Citation Nr: 21011928 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 14-04 619 DATE: March 3, 2021 ORDER Entitlement to an increased rating in excess of 10 percent for left knee degenerative joint disease is denied. Entitlement to an increased rating in excess of 10 percent for right knee degenerative joint disease is denied. Entitlement to an increased rating in excess of 10 percent for left knee instability is denied. Entitlement to an increased rating in excess of 10 percent for right knee instability is denied. FINDINGS OF FACT 1. The Veteran’s left knee degenerative joint disease is not productive of ankylosis, dislocation or removal of the semilunar cartilage, flexion limited to 45 degrees or less, extension limited to 10 degrees or more, malunion or nonunion of the tibia and fibula, genu recurvatum, or the functional equivalent thereof. 2. The Veteran’s right knee degenerative joint disease is not productive of ankylosis, dislocation or removal of the semilunar cartilage, flexion limited to 45 degrees or less, extension limited to 10 degrees or more, malunion or nonunion of the tibia and fibula, genu recurvatum, or the functional equivalent thereof. 3. The Veteran’s left knee instability is characterized by slight instability and the occasional use of a brace. 4. The Veteran’s right knee instability is characterized by slight instability and the occasional use of a brace. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for left knee degenerative joint disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1-4.14, 4.59, 4.71a, Diagnostic Codes 5010-5261. 2. The criteria for a disability rating in excess of 10 percent for right knee degenerative joint disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1-4.14, 4.59, 4.71a, Diagnostic Codes 5010-5261. 3. The criteria for a disability rating in excess of 10 percent for left knee instability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1-4.14, 4.59, 4.71a, Diagnostic Code 5257. 4. The criteria for a disability rating in excess of 10 percent for right knee instability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1-4.14, 4.59, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served from June 2003 to June 2007. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Previously, these matters were before the Board and subsequently remanded in November 2017 for further development to include new VA examinations and obtain etiological opinions. These matters again came before the Board in April 2020; however, a remand was necessary in order to elicit information regarding the Veteran’s reported bilateral knee instability to include additional VA examinations. See English v. Wilkie, 30 Vet. App. 347, 352-54 (2018). The requested development has been completed and the matters are again before the Board for additional appellate consideration. While the rating for right knee instability was only recently assigned granted by the RO, since it was assigned during the pendency of this appeal, the Board has added this matter as an additional subject for current appellate review. Increased Rating Generally, disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where there is a question as to which of two ratings should be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, 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. The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. 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 disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). 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.” Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in such cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court has clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Instead, in Mitchell, the Court explained that, pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, and less or more movement than is considered normal, weakened movement, excess fatigability, and pain on movement (with swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The Board observes that 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.” 38 C.F.R. § 4.6. It should also be noted that use of descriptive terminology such as “mild” by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in the process of arriving at a decision regarding an increased rating. 38 U.S.C. § 7104(a); 38 C.F.R. §§ 4.2, 4.6. In considering the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson. Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to an increased rating in excess of 10 percent for left knee degenerative joint disease. 2. Entitlement to an increased rating in excess of 10 percent for right knee degenerative disease. 3. Entitlement to an increased rating in excess of 10 percent for left knee instability. 4. Entitlement to an increased rating in excess of 10 percent for right knee instability. To promote efficiency, the issues of entitlement to an increased rating for bilateral knee disability to include an increased rating for bilateral instability will be addressed together. In this case, the Veteran and his attorney contend he is entitled to an increased rating in excess of 10 percent for left and right knee degenerative joint disease to include an increased rating in excess of 10 percent for left and right knee instability. The Veteran is currently rated at 10 percent disabling under Diagnostic Code (DC) DCs 5010-5261 for both knees. See 38 C.F.R. § 4.27 (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). Furthermore, he is also in receipt of a 10 percent disability rating under DC 5257 for bilateral knee instability. Under DC 5261, for limitation of the extension of the leg, provides that when there is limitation of extension of the leg to 5 degrees, a zero percent rating is assigned; when the limitation is to 10 degrees, a 10 percent rating is assigned; when the limitation is to 15 degrees, 20 percent is assigned; when extension is limited to 20 degrees, 30 percent is assigned; when extension is limited to 30 degrees, 40 percent is assigned; and when it is limited to 45 degrees, 50 percent is assigned. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5261). The Board notes that full range of motion of the knee consists of zero (0) degrees extension and 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. Under the new DC 5257 regulations, a 10 percent rating is warranted for a sprain, incomplete tear, or complete tear causing persistent instability, without a prescription from a medical provider for an assistive device or bracing for ambulation. A 20 percent rating is warranted for either sprain, incomplete ligament tear, or repaired tear causing persistent instability, and a provider prescribes a brace and/or assistive device OR unrepaired or failed repair of complete ligament tear causing instability, and a medical provider prescribes an assistive device. A 30 percent rating is warranted for an unrepaired or failed repair of complete ligament tear causing persistent instability and a medical provider prescribes both an assistive device and bracing for ambulation. In the alternative, for patellar instability, a 10 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability that does not require a prescription for a brace, cane, or walker. A 20 percent rating is warranted when the condition after a surgical repair requires a prescription from a medical provider for one of the following: brace, cane, or walker. A 30 percent rating is warranted when the condition after surgical repair requires a brace and or cane or walker. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257). Other potentially applicable diagnostic codes for evaluation the right leg disability include the following diagnostic codes. Under DC 5010, a maximum 20 percent rating is warranted for x-ray evidence involving 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a). DC 5256, for ankylosis of the knee: provides that favorable ankylosis of either knee warrants a 30 percent evaluation. Ankylosis is considered to be favorable when the knee is fixed in full extension, or in slight flexion at an angle between 0 and 10 degrees. A 40 percent evaluation requires that the knee be fixed in flexion at an angle between 10 and 20 degrees. When the knee is fixed in flexion between 20 and 45 degrees, a 50 percent rating is assigned. A 60 percent rating is warranted for extremely unfavorable ankylosis, with the knee fixed in flexion at an angle of 45 degrees or more. Id. Under DC 5258, a maximum 20 percent rating is warranted for evidence of dislocated, semilunar, cartilage, with frequent episodes of “locking,” pain, and effusion into the joint. Id. DC 5259, which provides that a 10 percent rating is assigned for cartilage, semilunar, removal of, symptomatic. This code does not provide for a disability rating in excess of 10 percent. Id. DC 5260, for limitation of flexion of the leg, provides that where flexion is limited to 60 degrees, a 0 percent rating is provided; when flexion is limited to 45 degrees, 10 percent is assigned; when flexion is limited to 30 degrees, 20 percent is assigned; and when flexion is limited to 15 degrees, 30 percent is assigned. Id. VA General Counsel also held in VAOPGCPREC 23-97 that a claimant who has arthritis and also instability of the knee may be rated separately under diagnostic codes 5003 and 5257. General Counsel stated that when a knee disorder is already rated under DC 5257, the veteran must also have limitation of motion which at least meets the criteria for a zero percent rating under DC 5260 (flexion limited to 60 degrees or less) or 5261 (extension limited to 5 degrees or more) in order to obtain a separate rating for arthritis. General Counsel subsequently held in VAOPGCPREC 9-98 that a separate rating for arthritis could also be based on X-ray findings and painful motion under 38 C.F.R. § 4.59; see also Degmetich v. Brown, 104 F.3d 1328, 1331 (Fed. Cir. 1997). Where additionally disability is shown, a veteran rated under DC 5257 can also be compensated under 5003, and vice versa. Moreover, an evaluation of a knee disability under Diagnostic Codes 5260 or 5261 does not preclude a separate evaluation under other diagnostic codes, such as 5258 or 5259. See Lyles v. Shulkin, 29 Vet. App. 107 (2017). However, the Court indicated that such symptoms must be distinct and separate to warrant separate ratings under different Diagnostic Codes; i.e., the same manifestation of disability may not be compensated under more than one Diagnostic Code. Id. Turning to the evidence of record, the Board finds the preponderance of the evidence is against the assignment of a disability rating in excess of 10 percent for left and right knee degenerative joint disease. The Veteran’s bilateral knee disability is manifested by symptoms of painful motion of the knees, mild flareups at least six times a year, severe flareups once a year, no ankylosis, and limitation of extension. Furthermore, the Board notes an increased rating in excess of 10 percent for bilateral knee instability is not warranted. The Veteran’s bilateral knee instability is manifested by slight instability. The Veteran was afforded VA examinations in November 2011, June 2019, and most recently in October 2020. Following the VA examination in November 2011 the Veteran was granted service connection in a May 2012 rating decision. The Veteran was assigned a 10 percent disability rating given the x-ray evidence of arthritis to include limitation of motion of the joint. Further, the Veteran was assigned a 10 percent disability rating for left knee instability due to slight recurrent subluxation and instability. The next VA examination was conducted in June 2019. The Veteran did not report flare-ups and functional impairment. His right knee range of motion (ROM) was 0 to 100 degrees for flexion and 100 to degrees for extension. Normal is 0 to 140 and 140 to 0. For his left knee ROM, flexion was 0 to 120 degrees and extension was 120 to 0 degrees. There was no evidence of ankylosis nor recurrent subluxation or lateral instability. However, the Board previously determined this examination to be inadequate given the inconsistencies between the November 2011 and June 2019 examinations regarding instabilities and flareups. Therefore, per the Board’s remand directives, an additional VA examination was provided. The additional VA examination was provided in October 2020. The Veteran stated he is in daily pain and his knees occasionally give out and lock on him. The Veteran reported mild flare-ups that occur six times per year while severe flare-ups occur once a year. The Veteran also reported functional loss and functional impairment. His right knee ROM for flexion was measured to be 5 to 115 degrees, and extension was measured to be 115 to 5 degrees. His left knee ROM for flexion was measured to be 0 to 130 degrees and 130 to 0 degrees for extension. There was a five degree reduction in right knee ROM after repetitive use over time to 5 to 110 degrees and 110 to 5 degrees. No change in left knee ROM. The examiner described a reduction in right knee ROM during a flare-up to be 5 to 90 degrees and 90 to 5 degrees. There was no evidence of ankylosis or recurrent subluxation. There is evidence of bilateral slight lateral instability. The Veteran occasionally wears a brace. In a November 2020 rating decision by the AOJ, the Veteran was assigned a 10 percent disability rating for right knee instability given the evidence of slight instability. Given the evidence, the Board finds a higher rating or additional ratings are not warranted for his bilateral knee disability to include his bilateral knee instability. First, there is no evidence of ankylosis of either knee. Thus, no additional rating under DC 5256 is warranted. There is also no evidence of dislocated, semilunar, cartilage, with frequent episodes of “locking,” pain, and effusion into the joint or existing damage to the meniscus warranting a separate rating under DC 5258. In addition, there is no evidence of cartilage, semilunar, removal of, symptomatic warranting a 10 percent rating under DC 5259. Next, under DC 5260, for limitation of flexion of the leg, the Veteran’s ROM for right knee flexion is measured to be 5 to 115 degrees, 5 to 110 degrees after repetitive use, and 5 to 90 degrees during a flare-up. For his left knee, 0 to 130 degrees, 0 to 130 degrees after repetition, and 0 to 120 degrees during a flare-up. Thus, the evidence does not even reflect that the Veteran’s right or left knee disability was productive of limitation of right knee flexion to at least 45 degrees (the level of impairment required for a compensable rating under DC 5260). There is also no additional uncompensated limitation of motion that can provide a basis for an even higher rating under DeLuca. In addition, under the Veteran’s current diagnostic rating, DC 5261 for limitation of extension, the Veteran’s right knee ROM was 115 to 5 degrees, 110 to 5 degrees after repetition, and 90 to 5 degrees during a flare-up. As for the Veteran’s left knee, ROM for extension was 130 to 0 degrees, no change after repetition, and 120 to 0 degrees during a flare-up. A 10 percent rating is warranted when the limitation is to 10 degrees and to warrant an increase rating to 20 percent for left and right knee extension, there must be evidence of limitation of extension to 15 degrees. Thus, extension to a compensable level has not been approximated and there is therefore once again no additional uncompensated limitation of motion that can service as a basis for an even higher rating under DeLuca. Here, the Veteran’s left and right knee flexion and extension are consistent with a 10 percent disability rating. The respective limitation of ROM for each knee both flexion and extension do not reach the level of impairment required for additional or higher disability ratings. Lastly, with regard to the Veteran’s claim for an increased rating in excess of 10 percent for left and right knee instability, under the revised rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a,which were amended effective February 7, 2021 (85 Fed. Reg. 76453 (Nov. 30, 2020)), the Board finds that an increased rating is still not warranted. The evidence shows the Veteran has a history of slight lateral instability but no evidence of recurrent subluxation. The Veteran occasionally uses a brace for stability and uses a heavier knee brace during flare-ups. Therefore, a 10 or 20 percent rating for patellar instability is not warranted because the evidence does not show the Veteran experiences any recurrent patellar dislocation. Furthermore, the evidence does not warrant a 20 percent disability rating for recurrent subluxation or instability because the evidence does not show either sprain, incomplete ligament tear, or repaired tear or unrepaired or failed repair of ligament tear causing persistent instability with a medical provider prescribed brace. The evidence does show the Veteran on occasion wears a brace; however, the Veteran does not wear this regularly or constantly. In addition, while posttraumatic arthritis is now rated based on limitation of motion, dislocation and instability, since the Veteran has no recurrent dislocation and is already rated based on limitation of motion and instability, the new rating criteria for posttraumatic arthritis are not found to provide any additional basis for an increased or separate compensable rating. Therefore, an increased or separate rating is not warranted under the revised criteria. Based on the foregoing, the Board finds that the preponderance of the evidence is against entitlement to a rating in excess of 10 percent for left and right knee degenerative joint arthritis and for left and right knee instability. 38 U.S.C. § 5107; 38 C.F.R. § 4.3, 4.7. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. DeBoer, 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.