Citation Nr: 21007423 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 15-16 413 DATE: February 9, 2021 THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for left hip degenerative changes. 2. Entitlement to an initial rating in excess of 10 percent for right hip degenerative changes. 3. Entitlement to an initial rating in excess of 10 percent for right knee arthritis. ORDER Entitlement to an initial rating in excess of 10 percent for right knee arthritis is denied. REMANDED Entitlement to an initial rating in excess of 10 percent for left hip degenerative changes is remanded. Entitlement to an initial rating in excess of 10 percent for right hip degenerative changes is remanded. FINDINGS OF FACT For the entire period on appeal, the Veteran's right knee disability manifested by pain on movement of the joint, limitation of extension to zero degrees, limitation of flexion to 80 degrees, pain, weakness, and fatigability of the right knee. CONCLUSION OF LAW The criteria for an initial increased disability rating for degenerative joint disease (DJD) of the right knee greater than 10 percent have not been met or approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, Diagnostic Code 5010-5260 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from May 1990 to October 1990 and from December 1990 to August 2010. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In November 2018, the Board remanded these matters for further development, including obtaining VA medical examinations. In regards to the issue of an increased disability rating for the right knee, the Board finds that there has been substantial compliance with its remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). The issues of increased disability ratings for the bilateral hips are addressed in the remand section. Entitlement to an initial rating in excess of 10 percent for right knee arthritis is denied. Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Traumatic arthritis under DC 5010 is rated using the degenerative arthritis criteria under DC 5003. Under that code, degenerative arthritis, established by X-ray findings, is to be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. Where, 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. 38 C.F.R. § 4.71a, DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Under DC 5003, degenerative arthritis, when established by X-ray findings, will be rated on the basis of limitation of motion under the appropriate DCs for the specific joint or joints involved. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate DCs, 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 DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, DC 5003. 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. In addition, the intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. This regulation also provides that the intent of the Rating Schedule is to recognize painful motion with joint or periarticular pathology as productive of disability, and that crepitation should be noted carefully as points of contact, which are diseased. Thus, when assessing the severity of a musculoskeletal disability that, as here, is at least partly rated on the basis of limitation of motion, VA must also 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 her symptoms are most prevalent ("flare-ups") due to the extent of her pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). Notably, the Court has held that pain alone does not equate with functional loss under 38 C.F.R. §§ 4.40 and 4.45 but may cause functional loss if affecting some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, and endurance. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Included within 38 C.F.R. § 4.71a are multiple DCs that 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), DC 5263 (genu recurvatum), and 5275 (shortening of the bones of a lower extremity). The criteria of DC 5256 pertain to ankylosis. Ankylosis refers to immobility and consolidation of a joint due to disease, injury, or surgical procedure). See Shipwash v. Brown, 8 Vet. App. 218, 221 (1995) (citing DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 91 (27th ed. 1988). According to DC 5257, a 10 percent rating will be assigned with evidence of slight recurrent subluxation or lateral instability of a knee; a 20 percent rating will be assigned with evidence of moderate recurrent subluxation or lateral instability; and a 30 percent rating will be assigned with evidence of severe recurrent subluxation or lateral instability. Under DC 5258, a 20 percent rating is warranted for dislocation of semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. Under DC 5259, a 10 percent rating is warranted for symptomatic removal of semilunar cartilage. The DCs that focus on limitation of motion of the knee are DCs 5260 and 5261. Normal range of motion of the knee is to zero degrees extension and to 140 degrees flexion. See 38 C.F.R. § 4.71a, Plate II. Under DC 5260, a noncompensable rating will be assigned for limitation of flexion of the leg to 60 degrees; a 10 percent rating will be assigned for limitation of flexion of the leg to 45 degrees; a 20 percent rating will be assigned for limitation of flexion of the leg to 30 degrees; and a 30 percent rating will be assigned for limitation of flexion of the leg to 15 degrees. 38 C.F.R. § 4.71a , DC 5260. Under DC 5261, a noncompensable rating will be assigned for limitation of extension of the leg to 5 degrees; a 10 percent rating will be assigned for limitation of extension of the leg to 10 degrees; a 20 percent rating will be assigned for limitation of extension of the leg to 15 degrees; a 30 percent rating will be assigned for limitation of extension of the leg to 20 degrees; a 40 percent rating will be assigned for limitation of extension of the leg to 30 degrees; and a 50 percent rating will be assigned for limitation of extension of the leg to 45 degrees. 38 C.F.R. § 4.71a, DC 5261. Under Diagnostic Code 5275, shortening of the bones of a lower extremity between 1.25 and 2 inches (3.2 to 5.1 cm) warrants a 10 percent rating. A 20 percent rating is warranted for 2 to 2.5 inches (5.1 to 6.4 cm); a 30 percent rating is warranted for 2.5 to 3 inches (6.4 to 7.6 cm); a 40 percent rating is warranted for 3 to 3.5 inches (7.6 to 8.9 cm); a 50 percent rating is warranted for 3.5 to 4 inches (8.9 to 10.2 cm); and a 60 percent rating is warranted for more than four inches(10.2 cm or more). 38 C.F.R. § 4.71a, DC 5275. In general, separate disability 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. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Court has also held that "within a particular diagnostic code, a claimant is not entitled to more than one disability rating for a single disability unless the regulation expressly provides otherwise." Cullen v. Shinseki, 24 Vet. App. 74 (2010). VA's Office of General Counsel has stated that compensating a claimant for separate functional impairment under DCs 5257 and 5003 does not constitute pyramiding. VAOPGCPREC 23-97 (July 1, 1997). In this opinion, the VA General Counsel held that a Veteran who has arthritis and instability of the knee may be rated separately under DCs 5003 and 5257, provided that a separate rating is based upon additional disability. Subsequently, in VAOPGCPREC 9-98 (Aug. 14, 1998), the VA General Counsel further explained that if a Veteran has a disability rating under DC 5257 for instability of the knee, and there is also x-ray evidence of arthritis, a separate rating for arthritis could also be based on painful motion under 38 C.F.R. § 4.59. See also VAOPGCPREC 9-04 (Sept. 17, 2004) (which finds that separate ratings under DC 5260 for limitation of flexion of the leg and DC 5261 for limitation of extension of the leg may be assigned for disability of the same joint). The Board has reviewed all the evidence of record. Although the Board must provide reasons or bases supporting its decision, there is no legal requirement that the Board specifically discuss each item of evidence in the record. Hence, the Board will summarize the pertinent evidence for each issue as deemed appropriate, and the analysis will focus on what the evidence shows or does not show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000)). The Veteran is currently in receipt of a 10 percent disability rating for her right knee arthritis based on painful motion of the joint under 38 C.F.R. § 4.71a for the entire period on appeal. Historically, the Veteran filed her claim for service connection for a right knee disability in May 2010, prior to separation from service. The Veteran was awarded service connection for her right knee disability in a January 2012 rating decision and assigned an initial noncompensable disability rating. The Veteran filed a timely Notice of Disagreement (NOD) in December 2012. A subsequent April 2015 rating decision granted an initial increased disability rating of 10 percent, but continued to deny a disability rating in excess of 10 percent for the right knee. The Veteran filed a timely Form 9 in May 2015 and properly perfected her appeal. Turning to the medical evidence, the Veteran separated from service on August 31, 2010 and was awarded service connection for a right knee disability September 1, 2010. Prior to her separation from service, service treatment records (STRs) reveal complaints of stiffness and pain. See May 2010 STR. The most recent STRs note that the Veteran lacked “3-5 degrees of full extension” and that flexion was limited to 130 degrees. No laxity was found, and tenderness was not observed upon ambulation. Gait was found to be normal. Id. An October 2010 VA examination noted complaints of right knee pain. There was no stiffness, weakness, incoordination, decreased speed of motion, and there were no episodes of dislocation, subluxation, or locking. The condition was not found to affect the motion of the joint. The Veteran reported flare-ups with prolonged periods of sitting and with using stairs. These flare ups which the Veteran described as “9/10,” resolved with local heat or ice, massages, exercise, and pain medication. Crepitus and possible effusion were noted, but there were no patellar, meniscus, or other knee abnormalities. The Veteran denied instability, clicks or snaps, and grinding of the right knee. Range of motion of the right knee was normal for extension and flexion. There was no objective evidence of pain following repetitive motion and there was no additional limitation after three repetitions of range of motion. The examiner found no ankylosis. A radiologist report from May 2012 found no evidence of effusion and noted osteoarthritis and possible prepatellar bursitis. A September 2013 private radiology report found a slight increase in tricompartmental osteoarthritis and chondromalacia patella. The lateral meniscus was stable. Radiology reports throughout the period on appeal continue to find no effusion. The Veteran was afforded another VA examination in October 2014. The Veteran made subjective reports locking and giving way. The Veteran’s range of motion was noted to be normal extension and flexion limited to 110 degrees. Range of motion after repetitive use testing did not reveal additional limitation of range of motion. The examiner found less movement than normal contributed to functional loss and/or impairment of the right knee. There was no tenderness or pain to palpitation and joint stability testing was normal for the right knee. There was no evidence or history of recurrent patellar subluxation or dislocation. The examiner also found no history of shin splints, stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment. The Veteran had no past or present meniscal conditions. The Veteran was noted to occasionally use a brace for her right knee. No other abnormalities were cited. Finally, the examiner found the Veteran’s knee condition did not impact her ability to work. However, the examination was not conducted after a review of the Veteran’s claims file. In July 2015, the Veteran submitted a private knee examination from Dr. T.T., who indicated that no records of any kind were reviewed. The Veteran reported painful flare ups, and stated that she had difficulty standing and getting on all fours for her job as a help desk specialist replacing computers and tracking cables. Upon examination, initial range of motion found normal extension, but limitation of flexion to 90 degrees. The range of motion was found to result in difficulty with prolonged standing, walking, and sitting. The examiner found pain on flexion and pain with weight bearing, but no objective evidence of crepitus. After observed repetitive use, the Veteran was found to have normal extension, but flexion limited to 85 degrees. The examiner noted pain, fatigue, and weakness limited functional ability after repetitive use over time and with flare ups, with normal extension but flexion limited to 85 degrees. The examiner found less movement than normal, weakened movement, disturbances of locomotion, and interference with sitting and standing. Muscle strength was noted to be “4/5” and there was no evidence of muscle atrophy or ankylosis. There was no history of recurrent subluxation, lateral instability, or recurrent effusion. Joint stability testing revealed normal results. No past or present meniscus condition was noted. The examiner found that the Veteran’s left leg was 2cm shorter than her right. The Veteran reported the regular use of a brace. The examiner found the Veteran’s knee disability impacted her ability to engage in prolonged standing, walking, and sitting. The Veteran was afforded another VA examination in March 2017. The Veteran made subjective reports of pain, stiffness, instability, weakness, cracking, and tenderness. The Veteran’s range of motion was noted to be normal extension and flexion limited to 95 degrees. There was pain on flexion and extension that caused functional loss, but there was no evidence of pain with weight bearing or objective evidence of crepitus. Range of motion after repetitive use testing did not reveal additional limitation of range of motion. There was no evidence or history of recurrent patellar subluxation, lateral instability, or recurrent effusion. In a June 2017 clarification response, the examiner indicated that stability testing had been performed, and that there was no instability found on examination. The examiner found a history of shin splints, but noted it did not affect range of motion of the knee. The Veteran had no past or present meniscal conditions. The Veteran was noted to regularly use a brace for her right knee. No other abnormalities were cited. Finally, the examiner found the Veteran’s knee condition impacted her ability to sit for long periods of time. In its November 2018 decision, the Board found that while the 2017 VA examiner stated that joint testing per Correia v. McDonald, 28 Vet. App. 158 (2016) was performed as medically appropriate, the examination report did not list range of motion testing with degrees of motion for active motion, passive motion, weightbearing, and nonweight-bearing or explain why it would not have been medically appropriate to perform such testing. Therefore, the Board remanded the issue for the Veteran to be afforded a new VA examination that included all required testing under Correia, 28 Vet. App. 158. The Veteran was afforded such a VA examination in August 2019. The Veteran reported moderate to severe flare ups 8 to 10 times a month lasting 1 to 3 days precipitated by using stairs, sitting, and standing. These flare ups were relieved by elevating the limb and taking pain medication. The Veteran reported that her knee would buckle at times. The Veteran’s range of motion was noted to be normal extension and flexion limited to 90 degrees. There was pain on flexion and extension that caused functional loss. There was evidence of pain with weight bearing but no objective evidence of crepitus. Range of motion after repetitive use testing did not reveal additional limitation of range of motion. The examiner noted that the examination was being conducted after repetitive use and during a flare up resulting in pain. There was evidence of interference with sitting and standing. There was no evidence or history of recurrent patellar subluxation, lateral instability, or recurrent effusion. Joint stability testing was performed and results were normal. The examiner found no history of shin splints, recurrent patellar dislocation, stress fracture of the lower leg, chronic exertional compartment syndrome or any other tibial or fibular impairment. The Veteran had no past or present meniscal conditions. The Veteran was noted to occasionally use a brace for her right knee. No other abnormalities were cited. The examiner found the Veteran’s knee condition impacted her ability to sit for long periods of time. The examiner found there was no additional loss of motion after recording range of motion measurements based on all correia requirements. Finally, the examiner indicated that the point at which pain was observed upon examination was at 80 degrees flexion and 0 degrees extension. Imaging conducted in concert with the examination failed to show any meniscal condition. Various VA and private treatment records shows the Veteran received ongoing physical therapy for her right knee and had ongoing complaints of stiffness, instability, and pain with occasional pain on motion and tenderness with ambulation. Additionally, while the VA treatment records report a possible, suspected meniscal tear, the most recent comprehensive VA examination with imaging did not find any meniscal condition, as noted above. VA treatment records, private treatment reports, and lay evidence discussed above, underscore that the Veteran's report of pain. The 10 percent evaluation now contemplates pain on motion and is consistent with limitation of flexion to 80 degrees and limitation of extension to zero degrees. In order to warrant a higher evaluation, there must be the presence of the functional equivalent of limitation of flexion to 30 degrees. A separate evaluation may be assigned for compensable limitation of extension. The Veteran's service-connected right knee disability is currently rated under Code 5003-5260, with a 10 percent rating being sustainable under 38 C.F.R. § 4.59 based on painful motion of the knee joint. At worst, the Veteran had zero to 80 degrees of flexion in the right knee, as reported in the in the September 2019 VA examination. As noted above, the normal range of motion for the knee is from zero degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II (2020). Clearly, this does not warrant an increased or separate disability rating assigned for limitation of flexion or extension under either diagnostic code 5260 or 5261. With regard to Diagnostic Code 5257, which pertains to recurrent subluxation or lateral instability of the knee, although the Veteran has reported subjective feelings of her right knee giving way, repeated objective testing of the right knees has revealed no recurrent subluxation or lateral instability. In that regard, the Board acknowledges that the Veteran is competent to report experiencing such symptoms as giving way of the knee. However, after reviewing the medical treatment evidence of record, the Board finds that the collective medical evidence of record reflects no objective evidence of instability. At the September 2019 Compensation and Pension Examination, she did not have a history of recurrent subluxation or knee instability, and joint stability testing revealed "normal" Lachman test, posterior drawer test, medial stability, and lateral stability in both knees. In fact, her stability has consistently been deemed normal throughout the record according to objective testing. The Board finds that the competent medical evidence weighs against a finding that the Veteran's service-connected right knee disability manifested in at least slight recurrent subluxation or lateral instability. The Board places weight on the medical evidence because the various tests were developed to specifically measure instability and were administered by specially trained and educated medical professionals. For these reasons, the Board finds that an additional rating based on instability of the right knee is not warranted under Diagnostic Code 5257. See English v. Wilkie, 30 Vet. App. 347 (2018). There is no evidence of ankylosis; consequently Code 5256 does not apply. There is also no evidence a meniscal. Consequently, Codes 5258 and 5259 do not apply. Finally, the Veteran has not been shown to have a compensable level of a shortening of the bones of the lower extremity, therefore Code 5275 does not apply. In short, an increased rating is not warranted under any applicable criteria. The Board has considered the provisions of 38 C.F.R. §§ 4.40 and 4.4 and DeLuca, 8 Vet. App. at 202, but finds that when reviewing the evidence of record related to limitation of motion, weakened motion, excess motion, incoordination, fatigability, and pain on motion, there is no indication, even on repetitive testing, that the next higher ratings would be available to the Veteran under the applicable criteria. REASONS FOR REMAND Entitlement to a disability ratings in excess of 10 percent for a right hip disability, and entitlement to a disability rating in excess of 10 percent for a left hip disability, are remanded. The Veteran has undergone multiple VA examinations of her hips, including in October 2010, November 2014, and May 2017. In its November 2018 Remand, the Board found that these examinations did not comply with the joint test requirements per Correia v. McDonald, 28 Vet. App. 158 (2016). Therefore, the Board remanded the matter in order to afford the Veteran a new VA examination which listed range of motion testing with degrees of motion for active motion, passive motion, weightbearing, and nonweight-bearing or explained why it would not have been medically appropriate to perform such testing. Additionally, the Board required the examiner to include whether the Veteran can cross her legs or "toe-out more than 15 degrees" in her report, as this information was required by Diagnostic Code 5253. Upon remand the Veteran was afforded a new VA examination in September 2019. While the examiner recorded the appropriate range of motion testing required by Correia, and indicated that the Veteran could cross her legs, there was no determination as to whether the Veteran could “toe out 15 or more degrees.” Therefore, the Board finds the opinion to be inadequate for rating purposes. On remand, the Veteran should be afforded a new VA examination that complies with the November 2018 Board remand directives. The matters are REMANDED for the following action: 1. Obtain any outstand and relevant VA and/or private treatment records. Should such exist, associate them with the claims file. 2. Thereafter, schedule the Veteran for an examination of the current severity of her right hip disability and her left hip disability. The examiner must test (and record) the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The evaluation must include whether the Veteran can cross her legs or "toe-out more than 15 degrees," as this is a part of the rating criteria under Diagnostic Code 5253. The examiner should note the degree at which painful motion is observed, if painful motion is observed. 3. Thereafter, readjudicate the issues on appeal as noted above. If the determination remains unfavorable to the Veteran, she and her representative should be furnished a supplemental statement of the case (SSOC) which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and her representative should be afforded the applicable time period to respond. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. E. Geary, 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.