Citation Nr: 21023019 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 15-12 526 DATE: April 19, 2021 ORDER Entitlement to an increased rating greater than 10 percent for right knee degenerative joint disease (DJD) is denied. Entitlement to an increased rating of 20 percent, but no higher, for right knee instability post arthrotomy is granted. FINDINGS OF FACT 1. The Veteran’s right knee exhibited painful, decreased range of motion but was not manifested by limitation of flexion to 45 degrees or less, or limitation of extension to 10 degrees or more. 2. Throughout the appeal period, the Veteran’s right knee condition was manifested by moderate instability; it was not manifested by severe instability. CONCLUSIONS OF LAW 1. The criteria for an increased disability rating greater than 10 percent for right knee DJD have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.655, 4.1, 4.3, 4.7, 4.71a, 20.608, 20.704, Diagnostic Code 5003-5260 (2020). 2. The criteria for an increased disability rating of 20 percent, but no higher, for right knee instability post arthrotomy have been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1974 to June 1977. He appeals a March 2013 rating decision by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) denying increased ratings greater than 10 percent each for right knee DJD and right knee instability post arthrotomy. In November 2018, the Board of Veterans’ Appeals (Board) remanded for further development. The appeal is now back before the Board. Disability ratings are determined by applying a schedule of ratings based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 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. Importantly, the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. See Mittleider v. West, 11 Vet. App. 181, 182 (1998); 38 C.F.R. § 3.102. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, fatigue, weakness, or lack of endurance, incoordination, or flare-ups is demonstrated, and those factors are not contemplated in the relevant rating criteria. See DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. 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 such as decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement. See Mitchell v. Shinseki, 25 Vet. App. 32, 42-43 (2011). Therefore, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. Knee disabilities are generally rated under diagnostic codes 5256 through 5263 of 38 C.F.R. § 4.71a. Diagnostic Code (DC) 5256 addresses ankylosis of the knee. DC 5257 addresses recurrent subluxation or lateral instability. DC 5258 addresses dislocated semilunar cartilage in the knee manifested by frequent episodes of “locking,” pain, and effusion into the joint. DC 5259 addresses symptomatic residuals related to removal of semilunar cartilage. DC 5260 addresses limitation of motion on flexion while DC 5261 addresses limitation of motion on extension. DC 5262 addresses impairment of the tibia and fibula from malunion or nonunion. DC 5263 addresses genu recurvatum. The Board must consider the Veteran’s service-connected right knee condition under each DC and apply the appropriate ratings without having any of the symptomatology be duplicative or overlapping. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The Veteran cannot receive compensation under two different codes for the same manifestations of symptoms as this would constitute impermissible pyramiding under 38 C.F.R. § 4.14. Of note, the regulations pertaining to rating musculoskeletal disabilities were revised, effective February 7, 2021. Claims, such as this, pending prior to the effective date will be considered under both old and new rating criteria from that date, and whatever criteria is more favorable to the Veteran will be applied from the effective date of the change. For rating the knee, changes were made to DCs 5257 and 5262. Thus, both the old and new rating criteria for these DCs will be analyzed below for the Veteran’s ratings from February 7, 2021. A. DJD with limitation of motion The Veteran’s right knee DJD was rated as 10 percent disabling based on painful limited motion of a major joint under 38 C.F.R. § 4.71a, DCs 5003-5260. See October 2008 rating decision. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. DC 5003 provides the criteria for rating disabilities that are due to degenerative arthritis. In instances where the loss of motion is non-compensable under the appropriate diagnostic code, a rating of 10 percent is assigned for each major joint or group of minor joints affected by the loss of motion. In the absence of any loss of motion, a 20 percent disability rating is assigned where there is x-ray evidence of involvement of two or more major joints with occasional incapacitating exacerbations. See 38 C.F.R. § 4.71a, DC 5003. Knees are considered major joints for rating purposes. See 38 C.F.R. § 4.45. Under this DC, the Veteran is entitled to his current rating of 10 percent, but no higher, as the right knee is only one major joint. Accordingly, the Board must analyze his right knee’s range of motion under DCs 5260 and 5261. Under DC 5260, a 10 percent disability rating is assigned where flexion of the leg is limited to 45 degrees. See 38 C.F.R. § 4.71a. A 20 percent disability rating is in order where leg flexion is limited to 30 degrees. Id. A maximum schedular 30 percent disability rating is assigned where leg flexion is limited to 15 degrees. Id. Similarly, DC 5261 provides ratings for limitation of extension with the following ratings assigned: 10 percent for limitation of extension to 10 degrees, 20 percent for limitation of extension to 15 degrees, 30 percent for limitation of extension to 20 degrees, 40 percent for limitation of extension to 30 degrees, and 50 percent for limitation of extension to 45 degrees. Id. For reference, normal range of motion for the knee is defined under the regulations as consisting of extension to zero degrees and flexion to 140 degrees. See 38 C.F.R. § 4.71, Plate II. In February 2013, a VA examiner recorded the Veteran’s right knee flexion as limited to 90 degrees with full extension and pain on all movement. See February 2013 VA examination report. Then, at a September 2016 VA examination, his right knee flexion was limited to 75 degrees with full extension and in September 2019 it had reduced to 72 degrees with extension limited to 4 degrees. See September 2016 VA examination report; September 2019 VA examination report. A private examiner noted the Veteran’s flexion was limited to 90 degrees with full extension. See August 2017 Alabama Orthopaedic Center examination report. Overall, the Veteran reported he is “unable to squat, kneel,” or run and jump. Id. The Board finds VA treatment records also do not reflect flexion limited to 45 degrees or less or extension limited to 10 degrees or more. See, e.g., September 2011 VA treatment records (flexion 0 to 60 degrees); May 2015 VA treatment records (flexion 0 to 100 degrees). Thus, based solely on the Veteran’s range of motion, his right knee DJD is not entitled to a rating greater than 10 percent under DC 5260 as his flexion is not limited to 30 degrees or less. He is also entitled to a separate rating under DC 5261 as his extension is not limited to 10 degrees or more. Here, the Veteran was provided the minimal compensable rating available under DC 5260, 10 percent, as his right knee had painful motion, pursuant to 38 C.F.R. § 4.59. See Sowers v. McDonald, 27 Vet. App. 472, 478 (2016). However, for a rating greater than 10 percent, the Board must also consider whether any functional loss due to pain, weakness, fatigability, incoordination during flare-ups or with repeated use over time warrants a higher rating. See DeLuca, 8 Vet. App. at 204-07; see also 38 C.F.R. §§ 4.40, 4.45, 4.59. Although the Veteran did not report to suffer from flare-ups at his September 2016 or September 2019 VA examinations, he did report flare-ups at the February 2013 VA examination. Moreso throughout the appeal, the Veteran reported his right knee symptoms included constant pain that worsened with increased use and resulted in intermittent swelling, stiffness, and weakness. See, e.g., September 2019 VA examination report; September 2011 VA treatment records; August 2012 VA treatment records; September 2016 VA examination report. In fact, at the September 2016 VA examination the Veteran declined to complete repetitive movement testing due to pain and the VA examiner noted pain and weakness significantly limited the Veteran’s functional ability with repeated use over time. Generally, the Veteran reported increased pain with prolonged standing, walking, and climbing stairs during the appeal period. See, e.g., March 2013 Veteran notice of disagreement (NOD) (“cannot stand or walk for any prolonged period of time”); September 2016 and September 2019 VA examination reports. The Board finds the Veteran’s statements of record credible regarding his increased symptoms of pain and stiffness with prolonged use. Additionally, the September 2019 VA examiner agreed that the Veteran suffered additional functional loss due to pain, fatigue, lack of endurance, and weakness; he estimated that during flare-ups and with repeated use over time this functional loss resulted in flexion limited to 67 degrees and extension to 5 degrees. However, for entitlement to a rating greater than 10 percent under DC 5260, the Veteran would need to exhibit flexion limited to 30 degrees or less. The record does not reflect the Veteran’s right knee exhibited this severity of decreased motion, even during reported flare-ups and repeated use over time. The Veteran is also not entitled to a separate rating under DC 5261. The predicate element in assigning 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, 6 Vet. App. at 261-62. Assigning a separate rating under DC 5261 based on painful motion would violate the rules prohibiting pyramiding as it would compensate the Veteran twice for the same symptomatology, limitation of motion due to pain. 38 C.F.R. § 4.14. Overall, based on the entire record, the Board concludes the Veteran’s functional loss due during flare-ups and with repetitive use does not warrant a greater disability rating for his right knee DJD. See Mitchell, 25 Vet. App. at 42-43. While his right knee symptoms include constant pain, intermittent swelling, stiffness, and functional loss, his symptom picture more closely approximates his current 10 percent rating under DC 5003- 5260 for painful motion. Also, the Veteran is not entitled to a compensable rating under DC 5261 as his right knee symptoms of pain and any functional loss due to pain, fatigue, weakness, and lack of endurance are fully addressed under DC 5260. See Sowers, 27 Vet. App. at 478. Thus, the Board denies a rating greater than 10 percent for right knee DJD under DCs 5003-5260. B. Instability The Veteran’s right knee instability post arthrotomy is currently rated at 10 percent disabling under DC 5257. As noted above, the rating criteria under DC 5257 changed on February 7, 2021. As such, the Board must consider the Veteran’s instability under both the new and old rating criteria from February 7, 2021. Under the new rating criteria for a recurrent subluxation of instability of the knee, a 10 percent rating is warranted for a 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. See 38 C.F.R. § 4.71a, DC 5257. A 20 percent rating is warranted for one of the following: (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 (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. Id. Finally, a 30 percent rating is warranted for a disability manifest as 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. Id. For patellar instability of the knee, a 10 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with 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. Id. A 20 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: a brace, cane, or walker. Id. And a 30 percent rating is applied for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. Id. Here, the record does not reflect the Veteran has a history of right knee sprain, ligament tear, or repaired ligament tear; the record also does not reflect the Veteran ever had a diagnosed condition involving the patellofemoral complex. See, e.g., September 1975 service treatment records (“arthrotomy and debridement;” synovitis; avascular necrosis); September 1977 VA examination report (osteochondritis dissecans on the lateral condyle of the femur); June 1980 VA examination report (history of avascular necrosis); September 2019 VA examination report. As such, a rating greater than 10 percent for right knee instability post arthrotomy under the new rating criteria from February 7, 2021 is not warranted. Thus, the Board will proceed to rate the entire appeal period under the old rating criteria. Under the old rating criteria, DC 5257 provides ratings for demonstrated knee joint instability with the following ratings assigned: 10 percent for slight, 20 percent for moderate, and 30 percent for severe, recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, DC 5257. The words “slight,” “moderate,” and “severe” as used in the various diagnostic codes are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all the evidence, to the end that its decisions are “equitable and just.” See 38 C.F.R. § 4.6. “Nothing in [DC] 5257 provides that objective medical evidence is required or is to be favored over lay evidence.” See English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). The Veteran reported he was prescribed a cane and brace to support his right knee, which the record reflects he used constantly during the appeal period. See February 2013 VA Form 21-4138; see also September 2019 VA examination report. A September 2007 VA treatment record notes his polycentric-hinged brace was provided to “maintain knee alignment and to provide compression for knee swelling.” Although the February 2013 and September 2019 VA examiners, along with the August 2017 private examiner tested the Veteran’s stability and found no joint instability or “gross ligamentous instability,” the Veteran reported his right knee “gives away” and is unsteady. See May 2016 VA treatment records (“feel unsteady when walking or standing”); September 2019 VA examination report. At the September 2016 VA examination, the Veteran declined to complete stability testing due to pain at the first examination attempt. Based on this evidence of record, the Board finds the Veteran’s right knee instability more closely represents moderate instability. The aforementioned evidence, does not, however, reflect the Veteran meets the criteria for the next higher rating, severe instability. For example, while the record reflects the Veteran reported he felt unsteady when walking and standing, he also denied this claim at various VA appointments and repeatedly denied worrying about falling. See, e.g., May 2016 VA treatment records (feels unsteady but does not worry about falling); March 2019 and October 2019 VA treatment records (does not feel unsteady and does not worry about falling). Additionally, the record does not reflect the Veteran’s right knee instability was so severe it actually caused him to fall during the appeal period. Id. (no falls in the past year); see also May 2015 and November 2015 VA treatment records (negative for falls). This evidence, in conjunction with the negative instability testing and the private examination report noting “no gross ligamentous instability” reflects the Veteran’s right knee instability is not severe, but moderate. As such, the Board finds the Veteran is entitled to a rating of 20 percent, but no higher, for right knee instability post arthrotomy. C. Other Diagnostic Codes The evidentiary record does not suggest the Veteran exhibited right knee ankylosis at any point in the appeal period; hence, a separate rating under DC 5256 is not warranted. Additionally, the evidentiary record does not suggest impairment of tibia and fibula or genu recurvatum. As such, separate disability ratings under DCs 5262 and 5263 are not warranted during the appeal period. DCs 5258 and 5259 address the dislocation and removal of semilunar cartilage. The imaging studies of record do not reflect the Veteran had any dislocation or removal of the semilunar cartilage and the Veteran’s in-service arthrotomy did not involve the meniscus. See September 1975 service treatment records; see also September 2019 VA examination report (“arthrotomy right knee with debridement of cartilage and avascular bone”). As such, disability ratings under DCs 5258 and 5259 are also not warranted during the appeal period. Accordingly, all potentially applicable diagnostic codes have now been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). In summation, the Board denies a rating greater than 10 percent for right knee DJD under DCs 5003-5060 and grants entitlement to an increased rating of 20 percent, but no higher, for right knee instability post arthrotomy. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Bona, 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.