Citation Nr: 21006472 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 13-28 296 DATE: February 4, 2021 ORDER A rating in excess of 10% for a service-connected tri-compartment osteoarthritis with chronic synovial effusion, left knee (left knee osteoarthritis) prior to March 12, 2015 is denied. A rating in excess of 20% for a service-connected left knee osteoarthritis from March 12, 2015 until the present is denied. A rating in excess of 30% for a service-connected posttraumatic left knee degenerative joint disease (left knee DJD) with internal derangement prior to March 12, 2015 is denied. A rating in excess of 10% for a service-connected left knee DJD from March 12, 2015 until the present is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. At the VA and private examinations during the period on appeal, the Veteran’s left knee range of motion on extension was greater than 15 degrees and his flexion was greater than 30 degrees; the Veteran’s left knee shows no evidence of ankylosis, no evidence of locking, pain and effusion, or impairment of the tibia and fibula. 2. At the VA and private examinations during the period on appeal, the Veteran’s left knee range of motion on extension was greater than 20 degrees and his flexion was greater than 15 degrees; the Veteran’s left knee shows no evidence of ankylosis, or impairment of the tibia and fibula. 3. The Veteran’s July 2008 private treatment records and July 2009 and January 2013 VA examinations do not show any evidence of medial or lateral instability of the left knee or any history of recurrent patellar subluxation or dislocation. 4. The March 2015 and March 2017 VA examinations do not show any evidence of medial or lateral instability of the left knee or any history of recurrent patellar subluxation or dislocation. CONCLUSIONS OF LAW 1. Prior to March 12, 2015, the criteria have not been met for a disability rating in excess of 10 percent for the Veteran’s left knee osteoarthritis under Diagnostic Codes (DC) 5010-5261. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a. 2. From March 12, 2015 to present, the criteria have not been met for a disability rating in excess of 20 percent for the Veteran’s left knee osteoarthritis under DC 5010-5261. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a. 3. Prior to March 12, 2015, the criteria have not been met for a disability rating in excess of 30 percent for the Veteran’s left knee DJD under DC 5257. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a. 4. From March 12, 2015, the criteria have not been met for a disability rating in excess of 10 percent for the Veteran’s left knee DJD under DC 5257. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from June 1973 to May 1978. These matters are before the Board of Veterans’ Appeals (Board) on appeal of a September 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. These matters were before the Board in August 2016 and were remanded for further development. 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 symptoms with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 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 the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt is resolved in the Veteran’s favor. 38 C.F.R. § 4.3. When an evaluation of a disability is based on limitation of motion, the Board must also consider, in conjunction with the otherwise applicable diagnostic code, any additional functional loss the Veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy of disuse. The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Nonetheless, a disability rating higher than the minimum compensable rating is not assignable under any diagnostic code relating to range of motion where pain does not cause a compensable functional loss. Rather, the “pain must affect some aspect of ‘the normal working movements of the body’ such as ‘excursion, strength, speed, coordination, and endurance,’ “as defined in 38 C.F.R. § 4.40, before a higher rating may be assigned. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011) (noting that while “pain may cause a functional loss, pain itself does not constitute a functional loss,” and, is therefore, not grounds for entitlement to a higher disability rating). Consideration is to be given to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, atrophy of disuse, instability of station, or interference with standing, sitting, or weight bearing. See 38 C.F.R. § 4.45. Increased ratings of the knees Legal Criteria Under 38 C.F.R. § 4.71a, DC 5003, degenerative arthritis is rated on the basis of limitation of motion of the specific joint involved. When limitation of motion is noncompensable, a 10 percent rating is applicable for each major joint. In the absence of limitation of motion, a maximum schedular 20 percent rating is assigned for degenerative arthritis of two or more major joints or two or more minor joint groups, with occasional incapacitating episodes. DC 5010 uses the same criteria as DC 5003. Under DC 5256 (Knee, ankylosis of), a disability rating of 40 percent is warranted for ankylosis of the knee in flexion between 10 degrees and 20 degrees, a 50 percent disability rating is warranted for ankylosis of the knee in flexion between 20 degrees and 45 degrees and a 60 percent disability rating (the maximum schedular disability rating) is warranted for extremely unfavorable ankylosis of the knee in flexion at an angle of 45 degrees or more. 38 C.F.R. § 4.71a, DC 5256. Under DC 5258, 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 that diagnostic code. Under DC 5260, a noncompensable rating is assigned for limitation of flexion of the leg to 60 degrees; a 10 percent rating is assigned for limitation of flexion of the leg to 45 degrees; a 20 percent rating is assigned for limitation of flexion of the leg to 30 degrees; and a 30 percent rating is assigned for limitation of flexion of the leg to 15 degrees. See id. Under DC 5261, limitation of extension of the leg warrants a noncompensable rating when extension is limited to 5 degrees; a 10 percent rating when extension is limited to 10 degrees; a 20 percent rating when limited to 15 degrees; 30 percent when limited to 20 degrees; 40 percent when limited to 30 degrees; and 50 percent when limited to 45 degrees. See id. The diagnostic criteria applicable to impairment of the tibia and fibula are found at 38 C.F.R. § 4.71a, DC 5262. Under that code, a 10 percent evaluation is warranted when malunion of the tibia and fibula produces slight knee or ankle disability. A 20 percent evaluation is warranted when malunion of the tibia and fibula produces moderate knee or ankle disability, and a 30 percent evaluation is warranted when such disability is marked. A 40 percent evaluation is warranted for nonunion of the tibia and fibula, with loose motion, requiring a brace. DC 5263 is the rating code for genu recurvatum. Genu recurvatum is a deformity in the knee in which the knee bends backwards. The evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). 1. A rating in excess of 10% for left knee osteoarthritis prior to March 12, 2015 is denied. Factual Background A July 2008 private treatment record reflects that the Veteran reported pain in the left knee joint that radiates to the left hip joint and the spinal column and that had been increasing for the prior several weeks. On examination, the Veteran had swelling over the left knee joint, a left limping gait, and pain over the medial portion of the left knee joint on pressure and movement. He had flexion to 90 degrees and extension to 0 degrees. The Veteran underwent a VA examination in July 2009 during which he reported that he can walk for five minutes and must use a cane to walk for longer periods. He reported left knee pain of 7.5 to 8 out of 10 and left knee swelling. On examination, the Veteran had a stilt-like gait pattern with an unsteady upper body, but he did not use walking aids. He had no atrophy, edema, or varicosities of the lower extremities. He did have a swollen joint contour of the left knee joint with enlargement of the femoral condyles. He also had significant tenderness of the medial femoral condyle and medial joint space with significant varus stress and slight valgus stress. He had negative anterior and posterior drawer tests, as well as a negative Lachman test. He had a 3 cm skin-level, non-inflamed scar over the left medial femoral condyle. There was no dehiscence, induration, hypersensitivity, tenderness, or adhesion of the scar. Range-of-motion testing revealed active/passive range in the left knee of 0 degrees extension, 10 degrees neutral, and 95 degrees flexion. He had pain at 80 degrees of flexion. The Veteran underwent another VA examination in January 2013. At the examination, the Veteran reported daily flare ups of left knee pain, characterized as “pins” with occasional radiation to the calf. He rated his left knee pain as 5 out of 10 constantly with occasional severe stabbing pain of 8 out of 10 at night. He endorsed clicking and swelling of the left knee but denied grinding sensation. The pain and swelling are worsened by immobility, cold, wet weather, walking greater than approximately 6 minutes, and climbing stairs. The pain and swelling are improved by elevation, heat, and medication. He indicated he has a locking sensation when climbing stairs. On examination, he had a steady and stable gait without use of assistive devices and favored the left knee. His bilateral knees were symmetrical in appearance without edema, effusion, or erythema. The Veteran did not report frequent episodes of joint locking. On range-of motion testing, the Veteran had left knee flexion to 95 degrees with objective evidence of painful motion at 90 degrees, and no limitation of left knee extension or objective evidence of painful motion of the knee extension. Following repetitive-use testing, the Veteran had left knee flexion to 95 degrees and normal left knee extension. The Veteran had 4 out of 5 strength in the left knee. The examiner indicated that the Veteran had a history of left meniscectomy, but that he does not have any residual signs and/or symptoms due to the meniscectomy. In addition, the Veteran had a linear, stable, nontender 7 cm scar on the left superior with minimal hypopigmentation. He also had a linear, stable, nontender 12 cm scar on the left medial knee that was mildly hypopigmented. The examiner opined that the Veteran cannot repetitively use stairs or squat and cannot lift greater than 50 pounds due to the service-connected left knee disabilities. Analysis The Board finds that the preponderance of the evidence is against a finding that the Veteran is eligible for rating in excess of 10 percent for left-knee osteoarthritis prior to March 12, 2015. The Veteran did not display any ankylosis of his left knee during the period on appeal and accordingly an increase under DC 5256 is not warranted. A separate higher rating is not warranted under DC 5258, because there is no evidence of dislocation of semilunar cartilage with episodes of locking, pain, and effusion. While the January 2013 VA examination demonstrated the Veteran had a left knee meniscal tear and a locking sensation, all the required criteria under DC 5258 are not met. In order to be eligible for a higher, 20 percent rating under DC 5260 or 5261, the Veteran’s left leg extension must be limited to 15 degrees or his flexion must be limited to 30 degrees. During the period on appeal, the Veteran demonstrated zero degrees of extension and no worse than 80 degrees of flexion. Accordingly, an increase to 20 percent under DC 5260 or 5261 is not warranted. An increase to 20 percent under DC 5262 is not warranted because the Veteran has not demonstrated malunion of the tibia and fibula at any point during the period on appeal. With regard to the timeframe on appeal, neither the Veteran nor any examiner has reported that pain, weakened movement, excess fatigability, incoordination, would alter his range of motion to the degree required for a higher rating after repetitive use, due to pain, with weight bearing, or during flare-ups. The Veteran has been able to take care of his activities of daily living and even with repetitive use at the January 2013 VA examination there was no significant loss of motion. Given that his reported symptoms do not prevent him from achieving substantial measured range of motion of the left knee, they do not support a finding of additional functional loss for higher rating. There is no evidence that his left knee osteoarthritis experiences significant or additional functional loss beyond that contemplated by the assigned 10 evaluation prior to March 12, 2015. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2017); DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011); Correia v. McDonald, 28 Vet. App. 158 (2016), and Sharp v. Shulkin, 29 Vet. App. 26 (2017). 2. A rating in excess of 20% for left knee osteoarthritis from March 12, 2015 to present is denied. Factual Background At a March 2015 VA examination, the Veteran reported that his knee pain had progressed to the point that he requires a cane to walk at all times and that doctors have discussed possible joint replacement. The Veteran did not report flare-ups that impact the function of the left knee. On range-of-motion testing, the Veteran had left knee flexion to 40 degrees with objective evidence of pain at 30 degrees, and no limitation of left knee extension or objective evidence of painful motion on left knee extension. Following repetitive-use testing, the Veteran had left knee flexion to 40 degrees and normal left knee extension. The examiner opined that the Veteran has additional pain on use, but no additional loss of range of motion. On examination, the Veteran had 5 out of 5 strength in the left knee. The examiner indicated that the Veteran had a semilunar condition which resulted in frequent episodes of joint locking, pain and effusion. The examiner opined that the Veteran can lift 20 pounds with intermittent breaks, walk 100 meters at a time for a total of 30 minutes in an 8-hour day, and stand or sit for 10 minutes at a time for a total of 1 hour in an 8-hour day. At a March 2017 VA examination, the Veteran reported that he cannot effectively walk up the stairs and still has to use a cane at all times. The Veteran also reported flare-ups and that pain makes walking any distance very difficult. The Veteran had 4 out of 5 strength in the left knee. On range-of-motion testing, the Veteran had left knee flexion to 55 degrees and extension of 0 degrees. The Veteran’s range of motion did not change following repetitive-use testing. The examiner indicated that the Veteran was not being examined immediately after repetitive use over time but that the examination is medically consistent with the Veteran’s statements describing functional loss with repetitive use over time. The examiner opined that the additional pain would not result in further loss of range of motion. The Veteran was not being examined during a flare up, but the conducting physician opined that the examination was medically consistent with the Veteran’s statements describing functional loss during a flare up. The examiner opined that the additional pain from the flare up would not result in further loss of range of motion. The examiner indicated that there was evidence of pain when the Veteran’s left knee was used in weight bearing but passive range of motion was the same as active. The examiner noted that the Veteran did not have any impairment of the tibia or fibula. The examiner found no evidence of ankylosis. An October 2019 private treatment record reflects that the Veteran had surgery on his left knee. The Veteran displayed left knee flexion of 80 degrees and extension of 0 degrees. The private physician opined that the Veteran’s left knee movement has improved, his muscles are stronger, his pain is declining, and his swelling has been reduced. Analysis The Board finds that the preponderance of the evidence is against a finding that the Veteran is eligible for rating in excess of 20 percent for left-knee osteoarthritis from March 12, 2015 to present. The Veteran did not display any ankylosis of his left knee during the period on appeal and accordingly an increase under DC 5256 is not warranted. A separate higher rating is not warranted under DC 5258, because the Veteran is already being compensated under DC 5258 as of a December 2015 rating decision by the RO. In order to be eligible for a higher, 30 percent rating under DC 5260 or 5261, the Veteran’s left leg extension must be limited to 20 degrees or his flexion must be limited to 15 degrees. During the period on appeal, the Veteran demonstrated zero degrees of extension and no worse than 30 degrees of flexion. Accordingly, an increase to 30 percent under DC 5260-5261 is not warranted. An increase to 20 percent under DC 5262 is not warranted because the Veteran has not demonstrated malunion of the tibia and fibula at any point during the period on appeal. Furthermore, the Board notes that pain and any functional loss due to pain were properly evaluated in the March 2015 and March 2017 VA examinations. The reports found that any functional loss noted had no bearing on the Veteran’s left knee extension and did not limit the Veteran’s left knee flexion to an extent that would merit an increased rating. See DeLuca, supra; Mitchell, supra. Further, the Board notes that the March 2017 VA examination findings, regarding active and passive motion, weight-bearing and non-weight bearing motion, have not shown functional impairments that would support an increase in the disability rating at issue during the period on appeal. Correia v. McDonald, 28 Vet. App. 158 (2016). 3. A rating in excess of 30% for left knee DJD prior to March 12, 2015 is denied. Legal Criteria DC 5257 governs other impairment of the knee, providing respective ratings of 10, 20, and 30 percent for slight, moderate, or severe recurrent subluxation or lateral instability of the knee. See 38 C.F.R. § 4.71a. Because the terms “slight,” “moderate,” and “severe” are not defined in the Rating Schedule, instead of applying a mechanical formula, the Board must evaluate all the evidence of record to ensure that its adjudication of an increased rating claim is equitable and just. See 38 C.F.R. § 4.6. Factual Background A July 2008 private treatment record indicates that the Veteran had no dancing patella, his lateral ligaments were stable, and he presented no meniscus signs. The Veteran underwent a VA examination in July 2009 during which he displayed no lateral deviation tendency of the patella with a stable patellar supporting apparatus. The conducting physician also indicated that the Veteran’s fibular lateral ligaments were stable. The Veteran underwent another VA examination in January 2013 during which the conducting physician indicated that there was no evidence or history of recurrent patellar subluxation or dislocation. The conducting physician also indicated that the Veteran did not display medial-lateral instability. Analysis The competent and probative evidence shows that the Veteran’s left knee DJD does not warrant a higher rating for instability under DC 5257 prior to March 12, 2015. Here, neither the July 2008 private treatment records, July 2009 or January 2013 VA examinations show any evidence of medial or lateral instability of the left knee. Nor does the evidence show any history of recurrent patellar subluxation or dislocation. As such, the Board finds a rating in excess of 30 percent is not warranted under DC 5257. 4. A rating in excess of 10% for left knee DJD from March 12, 2015 to present is denied. Factual Background The Veteran underwent a VA examination in March 2015 during which the conducting physician indicated that there was no evidence or history of recurrent patellar subluxation or dislocation. The conducting physician also indicated that the Veteran did not display any anterior, posterior or medial-lateral instability. The Veteran also underwent a VA examination in March 2017 during which the conducting physician indicated that there was no evidence or history of recurrent patellar subluxation or dislocation. The conducting physician also indicated that the Veteran did not display any anterior, posterior or medial-lateral instability. Analysis The competent and probative evidence shows that the Veteran’s left knee DJD does not warrant a higher rating for instability under DC 5257 from March 12, 2015 until present. Here, the March 2015 and March 2017 VA examinations do not show any evidence of medial or lateral instability of the left knee. Nor does the evidence show any history of recurrent patellar subluxation or dislocation. As such, the Board finds a rating in excess of 30 percent is not warranted under DC 5257. REASONS FOR A REMAND Entitlement to a TDIU rating based on service-connected disabilities is remanded. The Board finds that remand is warranted to fully assist the Veteran with the development of his claim. The Board notes the Veteran’s employment and income history during the appellate period is incomplete. Specifically, on the Veteran’s April 2017 VA Form 21-8940, the Veteran did not provide which service-connected disabilities prevented him from maintaining gainful employment, the date he last worked, his previous employer’s name and address, the dates and hours he worked, his highest gross earnings per month, whether he tried to obtain employment since he became too disabled to work, his highest level of education or any types of training he received. The Board, accordingly, must remand this matter to obtain updated occupational and income information before rendering a decision on the issue. The matters are REMANDED for the following action: 1. Please note that, by law, ALL remanded claims must be processed expeditiously. 2. Request that the Veteran complete the following: (a) An updated VA Form 21-8940 Veterans Application for Increased Compensation Based on Unemployability. (b) Submit a VA Form 21-4192, Request for Employment information in Connection with Claim for Disability Benefits for all identified employers. (Continued on the next page)   3. Then, the Veteran’s claims must be readjudicated. If any benefit sought on appeal is not granted to the Veteran’s satisfaction, the Veteran must be provided a Supplemental Statement of the Case and be given an adequate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Alexander Bahus 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.