Citation Nr: 21074781
Decision Date: 12/16/21	Archive Date: 12/16/21

DOCKET NO. 09-42 132
DATE: December 16, 2021

ORDER

A disability rating in excess of 10 percent for service-connected residuals of a left knee injury, to include degenerative arthritis, ("left knee disability"), is denied.

FINDING OF FACT

At no point during the appeal period has the Veteran's service-connected left knee disability manifested as flexion limited to 30 degrees or less.

CONCLUSION OF LAW

The criteria for a disability rating in excess of 10 percent, for the Veteran's service-connected left knee disability, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5010-5260.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from June 1967 to May 1983. 

This case is before the Board of Veterans' Appeals (Board) on appeal from a September 2013 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that rating decision, the RO denied entitlement to a disability rating in excess of 10 percent for service-connected left knee disability.

The Veteran's notice of disagreement (NOD) was received in January 2014. The RO issued the statement of the case (SOC) in April 2016, and the Veteran's VA Form 9, substantive appeal was received in June 2016.

In August 2017, the Board remanded the case for further development and adjudicative action. In May 2018, the Veteran attended a Board hearing before a Veterans Law Judge (VLJ). In a September 2018 decision signed by the (May 2018) VLJ, the claim was remanded for further development. The Veteran was notified in January 2021 that the May 2018 VLJ was no longer employed at the Board, and advised of his right to another hearing before a different VLJ. The Veteran advised that he did not want another hearing, and in a March 2021 decision, the claim was again remanded for further development.

Increased Rating

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3.

When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011).

The United States Court of Appeals for Veterans Claims (Court) held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." Correia v. McDonald, 28 Vet. App. 158 (2016). Furthermore, in Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. 

During the pendency of the appeal, the criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 83 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes (DCs) "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. As noted infra, DC 5257 is one such code. 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 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. While DC 5260, the DC under which the Veteran's service-connected left knee disability is rated, was not amended, the Board may also, in some circumstances, consider assignment of an additional disability rating under a different DC. However, the Board's analysis below sets out why a separate disability rating for the service-connected right knee disability, under a DC other than 5260, is not warranted in this case.

1. Entitlement to a disability rating in excess of 10 percent for service-connected left knee disability

The Veteran seeks an increased disability rating for his service-connected left knee disability. 

The Veteran's service-connected left knee disability is rated as 10 percent disabling under DC 5010-5260, based on painful motion. See 38 C.F.R. § 4.59. 

Hyphenated DCs are used when a rating under one code requires use of an additional DC to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. DC 5010 pertains to arthritis, due to trauma, and is rated based on limitation of motion of the joint involved, which in this case is the knee during flexion. 

Under 38 C.F.R. § 4.71a, DC 5010, traumatic arthritis is rated pursuant to degenerative arthritis under DC 5003. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate 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 rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under 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, a 10 percent evaluation is warranted for X-ray evidence of involvement of two or more major joints or two or more minor joint groups. A 20 percent rating is warranted for X-ray evidence of involvement of two or more major joints or two or more minor joint groups, and occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, DC 5003.

Under DC 5260, a 10 percent disability rating is warranted for flexion limited to 45 degrees. Limitation of flexion to 30 degrees warrants a 20 percent disability rating.  A 30 percent disability rating is assigned for flexion limited to 15 degrees or less.

The Veteran had a VA knee conditions examination in July 2009. He denied any functional impairments caused by the knee, but reported symptoms of stiffness and locking. The Veteran reported no "weakness, swelling, heat, redness, giving way, lack of endurance, fatigability [or] dislocation." 

Upon examination, there was weakness, edema, and guarding of movement; there were no signs of effusion, weakness, tenderness, subluxation, guarding, genu recurvatum, or locking pain. Flexion was to 90 degrees, with additional limitation due to pain, fatigue, weakness, lack of endurance, and pain. There was no additional limitation of motion following repetitive use. There was no joint instability. 

The Veteran had a VA knee conditions examination in February 2013. Flexion was to 90 degrees, with no objective evidence of painful motion. Extension was to 0 degrees, or hyperextension, without evidence of painful motion. Upon repetitive use testing, there was no additional limitation of flexion, but the examiner noted less movement, weakened movement, pain on movement, swelling, and slight effusion of the left knee. Pain was noted with palpation. Muscle strength was 4/5 on extension and flexion. 

There was no instability and no patellar subluxation or dislocation. The examiner noted a semilunar cartilage condition, with frequent episodes of joint "locking" and frequent episodes of joint pain. The functional impact of the left knee condition was limitation in prolonged sitting, standing, bending, squatting, climbing, and heavy lifting.

A May 2014 VA orthopedic surgery note shows that the Veteran reported a past episode of swelling and locking in the left knee. The attending orthopedist's note states as follows:

He reports that he had an episode of swelling and locking of the left knee in the past. He was sent to an outside physician who advised him that because he had left locking that he should never drive again [[Veteran] states his wife was present at the time he was told that]. I advised him today that we in orthopedics never would have said that, and instead would have gotten an MRI and done arthroscopy if it showed a tear; then we would have released him to drive after recovery. 

The attending orthopedist noted range of motion from 0 to 125 degrees. The Veteran reported a meniscal tear. Imaging revealed mild degenerative joint disease, with the left knee appearing "normal" with "joint spaces equal."

An August 2014 MRI of the left knee revealed "Grade 2 degenerative signal changes in the posterior horn of the medial meniscus, without definite evidence for tear." More specifically, the procedure note states that the MRI "does not reveal a Frank meniscus tear, so surgery does not appear to be indicated." This MRI report was acknowledged by a VA physician, Dr. J.C., in August 2015.

In March 2015, the Veteran submitted a knee impairment questionnaire prepared by his VA physician, Dr. J.C. The physician noted chronic knee pain, with functional limitation described as "greatly affects . . . use[s] cane/walker to assist his walk . . . in pain daily." The physician endorsed "severe" recurrent subluxation/lateral instability, described as "locking/giving up knee joints." The physician endorsed ankylosis of the knee "in flexion between [20 and 45 degrees]." The physician endorsed frequent episodes of locking and swelling, and use of a cane as well as a walker. The physician stated that the Veteran "has knee [illegible] and back problems... he is totally/permanently disable[d] who can't work. [sic]"

The Veteran had a VA knee conditions examination in August 2015. The Veteran reported flare-ups in the knee causing "sharp pains." Functional loss included impairment with walking and standing. Flexion was to 80 degrees, with extension to 0 degrees. Pain was noted with both flexion and extension, as well as with weight bearing, causing functional loss. 

There was no additional limitation of motion with repetitive use testing. With repeated use over time, flexion was to 70 degrees with extension to 0 degrees. The examination was conducted during a flare-up, which caused additional functional loss due to pain, weakness, and lack of endurance. Still, flexion was to 70 degrees with extension to 0 degrees. Muscle strength was 5/5 (normal) with flexion and extension. There was no evidence of ankylosis, recurrent subluxation, or lateral instability. Joint stability (anterior, posterior, medial, and lateral instability) testing could not be completed due to complaints of pain. There was no recurrent patellar dislocation. The examiner stated that the Veteran did not presently have a meniscus (semilunar cartilage) condition, nor was there a history thereof. 

The Veteran had another VA knee conditions examination in October 2020. He again reported sharp pain in the left knee, occurring daily. He reported pain with running, sitting, standing, walking, kneeling, and squatting. 

The October 2020 Disability Benefits Questionnaire (DBQ) does not contain initial range of motion measurements, with the examiner noting that the Veteran was unable to perform range of motion testing with weight bearing due to pain and increased risk of fall. He was unable to perform repetitive use testing due to severe pain. 

Examination of repetitive use over time revealed pain causing functional loss, described in terms of range of motion as flexion from 10 degrees to 70 degrees, and extension from 70 degrees to 10 degrees. The examination was not conducted during flare-up, but the examiner noted that flare-up would not cause additional functional loss. Muscle strength was 5/5 (normal) with flexion and extension. 

There was no ankylosis, and no history of recurrent subluxation, lateral instability, or recurrent effusion. There was no joint instability. There was no patellar dislocation or tibial/fibular impairment. The examiner stated that there was no history of a semilunar cartilage condition, to include symptoms of meniscal dislocation or tear, or frequent episodes of joint locking, pain, or effusion. The Veteran reported constant use of cane/walker.

There was objective evidence of pain when the left knee was used in non-weight bearing, but passive range of motion was the same as active range of motion.

The Veteran had another VA knee conditions examination in July 2021. The Veteran reported knee pain, and moderate flare-ups occurring once or twice per month lasting 2-3 days. He described the knee pain as "[it] feels like it buckles and gives out." While the examination was not conducted during a flare-up, the examiner obtained information from the Veteran indicating that he experienced pain and lack of endurance during flares, causing functional loss. The examiner estimated the Veteran's range of motion during flare-ups as flexion to 90 degrees with extension to 0.

Concerning instability/recurrent subluxation, the Veteran reported that the knee "buckles and gives out" every 3-4 weeks. There was no history of frequent effusion. 

Range of motion in the left knee was noted as "abnormal or outside of normal range," described as "[the Veteran] can't bend down easily to pick up things off the ground." Active range of motion testing revealed flexion to 100 degrees with extension to 0 degrees. The examiner noted that passive range of motion would place the Veteran at increased risk of injury, and thus did not perform such testing. Pain was noted on flexion. Though the examiner did not indicate any additional limitation of motion, in terms of degrees, attributable to such pain, the examiner noted that the pain was present with active motion and caused decreased range of motion. Repetitive use testing, and range of motion testing conducted after repeated use over time, both revealed flexion to 90 degrees and extension to 0 degrees, with the additional loss of range of motion during flexion attributed to pain.

There was no ankylosis of the left knee, and the examiner specifically noted "NO" to recurrent subluxation or persistent instability. The examiner noted no history of ligament tear, and no history of any knee surgery. The examiner noted no history of recurrent patellar instability. The examiner noted no history of a tibial or fibular impairment. The examiner stated that there was no history of a semilunar cartilage condition, to include symptoms of meniscal dislocation or tear, or frequent episodes of joint locking, pain, or effusion. The Veteran reported using a walker regularly. 

The examiner provided a separate, addendum Medical Opinion DBQ. In the DBQ, the examiner noted that the Veteran "appears to have issues with standing and walking on a day to day basis, his knees seem to flare up on him once or twice a month lasting a couple days." The examiner noted "it appears the veteran['s] knee flexion would be about 90 degrees, extension to zero degrees" during flare-ups. 

The examiner was asked to discuss whether the symptoms noted in the March 2015 DBQ, which were not noted in VA examination reports that preceded or followed that DBQ, could have been present at that time (March 2015) but resolved. The examiner stated 

This would require some speculation to comment on, however presumably the provider saw the findings documented in March 2015. It is not clear if a recent injury or other cause may have caused the findings reported in 2015. But without speculating it would be impossible for me to determine. [sic] . . . 

[T]he answer cannot be provided without speculation, presumably the provider in 2015 saw the findings of ankylosis, and however it is definitely not present currently. This does not appear to happen on a regularly basis with flare ups per his current exam and as per the veteran's remarks. One could speculate he may have had an injury at that time leading to the more significant findings vs an error in documentation, this however would be pure speculation. Based on the records available I am unable to account for such varied exam findings. [sic] 

In light of this evidence, the analysis turns to whether the criteria for the next higher rating (20 percent), for service-connected left knee disability based on limitation of flexion, are met. 

On that issue, the numerous VA examination reports reflect that, throughout the entire period on appeal, the Veteran's left knee disability has not manifested as a disability picture that approximates flexion limited to 30 degrees or less. Rather, the Veteran's flexion consistently tested to approximately 70-100 degrees, or greater, even with consideration for additional limitation of motion during flare-up, after repetitive use, and after repetitive use over time. See, e.g., VA knee conditions DBQs dated February 2009, February 2013, August 2015, October 2020, July 2021; see also May 2014 VA orthopedic surgery note (range of motion noted as from 0 degrees extension to 125 degrees of flexion). Based on this evidence, the weight of the evidence reflects that the criteria for assignment of the next higher rating for the service-connected left knee disability, based on limitation of flexion, are not met at any time during the appeal period. 

Nonetheless, the Board also considers whether assignment of a separate disability rating for the service-connected left knee disability is warranted under any of the other DCs pertaining to the knee (DCs 5256-5263).

Regarding DC 5256, which covers ankylosis, the record contains a single note implicating ankylosisthe March 2015 DBQ prepared by Dr. J.C. Specifically, the note of ankylosis from 20-45 degrees of flexion. While the rating criteria do not provide a definition of ankylosis, ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 94 (31st ed. 2007). In this case, that means that Dr. J.C.'s note effectively suggests that the Veteran's knee was stuck in place from 20-45 degrees of flexion. This conflicts with the remainder of the medical evidence in the record, which indicates both that (i) flexion has consistently tested to significantly greater than 20-45 degrees, and (ii) there is no ankylosis of the left knee. See, e.g., VA knee conditions DBQs dated February 2009, February 2013, August 2015, October 2020, July 2021; see also May 2014 VA orthopedic surgery note (range of motion noted as from 0 degrees extension to 125 degrees of flexion). Particularly telling is that Dr. J.C.'s note failed to acknowledge the February 2013 DBQ, which did not implicate ankylosis, and the May 2014 orthopedic surgery note, which reflects full range of motion. Without any evidence of an acute injury between the time of the (i) the February 2013 DBQ and May 2014 orthopedic surgery note, and (ii) the March 2015 DBQ prepared by Dr. J.C., it is unclear the basis for Dr. J.C.'s finding of ankylosis between 20-45 degrees of flexion. For that reason, and in consideration that a finding of ankylosis conflicts with the weight of the probative medical evidence in the record, the weight of the evidence is against finding that ankylosis was present in the left knee at any time during the appeal period. As so, a separate rating under DC 5256 is not warranted. 

Under DC 5257, which covers recurrent subluxation or lateral instability, a 10 percent rating is warranted for slight impairment of either knee, a 20 percent rating for moderate impairment, and a 30 percent rating for severe impairment. 38 C.F.R. § 4.71a, DC 5257. 

The numerous VA examination reports consistently indicate that the absence of such symptomatology during the period on appeal. See, e.g., VA knee conditions DBQs dated February 2009, February 2013, August 2015, October 2020. Nonetheless, the March 2015 note from Dr. J.C. indicates "severe" recurrent subluxation/lateral instability, described as "locking/giving up knee joints." This conflicts with the greater weight of the evidence; most notably, the May 2014 VA orthopedic surgery note in which the attending orthopedist specifically noted the Veteran's report of a single instant of his knee locking up. The record is silent as to any evidence in the record, including by way of the (i) February 2009 or February 2013 VA examination report DBQs, or (ii) the May 2014 VA orthopedic surgery note, of recurrent subluxation/lateral instability. Rather, the Veteran at one point reported that his knee buckled; there is no other documented evidence in the record which would support Dr. J.C.'s March 2015 note of severe, recurrent subluxation/lateral instability at that time. Rather, the evidence in the record is against such a findingmost specifically, the February 2009 DBQ, the February 2013 DBQ, and the May 2014 VA orthopedic surgery, each of which specifically indicates no history of recurrent subluxation or lateral instability. As a result, the note carries no probative weight in that regard.

Notably, the July 2021 DBQ shows the Veteran's report of his knee locking up every 3-4 weeks. While the Veteran is competent and credible to report buckling and instability, stability tests conducted at the July 2021 examination were normal; diagnostic testing and interviews with the Veteran, conducted at prior VA examinations, revealed no instability or complaints of the knee giving way; and his VA treatment records are silent as to any such complaints. In light of the evidence, the Board affords more weight to the evidence indicating that the Veteran's service-connected left knee disability has not, during the appeal period, manifested as recurrent subluxation or lateral instability. 

Moreover, it appears that the Veteran's July 2021 reports of buckling in the knee coincide with his complaints of increased pain during flare-ups. Specifically, he reported flare-ups once or twice per month, and buckling every three to four weeks. It is reasonable to infer that such episodes coincide, and as a result, it must be concluded that the pain which contributes to his knee buckling is the same pain already contemplated in assignment of the 10 percent disability rating based on limitation of flexion. Thus, assignment of a separate disability rating on that basis would constitute forbidden pyramiding.

Lastly, as noted above, DC 5257 was amended, effective February 7, 2021. Under the amended criteria, a 10 percent disability rating is warranted for the following: 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 disability rating is warranted for 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 decide (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. A 30 percent disability rating 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. As there is no evidence of (i) a sprain, incomplete tear, or complete ligament tear; or (ii) persistent instability; a rating under DC 5257, based on the amended criteria, is not warranted. Additionally, and for the reasons set out above, a separate rating under the "old" criteria is also not warranted.

Concerning DC 5258, which covers "cartilage, semilunar, dislocated," with frequent episodes of locking, pain, and effusion in the joint, the numerous VA examination report DBQs show that the Veteran consistently denied locking in the knee. While the Veteran reported an episode of the knee locking up in May 2014, this does not demonstrate that such symptoms were frequent, or even that such symptoms occurred more than once. Additionally, the March 2015 note prepared by Dr. J.C. indicates "locking/giving up knee joints." For the reasons set forth abovespecifically, (i) the absence of any basis in the medical evidence upon which to form such a finding and (ii) the medical evidence, such as the May 2014 VA orthopedic surgery note reflecting a single complaint of the knee locking upthat note carries zero probative weight. 

Moreover, the record shows that there was a single instance of "mild" effusion, as noted on the February 2013 DBQ.  

For those reasons, a separate rating under DC 5258 is not warranted. 

DC 5261 covers limitation of extension. Under that DC, 10 percent disability rating is warranted for knee extension limited to 10 degrees, a 20 percent disability rating is assigned for extension limited to 15 degrees, a 30 percent disability rating is assigned for extension limited to 20 degrees, a 40 percent disability rating is assigned for extension limited to 30 degrees, and a 50 percent disability rating is assigned for extension limited to 45 degrees. 

The weight of the evidence reflects that, throughout the appeal period, extension has measured to 0 degrees (full extension), if not hyperextension. See VA knee conditions DBQs dated February 2009, February 2013, August 2015, October 2020, July 2021. The only indication of extension limited to a degree greater than zero is the October 2020 DBQ, which indicates extension limited to 10 degrees. However, the July 2021 VA DBQ shows that extension was back to 0 degrees, and the entirety of the evidence dated prior to October 2020 is silent for any evidence of extension limited to greater than zero degrees. Thus, the broader body of evidence indicates that the October 2020 DBQ likely represents a slight, temporary, worsening of extension, which has since resolved; and, demonstrates that the Veteran's left knee disability picture has most closely approximated extension limited to no greater than zero degrees throughout the appeal period.

DCs 5259 (symptomatic removal of semilunar cartilage), 5262 (impairment of tibia and fibula) and 5263 (genu recurvatum) are not implicated by the record. A separate rating thereunder is not warranted.

In sum, the criteria for entitlement to a disability rating in excess of 10 percent for service-connected left knee disability, based on limitation of flexion, are not met at any time during the appeal period. The criteria for assignment of a separate disability rating for the service-connected left knee disability, under any of the other DCs pertaining to the knee, are not met at any time during the appeal period.

As so, the claim for entitlement to an increased disability rating for the Veteran's service-connected left knee disability denied. 

 

B. G. LeMoine

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	B. KAYS HUKILL

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.