260. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1991 to January 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in May 2012. A transcript of the hearing is of record. The Board remanded this matter for further development in April 2013 and October 2016. In a June 2017 decision, the Board denied a rating higher than 10 percent for instability of the left knee under Diagnostic Code (DC) 5257, and granted a separate rating of 10 percent, but not higher, for limitation of flexion of the left knee under DC 5260. See 38 C.F.R. § 4.71a. In an April 2018 Order, the United States Court of Appeals for Veterans Claims (Court) granted a joint motion for partial remand (JMPR) and vacated that part of the Board's decision denying a rating higher than 10 percent based on limitation of flexion. It remanded the issue for further action consistent with the terms of the joint motion. The Board then remanded the matter for further development in September 2018, November 2019, and August 2020. Increased Rating VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 3.321; see generally, 38 C.F.R. § Part IV. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. The percentage ratings in the Schedule for Rating Disabilities represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected disabilities in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Generally, the degrees of disability 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 C.F.R. § 4.1. Diagnostic codes in the rating schedule identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. All reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Because the level of disability may have varied over the course of the claim, the rating may be "staged" higher or lower for segments of time during the period under review in accordance with such variations. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Left Knee Degenerative Joint Disease The Veteran's left knee degenerative joint disease has been assigned a 10 percent rating based on limitation of flexion under DC 5260. A separate rating of 10 percent under DC 5257 based on instability has also been assigned the Veteran's left knee disability. Under the terms of the JMPR, the only issue before the Board at this time is whether the criteria for a higher rating based on limited range of motion have been met. For the following reasons, the Board finds that the criteria for a higher rating have not been met. A. Rating Criteria The Veteran's left knee disability is rated under DC 5003-5260. Diagnostic Code 5003 pertains to arthritis, and DC 5260 pertains to limitation of flexion. Under 38 C.F.R. § 4.71a, DC 5003, 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. See id. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, an evaluation of 10 percent is applied for each major joint or group of minor joints affected by limitation of motion. Id. In the absence of limitation of motion, a 20 percent rating is assigned for arthritis when there is X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. If there are no incapacitating exacerbations, a 10 percent rating is assigned for such involvement. Id. Ratings based on X-ray findings of arthritis will not be combined with ratings based on limitation of motion. Id., Note (1). Under DC 5260, a 0 percent rating is assigned for flexion of the leg limited to 60 degrees; a 10 percent rating is assigned for flexion limited to 45 degrees; a 20 percent rating is assigned for flexion limited to 30 degrees; and a 30 percent rating is assigned for flexion limited to 15 degrees. 38 C.F.R. § 4.71a. Under DC 5261, a 0 percent rating is assigned for extension of the leg limited to 5 degrees; a 10 percent rating is assigned for extension limited to 10 degrees; a 20 percent rating is assigned for extension limited to 15 degrees; a 30 percent rating is assigned for extension limited to 20 degrees; a 40 percent rating is assigned for extension limited to 30 degrees; and a 50 percent rating is assigned for extension limited to 45 degrees. Id. Normal range of motion of the knee is defined as flexion to 140 degrees and extension to 0 degrees. 38 C.F.R. § 4.71a, Plate II. Separate ratings may be assigned under DC's 5260 and 5261 for limitation of flexion and limitation of extension of the same joint. VAOPGCPREC 9-2004 (Sept. 17, 2004). In evaluating disabilities of the musculoskeletal system, consideration must be given to functional loss, including due to weakness and pain, affecting the normal working movements of the body in terms of excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40. In this regard, pain "must actually affect some aspect of 'the normal working movements of the body' [under] 38 C.F.R. § 4.40 in order to constitute functional loss" warranting a higher rating. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). With respect to disabilities of the joints, it must be considered whether there is less movement or more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement, as well as swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45. Accordingly, under sections 4.40 and 4.45, it must be determined whether a higher rating may be assigned based on functional loss of the affected joint on repeated use as a result of the above factors, including during flare-ups of symptoms, beyond any limitation reflected on one-time measurements of range of motion. DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). B. Analysis The January 2011 VA examination report reflects that the Veteran walked from the waiting room to the examining room with good gait, good posture, no pelvic tilt, and a very minimal limp. He transferred from the chair to the examining table without any trouble. He was able to remove his trousers and shoes without difficulty. On inspection and palpation of the left knee, there was no fluid or tenderness. On range-of-motion testing, the Veteran had full extension of the knee on four repetitions, without pain. Flexion was from 0 to 140 degrees on four repetitions. There was no pain, weakness, fatigue, or lack of endurance. There was no increased pain on repetitive movements. The Veteran reported discomfort to the anterior portion of the patella throughout the examination. The knee appeared stable. There was no history of flare-ups. The examiner concluded that the Veteran had left knee discomfort, but a normal examination and no functional impairment. A February 2011 VA treatment record reflects that reported worsening chronic knee pain, which he described as aching and characterized as moderate to severe. It was not helped by Ibuprofen. A February 2011 VA x-ray study of the left knee showed no joint effusion. The bony and articular structures were normal. An April 2011 VA treatment record reflects that the Veteran reported "popping" and a feeling giving way of the left knee. In his occupation as a teacher, he sat and stood as necessary for his job. He took Ibuprofen one or two times daily as needed ("PRN"). On examination, the Veteran's gait was normal. His knee did not have swelling or fluid. His knee was stable. Range of motion was from 0 degrees extension to 145 degrees flexion. An April 2011 VA magnetic resonance imaging study (MRI) was of the left knee was "unremarkable." A May 2011 VA treatment record reflects that the Veteran was seen in the orthopedic surgery clinic for bilateral knee pain. The pain was described as achy and dull. He occasionally experienced a pinch and "clicking/popping" with squatting. He had occasional locking. He also endorsed stiffness. There was no swelling, erythema, or heat. He took Ibuprofen, which provided some relief. He had used knee sleeves, but found them to be irritating. The assessment was patellar chondromalacia. A November 2011 VA treatment record reflects that the Veteran reported chronic bilateral knee pain. On examination, range of motion of the left knee was from 0 degrees extension to 120 degrees flexion. The treating physician stated that the Veteran would benefit from physical therapy, observing that he could "barely actively flex his knees." A May 2013 VA treatment record reflects that the Veteran reported wearing a knee brace with some success. He continued to have pain when walking up or down steps or kneeling. He was given bilateral patella open neoprene sleeves for his knees, and advised to take Ibuprofen for pain. The May 2013 VA examination report reflects that the Veteran related he was a teacher, and walked around the classroom daily. The pain went up to 7/8 on a scale from 0 to 10. He stated he had missed about five days of work over the past year due to his knee pain. On range-of-motion testing, including with repetitive use testing, flexion of the left knee was to 140 degrees, and extension to 0 degrees. The examiner stated it would not be possible to estimate additional loss of range of motion during a flare-up or with repeated use over time. The report notes that the Veteran regularly used braces on both knees, which he found beneficial. He also used orthotics in both shoes for knee relief. An x-ray study of the left knee showed no acute fracture, no significant joint space narrowing, no joint effusion, and small patellofemoral osteophytes. The impression was small patellofemoral osteophytes and a lateral patellar tilt. The examiner found that this x-ray showed evidence of degenerative or traumatic arthritis. Regarding functional impact, the examiner noted the Veteran's statement that it limits his ability to walk around the classroom. A July 2016 VA treatment record reflects that the Veteran was seen for an annual visit. He stated that his back and knees were unchanged. He took Ibuprofen for his knee pain. He was "managing ok" with swimming, stretching, and yoga. The November 2016 VA examination report reflects that the Veteran took Motrin for his knee pain. He stated that his left knee will give out. He wore a brace on his left knee as needed. His knee would also lock and he needed to manually straighten it out. He reported flare-ups with physical activities. He did not report having any functional loss or functional impairment with repeated use over time. On examination, flexion of the left knee was to 120 degrees, and extension to 0 degrees, with pain noted on flexion. There was no additional loss in range of motion on repetitive use testing. The examination was not being conducted during a flare-up. The examiner found it would be impossible to estimate additional loss of range of motion with repeated use over time or during flare-ups. There was no evidence of pain with weightbearing. There was evidence of localized tenderness or pain on palpation under and around the patella. On muscle strength testing, the left knee had normal (5/5) strength in flexion and extension. A November 2016 x-ray study showed mild degenerative changes of the patellofemoral joint. Regarding functional impact, the examiner wrote that the Veteran has pain with prolonged standing and walking, and that stairs "are a problem" for him. The June 2019 VA examination report reflects that the Veteran related to the examiner that his left knee is a dull "annoyance" that consistently comes and goes. He had never had any physical therapy, injections, or other treatment. He did stretches at home. He mostly used heat, and occasionally ice. He took Ibuprofen every few days, which was mostly for his back but also helped with his knees. He worked as a teacher, which involved walking a bit, but he mainly sat. He took the elevator at work because the stairs made his knee pop and be uncomfortable. He reported flare-ups occurring once per month, which lasted twelve to twenty four hours. During flare-ups, the pain was a 10 out of 10 in severity, and described as a sharp/dull constant pain. In terms of precipitating factors, the flare-ups were occasionally weather related. Alleviating factors were stress relief, Ibuprofen, elevating his leg, and muscle relaxation. Regarding functional impairment during flare-ups, the Veteran stated that he could not sit, stand, or walk greater than five minutes. With regard to functional loss with repeated use over time, the Veteran stated that walking or standing was limited to less than ten minutes. The examiner also wrote "going up and [down] stairs and ladders, kneeling, crouching, squatting." The Board assumes from the context of this discussion that the examiner meant to say that the Veteran had difficulty with these functions. On range-of-motion testing, including repetitive-use testing, flexion of the left knee was to 90 degrees, and extension to 0 degrees. Pain was noted on flexion. Passive range of motion, and in weightbearing and non-weightbearing were the same as active range of motion. See Correia v. McDonald, 28 Vet. App. 158, 168-70 (2016). There was no evidence of pain with weightbearing. The examiner estimated that with repeated use over time, flexion of the left knee would be further limited to 70 degrees, and extension would continue to be to 0 degrees. The examiner indicated that the examination was not being performed during a flare-up, and that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with flare-ups. Regarding functional impairment, the examiner stated that the left knee disability had an impact on standing and walking for long periods and on extensive or frequent use of stairs. An October 2020 VA treatment record reflects that the Veteran was seen for an annual checkup. At this visit, a review was conducted of a number of his conditions, including knee pain. The Veteran stated that he took Ibuprofen, and was "managing ok" with walking, stretching, and yoga. The December 2020 VA examination report reflects that the Veteran's knee condition remained the same. He had throbbing intermittent pain, popping, swelling, and stiffness. He wore bilateral knee braces. He used heat daily, ice occasionally, and Ibuprofen daily as needed ("PRN"). The Veteran had flare-ups two to three times per week, which lasted two hours at a time. There was increased pain and decreased range of motion during flare-ups. The severity of the pain was a 7 to 10 on a scare of 0 to 10. The Veteran described functional impairment with regard to walking, using stairs, running, kneeling, crouching, and squatting. On initial range-of-motion testing, flexion of the left knee was to 135 degrees, and extension to 0 degrees. Pain was exhibited on flexion. On repetitive use testing, flexion remained to 135 degrees, but extension was limited to 5 degrees. The examiner indicated that the examination was not being performed during a flare-up or with repeated use over a period of time. The examiner found that pain and weakness significantly limit functional ability during flare-ups, and estimated that with repeated use over a period of time or during flare-ups, flexion of the left knee would be to 135 degrees, and extension to 5 degrees. On Correia testing, there was objective evidence of pain on passive range of motion testing, and when the joint was used in non-weightbearing. Regarding the functional impact of the Veteran's left knee disability, the examiner stated, "[W]alking distances, bending due to [degenerative joint disease], knee strain and left chondromalacia patella [sic]" In context, the Board assumes the examiner meant that the Veteran had difficulties or limitations with regard to walking distances and bending. A VA medical opinion was obtained in July 2021 in which the examiner was asked to provide a retrospective estimate of additional range of motion loss with repeated use over time or during flare-ups at the time of the May 2013 and June 2016 VA examination reports. The examiner opined that range of motion of the left knee during flare-ups or with repeated use over time would be flexion to 130 degrees and extension to 0 degrees. Based on the evidence reviewed above, the Board finds that the criteria for a rating higher than 10 percent based on degenerative joint disease with limitation of motion have not been met. To assign a rating higher than 10 percent under DC 5260 based on limitation of flexion, the evidence must show flexion limited to 30 degrees or less. To assign a separate compensable rating under DC 5261 based on limitation of extension, the evidence must show extension limited to 10 degrees or more. Here, six examinations conducted over a period of nearly ten years consistently show that the Veteran's flexion of the left knee well exceeded 30 degrees, and extension was to 0 degrees, including with repetitive use testing and on Correia testing. The June 2019 VA examiner estimated that with repeated use over time, the Veteran's flexion of the left knee would be further limited to 70 degrees, and he would continue to have full extension (extension to 0 degrees). The July 2021 VA medical opinion estimates that at the time of the May 2013 and June 2016 VA examinations, the Veteran's flexion of the left knee would be limited to 130 degrees, and extension would continue to be to 0 degrees. The December 2020 VA examiner estimated that during flare-ups or with repeated use over time, the Veteran's flexion of the left knee would be to 135 degrees, and extension to 5 degrees. At no point has there been any indication that the Veteran's left knee flexion may be limited to 30 degrees or less, or extension limited to 10 degrees or more. The Board is aware that the June 2019 VA examiner provided an estimate regarding range of motion with repeated use over time, but inexplicably indicated that the Veteran did not have additional functional loss of the left knee during flare-ups, when he clearly reported otherwise. Further, the December 2020 VA examination report does not contain information regarding factors that precipitate and alleviate flare-ups, and the examiner provided estimates of additional range-of-motion loss during flare-ups or with repeated use over time that are the same as the range-of-motion measurements recorded on the day of the examination; however, the examination was not being conducted during either of those scenarios, according to the examiner. As a matter of logic, if the Veteran had additional functional loss of the knee during flare-ups or with repeated use over time, then his range of motion during a flare-up or with repeated use over time could not be the same as what was recorded on the day of examination. In addition, the December 2020 VA examiner did not provide specific range-of-motion measurements for passive range of motion, and in weightbearing and non-weightbearing, as required under Correia. Nevertheless, these deficiencies are not prejudicial as they do not alter the fact that the evidence consistently and overwhelming shows that the Veteran's left knee flexion has not been limited to 30 degrees or less, as shown on numerous range-of-motion tests, including repeat testing, over the course of about ten years. The November 2011 VA treatment record notes that the Veteran could "barely" actively flex his knees, yet still recorded flexion to 120 degrees. At worst, the Veteran's flexion was estimated to be further reduced to 70 degrees with repeated use over time, as stated in the June 2019 VA examination report. While there may be a distinction between flare-ups and increased symptoms such as pain and weakness with repeated use over time, presumably the additional limitation on repeated use over time due to increased pain and weakness caused by that repeated use is sufficiently similar to a flare-up that the examiner's estimate for the former would be the same or very close to an estimate of loss of range of motion for the latter. As the June 2019 VA examination report shows flexion to 90 degrees on examination, while the December 2020 VA examination report shows flexion to 135 degrees, it is reasonable to conclude that any estimate of range of flexion during a flare-up or with repeated use over time when the December 2020 examination was conducted would not be less than 70 degrees. Significantly, the Veteran's flare-ups are highly intermittent and short-lived. The December 2020 VA examination report reflects that he had flare-ups two to three times per week, which lasted two hours at a time. The June 2019 VA examination report reflects that the Veteran's flare-ups occurred once per month, and lasted twelve to twenty four hours. Thus, even if his flexion of the left knee were limited to 30 degrees or less during flare-ups, the vast majority of the time his flexion substantially exceeds that range. Thus, to rate the Veteran's knee disability based on flare-ups in this case would amount to assigning an evaluation based on an inaccurate disability picture. In any event, his left knee flexion is not shown to be limited to 30 degrees or less during flare-ups, and his left knee extension is not shown to be limited to 10 degrees or more during flare-ups. The Board also finds no reasonable possibility that the results of passive range-of-motion testing at the December 2020 VA examination would show flexion limited to 30 degrees or less. The Board may not disregard the ameliorative effects of medication in evaluating the Veteran's left knee disability. Jones v. Shinseki, 26 Vet. App. 56, 61 (2012). The Board has considered the fact that he treats his left knee with Ibuprofen. The record does not show that absent such treatment his flexion of the left knee would be limited to 30 degrees or less, or extension limited to 10 degrees or more, including during flare-ups. It is also not evident that the range-of-motion testing in the VA examination reports and treatment records coincided with the Veteran's taking of Ibuprofen, such that he was benefiting from any ameliorative effects of that medication during the testing. Thus, when considering the ameliorative effects of medication, the criteria for a rating higher than 10 percent based on limitation of range of motion under DC 5260 or 5621 have still not been met. The September 2021 appellant's brief states that the Veteran reported daily effusion accompanied by pain and popping, and that therefore his condition must be rated by analogy to DC 5258. Under DC 5258, a 20 percent rating is assigned for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. 38 C.F.R. § 4.71a. The rating schedule provides that when an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. The Board finds that a 20 percent rating under DC 5258 by way of analogy is not warranted. As the record shows that the Veteran has not had a dislocated semilunar cartilage or other pathology of the meniscus, DC 5258 does not apply. Further, the Veteran does not have an unlisted condition. Rather, he has arthritis of the knee, which is rated under DC's 5003 and 5260. Thus, the condition predicate for rating by analogy, namely an unlisted condition, has not been met. The disability compensated under DC 5258 also is not closely analogous to the Veteran's left knee disability. Contrary to the assertion in the appellant's brief, the Veteran has not reported daily effusion. He has reported intermittent swelling, but that is not shown to equate to frequent episodes of "effusion into the joint." The Board also notes that diagnostic imaging has been negative for effusion. The May 2011 and November 2016 VA examination reports show that he reported locking of the knee, but that symptom is not shown to be generally characteristic of his knee disability. Rather, it has been characterized by constant aching pain, with pain on palpation, weakness, and limited range of flexion. Moreover, intermittent locking in itself does not satisfy the criteria for a 20 percent rating under DC 5258, which requires dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. The Veteran's "popping" of the knee is not a symptom analogous to the symptoms described in DC 5258, and not shown to cause functional impairment distinct from that contemplated by DC 5260. His left knee symptoms, including pain and weakness, are compensated under DC 5260 based on limitation of flexion due to such factors. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. at 206-07. Accordingly, a 20 percent rating under DC 5258, including by way of analogy, is not warranted. As the record shows that the Veteran's left knee disability has not been manifested by ankylosis, a history of removal of the semilunar cartilage, impairment of the tibial and fibula, or genu recurvatum, DC's 5256, 5259, 5262, and 5263, which pertain to those conditions, respectively, do not apply. See 38 C.F.R. § 4.71a. The Board notes that revisions to the rating schedule applicable to the musculoskeletal system went into effect on February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453 (Nov. 30, 2020). The Board may consider these changes without remand to the AOJ for consideration in the first instance. See 38 C.F.R. § 20.904(d)(2). The Board may not apply a current regulation prior to its effective date unless the regulation explicitly provides otherwise. VAOPGCPREC 7-2003 (Nov. 19, 2003); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (overruling Karnas v. Derwinski, 1 Vet. App. 308 (1991) to the extent it conflicts with the precedents of the United States Supreme Court and the Federal Circuit). Thus, the changes to the rating schedule that went into effect on February 7, 2021 do not apply prior to that date. See id.; 85 Fed. Reg. 76453. The changes made to the rating schedule with regard to the knee pertain to DC 5055 (resurfacing or replacement (prosthesis)), DC 5257 (other impairment of, recurrent subluxation or instability, patellar instability), and DC 5262 (tibia and fibula, impairment of). 85 Fed. Reg. at 76463. As the Veteran has not had resurfacing or replacement of the knee or impairment of the tibia and fibula, the changes to these diagnostic codes do not apply. As discussed above, the issue of entitlement to a higher rating under DC 5257 is not before the Board at this time. (Continued on next page) In sum, the criteria for a rating higher than ten percent for degenerative joint disease of the left knee based on limited flexion have not been met. Because the preponderance of the evidence weighs against a higher rating based on limitation of range of motion of the left knee, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Rutkin, 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.