Citation Nr: 21012532 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 14-17 567 DATE: March 4, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for degenerative joint disease (DJD) of the patellofemoral joint, right knee, is denied. Entitlement to a disability rating in excess of 10 percent for degenerative joint disease (DJD) of the patellofemoral joint, left knee, is denied. FINDINGS OF FACT 1. For the entire period of the appeal, the preponderance of the evidence is against the finding that the service-connected right knee disability has manifested by flexion limited to 30 degrees or less. 2. For the entire period of the appeal, the preponderance of the evidence is against the finding that the service-connected left knee disability has manifested by flexion limited to 30 degrees or less. CONCLUSIONS OF LAW 1. For the entire appeal period, the criteria for the assignment of a disability rating in excess of 10 percent the service-connected right knee disability are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260. 2. For the entire appeal period, the criteria for the assignment of a disability rating in excess of 10 percent the service-connected left knee disability are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1981 to August 2001. This matter comes before the Board of Veteran’s Appeals (Board) from an October 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in July 2020 when the claims were remanded for a VA examination. The Board finds the July 2020 remand directives have been substantially complied with, and the matters are again before the Board. Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Rating Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. To evaluate the level of disability and any changes in a condition, it is necessary to consider the complete medical history of the Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where an increase in the level of a disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Additionally, separate ratings for distinct periods of time, based on the facts may be for consideration. Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. The functional loss may be due to absence of part or all the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59 (2018). 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). The Board notes that hyphenated diagnostic codes (DCs) are used when a rating under one diagnostic code (DC) requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned. The additional code is shown after a hyphen. 38 C.F.R. § 4.27. The Veteran’s bilateral knee disabilities are rated under DCs 5003-5260. DC 5003 provides that degenerative arthritis established by x-ray findings will be rated based on limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When however, the limitation of motion of the specific joint or joints involved is non-compensable under the appropriate diagnostic codes, a rating of 10 percent is applicable to each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Normal range of motion for the knee is defined as flexion, 0 degrees to 140 degrees; and extension, 140 degrees to 0 degrees. 38 C.F.R. § 4.71, Plate II. DCs 5260 and 5261 are used to rate limitation of flexion and extension of the knee, respectively. Under DC 5260, limitation of flexion of the knee to 60 degrees warrants a noncompensable rating; to 45 degrees warrants a 10 percent rating; to 30 degrees warrants a 20 percent rating; and to 15 degrees warrants a 30 percent rating. Other DCs relating to the knee are DC 5256 (ankylosis), DC 5257 (instability) DC 5258 and 5259 (symptomatic dislocation and/or removal of semilunar cartilage), DC 5262 (impairment of tibia and fibula) and DC 5263 (genu recurvatum). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to a disability rating in excess of 10 percent for degenerative joint disease of patellofemoral joint, right knee 2. Entitlement to a disability rating in excess of 10 percent for degenerative joint disease of patellofemoral joint, left knee The Veteran seeks a disability rating in excess of 10 percent for her bilateral knee DJD. In favor of her claim, the Veteran asserts that the current disability rating assigned to each knee does not reflect the severity of her disabilities. As this appeal originates from a claim for increased rating presented to VA in March 17, 2010; the appeal period is from that date, forward. The Veteran’s medical records have been associated with the claims file. In April 2010, the Veteran was administered a VA examination for her knees. A diagnosis of synovitis, retropatellar pain syndrome, was noted for both knees. The examiner noted that the Veteran suffered from pain, weakness, stiffness, swelling, instability, fatigability and lack of endurance. She was also noted to use a cane to help relieve pressure on her knees. The Veteran’s knees were noted to have normal flexion, measured from 0 degrees to 140 degrees and normal extension. No joint instability was noted on the examination. See VA examination of April 2010. In September 2010, the Veteran was administered a Gulf War examination. The Veteran’s knees were noted to have extension measured from 120 degrees to 0 degrees and flexion limited from 0 degrees to 120 degrees. Mild to moderate pain at the end of flexion was noted but no tenderness, no deformities, no effusion, no swelling, or discoloration was noted. The Veteran was also noted to use a cane, with normal stability and a slow antalgic gait. Repetitive movement against body weight was noted not to decrease the Veteran’s range of motion or joint function. See VA examination of September 2010. In January 2011, the Veteran reported to her medical providers that in December 2010 her left knee swelled, and she could hardly walk. She reported her swelling decreased but that her knee would occasional swell back up. See medical records for January 2011. In April 2013 the Veteran reported knee pain and was prescribed replacement knee braces with patella stabilizer for her knee arthralgia. See medical records for April 2013. In October 2013, the Veteran reported bilateral knee pain. See medical records for October 2013. In February 2014, the Veteran reported increased knee pain and swelling. See medical records for February 2014. In June 2014, the Veteran was seen for right knee pain and swelling that had been present for 2 months prior to her visit. The Veteran reported clicking associated with pain mostly when extending her knee but denied locking. The physician noted the Veteran had trace effusion and her range of motion in the right knee as 0 degrees to 110 degrees. See medical records for June 2014. In December 2014, the Veteran reported knee pain. See medical records for December 2014. In November 2016, the Veteran complained of left knee pain. See medical records for November 2016. In December 2018, the Veteran was administered a Knee and Lower Leg Conditions Disability Benefits Questionnaire (Knee DBQ). In this examination, the Veteran reported that she had swelling in both knees, with her right knee being worse than her left. She also reported pain in both knees with prolonged sitting, standing, walking, and inability to climb or descend any stairs. The Veteran also reported flareups of her knee pain but was not able to report specific aggravating factors. The Veteran’s right knee was noted to have an abnormal initial range of motion, with flexion limited from 0 degrees to 110 degrees. The Veteran’s left knee also had an abnormal range of motion with flexion measured from 0 degrees to 120 degrees and extension from 120 degrees to 0 degrees. No additional loss of range of motion was noted with repetitive use. No ankylosis, nor joint instability was noted for either knee. The examiner noted a history of recurrent effusion. See Knee DBQ of December 2018. The Board found this Knee DBQ inadequate in its July 2020 decision as it did not comply with the requirement of Sharp, regarding flareups. Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). In September 2020, pursuant to the Board’s remand directives, the Veteran was administered another Knee DBQ. The Veteran’s current symptoms associated with her bilateral knee DJD were noted as swelling, throbbing pain, sharp pain, instability, decreased movement and range of motion in both knees. The Veteran reported flareups in both of her knees described as swelling, throbbing pain, sharp pain, instability, decreased movement and range of motion in both knees, with a daily frequency, a moderate severity characterized as a 7 in a scale out of 10, and with a duration of 2 to 3 days at a time. The Veteran’s initial range of motion in her right knee was noted as abnormal with flexion measured from 0 degrees to 45 degrees and extension from 45 degrees to 0 degrees and her left knee was noted to have flexion measured from 0 degrees to 65 degrees and extension from 65 degrees to 0 degrees. Evidence of pain with weight bearing was noted as well as objective evidence of crepitus on both knees. The range of motion itself in both knees was noted to contribute to functional loss as the Veteran reported she could not exercise anymore, was able to only do minimal housework, could not play with her grandchild or do any outside home maintenance. The Veteran was able to perform repetitive use testing with at least three repetitions. The observed repetitive use, after 3 repetitions, was noted to cause additional loss of function with range of motion in the right knee measured from 0 degrees to 40 degrees of flexion, 40 degrees to 0 degrees of extension and in the left knee measured from 0 degrees to 55 degrees of flexion and extension from 55 degrees to 0 degrees. The examiner also noted that the examination was medically consistent with the Veteran’s statements describing functional loss with repetitive use over time and that the Veteran’s pain, fatigue, weakness, and lack of endurance limited her functional ability with repeated use described in terms of range of motion as flexion limited from 0 degrees to 35 degrees in the right knee and flexion limited from 0 degrees to 50 degrees in the left knee. The same range of motion results were noted for the Veteran’s functional limitation due to her flareups. The examiner noted that there was objective evidence of pain with palpation of both joints, on her lateral right knee and lateral left knee, with a moderate severity. No muscle atrophy, nor ankylosis was noted for either knee. The Veteran was noted to have a history of recurrent effusion in both her knees, with daily frequency. The Veteran reported that she wears compression socks to help control the swelling. Joint stability testing revealed joint instability in the Veteran’s right knee but not on her left knee. The Board finds this medical examination adequate and assigns it high probative value. Based on all of the above, the Board finds that a disability rating in excess of 10 percent for either knee is not warranted at any time during the appeal period. As previously noted, under DC 5260, a 20 percent rating is warranted when the evidence shows the Veteran’s knee flexion is limited to 30 degrees or less. However, the probative evidence of record does not support the finding that either of the Veteran’s knees have at any time during the appeal period presented with flexion limited to 30 degrees or less. Additionally, the Board finds that the Veteran’s current 10 percent disability ratings for her right and left knee disabilities take into consideration and incorporate the functional loss and impairment due to pain to include during flare-ups. The right and left knee disabilities have not been shown to produce additional impairment of extension or flexion due to pain or functional loss that would warrant ratings higher than 10 percent. See DeLuca; supra. As noted, the weight of the evidence shows Veteran has full extension in the right and left knees for the period of the appeal and the flexion of the knees has not been limited to 30 degrees or less. The Veteran’s current functional impairment of the right and left knees and the symptoms of pain are encompassed in the current 10 percent ratings under DC 5260. The Board has considered the Veteran’s report of pain in the knees and the report of flare-ups. However, the record shows that the VA examiner noted these symptoms in the most recent examination reports and considered them in the assessments of the overall severity of the bilateral knee disabilities. Further, the Veteran’s subjective complaints were directly considered by the RO when assigning the current 10 percent rating for functional limitation resulting from pain and other factors. As such, the Veteran’s subjective complaints are fully contemplated by the currently assigned 10 percent ratings to the left and right knee disabilities. DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59. The Board finds that there is no basis for the assignment of additional disability due to pain, weakness, fatigability, weakness, or incoordination, and the Board finds that the assignment of additional disability pursuant to 38 C.F.R. §§ 4.40 and 4.45 is not warranted. Accordingly, as the preponderance of the evidence is against the finding that either of the Veteran’s knees have been limited to 30 degrees or less of flexion, at any time during the appeal period, the claims must be denied. The Board has also considered whether any other applicable rating criteria may enable a higher evaluation. However, after review, the Board finds that no other diagnostic code provides for a higher rating. There is no evidence of ankylosis of the left and right knees; therefore, DC 5256 is not for application. The Veteran is already in receipt of a 10 percent disability rating for her right knee instability and her left knee was not shown to suffer from instability. Thus, a higher disability rating under DC 5257 is not warranted for the Veteran’s right knee and a separate disability rating under Diagnostic Code 5257 is not warranted for the Veteran’s left knee. The Board also finds that a higher disability rating or a separate disability rating is not warranted under either DCs 5258 or 5259. DCs 5258 and 5259 address meniscus injuries and symptoms which are not shown by the evidence of record. The weight of the competent and credible evidence shows that there is no right or left knee meniscal disability or pathology. Additionally, although the evidence of record shows the Veteran has recurrent effusion and pain in both her knees, the evidence does not show she suffers from locking in either knee or that she has been diagnosed with a meniscal condition in either knee. Thus, higher or separate ratings are not warranted under DCs 5258 and 5259. As there is no evidence of nonunion of the tibia and fibula or genu recurvatum in either knee, higher or separate ratings are not warranted under DCs 5262 or 5263. In summary, for the reasons noted above, the Board finds that the preponderance of the evidence is against the assignment of disability ratings in excess of 10 percent for the service-connected right knee or left knee disabilities during the appeal period, and the claims for higher ratings must be denied. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Gonzalez-Maldonado 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.