Citation Nr: 21006268 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 14-22 414 DATE: February 3, 2021 ORDER Entitlement to an evaluation in excess of 10 percent for right knee osteoarthritis, status post meniscectomies, prior to February 27, 2013, is denied. Entitlement to a separate 10 percent, but not higher, rating for right knee osteoarthritis with limited motion and pain, prior to February 27, 2013, is granted, subject to the law and regulations governing the payment of monetary benefits. Entitlement to an evaluation in excess of 10 percent for left knee osteoarthritis, status post meniscectomies, prior to March 26, 2014, is denied. Entitlement to a separate 10 percent, but not higher, rating for left knee osteoarthritis with limited motion and pain, prior to March 26, 2014, is granted, subject to the law and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran’s right knee osteoarthritis disability has manifested in flexion to 130 degrees, and extension to 0 degrees, at worst; there is no objective evidence of instability but there are residuals of meniscectomy and limited motion with pain. 2. Throughout the period on appeal, the Veteran’s left knee osteoarthritis has been manifested in flexion to 130 degrees, and extension to 0 degrees, at worst; there is no objective evidence of instability but there are residuals of meniscectomy and limited motion with pain. CONCLUSIONS OF LAW 1. The criteria for entitlement to an evaluation in excess of 10 percent for right knee osteoarthritis, status post meniscectomies, prior to February 27, 2013, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5259. 2. The criteria for a separate 10 percent, but not higher, rating for right knee osteoarthritis with limited motion and pain have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5260, 5261. 3. The criteria for entitlement to an evaluation in excess of 10 percent for left knee osteoarthritis, status post meniscectomies, prior to March 26, 2014, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5259. 4. The criteria for a separate 10 percent, but not higher, rating for left knee osteoarthritis with limited motion and pain have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5260, 5261. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from March 1975 to August 1982 and from October 1982 to May 1995. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. These matters were previously remanded by the Board in February 2016, April 2018 and July 2020, respectively, for further development, including to provide adequate VA examinations and obtain outstanding treatment records. Increased Rating - Disabilities of the Knee Joint Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R. Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities of the knee joint, generally, are rated under Diagnostic Codes (DC) 5256 through 5263. See, 38 C.F.R. § 4.71a. Those multiple DCs evaluate impairment resulting from service-connected knee disorders, including DC 5256 (ankylosis), DC 5257 (other impairment, including recurrent subluxation or lateral instability), DC 5258 (dislocated semilunar cartilage), DC 5259 (symptomatic removal of semilunar cartilage), DC 5260 (limitation of flexion), DC 5261 (limitation of extension), DC 5262 (impairment of the tibia and fibula), and DC 5263 (genu recurvatum), all elaborated upon below. For purposes of this decision, the Board notes that the average normal range of motion of the knee is flexion from 0 to 140 degrees and extension from 140 to 0 degrees. 38 C.F.R. § 4.71a, Plate II. Diagnostic Code 5010 provides that arthritis due to trauma that is substantiated by X-ray findings is to be rated as degenerative arthritis. 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 no limitation of motion of the specific joint or joints that involve degenerative arthritis, Diagnostic Code 5003 provides a 20 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, and a 10 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. Note (1) provides that the 20 percent and 10 percent ratings based on X-ray findings will not be combined with ratings based on limitation of motion. Note (2) provides that the 20 percent and 10 percent ratings based on X-ray findings, above, will not be utilized in rating conditions listed under Diagnostic Codes 5013 to 5024, inclusive. When there is some limitation of motion of the specific joint or joints involved that is noncompensable (0 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. When there is limitation of motion of the specific joint or joints that is considered to be compensable (10 percent or higher) under the appropriate diagnostic codes, the compensable limitation of motion should be rated under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a. Separate disability ratings are possible for arthritis with limitation of motion under Diagnostic Codes 5003 and instability of a knee under Diagnostic Code 5257. VAOPGCPREC 23-97. When X-ray findings of arthritis are present and a veteran's knee disability is rated under Diagnostic Code 5257, the veteran would be entitled to a separate compensable rating under Diagnostic Code 5003 if the arthritis results in noncompensable limitation of motion and/or objective findings or indicators of pain. VAOPGCPREC 9-98. Under Diagnostic Code 5257, where impairment is severe, moderate or slight, disability evaluations of 30, 20, and 10 percent are assigned, respectively. 38 C.F.R. § 4.71a. Id. DC 5260 rates based on limitation of flexion. When flexion of the leg is limited to 60 degrees, a noncompensable rating is warranted. When flexion is limited to 45 degrees, a 10 percent rating is warranted. Flexion limited to 30 degrees warrants a 20 percent rating, while flexion limited to 15 degrees warrants the maximum 30 percent rating. DC 5261 rates based on limitation of extension. That code provides that when extension is limited to 5 degrees, a noncompensable rating is assigned. Extension limited to 10 degrees warrants a 10 percent rating. When limitation of extension is at 15 degrees, a 20 percent rating is warranted. Extension limited to 20 degrees warrants a 30 percent rating. Extension limited to 30 degrees warrants a 40 percent rating. Extension limited to 45 degrees warrants the maximum, 50 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. It should also be noted that use of terminology such as "mild" or "moderate" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding a higher rating. 38 C.F.R. §§ 4.2, 4.6. Other DCs pertaining to the knee include DC 5258, under which a maximum 20 percent rating is warranted for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. DC 5259 holds that symptoms due to the removal of the semilunar cartilage of either knee warrant a 10 percent rating, which is the maximum rating under the diagnostic code. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). VA has a duty to consider all regulations that are potentially applicable through the assertions and issues raised in the record. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings.” Hart v. Mansfield, 21 Vet. App. 505 (2007). For painful motion with any form of arthritis, the Veteran is entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The same is true for painful motion in non-arthritis contexts when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). When rating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating based on functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination, to include during flare-ups and with repeated use, when those factors are not contemplated in the relevant rating criteria. DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59. The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the Diagnostic Codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Such inquiry is not to be limited to muscles or nerves. Limitation of motion determinations are, if feasible, to be expressed in terms of the degree of additional range of motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. DeLuca, 8 Vet. App. at 207. By itself, pain throughout a joint’s range of motion does not constitute functional loss, but if there is additional pain, the examiner must address any additional loss of motion due to the DeLuca factors. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). If a claimant is already receiving the maximum disability rating available based on symptomatology that includes limitation of motion, it is not necessary to consider whether 38 C.F.R. §§ 4.40 and 4.45 are applicable. Spencer v. West, 13 Vet. App. 376, 382 (2000); Johnston v. Brown, 10 Vet. App. 80, 85 (1997). The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton, 25 Vet. App. at 5. A VA examination of the joints must, wherever possible, include range of motion testing for pain on active motion, passive motion, weight-bearing, nonweight-bearing, and, if possible, with the range of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158, 169–70 (2016); 38 C.F.R. § 4.59. An examiner must provide an opinion regarding additional range of motion loss due to pain. Sharp v. Shulkin, 29 Vet. App. 26 (2017). 1. Entitlement to an evaluation in excess of 10 percent for right knee osteoarthritis, status post meniscectomies, prior to February 27, 2013. 2. Entitlement to an evaluation in excess of 10 percent for left knee osteoarthritis, status post meniscectomies, prior to March 26, 2014. In a May 2012 rating decision, the Veteran was granted service connection for his right knee and left knee osteoarthritis disabilities, respectively, at a 10 percent rating, effective October 18, 2011, the date of his claims. The issue before the Board is consideration of ratings above 10 percent for each knee, for the period prior to February 26, 2013 for the right knee and prior to March 25, 2014 for the left knee. The ratings for these intervals (October 18, 2011 through February 26, 2013/March 25, 2014) were assigned under Diagnostic Code 5259, for semilunar cartilage removal, with 10 percent being the highest schedular rating for each knee under this diagnostic code. Of note, effective February 26, 2013 for the right knee and March 25, 2014 for the left knee, the Veteran received 100 percent temporary ratings based on total knee replacements for each knee, followed by 60 percent ratings for each knee, post-surgical ratings of which are not the subject of appeal. The ratings assigned for the intervals prior to February 26, 2013 for the right knee and prior to March 25, 2014 for the left knee were primarily based on findings at a VA examination in February 2012. February 2012 VA examination At the February 2012 VA knees examination, the Veteran described onset of knee disabilities in service using ladders aboard ships and standing on watch on steel ship decks during his Navy career. During the examination, he reported having ongoing symptoms including constant pain, popping, grinding, swelling, stiffness, weakness, and loss of range of motion. He also reported his inability to drive for an extended period and inability to kneel to garden or wash the floor. Further, flare-ups occurring two to three times per week and lasting as much as several days with pain, weakness, stiffness, and swelling, reporting that these flare-ups caused a 50 percent limitation in his functioning. The Veteran’s range of motion was tested in each knee including with multiple repetitions, but this did not reveal impairment to an extent reflected by the Veteran’s complaints at the examination. Specifically, flexion was 0 to 130 degrees for the right knee (painful motion starting at 125 degrees), and 0 to 130 degrees for the left knee (painful motion also starting at 125 degrees). For extension, no limitation of extension was reported bilaterally (0 degree or any degree of hyperextension). There was also no objective evidence of painful motion bilaterally; and joint instability testing revealed that there was no instability during the examination. Further, no additional limitation of ROM following repetitive-use testing was noted, nor any functional loss/impairment of the bilateral knees. However, the examiner noted that the Veteran had less movement than normal in both knees and pain on movement bilaterally was noted. The examiner also noted that x-rays revealed arthritis, but did not address the extent of arthritis present, and articulate the extent of disability present in each knee which was supported by objective findings. Further, nonweight-bearing measures were not assessed during this VA examination. December 2012 VA General Medical Evaluation During a subsequent general medical evaluation in December 2012, the Veteran was reported to have ongoing knee problems with arthritis and a “rheumatoid-component arthritis”. The Veteran reported that his orthopedic doctor told him that he was a candidate for bilateral knee replacements. Objectively, it was noted that the Veteran was in no apparent distress. Examination of the knees revealed hypertrophic changes, surgical scars, no crepitation, no joint laxity, and no tenderness or swelling. The treating clinician assessed bilateral knee arthropathy. Upon being seen for VA orthopedic evaluation for pain in the knees and feet on the same date in December 2012 as the general treatment, pain in both knees and in both feet was respectively noted to have been ongoing for several years. The Veteran reported his pain level as 4 on an ongoing basis, though pain was not differentiated in the report between his knees and feet. There are no other pertinent VA or private medical treatment records for the Veteran’s bilateral knees during the period of appeal. The Board found the February 2012 VA examination inadequate for rating each knee for the interval prior to February 2013 and March 2014, respectively, and thus subsequently remanded these issues for further development, including addressing the impact of the Veteran’s the Veteran’s rheumatoid arthritis diagnosis and obtaining new VA examinations and any outstanding treatment records. August 2020 VA Retrospective Addendum Opinion The Board notes that the August 2020 VA post remand retrospective addendum opinion is in substantial compliance with the Board’s July 2020 remand directives, including review of past examination and treatment reports and any past x-rays or other tests, to evaluate each knee based on the Veteran’s past statements and more objective findings. Most significantly, with regards to the Veteran’s limitation and flexion of his knees, the August 2020 examiner reported as follows: “BOTH KNEES: The veteran's complaints of bilateral knee pain, swelling, varus deformity are consistent with objective findings i.e. loss of full flexion, pain, edema, tenderness, radiographs and laboratory testing. The abnormal rheumatoid factor as note by a rheumatologist is consistent with only rheumatoid arthritis. The veteran's symptoms and exam abnormalities of pain with sitting, standing and weightbearing, painful ROM, and are consistent with both rheumatoid and osteoarthritis. The veteran's findings on radiographs to include MRI are consistent with degenerative arthritis.” The examiner also commented (as directed by the Remand directives) that the Veteran's claims file was reviewed and that particular attention was paid to medical evidence by PCP, Podiatry, Orthopedics, physical therapy, emergency room, C&P exam prior to 2/26/13 for the right knee and 3/25/14 for the left knee. In terms of how his bilateral rheumatoid arthritis (non-service connected) diagnosis impacts the Veteran’s osteoarthritis, the examiner reported as follows: “[T]he veteran's symptoms, evaluation, treatment, and disability of his osteoarthritis of his knees have overlapping symptoms with rheumatoid arthritis of the knees and it is impossible for any examiner to differentiate symptoms for each condition without mere speculation. Degenerative arthritis is a known potential late complication of rheumatoid arthritis.” [Mayo clinic] With regards to the level of impact of the Veteran’s bilateral knee disability on his work capability, the examiner reported that there is no medical evidence on record that the veteran bilateral knee condition had an impact on his work capacity, citing to a 10/22/12 the medical evidence which noted the Veteran was working as an janitor, and no restrictions were noted. Further, the examiner also noted that medical evidence from 6/16/16 reports that the Veteran retired in 2015, and no performance or disciplinary problems was reported. Entitlement to a higher or separate compensable rating After a thorough review of the current evidence of record, the Board finds that it does not support assignment of any higher rating under DC 5259 as this is the Veteran’s 10 percent rating is the highest rating available pursuant to that diagnostic code. A higher or separate compensable rating will therefore be warranted only if such a rating is warranted under another diagnostic code that does not result in pyramiding, specifically, under DC 5260, 5261 or 5257. Upon review of the record, the range of motion (ROM) for the period of appeal reflects evidence that flexion was 0 to 130 degrees bilaterally, and for extension, no limitation of extension was reported bilaterally. However, the record does reflect some noncompensable limitation of motion with pain and there is X-ray evidence of arthritis in both knees. Consequently, the Board will give the Veteran the benefit of the doubt and find that his arthritis and noncompensable limitation of motion with pain warrants separate 10 percent, but not higher, ratings for right and left knee osteoarthritis with limited motion and pain. See 38 C.F.R. § 4.71a. DC 5003. In addition, as noted above, when assessing the severity of a musculoskeletal disability that is at least partly rated on the basis of limitation of motion, VA is generally required to consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain, weakness, premature or excess fatigability, and incoordination. DeLuca, 8 Vet. App. at 202; see also 38 C.F.R. §§ 4.40, 4.45, 4.59. Here, however, there is no additional uncompensated limitation of motion that can form the basis for even higher separate ratings under DeLuca. The Board has also considered the other Diagnostic Codes pertaining to the knees. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). DC 5259 holds that symptoms due to the removal of the semilunar cartilage of either knee warrant a 10 percent rating, which is the maximum rating under the diagnostic code. DC 5258 contemplates dislocation of the cartilage of the knees which results in the locking, pain, and effusion into the joint, with a maximum 20 percent rating. The Board notes that Diagnostic Code 5258 applies when the meniscus (“cartilage, semilunar”) is dislocated and Diagnostic Code 5259 applies following surgical removal of the meniscus that is still symptomatic. Here, the Veteran is service connected for the removal of meniscus material and thus, DC 5259 applies. In addition, while the record reflects that the Veteran was experiencing pain and swelling during this time period, there is no evidence of locking, which is an additional symptom required under DC 5259. Finally, a rating is not warranted under both DC 5258 and 5259 as to do so would violate the rule against pyramiding detailed in 28 C.F.R. 4.14, since the symptomology contemplated by both are not separate or distinct. Further, as discussed above, the Veteran underwent surgery for removal of his bilateral meniscus in February 2013 and March 2014, respectively, for which he was assigned a 10 percent rating under DC 5259, and he is now in receipt of the maximum post-surgical maximum rating under DC 5055, effective April 1, 2014 and May 1, 2015, respectively. The Board has also considered DC 5257. Diagnostic Code 5257, which contemplates impairment of the knee manifested by recurrent subluxation or lateral instability, allows for a separate compensable rating for instability of the knee. Under Diagnostic Code 5257, where instability is severe, moderate and slight, disability evaluations of 30, 20, and 10 are assigned, respectively. However, there is no objective evidence of joint instability to warrant a separate rating under this diagnostic code. Finally, in considering the applicability of other diagnostic codes, the Board finds that Diagnostic Codes 5256 (ankylosis of the knee), 5262 (impairment of the tibia and fibula), and 5263 (genu recurvatum) are also respectively not applicable, as the medical evidence does not show that the Veteran has any of those conditions. Accordingly for all the foregoing reasons, the Board finds that the preponderance of the evidence is against ratings in excess of 10 percent for the Veteran’s residuals of meniscectomy but supports entitlement to separate 10 percent, but not higher, ratings for right and left knee osteoarthritis with limited motion and pain. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.B. King, Associate 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.