Citation Nr: 21065459 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 15-20 610 DATE: October 26, 2021 ORDER Entitlement to an initial 30 percent rating for degenerative arthritis of the right knee is granted. FINDING OF FACT The Veteran's right knee disability is manifested by additional functional loss that resulted in weakness, limited motion, and additional pain. CONCLUSION OF LAW The criteria for an initial 30 percent rating for a degenerative arthritis of the right knee disability have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5260 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1984 to June 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was afforded a hearing before the undersigned Judge in July 2016. A transcript of the hearing has been associated with the record. In a December 2017 Board decision, the Board denied an evaluation in excess of 10 percent for the Veteran's degenerative arthritis of the right knee prior to October 4, 2013. The Veteran appealed his denial to the Court of Appeals for Veterans Claims (CAVC or the Court). The Court, in October 2018, issued a joint motion for partial remand (JMPR) to vacate and remanded the issue back to the Board for re-adjudication. In a June 2019 Board decision, the Board denied an evaluation in excess of 10 percent for degenerative arthritis of the right knee. The Veteran again appealed his denial to CAVC. The Court, in May 2020, issued a joint motion for partial remand (JMPR) to vacate and remanded the issue back to the Board. In October 2020 the Board again remanded this issue for additional development. Higher Rating Laws and Regulations The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claims are denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2020). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2020). The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2020). Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. The Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. See also Hart v. Mansfield, 21 Vet. App. 505 (2008). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2020). In this case, the Veteran is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). He is also competent to report symptoms of his knee disability. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). The Veteran is competent to describe his symptoms and their effects on employment or daily activities. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40. Functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. 38 C.F.R. § 4.59 (discussing facial expressions such as wincing, muscle spasm, crepitation, etc.). Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Excess fatigability and incoordination should be taken into account in addition to more movement than normal, less movement than normal, and weakened movement. 38 C.F.R. § 4.45. 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. See 38 C.F.R. § 4.59. Although the first sentence of 38 C.F.R. § 4.59 refers only to arthritis, the regulation applies to joint conditions other than arthritis. Burton v. Shinseki, 25 Vet. App. 1, 3-5 (2011). In evaluating 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). Although pain may cause functional loss, pain itself does not constitute functional loss. Rather, pain must affect some aspect of "the normal working movements of the body," such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40). An October 2011 rating decision granted service connection for degenerative arthritis of the right knee at an initial 10 percent disability rating under Diagnostic Codes 5260. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, the amendments did not change the criteria under Diagnostic Codes 5256, 5258, 5259, 5260, or 5261. Notably, the criteria for knee instability under Diagnostic Code 5257 have changed during the period covered by this appeal, effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Codes, 5257, 5055). If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Under 38 C.F.R. § 4.71a, Diagnostic Code 5260, if flexion of the knee is limited to 45 degrees a 10 percent rating is in order. If flexion of the knee is limited to 30 degrees a 20 percent rating is in order. If flexion of the knee is limited to 15 degrees a 30 percent rating is in order. Under 38 C.F.R. § 4.71a, Diagnostic Code 5261, if extension of the knee is limited to 10 degrees a 10 percent rating is in order. If extension of the knee is limited to 15 degrees a 20 percent rating is in order. If extension of the knee is limited to 20 degrees a 30 percent rating is in order. Under the criteria in effect prior to February 7, 2021, under Diagnostic Code 5262, pertaining to impairment of the tibia and fibula, a 10 percent disability rating is assigned for malunion with slight knee or ankle disability, and a 20 percent disability rating is warranted for malunion with moderate knee or ankle disability. A 40 percent disability rating is appropriate where there is nonunion of the tibia and fibula with loose motion requiring a brace. 38 C.F.R. § 4.71a, Diagnostic Code 5262. Under the revised criteria, Diagnostic Code 5262 now provides a 30 percent evaluation for shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, both lower extremities; a 20 percent rating is warranted for shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, one lower extremity, a 10 percent rating is warranted for shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to either shoe orthotics or other conservative treatment, one or both lower extremities; and a noncompensable rating is warranted for shin splints that have treatment less than 12 consecutive months, one or both lower extremities. Under the criteria in effect prior to February 7, 2021, Diagnostic Code 5257 provides a 10 percent rating for slight recurrent subluxation or lateral instability. A 20 percent rating is warranted for moderate recurrent subluxation or lateral instability. A 30 percent rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2020). The terms "mild," "moderate," "moderately severe" and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (2020). The use of terminology such as "mild" or "moderate" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (2020). VA General Counsel has also held that separate ratings may be assigned in cases where a service-connected knee disability includes both a compensable limitation of flexion under Diagnostic Code 5260, and a compensable limitation of extension under Diagnostic Code 5261 provided that the degree of disability is compensable under each set of criteria. VAOPGCPREC 09-04; 69 Fed. Reg. 59990 (2004). The basis for the opinion was a finding that a limitation in planes of movement were each compensable. Id. A claimant who has arthritis and instability of the knee may also be rated separately under Diagnostic Code 5003 and Diagnostic Code 5257 and rating a knee disability under both of those codes does not amount to pyramiding under 38 C.F.R. § 4.14 (2020). VAOPGCPREC 23-97 (July 1, 1997), 62 Fed. Reg. 63604 (1997); Esteban v. Brown, 6 Vet. App. 259 (1994). However, a separate rating must be based on additional compensable disability. Under the revised criteria, Diagnostic Code 5257 for recurrent subluxation and instability now provides a 30 percent rating for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation or a sprain incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation. A 20 percent rating is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 10 percent rating is warranted for sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. For patellar instability under the revised Diagnostic Code 5257, a 30 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. A 20 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: A brace, cane, or walker. A 10 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. For rating purposes, normal range of motion in a knee joint is from 0 to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. Factual Background and Analysis Upon VA examination in October 2011, the Veteran complained of stiffness, swelling, lack of endurance and pain. The Veteran also complained of flare-ups occurring twice a week with pain severity rated as an 8 out of 10. The Veteran stated that during flare-ups he experienced the inability to lift, stretch, kneel, or climb and that his knee became very stiff and he experienced decreased range of motion. Range of motion testing revealed movement within normal limits, including after repetitive use. X-rays of the right knee revealed degenerative arthritis changes and testing showed degenerative joint disease with mild chondrocalcinosis of the medial meniscus. However, the Board notes that the examiner did not properly address the symptoms and functional loss in a load bearing capacity and therefore the examination did not provide an accurate picture of his disability. As a result, the Board affords the examination no probative weight. The Veteran underwent a VA examination in October 2013. The VA examiner diagnosed the Veteran with degenerative arthritis in the right knee and a meniscal tear with a meniscectomy. The examiner indicated that the Veteran experienced flare-ups about once a month lasting 2-4 days. It was noted that during these flare-ups the Veteran experienced pain, weakness and stiffness and had difficulty with walking, squatting, lifting, and bending his right knee. Range of motion testing revealed decreased flexion, limited to 120 degrees with painful motion. Past radiology reports from right knee X-rays were submitted in August 2016. A four-view examination of the right knee in February 2004 showed a questionable presence of a small effusion. No fracture or acute bone lesion was shown. There was a faintly demonstrated meniscal cartilage calcification more easily seen in the lateral compartment. An MRI from March 2004 showed no contusion or other acute bony lesion. There was a horizontal cleavage tear of the left lateral meniscus with an associated small parameniscal cyst in the peripheral margin. There was a modest sized joint effusion. Medial meniscus and cruciate ligaments were intact. The radiology report from June 2006 showed intact medial meniscus and cruciate ligaments. The report also noted minimal cartilage irregularity. The most recent radiology report is from April 2013. It noted that signal intensity in the bone marrow was normal, intact cruciate and collateral ligaments, and a marked complex tear of the posterior horn of the medial meniscus. Mild joint effusion was noted. In a June 2013 statement, the Veteran claimed to have symptoms of locking, instability, and a torn meniscus. The Veteran underwent a VA examination in May 2018. The Veteran had degenerative arthritis of the right knee status post arthroscopic surgery and chondromalacia. It was noted that the Veteran had undergone 3 arthroscopic surgeries for a torn meniscus of his right knee. He presented with complaints of right knee pain medially with a grinding sensation. He reported flare-ups as he had increased pain and during his flare-ups is when his right knee might lock. Flare-ups occurred once a week for 2 hours and the intensity of the pain was a 4/5 out of 10 on the pain scale. He reported functional loss as he had trouble lifting a stretcher or kneeling down. On examination, flexion was from 0 to 110 degrees. The range of motion itself did not contribute to functional loss. There was objective evidence of localized tenderness or pain on palpitation. There was evidence of pain on weight bearing and evidence of crepitus. The Veteran was able to perform repetitive use testing without additional loss or range of motion after 3 repetitions. The examiner was unable to say without resorting to mere speculation whether pain, fatigue, weakness, fatigability or incoordination would significantly limit functional disability with repeated use over time or during flare-ups as there was no conceptual or empirical basis for making such determinations without directly observing function under these conditions. Muscle strength testing was normal and there was no muscle atrophy. There was no ankylosis. There was no history of recurrent subluxation or lateral instability and there was no history or recurrent effusion. Joint stability testing was performed and it was normal as there was no joint instability. The Veteran had a meniscal tear with frequent episodes of pain and occasional, yet infrequent locking of the right knee. The Veteran did not use any assistive devices. The Veteran's knee disability impacted his ability to work as the Veteran was a paramedic who lost 0-1 weeks of work in the past 12 months due to his right knee as he was unable to do extending kneeling or squatting. The examiner noted that there was objective evidence of pain on passive range of motion testing and there was objective evidence of pain when the joint was used in non-weight bearing. Per the October 2020 Board remand instructions, the Veteran underwent a VA examination in August 2021. The examiner noted that the Veteran's current symptoms were pain, cramping, limited range of motion and instability. The Veteran reported flare-ups of the right knee that occurred weekly. The flare-ups were moderate to severe and last 2 days to 2 weeks. He reported having functional loss as he could not work for the Emergency Medical Services with manual stretchers as he had to use electric stretchers. There was no history of recurrent subluxation or lateral instability and there was no history or recurrent effusion. On examination, flexion was from 0 to 80 degrees. The range of motion itself contributed to functional loss as he had weakness and pain. Passive range of motion was the same as active range of motion. There was evidence of pain with weight bearing and active motion that did not result in or cause functional loss. There was objective evidence of crepitus but no evidence of localized tenderness or pain on palpation. The Veteran was able to perform repetitive use testing without additional loss or range of motion after 3 repetitions. The examiner indicated that pain, fatigue, weakness, fatigability or incoordination significantly limited functional disability with repeated use over time and during flare-ups as flexion was from 0 to 75 degrees with repeated use over time and during flare-ups. The Veteran did not have muscle atrophy or ankylosis. There was no history of recurrent subluxation or lateral instability. Joint stability testing was performed and it was normal as there was no joint instability and no patellar instability. The Veteran did not require a prescription for a device to aid with ambulation and the Veteran did not use any assistive devices. It was noted that the Veteran underwent 3 meniscectomies on his right knee. The Veteran's knee disability impacted his ability to work as the Veteran reported that he could only stand or walk for about 15 minutes before he desired rest. He was also unable to perform most moderate to high impact activities including running, marching, jumping and prolonged standing. He was also unable to walk more than 1 mile. The examiner again noted that there was no history of joint instability of the right knee and there were no findings of joint instability of the right knee. The right knee anterior instability test, posterior instability test, medial instability test and lateral instability test results were all normal. As noted above, the Veteran has a current initial 10 percent disability rating for degenerative arthritis of the right knee. Based on the reported symptomatology of the Veteran's limitation of motion and reported functional impairment and flare-ups at his VA examinations, the Board finds that when affording the Veteran the benefit of the doubt, that an initial 30 percent disability rating is warranted for the Veteran's service-connected right knee disability. Regarding limitation of flexion, the Board notes that for a 30 percent evaluation under Diagnostic Code 5260, the Veteran must demonstrate flexion limited to 15 degrees or extension must be limited to 20 degrees. Notably, on VA examination in October 2013, right knee flexion was from 0 to 120 degrees, on VA examination in May 2018 right knee flexion was from 0 to 110 degrees and on VA examination in August 2021, flexion of the right knee after flare-ups and with repeated use over a period of time was from 0 to 75 degrees. However, on his May 2018 and August 2021 VA examinations, the Veteran reported flare-ups as he had moderate to severe flare-ups that lasted 2 days to 2 weeks. Additionally, on VA examination in August 2021, it was noted that the Veteran was unable to perform most moderate to high impact activities including running, marching, jumping and prolonged standing and he was also unable to walk more than 1 mile. There was also crepitus of the right knee on his August 2021 VA examination while both the May 2018 and August 2021 examiners noted that the Veteran's ability to work was impacted. Based on the reported symptomatology of the Veteran's reported functional impairment at his VA examinations, the Board finds that when affording the Veteran the benefit of the doubt that a higher initial 30 percent rating is warranted for the Veteran's right knee disability for limitation of motion. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca, 8 Vet. App. 202. However, while the Board finds that the Veteran's right knee disability warrants an initial higher 30 percent disability rating, the evidence does not demonstrate that a rating is warranted for an evaluation in excess of 30 percent. The Board notes that the maximum rating for limited flexion of the knee does not exceed 30 percent. Hence, Diagnostic Code 5260 is inapplicable. As noted above, to warrant a rating in excess of 30 percent for the right knee, the Veteran would have to be found to have extension limited to 30 degrees. However, the evidence reflects that the Veteran had full extension of the right knee without objective evidence of painful motion. There is no indication that the Veteran ever had extension of the right knee limited to 30 degrees or more, even with consideration of the DeLuca factors, to warrant a disability rating in excess of 30 percent under Diagnostic Code 5261. As noted in the Parties in the May 2020 JMPR, the Veteran testified that he had right knee instability as his knee wobbled and the major instability occurred when he was lifting a stretcher during his job as a paramedic. The Board also notes that the Veteran has credibly and consistently maintained throughout the appeal that he has had right knee instability. However, the Board finds the most probative evidence demonstrates that there is no history of recurrent patellar subluxation/dislocation or knee instability. In making these findings, the Board is cognizant of the duty to consider and weigh all pertinent evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (it is the "duty [of] the Board to analyze the credibility and probative value of evidence"); Owens v. Brown, 7 Vet. App. 429, 433 (1995) (it is the province of the Board to weigh and assess the evidence of record). The Board also notes that a Veteran is considered competent to report symptoms that are capable of ordinary observation, and objective medical evidence is not required to establish knee instability under Diagnostic Code 5257. English v. Wilkie, 30 Vet. App. 347 (2018). The Board however finds the objective medical evidence is more probative on the issue of instability of the right knee than the Veteran's lay assertions. As noted above, weight is given to the medical opinion provided by the examiners during the October 2013, May 2018 and August 2021 VA examinations because they are well-supported by the objective clinical findings and is consistent with past examination findings. Some weight is given to the Veteran's lay testimony, but the Board finds the objective examination findings regarding instability to be more probative. In coming to this conclusion, the Board reviewed the entire medical record and the Veteran again did not exhibit knee instability as the October 2013, May 2018 and August 2021 VA examinations have all specifically found that there is no showing of instability even upon specific instability testing. Notably, per the October 2020 Board remand instructions, the August 2021 VA examiner, after noting the Veteran's reports of instability, specifically indicated that there was no history of joint instability of the right knee and there were no findings of joint instability of the right knee as the right knee anterior instability test, posterior instability test, medial instability test and lateral instability test results were all normal. Based on this, the Board finds the preponderance of the evidence is against finding the Veteran has right knee instability. Thus, a separate rating under Diagnostic Code 5257 for recurrent subluxation and lateral instability is not warranted. The Board has also considered other diagnostic codes to determine if higher evaluations are warranted for a right knee disability. However, evaluation of the relevant evidence of record reflects that the record contains no evidence of ankylosis, malunion or nonunion of the tibia and fibula, or genu recurvatum. Thus, Diagnostic Codes 5256, 5262, and 5263 do not apply. The Board additionally notes that the June 2019 decision granted entitlement to an initial separate 10 percent disability rating for symptomatic removal of the semilunar cartilage under Diagnostic Code 5258. As noted by the Parties in the September 2020, this finding was not to be disturbed and the Veteran has not expressed disagreement with this initial 10 percent rating. Accordingly, the Board finds that an initial 30 percent rating, but no higher, for a right knee disability under Diagnostic Code 5260 is warranted. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James A. DeFrank, 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.