Citation Nr: 21023773 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 13-28 276A DATE: April 21, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for right knee degenerative joint disease is denied. Entitlement to a separate 20 percent rating for moderate instability of the right knee is granted. FINDINGS OF FACT 1. Degenerative joint disease of the Veteran’s right knee causes painful, noncompensable limited motion which is productive of flexion limited to, at worst, 70 degrees with painful motion; flexion limited to 30 degrees has not been shown at any time. 2. The Veteran has moderate right knee instability. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating in excess of 10 percent for right knee degenerative joint disease have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1-4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5003, 5260, 5261. 2. The criteria for entitlement to a separate 20 percent rating for moderate right knee instability have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.14, 4.71a, DC 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1994 to November 1997. His claim comes before the Board of Veterans' Appeals (Board) on appeal of a February 2013 Department of Veterans Affairs (VA) rating decision, in which the Agency of Original Jurisdiction (AOJ) granted the Veteran service connection for right knee degenerative joint disease and assigned that disability an initial noncompensable (0 percent) rating. In a June 2013 Decision Review Officer decision, the AOJ increased the rating assigned the Veteran’s right knee disability to 10 percent. The Veteran testified in support of this claim during a hearing held before the undersigned Veterans Law Judge in December 2017. The Board remanded this claim to the Agency of Original Jurisdiction (AOJ) in August 2017, June 2018 and July 2020. Entitlement to an initial rating in excess of 10 percent for right knee degenerative joint disease The AOJ has assigned the Veteran’s right knee disability an initial 10 percent rating. The Veteran seeks a higher initial rating for this disability. He initially contended that a compensable rating should be assigned this disability as it was causing weakness, pain and instability. Since the AOJ assigned such a rating, he has contended that his right knee pain has progressively worsened and is sharp and throbbing, requiring pain medication, anti-inflammatories and steroid shots. During his hearing, treatment visits and VA examinations, the Veteran reported that his knee hurt all the time and that he had right knee swelling, giving out while walking, which causes him to fall (two to three times weekly), popping and fatigue. He asserted that these symptoms interfere with his ability to bend, run, walk long distances and climb stairs. He claimed that, when these symptoms flare up, his leg gets swollen, and he has additional limitation of motion that is more than 10 percent disabling. The preponderance of the evidence is against an initial rating in excess of 10 percent for the painful, limited motion caused by right knee degenerative joint disease. However, the evidence supports a separate 20 percent rating for moderate instability of the right knee. Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 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 a rating is based adequately portray the anatomical damage, and the functional loss, with respect to all of 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 that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45. When evaluating musculoskeletal disabilities based on limitation of motion, a higher rating must be considered where the evidence demonstrates additional functional loss due to pain, pursuant to 38 C.F.R. §§ 4.40 and 4.45. The DCs pertaining to range of motion do not subsume sections 4.40 and 4.45, and the rule against pyramiding does not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. See DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). In determining if a higher rating is warranted on this basis, pain itself does not constitute functional loss. Similarly, painful motion, alone, does not constitute limited motion for the purposes of rating a disability under DCs pertaining to limitation of motion. However, pain may result in functional loss if it limits the ability to perform normal movements with normal excursion, strength, speed, coordination, or endurance, as provided in sections 4.40 and 4.45. Functional loss due to pain is to be rated at the same level as functional loss caused by some other factor that limits motion. Mitchell, 25 Vet. App. at 32. The intent of the Rating Schedule is 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. As such, painful motion should be considered to determine whether a higher rating is warranted on such basis, whether or not arthritis is present. Burton v. Shinseki, 25 Vet. App. 1 (2011). In this case, the Veteran’s right knee degenerative joint disease is rated 10 percent disabling pursuant to DCs 5003 and 5260. DC 5003, which governs ratings of degenerative arthritis, provides that the severity of such arthritis, established by x-ray findings, is to be rated on the basis of limitation of motion under the appropriate DC for the specific joint or joints affected. 38 C.F.R. § 4.71A, DC 5003. Here, the appropriate DCs are 5260, which governs ratings of limitation of flexion of the leg, and 5261, which governs ratings of limitation of extension of the leg. When there is arthritis with at least some limitation of motion, but to a degree which is noncompensable under the pertinent DC, a 10 percent rating will be assigned for each affected major joint or group of minor joints. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Ratings under DC 5003 are not to be combined with ratings based on limitation of motion of the same joint. 38 C.F.R. § 4.71A, DC 5003. Normal extension of the knee is to 0 degrees and normal flexion of the knee is to 140 degrees. 38 C.F.R. § 4.71A, Plate II. DC 5260 provides that a 0 percent rating is assignable for limitation of flexion to 60 degrees. A 10 percent rating is assignable for limitation of flexion to 45 degrees. A 20 percent rating is assignable for limitation of flexion to 30 degrees, and a 30 percent rating is assignable for limitation of flexion to 15 degrees. 38 C.F.R. § 4.71A, DC 5260. DC 5261 provides that a 0 percent rating is assignable for limitation of extension to 5 degrees. A 10 percent rating is assignable for limitation of extension to 10 degrees. A 20 percent rating is assignable for limitation of extension to 15 degrees. A 30 percent rating is assignable for limitation of extension to 20 degrees. A 40 percent rating is assignable for limitation of extension to 30 degrees. A 50 percent rating is assignable for limitation of extension to 45 degrees. 38 C.F.R. § 4.71A, DC 5261. According to post-service treatment records, VA examination reports and June 2019, December 2020 and February 2021 VA addendum opinions, the Veteran's service-connected right knee disability, found by VA examiners to include degenerative joint disease, patellofemoral osteoarthritis, patellofemoral pain syndrome and patellar tendinosis, has progressively worsened during the course of this appeal, as alleged. It has caused constant pain, including on palpation, motion and weight-bearing, stiffness, swelling, effusion, popping, frequent giving out, multiple falls, weakness, significant crepitus, a slightly antalgic gait and instability. In addition, it has necessitated injections and the use of medications and occasionally a brace, disturbed the Veteran’s locomotion, hindered his ability to bend, sit, stand, walk long distances and climb stairs, and resulted in 0 to 1 week of lost work time. During the early course of this appeal, the Veteran indicated that he had no flare-ups of right knee symptoms. Beginning in March 2019, however, he reported such flare-ups, during which his legs got swollen. In December 2020, a VA examiner characterized the collective effect of the Veteran’s right knee symptoms, including those causing motion loss as well as those resulting in instability, as severe. The symptoms responsible for motion loss have limited the Veteran’s flexion to, at worst, 70 degrees and extension to, at worst, 0 degrees, including on repetitive use and during flare-ups. This degree of motion loss is noncompensable under DCs 5260 and 5261, and as such, the Board may not assign the Veteran’s right knee degenerative joint disease a rating in excess of 10 percent under DC 5003. A rating in excess of 10 percent is also not assignable under DC 5256, which governs ratings of ankylosis. 38 C.F.R. § 4.71A, DC 5256. Between November 2012 and February 2021, VA examiners consistently ruled out ankylosis secondary to the Veteran’s right knee degenerative joint disease. The 10 percent rating assigned the degenerative joint disease contemplates those symptoms limiting the Veteran’s right knee motion, including pain, stiffness, swelling, effusion and weakness. The question is whether a separate rating may be assigned the remaining right knee symptoms, which have resulted in or are indicative of right knee instability. Separate disability ratings may be assigned for distinct disabilities resulting from the same injury provided the symptomatology of one condition is not "duplicative of or overlapping with the symptomatology" of the other condition. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Pyramiding, the evaluation of the same disability under different DCs, is to be avoided. 38 C.F.R. § 4.14. Here, treatment providers have noted that the Veteran has right knee effusion, one criterium for a 20 percent rating under DC 5258, which governs ratings of dislocated semilunar cartilage (meniscus). 38 C.F.R. § 4.71A, DC 5258. However, they did not attribute the effusion to a dislocated meniscus. Rather, in December 2020 and February 2021, VA examiners indicated that the Veteran had other right knee diagnoses, including patellofemoral osteoarthritis, patellofemoral pain syndrome and patellar tendinosis, but described these conditions as a progression of the degenerative joint disease. All VA examiners who have evaluated the Veteran’s knee since 2012 have ruled out meniscal conditions, and as such, a separate rating under DC 5258 for effusion secondary to a meniscal condition may not be assigned. A separate rating may be assigned under DC 5257, which governs ratings of recurrent subluxation or lateral instability of the knees, because the Veteran’s instability is not contemplated in the 10 percent rating assigned his degenerative joint disease under DC 5003. 38 C.F.R. § 4.71A, DC 5257. The record was initially unclear regarding whether the Veteran actually had right knee instability. He had reported that he was using a knee brace and his right knee had been giving way, resulting in falls. Treatment providers objectively confirmed this fact, but during VA examinations, instability was not shown. In July 2020, the Board sought clarification, and in December 2020 a VA examiner found that, although no instability was noted on examinations, the Veteran’s right knee is not stable 100 percent of the time. Under DC 5257, a 10 percent rating is assignable for slight recurrent lateral instability of the knee. A 20 percent rating is assignable for moderate recurrent lateral instability of the knee. A 30 percent rating is assignable for severe recurrent lateral instability of the knee. 38 C.F.R. § 4.71, DC 5257. No medical professional has specifically described the instability as slight, moderate or severe. However, the December 2020 VA examiner considered the instability in conjunction with symptoms of the Veteran’s degenerative joint disease and characterized both conditions collectively as severe. The Veteran is already in receipt of a 10 percent rating for the symptoms of his right knee degenerative joint disease; therefore, based on the VA examiner’s opinion, the instability, alone, should be considered slight or moderate. Treatment records show that the Veteran is experiencing more frequent falls due to his right knee giving way, and VA examiners’ opinions establish that the right knee disability is progressing overall. As such, the Veteran’s right knee instability more nearly approximates the 20 percent rating for moderate instability under DC 5257. 38 C.F.R. §§ 4.7, 4.71A, DC 5257. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. N 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.