Citation Nr: 21009018 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 10-01 234 DATE: February 18, 2021 ORDER Entitlement to a rating in excess of 10 percent for degenerative joint disease of the right knee is denied. FINDING OF FACT The most probative evidence does not reach the level of equipoise as to whether a rating in excess of 10 percent may be assigned for the Veteran’s right knee disorder at any time during the rating period on appeal CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 10 percent for degenerative joint disease of the right knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DC) 5256-5262. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from February 1963 to February 1966. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a rating decision issued by the Department of Veterans Affairs (VA), and has been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107. These matters were previously before the Board in June 2011, September 2013, July 2015, October 2016, April 2017, April 2018, July 2019, and February 2020. In late February 2020, the Veteran’s attorney filed a request for a copy of the claims file under the Privacy Act and for an extension of time until May 18, 2020. Regrettably, due to a delay in uploading the request to the electronic claims file in the Veterans Benefits Management System (VBMS), the Board was unable to view the requests at the time of its February 2020 decision. The Veteran’s attorney filed an appeal to the United States Court of Appeals for Veterans Claims (Court). In September 2020, the Court granted a Joint Motion for Partial Remand in which the parties agreed that the Board erred by failing to take action on the Privacy Act request under 38 C.F.R. § 20.1200 and the request for extension of time under 38 C.F.R. § 20.303. An October 2020 letter informed the attorney that the appeal had been returned to the Board, and that he had 90 days from the date of the letter to submit additional evidence in support of the appeal. The Board notes that VA responded to the Veteran’s Privacy Act request in April 2020. The attorney was provided with a copy of the entire claims file, as requested in February 2020. Regarding an extension, the Board observes that the Veteran’s attorney was advised of the 90-day period in which to submit additional evidence by way of the October 2020 Board letter. The period has expired, and the Board has not received further evidence or argument in support of the increased rating claim. Thus, the question of an extension is moot. Legal Criteria – Rating Disabilities Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519 (2007). In rating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity, or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing, and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011) (holding that 38 C.F.R. § 4.59 applies to disabilities other than arthritis). However, painful motion alone is not a functional loss without some restriction of the normal working movements of the body. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). Entitlement to a rating in excess of 10 percent for degenerative joint disease of the right knee The Board finds that the most probative evidence does not support the claim of entitlement to a rating in excess of 10 percent for degenerative joint disease of the right knee. Therefore, the appeal is denied. The Veteran’s degenerative joint disease of the right knee is currently rated at 10 percent under 38 C.F.R. § 4.71a, DC 5260-5010 (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). This rating was assigned because the right knee manifested X-ray evidence of arthritis with some non-separately compensable limitation of flexion. See Rating Decision – Narrative, December 2015. Effective February 7, 2021, the rating criteria applicable to disorders of the musculoskeletal system have changed. See 85 Fed. Reg. 76453 (November 30, 2020). As the new criteria are potentially more favorable to the Veteran, the Board will apply the updated criteria in evaluating the Veteran’s right knee disorder. Under 38 C.F.R. § 4.71a, DC 5256, a 30 percent rating is assigned for favorable ankylosis in full extension, or in slight flexion between 0 and 10 degrees, a 40 percent rating is assigned favorable ankylosis in flexion between 10 and 20 degrees, a 50 percent rating is assigned for favorable ankylosis in flexion between 20 and 45 degrees, and a 60 percent rating is assigned for extremely unfavorable ankylosis in flexion at an angle of 45 degrees or more. Under 38 C.F.R. § 4.71a, DC 5257, a 30 percent rating is assigned for recurrent subluxation or instability with unrepaired or failed repair of complete ligament tear causing 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 for either one of the following: (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. As to patellar instability under 38 C.F.R. § 4.71a, DC 5257, a 30 percent rating is assigned for 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. A 20 percent rating is assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: a brace, cane, or walker. A 10 percent rating is assigned for 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. Under 38 C.F.R. § 4.71a, DC 5258, a 20 percent rating is assigned for cartilage, semilunar, dislocated, with frequent episodes of “locking,” pain, and effusion into the joint. Under 38 C.F.R. § 4.71a, DC 5259, a 10 percent rating is assigned for cartilage, semilunar, removal of, symptomatic. Under 38 C.F.R. § 4.71a, DC 5260, a 10 percent rating is warranted for flexion of the knee limited to 45 degrees; a 20 percent rating is warranted for flexion limited to 30 degrees; and a 30 percent rating is warranted for flexion limited to 15 degrees. Under 38 C.F.R. § 4.71a, DC 5261, a 10 percent rating is warranted for extension of the knee limited to 10 degrees; a 20 percent rating is warranted for extension limited to 15 degrees; a 30 percent rating is warranted for extension limited to 20 degrees; a 40 percent rating is warranted for extension limited to 30 degrees; and a 50 percent rating is warranted for extension limited to 45 degrees. Normal range of motion of the knee is 0 degrees of extension to 140 degrees of flexion. See 38 C.F.R. § 4.71a, Plate II. Even if a veteran did not have compensable limited motion of the knee under DC 5260 or 5261, a separate rating could be assigned if there was evidence of full range of motion “inhibited by pain.” Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). Separate ratings may be awarded under DC 5257, 5260, and 5261. See VAOPGCPREC 9-2004. A rating assigned under DC 5260 or 5261 does not preclude, as a matter of law, a separate evaluation under DC 5258 or 5259. Lyles v. Shulkin, 29 Vet. App. 107, 115 (2017). Turning to the available evidence, VA treatment records document that the Veteran reported right knee pain without swelling in September 2007. He reported “no giving away, no locking” but having pain at the peripatellar and medial joint line. A subsequent magnetic resonance imaging (MRI) study revealed a tear of the posterior horn medial meniscus; however, the physician remarked that nothing further needed to be done now for the meniscal tear. In March 2009, the Veteran reported right knee pain, but denied any edema or swelling. A subsequent X-ray showed “moderate joint space narrowing” which the clinician remarked was “not surprising at [the Veteran’s] age.” In November 2011, the Veteran went to a VA clinic and reported pain in his back, knees, and wrists, but stated that he had not come because of the pain and wanted to have his eyes examined. He was also concerned that an upcoming international flight would hurt his back. The physician prescribed hydrocodone and Robaxin, and requested that the Veteran follow-up in six months. In February 2013, the Veteran appeared for a routine follow-up. He reported that his knees were “tolerable right now.” The physician found no edema and recommended an orthopedic consult. One month later, an orthopedic physician examined the Veteran, but did not document any knee pain or symptoms during the consult. The Veteran underwent a VA examination in November 2013. He reported that his knee began hurting between 8 and 20 years ago, and that he uses ibuprofen and topical treatments to relieve his pain. He did not report flare-ups of the knee. The examiner diagnosed degenerative joint disease and a medial meniscus tear of the right knee. Range of motion was 130 degrees flexion, with no objective evidence of painful motion, and no limitation of extension. The Veteran performed repetitive use testing with no additional lost range of motion. There was no evidence of pain to palpitation of the joint line or soft tissues, and muscle strength and joint stability were normal. There was no evidence of recurrent patellar subluxation or dislocation. The examiner noted a meniscal condition but found that there were no current symptoms attributable to it. In July 2014, the Veteran appeared for a regular visit. He reported having leg cramps at night, but that he was not stretching. Physical examination found no edema in the extremities, and the physician recommended a follow-up in a year. The Veteran underwent another VA examination in December 2015. He reported, among other things, daily knee pain precipitated by standing more than 20-30 minutes at a time, relieved by getting off his feet. He endorsed flare-ups with activity, relieved by rest and ibuprofen. Range of motion testing showed flexion 0 to 130 degrees, extension 130 to 0 degrees, with no evidence of pain on weight-bearing or objective evidence of localized tenderness, pain on palpitation, or crepitus. The Veteran performed repetitive use testing with no additional lost range of motion. Regarding flare-ups and repetitive use over time, the examiner found that the Veteran would experience pain and minimized weightbearing activities during such periods, but the examiner was unable to describe it in terms of range of motion. Muscle strength and joint stability testing were normal. There was no history of recurrent subluxation, lateral instability, or ankylosis. In July 2016, the Veteran appeared for a routine appointment. He reported bilateral knee pain. Physical examination of the extremities reveled no edema, and the clinician recommended that the Veteran consider a cane or crutches for his knees. The Veteran underwent a further VA examination in December 2016. Range of motion testing showed flexion 5 to 100 degrees, extension 100 to 5 degrees, with pain not resulting in functional loss. The Veteran performed repetitive use testing with no additional lost range of motion. There was evidence of pain on weight-bearing and objective evidence of tenderness and/or pain on palpitation, but not of crepitus. The examiner stated that she could not opine as to limited range of motion during flare-ups and after repeated use over time because she was not examining the Veteran during such periods. There was no history of recurrent effusion or ankylosis, and joint stability and muscle strength testing were normal. The Veteran had an orthopedic consultation in January 2017. He reported back pain, and a long history of his left leg (but not the right) giving away. The physician performed an examination, and found deep tendon reflexes equal, no weakness or clonus, and negative nerve tension signs. He recommended injections to the L4-5 and L5-S1, which the Veteran underwent later that month. The Veteran called the clinic in February 2017, and reported that the injections had not helped, and he continued to experience pain in his ankles and knees. In June 2017, the Veteran appeared for a VA examination. Among other things, he reported that he could only work for 15 minutes before having to take a break, and that anytime he bends his knees, he gets posterior thigh cramps. He reported having instability of the knee when walking down an incline, but no swelling or locking of the knee. Range of motion testing showed flexion 0 to 100 degrees, extension 140 to 0 degrees, with pain not resulting in functional loss. There was evidence of pain on weightbearing and objective evidence of tenderness and/or pain on palpitation, but not of crepitus. The Veteran performed repetitive use testing with no additional lost range of motion. The examiner opined that the Veteran would not suffer additional lost range of motion during flare-ups or with repetitive use over time, just increased pain. Muscle strength testing showed active movement against some resistance, but the examiner indicated that it was also, in part, due to lack of conditioning. There was no history of recurrent subluxation or effusion, no ankylosis, and joint stability testing was normal. The Veteran had an orthopedic consultation in November 2018. He reported, among other things, pain in the knees, described as achy throughout the day, but more in the evenings after performing activities involving walking. He did not feel as though the knees want to “give out on him” or that they catch. The physician found no erythema, edema, ecchymosis, lesions or lacerations of the knee. The Veteran exhibited full range of motion, mild patellofemoral crepitus, “not much” nucleus pseudo-laxity, and pain in the medial joint space bilaterally. The Veteran underwent a VA examination in October 2019. He reported flare-ups of knee pain daily when doing normal tasks. Range of motion testing was normal, with no pain noted on examination. The examiner found tenderness to palpitation when the Veteran was sitting with feet planted on the floor, but not when seated on the examination table with legs dangling. The Veteran performed repetitive use testing with no additional lost range of motion. The examiner considered the reports of flare-ups, but found that pain, weakness, fatigability, or incoordination would not significantly limit functional ability during such periods or with repeated use over a period of time. Muscle strength testing showed active movement against some resistance entirely due to the right knee condition. Joint stability testing was normal, there was no ankylosis, and no history of recurrent subluxation or lateral instability. The Veteran reported a subjective history of recurrent effusion; however, the examiner found no objective evidence of effusion or swelling on examination or X-ray. McMurray’s test was negative for meniscal involvement, and the examiner noted that no treatment was required for the meniscal tear diagnosed by MRI in 2007. In November 2019, the Veteran had a VA orthopedic surgery consultation. He reported a constant achy pain in the knees, sometimes sharp, and requested additional steroid injections. Physical examination of the knees revealed no erythema (redness), edema (swelling), ecchymosis, lesions, or lacerations. He exhibited full range of motion, positive pseudo-laxity, positive patellofemoral crepitus, negative McMurray’s test, and pain to palpitation in the medial joint space. The clinician administered injections into both knees. After careful review of the record, the Board finds that the most probative evidence does not reach the level of equipoise as to whether the Veteran’s degenerative joint disease of the right knee manifested functional impairment to the extent that a rating in excess of 10 percent may be assigned. During the rating period on appeal, the right knee condition has manifested X-ray evidence of arthritis with painful range of motion, not otherwise compensable. Such impairment is contemplated by a 10 percent rating. 38 C.F.R. § 4.71a, DC 5260-5010. The Veteran’s range of motion has not met the requirements for a compensable rating under the relevant criteria for limited motion. See 38 C.F.R. § 4.71a, DC 5260, 5261. Specifically, his flexion was limited, at its lowest, from 5 to 100 degrees, and his extension was limited, at its lowest, 100 to 5 degrees. The record does not show evidence of flexion limited to 45 degrees or extension limited to 10 degrees to the extent that either a separate or higher compensable rating may be assigned. Id. The Board has considered the Veteran’s reports of right knee pain and discomfort with flare-ups. However, the most probative evidence does not show that a higher rating would be appropriate based on functional impairment during such periods. Specifically, the VA examiners in June 2017 and October 2019 considered the reports of flare-ups, but found, respectively, that the Veteran would suffer pain, but not any additional lost motion, and would not suffer significantly limited functional ability, during such periods. See Mitchell, 25 Vet. App. at 43. The Board has also considered whether a higher rating is warranted under the rating criteria for traumatic arthritis. A rating in excess of 10 percent requires the involvement of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations. The right knee condition on appeal is considered to relate to one major joint. 38 C.F.R. § 4.45(f). Moreover, although the Veteran is service-connected for bilateral ankle arthritis, the Board notes that his ankles are rated under DC 5271, which may not be combined with ratings under DC 5003. See 38 C.F.R. §§ 4.14; 4.71a, DC 5003, Note 1. Therefore, a higher rating is not supported under 38 C.F.R. § 4.71a, DC 5003 or 5010. The Board has considered whether other diagnostic codes relevant to the knee may result in a higher rating for the Veteran’s disorder. Initially, the record does not reflect evidence of ankylosis, genu recurvatum, or impairment of the tibia or fibula to the extent that a higher rating could be assigned under 38 C.F.R. § 4.71a, DC 5256, 5262, or 5263. Regarding the question of a separate rating under DC 5257, the Board notes that the Veteran reported instability of the knee when walking down inclines during the VA examination in June 2017. However, the VA examiner observed normal joint stability testing and did not find evidence of a history of persistent instability. The Board notes that subsequent evidence, including the VA examination in October 2019 and the November 2019 VA orthopedic consultation, do not document any instability of the knee and the Veteran did not report the same. Also, if the Veteran had been suffering from persistent instability of the right knee, the Board finds it unlikely that he would not have reported it to his VA primary care and orthopedic clinicians during the numerous times he sought treatment for right knee pain. See Caluza v. Brown, 7 Vet. App. 496, 511 (1995) (holding that the Board may consider internal consistency, facial plausibility, and consistency with other evidence of record, when determining the credibility of lay evidence). Thus, the Board finds that the weight of the most probative evidence does not suggest persistent instability of the right knee to warrant a higher rating. 38 C.F.R. § 4.71a, DC 5257. Additionally, the most probative evidence does not demonstrate that the Veteran’s right knee meniscal condition manifested functional impairment to the extent that a separate rating may be assigned under the rating criteria applicable to meniscal impairment. 38 C.F.R. § 4.71a, DC 5258 or 5259. The criteria under DC 5258 are conjunctive, meaning that all criteria must be met to support a higher rating. See Melson v. Derwinski,1 Vet. App. 334 (1991). The November 2013 VA examiner found that the meniscal condition did not have any current symptoms. The Veteran has not reported any episodes of “locking” of the right knee. He reported swelling that “occurs all the time” during his VA examination in October 2019, but the examiner found no objective evidence of swelling. Moreover, the Board notes that the subsequent November 2019 orthopedic consultation found no evidence of swelling, the Veteran did not report recurrent swelling, and McMurray’s test was negative. Also, VA medical personnel did not find evidence of swelling in November 2011, November 2013, July 2014, December 2015, July 2016, December 2016, July 2016, June 2017, and November 2018, and the Veteran did not report recurrent swelling during his visits to VA medical providers. See Caluza, 7 Vet. App. at 511. Lastly, a rating is not applicable under DC 5259 because the Veteran has not had his meniscal cartilage removed. Thus, the Board finds that the most probative evidence is against assigning a separate rating based on functional impairment of the right knee meniscal tear during the rating period. In sum, the Board finds that the evidence does not reach the level of equipoise in the claim for a rating in excess of 10 percent for right knee degenerative joint disease at any time during the rating period on appeal. See 38 U.S.C. § 5107(a). ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Reed, 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.