Citation Nr: 21070396 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 13-21 434 DATE: November 23, 2021 ORDER A rating in excess of 10 percent for residuals of left knee strain is denied. A separate 10 percent rating for left knee degenerative arthritis is granted. FINDING OF FACT For the entire period of appeal, the residuals of left knee strain manifest by pain, subjective reports of giving out or buckling, and degenerative arthritis, without evidence of ankylosis, recurrent subluxation or lateral instability, patellar instability, dislocated semilunar cartilage, removal of semilunar cartilage, flexion limited to at least 60 degrees, extension limited to at least 5 degrees, impairment of the tibia and fibula, or genu recurvatum. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for residuals of left knee strain are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257 (prior to February 7, 2021), Diagnostic Code 5257 (from February 7, 2021). 2. The criteria for a separate rating of 10 percent for left knee degenerative arthritis are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty in the Marine Corps from October 1969 to January 1974 and in the Army from January 1979 to September 1990. His decorations include a Vietnam Service Medal and a Vietnam Gallantry Cross. In September 2019, the Veteran testified at a videoconference hearing before the undersigned, and a transcript of that hearing is of record. The Board remanded the issue for further development in November 2019. In September 2020, the Board denied a rating in excess of 10 percent for the left knee disability. The Veteran appealed the issue to the United States Court of Appeals for Veterans Claims (Court), and in July 2021, the Court granted a Joint Motion for Remand (JMR), vacating and remanding the issue. Increased ratings for the left knee disability. 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. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the 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; DeLuca v. Brown, 8 Vet. App. 202, 205 (1995). It is essential that the examination on which ratings are based adequately portray the anatomical damage and functional loss with respect to all these elements. 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 or evidenced by visible behavior of the claimant undertaking the motion. Id. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Id. The factors involved in evaluating and rating disabilities of the joints include weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); excess fatigability; incoordination (impaired ability to execute skilled movements smoothly); more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); or pain on movement, swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45. Under 38 C.F.R. § 4.59, with any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitively related to the affected joints. The intent of the rating schedule is to recognize painful motion with joint or particular 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. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. In DeLuca v. Brown, 8 Vet. App. 202 (1995), the Court held that for disabilities evaluated on the basis of limitation of motion, VA was required to apply the provisions of 38 C.F.R. §§ 4.40 and 4.45, pertaining to functional impairment. The Court instructed that in applying these regulations, VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, or incoordination. Such inquiry was not to be limited to muscles or nerves. These determinations were, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, or incoordination. In Burton v. Shinseki, 25 Vet. App. 1 (2011), the Court held that consideration of 38 C.F.R. § 4.59 is not limited to cases involving arthritis, thereby providing for the possibility of a rating based on painful motion of a joint, regardless of whether the painful motion stemmed from joint or periarticular pathology. The Court held that pain must affect some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, and endurance to constitute functional loss. Mitchell v. Shinseki, 24 Vet. App. 32, 33, 43 (2011). Although pain may cause functional loss, pain, itself, does not constitute functional loss and is just one factor to be considered when evaluating functional impairment. Id. The Court explained in Mitchell that, pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. §§ 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Consequently, in rating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Board notes, however, that the Court has held that 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 (1997). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court provided a precedential interpretation of the final sentence of 38 C.F.R. § 4.59, which reads: "The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint." Specifically, the Court held "that the final sentence of § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities." The Court also stated that "to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of § 4.59." Finally, arthritis shown by x-ray studies is rated based on limitation of motion of the affected joint. Prior to February 7, 2021, when limitation of motion would be noncompensable under a limitation-of-motion code, but there is at least some limitation of motion, a 10 percent rating may be assigned for each major joint so affected. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010. Diagnostic Code 5010 (traumatic arthritis) directs that arthritis be rated under Diagnostic Code 5003 (degenerative arthritis), which states that degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. The 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 will not be combined with ratings based on limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003, Note 1. Effective February 7, 2021, under Diagnostic Code 5010, for post-traumatic arthritis, ratings are based on limitation of motion, dislocation, or other specified instability under the affected joint. If there are two or more joints effected, each rating shall be combined in accordance with § 4.25. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76460 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5010). Rating Criteria Here, the Veteran's left knee disability has been rated under Diagnostic Code 5257 for the entire period of appeal. The Board notes that 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. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453 -76463 (Nov. 30, 2020). 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. Prior to February 7, 2021, Diagnostic Code 5257, evaluated recurrent subluxation or lateral instability of a knee. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (prior to February 7, 2021). Slight recurrent subluxation or lateral instability warranted a 10 percent rating; moderate recurrent subluxation or lateral instability warranted a 20 percent rating; and severe recurrent subluxation or lateral instability warranted a 30 percent rating. The terms "mild," "moderate," and "severe" are not defined in the 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. Effective February 7, 2021, Diagnostic Code 5257 evaluates other impairment of the knee, to include recurrent subluxation or instability and patellar instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (from February 7, 2021). Regarding recurrent subluxation or instability, a 10 percent rating is assigned 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. A 20 percent rating is assigned for either (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 a brace and/or 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. Regarding patellar instability, a 10 percent rating is assigned 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 disability 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 a brace and either a cane or a walker. Note (1) provides that for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note (2) provides that 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). 38 C.F.R. § 4.71a, Diagnostic Codes 5256 through 5263 set forth other potentially relevant provisions for disabilities of the knee. Diagnostic Code 5256 governs ankylosis of the knee, Diagnostic Code 5258 provides for dislocated semilunar cartilage, Diagnostic Code 5259 provides for removal of semilunar cartilage, Diagnostic Code 5260 governs limitation of leg flexion, Diagnostic Code 5261 governs limitation of leg extension, Diagnostic Code 5262 provides for impairment of the tibia and fibula, and Diagnostic Code 5263 provides for genu recurvatum. VA General Counsel has provided that separate ratings under 38 C.F.R. § 4.71a, Diagnostic Code 5260 (limitation of flexion of the leg) and under Diagnostic Code 5261 (limitation of extension of the leg), may be assigned for disability of the same joint. VAOPGCPREC 9-2004 (September 2004). VA General Counsel indicated in VAOPGCPREC 23-97 (July 1997) that a veteran who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257, provided that a separate rating must be based upon additional disability. When a knee disorder is already rated under Diagnostic Code 5257, the veteran must also have limitation of motion under Diagnostic Code 5260 or 5261 in order to obtain a separate rating for arthritis. If the veteran does not at least meet the criteria for a zero percent rating under either of those codes, there is no additional disability for which a rating may be assigned. In VAOPGCPREC 9-98 (August 1998), General Counsel clarified that if a veteran has a disability rating under Diagnostic Code 5257, and there is also x-ray evidence of arthritis, a separate rating for arthritis could also be based on painful motion under 38 C.F.R. § 4.59. Given the findings of osteoarthritis, the General Counsel stated that the availability of a separate evaluation under Diagnostic Code 5003 in light of sections 4.40, 4.45, 4.59 must be considered. See Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). Absent x-ray findings of arthritis, limitation of motion should be considered under Diagnostic Codes 5260 and 5261. The claimant's painful motion may add to the actual limitation of motion so as to warrant a rating under Diagnostic Code 5260 or 5261. Analysis The Board finds that a rating in excess of 10 percent is not warranted at any point during the period of appeal (from September 30, 2009) under Diagnostic Code 5257, but a separate 10 percent rating for degenerative arthritis under Diagnostic Code 5003 is warranted. VA and private treatment records dated throughout the entire period of appeal consistently note reports of chronic left knee pain. VA treatment records dated in February 2009, prior to the period of appeal, the Veteran reported that his knee was giving out a lot and wanted a knee brace. He was noted to have a left knee strain with negative images and a brace was ordered. In March 2009, the Veteran was issued a hinged knee sleeve for joint stabilization (support and alignment), to decrease pain, and decrease range of motion. In September 2009, the Veteran requested a cane for bilateral knee pain. In an October 2009 VA examination, the Veteran reported left knee symptoms of pain, stiffness, occasional giving out (once every two months or so), and lack of endurance for high impact activities such as running or navigating stairs. When his knee gave out, or the pain increased, the Veteran was slowed but not precluded from his usual activities. He used a cane for stability and a slip-on sleeve type of brace. On physical examination, the left knee showed crepitance with patellar motion and had 120-130 degrees of flexion and zero degrees of extension. Stability testing results were normal and there was no pain, fatigue, weakness, lack of endurance, or incoordination on initial range of motion. After repetitive-use testing with three repetitions of movement, range of motion remained the same and there was objective evidence of painful motion, tenderness, and guarding of movement. The examiner indicated that the left knee strain had progressed to left knee degenerative joint disease (DJD). In October and November 2009, the Veteran was noted to have arthralgias with a positive rheumatoid factor (which was subsequently felt to be a false positive). X-rays of the knee showed "wear and tear changes" or "some mild DJD type changes." He was noted to have no significant synovitis, laxity, or instability of the knee. In February 2011, the Veteran went to a VA urgent care with complaints including pain in the left knee. His knee was noted to be benign in appearance without any instability. The Veteran had another VA knee examination in May 2013. He reported that he had fallen in the past two months due to giving way and had intermittent pain in the mornings and evenings. He denied having any locking or swelling. Walking caused flare-ups. On examination, the left knee had 140 degrees or greater of flexion and zero degrees of extension without objective evidence of painful motion. After repetitive-use testing with three repetitions, ranges of motion were unchanged. There was no tenderness or pain to palpation of the knee, muscle strength with the knee in flexion and extension was normal, and stability tests were all negative for any instability. The examiner indicated that x-rays were negative for degenerative or traumatic arthritis. In April 2014, the Veteran was issued a new left hinged knee sleeve. In April 2016, the Veteran again requested a new knee brace after a 15 pound weight gain in the last 3-4 months. The Veteran testified in the September 2019 Board hearing that he could not squat like he used to, and his knee ached and was painful. The Veteran was wearing a left knee brace, which gave him more structure and helped his knee not to buckle. He had not fallen, but he stumbled due to the knee. Every morning his knee was stiff, he had to step off curbs carefully, he avoided stairs when possible, and cold weather made it worse. The Veteran had a third VA knee examination in January 2020. The Veteran's diagnoses were noted to be left knee strain and left knee osteoarthritis. He reported symptoms of pain when walking more than 10 minutes, standing pain, and not doing sports or going to a gym because of his knees and back. He denied having flare-ups of the left knee condition. The examiner noted that there was no evidence of recent evaluation or treatment of the left knee condition, including no evidence of VA treatment for the left knee for at least five years, nor was there evidence of a need to escalate evaluation or care of the condition. On examination, the left knee had 105 degrees of flexion and zero degrees of extension with objective evidence of pain with weight bearing. There was also objective evidence of localized tenderness or pain on palpation, but no evidence of crepitus. After repetitive-use testing with at least three repetitions, there was no additional functional loss or loss of range of motion. The examination was not being conducted immediately after repetitive use over time, but the findings were consistent with the Veteran's statements regarding functional loss with repetitive use over time. Pain, weakness, fatigability, and incoordination did not significantly limit functional ability with repeated use over a period of time. There was no evidence of pain on passive range of motion or when the joint was used in nonweight bearing. Muscle strength testing was normal and there was no muscle atrophy, ankylosis, or meniscal condition. There was no history of recurrent subluxation or lateral instability and joint stability testing did not reveal any instability. The examiner noted that any claimed flare-up would not be considered medically a "flare," but rather part of the expected natural variance in joint related issues. The examiner also noted that after examination, a medical history, and reviewing available records, he had no basis to offer additional losses of function or motion when it comes to repetitive use or during a flare-up. In July 2021, the Veteran reported having aching, constant pain in his bilateral knees. The Board finds that for the entire period of appeal, the record does not demonstrate the requisite manifestations for a rating in excess of 10 percent for the left knee disability under Diagnostic Code 5257. As discussed above, for a 20 percent rating under the version of the diagnostic code in force prior to February 7, 2021, there must be evidence of moderate recurrent subluxation or lateral instability. Here, the Veteran has reported that his left knee gives out or buckles; however, VA examinations conducted in October 2009, May 2013, and January 2020 all indicated that the Veteran did not have any instability of the left knee. For a 20 percent rating under the version of the diagnostic code in force since February 7, 2021, the Veteran must have a sprain, incomplete or complete ligament tear, or a diagnosed condition involving the patellofemoral complex with recurrent instability. Here, the Veteran has never been found to have a left knee sprain, ligament tear, or patellofemoral complex with recurrent instability. As such, the Board finds that the Veteran's subjective reports of giving way and buckling are adequately considered in the currently assigned 10 percent rating. Thus, an increased rating under the old or the current version of Diagnostic Code 5257 is not warranted. The Board has considered whether an additional or increased rating should be assigned pursuant to 38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca, and Mitchell criteria, but finds that no such rating is warranted for the Veteran's left knee disability picture. The Veteran has reported having flare-ups of his symptoms; however, even considering the Veteran's subjective complaints and the objective findings of noncompensable limitation of flexion, degenerative arthritis, painful motion, and pain on weight bearing, the left knee disability did not ever approximate moderate recurrent subluxation, moderate lateral instability, sprain, incomplete or complete ligament tear, or a diagnosed condition involving the patellofemoral complex with recurrent instability to warrant a higher 20 percent rating under the old or the current version of Diagnostic Code 5257. Accordingly, consideration of other factors of functional limitation does not support the grant of a rating in excess of the 10 percent rating already assigned. See 38 C.F.R. §§ 4.40, 4.45; DeLuca, supra. The Board does find, however, that a separate 10 percent rating is warranted for the entire appeal period for the left knee disability under 38 C.F.R. § 4.71a, Diagnostic Code 5003, for degenerative arthritis. The medical evidence of record clearly demonstrates that the Veteran has degenerative arthritis in the left knee. Moreover, the VA examination reports of record indicated that the Veteran displayed limitation of flexion and extension of the left knee to, at worst, 105 degrees. In light of the fact that the Veteran has a diagnosis of left knee arthritis, with limitation of flexion to a noncompensable degree under the relevant diagnostic code, the Board finds that a 10 percent rating is warranted for arthritis of the left knee with painful limitation of motion under 38 C.F.R. § 4.71a, Diagnostic Code 5003 for the entire appeal period. Finally, the Board has considered whether an additional or increased rating may be assigned under other diagnostic codes, but finds that there is no competent medical evidence, as noted above, to include three VA examinations, of ankylosis, dislocated or removal of semilunar cartilage, flexion limited to 60 degrees or more, extension limited to 5 degrees or more, impairment of the tibia and fibula, or genu recurvatum that would support a separate or increased evaluation under the criteria set forth in Diagnostic Codes 5256 (ankylosis), 5258 (dislocated semilunar cartilage), 5259 (removal of semilunar cartilage), 5260 (limitation of flexion), 5261 (limitation of extension), 5262 (malunion or nonunion of the tibia and fibula), or 5263 (genu recurvatum). See 38 C.F.R. § 4.71a, Diagnostic Codes 5256-5263. The Board carefully considered the Veteran's reports of pain and flare-ups; however, even considering these factors, the evidence does not reflect that they result in functional impairment which more nearly approximates flexion to a 60 degrees or extension to 5 degrees to warrant a separate evaluation. In sum, the Board determines the preponderance of the evidence is against a rating in excess of 10 percent for the residuals of left knee strain under Diagnostic Code 5257. The Board further finds that the criteria for a separate rating of 10 percent for left knee arthritis with noncompensable limitation of motion under Diagnostic Code 5003 is warranted. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Nelson 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.