Citation Nr: 21008673 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 10-44 038A DATE: February 17, 2021 ORDER Entitlement to a disability rating in excess of 20 percent for service-connected left knee degenerative joint disease (a left knee disability) is denied. Entitlement to an initial disability rating in excess of 10 percent for service-connected right knee degenerative joint disease with arthralgia (a right knee disability) is denied. A separate 10 percent rating for instability of the left knee, effective September 17, 2009, is granted. A separate 10 percent rating for instability of the right knee, effective December 18, 2009, is granted. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s service-connected left knee disability has been manifested by painful motion with flexion limited to at most 80 degrees and extension limited at most to 10 degrees. His knee feels like it gives way. His meniscal tear only manifests with frequent episodes of joint pain. Recurrent subluxation, impairment of the tibia or fibula, genu recurvatum, and ankylosis of the knee are not indicated. 2. The Veteran’s service-connected right knee disability has been manifested by painful motion with flexion limited to at most 110 degrees and extension limited at most to 10 degrees. His knee feels like it gives way. A meniscal condition, recurrent subluxation, impairment of the tibia or fibula, genu recurvatum, and ankylosis of the knee are not indicated. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 20 percent for a service-connected left knee disability have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5010, 5260, 5261. 2. The criteria for an initial disability rating in excess of 10 percent for a service-connected right knee disability have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5010, 5260, 5261. 3. The criteria for a 10 percent, but no higher, disability rating for left knee instability, effective September 17, 2009, have been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2020). 4. The criteria for a 10 percent, but no higher, disability rating for right knee instability, effective December 18, 2009, have been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1972 to July 1978. This matter comes before the Board of Veterans’ Appeals (Board) from December 2009 and March 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The appeal was before the Board in March 2016 and June 2017, where it was remanded for additional development. It returned to the Board in August 2018, where all claims were denied. The Veteran appealed the Board’s denials to the United States Court of Appeals for Veterans Claims (Court), and pursuant to a June 2019 Joint Motion for Remand (JMR) filed by the parties, the Court vacated and remanded the claims back to the Board. The appeal was returned to the Board in November 2019, where it was again remanded for action consistent with the JMR; specifically, a new VA knee examination to address duty to assist deficiencies pertaining to a June 2017 VA examination. This development has been completed, and the appeal now returns again for further adjudication. The Board notes that additional VA treatment records were added to the file since the last Supplemental Statement of the Case (SSOC) issued for these claims in August 2020. Review of these records, however, indicates that they are either irrelevant to the issues at hand or are duplicative of treatment records already in the claims file at the time of the August 2020 SSOC. Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist. Increased Ratings Disability ratings 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 (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Different ratings may be assigned for different periods of time for the same disorder if the facts show distinct time periods with different levels of disability. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”). The Veteran’s left knee is currently rated as 20 percent disabling under Diagnostic Code 5010-5260, which has been in effect since April 2004. The Veteran’s right knee is currently rated as 10 percent disabling under Diagnostic Code 5299-5260 after he was granted service connection for this disability as secondary to his left knee disability in the March 2010 rating decision on appeal. The Board notes that hyphenated codes are used when a rating under one diagnostic code requires use of another to identify the basis for the evaluation assigned. Here, both of the Veteran’s knee disabilities are currently rated based only on limitation of flexion pursuant to Diagnostic Code 5260. 38 C.F.R. § 4.71a. Separate ratings can be assigned for knee disabilities when none of the symptomatology overlaps and the separate rating is based on additional disabling symptomatology; this includes separate ratings based on limitation of flexion (Diagnostic Code 5260), limitation of extension (Diagnostic Code 5261), instability and recurrent subluxation (Diagnostic Code 5257), and meniscal conditions (Diagnostic Codes 5258, 5259). See VAOPGCPREC 23-97, 62 Fed. Reg. 63,603 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,703 (1998); VAOPGCPREC 9-2004; 69 Fed. Reg. 59,988 (2004); Lyles v. Shulkin, 29 Vet. App. 107 (2017). The normal range of motion of the knee is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. Limitation of flexion warrants 10, 20, and 30 percent ratings when limitation is to 45 degrees, 30 degrees, and 15 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Limitation of extension warrants 10, 20, 30, 40, and 50 percent ratings when limitation is to 10 degrees, 15 degrees, 20 degrees, 30 degrees, and 45 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5261. A 10 percent rating can also be assigned for the knee joint if there is painful motion without compensable limitation of motion. 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5003; see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that the applicability of 38 C.F.R. § 4.59 is not limited to arthritis claims). Ratings can be assigned when a knee disability affects the meniscus, with a 20 percent rating for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint and a 10 percent rating for removal of semilunar cartilage (e.g., meniscectomy) and current residual symptoms. 38 C.F.R. § 4.71a, Diagnostic Codes 5258, 5259. As an initial matter, the evidence does not reflect, and the Veteran does not allege, that he has any meniscal disability in his right knee. Medical treatment records do confirm a left knee meniscal tear related to his service-connected left knee degenerative joint disease upon magnetic resonance imaging (MRI) in April 2009. Ratings can be assigned for impairment of the tibia or fibula, genu recurvatum, or ankylosis of the knee. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5262, 5263. 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). Ankylosis is also defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 93 (30th ed. 2003). In this case the evidence does not reflect and the Veteran does not allege that he has tibia or fibula impairment, genu recurvatum, or ankylosis of the knee. As such, those diagnostic codes are not for application. Ratings can be assigned for knee instability or subluxation under Diagnostic Code 5257. 38 C.F.R. § 4.71a. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a, including Diagnostic Code 5257, were amended effective February 7, 2021. 85 Fed. Reg. 76453 (Nov. 30, 2020). Prior to February 7, 2021, the Board will consider the old version of the diagnostic code only; however, for the period beginning February 7, 2021 the Board will consider both the old and amended version of the diagnostic code and rate based on whichever is most favorable to the Veteran. Prior to the regulatory change, recurrent subluxation and lateral instability of the knee warranted a 10, 20, or 30 percent rating if slight, moderate, or severe, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2020). “Slight,” as relevant to a physical condition, is defined as “small of its kind or in amount.” Merriam-Webster’s Dictionary (merriam-webster.com/dictionary, accessed February 8, 2021). It is similar to “mild,” which is defined as “not severe” or temperate; with “Temperate” being defined as “keeping or held within limits” and “not extreme or excessive.” “Moderate” is defined as “tending toward the mean or average amount,” “not violent, severe, or intense,” and “limited in scope or effect.” Id. “Severe” is defined as “very painful or harmful” or “of a great degree.” Id. Within the context of the old version of Diagnostic Code 5257, which established a successive, tiered rating structure, “severe” represented the highest or most extreme level of disability. As of February 7, 2021, Diagnostic Code 5257 contains two sections for rating other impairment of the knee. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The first is for recurrent subluxation or instability. The second is for patellar instability. Regarding recurrent subluxation and instability, a compensable rating requires persistent instability. Id.; see also 38 C.F.R. § 4.31. “Persistent” is defined as “continuing or inclined to persist in a course” with “continuing” defined as “constant” and “persist” defined as “to continue to exist.” Merriam-Webster’s Dictionary (merriam-webster.com/dictionary, accessed February 8, 2021). Under these criteria, a 30 percent rating is assigned with unrepaired or failed repair of complete ligament tear which causes persistent instability and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. A 20 percent rating is assigned with either (a) Sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device for ambulation, or (b) Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device or bracing for ambulation. A 10 percent rating is assigned for sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability without a prescription from a medical provider for an assistive device or bracing for ambulation. Regarding patellar instability, a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker warrants a 30 percent rating, which is the highest allowable rating for patellar instability. A diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace, cane, or walker warrants a 20 percent rating. A diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker warrants a 10 percent rating. The patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. 38 C.F.R. § 4.71a, Diagnostic Code 5257, Note (1). A surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). Id., Note (2). Turning to the evidence, the Veteran was afforded a VA examination in November 2009. At the time, the primary concern was the left knee. The Veteran reported left knee weakness, stiffness, giving way, lack of endurance, locking and pain. He denied left knee effusion, subluxation, and dislocation. He described flare-ups of left knee pain and stiffness occurring up to three times per day, lasting up to an hour, which caused difficulty with standing and walking. He denied having any surgery on his left knee. He required a brace for support of the left knee. Examination of both knees revealed no edema, instability, effusion, subluxation, or ankylosis. Left knee range of motion was from normal extension to 90 degrees of flexion, which was reduced to 80 degrees of flexion after repetitive use testing. Right knee range of motion was from normal extension to 120 degrees flexion, with no change after repetitive use testing. It was again noted that stability testing was normal. The medial and lateral meniscus test of the left knee was abnormal with slight degree of severity. The Veteran was afforded a VA knee examination in May 2014. He complained of knee pain and weakness, feeling unsteady, and a loss of balance. He reported using a cane for walking. He reported flare-ups of the condition after being in one position for a long period of time or navigating stairs. Bilateral knee range of motion was from normal extension to 120 degrees flexion with no change after repetitive use testing. The examiner found there would be no additional limitation of functional ability of the knee during flare-up or after repetitive use over time. Muscle strength was normal and testing for instability was negative. There was no evidence or history of recurrent patellar subluxation or dislocation. There were no meniscal conditions. He had not had any knee surgeries. During his March 2017 hearing, the Veteran testified that he has knee pain and limited motion and uses a brace and cane. He reported locking of the knees, as well as falls with the left knee giving out. The Veteran was afforded another VA knee examination in June 2017. He reported daily knee pain and denied flare-ups of the condition. He reported regular use of a cane. Bilateral knee range of motion was from normal extension to 115 degrees with no change after repetitive use testing. The examiner noted that range of motion testing was performed after repetitive use over time. Muscle strength was normal and testing for instability was negative. The examiner found that there was no history of recurrent subluxation or lateral instability, nor was there a history of recurrent effusion. Ankylosis was not present. There were no meniscal conditions and no knee surgeries were noted. The Veteran was afforded another VA knee examination in December 2019. He reported bilateral knee pain causing impaired mobility, and issues with balance, sitting, and standing, to including his knees locking. He felt his condition was worsening. He reported wearing a brace on each knee daily. Flare-ups of moderate to severe severity reportedly occurred daily and lasted a couple of hours. Regarding functional impairment, the Veteran reported that when pain is severe he does not ambulate for fear his left knee is going to give out, and that prolonged sitting or standing caused frequent episodes of locking in each knee. Left knee range of motion was from 5 degrees extension to 110 degrees flexion; after repetitive use testing is was from 10 degrees extension to 105 degrees flexion. Right knee range of motion was from 5 degrees extension to 115 degrees flexion; after repetitive use testing is was from 10 degrees extension to 110 degrees flexion. The examiner found that pain, weakness, fatigability and incoordination did not significantly limit functional ability during flare-up or with repeated use over a period of time. Muscle strength was 4/5 (active movement against some resistance) bilaterally. Ankylosis was not present. Joint stability testing was normal and the examiner found there was no history of recurrent subluxation or lateral instability. The examiner noted a meniscal tear on the right that resulted in frequent episodes of joint pain. In this regard, the examiner explained that a 2009 MRI revealed a meniscal tear on the left as well as an ACL tear. No knee surgeries were noted. Range of motion testing was performed during the above examinations and showed at worst left knee flexion to 80 degrees, right knee flexion to 110 degrees, and extension to 10 degrees bilaterally. The Veteran also has painful motion. These findings would warrant a 10 percent rating for each knee based on range of motion, assigned under Diagnostic Code 5260 as a result of painful motion prior to December 2019 and under Diagnostic Code 5261 as a result of a compensable level of limited extension due to pain after repetitive use since December 2019. 38 C.F.R. §§ 4.59, 4.71a. The Board recognizes the Veteran has been assigned a 20 percent rating for the left knee but will not disturb that rating. The Board has considered the effects of flare-ups and repetitive use over time but finds the requisite limitation of motion for higher or separate ratings based on limitation of motion have not been shown. At the examinations, the Veteran was asked about pain, flare-ups, and functional limitations, and relevant testing was performed by the examiners, to include testing for pain and testing to reveal any additional functional limitations in certain circumstances, such as after repetitive use. At the November 2009 examination, the Veteran described flare-ups of left knee pain and stiffness occurring up to three times per day, lasting up to an hour, which caused difficulty with standing and walking. At the May 2014 examination, he reported flare-ups of the condition after being in one position for a long period of time or navigating stairs. At the June 2017 examination, the Veteran denied flare-ups of the disability. At the December 2019 examination, the Veteran reported flare-ups of moderate to severe severity occurring daily and lasting a couple of hours. While given the opportunity to describe functional limitation related to the disability, the Veteran’s statements do not show the requisite limitation of motion necessary for a higher or separate rating. Notably, at the May 2014 examination, the examiner found there would be no additional limitation of functional ability of the knee during flare-up or after repetitive use over time. The June 2017 examination findings are reflective of range of motion after repetitive use over time as the examination was performed under such circumstance. In December 2019, the examiner found that pain, weakness, fatigability and incoordination did not significantly limit functional ability during flare-up or with repeated use over a period of time. Thus, the range of motion findings during that examination constitute the examiner’s estimate of his range of motion during flare-ups and after repetitive use over time. Notably, at the 2019 examination, the Veteran stated he believed his disability had worsened, which suggests that findings prior to 2019 would not have been any worse than the 2019 findings. The Veteran’s statements have been considered. Testing has been performed, to include after repetitive use and after repetitive use over time, and estimations of range of motion during flare-up and after repetitive use over time have been obtained. Treatment records do not show greater limitation of motion than the examination findings. None of the findings show the requisite limitation of motion for a higher or separate rating for either knee. Thus, a higher or separate rating is not warranted when considering Diagnostic Codes 5260 or 5261. Regarding meniscal conditions, as noted above, no competent evidence shows a meniscal condition of the right knee. A left knee meniscal tear was shown on MRI in 2009. According to the VA examiner in December 2019; however, the Veteran’s left knee meniscal tear manifests only frequent episodes of joint pain with no history of surgery. The Board notes that the joint pain cannot be considered for assigning a separate rating for a meniscal condition as that would result in considering the same symptom, pain, that is already the basis for the ratings assigned for limitation of motion. See 38 C.F.R. § 4.14; see also Lyles, 29 Vet. App. 107. Again, a compensable limitation of motion is not shown during the appeal period until the December 2019 examination, and that compensable limitation of motion is only shown after considering pain resulting from repetitive use. In addition, while the Veteran reports frequent locking of the knees, the VA examiner did not attribute this to the meniscal tear. Notably, the Veteran reports locking in both knees and there is no meniscal disability shown in the right knee. In any event, the Veteran has denied effusion of the knees and effusion of the knees was not present during examination. As frequent episodes of “locking,” pain, and effusion into the joint are not shown, a rating under Diagnostic Code 5258 cannot be assigned. 38 C.F.R. § 4.71a, Diagnostic Code 5258. A separate rating for removal of semilunar cartilage is not appropriate as no meniscal surgery is noted. Id., Diagnostic Code 5259. Regarding instability and subluxation of the knees, the Veteran has reported during the appeal that his knees give way, such that he has taken to using a cane and knee braces. A May 2013 VA physical medicine rehab note indicates valgus laxity on the left but not on the right. Lachman’s test was mildly positive on the right and patellar grind was present on the left. Notably, the Lachman test is used by VA examiners to test for anterior instability. Given there is some evidence suggestive of instability in each knee, the Board finds that separate 10 percent ratings are warranted for instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2020). These ratings are assigned effective on the date that each of the present claims were filed, September 17, 2009 for the left knee and December 18, 2009 for the right knee. Ratings in excess of 10 percent are not warranted for instability of either knee. Regarding the version of Diagnostic Code 5257 in effect prior to February 7, 2021, a higher rating is not warranted as the evidence is against a finding of moderate lateral instability or recurrent subluxation. While the Veteran reports a feeling of giving way and the 2013 record suggests some laxity in the knees at that time, diagnostic testing for instability was performed at each of the VA examinations and did not reveal any instability, let alone moderate instability. Simply put, the instability is held within limits and most closely aligns with slight instability. Treatment records are not in significant conflict with the examination findings. As such, higher ratings are not warranted. Regarding the version of Diagnostic Code 5257 in effect since February 7, 2021, a higher rating based on recurrent subluxation or instability is not warranted because the evidence is against a finding of persistent instability. Notably, diagnostic testing for stability at the four VA examinations did not reveal any instability, which is strong evidence against a finding of persistent instability. Put another way, when multiple medical tests for instability fail to detect instability, constant instability is not present. A higher rating is not warranted for patellar instability either as the evidence does not show surgical repair involving the patellofemoral complex. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. REASONS FOR REMAND While the Board regrets further delay, the Veteran’s TDIU must again be remanded for additional development. The Veteran has asserted that his service-connected bilateral knee disabilities, as well as his service-connected depressive disorder, have rendered him unable to obtain or maintain substantially gainful employment. Review of the record reveals that the RO is in the process of developing this claim and recently afforded the Veteran a VA mental disorders examination to determine the current nature and severity of his depressive disorder. See January 2021 Mental Disorders Examination. The RO has also requested additional information from the Veteran regarding this claim. See January 29, 2021 VA letter. Remand is required to ensure all necessary development is undertaken and so that the newly service connected bilateral knee instability can be considered. The matter is therefore REMANDED for the following actions: 1. Implement the Board’s grants of separate 10 percent ratings for bilateral knee instability. 2. After undertaking any necessary development, adjudicate the Veteran’s claim for a TDIU. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Scarduzio, 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.