Citation Nr: 21007009 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 04-18 519 DATE: February 8, 2021 ORDER A disability rating of 20 percent, and no higher, for limitation of motion associated with degenerative joint disease (DJD) of the left knee is granted. FINDING OF FACT Throughout the appeal period, the Veteran’s DJD of the left knee was manifested by limitation of extension to 10 degrees (though to 30 degrees during flare-ups) and limitation of flexion of 90 degrees (though to 70 degrees during flare-ups). CONCLUSION OF LAW The criteria for a disability rating of 20 percent, and no higher, for limitation of motion associated with DJD of the left knee have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.6, 4.7, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5261. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from November 1981 to March 1988. The Veteran died in June 2020. Thereafter, the Veteran’s widow requested to be substituted as the appellant for purposes of processing claims on appeal at the time of the Veteran’s death.  See 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010; see also 79 Fed. Reg. 52977-85 (Sept. 5, 2014).  This request for substitution was granted in October 2020. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin which, in part, continued a 10 percent disability rating for limitation of motion associated with degenerative joint disease of the left knee and granted a separate 10 percent disability rating for left knee instability effective December 19, 2009. In March 2015, the Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing. A transcript of the proceeding has been associated with the claims file. In July 2015, the Board remanded the left knee issue on appeal. In November 2018, the Board, in part, continued the 10 percent disability rating for limitation of motion associated with degenerative joint disease of the left knee, continued the 10 percent disability rating for instability of the left knee, and granted a separate 20 percent disability rating for meniscal tear of the left knee. The Veteran appealed the Board’s November 2018 decision to the United States Court of Appeals for Veterans Claims (Court). In November 2019, the Veteran and VA’s Office of General Counsel filed a Joint Motion for Partial Remand (Joint Motion), in which both parties to the Joint Motion requested that the Court vacate and remand the Board’s November 2018 decision with respect to the issue concerning a disability rating greater than 10 percent for limitation of motion associated with degenerative joint disease of the left knee. Notably, the November 2019 Joint Motion did not disturb the Board’s decision concerning instability and/or meniscal tear of the left knee. In April 2020, the Board remanded the left knee issue on appeal for additional development pursuant to the November 2019 Joint Motion. A disability rating of 20 percent, and no higher, for limitation of motion associated with DJD of the left knee is denied. The appellant contends that the Veteran was entitled to a disability rating greater than 10 percent for limitation of motion of the left knee prior to his death. Significantly, during the March 2015 travel Board hearing, the Veteran testified that his knees were bone to bone, that they locked up and gave out, that he had issues with his knees buckling when he goes to stand up and falling, that he fell down on one occasion, and that he experienced popping in his knees. While extending his leg straight out was not an issue in terms of range of motion (ROM), bending his knees was difficult due to pain. Legal Criteria Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability.  Separate diagnostic codes identify the various disabilities.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.   If two ratings are potentially applicable, the higher rating 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.  Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran.  38 C.F.R. § 4.3.   A Veteran’s entire history is to be considered when assigning disability ratings.  38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).   When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995).   The Court also has issued the opinion of Correia v. McDonald, 28 Vet. App. 158 (2016), which clarifies additional requirements that VA examiners should address when assessing musculoskeletal disabilities, holding specifically, that the joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.   In addition, assignment of a disability rating should take into account consideration of limitation of functional ability during flare-ups or when a joint is used repeatedly over a period of time.  See DeLuca, supra.  Specifically, in Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court stated that flare-ups must be considered in providing an estimate of additional functional loss based on ROM.  Unfortunately, the guidance on how to evaluate flare-ups has not been particularly clear.  As a consequence, it is determined that the holding in Mitchell v. Shinseki, 25 Vet. App. 32 (2011), will be expanded and flare-ups must be quantifiable and must result in limitation of motion of function beyond that contemplated by the already provided evaluation.  Knee disabilities are generally rated pursuant to 38 C.F.R. § 4.71a, DC 5260 and/or 5261.  Pursuant to DC 5260, a noncompensable rating is assigned when flexion of the leg is limited to 60 degrees; a 10 percent rating is assigned when flexion is limited to 45 degrees; a 20 percent rating is assigned when flexion is limited to 30 degrees.  Pursuant to DC 5261, a noncompensable rating is assigned when extension of the leg is limited to 5 degrees; a 10 percent rating is assigned when extension of the leg is limited to 10 degrees; and a 20 percent rating is assigned when extension is limited to 15 degrees.  The standardized description of joint measurements is provided in Plate II under 38 C.F.R. § 4.71.  Normal extension and flexion of the knee is from 0 to 140 degrees.   Of note, the Board must consider whether the Veteran is entitled to separate ratings under DC 5260 (limitation of flexion of the leg) and DC 5261 (limitation of extension of the leg).  VAOPGCPREC 9-04 (September 17, 2004), published at 69 Fed. Reg. 59,990 (2004).  Specifically, where a Veteran has both a limitation of flexion and a limitation of extension of the same leg, the limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg. Id.   A number of other diagnostic codes also potentially apply to knee ratings.  Under 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.  Under DC 5257, a 10 percent rating is warranted for slight recurrent subluxation or lateral instability; a 20 percent rating is warranted for moderate recurrent subluxation or lateral instability.  Under DC 5258, dislocated semilunar cartilage, with frequent episodes of “locking,” pain, and effusion into the joint, is rated as 20 percent disabling.  Under DC 5259, a 10 percent disability rating is warranted for symptomatic removal of the semilunar cartilage.  Under 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 under 38 C.F.R. § 4.71a, a separate evaluation may be assigned for meniscal problems under DCs 5258 or 5259, even when ratings are in effect under DCs 5257 and 5261. Factual Background By way of history, service treatment records show an injury to the left knee in June 1982 and, by rating decision dated in July 2007, the RO granted service connection for DJD, left knee, assigning a 10 percent disability rating effective August 29, 2006. The Veteran submitted the current claim for an increased rating in December 2009 and, by rating decision dated in October 2010, the RO continued the previously assigned 10 percent disability rating. The Veteran disagreed with this decision and perfected this appeal. Evidence relevant to the level of severity of the Veteran’s left knee disability during the appeal period beginning December 2009 includes VA treatment records dated from 2009 through the Veteran’s death in June 2020. Also pertinent are VA knee examination reports dated in July 2010, August 2015, and September 2015 as well as a VA medical opinion dated in October 2020 which was obtained after the Veteran’s death pursuant to the November 2019 Joint Motion. Throughout 2009, the Veteran consistently complained of bilateral knee pain and intermittently complained of swelling in the knees bilaterally. Although the VA treatment records during this period recorded his pain ratings, these fluctuated between zero to nine out of 10 on the pain scale, with 10 being the most severe. Significantly, an October 2009 VA treatment record shows that the Veteran was experiencing some crunching and popping in his knees when standing after sitting and climbing stairs. At that time, the Veteran ambulated with a normal gait without antalgia and there was femoral anteversion during extension in swing and early stance phases. It was noted that there was retropatellar dysphoria with quad contraction in extension, which was accompanied by either reflex inhibition or voluntary cogwheeling. Even so, ROM testing showed he could achieve 90 degrees of flexion and 10 degrees of extension bilaterally with active ROM. With passive ROM, he demonstrated 110 degrees of flexion and 10 degrees of extension bilaterally. His stress testing was stable. Further, there was evidence of genu valgum bilaterally, but the right knee was worse than the left. There was no objective medical evidence of any crunching or popping associated with his left knee. An April 2010 VA treatment record shows continued complaints of crunching and popping in the knees when standing after sitting as well as climbing stairs. At that time, the Veteran ambulated with a normal gait without antalgia. He continued to demonstrate femoral anteversion during extension in swing and early stance phases. He could achieve 100 degrees of flexion and 10 degrees of extension bilaterally with active ROM. With passive ROM, he demonstrated 110 degrees of flexion and 10 degrees of extension bilaterally. His stress testing remained stable. There was no dysphoria but there was evidence of voluntary cogwheeling with quad contraction in extension. Further it was noted that there was no objective medical evidence of crepitation, grinding or popping. During the July 2010 VA joints examination, the Veteran averred that he continued to suffer from swelling, popping and pain in his left knee. While he used a brace to help with stability, it did not help relieve the pain. His daily living activities were affected because it was difficult to put his socks and shoes on. He denied experiencing any flare-up episodes. Although he reported missing 260 hours of work in the past two years due to his knees and other health issues, he did not indicate how much work was missed due to his left knee disability alone. Upon ROM testing, the Veteran was able to achieve flexion of 120 degrees and extension of 10 degrees. Although there was increased pain with repetitive use testing, there was no additional limitation of motion or function. In addition, there was evidence of crepitus, which was greater at the lateral joint lines than the medial joint lines or the patellofemoral compartment. There was also evidence of effusion with synovitis as well as mild lateral instability with varus stress. Further, the Veteran exhibited a limping gait. Based on the findings, the VA examiner determined that neither incoordination, fatigue, weakness or lack of endurance were contributing factors of his left knee disability. An October 2010 VA treatment record shows complaints of constant pain in his knees bilaterally, which he rated at an eight out of 10. Nonetheless, he stated that he continued to go to the gym, lift weights, walk and bike. He continued to experience swelling, especially after exercising. He also continued to wear knee braces. The Veteran ambulated without acute distress. His active ROM was within normal limits with both flexion and extension. There was evidence of mild swelling bilaterally, which was greater in the right knee than the left. His muscle tone was good bilaterally. A March 2011 VA treatment record shows complaints of continued bilateral knee pain. ROM testing revealed flexion to approximately 150 degrees bilaterally and he “lacked a few degrees” of extension bilaterally, without recording specific measurements. The Veteran demonstrated some discomfort with ROM as well as evidence of crepitus bilaterally. A June 2011 private treatment record shows decreased tolerance for squatting, stooping and climbing in the bilateral extremities. In particular, he had difficulty squatting 12 inches from the floor safely. There was evidence of moderate tenderness to the bilateral knees. Even still, his bilateral lower extremities were found to be grossly within functional limits. He could sit for eight hours at a time and stand for two hours. His balance was within normal limits. He denied suffering from any falls in the past 12 months. He ambulated independently without assistive devices, despite a jerky gait. He demonstrated full weight-bearing, bilaterally. Notably, no ROM measurements for the lower extremities were included. It was noted that the Veteran exhibited significant limitations because of his bilateral knee pain and that the Veteran’s functional abilities were consistent with his reported pain levels. A December 2012 VA treatment record shows complaints of bilateral knee pain, which he rated at an eight out of 10. However, he denied experiencing any pain in a non-weight bearing position. The Veteran reported popping, catching, locking, grating, giving way as well as stiffness. He exhibited full weight-bearing and did not rely on any assistive devices. The Veteran was able to demonstrate flexion of 108 degrees with the left knee as well as extension of three degrees. Although there was reduced muscle strength in all respects, which was rated at a 4/5, there was no evidence of muscle atrophy. There was evidence of tenderness at the bilateral knee joints. Even though there was no evidence of joint instability, the lateral meniscus test was positive indicating the presence of a tear. A February 2014 VA treatment record shows increased difficulty with ambulation due to pain. Even so, he admitted he could climb 15 steps at home with the assistance of a rail. He relayed falling down in March 2013 after his knees gave way, but he did not disclose any subsequent falls. Upon examination, the Veteran had full ROM for ambulation with a single point cane, but specific ROM measurements for flexion and extension were not included. Further, while the Veteran’s gait was slow, it was steady and his balance was good. During the August 2015 VA knee examination, the Veteran relayed experiencing bilateral knee pain with recurrent effusion in the right only. He stated the pain increased with prolonged standing, sitting, walking, squatting and kneeling. However, he did not describe any limitation of motion or function attendant with the increased pain. Of note, he denied experiencing any flare-up episodes. He reported that he stopped working in 2012 due to multiple orthopedic issues, not just limited to his left knee disability. Following ROM testing, the examiner documented flexion of 120 degrees and extension of zero degrees. There was pain noted with both motions. The VA examiner determined that limitation of motion contributed to functional loss, specifically it prevented squatting. There was no additional limitation of motion or function after repetitive use testing. Additionally, there was evidence of generalized tenderness and crepitus. However, the Veteran’s muscle strength was normal, without any evidence of muscle atrophy. There was no evidence of ankylosis or recurrent left knee effusion. There was a history of slight left knee lateral instability and joint stability testing at the time of examination was positive for lateral instability of the left knee, which was scored at 1+ on a scale ranging from normal to 3+. Further, it was noted that the Veteran required the constant use of a brace and cane due to the pain in his knees. No other pertinent physical findings, complications, conditions, signs or symptoms were noted. The only additional contributing factor was decreased movement due to pain and adhesions. The VA examiner noted that these findings were neither medically consistent with nor inconsistent with the Veteran’s lay statements describing functional loss with repeated use over time. Given that the examination was not conducted immediately following repeated use over time, the examiner stated it would constitute mere speculation to express additional limitation of motion due to pain, weakness, fatigability or incoordination in terms of degrees of ROM. In terms of functional impact on the Veteran’s ability to work, the VA examiner determined that while he would be unable to engage in prolonged standing and walking, he would be able to engage in sedentary employment. During the September 2015 VA knee examination, the Veteran reported experiencing pain, locking, popping, clicking, fatigue, stiffness, cramping, grinding and swelling. He asserted that he was unable to walk or stand for prolonged periods of time. He also reported suffering flare-up episodes, which consisted of pain and swelling. However, he did not describe any limitation of motion or function attendant with the increased pain and swelling. ROM testing revealed flexion of 100 degrees and extension of zero degrees. Pain was noted with both motions as well as with weight-bearing. It was noted that the Veteran’s limitation of motion contributed to functional loss in that he was unable to stand for prolonged periods or squat. There was no additional limitation of motion or function following repetitive use testing. Additionally, there was evidence of moderate to severe tenderness or pain on palpation of the patella and crepitus. His muscle strength was reduced, scoring 4/5, indicating active movement against some resistance, in all respects. Even so, there was no evidence of muscle atrophy. There was no evidence of ankylosis but there was a history of slight left lateral instability. Joint stability testing revealed left lateral instability. It was noted that the meniscal tear of the left knee was manifested by frequent episodes of joint locking, constant joint pain, and joint effusion requiring drainage. The Veteran required the constant use of a brace as well as regular use of a pillow and transcutaneous electrical nerve stimulation unit. As a result of repairs of the left meniscal tear and debridement in 1994 and 2008, there were three porthole scars on the left knee. None of the scars were unstable or painful and they did not cover a total area equal to or greater than 39 square centimeters. Additional contributing factors of the left knee disability were weakened movement, instability of station, disturbance of locomotion and interference with standing. It was noted that these findings were medically consistent with the Veteran’s lay statements describing functional loss during flare-up episodes and with repetitive use over time. While the examiner found that pain, fatigue, weakness, lack of endurance and incoordination significantly limited functional ability during a flare-up and with repeated use over time, the examiner was unable to describe it terms of ROM without resorting to mere speculation because pain thresholds are too variable. In terms of functional impact on the Veteran’s ability to work, the VA examiner determined that while he would be unable to stand, squat, walk, run or climb stairs. Notably, both the August and September 2015 VA examination reports were found to be inadequate in the November 2019 Joint Motion as these reports did not comply with Correia, Mitchell, Sharp, and Jones. As such, the case was remanded by the Board in April 2020 Board to obtain a new adequate VA examination. Unfortunately, the Veteran died in June 2020. As such, a retrospective VA opinion was obtained in October 2020. Significantly, upon review of the claims file, the October 2020 VA examiner found that, prior to his death, the Veteran experienced bilateral knee flare-ups over the years, evidenced by visits to his treating physicians with complaints of pain, swelling, and impaired mobility and speculated that the Veteran lost 20 degrees of flexion and extension in both knees when he would have these flare-ups. Analysis Upon review of the medical evidence, the Board finds that a disability rating of 20 percent, and no higher, is warranted for the Veteran’s left knee DJD during the appeal period beginning December 2009. Prior to his death, the Veteran’s left knee DJD was rated as 10 percent disabling under DC 5261 pertaining to loss of extension. As above, pursuant to DC 5261, a 20 percent rating is assigned when extension is limited to 15 degrees. Pursuant to DC 5260, a 10 percent rating is assigned when flexion is limited to 45 degrees.    While the Veteran’s ROM vacillated during the appeal period beginning December 2009, he was found to have extension to only 10 degrees in October 2009, April 2010, and July 2010 and was found to have flexion to only 90 degrees in October 2009. Furthermore, the October 2020 VA examiner speculated that the Veteran “lost 20 degrees of flexion and extension in both knees” during flare-ups. As such, when accounting for the additional loss of 20 degrees of extension and flexion during flare-ups, the Veteran had extension to only 30 degrees and flexion to only 70 degrees prior to his death. Therefore, a 20 percent rating is warranted for extension limited to 15 degrees or more pursuant to DC 5261. However, even with a flexion of 70 degrees, the Veteran did not meet the criteria for a separate compensable rating under DC 5260 based on his limitation of flexion. While the Veteran did experience mild instability of the left knee, the Veteran was in receipt of a separate 10 percent disability rating for instability prior to his death pursuant to DC 5271. As for the potential for separate compensable rating under DCs 5256 (ankylosis), 5258 (dislocation of the semilunar cartilage), 5259 (removal of the semilunar cartilage), 5262 (impairment of the tibia and fibula), 5263 (genu recurvatum), there was no medical evidence of any of these impairments of the left knee prior to the Veteran’s death. The only other symptom raised by the record are the scars of the left knee following the Veteran’s repairs of the meniscal tear and debridement in 1994 and 2008. As noted above, the September 2015 VA examiner found there were three porthole scars on the left knee. However, none of the scars were unstable or painful. Further, they did not cover a total area equal to or greater than 39 square centimeters (six square inches). As such, a separate compensable disability rating for the Veteran’s left knee scars is not warranted. See 38 C.F.R. § 4.118, DCs 7800, 7801, 7802, 7804, and 7805. While neither the July 2010, August 2015, nor September 2015 VA examinations comply with Correia, as above, the case was remanded by the Board in April 2020 to obtain such an examination, but the Veteran passed away in June 2020 before such examination could be afforded and the October 2020 VA opinion includes a retrospective opinion as to the absolute worst ROM for this Veteran based on a review of the Veteran’s treatment records prior to his death. As such, VA has made all reasonable attempts to afford the Veteran a VA examination that complies with Correia. The Board acknowledges the Veteran’s consistent reports of pain, loss of motion, and flare-ups of the left knee but the record showed that he had flexion to at least 70 degrees and extension to at least 30 degrees.  These ROM findings consider additional functional loss during flare-ups.  Given that his complaints do not prevent him from achieving substantial measured ROM of the left knee they do not support a finding of additional functional loss for a higher rating.  The Veteran’s complaints have been taken into consideration, but there is no evidence that his left knee DJD causes significant or additional functional loss beyond that contemplated by the assigned 20 percent evaluation.  See 38 C.F.R. § 4.71, DCs 5260, 5261; 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, Mitchell, Correia, and Sharp, all supra.   In short, a disability rating of 20 percent, and no higher for loss of extension of the left knee is warranted but separate compensable evaluations based on additional limitation of flexion or other disabilities of the left knee are not warranted.  See 38 C.F.R. § 4.71a, DCs 5260, 5261.  Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board April Maddox, 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.