Citation Nr: 21062790 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 14-27 019 DATE: October 12, 2021 ORDER An initial rating in excess of 10 percent for right knee arthritis is denied. An initial rating in excess of 10 percent for left knee arthritis is denied. REMANDED Entitlement to an initial disability rating greater than 20 percent for right knee instability is remanded. Entitlement to an initial disability rating greater than 10 percent for left knee instability is remanded. FINDINGS OF FACT 1. The Veteran's right knee arthritis manifests in painful motion resulting in flexion at worst limited to 60 degrees and extension limited to 5 degrees throughout the entire period on appeal. 2. The Veteran's left knee arthritis manifests in painful motion resulting in flexion at worst limited to 55 degrees and extension limited to 5 degrees throughout the entire period on appeal. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for right knee arthritis are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5010. 2. The criteria for an initial rating in excess of 10 percent for left knee arthritis are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5010. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1977 to December 1979. This case is before the Board of Veterans' Appeals (Board) on appeal from a September 2006 and July 2013 rating decisions from a Department of Veterans Affairs (VA) Regional Office (RO). In August 2008 and November 2016, the Veteran testified at a Board hearing. The transcript of the hearing has been associated with the record. The Board granted service connection for the Veteran's bilateral knee disability in a June 2013 decision. The July 2013 rating decision granted a rating of 10 percent for right and left knee arthritis. The Veteran appealed for a higher initial rating, and in February 2018, the Board remanded the case for a new examination given the November 2016 testimony of worsening bilateral knee arthritis symptoms. In an August 2019 decision, the Board denied the claim of an increased rating for bilateral knee arthritis but granted a separate rating under DC 5257 for bilateral knee instability. Although a separate disability rating for the knees was granted, the issue remained in appellate status, as the maximum schedular rating had not been assigned for the entire period on appeal. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). The Veteran appealed the denial of a higher rating to the United States Court of Appeals for Veterans Claims (Court). In a July 2020 Order, the Court granted a Joint Motion for Partial Remand (JMPR), vacated in part the Board's August 2019 decision regarding the disability ratings provided, and remanded the case for further development. The Board remanded this matter for a new examination to address the questions posed in the JMPR in March 2021. A Board remand confers on the Veteran, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). Unfortunately, although the Veteran was provided with an additional VA examination, there has not been substantial compliance with the Board's previous remand directives regarding the issue of bilateral knee instability. The examiner did not conduct instability testing and did not opine and provide a rationale on whether instability, if present in either of the Veteran's knees, is slight, moderate, or severe. Another remand is required to address the issue of bilateral knee instability. Increased Rating 1. An initial rating in excess of 10 percent for right knee arthritis. 2. An initial rating in excess of 10 percent for left knee arthritis. The Veteran contends that he is entitled to a higher rating for his bilateral knee disability. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate Diagnostic Codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, VA will assign the higher evaluation if the disability picture more nearly approximates the criteria required for that rating. Otherwise, it will assign the lower rating. 38 C.F.R. § 4.7. VA resolves any reasonable doubt regarding the degree of disability in favor of the Veteran. 38 C.F.R. § 4.3. Hyphenated Diagnostic Codes are used when an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy, or rating under one Diagnostic Code requires the use of an additional Diagnostic Code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. In the case of an initial rating, the entire evidentiary record from the time of a veteran's claim for service connection to the present is of importance in determining the proper evaluation of the disability. Fenderson v. West, 12 Vet. App. 119 (1999). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the rating period on appeal, the Board can assign different or "staged" ratings for such different periods. See Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). In evaluating a disability, the current examination reports are considered in light of the whole recorded history to ensure that the current rating accurately reflects the disorder's severity. The medical and industrial history are to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Veterans are competent to report observable symptoms in the realm of their personal knowledge. See Jandreau, 492 F.3d at 1377; 38 C.F.R. § 3.159(a). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information including lay and medical evidence of record in a case before the Secretary concerning benefits under laws the Secretary administers. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). Before the Board analyzes this issue, a review of the relevant Diagnostic Codes pertaining to the knees would be useful. DC 5010, for traumatic arthritis, directs the evaluator to rate the disability as degenerative arthritis under DC 5003. 38 C.F.R. § 4.71a, DC 5010. DC 5003 provides that degenerative arthritis will be rated based on limitation of motion under the appropriate Diagnostic Codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, DC 5003. A rating of 10 percent is applicable, to be combined, not added under DC 5003, for each major joint or group of minor joints limitation of motion effects when it is noncompensable under the appropriate Diagnostic Codes. Findings such as swelling, muscle spasm, or satisfactory evidence of painful motion must objectively confirm the limitation of motion. The standard motion of a knee joint is from zero degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. DCs 5260 and 5261 govern the limitation of leg motion. DC 5260 concerns the limitation of leg flexion. Under DC 5260, flexion limited to 45 degrees warrants a 10 percent rating, flexion limited to 30 degrees warrants a 20 percent rating, and flexion limited to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a. DC 5261 pertains to the limitation of leg extension. Under DC 5261, extension limited to 10 degrees warrants a 10 percent rating, extension limited to 15 degrees warrants a 20 percent rating, extension limited to 20 degrees warrants a 30 percent rating, extension limited to 30 degrees warrants a 40 percent rating, and extension limited to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a. Under DC 5256, a 30 percent rating is warranted for favorable ankylosis with the knee fixed in full extension or slight flexion between zero and 10 degrees. Ankylosis of the knee fixed in flexion between 10 and 20 degrees warrants a 40 percent rating, and the knee fixed in flexion between 20 and 45 degrees warrants a 50 percent rating. Extremely unfavorable ankylosis in flexion at an angle of 45 degrees or more warrants a 60 percent rating, the maximum schedular rating. 38 C.F.R. § 4.71a, DC 5256. Under DC 5257, slight subluxation or lateral instability warrants a 10 percent rating. Moderate subluxation or lateral instability warrants a 20 percent rating. A maximum 30 percent rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, DC 5257. Under DC 5258, evidence of dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the knee joint warrants a 20 percent rating. 38 C.F.R. § 4.71a, DC 5258. Symptomatic removal of semilunar cartilage warrants a 10 percent rating under DC 5259. 38 C.F.R. § 4.71a, DC 5259. Malunion of the tibia and fibula is rated Under DC 5262. For disabilities evaluated based on limitation of motion, VA must apply the provisions of sections 4.40 and 4.45 on functional impairment. 38 C.F.R. §§ 4.40, 4.45. When applying these regulations, the VA must obtain examinations in which the examiner determined whether the disability manifests through weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. The examiner, if possible, should express these determinations in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain during flare-ups and after repetitive use over time. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011); DeLuca v. Brown, 8 Vet. App. 202, 208 (1995); 38 C.F.R. § 4.59. Notably, 38 C.F.R. § 4.59, entitled "Painful motion," states, in pertinent part, "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." In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves when a flare-up is not observable at the time of examination. Evaluating the same disability under several Diagnostic Codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one disorder is not duplicative of the symptomatology of the other disorder. 38 C.F.R. § 4.14; Esteban, 6 Vet. App. at 262. For example, a claimant with arthritis and knee instability may be rated separately under DCs 5003 and 5257, but separate ratings require separate compensable symptomatology. VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (Oct. 22, 1998); VAOPGCPREC 23-9, 62 Fed. Reg. 63,604 (Dec. 1, 1997); see also Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). The June 2021 examiner diagnosed right knee arthritis/degenerative joint disease with patellofemoral pain syndrome/chondromalacia patellae, effusion, and moderate instability; and diagnosed left knee arthritis with chondromalacia patellae, effusion, and slight instability. Arthritis, specifically osteoarthritis, is a noninflammatory degenerative joint disease. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY at 1326 (33d ed. 2019). Chondromalacia patellae are defined as pain and crepitus over the anterior aspect of the knee, particularly in flexion, with softening of the cartilage on the articular surface of the patella and, in later stages, effusion. Id. at 347. The Veteran is currently assigned a 20 percent disability rating for right knee instability under DC 5257, a 10 percent disability rating for left knee instability under DC 5257, a 10 percent disability rating for right knee arthritis with chondromalacia patellae and effusion under DC 5010-5260, a 10 percent disability rating for left knee arthritis with chondromalacia patellae and effusion under DC 5260, and noncompensable ratings for right and left knee arthritis with limitation of extension under DC 5010-5261. The assigned DCs 5010-5260, 5260, and 5010-5261 suggest that the right and left knee arthritis is rated based on compensable limitation of flexion and extension. 38 C.F.R. § 4.71a. A review of the evidence reflects that the right and left knee arthritis has been rated based on painful noncompensable limitation of motion and that the right and left knee arthritis has not had compensable limitation of motion (i.e., limitation of flexion or extension) at any time during the relevant rating period. Therefore, the Diagnostic Code assigned should have been DC 5010 to show that the right and left knee arthritis is being rated based on noncompensable limitation of motion that is painful. For this reason, the Board is changing the Diagnostic Code for the right and left knee arthritis to DC 5010 to reflect the actual rating already assigned. 38 C.F.R. § 4.71a. A December 2006 VA Examination report demonstrates a range of motion bilaterally from full extension to approximately 130 degrees flexion without any additional limitation following repetitive use. The examiner found very mild bilateral patellofemoral crepitus with movement, bilateral mild to moderate joint effusion, and a small left knee Baker's cyst. Ligamentous examination showed stable knees with a grade 1A Lachman, indicating mild anterior instability bilaterally. The Veteran had a negative posterior and anterior drawer, and his knees were stable to varus and valgus stress. The examiner noted patellofemoral joint tenderness upon palpation but no significant medial or lateral joint line tenderness. The Veteran's McMurray's test was negative bilaterally, indicating no meniscus condition. During the August 2008 Board Hearing, the Veteran attested to experiencing symptoms of bilateral pain and swelling and that sometimes his knees give out, so he wears a brace to avoid falling. The Veteran also noted a specialist informed him the only fix for his bilateral knee disability would be a knee replacement, but that he is too young for the procedure. An April 2013 VA Examination report noted the Veteran experienced flare-ups but noted no range of motion limitation, including after repetition. The examiner also noted normal bilateral knee strength and stability. During the November 2016 Board Hearing, the Veteran stated he had not sought treatment for his knees since being informed a knee replacement is the only cure, but he does take pain medication. The Veteran described his bilateral knee disability causes mobility issues: they give out, he cannot move his knees much anymore because of swelling, he has trouble going upstairs, his knees hurt all the time, and it is becoming increasingly difficult for him to do his job of driving and unloading forklifts. During the May 2018 VA examination, the Veteran stated he uses a cane and knee braces regularly and that his bilateral knee disability made it difficult for him to walk up hills and stairs, walk long distances, and squat. The examiner found bilateral knee flexion was limited to 80 degrees, the extension was normal, and the Veteran had no additional bilateral knee loss of function or range of motion after three repetitions. The Veteran's bilateral knee pain was found to cause functional loss, and he had pain with weight-bearing and non-weight-bearing testing. The examination report showed objective evidence of crepitus, moderate tenderness to palpation over the entire right knee, small right knee effusions, and left knee vascular calcifications. The examiner found no limitation of strength, muscle atrophy, instability, or pain on passive range of motion testing in either knee. During the May 2018 VA examination, the Veteran reported experiencing flare-ups resulting in intense knee pain that interferes with his sleep and is worse with cloudy or rainy weather. The examination was not conducted during a flare-up, and the examiner determined the additional pain results in additional functional loss, but she was unable to describe the additional functional loss in terms of range of motion. As noted in the July 2020 JMPR, the May 2018 VA examination was inadequate in that it did not estimate functional loss during a flare-up as required by Sharp; further, it did not satisfy the Correia testing requirements because the examiner provided no estimates for active, passive, weight-bearing, and non-weight-bearing range of motion testing. In June 2021, the Veteran underwent another VA examination to determine the severity of his bilateral knee disability. The Veteran described experiencing constant dull, achy, sharp, throbbing, and grinding pain. He stated his pain on the examination date was a 7 out of 10 and that his pain can range from a 3 to a 10. When his pain reaches an 8 or more, he cannot bear weight on his knees, can barely walk, cannot stand for long, and must rest and be down for hours to days. He also reported his knees make a popping sound and that the pain and weakness in his knees cause instability, and his knees pop and give out, but not out of the socket. The June 2021 VA examiner noted that the Veteran's bilateral knee disability symptoms worsened since his last examination; however, the service-connected diagnosis has not changed, and no additional diagnoses have been made. The Veteran used a cane to assist with weight-bearing. The cane alleviates the pain experienced when bearing weight on the knees due to bilateral arthritis, and it helps the Veteran with balance and gait due to instability directly related to his bilateral knee pain. June 2021 active and passive range of motion testing showed bilateral pain with flexion and extension, normal bilateral extension, and flexion limited to 65 degrees in the right knee and 60 degrees in the left knee. The examiner found additional functional loss after three repetitions and estimated based on the Veteran's statements that the additional loss of function would be the same for repeated use over time and during flare-ups: right knee flexion limited to 60 degrees and extension to 5 degrees and left knee flexion limited to 55 degrees and extension to 5 degrees. The examiner observed visible moderate swelling and slight pitting on palpitation of the soft tissue in the left knee, mild right knee edema, objective bilateral evidence of crepitus, and moderately severe localized tenderness or pain on palpation of the patellar and the surrounding soft tissue of both knees. The examiner found the Veteran's bilateral knee pain inhibits ambulation, standing for long periods, walking, mobility, and stability. The examination report showed no evidence of atrophy, ankylosis, recurrent subluxation, persistent instability, a ligament tear, recurrent patellar instability, recurrent patellar dislocation, shin splints, a meniscus (semilunar cartilage) condition, or surgery. The Board finds that the preponderance of the evidence is against a rating over 10 percent each for right and left knee arthritis. The Board acknowledges the Veteran's lay reports of symptoms and functional loss due to pain, repetitive use, pain during flare-ups, pain during repetitive use over time, and weakness. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that he cannot bear weight on his knees, can barely walk, cannot stand for long, and must rest and can be down for hours to days would not result in limitation of motion more nearly approximating a compensable rating under DCs 5260 or 5261. Under DCs 5260 and 5261, the Veteran's right and left knee arthritis would be noncompensable because the extension for each knee was limited at most to 5 degrees, the Veteran's right knee flexion was at most limited to 60 degrees, and right knee flexion was at most limited to 55 degrees, including when considering factors such as flare-ups, repetitive use, active motion, passive motion, weight-bearing, non-weight-bearing, weakened movement, excess fatigability, and incoordination. Under DC 5260, evaluations of 10 percent are only warranted for flexion limited to 31-45 degrees. Thus, only if the flexion limitation reached 45 degrees would a 10 percent evaluation have been warranted under DC 5260 for the appeals period. Further, under DC 5261, only if the extension were limited to 10 degrees would a 10 percent rating be warranted. A 10 percent evaluation for right and left knee arthritis under DC 5010 is appropriate because the bilateral knee arthritis resulting in functional loss is noncompensable under the applicable Diagnostic Codes; therefore, 38 C.F.R. § 4.59 allows consideration of functional loss for the joint due to painful motion to be rated to at the minimum compensable evaluation of 10 percent. All Diagnostic Codes pertaining to the knee and leg have been considered. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban, 6 Vet. App. at 261-62; Lyles, 29 Vet. App. 107. Separate ratings are not warranted under DCs 5256, 5258, 5259, or 5262, as the weight of the competent and probative evidence is against finding ankylosis, a current dislocated semilunar cartilage, symptomatic removal of semilunar cartilage, or a tibial or fibular impairment. The record does demonstrate evidence of bilateral knee instability, which will be addressed in the remand section. The preponderance of the evidence is against the Veteran's claim for an initial rating in excess of 10 percent each for right and left knee arthritis. Accordingly, the benefit-of-the-doubt doctrine is not applicable, and the increased rating for the entire period on appeal must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 1. An initial disability rating greater than 20 percent for right knee instability. 2. An initial disability rating greater than 10 percent for left knee instability. Unfortunately, there has not been substantial compliance with the Board's previous remand directives regarding the issue of bilateral knee instability. Another remand is required to assess the current severity of the Veteran's bilateral knee instability. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: Schedule the Veteran for a new examination to determine the current severity of his service-connected bilateral knee instability. The examiner must opine and provide a rationale on whether instability, if present in either of the Veteran's knees, is slight, moderate, or severe. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Costa, 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.