Citation Nr: 21023278 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 14-07 412 DATE: April 20, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for left knee degenerative joint disease (DJD), is denied. FINDING OF FACT The Veteran’s service-connected left knee degenerative arthritis has been manifested by complaints of pain, painful motion with limitation of flexion at worst to 60 degrees, limitation of extension at worst to 0 degrees and difficulty with prolonged walking and standing. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 10 percent for left knee degenerative arthritis during the period on appeal have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.59, 4.7, 4.71a, Diagnostic Code 5260, 5261. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the U.S. Navy from February 1992 to March 2011. His awards include the Southwest Asia Service Medal with Bronze Star. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2012 rating decision of the Department of Veterans Affairs (RO) Regional Office (RO). In December 2017 and May 2020, the claim on appeal was previously before the Board and was remanded for additional development. As will be described below, review of the record reflects substantial compliance with the Board's Remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). A supplemental statement of the case (SSOC) was most recently issued in March 2021. The Veteran’s VA claims file has been returned to the Board for further appellate proceedings. The Board notes that the Veteran was granted service connection for left knee episodes of locking is granted with an evaluation of 20 percent effective March 17, 2011 in a July 2020 rating decision. Such will discussed in greater in detail below. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C. § 1155. Percentage evaluations are determined by comparing the manifestations of a particular disorder with the requirements contained in the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. The Veteran’s entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1. VA must consider whether the Veteran is entitled to “staged” ratings to compensate when his or her disability may have been more severe than at other times during the course of his appeal. As discussed in more detail below, staged ratings are not appropriate in the instant case. The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various DCs 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 v. Brown, 6 Vet. App. 259, 261-62 (1994). If there is a question as to which evaluation to apply to the Veteran’s disability, 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. In general, evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that 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. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the Veteran undertaking the motion. See 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. See 38 C.F.R. § 4.45. Normal range of motion of the knee is to 0 degrees extension and to 140 degrees flexion. 38 C.F.R. § 4.71a, Plate II. In this matter, the Veteran’s degenerative arthritis of the left knee has been rated under Diagnostic Codes 5003-5260. Hyphenated diagnostic codes are used when a rating under one diagnostic code (DC) requires use of an additional DC to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. 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. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran’s claims 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, DC 5010 provides that traumatic arthritis substantiated by x-ray findings is rated as degenerative arthritis (DC 5003); meaning that a rating under this DC will be based either on limitation of motion of the affected joint under the appropriate diagnostic code or, if only a noncompensable limitation of motion is found, a 10 percent rating will be assigned for each affected major joint or group of minor joints. 38 C.F.R. § 4.71a. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. In the absence of limitation of motion, a 10 percent rating is warranted if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and a 20 percent rating is warranted if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and there are occasional incapacitating exacerbations. Id. Under DC 5261, limitation of extension of the leg warrants a noncompensable rating if extension is limited to five degrees, a 10 percent rating if limited to 10 degrees, a 20 percent rating if limited to 15 degrees, a 30 percent rating if limited to 20 degrees, a 40 percent rating if limited to 30 degrees, and a 50 percent rating if limited to 45 degrees. See 38 C.F.R. § 4.71a, DC 5261. Diagnostic Code 5260 provides for the assignment of a noncompensable rating when flexion is limited to 60 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. A 10 percent rating is warranted when flexion of the leg is limited to 45 degrees. Id. A rating of 20 percent is appropriate when leg flexion is limited to 30 degrees, and a rating of 30 percent is warranted when flexion is limited to 15 degrees. Id. Under Diagnostic Code 5257, the criteria for impairment of the knee other than ankylosis, 10, 20, and 30 percent evaluations are assigned for slight, moderate, and severe recurrent subluxation or instability, respectively. C.F.R. § 4.71a, Diagnostic Code 5257. The terms “slight,” “moderate,” “severe,” and “marked” are not defined in the regulations. Dislocation of the semilunar cartilage of the knee with frequent episodes of “locking,” pain and effusion into the joint warrants a 20 percent evaluation. See 38 C.F.R. § 4.71a, DC 5258. As of February 7, 2021, under the amended criteria, DC 5010 refers to post-traumatic arthritis, which is to be rated 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. Diagnostic Codes 5261 and 5260 were not changed under the amended criteria. Under the amended criteria, DC 5257 (knee, other impairment of) indicates that recurrent subluxation or instability should be rated as follows: 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 warrants a 30 percent rating. 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; (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 warrants a 20 percent rating. 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 warrants a 10 percent rating. Under the amended criteria, DC 5257 (knee, other impairment of) indicates that patellar instability should be rated as follows: 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 warrants a 30 percent rating. 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 warrants a 20 percent rating. 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 warrants a 10 percent rating. Note (1): For patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note (2): 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). Evidence In a January 2012 VA treatment note, the Veteran was afforded a general VA examination for his disabilities. The Veteran reported that his left knee disability onset was 2001. The Veteran reported that while performing PT he twisted his left knee and had pain. The Veteran indicated that he was given an X-ray which was negative. The pain at the time of the 2012 visit was a 1/10 and he stated his worst pain was 7/10. The Veteran reported that there was pain; weakness; instability; locking; fatigability and lack of endurance. The clinician noted that the Veteran needed a knee brace as an assistive device if he lifted items greater than 50 pounds. Left knee joint had no deformity, swelling, crepitus or instability (mild); and McMurray’s test was negative. Range of motion testing revealed AROM 0-120 degrees and PROM was 0-120 degrees. See September 2015 Capri, p.203-212. However, the examination report did not indicate that the range of motion testing of the Veteran’s service-connected left knee was performed in inactive motion, passive motion, weight-bearing, and nonweight-bearing, and, if possible, with the range of the opposite undamaged joint, in accordance with the decision in Correia. See 38 C.F.R. §4.59(2016); Correia v. McDonald, 28 Vet. App. 158,169-70 (2016). In a February 2012 VA treatment note, the Veteran complained of knee pain. The clinician reported that there were mild degenerative changes of the left knee. There was no significant joint space narrowing, no fracture, no subluxation, and no definite effusion. See September 2015 Capri, p.203. In June 2012, the Veteran submitted a notice of disagreement (NOD). The Veteran’s NOD was an increased rating claim, he disagreed and appealed the 10 percent rating. The Veteran stated that since he left service, he had constant pain more; due to the stress or strain involved in most of the jobs he was capable of doing. The Veteran stated that he was often selected for office, clerical or auto mechanic positions, because of his extensive background in administration and auto mechanics. He stated that his job required a lot of stationary sitting, standing, and the use of stairs. The Veteran stated by the end of a workday the pain in his knees and feet were excruciating. The Veteran stated that he went through periods where he felt like his knee would lock and his feet felt like he had been standing barefoot on rocks. He indicated that he took medication daily and his physical exercise was limited to walking and light stretching. See June 2012 NOD, p.1. The Board notes that the Veteran resubmitted this correspondence dated February 21, 2014 and submitted such again in March 2014. See March 2014 Correspondence, p.1. In a November 2016 VA treatment note, the Veteran complained of knee pain. The Veteran had pain in his knees for 9 years, on and off, that was sharp with severity at an 8/10. The Veteran had no pedal edema, knees had slightly tender at anterior prepatellar and no effusion. The Veteran was given a diagnosis of knee pain, tinea pedis and toenail dystrophy. See November 2016 Capri, p.1;3. In November 2018, the Veteran attended a knee and lower leg VA examination. He reported current symptoms of intermittent left knee pain, stiffness and locking as well as his knee would get aggravated by prolonged standing and walking. The Veteran reported that he did not have any flare-ups of the knee but indicated that he had functional loss or impairment due to limitation with prolonged standing and walking. Initial range of motion testing revealed left knee flexion to 0 to 125 degrees and extension to 125 to 0 degrees. There was no pain noted on exam; the range of motion did not contribute to functional loss and there was no evidence of localized tenderness, no evidence of pain with weight bearing or objective evidence of crepitus. There was no additional loss of function after three repetitions. The examiner indicated that it is not possible to determine, without resorting to mere speculation, to estimate loss of range of motion, because there is no conceptual or empirical basis for making such a determination without directly observing function under those conditions. Muscle strength testing was a 4/5 and there was no muscle atrophy. There was no ankylosis. The examiner noted that there was no history of recurrent subluxation, lateral instability, or recurrent effusion. There was no joint instability, and joint instability testing was normal. The Veteran did not have and never has had a medial tibial stress syndrome or semilunar cartilage condition. The Veteran used a brace and cane as an assistive device regularly. The examiner noted that the Veteran's knee disability did not impact the Veteran’s ability to work. The examiner also stated that there was no evidence of pain on passive range of motion testing and objective evidence of pain when the joint was used on non-weight bearing. In March 2021, the Veteran was afforded another knee and lower leg VA examination. He reported having flare-ups of the left knee that occurred once weekly, the flare-ups were moderate. The Veteran reported functional loss or impairment with difficulty climbing stairs; walking; or standing for prolonged periods of time. The Veteran did not have a history of instability or recurrent subluxation of the knee or history of frequent effusion of the knee. Initial range of motion testing revealed left knee flexion to 90 degrees and extension to 0 degrees. Pain was noted on both flexion and extension. Evidence of pain was noted on weight-bearing; active motion and it was caused by functional loss. There was no evidence of crepitus or localized tenderness or pain on palpation. There was additional loss of function after three repetitions with flexion at 80 degrees and extension at 0 degrees. Pain and lack of endurance caused functional loss. Repeated use over time revealed flexion of 70 degrees and extension at 0 degrees. There was no additional loss of function after three repetitions. During a flare-up flexion was to 60 degrees and extension was to 0 degrees. The Veteran did not have ankylosis or muscle atrophy. There was no joint instability. The Veteran did not have and never had a medial tibial stress syndrome or semilunar cartilage condition. The Veteran used a cane as an assistive device regularly. The examiner noted that the Veteran's knee disability did impact the Veteran's ability to work; due to the functional impact of the knee pain; stiffness; limited range of motion; difficulty bending; prolong standing; walking or climbing stairs. Left Knee The Veteran contends that the 10 percent disability rating assigned under Diagnostic Code 5003-5260 effective March 17, 2011 does not contemplate the severity of his degenerative joint arthritis of this service-connected left knee. For the reasons expressed below, the Board finds that there is no objective evidence that would warrant a rating greater than 10 percent for the Veteran’s degenerative arthritis of the left knee. As an initial matter, the Board accepts that the Veteran experienced pain in his knees, as the Veteran is competent to report unpleasant physical sensation, and his ongoing symptomology. To this extent, the Board finds him credible. See Layno, supra. However, the Board notes that the Veteran’s initial award of a 10 percent disability rating for his left knee was predicated upon his reports of painful motion and loss of flexion. See 38 C.F.R. § 4.59, DeLuca, supra. Therefore, the Board must determine whether the Veteran has the requisite limitation of flexion or extension that would allow for a grant of a disability rating of 20 percent or higher. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes. As such, all relevant diagnostic codes that avoid pyramiding will be discussed below. Turning to Diagnostic Code 5260, leg flexion limited to 30 degrees warrants a rating of 20 percent. Also, under Diagnostic Code 5261, leg extension limited to 15 degrees or more warrants an increased rating of 20 percent. In a March 2021 VA examination, the Veteran’s left knee range of motion was at worst to 60 degrees and extension was at worst 0 degrees. The objective lay and medical evidence of record does not suggest that the Veteran’s left knee flexion was limited to 15 degrees or extension was limited to 30 degrees at any time during the period on appeal. As such an increased 20 percent rating is not warranted under DC 5260 and DC 5261. The Board notes that the Veteran was given a separate 20 percent rating for locking and popping in a July 2020 rating decision under DC 5258 for the entire period on appeal. Although both the November 2018 and March 2021 examination indicated there was no 5258 (dislocated semilunar cartilage) or 5259 (removal of semilunar cartilage, symptomatic). The Veteran is currently in receipt of the highest schedular rating under the law for DC 5258, dislocated semilunar cartilage of the knee, and as such an increased rating is not warranted under this Diagnostic Code. The Board has also considered Diagnostic Code 5256, ankylosis of the knee. Ankylosis is “immobility and consolidation of a joint due to disease, injury, surgical procedure.” Lewis v. Derwinski, 3 Vet. App. 259. As shown above, the Veteran is able to move his knee, so it is clearly not ankylosed. Also, both the November 2018 and March 2021 VA examinations indicate there was no evidence of ankylosis. As such, DC 5256 is not applicable. The Board finds that an additional rating is not warranted under Diagnostic Code 5257 as there is no evidence of slight, moderate or severe recurrent subluxation or lateral instability. The Board finds that the preponderance of the evidence is against finding that the Veteran has recurrent subluxation or later instability of the left knee. VA examiners and treatment records consistently noted that there was no history of recurrent subluxation, lateral instability, or recurrent effusion. Joint instability testing was consistently normal. Additionally, the Veteran did not have and never has had a medial tibial stress syndrome or semilunar cartilage condition. As such the Board finds a rating under DC 5257 is not warranted. Finally, as there is no lay or medical evidence of impairment of the tibia and fibula, or genu recurvatum, Diagnostic Codes associated with these manifestations do not apply. 38 C.F.R. § 4.71a, Diagnostic Codes 5262, 5263. Based on the lay and medical evidence of record, and for the reasons set forth below, the Board finds no objective evidence that would warrant a rating greater than 10 percent for the Veteran’s degenerative arthritis of the left knee, during the period on appeal. As shown above, and as required by Schafrath, 1 Vet. App. at 594, the Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, regardless of whether they have been raised by the Veteran. In this case, the Board finds no provision upon which to assign a rating greater than 10 percent for the Veteran's degenerative arthritis of the left knee for the period on appeal. K.R. Kardian Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E.Long-Ellis, 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.