Citation Nr: 21010159 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 13-26 823 DATE: February 24, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for right knee instability, is denied. Entitlement to a disability rating in excess of 10 percent for left knee instability, is denied. Entitlement to a separate 10 percent disability rating, for right knee arthritis manifested by limitation of flexion, is granted. Entitlement to a separate 10 percent disability rating for left knee arthritis manifested by limitation of flexion, is granted. FINDINGS OF FACT 1. Throughout the period on appeal, the preponderance of the evidence is against finding the Veteran's right knee instability is productive of moderate recurrent subluxation or lateral instability. 2. Throughout the period on appeal, the preponderance of the evidence is against finding the Veteran's left knee instability is productive of moderate recurrent subluxation or lateral instability. 3. Throughout the period on appeal, the Veteran’s right knee arthritis is manifested by less than full range of motion in flexion; and limited to as much as 40 degrees with flare-ups. 4. Throughout the period on appeal, the Veteran’s degenerative left knee arthritis is manifested by less than full range of motion in flexion; and limited to as much as 50 degrees with flare-ups. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 10 percent for service-connected right knee instability are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5257. 2. The criteria for entitlement to a disability rating in excess of 10 percent for service-connected left knee instability are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5257. 3. The criteria for a separate rating of 10 percent for arthritis manifesting as right knee limitation of flexion are met. 38 U.S.C. §§ 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260. 4. The criteria for a separate rating of 10 percent for arthritis manifesting as left knee limitation of flexion are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.59, 4.7, 4.71a, Diagnostic Code 5260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1975 to March 1978. This appeal is before the Board of Veterans’ Appeals (Board) from a January 2011 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). Also, the Veteran’s increased ratings claims were previously remanded by the Board in February 2018 and July 2019. The Board finds substantial compliance with the July 2019 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Prior to adjudication of the Veteran’s claim, the Board notes the following: In a September 1990 rating decision, the RO granted the Veteran service connection for bilateral knee disabilities characterized as “stress fractures of the knee” and rated each knee at 10 percent under Diagnostic Code 5257. In a January 2011 rating decision, the RO continued the Veteran’s 10 percent ratings under Diagnostic Code 5257 but characterized the rating as “Diagnostic Code 5257-5262.” However, the Veteran’s overall disability rating did not increase, and the RO appears to have added a rating under Diagnostic Code 5262 to better describe the Veteran’s disability. Nevertheless, this was in error as the September 2010 VA examination and the evidence of record do not reflect the Veteran suffered from a tibia or fibula impairment. The only reference to a tibia or fibula injury occurs during the August 2018 VA examination; however, that is a recharacterization of the Veteran’s “stress fractures of the knees” initial disability. Still, since the rating under Diagnostic Code 5257 has stabilized and been in effect for over 20 years, it will not be reduced. 38 C.F.R. § § 3.951(b). Yet, as to the rating under Diagnostic Code 5262, since this elimination will not reduce the Veteran’s overall rating, the Board is removing the Veteran’s current ratings for his right and left knee under Diagnostic Code 5262. Thus, this rating decision will adjudicate the Veteran’s claim for separate ratings under Diagnostic Code 5262 rather than as increased rating claims. Increased Rating The Veteran seeks entitlement to a disability rating in excess of 10 percent for his right and left knee instability. 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. See 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 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. A disability rating may require re-evaluation in accordance with changes in a veteran's condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where a veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. Staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran’s service-connected disability. 38 C.F.R. § 4.14. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). 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, 8 Vet. App. 202; see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). As the evidence indicates the Veteran has been diagnosed with bilateral knee arthritis, Diagnostic Code 5010 states that arthritis due to trauma will be rated on limitation of motion of the affected parts, as degenerative arthritis, under DC 5003. Pursuant to DC 5003, arthritis established by x-ray findings will be rated on the basis of limitation of motion of the specific joint involved. When, however, the limitation of motion of the specific joint involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations warrants a 20 percent evaluation. X-ray evidence of involvement of two or more major joints or two or more minor joints warrants a 10 percent evaluation. See 38 C.F.R. § 4.71a, DC 5003. For the purpose of rating disability from arthritis, the knee is considered a major joint. See 38 C.F.R. § 4.45. Furthermore, to warrant a separate rating for arthritis based on X-ray findings and limited motion under DCs 5260 or 5261, the limited motion need not be compensable but must at least meet the criteria for a zero-percent rating. A separate rating for arthritis could also be based on X-ray findings and painful motion under 38 C.F.R. § 4.59. VA’s General Counsel has stated that when a knee disorder is rated under 38 C.F.R. § 4.71a , DC 5257 and an appellant also has limitation of knee motion which at least meets the criteria for a noncompensable evaluation under 38 C.F.R. § 4.71a, DC 5260 or 5261, separate evaluations may be assigned for arthritis with limitation of motion and for instability. However, General Counsel stated that, if an appellant does not meet the criteria for a noncompensable rating under either DC 5260 or DC 5261, there is no additional disability for which a separate rating for arthritis may be assigned. VAOPGCPREC 23-97 (July 1, 1997), published at 62 Fed. Reg. 63, 604 (1997). If a rating is assigned under the provisions for other knee impairment (38 C.F.R. § 4.71a, DC 5257) a separate 10 percent rating may be assigned where some limitation of motion, albeit noncompensable, has been demonstrated. See VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (1998). Specifically, for a knee disability rated under DC 5257 to warrant a separate rating for arthritis based on X-ray findings and limitation of motion, limitation of motion under DC 5260 or DC 5261 need not be compensable, but must at least meet the criteria for a zero-percent rating. Id. The alternative and additional Diagnostic Codes for the knee are available as follows: Under 38 C.F.R. § 4.71a, Diagnostic Code 5256, ankylosis of the knee with a favorable angle in full extension, or in slight flexion between 0 and 10 degrees, is rated at 30 percent; ankylosis in flexion between 10 and 20 degrees is rated at 40 percent; ankylosis in flexion between 20 and 45 degrees is rated at 50 percent; and extremely unfavorable ankylosis in flexion at an angle of 45 degrees or more, is rated at 60 percent. The Veteran is already in receipt of a 10 percent disability under the rating criteria under 38 C.F.R. § 4.71a, Diagnostic Code 5257, for recurrent subluxation or lateral instability for each knee. A 20 percent rating is for moderate instability and a 30 percent rating is for severe instability. Under 38 C.F.R. § 4.71a, Diagnostic Code 5258, dislocation of semilunar cartilage with frequent episodes of "locking" pain and effusion into the joint is rated at 20 percent. Under 38 C.F.R. § 4.71a, Diagnostic Code 5259, symptomatic removal of the semilunar cartilage is rated at 10 percent. Under 38 C.F.R. § 4.71a, Diagnostic Code 5260, flexion of the leg is rated at 10 percent when limited to 45 degrees; 20 percent when limited to 30 degrees; and 30 percent when limited to 15 degrees. Under 38 C.F.R. § 4.71a, Diagnostic Code 5261, extension of the leg is rated as noncompensable when limited to 5 degrees; a 10 percent rating is warranted when limited to 10 degrees; a 20 percent rating is warranted when limited to 15 degrees; a 30 percent rating is warranted when limited to 20 degrees; a 40 percent rating is warranted when limited to 30 degrees; and a 50 percent rating is warranted when limited to 45 degrees; Under 38 C.F.R. § 4.71a, Diagnostic Code 5263, acquired traumatic genu recurvatum, with objectively demonstrated weakness and insecurity in weight-bearing is rated at 10 percent. The Board notes that the criteria under Diagnostic Codes 5257, 5260, and 5261 are not considered to be overlapping, and therefore separate ratings can be assigned where appropriate symptomatology is shown. The words "slight," "moderate," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are equitable and just. It should also be noted that use of terminology such as "slight" and "moderate" by physicians, although an element of evidence to be considered by the Board, is not dispositive of an issue. Rather, all evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. A September 2010 VA examination included a review of the claims file, a recitation of complaints and medical history, and physical examination results. The report determined his left and right knees had “a sense of crepitus” and the Veteran subjectively reported flare-ups caused by partial squatting, crouching, and standing or walking longer than 30 minutes. He also subjectively reported he does not experience locking of the knee and his left knee generally hurts less than his right knee. The report determined his right knee had no clinical instability, full extension of 0 degrees and flexion of 124 degrees; both with pain. No further limitation was noted during repetitive use test. His left knee had full extension and his flexion was 108 degrees; both with pain. No further limitation of motion was noted during repetitive use testing. Private treatment records indicate that in September 2011 he underwent an MRI of his right and left knees and the summary for each states, “subchondral defects of the patella with narrowing of the femoral patella space.” An October 2011 private treatment record indicates he received treatment for bilateral knee pain with his left knee being greater than his right knee. In August 2018, he underwent a VA knee and lower leg examination report which included a review of the claims file, a recitation of complaints and medical history, and physical examination results. He subjectively reported pain with prolonged standing or walking, stiffness when sitting long, and if he accidentally twists the knee it becomes “more painful for weeks before it settles down again.” He reported flare-ups and reported the following functional loss: Difficulty climbing stairs and bending his knees and he cannot squat. The following examination results apply to both knees: His flexion was 100 degrees and his extension was full, pain was noted during both examinations, pain was noted on weight bearing, and there was evidence of crepitus. The report also noted generalized tenderness “all over the knee” and the sensitivity to touch is “not typical of or attributable to a chronic stress fracture or knee joint condition.” No additional functional loss was noted during a repetitive use test. He was not examined after a repetitive use test or during a flare-up and the examiner was not able to provide range of motion testing without resorting to speculation for either test. Lastly, the report determined he was negative for muscular atrophy, ankylosis, recurrent subluxation, lateral instability, recurrent effusion, any joint instability, meniscal conditions, assistive devices, or any other pertinent physical findings. In November 2019, he underwent a VA knee and lower leg examination report which included a review of the claims file, a recitation of complaints and medical history, and physical examination results. He subjectively reported experiencing bilateral knee flare ups and described them as follows: moderate-severe that last up to 5 hours and are precipitated by activity and alleviated by rest. He also subjectively reported functional loss and described it as follows: pain when trying to stand, inability to walk or stand for longer than 5-10 minutes, and unable to lift objects over 15 pounds. For his right knee, his flexion was 90 degrees and he had full extension; pain was indicated on both exams along with evidence of localized tenderness due to arthritis. He was able to perform repetitive use tests and pain, weakness, fatigability, and lack of coordination caused his flexion to be 80 degrees, but his extension remained full. He was not examined after repetitive use over time, the examination was neither medically consistent or inconsistent with the Veteran’s statements, and pain, fatigue, weakness, and lack of endurance were evident. The examiner was able to describe those limitations in terms of range of motion and his flexion was 60 degrees and his extension remained full. He was not examined during a flare up, the examination was neither medically consistent or inconsistent with the Veteran’s statements, and pain, weakness, fatigue, and lack of coordination were evident. The examiner was able to describe those limitations in terms of range of motion and his flexion was 40 degrees and his extension remained full. As to his left knee, his flexion was 95 degrees and he had full extension; pain was indicated on both exams along with evidence of localized tenderness due to arthritis. He was able to perform repetitive use tests and pain, weakness, fatigability, and lack of coordination contributed to his flexion being limited to 90 degrees and his extension remained full. He was not examined after repetitive use over time, the examination was neither medically consistent or inconsistent with the Veteran’s statements, and pain and lack of endurance were evident. The examiner was able to describe those limitations in terms of range of motion and his flexion was 70 degrees and his extension remained full. He was not examined during a flare up and the examination was neither medically consistent or inconsistent with the Veteran’s statements, and pain, weakness, fatigue, and lack of coordination were evident. The examiner was able to describe those limitations in terms of range of motion and his flexion was 50 degrees and his extension remained full. The report also determined both of his knees were negative for the following conditions: no other additional contributing factors, muscular atrophy, ankylosis, joint instability, meniscus conditions, crepitus, and any other pertinent physical findings. The remarks section included the following notes for both knees: positive for objective evidence of pain on passive motion and no evidence of pain on non-weight bearing, A contemporaneous x-ray revealed bilateral degenerative or traumatic arthritis. The impression section for each knee states, “mild degenerative changes.” After a review of the claims file and in conjunction with the applicable laws and regulations, the Board finds the preponderance of the evidence is against finding his right and left knee instability warrants disability ratings in excess of 10 percent. However, the evidence of record indicates the Veteran is entitled to separate 10 percent disability ratings for arthritis resulting in limitation of flexion for each knee. As previously stated, each knee is rated at 10 percent under Diagnostic Code 5257 for instability. A 20 percent rating is for moderate instability. The November 2019 VA examination determined that although he had a history of knee instability noted during the time of service connection in 1990, his right and left knees do not reflect any instability. Moreover, the evidence of record does not contain any competent or credible medical evidence to indicate his knees have manifested at such instability since 1990. As such, and absent evidence to the contrary, the Board finds his right and left knee disabilities do not warrant increased ratings for instability under Diagnostic Code 5257. As to his right knee, the Board has considered whether the Veteran is entitled to a separate rating for limitation of flexion. A 10 percent rating is warranted for flexion limited to 45 degrees. Here, the November 2019 VA examination determined his flexion was limited to 40 degrees during a flare-up. Furthermore, the evidence of record does not indicate that at any point during the period on appeal that the Veteran’s right knee flexion ever manifested as or has been effectively reduced to 30 degrees or less. See DeLuca, 8 Vet. App. at 204-07. As such, considering the Veteran’s limitation of motion during a flare-up, the Board finds a separate 10 percent rating, but no higher, for right knee limitation of flexion under Diagnostic Code 5260, is warranted. As to his left knee, the Board has considered whether the Veteran is entitled to a separate rating for painful motion. The August 2018 and the November 2019 VA examinations reflected painful motion and the 2019 examination confirmed a diagnosis of arthritis by x-ray. Moreover, the November 2019 VA examination determined his left knee flexion was limited to 50 degrees during a flare-up; a noncompensable rating. See 38 C.F.R. § 4.71a, Diagnostic Code 5260. Furthermore, the evidence of record does not indicate that at any point during the period on appeal that the Veteran’s left knee flexion has ever manifested as or been effectively reduced to 45 degrees or less. See DeLuca, 8 Vet. App. at 204-07. As such, the Board finds that a 10 percent rating, but no higher, for limitation of motion due to left knee arthritis is warranted, most appropriately rated under Diagnostic Code 5260 due to flexion during flare ups limited to 50-degrees. 38 C.F.R. § 4.59; see Burton v. Shinseki, 25 Vet. App. 1, 5 (2011) (holding that § 4.59 applies to both arthritis and non-arthritis musculoskeletal disabilities). The Board also considered separate ratings under Diagnostic Code 5261. A 10 percent evaluation is warranted when extension of the leg is limited to 10 degrees or greater. However, throughout the entirety of the appeal period, the Veteran has never exhibited less than full extension in either leg. Moreover, the Board finds nothing in the claims file to suggest that extension in either knee have been effectively reduced to anything less than full. See DeLuca, 8 Vet. App. at 204-07. Thus, the Board determines the Veteran's right and left knee disabilities do not warrant separate disability ratings under Diagnostic Code 5261. Furthermore, there is no evidence of ankylosis, removal of and/or dislocation of semilunar cartilage, or genu recurvatum. Separate ratings are therefore not warranted under such diagnostic codes. See 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5258, 5259, 5261, and 5263. As was noted earlier, the Veteran Diagnostic Code 5262 does not apply because there is no evidence of fibula or tibia impairment. In sum, the evidence of record does not support the assignment of a disability rating in excess of 10 percent for his right and left knee instability. However, the evidence of record indicates a separate 10 percent disability rating, but no higher, for right knee limitation of flexion and a separate 10 percent disability rating, but no higher, for left knee arthritis manifesting as painful motion are warranted. To the extent that any higher level of compensation or separate ratings are sought, the preponderance of the evidence is against each claim. As such, the benefit of the doubt rule does not apply to each claim. Gilbert, 1 Vet. App. 49; 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Thus, the Veteran's claims for disability ratings in excess of 10 percent for right and left knee instability are denied, and a separate rating for right knee limitation of flexion and a separate rating for left knee arthritis manifesting as painful motion, are granted. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Law Clerk, Tyler R. Masters 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.