Citation Nr: 21065370
Decision Date: 10/26/21	Archive Date: 10/26/21

DOCKET NO. 17-46 193
DATE: October 26, 2021

ORDER

Entitlement to an increased rating in excess of 10 percent for left knee degenerative joint disease is denied.

Entitlement to an increased rating in excess of 10 percent for right knee degenerative joint disease is denied.

FINDING OF FACT

Throughout the period on appeal, the Veteran's left and right knee disabilities have manifested primarily in painful motion without significant limitation of flexion or limitation of extension, and there is no evidence of incapacitating exacerbations.

CONCLUSION OF LAW

The criteria for respective evaluations in excess of 10 percent for left knee and right knee degenerative joint disease have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from January 1984 to November 1988.  

These matters are before the Board of Veterans' Appeal (Board) on appeal from a November 2013 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO) in Indianapolis, Indiana.

The Veteran presented testimony on these issues at an October 2019 Travel Board hearing held at his local RO before the undersigned Veterans Law Judge (VLJ). 

Addressing the most relevant procedural history, these claims were most recently previously before the Board in April of 2021 at which time the claims were remanded for additional development, to specifically include obtaining a clarifying VA opinion in lieu of recent changes to the applicable regulations. The case has now been returned to the Board for further appellate action.

Entitlement to an increased rating in excess of 10 percent for left knee degenerative joint disease and in excess of 10 percent for right knee degenerative joint disease is denied.

The Veteran contends that higher respective ratings are warranted for his service-connected left and right knee conditions. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 

Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran. 38 C.F.R. § 4.3.

In rating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity, or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing, and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that 38 C.F.R. § 4.59 applies to disabilities other than arthritis). However, painful motion alone is not a functional loss without some restriction of the normal working movements of the body. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). The joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59.

In this case, the Veteran asserts that his knee conditions are more severe than his current disability ratings. The Veteran is currently rated at 10 percent for each of his knee disabilities under Diagnostic Code 5003. 

As an initial matter, the criteria for Diagnostic Code 5003 were revised during the pendency of this appeal, effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020). Because the amendments have a specified effective date without provision for retroactive application, they may not be applied prior to the effective date. As of that effective date, the Board must apply whichever version of the rating criteria is more favorable to the Veteran. 38 U.S.C. § 5110; Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003).

Prior to February 7, 2021, Diagnostic Code 5003 indicates that arthritis is evaluated based upon limitation of motion of the affected part. When limitation of motion is noncompensable, a 10 percent rating is warranted when there is x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. A 20 percent rating is warranted where there is x-ray evidence of the involvement of 2 or more major joints or 2 or more minor joint groups with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a (2020). For the purpose of rating a disability from arthritis, the knee is considered a major joint. 38 C.F.R. § 4.45. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003.

Under the revised criteria, Diagnostic Code 5003 contemplates degenerative arthritis, other than post-traumatic arthritis. 38 C.F.R. § 4.71a (2021). The rating criteria in Diagnostic Code 5003 were not impacted by the revised regulations.

Also effective February 7, 2021, post-traumatic arthritis is rated under Diagnostic Code 5010 (previously "arthritis, due to trauma, substantiated by X-ray findings") which now has instructions to "rate as limitation of motion, dislocation, or other specified instability under the affected joint. If there are 2 or more joints affected, each rating shall be combined in accordance with § 4.25". 38 C.F.R. § 4.71a (2021).

In that regard, the Board remanded this claim in April of 2021 in order to obtain a VA addendum opinion. More specifically, the Board was unable to determine at that time whether the Veteran had degenerative or traumatic arthritis as this inquiry had been combined in the report accompanying the most recent March 2020 Compensation and Pension examination. A VA examiner clarified in June of 2021 that "[f]rom history, exam, and imaging, the degeneration would most likely be classified as traumatic, due to location, and early onset at age 54."

Based on this opinion, the Board has considered at the outset whether the Veteran's conditions should instead be rated as post-traumatic arthritis under Diagnostic Code 5010 effective February 7, 2021. However, Diagnostic Code 5010 now has instructions to "rate as limitation of motion, dislocation, or other specified instability under the affected joint." The Board observes that in this case, the Veteran is already separately service-connected under Diagnostic Code 5257 for subluxation of both the left and right patella, which encompasses instability, in addition to the current ratings under Diagnostic Code 5003, which also accounts for his limitation of/painful motion. As such, while the Board may consider both the old and amended version of a diagnostic code beginning February 7, 2021, it is clearly most favorable to the Veteran to consider only the criteria that justifies his current concurrent ratings. Given the restrictions of the amended rating criteria, the Board will consider only the former version of Diagnostic Code 5003 in the remainder of this decision. 

In addition, absent X-ray findings of arthritis, limitation of motion should be considered under Diagnostic Codes 5260 and 5261. Painful motion may add to the actual limitation of motion so as to warrant a rating under Diagnostic Codes 5260 or 5261. 

Under Diagnostic Code 5260, a 10 percent rating is warranted for flexion of the knee limited to 45 degrees; a 20 percent rating is warranted for flexion limited to 30 degrees; and a 30 percent rating is warranted for flexion limited to 15 degrees.

Under Diagnostic Code 5261, a 10 percent rating is warranted for extension of the knee limited to 10 degrees; a 20 percent rating is warranted for extension limited to 15 degrees; a 30 percent rating is warranted for extension limited to 20 degrees; a 40 percent rating is warranted for extension limited to 30 degrees; and a 50 percent rating is warranted for extension limited to 45 degrees.

Normal range of motion of the knee is 0 degrees of extension to 140 degrees of flexion. See 38 C.F.R. § 4.71a, Plate II.

Under 38 C.F.R. § 4.71a, Diagnostic Code 5258, a 20 percent rating is warranted for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint.  

VA General Counsel has held that separate ratings may be assigned under Diagnostic Code 5260 and Diagnostic Code 5261 for disability of the same joint. See VAOPGCPREC 9-2004. In addition, as stated above, even if a veteran did not have limitation of motion of the knee meeting the criteria for a compensable rating under Diagnostic Code 5260 or 5261, a separate rating could be assigned if there was evidence of full range of motion "inhibited by pain." Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). However, and notably, ratings under Diagnostic Code 5003 are not to be combined with ratings based on limitation of motion of the same joint. 38 C.F.R. § 4.71a, Diagnostic Code 5003. In addition, the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation and the evaluation of the same manifestation under different diagnoses are to be avoided. Id. 

For the reasons explained below in detail, the Board has determined that evaluations in excess of 10 percent for the Veteran's right and left knee disabilities are not warranted. 

Turning to the evidence of record relevant to the period on appeal, the Veteran underwent multiple VA examinations during the period on appeal which yielded reports that vary in terms of the information that was included. It is initially important to note that even if a medical opinion is insufficient upon which to decide a claim, it does not necessarily follow that the opinion is entitled to absolutely no probative weight. Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012). If the opinion is based on an inaccurate factual premise, then it is correct to discount it entirely. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). However, if the opinion is merely lacking in detail, then it may be given some weight based upon the amount of information and analysis it contains. See Nieves-Rodriguez v. Peake, 22 Vet. App. 302 (2008). Here, some of the VA examinations of record during this period predated, and therefore either did not fully comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016) or with those in Sharp. v. Shulkin, 29 Vet. App. 26 (2017). As such, the range-of-motion results contained within them and the other subjective measurements and observations may still be utilized to evaluate the state of the Veteran's left and right knee disabilities.

The Veteran underwent a VA examination in July of 2013. The Veteran reported having had frequent recurrent "popping" of his right knee which caused swelling and pain. He also complained of left knee pain that is intermittent and aggravated by exertion and long standing as well as walking. He reported flare-ups after these movements that lasted between one and ten days. Subluxation of the right side was noted, as was a meniscus condition (dislocation of semilunar cartilage).

At a June 2015 VA examination, the Veteran complained of pain and weakness in both knees that had worsened on the right side. He reportedly had "associated difficulty to ambulate long distances, squat down and perform repetitive activities". He was noted to occasionally use a cane. In addition, results of a recent x-ray had reportedly indicated "R/O Progressive DJD and/or primary osseous                          pathology". The noted impression was "Unchanged mild narrowing of the medial joint compartment. No acute fracture or dislocation. No cortical erosion or periosteal reaction. Unchanged 2 well-corticated osseous fragments adjacent               to the superior aspect of the patella."

At a December 2016 VA examination, the Veteran reported ongoing and progressive right knee pain, which was significant if that knee subluxated but which improved with wearing his knee brace. It was noted that he was reportedly unable to squat with his right knee and cannot ambulate for long distances or perform repetitive activities using the right knee. On initial testing, the range of motion for the right knee was from 0 to 130 degrees.  The left knee was from 0 to 140 degrees.  The examiner recorded that "Veteran was noted to have decreased range of motion with flexion, as well as associated objective evidence of pain with both flexion and extension, weakness, and fatigability; no incoordination was noted. Movements were slow during repetitive motions x3, likely due to pain."

In October 2019, the Veteran contended that at the time of his most recent Compensation and Pension examination in December 2016, "[j]ust my right one was --was the worst one that was popping in and out", but that since then, "my left one started doing it". See October 2019 Board Hearing Transcript. Additionally, he indicated that he had started wearing bilateral knee braces "more or less all day". Id. At his December 2016 examination, he was wearing only a right brace and only "regularly". In lieu of this evidence of a potential worsening, especially coupled with the fact that the Veteran alleged that his prior examination was inadequate, the Board remanded this claim in December of that year in order to afford the Veteran an opportunity to present for a new VA examination. See Snuffer v. Gober, 10 Vet. App.400, 403 (1997).

Thereafter, at a March 2020 VA examination, the Veteran reported that his conditions had worsened in the last two years due to increased pain and loss of motion. He stated he has swelling in the summer due to more use and indicated pain with weight bearing. He rated his daily average pain level as a 6 on the ten scale of pain and indicated that he uses Hydrocodone daily and particularly at night due to loss of sleep with pain. He further reported that despite having a two story house, "he does not go upstairs anymore, or to the basement, seldom, due to the pain on steps, and ladders." Further, he asserted that "his knee feels unstable, like it's going to dislocate but it doesn't" but also "denies surgery, or injections in the knee".  On examination, motion was from 0 to 130 degrees in both knees.  Following repetitive use, the range was 0 to 115 on the right and 0 to 125 on the left.

The above-referenced VA medical examinations disclosed no evidence of ankylosis nor genu recurvatum in regard to either knee. No tibial or fibular impairment was indicated. Use of a knee brace and/or cane was noted, particularly in regard to the right knee. Flexion was reduced to not more than 115 degrees in the right knee and 125 degrees in the left knee on any occasion, even when accounting for pain, fatigue and repetitive motion etc. In addition, not more than a 25 degree loss of extension was demonstrated in either knee, even when further reduced by pain, repetitive motion, weakness, fatigue, flare-ups, lack of endurance, or incoordination. Pain was, however, repeatedly noted to be a component of the Veteran's motion attempts. 

The evidence shows that the knee disabilities have primarily been manifested by pain on motion during the period of the appeal. The preponderance of the evidence does not demonstrate, and the Veteran has not shown nor contended that the bilateral knee disabilities resulted in occasional incapacitating exacerbations to warrant a higher evaluation under Diagnostic Code 5003. The Board notes that although Diagnostic Code 5003 does not define "incapacitating exacerbation," the analogous term, "incapacitating episode," is defined as a period of acute signs and symptoms that requires bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note 1; 38 C.F.R. § 4.114, Diagnostic Codes 7345, 7354, Note 2. Although the Veteran has reported flare-ups of pain after increased physical activity, there is no indication that his knee symptoms required prescribed bed rest and treatment by a physician. Further, while the treatment records associated with the claims file document ongoing complaints of pain and the associated treatment, they do not contain evidence that could be used to justify a higher rating. Therefore, an evaluation in excess of 10 percent is not warranted under Diagnostic Code 5003.

In addition, while a meniscus condition was noted by at least one VA examiner (in 2013), it is not appropriate to assign separate ratings for a meniscus disability as the disorder is already assigned ratings based on limitation of motion and instability, and the disorder is not shown to produce frequent episodes of locking, pain and effusion so as to warrant a rating under DC 5258. He also has not had removal of the semilunar cartilage so as to warrant a rating under DC 5259.  

Here, as acknowledged above, the Veteran has already been assigned respective disability ratings of 20 percent and 10 percent for his right and left knee disabilities under Diagnostic Code 5257 for subluxation (instability).

Further, despite the rationale outlined in earlier in this decision, the Board has considered whether higher ratings are available to the Veteran under the diagnostic codes for instability and limitation of motion in order to afford him every benefit. However, the recorded measurements would not allow the Veteran to receive a higher rating for either knee even if this would not effectively represent pyramiding. In fact, at no time during this period of the Veteran's appeal has he demonstrated compensable limitation of motion in either knee based on either limitation of extension or flexion under 38 C.F.R. § 4.71a, Diagnostic Codes 5260 and 5261. Since neither of the Veteran's knees has exhibited a compensable level of either limitation of flexion or extension, separate or higher ratings would not be warranted on that basis even if there were no X-ray findings of arthritis, which there are in this case, and even if he were not already being compensated for the related symptomology, which he is. See VAOPGCPREC 09-2004 (September 17, 2004). 

The Board also notes that the VA examinations from this period indicate that there is no evidence of ankylosis, cartilage, semilunar, dislocated with frequent episodes of locking, pain, and effusion into the joint, cartilage, semilunar, removal of, symptomatic, tibia and fibula impairment, or genu recurvatum. Therefore, there is no indication that separate ratings under Diagnostic Codes 5256, 5258, 5259, 5262, or 5263 would be a more appropriate Diagnostic Code under which to consider the Veteran's respective knee disabilities.

The Board has also considered whether the record shows that the Veteran was entitled to higher ratings based on additional functional loss or impairment under 38 C.F.R. §§ 4.40, 4.45, and 4.59. See DeLuca, 8 Vet. App. 202, Burton v. Shinseki, 25 Vet. App. 1 (2011). The Veteran has reported flare-ups at some points. However, there is no indication in the record that any increase in symptoms during flare-ups, even with repetitive use, caused additional functional loss such that either knee condition manifested to a severity more closely approximating that contemplated by the criteria for higher disability ratings. Notably, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Thus, the record does not show that the Veteran is additionally limited by pain, fatigability, incoordination, pain on movement, or weakness during flare-ups or on repetitive use such that higher ratings for the service-connected left and right knee conditions is warranted. The Board finds that the Veteran's pain and any functional loss are encompassed by the ratings already provided under Diagnostic Codes 5003 and 5257. Therefore, higher ratings were not warranted at any time during the rating period under the provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59, and DeLuca, 8 Vet. App. 202.

In this case, the Veteran is competent to report complaints such as difficulty with certain physical activities as these observations come to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board also acknowledges the Veteran's belief that his symptoms are of such severity as to warrant a higher rating and has taken these contentions seriously. He is not, however, competent to identify a specific level of disability of his bilateral knee disabilities according to the appropriate diagnostic codes. On the other hand, such competent evidence concerning the nature and extent of the Veteran's bilateral knee disabilities has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings as provided in the examination reports and treatment reports directly address the criteria under which these disabilities are evaluated. Unfortunately, the most objective evidence of record indicates that there is no basis for a higher rating for either knee.

 

In sum, the Board finds that the criteria for higher respective ratings for the Veteran's left and right knee disabilities have not been met at any point during the appeal and there is no basis for staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The preponderance of the evidence is against finding for higher ratings in excess of 10 percent for the Veteran's right or left knee disabilities and the benefit of the doubt doctrine does not apply. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

 

 

MICHAEL MARTIN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	K. Smith, 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.