Citation Nr: 21010691 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 14-44 141 DATE: February 25, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for left knee degenerative arthritis is DENIED. Entitlement to an initial rating in excess of 10 percent for right knee degenerative arthritis is DENIED. FINDINGS OF FACT 1. The Veteran’s left knee disability was manifested by painful motion. The Veteran did not demonstrate a left knee flexion limit to 30 degrees, extension limit to 15 degrees, recurrent subluxation, lateral instability, or ankylosis. The Veteran was not prescribed bed rest. 2. The Veteran’s right knee disability was manifested by painful motion. The Veteran did not demonstrate a right knee flexion limit to 30 degrees, extension limit to 15 degrees, recurrent subluxation, lateral instability, or ankylosis. The Veteran was not prescribed bed rest. The Veteran endures a right knee meniscal tear that “locks,” but has not demonstrated effusion.   CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for the service-connected left knee disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.25, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5257, 5260, and 5261 (2020). 2. The criteria for an initial rating in excess of 10 percent for the service-connected right knee disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.25, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5257, 5259, 5260, and 5261 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Air Force from January 1986 to January 2012. Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. If there is a question as to which evaluation to apply to the Veteran’s disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). The Board must also assess the competence and credibility of lay statements and testimony. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). In increased rating claims, a Veteran’s lay statements alone, absent a negative credibility determination, may constitute competent evidence of worsening, at least with respect to observable symptoms. See Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 102 (2010), rev’d on other grounds by Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (Fed. Cir. 2009). The Veteran is uniquely suited to describe the severity, frequency, and the duration of the symptoms that accompany his service-connected left and right knee disabilities. See Falzone v. Brown, 8 Vet. App. 398 (1995); Heuer v. Brown, 7 Vet. App. 379 (1995). As noted above, the Veteran’s entire history is reviewed when assigning a disability evaluation. 38 C.F.R. § 4.1. However, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Board must consider whether there have been times when his disabilities on appeal have been more severe than at others, and rate them accordingly. Entitlement to initial ratings in excess of 10 percent for the service-connected left and right knee degenerative arthritis is denied. On August 8, 2011, the Veteran submitted a VA Form 21-526. Therein, the Veteran initiated a claim for service connection for bilateral knee disabilities. In July 2012, the agency of original jurisdiction (AOJ) issued a rating decision that granted service connection for bilateral knee disabilities. The AOJ assigned non-compensable ratings for the Veteran’s bilateral knee disabilities. In November 2012, the Veteran submitted a notice of disagreement (NOD). Therein, the Veteran posited that, “I contend that my knees conditions are more debilitating then what the assigned percentages reflect. I have difficulty going up stairs, and jogging, due to limited motion. I was told by an active duty doctor that I had cartilage loss on both knees after I returned from deployment in 2008. The condition caused pain and limitation.” Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Any reasonable doubt regarding a degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. When assessing the severity of a musculoskeletal disability that is rated on the basis of limitation of motion, VA must, in addition to applying scheduler criteria, also consider evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires VA to regard as “seriously disabled” any part of the musculoskeletal system that becomes painful on use. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-207 (1995). The provisions of 38 C.F.R. §§ 4.40 and 4.45 should only be considered in conjunction with the Diagnostic Codes (DCs) predicated on limitation of motion. See Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior in 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. With respect to joints, including knee joints, 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. The Veteran has been in receipt of a 10 percent evaluation under DCs 5003-5260 for the bilateral knee disabilities since February 1, 2012. See 38 C.F.R. § 4.71 (a). In addition to the service-connection compensation available under DC 5260, this claim requires consideration of the other possibly applicable Diagnostic Codes. Under DC 5260, degenerative joint disease shall be rated based on limitation of motion of the knee, as degenerative arthritis under 38 C.F.R. § 4.71a, DC 5003. 38 C.F.R. § 4.71a, DC 5260. Under Diagnostic Code 5003, degenerative arthritis established by X-ray findings is rated based on limitation of motion under appropriate diagnostic codes for the specific joint or joints involved. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. If there is limitation of motion but it is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is applied for each major joint or group of minor joints affected by limitation of motion—to be combined, not added. If there is no limitation of motion, a 10 percent rating applies if there is X-ray evidence that two or more major joints or two or more minor joint groups are involved. A 20 percent rating applies if there is X-ray evidence of the involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. 38 U.S.C. § 4 .71a, DC 5003. For purposes of rating disability from arthritis, the major joints are the shoulder, elbow, wrist, hip, knee, and ankle. 38 C.F.R. § 4.45. Although “incapacitating exacerbations” is not defined under DC 5003, the Board analogizes it to “incapacitating episodes,” which is defined in the IVDS Formula at Note (1) as “a period of acute signs and symptoms . . . that requires bed rest prescribed by a physician and treatment by a physician.” 38 C.F.R. § 4.71a, DC 5003, IVDS Formula at Note (1). Under DC 5257, knee impairment with recurrent subluxation or lateral instability is rated 10 percent when slight, 20 percent when moderate, and 30 percent when severe. 38 C.F.R. § 4.71 (a), DC 5257. The Board notes that, effective February 7, 2021, the VA regulation that addresses knee subluxation and instability were revised. Under the newly revised 38 C.F.R. § 4.71a, DC 5257 (2021), the criteria for recurrent subluxation, instability, and patellar instability were updated. The appellate record reflects that the Veteran has not endured recurrent subluxation, instability, or patellar instability during the claim period; consequently, the previous and updated versions of DC 5257 are not for application in this instance. DC 5258 assigns a 20 percent evaluation for dislocated semilunar cartilage (meniscus) with frequent episodes of “locking,” pain, and effusion into the joint. 38 C.F.R. § 4.71 (a), DC 5258. Additionally, DC 5259 assigns a 10 percent rating for removal of semilunar cartilage, symptomatic. 38 C.F.R. § 4.71 (a), DC 5259. Under DC 5260, which provides disability evaluations based on limitation of flexion, a noncompensable evaluation is warranted when knee flexion is limited to 60 degrees; a 10 percent evaluation is warranted when flexion is limited to 45 degrees; a 20 percent evaluation is warranted when flexion is limited to 30 degrees; and a 30 percent evaluation is warranted when flexion is limited to 15 degrees. 38 C.F.R. § 4.71 (a), DC 5260. Under DC 5261, a 10 percent evaluation is warranted when extension is limited to 10 degrees, a 20 percent evaluation is warranted when extension is limited to 15 degrees, a 30 percent evaluation is warranted when extension is limited to 20 degrees, a 40 percent evaluation is warranted when extension is limited to 30 degrees, and a 50 percent evaluation is warranted when extension is limited to 45 degrees. 38 C.F.R. § 4.71 (a), DC 5261. Normal range of motion of the knee is 0 to 140 degrees of extension to flexion. 38 C.F.R. § 4.71 (a), Plate II. VAOPGCPREC 23-97 provides that a Veteran may be assigned separate ratings for arthritis with limitation of motion under DC 5260 or 5261, and for instability or subluxation under DC 5257. See VAOPGCPREC 23-97 (July 1, 1997). In VAOPGCPREC 9-98, VA General Counsel held that if a veteran has a disability rating under DC 5257 for instability or subluxation of the knee, and there is also X-ray evidence of arthritis, a separate rating for arthritis could also be assigned based on painful motion under 38 C.F.R. § 4.59. The VA General Counsel has issued an opinion holding that “separate ratings may be assigned under DC 5260 and DC 5261, where a Veteran has both a limitation of flexion and limitation of extension of the same leg; limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg.” See VAOPGCPREC 9-2004 (September 17, 2004). In January 2014, the Veteran submitted a VA Form 9. Therein, the Veteran contested the non-compensable ratings assigned for the service-connected left and right knee disabilities. The Veteran posited that he could no longer jog, walk, climb stairs and exercise as he had done in the past because of the knee disabilities. The Veteran relayed that the right knee had loss of bone/cartilage and a torn meniscus. In May 2018, the Board addressed the Veteran’s claim for compensable ratings for the left and right knee disabilities. At that time, the Board concluded that a 10 percent rating was warranted for both knee disabilities based on the presence of degenerative arthritis and competent reports of bilateral knee pain. The Board remanded the claims to the agency of original jurisdiction (AOJ) to obtain the Veteran’s current treatment reports and a VA examination report that addressed the current severity of the bilateral knee disabilities. In March 2019, the Veteran’s treatment notations from the Seguin VA Clinic were associated with the claims file. Therein, it was reported that bilateral knee braces were ordered in September 2018. The Veteran requested the knee braces because he thought they would help with the bilateral knee pain. At that time, the Veteran reported 4 – 8 / 10 bilateral knee pain, from at best to worst. The Veteran reported that knee pain increased with jogging or using the stairs. The Veteran reported that he utilized ice, heat, Tylenol, and over the counter topical cream for knee pain. In May 2019, the Veteran underwent a VA examination that addressed the severity of knee and lower leg conditions. The VA examiner noted diagnoses for bilateral knee degenerative arthritis. The Veteran reported flare-ups of the bilateral knee pain. The VA examiner noted the following initial, bilateral knee range of motion (ROM) in degrees: 130 flexion and 0 extension. The Veteran demonstrated pain during flexion. The VA examiner did not note pain during weight bearing. The VA examiner noted objective tenderness with palpation of the medial border of the patella(s). The Veteran did not demonstrate additional ROM loss after repetitive testing. The VA examiner noted that pain, weakness, fatigability or incoordination did not significantly limit functional ability of the left or right knee with repeated use of a period of time. The VA examiner noted that pain, weakness, fatigability or incoordination did not significantly limit functional ability of the left or right knee during a flare-up. Bilaterally, the Veteran demonstrated 5/5 strength during flexion and extension. The Veteran did not demonstrate muscle atrophy or ankylosis, bilaterally. The VA examiner did not report a history of recurrent subluxation or lateral instability for the left or right knee. The VA examiner reported that an MRI confirmed left knee effusion on one occasion, which occurred after a basketball game. The VA examiner noted that bilateral knee testing revealed normal stability values. The VA examiner noted that the Veteran had never had recurrent patellar dislocation, “shin splints” stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment. The VA examiner reported that the Veteran had never had a meniscus condition. The VA examiner remarked that, “(t)he Veteran's historical statements regarding pain severity, location and persistence and the statements regarding his knee braces being given for knee instability are not supported by the available clinical evidence.” The VA examiner noted pain during passive ROM testing on the left, but not the right. The VA examiner did not report that the Veteran demonstrated pain during non-weight bearing of the bilateral knees. In August 2019, government treatment records relating to the Veteran’s service-connected knees were associated with the claims file. In January 2011, an MRI report identified the presence of a right knee medial meniscus tear. In September 2014, imaging studies revealed bilateral knee osteoarthritis, left greater than right. In February 2017, an MRI report identified left knee osteoarthritis and incidental effusion. After review, the Board notes that the records do not reflect that the Veteran experienced effusion in the right knee. In September 2019, the Veteran underwent a VA examination that addressed the severity of knee and lower leg conditions. The VA examiner noted diagnoses for bilateral knee degenerative arthritis and right knee medial meniscus tear. The Veteran reported flare-ups of the bilateral knee pain. The VA examiner noted the following initial, bilateral knee ROM (in degrees): 130 flexion and 0 extension. The Veteran demonstrated pain during flexion. The VA examiner did not note pain demonstrated during weight bearing. The VA examiner noted objective tenderness with palpation of the medial border of the patella(s). The Veteran did not demonstrate additional ROM loss after repetitive testing. The VA examiner noted that pain, weakness, fatigability or incoordination did not significantly limit functional ability of the left or right knee with repeated use of a period of time. The VA examiner noted that pain, weakness, fatigability or incoordination did not significantly limit functional ability of the left or right knee during a flare-up. Bilaterally, the Veteran demonstrated 5/5 strength during flexion and extension. The Veteran did not demonstrate muscle atrophy or ankylosis, bilaterally. The VA examiner did not report a history of recurrent subluxation or lateral instability for the left or right knee. The VA examiner reported that an MRI confirmed left knee effusion on one occasion, which occurred after a basketball game. The VA examiner noted that bilateral knee testing revealed normal stability values. The VA examiner noted that the Veteran had never had recurrent patellar dislocation, “shin splints” stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment. The VA examiner noted a right knee meniscal tear; the Veteran reported a history of the right knee “locking.” In September 2019, the VA examiner opined that, “(a)s the MRI of 3 January 2011 reported a meniscus tear, and since the cartilage of the meniscus has no blood supply and cannot heal spontaneously, and since there is no history of debridement of the right knee joint, the right medial meniscus tear seen on MRI is more likely than not to still be present.” In October 2019, the AOJ issued a rating decision. Therein, the AOJ granted service connection for a right knee meniscus tear. The AOJ combined the meniscus disability with the previously service connected right knee arthritis, continuing the 10 percent rating for the Veteran’s service-connected right knee disability. In November 2019, an addendum opinion from the May and September VA examiner was associated with the claims file. Therein, the VA examiner opined that, “(u)pon further review of the evidence, the Veteran's historical statements regarding flare ups, which consist of ‘his knee swells at times,’ does not appear to significantly limit functional ability during these flare ups or with repeated use over time, nor of range of motion. Veteran has been followed for these complaints, during times when flare ups were present, and no significant additional loss of range of motion has been reported, even though there are reports of pain.” The VA examiner also opined that, “(b)ased on the available clinical evidence, it would appear that flare-ups do not significantly affect range of motion. During flare ups - that is, when the Veteran reports increased pain - there have been no reports of any change in the range of motion of the knee (for example, on 23 March 2018 the Veteran was seen for a left knee injection with complaints of pain, and ‘mobility was not limited’). Given this evidence, the ‘exact range of motion of the knee during a flare up’ is identical to that which was measured and reported in the Knee DBQ report, by this examiner (130 degrees of flexion, 0 of extension). This opinion is specific to the case, and based on procurable evidence.” Ultimately, the Board concludes that ratings in excess of 10 percent for the service-connected left and right knee disabilities is not warranted by the evidence. On numerous occasions, the Veteran’s treatment records and examination reports were associated with the claims file during the appellate period. The Veteran was not prescribed bed rest for either knee disability; consequently a 20 percent rating is not warranted under 38 C.F.R. § 4.71 (a), DC 5003. The Veteran did not demonstrate left or right knee flexion limited to 30 degrees or extension limited to 15 degrees; consequently, increased ratings are not warranted under 38 C.F.R. § 4.71 (a), DCs 5260 or 5261. The Board notes that VA supplied the Veteran with knee braces during the appellate period. However, the Board notes that the Veteran requested the braces because he believed that they would help with the bilateral knee pain. Ultimately, the Veteran’s treatment records and examinations reports reveal that the Veteran did not demonstrate recurrent subluxation or lateral instability in either knee during the claim period. Consequently, increased ratings are not warranted under the old or new versions of 38 C.F.R. § 4.71 (a), DC 5257. The Board notes that the Veteran currently endures a torn right knee medial meniscus. The Board also notes that the Veteran has competently and credibly relayed that he endured episodes of right knee “locking.” However, the Board finds that the Veteran did not endure right knee effusion during the claim period; consequently, a 20 percent rating for the service-connected right knee is not warranted under 38 C.F.R. § 4.71 (a), DC 5259. Ultimately, the Board finds that the preponderance of the evidence stands counter to the Veteran’s claims for increased ratings for the service connected left and right knee disabilities. Since the preponderance of the evidence is against these knee claims, the provisions of 38 U.S.C. § 5107(b), regarding reasonable doubt, are not applicable. The Veteran’s claims for increased ratings for the service connected left and right knee disabilities must be denied, because the preponderance of the evidence weighs against his claims. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board RLBJ, 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.