Citation Nr: 21006987 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 14-23 032 DATE: February 8, 2021 ORDER Entitlement to a rating in excess of 10 percent for right knee arthritis is denied. Entitlement to a rating in excess of 10 percent for right knee laxity from September 18, 2020 is denied. REMANDED Entitlement to service connection for degenerative arthritis of the lumbar spine is remanded. Entitlement to service connection for right hip disability is remanded. FINDINGS OF FACT 1. The preponderance of the probative evidence shows that the Veteran’s right knee disability was manifested by arthritis. 2. The Veteran’s right knee laxity was shown to be mild, at worst, from September 18, 2020. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 10 percent for right knee disability arthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.71a, Diagnostic Code 5010. 2. The criteria for entitlement to a rating in excess of 10 percent for right knee laxity from September 18, 2020 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1977 to May 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was scheduled to appear in a hearing before a Veterans Law Judge in June 2018. The Veteran did not appear for the hearing and did not offer a good cause for failure to appear at the hearing and has not requested a new hearing, as such, the Board’s decision will be based on a review of the evidence of record. 38 C.F.R. § 20.302. This matter was previously remanded in an August 2018 Board decision. A remand by the Board imposes a concomitant duty to ensure compliance with the terms of the remand. Where the remand orders are not complied with, the Board itself errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Upon review, the Board finds that the remand directives have been complied with. The Board notes that the AOJ requested the Veteran submit any relevant private treatment records or submit information with which VA can assist the Veteran in obtaining private treatment records. VA requested records for which the Veteran submitted a proper release. The duty to assist is not a one way street. If a Veteran desires help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining evidence. Wood v. Derwinski, 1 Vet. App. 190 (1991). Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA’s duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). General Rating Principles 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 symptomatology 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. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. 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. 38 C.F.R. § 4.40. Functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. 38 C.F.R. § 4.59 (discussing facial expressions such as wincing, muscle spasm, crepitation, etc.). Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Excess fatigability and incoordination should be considered in addition to more movement than normal, less movement than normal, and weakened movement. 38 C.F.R. § 4.45. The Board will consider not only the criteria of the currently assigned diagnostic code, but also the criteria of other potentially applicable diagnostic codes. Rating Principles: Right Knee The Veteran is currently service connected for osteoarthritis of the right knee under diagnostic code 5260-5010 with a rating of 10 percent effective July 2, 2010. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. The Veteran is also service connected for right knee laxity under diagnostic code 5257 with a rating of 10 percent beginning September 18, 2020. Under diagnostic code 5010, arthritis due to trauma substantiated by X-ray findings is rated under diagnostic code 5003 as degenerative arthritis. Under diagnostic code 5003 degenerative arthritis established by X-ray findings will be rated based on limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (DC 5200 etc.). When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a rating of 10 percent is warranted with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups; a rating of 20 percent is warranted With X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups with occasional incapacitating exacerbations. Note 1 of diagnostic code 5003 says the 20 percent and 10 percent ratings based on X-ray findings, above, will not be combined with ratings based on limitation of motion. Note 2 of diagnostic code 5003 says 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. Under diagnostic code 5257 a rating of 10 percent is warranted for slight recurrent subluxation or lateral instability. A rating of 20 percent is warranted for moderate recurrent subluxation or lateral instability. A rating of 30 percent is warranted for severe recurrent subluxation or lateral instability. 30 percent is the highest rating under diagnostic code 5257. In Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011), the United States Court of Appeals for Veterans Claims (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., quoting 38 C.F.R. § § 4.40. 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; DeLuca v. Brown, 8 Vet. App. 202 (1995). 1. Entitlement to a rating in excess of 10 percent for the Veteran's service connected right knee disability. The Veteran contends that for the entire period on appeal, he is entitled to a rating in excess of 10 percent for his right knee osteoarthritis. For the reasons discussed below, entitlement to a rating in excess of 10 percent for right knee osteoarthritis is not warranted. June 2011 VA treatment records note a past medical history of bilateral knee discomfort. March 2013 VA treatment records note moderate bilateral knee discomfort over the past several years, getting worse. The Veteran was scheduled for trial physical therapy and instructed to follow up in 3 months. The Veteran presented for initial VA physical therapy evaluation in April 2013. The Veteran reported falling in December after his knee buckled. Right knee radiculopathy was noted with pain in non-weight bearing positions as well as popping and grinding and the Veteran was noted to have pain with ascending stairs. The Veteran reported that his average pain was an eight and a half out of ten with pain increasing when ascending stairs. Approximately three days later, also in April 2013, at his first physical therapy session, the Veteran walked with a cane. The Veteran rated his knee pain as a six out of ten. During his second physical therapy session in April 2013, the Veteran rated his pain as an eight out of ten, but reported no significant increase in pain level following his therapy session. During his third physical therapy session in April 2013, the Veteran reported pain of 12 out of ten but also kept trying to increase the resistance level on his exercise bike during his therapy session. During his fourth April 2013 physical therapy session the Veteran rated his pain as an 11 out of ten, noting that it was down from 12. During his fifth physical therapy session in April 2013, the Veteran reported that his knee pain was a ten out of ten. During this session the Veteran’s knees started to give out on him twice while standing in bars; both times he was able to correct himself. The Veteran was discharged from physical therapy at the end of April 2013. The Veteran reported that he did not feel a significant improvement in his knees, however, objectively, treatment records note that the Veteran met or grossly met all goals set for him which included pain level no greater than five out of ten; walking 300 feet without significant change in pain; ability to perform HEP; ascending 1 flight of stairs with good lower extremity control to decrease risk of falling. June 2013 VA imaging showed mild osteoarthritis. The Veteran reported that he continued to have pain after treatment with medication and physical therapy. The Veteran continued to complain of pain in February 2014 and reported no improvement with physical therapy. He requested surgical intervention. May 2015 VA treatment records note the Veteran continued to report bilateral knee pain with no improvement. June 2015 VA treatment records note ongoing complaints of pain. The Veteran reported popping with extension of the knees and locking approximately three to four times a day. The Veteran also reported that his knee occasionally gave out. With respect to assistive devices, the Veteran reported using a knee brace and finding it mildly helpful. The Veteran was also noted to ambulate with a cane, which helped with balance in the event his right leg gave out. It was recommended that the Veteran try weight loss and regular low impact exercise. Based on evidence of right knee locking, it was recommended that the Veteran be scheduled for an MRI. A July 2015 MRI of the right knee noted meniscal degenerative change, worse medially with a small tear of the medial meniscus. There was no evidence of effusion or bone bruising. September 2015 VA treatment records note ongoing complaints of pain with locking and occasional giving way. The Veteran received a right knee injection. January 2016 VA treatment records note ongoing complaints of knee pain. The Veteran reported persistent pain despite his September 2015 keen injection and agreed to physical therapy. The Veteran was afforded a VA examination for his knee in March 2017. Subjectively the Veteran reported gradually increasing knee problems over the years. The Veteran reported flare-ups with more severe pain which limits his activity. With respect to functional loss, the Veteran reported limiting his weight-bearing activities as well as kneeling and stooping. Objectively, the Veteran’s right knee demonstrated normal range of motion. While there was evidence of pain with weight bearing there was no evidence of localized tenderness or pain on palpation and no objective evidence of crepitus. The Veteran remained able to perform repetitive use testing with at least three repetitions and no additional functional loss after repetitions. Pain, fatigue and lack of endurance were noted with flare ups. The Veteran maintained 5/5 muscle strength on flexion and extension and there was no evidence of atrophy or ankylosis. The examiner noted no history of recurrent subluxation or lateral instability and no history of recurrent effusion. Joint stability testing noted no joint instability and there was no evidence of impairment of the tibia or fibula. Similarly, there was no evidence of a meniscal condition. The Veteran was noted to use a cane due to his knee condition and the examiner noted that arthritis was documented by imaging. The functional impact of the Veteran’s knee disability included an inability to do jobs that require prolonged weight bearing, kneeling or stooping. There was no evidence of pain on passive range of motion but there was some evidence of knee pain while at rest. May 2019 VA treatment records note the Veteran presented to rheumatology for evaluation of his bilateral knees pain. Upon examination there was no evidence of edema, cyanosis or clubbing. The Veteran was afforded another VA examination for his knee in September 2020. Subjectively, the Veteran reported that his knee condition was stable and about the same; he reported no recent physical therapy, cortisone injections or need for surgery. The Veteran reported that prolonged weight bearing activities, crossing legs or sitting for prolonged periods of time exacerbated his bilateral knee pain. He also reported that he can no longer participate in activities that require him to pick things up such as yardwork and snow removal. Objectively, the Veteran exhibited flexion to 130 degrees and extension from 0 to 130 degrees. Range of motion was noted to contribute to difficulty with all bending or kneeling activities. Pain was noted with flexion and weight bearing. Additionally, there was tenderness on palpation of patella and posterior knee as well as objective evidence of crepitus. The Veteran remained able to perform repetitive use testing with three repetitions and no additional functional loss after repetitions. The Veteran retained 5/5 muscle strength on flexion and extension and had no muscle atrophy or ankylosis. Joint stability testing was 1+ with respect to anterior instability, posterior instability, medial instability and lateral instability. There was no evidence of impairment of the tibia, fibula or meniscus. The Veteran was noted to constantly ambulate with a cane. There was objective evidence of pain on passive range of motion, and pain in non-weight bearing. The Veteran is currently service connected with a rating of 10 percent for arthritis of the right knee and a rating of 10 percent for laxity of the right knee. Ultimately, based on the evidence of record, a rating in excess of 10 percent for arthritis or laxity is not warranted. The record notes no evidence of incapacitating episodes which would warrant a 20 percent rating under diagnostic code 5010. 20 percent is the highest rating under diagnostic code 5010. As to the Veteran’s 10 percent rating for laxity under diagnostic code 5257, the record shows no more than slight laxity or instability. The Veteran is both competent and credible to report his symptoms. Subjectively, he has only reported occasional knee giving way with consistent complaints of pain. Further, during his VA examinations, the Veteran demonstrated no more than 1+ instability. The Veteran’s range of motion included flexion to 130 degrees and extension from 0 to 130 degrees. Further, while the Veteran demonstrated some tenderness to palpation, pain with flexion and weight bearing and difficulty with bending or kneeling activities, the Veteran remained able to perform repetitive use testing with three repetitions and no additional functional loss after repetitions; the Veteran also retained 5/5 muscle strength on flexion and extension and had no muscle atrophy or ankylosis. Based on this evidence, the severity of the Veteran’s more nearly approximate entitlement to a rating of 10 percent under diagnostic code 5010. Moreover, based on no evidence of ankylosis, cartilage dislocation, cartilage removal or genu recurvatum the Veteran is not entitled to any additional ratings under the rating criteria for the knee. Specifically, as there is no evidence of ankylosis, a rating is not warranted under diagnostic code 5256. Based on no evidence of dislocated semilunar cartilage with episodes of locking, a rating is not warranted under diagnostic code 5258. As there is no evidence of cartilage removal, a rating is not warranted under diagnostic code 5259. Based on the Veteran’s flexion of to 130 degrees, a compensable rating is not warranted under diagnostic code 5260 and based on the Veteran’s extension from 0 to 130 degrees a rating is not warranted under diagnostic code 5261. Finally, based on no evidence of impairment of the tibia and fibula and no evidence of genu recurvatum, ratings are not warranted under diagnostic code 5262 and 5263. Moreover, the severity of the Veteran’s symptoms do not more nearly approximate a rating in excess of 10 percent under any of the aforementioned diagnostic codes. The Board, in rendering a decision has considered all the evidence of record including the Veteran’s lay statements as well as the Veteran’s symptoms of pain, reduced range of motion and use of an assistive device. The Court has also established that flare-ups must be considered. Sharp v. Shulkin, 29 Vet. App. 26 (2017). Guidance on how to evaluate flare-ups has not been particularly clear. However, the Board finds overall wisdom in Mitchell. Flare-ups must be quantifiable and must result in limitation of motion or function beyond that contemplated by the already provided evaluation. In addition, because there is a regulation addressing stabilization of ratings, the flare-up must be of such length as to establish that the overall impairment is more severe than currently evaluated, rather than a brief snapshot in time. With that in mind, consideration has been given the reports of flare-ups during the VA examinations. VA examiners conducted physical examinations and considered the Veteran’s reports describing pain. As to the lay statements describing pain, the evidence does not demonstrate additional functional limitation more closely approximating the criteria for a higher rating. Such would not warrant a higher evaluation. The reported flare-ups are not of such length or duration that a staged rating would not violate the rule regarding stabilization of ratings. The contemporaneous treatment records contain little, if any, findings pertaining to flare-ups much less information regarding the Veteran’s functional ability during a flare-up or after repeated use over time. In a November 2020 brief, the Veteran’s representative contends that the Veteran is entitled to a new VA examination because the Veteran has not had knee examination in approximately a year and a half. Neither the Veteran, nor his representative have alleged that the severity of the Veteran’s knee disability has worsened since his previous VA examination. Moreover, the record does not suggest that the Veteran’s September 2020 VA examination fails to provide an adequate picture of the severity of the Veteran’s knee disability. The Board finds that the VA examinations of record are adequate, as they are based on an in person examination of the Veteran and take into consideration the Veteran’s subjective complaints of pain and functional loss. The examiner has adequately considered pain on weight bearing, pain on non weight bearing, passive range of motion and active range of motion. As the Veteran is also service connected for a left knee disability, there is no opposite undamaged joint. See 38 C.F.R. § 4.71, DCs 5260 5261; 38 C.F.R. §§ 4.40, 4.45, 4.59 (2019); 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). The VA examinations of record are adequate, and a new VA examination is not warranted. The Board has considered the applicability of other rating criteria for evaluating the musculoskeletal disabilities of the right knee under 38 C.F.R. § 4.71a ; however, there is no basis for assigning a higher or separate compensable rating under an alternate diagnostic code such as DCs 5256, 5259, 5262 or 5263. There is simply no evidence of ankylosis of the right knee, impairment of the tibia or fibula, or genu recurvatum. Based on the evidence of record, the severity of the Veteran’s symptoms do not more nearly approximate entitlement to a rating in excess of 10 percent for right knee arthritis or entitlement to a rating in excess of 10 percent for right knee laxity. Entitlement to a rating in excess of 10 percent for right knee osteoarthritis and a rating in excess of 10 percent for right knee laxity is denied. REASONS FOR REMAND 1. Entitlement to service connection for degenerative arthritis of the lumbar spine is remanded. 2. Entitlement to service connection for a right hip disability. The Board notes that the Veteran’s claims for service connection for degenerative arthritis of the lumbar spine and entitlement to service connection for a right hip disability were previously remanded for an opinion as to whether the Veteran’s service connected right knee disability caused or aggravated his degenerative arthritis of the spine and his right hip disability. In a May 2020 addendum opinion, the examiner opined that neither disability was aggravated by the Veteran’s right knee disability. However, the Board notes that the Veteran is also service connected for a left knee disability. As such, it should be considered whether the combined impact of the Veteran’s service connected bilateral knee disabilities which results in symptoms of pain, reduced range of motion, inability for prolonged standing and requires the use of a cane to ambulate, aggravate the Veteran’s degenerative arthritis of the lumbar spine or right hip disability beyond their natural progression. Accordingly, remand is warranted for an addendum opinion. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records from September 2020 and thereafter. 2. After all outstanding treatment records have been obtain, obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s right hip disability is at least as likely as not related/proximately due to or aggravated beyond its natural progression by the Veteran’s service connected left knee disability or the combined impact of the Veteran’s bilateral knee disabilities. . 3. After all outstanding treatment records have been obtain, obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s lumbar spine disability is at least as likely as not related/proximately due to or aggravated beyond its natural progression by the Veteran’s service connected left knee disability or the combined impact of the Veteran’s bilateral knee disabilities. The Veteran’s lay statements are to be considered credible for the limited purposes of this examination. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Wimbish, 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.