Citation Nr: 21015189 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 16-08 554 DATE: March 16, 2021 ORDER Entitlement to a non-initial rating in excess of 20 percent for service-connected right knee osteoarthritis is denied. From June 25, 2020, a rating of 10 percent for right knee extension is granted, subject to the rules and regulations governing the payment of VA monetary benefits. FINDING OF FACT 1. The Veteran’s right knee osteoarthritis is manifested by pain, weakness, fatigue, and flexion limited to, at worst, 90 degrees; no ankylosis or impairment of the tibia or fibula has been shown. 2. From June 25, 2020, the Veteran’s right knee extension is limited to 10 degrees. CONCLUSION OF LAW 1. The criteria for a disability rating higher than 20 percent for the Veteran’s service-connected right knee osteoarthritis were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010, 5256, 5257, 5258, 5259, 5260, 5261, 5262, 5263. 2. From June 25, 2020, the criteria for a disability rating of 10 percent for the Veteran’s extension of right knee osteoarthritis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5256, 5257, 5258, 5259, 5260, 5261, 5262, 5263. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from August 1989 to October 1992. The Veteran testified at a February 2019 videoconference Board hearing before a Veterans Law Judge who is no longer with the Board. A transcript of the hearing has been associated with the claims file. In January 2021 correspondence, the Veteran was offered an opportunity for another Board hearing. The correspondence requested a response in 30 days, or it would be presumed that the Veteran did not desire another Board hearing. Neither the Veteran nor his representative responded to the January 2021 correspondence. Accordingly, the Board finds there is no outstanding request for another hearing. This claim was remanded by the Board in March 2020 for further development and has since returned to the Board for appellate review. The Board notes that the Veteran’s July 2020 supplemental statement of the case was returned as undeliverable in August 2020. In August 2020, the RO made an attempt to contact the Veteran and verify his address. The Veteran did not respond and the RO also submitted a CLEAR search request. In January 2021, the Veteran was also sent a letter to determine if he wanted a third hearing. There was no response. The Board finds that the VA has provided appropriate duty to assist with locating the Veteran’s address. The Board notes that the duty to assist is a two-way street. If the Veteran wishes help, he must actively assist VA by updating his current mailing address regularly. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Thus, the Board finds that its duty to assist obligation is satisfied, and that the Veteran is not prejudiced based on the partial grant below. 1. Entitlement to a non-initial rating in excess of 20 percent for service-connected right knee osteoarthritis is denied. The Veteran’s right knee osteoarthritis is currently rated as 20 percent disabling under Diagnostic Code 5010-5260, limitation of flexion. 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. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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. 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). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where VA’s adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings, different or “staged” ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). When adjudicating an increased rating claim, the relevant time period for consideration is the time period one year before the claim was filed. Hart, 21 Vet. App. at 509. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portrays the anatomical damage, and the functional loss, with respect to all these elements. 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 it 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 seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45. VA must analyze the 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. DeLuca v. Brown, 8 Vet. App. 202 (1995). The intent of the Rating Schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The Board is also required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes “to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities.” Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran 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 version of the 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. 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 to the Veteran will be applied. Prior to the regulatory change, Diagnostic Code (DC) 5010 (“Arthritis, due to trauma”) states “Rate as arthritis, degenerative.” DC 5003 (“Arthritis, degenerative”) states, as relevant, that degenerative arthritis “will be rated on the basis of limitation of motion under the appropriate DCs for the specific joint or joints involved.” As of February 7, 2021, DC 5010 is now labeled as post-traumatic arthritis, and instructed to rate as limitation of motion, dislocation, or other specified instability under the affected joint. If there are 2 or more joints affected, each rating shall be combined in accordance with § 4.25. The Board notes there are no changes to DCs 5260-5261. Under DC 5260, a noncompensable rating is assigned when flexion of the knee is limited to 60 degrees; a 10 percent rating is assigned when flexion is limited to 45 degrees; a 20 percent rating is assigned when flexion is limited to 30 degrees; and a 30 percent rating is assigned when flexion is limited to 15 degrees. Under DC 5261, a noncompensable rating is assigned when extension of the knee is limited to 5 degrees; a 10 percent rating is assigned when extension is limited to 10 degrees; a 20 percent rating is assigned when extension is limited to 15 degrees; a 30 percent rating is assigned when extension is limited to 20 degrees; a 40 percent rating is assigned when extension is limited to 30 degrees; and a 50 percent rating is assigned when extension is limited to 50 degrees. Full range of motion of the knee is from 0 degrees to 140 degrees in extension and flexion. See 38 C.F.R. § 4.71, Plate II. Separate ratings under DC 5260 for limitation of flexion of the leg and DC 5261 for limitation of extension of the leg may be assigned for disability of the same joint. VAOPGCPREC 09-04. Several other Diagnostic Codes under 38 C.F.R. § 4.71a pertain to knee disabilities in addition to those above. They include DC 5256 for ankylosis of the knee; DC 5257 for recurrent subluxation or instability; DC 5258 for dislocated semilunar knee cartilage with frequent episodes of “locking,” pain, and effusion into the joint; DC 5259 for symptomatic removal of the semilunar knee cartilage; DC 5262 for impairment of the tibia and fibula; DC 5263 for genu recurvatum (acquired, traumatic, with weakness and insecurity in weight-bearing objectively demonstrated); and DC 5055 for knee replacement (prothesis). At the outset, the Board notes that the evidence does not support an award for increased ratings for the right knee under Diagnostic Code 5055 for knee replacement (prosthesis); 5256 for ankylosis of the knee; Diagnostic Code 5258 for symptomatic removal of the semilunar knee cartilage with frequent episodes of “locking,” pain and effusion to the joint; Diagnostic Code 5262 for impairment of tibia and fibula; or Diagnostic Code 5263 for genu recurvatum. This is because none of these disabilities have been demonstrated upon VA examinations performed in May 2013, February 2016, April 2018, and June 2020 and are not otherwise reflected in the record before the Board at any point during the appeal period. 38 C.F.R. § 4.71a, Diagnostic Codes 5055, 5256, 5258, 5262, 5263. Further, the Board also finds that the Veteran is separately rated for right knee instability under Diagnostic Code 5257. As this issue is not on appeal, the Board will not address this issue. On the May 2013 VA examination, the examiner indicated the Veteran is diagnosed with bilateral knee osteoarthritis. In relation to the right knee, the examiner stated the Veteran’s right knee arthritis is a progression of the Veteran’s service-connected right knee chondromalacia patella. The Veteran stated he experiences flare-ups. He described the flare-up as constant bilateral knee pain that is aggravated by physical activities and cold weather. The May 2013 VA examiner observed the Veteran’s range of motion to be right knee flexion to 90 degrees with painful motion beginning at 70 degrees and extension to 0 degrees with pain at 45 degrees or greater. The examiner observed the Veteran’s left knee flexion to be 90 degrees with pain at 70 degrees and extension to 0 degrees with painful motion beginning at 45 degrees or greater. The examiner observed the Veteran to have functional loss and/or functional impairment of the knee that is caused by less movement than normal and pain on movement. The examiner observed the Veteran’s bilateral knee stability to be normal and there to be no subluxation/dislocation. The examiner indicated the Veteran occasionally uses a brace or cane. In a July 2013 VA treatment record, the Veteran complained of right knee pain with a popping sound, swelling, locking, and buckling. On examination, the medical provider observed the Veteran’s right knee to be tender with a popping sound. On the March 2014 notice of disagreement, the Veteran stated he has pain in the right knee with locking and loss of range of motion. On the February 2016 VA examination, the examiner indicated the Veteran has a diagnoses of bilateral knee tendonitis and patellofemoral pain syndrome. The Veteran stated his right knee has progressed and is somewhat unstable with will randomly give out on him. He stated he has avoided falls. The Veteran reports the instability occurs with descending a set of steps. The Veteran stated he experiences flare-ups in the bilateral knees with increased pain when climbing or descending a set of steps. The February 2016 VA examiner observed the Veteran’s range of motion to be right knee flexion to 110 degrees and extension to 5 degrees. The examiner stated the Veteran’s extension was limited by back pain. The examiner observed the Veteran to experience pain on extension. The examiner observed the Veteran to have right knee crepitus. The examiner observed the Veteran’s left knee range of motion to be flexion to 110 degrees and extension to 5 degrees, which is limited by back pain. The examiner observed the Veteran to experience pain on left knee extension. The examiner observed the Veteran to experience pain on weightbearing in the bilateral knees. The examiner observed the Veteran to have slight right knee lateral instability with normal joint stability in the left knee. On further testing, the Veteran’s right knee is observed to have medial instability and lateral instability. The examiner indicated the Veteran has regular use of the brace when engaged in increased activities. On the February 2016 substantive appeal the Veteran stated he is in constant pain with lost range of motion in the right knee. He stated he has experienced knee buckling and swelling for years. He stated that his right knee disorder is worsening. He stated the right knee instability is affecting his tasks at work and in daily living. He stated that ascending and descending stairs has become more difficult. He said he loses his balance due to buckling in both knees. He stated that although he uses knee braces, his knees are still unstable. In an October 2017 VA treatment record, the medical provider stated the Veteran has a history of chronic bilateral knee pain and instability in the left and right knee. On an April 2018 VA examination, the examiner indicated the Veteran has a diagnosis of right knee tendonitis and bilateral knee patellofemoral pain syndrome. The Veteran stated he has flare-ups characterized by pain and decreased range of motion. The April 2018 VA examiner observed the Veteran’s range of motion to be right knee flexion to 105 degrees and extension to 0 degrees. The Veteran’s left knee range of motion is flexion to 135 degrees and extension to 0 degrees. The examiner indicated there is pain that causes functional loss and there is pain on flexion, extension, and weightbearing. The examiner indicated there is crepitus in the bilateral knee. The examiner also noted that after repetitive use testing, the Veteran had bilateral knee loss of function or range of motion caused by pain and weakness. During a flare-up, the examiner described range of motion to be limited to right knee flexion to 100 degrees and extension to 0 degrees and left knee flexion to 130 degrees and extension to 0 degrees. The examiner indicated the Veteran does not have subluxation or lateral instability in the bilateral knee. At the February 2019 Board videoconference hearing, the Veteran testified that his right knee swells, buckles, and has limited range of motion. Hearing Transcript (T.) at 3. The Veteran stated that his right knee disorder interferes with daily activity, such as ascending and descending stairs. Id. The Veteran stated he had to reduce his work hours as a physical therapist due to his knee pain. T. at 5. The Veteran stated his right knee has worsened since the last VA examination. T. at 7. The Veteran testified that he experienced right knee instability prior to 2016. T. at 8. On the April 2019 private knee disability benefit questionnaire (DBQ), the evaluator indicated the Veteran has right knee tendonitis and bilateral knee patellofemoral pain syndrome. The Veteran reported that he experienced flare-ups with pain and decreased range of motion. The Veteran also reported functional loss with increased pain and decreased range of motion. On examination, the April 2019 evaluator observed that the Veteran was unable to perform range of motion testing for the right knee. The left knee range of motion was observed as flexion to 135 degrees and extension to 0 degrees. The evaluator indicated the Veteran’s range of motion contributes to functional loss. The evaluator indicates the Veteran experiences pain on active, passive, repetitive use testing, and weightbearing in the right knee. The evaluator indicated contributing factors to the Veteran’s right knee functional loss are less movement than normal, weakened movement, excess fatigability, pain on movement, and deformity. The evaluator indicated the Veteran does not experience right knee subluxation, lateral instability, or effusion. The evaluator noted the Veteran does not use any assistive devices. On the June 25, 2020 VA examination, the examiner indicated the Veteran has diagnoses of bilateral knee tendonitis, osteoarthritis, patellofemoral pain syndrome, and right knee ligament laxity. The Veteran reported that his right knee has progressed to the point of instability and will randomly give out. He stated the giving way occurs when descending stairs. He stated he experiences increased pain when ascending stairs. The Veteran also reported flare-ups. The Veteran stated the flare-ups in the right knee occur daily and are precipitated by activities of daily living and occupational tasks. The Veteran reported that he has function loss or functional impairment with repetitive kneeling, squatting, climbing, prolonged standing, walking, and ascending/descending stairs. On examination, the June 2020 VA examiner observed the Veteran’s range of motion to be right knee flexion to 120 degrees and extension to 0 degrees. The Veteran’s left knee flexion is 125 degrees and extension to 0 degrees. The examiner observed the Veteran to experience pain on examination that causes functional loss and pain on flexion, extension, and weightbearing in the bilateral knees. The examiner observed the Veteran to have additional loss of function or range of motion with repetitive use testing. The examiner noted the Veteran’s range of motion after repetitive use testing is right knee flexion to 100 degrees and extension to 5 degrees and left knee flexion to 110 degrees and extension to 5 degrees. During flare-ups, the examiner found the factors that cause functional los are pain, fatigue, and lack of endurance. The examiner described flare-ups in terms of range of motion with right knee flexion to 90 degrees and extension to 10 degrees and left knee flexion to 100 degrees and extension to 10 degrees. Additional factors contributing to disability are disturbance of locomotion and interference with standing in the bilateral knees. The examiner also found the Veteran’s to experience medial instability in the right knee, however the examiner did not observe the Veteran to have subluxation, lateral instability, or effusion. The examiner indicated the Veteran regularly uses a brace. The examiner observed the Veteran to have pain on passive motion in the bilateral knees. Upon review of the evidence, the Board finds that the evidence does not support an increased rating higher than 20 percent for the Veteran’s right knee osteoarthritis under any relevant diagnostic codes. The Board finds that the Veteran’s right knee range of motion was never limited to the degrees required for a 30 percent rating in either extension (to 20 degrees) or flexion (to 15 degrees). Here, the relevant evidence demonstrates that the Veteran’s extension is at worst to 10 degrees and flexion to at worst 90 degrees. As such, a separate or higher rating under either Diagnostic Code 5260 or 5261 is not warranted for the period on appeal, prior to June 25, 2020. The Board acknowledges that the February 2016 VA examiner noted extension in the right knee to 5 degrees; however, this was determined to be due to back pain and not knee pain. After reviewing the entirety of the record, the Board finds that the Veteran’s demonstrated range of motion in extension and flexion does not warrant a rating in excess of 20 percent under these codes. Therefore, a rating in excess of 20 percent for the time period based on limitation of motion of the right knee is not warranted. The Board also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca. However, as the Veteran’s assigned ratings for his right knee disability explicitly take into consideration his pain on motion, as discussed above, further increased ratings due to pain would be impermissible pyramiding. In summation, the Board finds the Veteran’s right knee osteoarthritis does not warrant a rating in excess of 20 percent. 2. From June 25, 2020, a rating of 10 percent for right knee extension is granted. The Board does find that a rating of 10 percent, but no higher, is warranted for right knee extension from June 25, 2020. The June 2020 VA examiner found the Veteran’s right knee extension to be limited to 10 degrees during flare-ups. Accordingly, the Board finds that a 10 percent rating, but no higher, is warranted from June 25, 2020 onward. Saudiee Brown Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Thompson, 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.