Citation Nr: 21014025 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 16-51 260 DATE: March 11, 2021 ORDER A rating higher than 20 percent for osteoarthritis of the right knee is denied. A rating higher than 20 percent for osteoarthritis of the left knee is denied. FINDING OF FACT 1. The Veteran is in receipt of the maximum rating provided under Diagnostic Code 5258 for bilateral knee osteoarthritis. 2. There is no objective evidence of compensable limitation of motion or instability in either knee; the subjective complaints of instability have been utilized to support the 20 percent ratings assigned under Diagnostic Code 5258. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 20 percent for osteoarthritis of the right knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5257, 5258, 5260, 5261. 2. The criteria for a rating higher than 20 percent for osteoarthritis of the left knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5257, 5258, 5260, 5261. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from December 1970 to September 1978 and from April 1980 to March 1984. These matters come before the Board of Veterans Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in February 2016. A transcript of the Veteran’s August 2019 testimony at a videoconference hearing before the undersigned Veterans Law Judge is of record. The claims were remanded by the Board in December 2019. The Board also remanded a claim for entitlement to special monthly compensation (SMC) based on a need for the regular aid and attendance of another person. That claim was granted effective August 19, 2015, in an October 2020 rating decision and is no longer before the Board on appeal. Increased Ratings 1. A rating higher than 20 percent for osteoarthritis of the right knee 2. A rating higher than 20 percent for osteoarthritis of the left knee Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 of 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. 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). Service connection was originally established for residuals of right and left knee injury with mild lateral collateral ligament laxity in an August 1984 rating decision; noncompensable ratings were assigned under 38 C.F.R. § 4.71a, Diagnostic Code 5257, effective March 31, 1984. The ratings were subsequently increased to 10 percent with the same effective date in a July 1985 rating decision. A February 2007 rating decision recharacterized the disabilities as osteoarthritis of the right and left knees and changed the diagnostic criteria used to evaluate the disabilities to Diagnostic Codes 5003 and 5260. The diagnostic criteria were changed once again in an August 2014 rating decision, which implemented 20 percent ratings for each knee effective May 21, 2012, under Diagnostic Codes 5003 and 5258. The Veteran filed a claim for SMC and the February 2016 rating decision that is the subject of this appeal continued the 20 percent ratings assigned for each knee under Diagnostic Codes 5003 and 5258. The Veteran asserts that she is entitled to higher ratings based on severe arthritis and functional loss of use due to pain and weakness. She reports significant difficulty in ambulating requiring the need for a cane, walker and scooter and significant difficulty in performing physical tasks due to the arthritis. The Veteran testified in August 2019 that she used to use a cane but was using a walker for more stability to keep her from falling and that her balance problems are a result of the knee arthritis coupled with her service-connected Meniere’s disease. In an undated letter received in April 2016, the Veteran’s brother reports that she is unable to walk well due to knee problem; that her activities have been restricted to walking a very limited distance as well as difficulties climbing stairs; that she requires a walker to get around and has recently purchased an electric scooter; and that her limited mobility affects all aspects of her life. Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after February 7, 2021. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied. The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. Prior to February 7, 2021, Diagnostic Code 5003 provided that degenerative arthritis established by x-ray findings would be rated on the basis of 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(s) involved is noncompensable under the appropriate diagnostic code(s), a 10 percent rating is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. 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, a 20 percent evaluation is merited for x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. A 10 percent evaluation is merited for x-ray evidence of involvement of two or more major joints or two or more minor joint groups. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Under 38 C.F.R. § 4.59, painful motion is an important factor of disability from arthritis and actually painful joints are entitled to at least the minimum compensable rating for the joint. Effective February 7, 2021, Diagnostic Code 5003 provides that degenerative arthritis other than post-traumatic arthritis established by x-ray findings will be rated on the basis of 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 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, to be combined, not added under diagnostic code 5003. 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, a 10 percent rating is assigned for x-ray evidence of involvement of two or more major joints or two or more minor joint groups and a 20 percent rating is assigned for x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. The rating criteria provided for limitation of motion of the knee and leg are found at 38 C.F.R. § 4.71a, Diagnostic Codes 5260 and 5261. These criteria underwent no changes when the February 7, 2021, amendments went into effect. Diagnostic Code 5260 provides ratings for limitation of flexion. Flexion of the leg limited to 60 degrees is noncompensable, flexion limited to 45 degrees merits a 10 percent rating, limitation of flexion to 30 degrees warrants a 20 percent evaluation, and a 30 percent evaluation requires that flexion be limited to 15 degrees. Diagnostic Code 5261 provides ratings for limitation of extension of the leg with the following ratings assigned: 0 percent for extension limited to 5 degrees, 10 percent for extension limited to 10 degrees, 20 percent for extension limited to 15 degrees, 30 percent for extension limited to 20 degrees, 40 percent for extension limited to 30 degrees, and 50 percent for extension limited to 45 degrees. For rating purposes, normal range of motion of the knee is from zero to 140 degrees. See 38 C.F.R. § 4.71a, Plate II. Separate evaluations may be assigned for compensable limitation of flexion and extension of the same joint. See VAOPGCPREC 09-2004. Diagnostic Code 5258, which also underwent no changes when the February 7, 2021, amendments went into effect, provides a single 20 percent rating for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint. The preponderance of the evidence is against the assignment of ratings higher than 20 percent for the service-connected knee disabilities at any time during the appeal. Since the Veteran is already in receipt of the maximum rating provided under Diagnostic Code 5258 for both knees, the assignment of ratings higher than 20 percent is impossible under this diagnostic criterion; in order to merit the assignment of the next highest (30 percent) rating provided under Diagnostic Codes 5260 and 5261, the evidence must show that the Veteran had flexion limited to 15 degrees and extension limited to 20 degrees. The evidence in this case does not show either. Rather, the Veteran has consistently exhibited normal extension during the appeal period, and she exhibited right knee flexion to 95 degrees during the January 2016 and July 2020 VA examinations and left knee flexion to 100 and 105 degrees during those examinations. Consideration has been given to functional impairment and any effects of pain on functional abilities due to the Veteran’s service-connected bilateral knee disability. The Board acknowledges the subjective complaint of flareups described during the January 2016 VA examination as the Veteran’s knees turning bright red, hot and painful for about two days occurring every other month or two, and the subjective report during the July 2020 VA examination of functional loss/impairment resulting in the need for a walker for mobility and use of an electric scooter to get to her assisted living facility’s dining room, needing to sit down after walking down one hallway, only being able to sit for 15 minutes before needing to reposition, an inability to squat or kneel, and the need for assistance in the shower. The Board also acknowledges the objective evidence during the January 2016 VA examination of bilateral knee pain with weight bearing, bilateral medial to anterior knee tenderness, bilateral crepitus, pain and additional functional loss/range of motion after repetitive use testing; and the objective evidence during the July 2020 VA examination of pain with right knee flexion causing functional loss and mild tenderness to palpation around both patellae. The Board also acknowledges the January 2016 VA examiner concluded that bilateral knee pain, weakness and lack of endurance limited functional ability with repeated use; that additional factors contributing to disability for both knees included swelling, instability of station, disturbance of locomotion, interference with sitting, and interference with standing; that the Veteran was noted to arrive for the examination via electric scooter and had shuffling gait to and from the examination table; and that her knee disabilities impacted her ability to work due to no longer being able to perform tasks of a manual labor job that would require standing, walking, climbing, carrying or bending, though she could perform duties of a job where she could go from sitting to standing and did not require any distance walking or climbing stairs. The July 2020 VA examiner also concluded that the Veteran’s knees impacted function/occupational tasks since she needed assistance with showers, a walker for up to one hall mobility, and a motorized scooter for longer distance. In this case, the functional impairment and effects of pain exhibited by the service-connected bilateral knee disability have already been considered by the RO in the assignment of the 20 percent ratings. The Veteran’s limitation of knee motion has not risen to a compensable level under Diagnostic Codes 5260 and 5261, she lost only 10 degrees of flexion in both knees (to 85 degrees on the right and to 90 degrees on the left) after repetitive use testing during the January 2016 VA examination, and she was able to perform repetitive use testing without any additional loss of motion or function during the July 2020 VA examination. The July 2020 VA examiner also noted that pain, weakness, fatigability and incoordination did not significantly limit functional ability with repeated use over a period of time for either knee and that while the Veteran was examined sitting in chair due to her inability to get on the examination table, supine knee flexion may have been greater had she been willing to flex her knees more than 95 degrees. For these reasons, the Board finds that the 20 percent ratings presently assigned contemplate the functional impact arising from the objective findings and the Veteran’s subjective complaints involving both knees. Accordingly, a higher or separate rating based on limitation of flexion and extension is not warranted at any time during the appeal. 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 204-06. The Board has also considered whether the Veteran’s right and/or left knees should be rated higher or separately under Diagnostic Code 5257. Prior to February 7, 2021, this code provided ratings of 10, 20 and 30 percent for slight, moderate and severe recurrent subluxation or lateral instability, respectively. Effective February 7, 2021, this code provides ratings of 10, 20 and 30 percent for recurrent subluxation or instability, or for patellar instability involving the patellofemoral complex. Ratings of 10 percent are provided for 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; and 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 (e.g., cane(s), crutch(es), walker) or bracing for ambulation. Ratings of 20 percent are provided for recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: a brace, cane, or walker; and for (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation or for (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. Ratings of 30 percent are provided for recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker; and for 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. Note (1) to the current criteria stipulates that the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon; Note (2) stipulates that a surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). The Board acknowledges the Veteran’s subjective complaints of bilateral knee instability and her use of several assistive devices; however, bilateral joint stability testing conducted during the January 2016 and July 2020 VA examinations was normal. The complaints of instability have also been utilized to support the 20 percent ratings assigned under Diagnostic Code 5258. This determination is based on the fact that although the January 2016 VA examiner noted the Veteran had a meniscus condition, noted to be a 1982 arthroscopic surgery, the report associated with that surgery indicates that an October 1982 left knee arthroscopy was normal without evidence of meniscal tear, and the October 1983 medical board proceedings reported diagnoses of bilateral anterior knee pain syndrome; right knee instability; and bilateral patella maltracking. For these reasons, higher or separate ratings under Diagnostic Code 5257 are not warranted for either knee. See 38 C.F.R. § 38 C.F.R. § 4.14 (the evaluation of the same manifestation or disability under different diagnoses is to be avoided); see also Lyles v. Shulkin, 29 Vet. App. 107 (2018) (entitlement to a separate evaluation depends on whether the manifestations for which a separate evaluation is being sought have already been compensated by an assigned evaluation under a different diagnostic code). In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the assignment of ratings higher than those currently assigned, that doctrine is not applicable. See 38 U.S.C. § 5107(b) (2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Van Wambeke, 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.