Citation Nr: 21072085 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 18-01 839 DATE: December 2, 2021 ORDER Entitlement to a disability rating in excess of 30 percent for osteoarthritis of the right knee, with ischemic necrosis of lateral femoral condyle and torn lateral meniscus (right knee disability), is denied. Entitlement to a separate 20 percent disability rating, but no greater, for right knee lateral instability, as of January 7, 2021, is granted. FINDINGS OF FACT 1. The Veteran's service-connected right knee disability has not been manifested by nonunion of tibia or fibula with loose motion requiring a brace. Limitation of flexion to less than 45 degrees, and limitation of extension to greater than 10 degrees, have not been shown. Ankylosis, recurrent subluxation, dislocation or removal of semilunar cartilage, or genu recurvatum are not present. 2. Since January 7, 2021, the Veteran's service-connected right knee disability has been manifested by moderate lateral instability. Severe lateral instability, or a medical provider prescribing both an assistive device and bracing for ambulation, are not shown. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 30 percent for osteoarthritis of the right knee with ischemic necrosis of lateral femoral condyle and torn lateral meniscus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5010-5262. 2. The criteria for entitlement to a separate rating of 20 percent, but no greater, as of January 7, 2021, for right knee lateral instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1965 to July 1970. In January 2020, the Board remanded this matter to provide the Veteran with updated VA examinations of the knee, hip, and thigh. As the VA examinations have been provided, there has been substantial compliance with the prior remand directives and the matter is again before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). Increased Rating 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 (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Any reasonable doubt regarding a degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, as is the case here, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45. VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The intent of the Rating 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. 38 C.F.R. § 4.59. Entitlement to a disability rating in excess of 30 percent for osteoarthritis of right knee with ischemic necrosis of lateral femoral condyle and torn lateral meniscus (right knee disability). On October 16, 2015, VA received the Veteran's claim for an increased rating for her right knee disability. The Veteran contends that she is entitled to a rating in excess of 30 percent for her right knee disability. Specifically, the Veteran contends that she is entitled to a 60 percent disability rating due to pain, nonunion of the femur, and given that she must wear a brace. See January 2018 VA Form 9; May 2017 NOD. The Veteran's service-connected osteoarthritis of right knee with ischemic necrosis of lateral femoral condyle and torn lateral meniscus has been rated as 30 percent disabling under Diagnostic Code 5010-5262. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the rating assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Diagnostic Code 5010 refers to post-traumatic arthritis and Diagnostic Code 5262 refers to impairment of the tibia and fibula. Diagnostic Criteria for the Knee VA's Schedule for Rating Disabilities includes several Diagnostic Codes applicable to evaluating knee and leg disabilities. See 38 C.F.R. § 4.71a. The regulations pertaining to rating the musculoskeletal system were amended, effective February 7, 2021, per Final Rule AP88. Claims, such as this, pending prior to the effective date will be considered under both the old and new rating criteria from that date, and whatever criteria is more favorable to the Veteran will be applied from that date. Diagnostic Code 5003 provides that degenerative arthritis that is 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. When there is some limitation of motion of the specific joint or joints involved that is non-compensable (zero percent) under the appropriate diagnostic codes, Diagnostic Code 5003 provides a rating of 10 percent for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Since February 7, 2021, Diagnostic Code 5003 applies to degenerative arthritis other than post-traumatic arthritis, and Diagnostic Code 5010 applies to post-traumatic arthritis. Prior to February 7, 2021, pursuant to Diagnostic Code 5262, a 30 percent rating is warranted when there is malunion of the tibia and fibula, with marked knee or ankle disability. A schedular maximum 40 percent rating is warranted when there is nonunion of the tibia and fibula, with loose motion requiring a brace. Since February 7, 2021, a 30 percent rating is warranted when there is Medial tibial stress syndrome (MTSS), or 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 maximum 40 percent rating is warranted when there is nonunion of the tibia and fibula, with loose motion requiring a brace. 38 C.F.R. § 4.71a, Diagnostic Code 5262. Under Diagnostic Code 5019, bursitis is evaluated as degenerative arthritis, on the basis of limitation of motion of the affected part. Diagnostic Codes 5260 and 5261 are used to rate limitation of flexion and of extension of the knee. Under Diagnostic Code 5260, limitation of flexion of the knee to 45 degrees warrants a 10 percent rating. Limitation of flexion of the knee to 30 degrees warrants a 20 percent rating, and limitation of flexion of the knee to 15 degrees warrants a 30 percent rating. Under Diagnostic Code 5261, limitation of extension of the knee to 5 degrees warrants a zero or non-compensable rating. Limitation of extension of the knee to 10 degrees warrants a 10 percent rating. Limitation of extension of the knee to 15 degrees warrants a 20 percent rating. Limitation of extension of the knee to 20 degrees warrants a 30 percent rating. Limitation of extension of the knee to 30 degrees warrants a 40 percent rating, and limitation of extension of the knee to 45 degrees warrants a 50 percent rating. Normal range of motion of the knee is from zero degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. Prior to February 7, 2021, under Diagnostic Code 5257, a 10 percent rating is warranted for slight knee impairment, that is, recurrent subluxation or lateral instability. A 20 percent rating is assigned for a moderate degree of impairment, and a maximum rating of 30 percent is assigned for severe impairment. The words slight, moderate, moderately severe, marked, and severe as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence in reaching a decision that is "equitable and just." 38 C.F.R. § 4.6. Since February 7, 2021, under Diagnostic Code 5257, recurrent subluxation or instability is rated at 10 percent disabling for sprain, incomplete ligament tear, or complete ligament tear causing persistent instability, without a prescription from a medical provider for an assistive device. A 20 percent rating assigned 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 for ambulation, or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device 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 and bracing for ambulation. Since February 7, 2021, under Diagnostic Code 5257, patellar instability is rated as 10 percent disabling 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 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. Under Diagnostic Code 5258, a 20 percent rating is warranted for dislocation of semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. 38 C.F.R. § 4.71a, Diagnostic Code 5258. Under Diagnostic Code 5259, a 10 percent rating is warranted for removal of semilunar cartilage that is symptomatic. Evidence The Veteran was provided with a VA knee examination in December 2015. The VA examiner reviewed the Veteran's medical history and conducted an in-person examination of the Veteran. The examiner noted diagnoses of degenerative arthritis of the bilateral knees. The Veteran reported "spasms of pain" that are abrupt and severe for a few minutes, with residual pain that can last all day long. The condition was aggravated by prolonged standing and walking, and treated with pain medication and a heating pad. The Veteran reported flare-ups manifested by sharp pain rated as a nine out of ten. The Veteran has to sit down and elevate her legs on a pillow and wait for the pain to subside. Range of motion testing found flexion and extension from zero to 75 degrees. There was pain on examination and weightbearing. There was objective evidence of crepitus. There was objective evidence of localized tenderness or pain on palpation of the joint, located in the inferior patellar region and laterally. After repetitive use, flexion and extension was from zero to 50 degrees. Repetitive use was found to cause pain, fatigue, weakness, and lack of endurance. After repetitive use, flexion and extension was from zero to 70 degrees. During flare-ups, flexion and extension was from zero to 70 degrees. The examiner found that the Veteran's degenerative joint disease and subjective pain contribute to disturbance of locomotion and interference with standing. Muscle strength testing found reduction in muscle strength rated at three out of five on flexion and extension. The examiner found muscle atrophy due to concurrent Charcot Marie Disease. There was no ankylosis, subluxation, lateral instability, joint instability, or shin splints. The Veteran was provided with another VA knee examination in November 2016. The VA examiner reviewed the Veteran's medical history and conducted an in-person examination of the Veteran. The examiner noted diagnoses of degenerative arthritis of the bilateral knees. The Veteran reported intermittent sharp pain, more frequent than eleven months ago. The Veteran reported that her knee condition was aggravated by walking on uneven terrain, climbing stars, and picking up heavy objects. Flare-ups ranged from dull, achy pain to sharp pain rated as seven out of ten. The condition was treated with ibuprofen and soaking in warm water. Range of motion testing found flexion and extension from zero to 75 degrees. There was pain on examination and weightbearing. There was objective evidence of crepitus. After repetitive use, flexion and extension was from zero to 70 degrees. Repetitive use was found to cause pain, fatigue, weakness, lack of endurance, and incoordination. During flare-ups, flexion and extension was from zero to 70 degrees. Muscle strength testing found reduction in muscle strength rated at three out of five on flexion and extension. There was muscle atrophy. There was no ankylosis, subluxation, lateral instability, joint instability, shin splints, or meniscal conditions. Pursuant to the Board remand, the Veteran was provided with another VA knee examination on January 7, 2021. The VA examiner reviewed the Veteran's medical history and conducted an in-person examination of the Veteran. The examiner noted a diagnosis of osteoarthritis of right knee with ischemic necrosis of lateral femoral condyle and torn lateral meniscus. The Veteran reported constant pain rated at nine out of ten. She reported that she has "bone on bone." She used a rollator, walker, or cane at all times for balance, ibuprofen for pain, and a knee brace during flare-ups. The Veteran reported flare-ups occurring four times per week, with pain rated at ten out of ten, and lasting "a moment to two or three moments" until she sits down and puts her feet up. The Veteran states she is unable to use the stairs, go to public functions, family functions, hold a job, walk or stand for prolonged periods of times, gardening, housekeeping, grocery shopping or any outside activities. Range of motion testing found flexion and extension from zero to 70 degrees. The examiner found severe pain to mild palpitation in the patellar area. The examiner found evidence of pain with weight bearing and crepitus. After repetitive use, flexion and extension was from 10 to 65 degrees, and 10 to 60 degrees after repeated use over time. Repetitive use was found to cause pain, fatigue, weakness, lack of endurance, and incoordination. During flare-ups, flexion and extension was from 10 to 65 degrees. Muscle strength testing found reduction in muscle strength rated at two out of five on flexion and extension. There was no muscle atrophy or no ankylosis. The examiner noted a history of moderate right knee lateral instability. Joint stability testing was not performed because it caused too much pain. A history of a meniscal tear was noted. There was no recurrent patellar dislocation, "shin splints" (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome or any other tibial or fibular impairment. The Veteran was provided with another VA knee examination in May 2021. The VA examiner reviewed the Veteran's medical history and conducted an in-person examination of the Veteran. The examiner noted a diagnosis of osteoarthritis of right knee with ischemic necrosis of lateral femoral condyle and torn lateral meniscus. The Veteran reported intermittent flare-ups lasting from two to ten minutes, causing increased pain, and alleviated by rest, leg elevation, and medication. The Veteran reported using a cane or rollator to walk. Range of motion testing found flexion and extension from zero to 100 degrees. The examiner found pain on active and passive motion which did not result in additional functional loss. There was evidence of crepitus. There was moderate pain on palpitation of the medial knee. There was no additional loss of function or range of motion after repetitive use. There was no muscle atrophy or ankylosis. There was no diagnosis of recurrent patellar dislocation, shin splints (medial tibial stress syndrome), stress fractures, or any other tibial or fibular impairment. There was a history of meniscal tear of the right knee. The VA examiner concluded that the Veteran may have difficulty with activities requiring repetitive knee bending and full knee mobility. Also pursuant to the Board remand, the Veteran was provided with a VA hip and thigh examination in May 2021. The examiner reviewed the Veteran's medical history and conducted an in-person examination of the Veteran. The Veteran reported intermittent hip pain. The Veteran reported that she cannot go up and down steps, squat, run, or shop on my her own, and requires assistance going to the doctor. The Veteran did not report flare-ups of the hip. Range of motion testing of the right hip found flexion reduced from a normal range of 125 degrees to 115 degrees. Extension, abduction, adduction, external rotation, and internal rotation were all normal. There was no additional loss of function or range of motion after repetitive use. There was no muscle atrophy or ankylosis. There was no malunion or nonunion of femur, flail hip joint, or leg length discrepancy. The examiner did not note any diagnosis for a right hip condition. However, the examiner did find that the Veteran may have difficulty with activities requiring full hip mobility. The Veteran submitted private treatment records from August 2021. The physician noted that the Veteran had primary osteoarthritis of the right knee, experiencing pain and instability due to non-union of tibia/fibula, creating loose motion and high risk for falling. It required great concentration to ambulate with walker. He concluded that she would greatly benefit from a brace to help stabilize the joint. Analysis Throughout the period on appeal, to warrant a higher rating under Diagnostic Code 5262, the evidence of record would have to show nonunion of the tibia and fibula, with loose motion requiring a brace. None of the VA examinations or other medical evidence during the period on appeal found nonunion of the tibia and fibula with loose motion requiring a brace. Therefore, a 40 percent rating under Diagnostic Code 5262 is not warranted. Additionally, separate ratings under Diagnostic Code 5260 and 5261 are not warranted as limitation of flexion to less than 45 degrees, and limitation of extension to greater than 10 degrees, have not been shown during the period on appeal. Prior to January 7, 2021, none of the VA examinations show right knee instability. Therefore, a separate rating for right knee instability under Diagnostic Code 5257 is not for application prior to that date. Since January 7, 2021, the Veteran's right knee moderate instability warrants a separate 20 percent rating under Diagnostic Code 5257. Prior to February 7, 2021, under Diagnostic Code 5257 in effect during that period, a maximum rating of 30 percent is not for application because the medical evidence does not show severe impairment. Since February 7, 2021, under Diagnostic Code 5257, a 30 percent rating is not for application because the medical evidence does not show that a medical provider prescribing both an assistive device and bracing for ambulation. The Board acknowledges that Veteran has reported using a cane and/or a brace for her right knee disability, but the 30 percent criteria under Diagnostic Code 5257 specifically requires that a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. A medical prescription for both bracing and an assistive device are not shown. The record does not contain evidence of dislocation of the semilunar cartilage to warrant a separate rating under Diagnostic Code 5258. See 38 C.F.R. § 4.71a, Diagnostic Code 5258. Likewise, as there is no evidence of removal of semilunar cartilage or genu recurvatum noted in any of the lay or medical evidence of record, evaluation of the right knee under Diagnostic Code 5259 or 5263 is not warranted. The Board has considered whether higher ratings should be assigned pursuant to 38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca, and Mitchell criteria but determines that higher ratings are not warranted for the Veteran's disability picture. As discussed above, the preponderance of the evidence is against the claim for higher ratings than those assigned for right knee limitation of motion, and therefore, the doctrine of reasonable doubt is not for application for that claim. However, reasonable doubt has been considered in awarding a separate rating of 20 percent, but no greater, under Diagnostic Code 5257 for moderate lateral instability since January 7, 2021. Accordingly, the claim of entitlement to a disability rating in excess of 30 percent for osteoarthritis of right knee with ischemic necrosis of lateral femoral condyle and torn lateral meniscus is denied. A separate 20 percent rating, but no higher, for right knee lateral instability is granted as of January 7, 2021. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.71a, DC 5010-5260, 5256, 5257; Gilbert, 1 Vet. App. at 54-56. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Casey, 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.