Citation Nr: 21069940
Decision Date: 11/22/21	Archive Date: 11/22/21

DOCKET NO. 17-17 375
DATE:  November 22, 2021

ORDER

An initial disability rating in excess of 10 percent for degenerative joint disease (DJD) of the left knee is denied.

An initial disability rating in excess of 10 percent for degenerative joint disease (DJD) of the right knee is denied.

FINDINGS OF FACT

1. The preponderance of the evidence does not show limitation of flexion of the left knee to 30 degrees, or recurrent subluxation or lateral instability; or dislocation of the semilunar cartilage accompanied by frequent episodes of "locking," pain, and effusion into the joints.

2. The preponderance of the evidence does not show limitation of flexion of the right knee to 30 degrees, or recurrent subluxation or lateral instability; or dislocation of the semilunar cartilage accompanied by frequent episodes of "locking," pain, and effusion into the joints.

CONCLUSIONS OF LAW

1. The criteria for an evaluation in excess of 10 percent for the Veteran's right knee disability, degenerative joint disease, have not met. 38 C.F.R. §§ 1155, 5103, 5103A, 5107, 7104 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a.

2. The criteria for an evaluation in excess of 10 percent for the Veteran's right knee disability, degenerative joint disease, have not been met. 38 C.F.R. §§ 1155, 5103, 5103A, 5107, 7104 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from May 1988 to May 1992 and from October 2001 to September 2002.

This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The Board remanded the issues in February 2019 to provide the Veteran with an adequate examination. Barr v. Nicholson, 21Vet. App. 303, 312 (2007). In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the United States Court of Appeals for Veterans Claims (Court) determined that the mere lack of direct observation of functional limitations after repetitive use or during flare-ups is an insufficient basis for not estimating its functional effects. The VA knee examination in December 2016 did not comply with the requirements of Sharp. Though the examiner stated that it was not possible to opine as to the Veteran's functional loss during flares without resorting to mere speculation, the examiner failed to provide an adequate rationale for this conclusion. 

The claims have returned to the Board following its February 2019 remand. The Board is satisfied there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998).

Increased Rating

The initial grant of service connection of bilateral knees in April 2013 was for 10 percent effective April 13, 2012, the date of the Veteran's compensation application. The Veteran gave a timely notice of disagreement with that decision in February 2014, and a de novo review in December 2016, by a decision review officer granted separate service connections for each knee at 10 percent with the same effective date. The Veteran appealed that decision in February 2017 on a Form 9 appeal to the Board. The Board remanded the claims for an adequate examination as discussed above. An adequate VA examination was provided in October 2019, and the RO again denied increased ratings in an August 2020 supplemental statement of the case.

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. See 38 U.S.C. § 1115; 38 C.F.R. §§ 3.321(a), 4.1, 4.21. Disability evaluations are based upon the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. See 38 C.F.R. § 4.10.

Separate diagnostic codes identify the various disabilities. See 38 C.F.R. § 4.27. VA has a duty to acknowledge and to consider all regulations that are potentially applicable to 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 evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. §§ 4.7, 4.21. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of the Veteran's disability, such doubt will be resolved in favor of the claimant. See 38 C.F.R. § 4.3.

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is the primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In determining the severity of a disability, the Board is required to consider the potential application of various other VA regulations, regardless of whether they were raised by the Veteran, as well as the entire history of the Veteran's disability. See 38 C.F.R. §§ 4.1, 4.2; see also Schafrath, 1 Vet. App. at 595. Separate evaluations may be assigned for separate periods of time, or staged, where factual findings show distinct time periods during which the Veteran's disability exhibits symptoms that warrant the application of different ratings. See Fenderson v. West, 12 Vet. App. 119, 126-28 (1999); see also Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). However, the evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; separate ratings may be assigned for distinct disabilities resulting from the same injury only where the symptomatology for one condition is not duplicative or overlapping with the symptomatology of the other condition. See 38 C.F.R. § 4.14; see also Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994).

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. See 38 C.F.R. § 4.40. It is essential that the examination on which disability ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. See id. The functional loss may be due to absence of part, or all, of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the Veteran undertaking the motion. See id. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. See id.

The evaluation of joint disabilities must involve the following factors: less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); weakened movement (due to muscle injury, disease, or injury of peripheral nerves, divided or lengthened tendons, etc.); excess fatigability; incoordination and impaired ability to execute skilled movements smoothly; and pain on movement, swelling, deformity, or atrophy of disuse. See 38 C.F.R. § 4.45. Instability of station, disturbance of locomotion, interference with sitting, standing, and weight-bearing must also be considered. See id. A rating based on painful motion of a joint may be appropriate regardless of whether the painful motion stemmed from joint or periarticular pathology. See Burton v. Shinseki, 25 Vet. App. 1, 4-5 (2011).

Functional loss caused by pain must be rated as though it were caused by another factor, such as deformity, atrophy, adhesions, or any of the other factors cited above. See Schafrath, 1 Vet. App. at 592. In rating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. See id.

Painful motion is an important factor of disability, and facial expressions such as wincing exhibited in the presence of pressure on or manipulation of the affected joints should be carefully noted and related to the affected joints. See 38 C.F.R. § 4.59. Actually painful, unstable, or malaligned joints due to healed injury are at the very least entitled to the minimum compensable rating for the affected joint. See id. Crepitation within the joint structures or the soft tissues, such as the tendons or ligaments, should be noted carefully as points of contact which are diseased, and flexion elicits such manifestations. See id. 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. See id. When adjudicating disabilities evaluated based upon limitation of motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 pertaining to functional impairment must be applied, and examinations must assess whether the disability at issue manifested weakened movement, excess fatigability, or incoordination. See DeLuca v. Brown, 8 Vet. App. 202, 205-07 (1995). Such inquiry should not be limited to muscles or nerves, and, if feasible, these determinations should be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, or incoordination. See id.

In order to constitute functional loss, pain must affect some aspect of the normal working movements of the body, such as excursion, strength, speed, coordination and endurance. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). Although pain may cause functional loss, pain itself does not constitute functional loss and is merely one factor to be considered when evaluating functional impairment. See id. However, 38 C.F.R. § 4.40 does not require a separate rating for pain, but rather provides guidance for determining ratings under other diagnostic codes assessing musculoskeletal function. See Spurgeon v. Brown, 10 Vet. App. 194, 196 (1997).

Once the evidence has been assembled in the record, it is the Board's responsibility to evaluate the evidence. See 38 U.S.C. § 7104(a). The Board shall consider all competent lay and medical evidence of record, analyze the credibility and probative value of the evidence, and provide reasons for rejecting any favorable material evidence. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In addressing lay evidence and determining its probative value, the Board must assess both its competency, a legal concept determining whether testimony may be heard and considered, and its credibility, a factual determination regarding its probative value. See Layno v. Brown, 6 Vet. App. 465, 469 (1994).

Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall afford the claimant the benefit of the doubt, see 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3, and where the evidence is in relative equipoise, the claimant shall prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). The preponderance of the evidence must weigh against the claim in order to warrant its denial. See Alemany v. Brown, 9 Vet. App. 518, 519-20 (1996).

Diagnostic Codes (DC) 5256 through 5263 set forth the relevant provisions for disabilities of the knee. See 38 C.F.R. § 4.71a. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the assigned rating; the additional code is shown after the hyphen. See 38 C.F.R. § 4.27.

DC 5256 governs ankylosis of the knee and provides a 30 percent rating for knee ankylosis in a favorable angle in full extension, or in slight flexion between 0 degrees and 10 degrees. A 40 percent rating is provided for knee ankylosis in flexion between 10 and 20 degrees. A 50 percent rating is provided for knee ankylosis in flexion between 20 degrees and 45 degrees, and a 60 percent rating is provided for knee ankylosis that is extremely unfavorable, in flexion at an angle of 45 degrees or more. The Rating Schedule provides that the normal range of motion of the knee is from zero degrees of extension to 140 degrees of flexion. See 38 C.F.R. § 4.71, Plate II.

DC 5257 governs other impairment of the knee, providing respective ratings of 10, 20, and 30 percent for slight, moderate, or severe recurrent subluxation or lateral instability of the knee. See 38 C.F.R. § 4.71a. Because the terms "slight," "moderate," and "severe" are not defined in the Rating Schedule, instead of applying a mechanical formula, the Board must evaluate all the evidence of record to ensure that its adjudication of an increased rating claim is equitable and just. See 38 C.F.R. § 4.6.

DC 5258 provides a maximum 20 percent rating for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. See 38 C.F.R. § 4.71a.

DC 5259 provides a maximum 10 percent rating for removal of semilunar cartilage that is symptomatic. See id. 

DC 5260 governs the limitation of leg flexion and provides a zero percent rating for flexion limited to 60 degrees, 10 percent for flexion limited to 45 degrees, 20 percent for flexion limited to 30 degrees, and a maximum 30 percent rating for flexion limited to 15 degrees. See id.

DC 5261 governs the limitation of leg extension and provides a zero percent rating for extension limited to 5 degrees, 10 percent for extension limited to 10 degrees, 20 percent for extension limited to 15 degrees, 30 percent for extension limited to 20 degrees, 40 percent for extension limited to 30 degrees, and a maximum 50 percent rating for extension limited to 45 degrees. See id.

DC 5262 provides that impairment of the tibia and fibula characterized by malunion with slight knee or ankle disability warrants a 10 percent evaluation, malunion with moderate knee or ankle disability warrants a 20 percent evaluation, and malunion with marked knee or ankle disability warrants a 30 percent rating. See id. Impairment of the tibia and fibula manifesting nonunion with loose motion and requiring a brace warrants a maximum 40 percent rating. See id.

DC 5263 provides a maximum 10 percent rating for genu recurvatum that is acquired and traumatic and accompanied by objectively demonstrated weakness and insecurity in weight-bearing. See id.

DC 5010 provides that traumatic arthritis established by X-ray findings is rated as degenerative arthritis. DC 5003 provides that degenerative arthritis established by X-ray findings is rated based on limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a 10 percent rating may be assigned for each such major joint or group of minor joints so affected. See 38 C.F.R. § 4.71a; DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, X-ray evidence of arthritis involving two or more major or minor joint groups will warrant a 10 percent rating, and two or more major or minor joint groups with occasional incapacitating exacerbations will warrant a 20 percent rating. The 10 percent and 20 percent ratings based on X-ray findings may not be combined with ratings based on limitation of motion. See 38 C.F.R. § 4.71a, DC 5003, Note 1. 

The assignment of a particular DC depends upon the facts of each case, and the Board is authorized to choose an appropriate DC that is supported by both the evidence of record and a sufficiently articulated rationale. See Butts v. Brown, 5 Vet. App. 532, 538-39 (1993). Moreover, service connection for a disability is not severed when the DC assigned to that disability is revised in order to more accurately reflect the Veteran's relevant medical history, diagnoses, and demonstrated symptomatology. See Read v. Shinseki, 651 F.3d 1296, 1302 (Fed. Cir. 2011).

VA recently amended the criteria for rating musculoskeletal disabilities effective from February 7, 2021. These new regulations apply to all applications for benefits received by VA or that are pending before the Agency of Original Jurisdiction (AOJ) on or after February 7, 2021. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. The Board may not apply a current regulation prior to its effective date unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal.

Since February 7, 2021, the revised rating criteria under DC 5257 now provides disability ratings for either recurrent subluxation or instability or for patellar instability.

For patellar instability under DC 5257, 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. A 20 percent rating is assigned 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 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.

For recurrent subluxation or instability, the revised DC 5257 provides a 10 percent rating for a 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. A 20 percent rating is for one of the following: (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation; (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. A 30 percent rating is assigned 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.

Note (1): For patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon.

Note (2): A surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a , Diagnostic Code 5257).

DCs 5260 and 5261 were not changed by the February 7, 2021 revisions.

1. An initial disability rating in excess of 10 percent for degenerative joint disease of the left knee

2. An initial disability rating in excess of 10 percent for degenerative joint disease (DJD) of the right knee

The Veteran contends that a higher rating should be given his knee disabilities than the separate 10 percent ratings for each knee currently assigned.

In the most recent VA examination in October 2019, the examiner diagnosed the Veteran with degenerative joint disease (DJD) of the left and right knees with a 1992 year of diagnosis. 

The examiner examined both knees and interviewed the Veteran and found left knee locks up. Right knee does not lock. Right knee has constant pain. Left does not. Left knee pain is a couple times a week for a couple hours, and the Veteran, in contrast to the previous VA examination, reported no flare-ups. The Veteran says he has functional impairment of the joints including but not limited to repeated use over time. The Veteran reports increased right knee pain with kneeling episodes, and stair climbing episodes. Per Veteran, he avoids climbing stairs due to his knee condition. The Veteran also reports increased left knee pain with kneeling episodes and hyper flexion of left knee episodes.

Initial range of motion (ROM) right knee: Flexion (0 to 140): 0 to 120 degrees. Extension (140 to 0): 120 to 0 degrees. Left knee ROM: Flexion (0 to 140): 0 to 120 degrees. Extension (140 to 0): 120 to 0 degrees. The same ROMs were found for the Veteran's left knee. When asked if the ROM is outside of normal range for both knees but is normal for the Veteran (for reasons other than a knee condition, such as age, body habitus, neurologic disease), the examiner noted that the, "Veteran is morbidly obese, BMI: 43.4. It is unknown to what degree Veteran's body habitus is contributing to his decreased knee range of motion."

The Veteran was tested for weight bearing, non-weight bearing, and repetitive use with at least three repetitions, with both left and right knees. No evidence of pain with weight bearing, non-weight bearing, and no additional functional loss or range of motion after three repetitions. The examiner found the examination medically consistent with the Veteran's statement describing functional loss with repetitive use over time. The examiner stated Pain and lack of endurance from repetitive use over time cause functional loss that can be described in terms of range of motion for both knees: Flexion (0 to 140): 0 to 115 degrees and Extension (140 to 0): 115 to 0 degrees. The examiner found no ankylosis of either knee, or no current "shin splints." The examiner noted the Veteran does not now have nor has he ever had a meniscus (semilunar cartilage) condition. Passive motion bilateral knees, extension: 0 degrees, flexion: 125 degrees. Active motion bilateral knees, extension: 0 degrees, flexion: 120 degrees. The Veteran has no scars (surgical or otherwise) related to any conditions or to the treatment of any conditions listed in the Diagnosis Section above.

In December 2016, the Veteran underwent a VA examination to determine the severity of the service-connected bilateral knees. The 2016 examiner also found DJD. The Veteran reported flare-ups, but the examiner was unable to determine the extent of resulting disability during flare-ups. The Veteran reported a recent flare-up three months prior when he had to work on his knees. He said his knees hurt for two days. Initial right and left knee ranges of motion (ROM) are outside the normal ranges. Flexion (0 to 140): 0 to 130 degrees Extension (140 to 0): 140 to 0 degrees. The examiner found evidence of crepitus for both knees. The Veteran can perform repetitive use testing with at least three repetitions without additional functional loss or range of motion after three repetitions. The exam was not conducted immediately after repetitive use over time. The examiner is unable to say without mere speculation if pain, weakness, fatigability or incoordination significantly limit functional ability with repeated use over a period of time. There is no ankylosis of either the left or right knees. There is no history of recurrent subluxation or lateral instability or joint effusion. No shin splints, no meniscus condition, were found. The Veteran walks with steady gait using no assistive devices. The Veteran has no scars (surgical or otherwise) related to any conditions or to the treatment of any conditions listed in the Diagnosis Section above. Imaging studies of the knee have been performed and the results are available; degenerative or traumatic arthritis in both joints is documented. There is no evidence of pain on passive range of motion testing nor when the joints are used in non-weight bearing. Functional impact of the bilateral knees is that the Veteran would have difficulty with tasks requiring squatting or kneeling. Otherwise, no impairment for physical or sedentary tasks. At the time of this exam, the Veteran weighed 270 pounds, and the examiner encouraged him to get on an exercise program to lose some weight.

The Veteran had an initial VA knees exam in December 2012. At that time, he was diagnosed with bilateral patellar tendonitis and bilateral knee degenerative joint disease (DJD). The Veteran reports that flare-ups do not impact the function of the knees and/or lower legs. Right and left knee flexion is to 135 degrees with no objective evidence of painful motion. there is no limitation of extension. Examiner states, "Decreased ROM of both knee flexion due to thigh obesity is possible." The Veteran can perform repetitive-use testing with 3 repetitions for both knees. Flexion is to 135 degrees. and there is no limitation of extension; so, no additional limitation in ROM of the knees and lower legs following repetitive-use testing. Stability testing was performed for both knees. No instability was found. There is no evidence or history of recurrent patellar subluxation/dislocation. The Veteran does not now have nor has he ever had "shin splints." The Veteran has no meniscal conditions or surgical procedures for a meniscal condition. the Veteran has no scars (surgical or otherwise) related to any conditions or to the treatment of any conditions listed in the Diagnosis section above. The Veteran uses no assistive device(s) as a normal mode of locomotion. Imaging studies of the knees have been performed and the results are available: Degenerative or traumatic arthritis is documented.

In response to the three VA examinations that point to the Veteran's weight as a possible cause for his pain, the Veteran's representative says in his September 2021 post remand brief that it is irrelevant. They argue that, 

The Veteran has issues exercising due to his service-connected knees and back. His weight is a secondary issue due to those issues and should put favor to that of the Veteran as the service-connected issues continue to affect his health and social well-being.

Additionally, the representative argues the Veteran has shin splints, and should be concurrently rated under DC 5256.

The Board first finds that a higher evaluation for limitation of flexion is not warranted at any point during the appeal period. Specifically, as previously stated, a noncompensable evaluation is warranted where flexion is limited to 60 degrees. A 10 percent evaluation requires flexion limited to 45 degrees and a 20 percent requires limitation of flexion to 30 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. On examination, the lowest objective readings for the Veteran's flexion were 115 in the right and left knees. The Board has considered the Veteran's lay report of a flare-up during the 2016 VA examination. However, even when resolving all doubt in the Veteran's favor the Board finds no evidence that approximates limitation of flexion to the 30 degrees required for a higher rating. The Board notes that neither the Veteran nor his representative have argued that an increased rating in excess of 10 percent based on limitation of flexion is warranted. As such, and increased evaluation based on limitation of flexion is denied throughout the appeal period.

Similarly, a separate compensable rating for limitation of extension is not warranted under Diagnostic Code 5261. Specifically, the Veteran's extension was recorded as normal throughout this entire period. The Board finds no lay or medical evidence during the appeal period that more closely approximates the limitation of extension to 5 degrees needed to warrant a separate noncompensable rating or 10 degrees to warrant a separate compensable evaluation for limitation of extension.

Having addressed limitation of motion, the Board will now address the remaining diagnostic codes of the knee throughout the appeal period. As an initial matter, the Veteran has never reported, and the medical evidence does not support, a finding of any symptoms approximating ankylosis of either knee. Given the Veteran's representative September 2021 post remand brief, the Board carefully considered whether a separate rating under DC 5262 for shin splints was warranted.  In this regard, the Board notes that the Veteran reportedly stated in three VA examinations, that he does not have shin splints. Additionally, the Board finds that "shin splint" symptoms, which the Veteran has consistently at VA examinations reported he does not have, do not result in any condition approximating immobility and consolidation of the joint. This finding is supported by the medical evidence of record that has consistently found no ankylosis in the knees.

Consideration has been given to whether a separate compensable rating could be assigned for instability under Diagnostic Code 5257. The Veteran has not reported feelings of instability or giving way and consistently denied use of assistive devices. On physical examination throughout the appeal period, the examiners have explicitly found no objective evidence of lateral instability or subluxation. Specifically, instability and subluxation are conditions diagnosed based on medical testing including physical examination and imaging studies of the affected joint. In this case, both physical examination and imaging studies of the knee have not shown any ligament damage or instability in the bilateral knees. There is no basis for assigning a separate compensable rating under Diagnostic Code 5257.

The Board next finds that at no point during the appeal period is a higher or separate disability evaluation is warranted based on frequent episodes of "locking," pain, and effusion into the joint based on cartilage, semilunar, dislocated. 38 C.F.R. § 4.71a, Diagnostic Codes 5258. The December 2016 VA examiner noted evidence of crepitus. Here, the diagnostic code is very specific in what warrants assignment under the code. Any symptomatology based on cartilage, semilunar, dislocated, is compensable. At no point during the appeal period, has objective examination, including physical examinations and imaging studies of the knees, shown any meniscus, ligament, or cartilage, dysfunction or disability. As such, a separate rating under diagnostic code 5258 at any point during the appeal period is unwarranted.

Because the Veteran has not had nonunion of the tibia and fibula requiring a brace, or malunion of the tibia and fibula with either marked or moderate knee disability, a higher disability evaluation based on impairment of the tibia and fibula is not warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5262. Similarly, at no point was Genu recurvatum shown. Thus, a rating under this criterion is not warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5253. 

In sum, the Board finds a preponderance of the evidence is against entitlement to a rating in excess of 10 percent based on left and right knee disabilities. 38 C.F.R. § 4.71a

 

H. SEESEL

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Black, Jeffrey W.

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.