Citation Nr: 21023743 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 17-04 876A DATE: April 21, 2021 ORDER Entitlement to an additional disability rating of 10 percent for instability of the right knee from August 2, 2019 is granted. Entitlement to a disability rating in excess of 10 percent for right knee osteoarthritis is denied. FINDINGS OF FACT 1. From August 2, 2019, the most probative evidence establishes that the Veteran experienced slight instability in the right knee. 2. Throughout the period on appeal, the Veteran’s right knee disability has been manifested by arthritis and pain resulting in minimal limitation of motion. CONCLUSION OF LAW 1. The criteria for a separate disability rating of 10 percent from August 2, 2019, for service-connected right knee instability, have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.71a, Diagnostic Code 5257. 2. The criteria for entitlement to a disability rating in excess of 10 percent, for service-connected right knee osteoarthritis have not been met. 38 U.S.C. § 1155 (West 2014); 38 C.F.R. § 4.71a, Diagnostic Code 5003-5260. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from September 1998 to December 2003. This matter is before the Board of Veterans’ Appeals (Board) on appeal of the September 2013 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. The Veteran presented sworn testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in September 2019. A transcript of the hearing is of record. This matter was remanded by the Board in December 2019 for further development. The Veteran is seeking entitlement to an increased rating for residual injuries of the right knee. Under 38 U.S.C. § 7104 (2018), Board decisions must be based on the entire record, with consideration of all the evidence. The law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 128-29 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, supra. A Veteran’s entire history is reviewed when assigning a disability evaluation. Further, in determining the level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Correspondingly, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the period on the appeal, the assignment of staged ratings is necessary. The United States Court of Appeals for Veterans Claims addressed whether separate ratings could be assigned under DCs 5257 (which evaluates recurrent subluxation or lateral instability) and DC 5258, which evaluates dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion in the joint, and DC 5259 (semilunar cartilage removal, symptomatic). The Court held that evaluation of a knee disability under DC’s 5257 or 5261 or both does not, as a matter of law, preclude separate evaluation of a meniscal disability of same knee under DC 5258 or 5259, and vice versa. Lyles v. Shulkin, No. 16-0994, 2017 Lexis 1704 (Vet. App. November 2017). The Court further held that entitlement to a separate evaluation in a given case depends on whether the manifestations of disability for which a separate evaluation is being sought have already been compensated by an assigned evaluation under a different DC. Here, the Veteran has been diagnosed with right knee osteoarthritis, status post arthroscopy. See March 2020 VA examination. This has been rated as 10 percent disabling under diagnostic code 5003-5260, which corresponds to limitation of flexion, effective from December 12, 2003 with a temporary 100 percent evaluation due to surgery and a convalescence period from September 12, 2014, with the 10 percent evaluation continuing from December 1, 2014. A hyphenated diagnostic code is used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the rating assigned. The additional diagnostic code is shown after the hyphen. Diagnostic Code 5003 refers to degenerative arthritis. Diagnostic Code 5260 refers to limitation of flexion. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5260. Here, the Veteran was granted a 10 percent rating for the right knee due to functional loss caused by painful motion. As an initial matter, the evidence unequivocally demonstrates that the Veteran has never experienced ankylosis; frequent episodes of “locking”, pain, and effusion into the joint; removal of the semilunar cartilage; limitation of extension to a compensable degree; impairment of the tibia and fibula; or genu recurvatum in the right knee. Thus, she is ineligible for ratings under the corresponding Diagnostic Codes of 5256, 5258, 5259, 5261, 5262, and 5263 throughout the appellate period. See 38 C.F.R. § 4.71a. 1. Entitlement to a disability rating of 10 percent for instability of the right knee Ratings can be assigned for knee subluxation or instability under Diagnostic Code 5257. 38 C.F.R. § 4.71a. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a, including Diagnostic Code 5257, were amended effective February 7, 2021. 85 Fed. Reg. 76453 (Nov. 30, 2020). Prior to February 7, 2021, the Board will consider the old version of the diagnostic codes only; however, for the period beginning February 7, 2021 the Board will consider both the old and amended version (amended code) of the diagnostic code and rate based on whichever is most favorable to the Veteran. Prior to the regulatory change, recurrent subluxation and lateral instability of the knee warranted a 10, 20, or 30 percent rating if slight, moderate, or severe, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2020). “Slight,” as relevant to a physical condition, is defined as “small of its kind or in amount.” Merriam-Webster’s Dictionary (merriam-webster.com/dictionary, accessed February 8, 2021). It is similar to “mild,” which is defined as “not severe” or temperate; with “Temperate” being defined as “keeping or held within limits” and “not extreme or excessive.” “Moderate” is defined as “tending toward the mean or average amount,” “not violent, severe, or intense,” and “limited in scope or effect.” Id. “Severe” is defined as “very painful or harmful” or “of a great degree.” Id. The term “severe” is used throughout the rating schedule, including in Diagnostic Code 5257, to indicate a very great degree of the specific listed disability, in order to differentiate between lesser (or sometimes greater) cases of that same disability within the specific diagnostic code. Within the context of Diagnostic Code 5257, which establishes a successive, tiered rating structure, it represents the highest or most extreme level. Here, only the version of Diagnostic Code 5257 in effect prior to February 7, 2021 is applicable. Prior to August 2, 2019 At the August 2013 VA examination, the Veteran reported a history of right knee pain that has progressively gotten worse, with the knees giving out, causing the Veteran to fall. Joint stability testing of the right knee was performed. Upon examination, the examiner noted no right knee lateral instability, recurrent subluxation, or history of recurrent effusions. The record reflects a negative Lachman test, varus/valgus, and posterior drawer tests, all indicating normal stability of the right knee. The record does not indicate any clinical visit or treatment for any falls the Veteran may have experienced due to her right knee giving out. VA treatment records pertaining to followup treatment after right knee surgery show pain and mild swelling, and no effusion or atrophy, full range of motion, and no symptoms of catching or locking. See e.g. September 2014, October 2014, December 2014 VA treatment records. The June 2015 VA treatment record shows “No patellofemoral instability”. The July 2015 VA treatment record contains a Fall Risk Assessment that states the Veteran has no history of falls in the past 3 months, and states the Veteran has no risk factors for falls. Likewise, the January 2016 VA treatment record shows no instability, and the April 2018 VA treatment record notes no muscle atrophy and no instability. The Veteran reported that she has limited range of motion, muscle loss, and that she is worse off than before the surgery. See January 2017 VA Form 9. The Board acknowledges the Veteran’s statements here, as well as in the August 2013 VA examination and September 2019 Board hearing. However, feeling unstable and having lateral instability or recurrent subluxation of the knee are not the same thing. Lateral instability and recurrent subluxation of the knee can be observed and quantified by testing, such as varus/valgus, posterior drawer, or Lachman testing. The VA examiner, and other clinicians that performed objective stability testing of the right knee document normal joint stability, which does not demonstrate instability sufficient to warrant a compensable rating during this period. A. From August 2, 2019 On a standard orthopedic outpatient progress note, dated August 2, 2019, the Veteran requested a new knee brace as an assistive device. The clinician noted a positive patella grind, positive valgus laxity, negative Lachman test, and negative posterior and anterior drawer. This is the first medical entry where any treating clinician noted a positive objective observation of right knee instability, which in this case is noted as “positive valgus laxity.” The functional limitation was described as exacerbated pain with utilizing stairs, driving her car, and working out. A follow up note of November 2019 shows a nearly identical clinical presentation as August 2019. The Veteran is assigned a 10 percent rating for instability of the right knee, effective March 12, 2020. The March 2020 VA examination identified intermittent lateral instability of the right knee. Joint stability tests were performed that did not reveal objective right knee instability; however, the examiner noted a history of slight lateral instability of the right knee. Functional limitations were described by the Veteran as pain with walking, standing, driving, or sitting. Limitations due to pain have been contemplated under a separate diagnostic code. Considering the knee instability, the Veteran’s condition most closely correlates to “mild” instability warranting a 10 percent disability rating. Lateral instability does not reach the “moderate” level because of the absence of objective instability tests, which would be present in a more severe level of impairment. Although the Veteran has difficulty completing daily tasks, there is no indication that this difficulty stems from instability of the knee, as opposed to functional limitation due to pain. Therefore, no higher rating than 10 percent may be assigned for this period on appeal. 2. Entitlement to a disability rating in excess of 10 percent for right knee limitation of flexion Under DC 5003, degenerative 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. Id. When, however, the limitation of motion is noncompensable under the appropriate diagnostic codes, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion; the 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, X-ray evidence of arthritis involving two or more major joints or two or more minor joint groups, will warrant a rating of 10 percent; in the absence of limitation of motion, X-ray evidence of arthritis involving two or more major joint groups with occasional incapacitating exacerbations will warrant a 20 percent rating. Id. Under Diagnostic Code 5260, a noncompensable rating is warranted for flexion limited to 60 degrees. A 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. A 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). The August 2013 VA examiner noted right knee flexion from 0 to 140 degrees, with additional range of motion loss during pain or flare-ups of approximately 20 percent. The evidence does not show that the Veteran’s arthritis affects 2 or more major joints or 2 or more minor joints of the right knee sufficient to warrant a higher rating under Diagnostic Code 5003. Higher ratings could be assigned based on greater limitations of motion, as discussed above, but those criteria are not met. Therefore, a 10 percent rating contemplates arthritis that results in painful motion that is somewhat limited, but not to the extent required for compensable ratings under DC 5260 or 5261. The December 2014 VA treatment record notes range of motion from 0 to 135 degrees. The VA treatment records consistently note full range of motion, with the most limited range of motion noted as limited to 90 degrees with pain, weakness, fatigability, or incoordination. See August 2019 VA treatment record. None of these findings support a compensable rating for limitation of flexion or extension. Finally, the March 2020 VA examiner noted right knee flexion from 5 to 65 degrees, with pain, weakness, fatigability, or incoordination that limited right knee flexion to 60 degrees. As mentioned above, a 10 percent rating contemplates arthritis that results in painful motion that is somewhat limited, but not to the extent required for compensable ratings under DC 5260 or 5261. Therefore, a higher disability rating is not warranted because flexion was not limited to 30 degrees. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Nelson, 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.