Citation Nr: 21075678 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 09-07 310 DATE: December 21, 2021 ORDER Entitlement to an increased evaluation in excess of 10 percent for degenerative arthritis of the right knee with instability (right knee instability) is denied. Entitlement to an increased evaluation in excess of 10 percent prior to March 24, 2021, and in excess of 20 percent thereafter for right knee limitation of flexion is denied. REMANDED Entitlement to an evaluation in excess of 30 percent for let hand tremors is remanded. Entitlement to an evaluation in excess of 20 percent for left hand tremors is remanded. FINDINGS OF FACT 1. The Veteran's right knee instability is manifested by no more than patellofemoral complex with recurrent instability after surgical repair without a prescription from a medical provider for an assistive device. 2. The Veteran's right knee limitation of motion prior to March 24, 2021, is manifested by no more than flexion limited to 50 degrees, and thereafter flexion is not limited to more than 30 degrees. CONCLUSIONS OF LAW 1. The criteria for an increased evaluation in excess of 10 percent for right knee instability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.17a Diagnostic Code 5003-5257. 2. The criteria for an increased evaluation in excess of 10 percent prior to March 24, 2021, and in excess of 20 percent thereafter for right knee limitation of flexion are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.17a Diagnostic Code 5003-5260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1973 to February 1974, from January 2003 to June 2003, and from July 2005 to October 2006. The Veteran was awarded service connection for his right knee instability and limitation of flexion. The Regional Office (RO) assigned a 10 percent effective June 14, 2012, for both disorders. In an August 2021 rating decision, the RO assigned a 20 percent evaluation for the Veteran's right knee limitation of flexion effective March 24, 2021. Increased Rating Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 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 civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. A Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). 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. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. In Burton v. Shinseki, 25 Vet. App. 1, 5 (2011), the Court found that, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. 38 C.F.R. § 4.71a is the Schedule of Ratings for Musculoskeletal System. Diagnostic Code 5003, 5256, 5257, 5258, 5259, 5260, 38 C.F.R. § 4.71a specifically addresses arthritic knee disorders under a general rating formula for musculoskeletal disorders. Under Diagnostic Code 5003, a 10 percent evaluation is assigned for X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. A 20 percent evaluation was assigned for degenerative arthritis other than post-traumatic with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. Under Diagnostic Code 5256, a 30 percent rating is assigned for ankylosis of a knee at a favorable angle (in full extension), or in slight flexion between 0 degrees and 10 degrees. A 40 percent rating is assigned for ankylosis of a knee in flexion between 10 degrees and 20 degrees. A 50 percent rating is assigned for ankylosis of a knee between 20 degrees and 45 degrees. A 60 percent rating is assigned for extremely unfavorable ankylosis of a knee in flexion at 45 degrees or more. Under Diagnostic Code 5257, prior to February 7, 2021, a 10 percent evaluation was assigned for slight recurrent subluxation or lateral instability. A 20 percent evaluation was assigned for moderate recurrent subluxation or lateral instability. A 30 percent evaluation was assigned for severe recurrent subluxation or lateral instability. On/after February 7, 2021, the Veteran's right knee instability is evaluated under a revised Diagnostic Code 5257. A 10 percent evaluation was assigned 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 evaluation is 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 (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 evaluation 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. As pertaining to patellar instability of the knee, Diagnostic Code 5257 provides a 10 percent rating 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. A20percent 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 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. Note (1) to the new criteria define the patellofemoral complex as "the quadriceps tendon, the patella, and the patellar tendon." Note (2) clarifies that the surgery contemplated by the patellar instability criteria is specifically to repair one or more patellofemoral components; the note disqualifies arthroscopy to remove loose bodies and joint aspiration as surgical repair for patellar instability. Id. Under Diagnostic Code 5258, a 20 percent rating is warranted where there is cartilage, semilunar, dislocated, with frequent episodes of "locking", pain, and effusion into the joint with flexion. Under Diagnostic Code 5259, a 10 percent evaluation is assigned for cartilage, semilunar, removal of, symptomatic. Under Diagnostic Code 5260, a 10 percent disability rating is warranted for flexion of the knee limited to 45 degrees; a 20 percent rating is warranted for flexion of the knee limited to 30 degrees; and a 30 percent rating is warranted for flexion of the knee limited to 15 degrees. 1. Entitlement to an increased evaluation in excess of 10 percent for right knee instability 2. Entitlement to an increased evaluation in excess of 10 percent prior to March 24, 2021, and in excess of 20 percent thereafter for right knee limitation of flexion The Veteran contends that he is entitled to an increased evaluation in excess of 10 percent for right knee instability. The Veteran also contends that he is entitled to an increased evaluation in excess of 10 percent prior to March 24, 2021, for right knee limitation of flexion, and in excess of 20 percent thereafter. May 2012 VA outpatient treatment physical therapy records reveal that the Veteran reported aching of the right knee with no locking or new trauma. June 2012 VA outpatient treatment records reveal that the Veteran underwent physical therapy for his right knee pain. X-ray findings reveal no acute fracture, dislocation, or joint effusion. Mild degenerative joint disease and chondrocalcinosis of the right knee was noted. In a September 2012 VA knee examination, the examiner diagnosed the Veteran with the following: degenerative joint disease of the right knee; right knee erosion of the anterior horn of lateral meniscus; and right knee complex tear of the posterior horn. The Veteran reported flare-ups, noting during flare-ups his knee becomes weak and he walks with a cane. Initial range of motion testing reveals flexion noted at 65 degrees, with pain at 66 degrees. Repetitive motion testing revealed flexion at 65 degrees with no loss of motion. Right knee joint instability was noted as 1+ for medial-lateral instability, but otherwise normal. There was no evidence of subluxation or dislocation. Episodes of joint pain and locking in the right knee were noted with evidence of a meniscus tear, but without frequent effusion. The Veteran reported the use of a cane regularly for his right knee pain. Diagnostic imaging testing of the right knee revealed findings of degenerative arthritis of the right knee. Regarding functional and occupational limitations, the examiner noted that the Veteran's right knee disorder impacted his ability to work. The examiner noted that the Veteran's right knee impacted his ability to squat or walk. The Veteran reported that he was considering retirement form employment due to his right knee pain and an inability to stand for long periods of time. December 2014 VA physical therapy treatment records reveals that the Veteran present and reported no right pain in his knee. The Veteran explained that he did not feel that physical therapy was needed. The examiner recommended no further treatment. In a June 2016 VA knee examination, the examiner diagnosed the Veteran with right knee joint osteoarthritis. The Veteran reported his right knee hurt all the time and would sometimes swell. He could feel it "rubbing". The Veteran reported he did not have flare-ups. Range of motion testing revealed flexion noted at 0 to 100 degrees and extension noted at 100 to 0 degrees with pain contributing to functional loss noted. Objective evidence of localized tenderness with pain on palpation was noted with evidence of weight-bearing pain. Repetitive use testing revealed flexion noted at 0 to 80 degrees and extension noted at 80 to 0 degrees with no evidence of pain, weakness, fatigability, or incoordination. The examiner noted no findings of ankylosis, subluxation, or lateral instability. Joint instability findings of the right knee revealed no right knee instability with evidence of a meniscal tear and frequent right knee joint pain. The Veteran reported the use of a cane constantly for his right knee pain for balance. Diagnostic imaging testing revealed findings of degenerative arthritis. Regarding functional and occupational limitations, the examiner determined that the Veteran's right knee impacted his ability to work and perform physical labor that required prolonged standing, walking, or lifting heavy objects. In an August 2016 VA knee examination, the examiner diagnosed the Veteran with right knee degenerative arthritis and a left knee meniscal tear. The Veteran reported his right knee was stiff, grinding, and hurt all the time. He also noted it felt weak upon waking in the morning sometimes. The Veteran reported he did not have flare-ups. Functional impairment was noted as it hurt the Veteran to bend his knee. Range of motion testing revealed flexion noted at 0 to 90 degrees with extension noted at 90 to 0 degrees with pain contributing to functional loss noted. Objective evidence of localized tenderness with pain on palpation was noted with no evidence of weight-bearing pain. Repetitive use testing revealed flexion noted at 0 to 80 degrees and extension noted at 80 to 0 degrees with no evidence of pain, weakness, fatigability, or incoordination. The examiner noted no findings of ankylosis, subluxation, or lateral instability. Joint instability findings of the right knee reveal no right knee instability. The Veteran reported the use of a cane constantly for his right knee pain for balance. Diagnostic imaging testing revealed findings of degenerative arthritis. Regarding functional and occupational limitations, the examiner determined that the Veteran's right knee impacted his ability to work and perform physical labor that required prolonged standing, walking, squatting, bending, or lifting heavy objects. In an October 2019 VA knee examination, the examiner diagnosed the Veteran with degenerative joint disease of the right knee with instability and limited flexion of the right knee. The Veteran reported moderate flare-ups of the right knee resulting in functional loss. The Veteran reported that his right knee flare-ups are precipitated by bending, walking, prolonged standing, or climbing and can last hours or all-day. The Veteran described his functional loss as knee pain, stiffness, and difficulty with bending, prolonged standing, walking, or climbing stairs. Flexion was noted at 0 to 90 degrees and extension noted at 90 to 0 degrees with no evidence of range of motion contributing to functional loss. There was no localized tenderness and pain on palpation of the joint, no evidence of weight bearing pain or crepitus. Repeated range of motion testing revealed flexion at 0 to 70 degrees with extension noted at 70 to 0 degrees with evidence of pain, weakness, fatigability, or incoordination. During flare-ups, the examiner estimated the Veteran's right knee pain and lack of endurance would limit his flexion to 60 degrees. Right knee swelling was noted as contributing to range of motion difficulty with no evidence of muscle atrophy, ankylosis, recurrently subluxation, or lateral instability. Medial instability was noted as 1+, but otherwise normal. Meniscus findings revealed frequent episodes of joint pain and a meniscus tear. The Veteran reported the use of a cane constantly for his right knee pain for stability and support. Regarding functional and occupational limitations, the examiner determined that the Veteran's right knee impacted his ability to stand more than 15 minutes or walk more than 200 feet due to knee pain and stiffness. In a March 2021 VA knee examination, the examiner diagnosed the Veteran with degenerative joint disease of the right knee with instability and limited flexion of the right knee. The Veteran reported flare-ups of the right knee resulting in functional loss described as limited range of motion. The Veteran reported that his right knee flare-ups are precipitated by bending, walking, prolonged standing, or climbing. The occurred daily and were severe. Flexion was noted at 0 to 60 degrees and extension noted at 60 to 0 degrees with no evidence of range of motion contributing to functional loss. The examiner noted there was no localized tenderness and pain on palpation of the joint with evidence of weight bearing pain and non-weight bearing pain on active and passive motion. Objective evidence of crepitus was noted. Repeated range of motion testing revealed flexion at 0 to 50 degrees with extension noted at 50 to 0 degrees with evidence of pain, weakness, fatigability, or incoordination. The examiner estimated the Veteran's right knee pain and lack of endurance would limit the Veteran's flexion to 40 degrees with repeated use over time. The examiner further estimated that the Veteran's right knee pain and lack of endurance would limit the Veteran's flexion to 30 degrees during flare-ups. Right knee swelling was noted as contributing to range of motion difficulty with no evidence of muscle atrophy or ankylosis. Recurrent subluxation and persistent instability were noted. The examiner noted the Veteran had a history of right meniscal tear causing intermittent episodes of pain, effusion, and stiffness. The Veteran reported the use of a cane constantly and a brace regularly for his right knee pain; however, the examiner indicated that the Veteran did not require a prescription for this for ambulation. Regarding functional and occupational limitations, the examiner determined that the Veteran's right knee impacted his ability to bend, stand for a prolonged period of time, walk over two miles, or climb one flight of stairs due to right knee pain, stiffness, and limited range of motion. After a thorough review of the record, the Board concludes that the current evidence does not provide a basis for granting a higher 20 percent evaluation for the Veteran's right knee instability disorder. As determined by the record, there is no evidence of 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. Although the Veteran reported the use of a cane for his right knee disorder, there is no evidence in the record to support a finding that the Veteran was prescribed a cane, knee brace, or walker by a medical provider for his right knee instability. The Board also considered the assignment of a 20 evaluation under Diagnostic Code 5256, 5258, but there were no findings of ankylosis or dislocated knee semilunar cartilage to warrant the assignment of a higher evaluation. Although there are findings of degenerative arthritis of the right knee, these findings are contemplated by the rating currently assigned. As such the Board finds that the preponderance of the evidence does not warrant the assignment of an evaluation in excess of 10 percent. The Board finds that based on the evidence of the claims file, the assigned 10 percent evaluation currently assigned under Diagnostic Code 5257 for knee instability better approximates the trajectory of the Veteran's right knee disorder. As the Board reviewed the Veteran's records and determined that they do not support an increased disability rating in excess of 10 percent for this disorder, the evidence for this period preponderates against an increase so reasonable doubt provisions are inapplicable. 38 C.F.R. § 3.102. Turning to the Veteran contention that he is entitled to an increased evaluation in excess of 10 percent prior to March 24, 2021, for right knee limited flexion, after a thorough review of the record, the Board concludes that the current evidence does not provide a basis for granting a higher 20 percent evaluation for the Veteran's right knee limited flexion under Diagnostic Code 5260. As determined by the record, prior to March 24, 2021, there is no evidence of flexion of the right knee limited to 30 degrees. Although there are findings of right knee swelling, pain on palpation with tenderness, and some functional limitations, there are no findings of ankylosis to award an evaluation under Diagnostic Code 5256. Moreover, the findings of degenerative arthritis under Diagnostic Code 5003 are contemplated by the rating currently assigned. As such the Board finds that the preponderance of the evidence does not warrant the assignment of an evaluation in excess of 10 percent prior to March 24, 2021. Lastly, the Board turns to the Veteran's contention that he is entitled to an increased evaluation in excess of 20 percent on/after March 24, 2021, for right knee flexion. After a thorough review of the record, the Board concludes that the current evidence does not provide a basis for granting a higher 30 percent evaluation for the Veteran's right knee limited flexion under Diagnostic Code 5260. As determined by the record on/after March 24, 2021, there is no evidence of flexion of the right knee limited to 15 degrees. Although there are findings of right knee swelling, pain on palpation with tenderness, weight bearing and non-weight bearing pain, and some functional limitations, there are no findings of ankylosis to award an evaluation under Diagnostic Code 5256. Moreover, the findings of degenerative arthritis under Diagnostic Code 5003 are contemplated by the rating currently assigned. As such the Board finds that the preponderance of the evidence does not warrant the assignment of an evaluation in excess of 20 percent on/after March 24, 2021. With regard to giving proper consideration to the effects of pain in assigning a disability rating, as well as the provisions of 38 C.F.R. § 4.45 and the holdings in DeLuca and Mitchell, the reports from the examinations discussed above document consideration of these principles, to include repetitive motion and flare-ups. There is no indication that further increased compensation would be warranted under these principles. In making its determinations above, the Board has considered carefully the Veteran's contentions with respect to the nature of the service-connected manifestations at issue, and notes that his lay testimony is competent to describe certain symptoms associated with these manifestations. The Veteran's history and symptom reports have been considered, including as presented in the medical evidence discussed above, and have been contemplated by the disability ratings that have been assigned and granted herein. Moreover, the competent medical evidence offering detailed specific findings pertinent to the rating criteria is the most probative evidence with regard to evaluating the pertinent symptoms of the service-connected manifestations at issue. As such, while the Board accepts the Veteran's testimony with regard to the matters he is competent to address, the Board relies upon the competent medical evidence with regard to the specialized evaluation of functional impairment, symptom severity, and details of clinical features of the service-connected manifestations at issue. The Board has compared the level of severity and symptomatology of the Veteran's service-connected disabilities addressed above with the established criteria found in the rating schedule. The Board finds that these disabilities are fully addressed by the rating criteria under which these disabilities are rated. In this regard, a wide range of signs and symptoms are contemplated in the applicable rating criteria. Moreover, the service-connected disabilities addressed above require application of the holdings in Deluca and Mitchell which require, in turn, consideration of 38 C.F.R. §§ 4.40 and 4.45. 38 C.F.R. § 4.40 requires consideration of functional loss, including the ability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, pain, weakness, and atrophy. Likewise, 38 C.F.R. § 4.45 requires consideration of, in part, incoordination, impaired ability to execute skilled movements, painful motion, swelling, deformity, disuse atrophy, instability of station, disturbance of locomotion, interference with sitting, standing, and weight-bearing. Also, 38 C.F.R. § 4.59 requires consideration of such matters as unstable or mal-aligned joints, and crepitation as well as any painful arthritic motion. Therefore, the Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology associated with the service-connected manifestations addressed above. As such, the Board need not proceed to consider whether there are attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). The Board finds that based on the evidence of the claims file, the currently assigned 10 percent evaluation prior to March 24, 2021, and 20 percent thereafter currently assigned under Diagnostic Code 5260 for limited knee flexion better approximates the trajectory of the Veteran's right knee limited flexion disorder. As the Board reviewed the Veteran's records and determined that they do not support an increased disability rating in excess of 10 percent prior to March 24, 2021, and in excess of 20 percent thereafter for this disorder, the evidence for this period preponderates against an increase so reasonable doubt provisions are inapplicable. 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to an evaluation in excess of 30 percent for let hand tremors is remanded. 2. Entitlement to an evaluation in excess of 20 percent for left hand tremors is remanded. The Veteran last received a VA examination to assess the severity of his bilateral hand tremors in April 2021. An August 2021 VA outpatient record revealed that the Veteran underwent treatment for bilateral hand tremors. There was moderate to severe postural and action tremor of the left hand and arm with mild to moderate involvement on the right. He was given wrist weights for his essential tremor. The Veteran's bilateral hand tremors had not been characterized as severely prior to the August 2021 VA treatment. In addition, the Veteran was given new treatment for his bilateral hand tremors in the form of wrist weights. Given the evidence indicating a worsening of the Veteran's symptoms, a remand is necessary to afford him a VA examination to fully assess the current severity of his service-connected right and left upper extremity tremor. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Schedule the Veteran for a VA examination to determine the current severity of his service-connected tremors affecting both upper extremities. All necessary tests should be conducted. The claims file must be sent to the examiner for review. The examiner should examine the Veteran and provide findings in accordance with the currently applicable disability benefits questionnaire. All opinions must be supported by a detailed rationale. Kelly A. Gastoukian Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Elliot Harris 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.