Citation Nr: 21069309 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 11-18 701 DATE: November 18, 2021 ORDER Entitlement to an evaluation in excess of 10 percent for left knee osteoarthritis based on limitation of flexion for the period prior to December 11, 2017 is denied. Entitlement to an evaluation in excess of 20 percent for left knee osteoarthritis based on limitation of flexion for the period beginning December 11, 2017 is denied. Entitlement to an evaluation in excess of 10 percent for left knee instability is denied. Entitlement to a compensable evaluation for limitation of extension of the left knee is denied. Entitlement to a separate evaluation of 20 percent, but no higher, for left knee meniscus condition for the period beginning July 30, 2021 is granted. FINDINGS OF FACT 1. It is not shown that the Veteran's left knee disability resulted in left knee flexion limited to 30 degrees or less at any time during the period on appeal. 2. The evidence of record does not show that the Veteran has had moderate level of left knee lateral instability at any time during the period on appeal. 3. For the period beginning February 7, 2021, the Veteran had no ligament tear, repaired or unrepaired, causing persistent instability, and there has not been a need for prescription by a medical provider for assistive devices for ambulation associated with his service-connected left knee disability. 4. The Veteran's left knee extension was not limited to more than 5 degrees at any time during the period on appeal. 5. The VA examination conducted on July 30, 2021 revealed that the Veteran now has a left knee meniscal tear and has symptoms of frequent episodes of joint "locking" and frequent episodes of joint pain associated with the left knee meniscal condition. CONCLUSIONS OF LAW 1. For the period prior to December 11, 2017, the criteria for an evaluation in excess of 10 percent for left knee osteoarthritis based on limitation flexion have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.14, 4.40, 4.49, 4.71a, Diagnostic Code 5003-5260 (2020). 2. For the period beginning December 11, 2017, the criteria for an evaluation in excess of 20 percent for left knee osteoarthritis based on limitation flexion have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.14, 4.40, 4.49, 4.71a, Diagnostic Code 5003-5260 (2020). 3. The criteria for an evaluation in excess of 10 percent for left knee instability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.14, 4.40, 4.49, 4.71a, Diagnostic Code 5257 (2020). 4. The criteria for a compensable evaluation for limitation of extension of the left knee have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.14, 4.40, 4.49, 4.71a, Diagnostic Code 5003-5261 (2020). 5. Resolving reasonable doubt in the Veteran's favor, for the period beginning July 30, 2021, the criteria for a separate evaluation for evaluation of 20 percent, but no higher, for left knee meniscus condition have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.14, 4.40, 4.49, 4.71a, Diagnostic Code 5258 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1985 to November 1985. This case is before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). During the appeal period, the RO increased the disability rating for left knee osteoarthritis based on limitation of flexion from 10 percent to 20 percent, effective December 11, 2017. See December 2017 Rating Decision. In July 2018, the Board denied the Veteran's entitlement to evaluation in excess of 10 percent for left knee disability prior to December 11, 2017 and in excess of 20 percent thereafter. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In July 2019, the Court granted a Joint Motion for Remand to vacate the Board's July 2018 decision and remanded the matter for readjudication. The Court found the Board erred by failing to address whether the Veteran was warranted a separate evaluation for left knee instability. In November 2019, the Board remanded the matter for further development. Notably, in July 2020, the RO granted a separate evaluation for left knee instability at 10 percent disabling, effective June 21, 2010. See July 13, 2020 Rating Decision. The Board notes that the effective date of this grant is the date of the Veteran's increased rating claim for his service-connected left knee disability. Further, in August 2021, the RO granted additional evaluation for limitation of extension of the left knee at 0 percent disabling, effective July 30, 2021. See August 16, 2021 Rating Decision. Now the matter is returned to the Board. The Board will examine whether the Veteran is warranted higher evaluations for his currently service-connected left knee osteoarthritis based on limitation of flexion (Diagnostic Code 5260), left knee instability (Diagnostic Code 5257), and limitation of extension of the left knee (Diagnostic Code 5261). A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule). See generally 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. See 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2020). Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.27 (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. Also, in cases where an initially assigned disability evaluation has been disagreed with, it is 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). 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 (2020). 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 (2020). 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 (2020). The intent of Rating Schedule is to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2020). VA has a duty to acknowledge and to consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. See Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). Where there is a question as to which of two ratings to apply, VA will assign the higher rating if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7 (2020). Otherwise, it will assign the lower rating. Id. Separate evaluations may be assigned for limitation of flexion and extension of the same joint. See VAOPGCPREC 09-04 (September 17, 2004). Specifically, when a veteran has both a compensable level of limitation of flexion and a compensable level of limitation of extension of the same leg, the limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg. Id. The normal range of motion of the knee is 0 degrees of extension and 140 degrees of flexion. See 38 C.F.R. § 4.71, Plate II (2019). 1. Left knee limitation of flexion (Diagnostic Code 5260) First, the Board will examine whether the Veteran was entitled to an evaluation in excess of 10 percent for left knee osteoarthritis based on limitation of flexion for the period prior to December 11, 2017. As noted above, the Veteran filed a claim for increased rating for his service-connected left knee disability on June 21, 2010. Limitation of flexion of the leg is evaluated under Diagnostic Code 5260. In pertinent part, a 20 percent evaluation is warranted for flexion limited to 30 degrees; and a maximum 30 percent evaluation is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2020). On August 2010 VA examination, the Veteran endorsed constant knee pain with weight-bearing and stiffness in the morning. The Veteran provided that he must move his legs individually over the side of the bed when getting up at times and his legs are initially unstable with frequent possibility of giving way. The Veteran reported that the severity of pain and dysfunction varies, and he is able to ascend or descend a flight of stairs if he uses both handrails. The Veteran denied taking medications for his knee condition, but stated that ice and heat provide some relief. The examiner noted that the Veteran's flare-ups are unpredictable, and he sometimes uses a walker or crutch around the house when his symptoms are bad. The Veteran's left knee flexion was to 105 degrees, which was limited by muscle mass, and left knee extension was to 0 degrees without pain. Anterior and posterior drawer test for the left knee was negative. Stressing the medial and lateral collateral ligaments revealed no evidence of laity. There was no muscular atrophy in the upper or lower portions of either extremity. The examiner observed that the Veteran's gait was lumbering and asymmetric favoring the right knee, and his initial movements from the chair to the examining table revealed momentary instability. The examiner provided a diagnosis of bilateral degenerative arthritis of the knees. During a June 2013 orthotics consult, the provider noted that the Veteran was limping while walking in for the appointment due to left knee pain. On February 2014 VA examination, the examiner noted the Veteran's diagnoses of bilateral degenerative joint disease and limited flexion of the left knee. The Veteran reported flare-ups, and the examiner provided that the Veteran loses an additional five degrees of flexion in the knee during a flare-up. The Veteran's left knee flexion was to 60 degrees, with pain beginning at 60 degrees, and left knee extension was to 0 degrees, with no evidence of painful motion. There was no additional limitation of range of motion following a repetitive-use testing. Functional loss and impairment of the left knee included less movement than normal, pain on movement, disturbance of locomotion, and interference with sitting, standing, and weight-bearing. There was tenderness or pain to palpation to the left knee. Joint stability testing was all normal. The examiner noted that the Veteran did not use any assistive devices as a normal mode of locomotion. There was no X-ray evidence of patellar subluxation. With regard to functional limitations, the examiner provided that the Veteran was unable to do work that involves standing for more than one hour at a time. The examiner noted that the Veteran's bilateral degenerative joint disease was the result of his morbid obesity; thus, the left knee degenerative joint disease did not represent a progression of his service-connected limited flexion of the left knee. A May 2017 private treatment record indicates that the Veteran had slow gait without specific antalgic pattern. It was noted that there was mild effusion of the left knee with tenderness to palpation on the medial joint line. Range of motion testing revealed motion from 0 to 120 degrees for the left knee. There was no laxity with testing of collateral or cruciate ligaments. A June 2017 private treatment record provides that the Veteran had a third injection to his left knee, and he was able to ambulate without assistive devices. On December 2017 VA examination, the examiner noted that the May 2008 and April 2013 MRIs document severe degenerative arthritis in the left knee. The Veteran reported chronic daily left knee pain, which increases with prolonged standing, ambulation, or sitting with knees bent. The Veteran attributed his obesity to not being able to exercise, and denied flare-ups of the left knee. The Veteran stated that he sees private orthopedists for his knees and had knee injections in June 2017, which did not provide significant improvement. The Veteran's functional limitations are reported as inability to run, slow walking with a cane, slow in using the stairs, and inability to jump or squat. The Veteran's left knee flexion was to 65 degrees and extension was to 0 degrees. The examiner indicated that pain was noted on flexion, but did not cause functional loss. There was no additional functional loss or range of motion loss following repetitive-use testing. There was evidence of pain with weight-bearing, and moderate to severe pain on palpation of the left knee, but no evidence of left knee pain on passive range of motion testing or when the joint was used in non-weight-bearing. The Veteran did not have reduction in muscle strength, muscle atrophy, or ankylosis of the left knee. The examiner noted that there is no history of recurrent subluxation, lateral instability, or recurrent effusion. Joint stability testing was all normal. It was noted that the Veteran uses a cane regularly for gait unsteadiness. The examiner provided that the Veteran could not be employed in a physically-demanding occupation due to his left knee disability. Based on above, the Board finds that, for the period prior to December 11, 2017, the evidence of record does not show that the Veteran's left knee flexion was limited to 30 degrees or less due to his service-connected left knee disability. Consequently, the Board finds that the Veteran entitlement to an evaluation in excess of 10 percent for left knee osteoarthritis based on limitation of flexion for the period prior to December 11, 2017 is not warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.14, 4.40, 4.49, 4.71a, Diagnostic Code 5003-5260 (2020). As the Veteran's disability rating for the left knee disability was increased to 20 percent, effective December 11, 2017, the Board will now examine whether the Veteran is entitled to a rating higher than 20 percent for the period beginning December 11, 2017. On July 2021 VA examination, the Veteran's left knee flexion ended at 95 degrees and extension ended at 5 degrees. The Veteran exhibited pain for both flexion and extension. The examiner indicated that there is limitation of motion of flexion and extension attributable to pain, and the flexion endpoint is 70 degrees and extension endpoint is 0 degrees with limitation of motion specifically attributable to pain, weakness, fatigability, or incoordination. The Veteran was able to perform repetitive-use testing with at least 3 repetitions, but his left knee flexion was further limited to 70 degrees due to pain and lack of endurance. There was objective of crepitus of the left knee and localized tenderness or pain on palpation to the left knee joint. The examiner indicated that the examination was not being conducted during a flare-up; but pain, fatigability, weakness, and lack of endurance significantly limit the Veteran's left knee functional ability with flare-ups. As to the additional factors contributing to the left knee disability, the examiner provided interference with standing and sitting, disturbance of locomotion, and swelling. The Veteran did not have muscle atrophy or ankylosis of the left knee. The examiner noted that there is no recurrent subluxation or persistent instability or a ligament tear (sprain) involving the left knee. The examiner provided that the Veteran does not require a prescription by a medical provider for assistive devices, e.g., cane, walker, crutches, or brace. There was no recurrent patellar instability of involving the left knee. The examiner indicated that the Veteran does not currently have or has been diagnosed with a recurrent patellar dislocation, shin splints, stress fractures, or any other tibial or fibular impairment. However, the examiner provided that the Veteran currently has a left knee meniscal tear condition with symptoms of frequent episodes of joint "locking" and frequent episodes of joint pain. The examiner noted the Veteran's constant use of left knee brace, regular use of a cane, and occasional use of a walker. The examiner also provided that the Veteran's left knee disability impacts his ability to perform occupational task, because he cannot stand, use stairs, lift, carry any weight, kneel, or squat while working. In light of above, the Board finds that, for the period beginning December 11, 2017, the evidence of record does not show that the Veteran's left knee flexion was limited to 15 degrees or less due to his service-connected left knee disability. In fact, it is not shown that the Veteran's left knee disability resulted in left knee flexion limited to 30 degrees or less at any time during the period on appeal. Consequently, the Veteran entitlement to an evaluation in excess of 20 percent for left knee osteoarthritis based on limitation of flexion for the period beginning December 11, 2017 is not warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.14, 4.40, 4.49, 4.71a, Diagnostic Code 5003-5260 (2020). 2. Left knee instability (Diagnostic Code 5257) The Veteran is service-connected for left knee instability at 10 percent disabling, effective June 21, 2010. Prior to February 7, 2021, under Diagnostic Code 5257, a 20 percent evaluation was warranted for moderate symptoms of recurrent subluxation or lateral instability of a knee; and a 30 percent evaluation was warranted for severe symptoms of recurrent subluxation or lateral instability of a knee. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2020). During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021, which included revisions to Diagnostic Code 5257. 85 Fed. Reg. 230 (Nov. 30, 2020). Under the revised Diagnostic Code 5257, a 20 percent evaluation is warranted for one of the following: (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; or (b) 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; and a maximum 30 percent evaluation is warranted 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. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2021). With this revision, the version of regulation that is more favorable to the Veteran will be used to evaluate the Veteran's left knee instability for the period beginning February 7, 2021. After a review of the evidence, the Board finds that the evidence of record does not show that the Veteran has had moderate level of left knee lateral instability at any time during the period on appeal. For example, none of the VA examiners found the Veteran's history of recurrent subluxation, lateral instability of the left knee. The evidence also does not contain any record that suggests the Veteran's left knee symptoms associated with a moderate level of instability. The evidence shows that the Veteran has not had any falls due to the left knee instability. The Board notes that the August 2010 VA examiner observed that the Veteran had lumbering gait and his initial movements from the chair to the examining table revealed momentary instability. Also, the Veteran reported that his left knee is initially unstable in the morning at times. However, the Board concludes that the symptoms of the Veteran's left knee do not amount to a moderate level, and the current evaluation of 10 percent for slight level of left knee instability is appropriate. As to the period beginning February 7, 2021, the Board also considered whether the application of the revised Diagnostic Code 5257 is more favorable to the Veteran. However, in light of the July 2021 VA examiner's findings of no ligament tear, repaired or unrepaired, causing persistent instability, and no need for prescription by a medical provider for assistive devices for ambulation, the Board finds that applying the revised version of Diagnostic Code 5257 does not yield a disability rating that is higher than the current 10 percent rating. Consequently, the Veteran's entitlement to an evaluation in excess of 10 percent for left knee instability is not warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.14, 4.40, 4.49, 4.71a, Diagnostic Code 5257 (2020). 3. Left knee limitation of extension (Diagnostic Code 5261) The Veteran is service-connected for limitation of extension of the left knee at noncompensable rating (0 percent), effective July 30, 2021. Limitation of extension of the leg is evaluated under Diagnostic Code 5261. In pertinent part, a 10 percent evaluation is warranted for extension limited to 10 degrees; a 20 percent evaluation is warranted for extension limited to 15 degrees; a 30 percent evaluation is warranted for extension limited to 20 degrees; a 40 percent evaluation is warranted for extension limited to 30 degrees; and a maximum 50 percent evaluation is warranted for extension limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261 (2020). After a review of the evidence discussed above, the Board finds that the Veteran's left knee extension was not limited to more than 5 degrees at any time during the period on appeal. Consequently, the Veteran's entitlement to a compensable evaluation for limitation of extension of the left knee is not warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.14, 4.40, 4.49, 4.71a, Diagnostic Code 5003-5261 (2020). 4. Left knee meniscal condition (Diagnostic Code 5258) The Board notes that the Veteran is not currently receiving a separate evaluation for left knee meniscal condition. However, as provided above, the VA examination conducted on July 30, 2021 revealed that the Veteran now has a left knee meniscal tear. The July 2021 VA examiner noted the Veteran's symptoms of frequent episodes of joint "locking" and frequent episodes of joint pain associated with his left knee meniscal condition. Under Diagnostic Code 5258, a maximum 20 percent evaluation is warranted for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. 38 C.F.R. § 4.71a, Diagnostic Code 5258 (2020). In light of the new findings made during the July 2021 VA examination regarding the Veteran's left knee meniscal condition and its associated symptoms, the Board resolves reasonable doubt in the Veteran's favor and finds that the Veteran is entitled to a separate evaluation for the disability under Diagnostic Code 5258 for the period beginning July 30, 2021, and an evaluation of 20 percent, but no higher, is warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.14, 4.40, 4.49, 4.71a, Diagnostic Code 5258 (2020). An evaluation higher than 20 percent is not warranted here as the maximum disability rating available under Diagnostic Code 5258 is 20 percent. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. E. Kim, 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.