Citation Nr: 21006895 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 14-26 919 DATE: February 5, 2021 ORDER A rating in excess of 10 percent for a right knee disability is denied. A rating in excess of 10 percent for a left knee disability is denied. FINDING OF FACT The Veteran’s right and left knee disabilities are manifested by range of motion that is functionally limited at its highest degree of severity, to 120 and 115 degrees of flexion, respectively, with pain, tenderness and crepitus, and full extension; the evidence of record does not show instability, genu recurvatum, or meniscal problems. CONCLUSIONS OF LAW 1. The criteria for an increased disability rating in excess of 10 percent for a right knee disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes (DCs) 5003, 5256-5263. 2. The criteria for an increased disability rating in excess of 10 percent for a left knee disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.71a, DCs 5003, 5256-5263. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from July 1976 to May 1989. These matters initially came before the Board on appeal from a June 2012 rating decision. In November 2016, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). In a November 2019 decision, the Board denied claims for ratings in excess of 10 percent for the service-connected left and right knee disabilities. The Veteran appealed the Board’s denial of the claims for ratings in excess of 10 percent for left and right knee disabilities to the United States Court of Appeals of Veterans Claims (Court). By an April 2020 Order, the Court vacated the Board’s November 2019 decision with respect to the denial of the claims for ratings in excess of 10 percent for right and left knee disabilities and returned the claims to the Board for development consistent with a JMPR. Specifically, the parties agreed that the VA examinations of record did not comply with the binding cases of Mitchell v. Shinseki, 25 Vet. App. 32 (2011) and Sharp v. Shulkin, 29 Vet. App. 26 (2017). See April 2020 JMPR at page (pg.) 2)). Specifically, the parties agreed that the May 2018 VA examination indicated the Veteran reported flare-ups, but failed to provide an estimate of the additional loss of range of motion (ROM) cause by flare-ups or repetitive use. Id. at page (pg.) 3)). The parties further agreed that the May 2018 VA examiner reported however, that she was unable to state whether “pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over a period of time” for either knee, and that her sole rationale for failing to offer an opinion was that he was “unable to assess during these times. Id. at pg. 4. In October 2020, the Board remanded the appeal to have the Agency of Original Jurisdiction (AOJ) schedule the Veteran for another VA examination in accordance with the JMPR and Court’s Order. VA reexamined the Veteran in December 2020. See December 2020 Knee and Lower Leg Disability Benefits Questionnaire (DBQ). Of note, the Veteran’s representative has not offered any challenge to the adequacy of the 2020 VA examination. Thus, the requested development has been accomplished, and the appeal has returned to the Board for further appellate consideration. Increased Rating Increased ratings for the knees In February 2011, the Veteran filed a claim seeking ratings in excess of 10 percent for his service connected right and left knee disabilities which are rated under DC 5003-5257. The RO has awarded service connection for degenerative joint disease of the right and left knees and 10 percent ratings have been assigned pursuant to Diagnostic Codes 5003-5257. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. Pursuant to Diagnostic Code 5003, arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code(s) 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. 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, x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations warrants a 20 percent evaluation. X-ray evidence of involvement of 2 or more major joints or 2 or more minor joints warrants a 10 percent evaluation. See 38 C.F.R. § 4.71a, Diagnostic Code 5003. With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. Diagnostic Codes 5260 and 5261 provide for rating based on limitation of motion. For purposes of this decision, the Board notes that normal range of motion for the knee is flexion to 140 degrees and extension to 0 degrees. 38 C.F.R. § 4.71, Plate II. Evaluations for limitation of extension of the knee are assigned as follows: extension limited to 10 degrees is 10 percent; extension limited to 15 degrees is 20 percent; extension limited to 20 degrees is 30 percent; extension limited to 30 degrees is 40 percent; and extension limited to 45 degrees is 50 percent. 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5261. Evaluations for limitation of flexion of a knee are assigned as follows: flexion limited to 45 degrees is 10 percent; flexion limited to 30 degrees is 20 percent; and flexion limited to 15 degrees is 30 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5260. The rating schedule provides for a 10 percent rating for slight recurrent subluxation or lateral instability, a 20 percent rating for moderate recurrent subluxation or lateral instability, and a 30 percent rating for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The VA General Counsel has held that a claimant who has arthritis and instability of a knee may be rated separately under Codes 5003 and 5257, while cautioning that any such separate rating must be based on additional disabling symptomatology. VAOPGCPREC 23-97 (July 1997); VAOPGCPREC 9-98, (August 1998). Moreover, the General Counsel also held more recently that separate ratings under 38 C.F.R. § 4.71a, Diagnostic Code 5260 (limitation of flexion of the leg) and under Diagnostic Code 5261 (limitation of extension of the leg), may be assigned for disability of the same joint. VAOGCPREC 9-2004 (September 2004). A number of other diagnostic codes also potentially apply to knee ratings. Under 38 C.F.R. § 4.71a, DC 5256, a 30 percent rating is warranted for ankylosis of the knee with favorable angle in full extension or slight flexion between 0 degrees and 10 degrees. Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). Under 38 C.F.R. § 4.71a, DC 5258, [d]islocated semilunar cartilage, with frequent episodes of “locking,” pain, and effusion into the joint, is rated as 20 percent disabling. Under 38 C.F.R. § 4.71a, DC 5259, a 10 percent disability rating is warranted for symptomatic removal of the semilunar cartilage. Under 38 C.F.R. § 4.71a, DC 5262, a malunion of the tibia and fibula of either lower extremity warrants a 20 percent evaluation if there is a marked knee or ankle disability. In Lyles v. Shulkin, 29 Vet. App. 107 (2017), the Court held that, as a matter of law, separate ratings are not precluded for limitation of motion (DCs 5003, 5260 and 5261), meniscal disability (DCs 5258 and 5259) and instability (DC 5257). The Board finds that the weight of the evidence of record is against ratings in excess of 10 percent for either knee. First, range of motion findings of the right and left knees do not support the award of a compensable rating under DCs 5260 or 5261. Here, flexion of the Veteran’s right and left knees was, at its highest degree of severity, limited to 120 and 115 degrees, respectively, and extension was to zero degrees, bilaterally. See March 2011 and May 2018 VA knee and lower leg examination report and Disability Benefits Questionnaire (DBQ)). Treatment records do not show more limited range of motion. For example, at a July 2015 treatment session at Dickson medical, the Veteran demonstrated range of motion from 0-140 degrees, and at a December 2015 appointment he demonstrated range of motion from 0-135 degrees. At a more recent December 2020 VA examination, the Veteran demonstrated range of motion of the knees, bilaterally, from 0-130 degrees. The Board has considered whether a higher disability evaluation for either knee is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. Additionally, painful motion is an important factor of disability; and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. In this case, the Veteran has consistently complained of pain, tenderness and crepitus in his knees, and frequent flare-ups. Nevertheless, on range of motion testing of both knees throughout the appeal, the Veteran was consistently able to complete repetitive motion testing without additional limitations after three repetitions of range of motion testing. To this end, the December 2020 VA examiner specifically concluded that there was no decrease in range of motion with repeated use of either knee. The examiner maintained that range of motion was unchanged with repetition to both knees, and that there was no “SIGNIFICANT” pain, weakness, or fatigability during the physical examination. At that examination, the Veteran also denied any loss of function or mobility with flare-ups of the knees. There was also no reduced loss of strength in either knee. See December 2020 VA Knee and Lower Leg DBQ. As such, there has not been a showing that the Veteran’s range of motion in either knee is so functionally limited as to warrant an even a compensable rating based on either flexion or extension. Of note, a separate rating is not warranted under 38 C.F.R. § 4.59, as the Veteran already receives the minimum compensable rating for each knee. Second, higher ratings are also not warranted under 38 C.F.R. § 4.71a, Diagnostic Code 5257. While the Veteran has on occasion reported knee instability in vague terms, such as at a Dickson Medical appointment in 2015, no specific findings of instability were made. Moreover, the Veteran has routinely denied instability, such as at the March 2011 VA examination, where he specifically denied any instability or giving way in his knees. Likewise, at a private treatment session with Dr. Haslam in August 2016, the Veteran again denied any knee instability. Additionally, during the March 2011, May 2018 and December 2020 VA examinations, clinical testing showed no evidence of any subluxation or instability in either knee. May 2018 and December 2020 VA examination reports reflect that anterior, posterior, medial, and lateral instability tests of both knees were negative. The Board acknowledges the fact that the Veteran wears knee braces, but the examination found that the braces had been prescribed for arthritis and not specifically for instability. Moreover, it is noted that there was no disagreement with the instability findings of the 2019 Board decision in the JMR. Thus, a higher rating under DC 5257 for either the right or left knee is not warranted. Additionally, as the Veteran has not been shown to have ankylosis in either knee during either the March 2011, May 2018 or December 2020 VA examinations, a higher rating under DC 5256 for ankylosis of either knee is also not warranted. See 38 C.F.R. § 4.71 (a), Diagnostic Code 5256. A higher rating is also not warranted for either knee under either DC 5258 or 5259. As an initial point, the Veteran’s knee surgery was an arthroscopy, not a meniscectomy, and Diagnostic Codes 5258 and 5259 are predicated on meniscal impairment, which is not described in either knee. As such, a separate rating for either the right and/or left knees under DC 5258 and 5259 have not been met. In conclusion, the Board finds that the preponderance of the evidence of record is against the claims for increased disability rating in excess of 10 percent for right and left knee disabilities. As the preponderance of evidence is against the finding for higher ratings, the Veteran’s claims are denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Carole Kammel, 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.