Citation Nr: 21014259 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 15-03 508 DATE: March 11, 2021 ORDER A rating in excess of 20 percent for right knee, traumatic arthritis, is denied. FINDING OF FACT The Veteran’s service-connected right knee, traumatic arthritis, was manifested by pain, flexion limited to 105 degrees, full extension, tenderness, and mild atrophy; however, flexion limited to 15 degrees, extension to 20 degrees, recurrent instability or subluxation, ankylosis, or tibia and fibula impairment, were not shown. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for right knee, traumatic arthritis, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes (DCs) 5010, 5258, 5260, 5261. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from June 1942 to May 1945. He passed away in April 2015, and the Appellant is his surviving spouse. The Appellant has been recognized as the lawful substitute for this claim. This case is before the Board of Veterans’ Appeals (Board) from a February 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which denied a rating in excess of 20 percent for the Veteran’s right knee disability. In August 2020, the Board remanded this matter for additional development. 1. Entitlement to a rating in excess of 20 percent for right knee, traumatic arthritis. Prior to his death, the Veteran sought a higher rating for right knee traumatic arthritis. In a claim received in January 2011, he reported his knees were drained on a regular basis and that he had severe instability and fell 2 to 3 times a week. Review of the record shows that the Veteran's service-connected right knee, traumatic arthritis, was initially assigned a 20 percent rating, effective May 4, 1945, pursuant to DCs 5010, 5258. Thereafter, in the February 2012 rating decision currently on appeal, the RO denied a rating in excess of 20 percent rating for the service-connected right knee disability, pursuant to DCs 5010, 5258. During the pendency of the appeal, portions of the rating schedule for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). If a regulation changes during the course of an appeal, the version more favorable will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable will be applied. Prior to the regulatory change, DC 5010 provided that traumatic arthritis was rated as for degenerative arthritis. Under DC 5003, degenerative arthritis established by X-ray findings is rated based on limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, DC 5003. As of February 7, 2021, under the amended criteria, DC 5010 provides that post-traumatic arthritis is to be rated as limitation of motion, dislocation, or other specified instability under the affected joint. 38 C.F.R. § 4.71a, DC 5010. Under DC 5258, a maximum 20 percent rating is assigned for cartilage, semilunar, dislocated, with frequent episodes of "locking," pain and effusion into the joint. 38 C.F.R. § 4.71a. DC 5258 was not changed effective February 7, 2021, nor were DCs 5260, 5261, the regulations pertaining to limitation of knee motion. DC 5260 pertains to limitation of knee flexion, and provides for a 20 percent rating when flexion is limited to 30 degrees, and a 30 percent rating when flexion is limited to 15 degrees. DC 5261 pertains to limitation of knee extension, and provides for a 20 percent rating when extension is limited to 15 degrees, and a 30 percent rating when extension is limited to 20 degrees. After reviewing the record, the Board concludes that the preponderance of the evidence is against a rating in excess of 20 percent for the service-connected right knee, traumatic arthritis, including under the old and revised criteria of DC 5010. Because the Veteran is in receipt of the highest schedular rating under DC 5258, there is no basis to award a higher evaluation under that diagnostic code. Although the record showed the Veteran experienced chronic right knee pain and limitation of motion, and needed a cane for ambulation, the competent evidence of did not show or approximate right knee flexion limited to 15 degrees or extension limited to 20 degrees, even considering the Veteran's reports of pain and limitation of motion. In that regard, the Board notes on the VA examination in 2012, he denied right knee flare-ups and repetitive use testing did not show additional limitation of motion. 38 C.F.R. § 4.40, 4.45. Moreover, his chronic right knee pain and additional functional limitations were considered in the assignment of the 10 percent rating, in the absence of compensable limitation of motion. See 38 C.F.R. § 4.59. Review of the record includes VA treatment records which showed that in February 2011, the Veteran was seen for right knee pain, and reported a pain level of 5 out of 10. His current treatment plan included cortisone injections. It was noted that he had a history of falling and walked with a cane and a walker. In an April 2011 letter, Dr. K., indicated that the Veteran was under his care for severe osteoarthritis of the knees, but that he was unable to have surgery and was being treated conservatively. On a VA examination in January 2012, the Veteran denied flare-ups impacting the function of the right knee. Range of right knee motion testing revealed flexion to 105 degrees, with pain at the end range of motion, and extension to 0 degrees. He was able to perform repetitive use testing, with no additional loss of motion in the right knee. Functional impairment of the right knee included less movement than normal and pain on movement. Muscle strength was normal, and joint stability testing was normal. There was no evidence or history of recurrent subluxation/dislocation. It was noted that he had a meniscectomy, and frequent episodes of right knee joint pain. He had a 1 cm right leg length discrepancy, and mild atrophy of the right quadriceps by 2 cm. He limped when he walked using a cane. It was noted that his right knee condition did not impact his ability to work. The VA examiner also noted that in a letter, Dr. A., had opined that the Veteran had severe end stage osteoarthritis of the knees, particularly the right knee, and that he was unable to undergo a total knee replacement. It was also noted that he had a transient ischemic attack in October 2009, and a recent stroke causing some left-sided weakness, and that he was using a two-wheeled walker for ambulation In the March 2012 notice of disagreement, the Veteran reported that his right knee had become much worse over the years and that he was entitled to a higher rating for several reasons including stating that in the last 5 years his knee had deteriorated significantly, that there was bone articulating with bone and no articular cartilage, and that he was unable to weight bear on the right knee. The Board has considered the other diagnostic codes pertaining to the knee, some of which have changed, effective February 7, 2021. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In considering the other applicable diagnostic codes, in order to warrant a rating in excess of 20 percent, the evidence must demonstrate or approximate severe recurrent instability or subluxation; unrepaired or failed repair of ligament tear causing persistent instability, and a medical provider prescribes both an assistive device and bracing for ambulation; ankylosis of the knee; or tibia and fibula impairment; none of which has been objectively shown in the record. 38 C.F.R. §§ 4,7, 4.71a, DCs 5256, 5257, 5262. The Board acknowledges that in 2011 the Veteran reported he had severe instability, however, joint stability testing at the January 2012 VA examination was normal. It is further noted that at the VA examination, the Veteran did not report instability in the right knee. Instead, he reported subjective complaints of left knee instability with the examiner noting there was no objective evidence of such. Instead, the examiner noted there was evidence that the Veteran had weakened movement of the left side due to a stroke in 2009. The Board also notes that the Veteran reported he was seen for treatment by private doctors including orthopedic surgeons Dr. H.K. and Dr. A.A. In August 2020 the Board remanded this matter to attempt, with the Appellant’s assistance, to obtain any outstanding private treatment records for the Veteran, including from Dr. H.K. and Dr. A.A. Although the RO sent letters to the Appellant, at her address of record, in September, October, and November 2020, requesting that she complete and return the enclosed forms, no response was received. In December 2020, the RO notified the Appellant of the determination that all efforts had been exhausted and the private treatment records could not be located and were unavailable for review. In conclusion, the Board finds that the preponderance of the evidence is against the claim for a rating in excess of 20 percent for right knee traumatic arthritis. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Casula 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.