Citation Nr: 21025293 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 15-02 128 DATE: April 27, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for right knee degenerative joint disease with meniscal tear status post meniscectomy based on limitation of motion is denied. Entitlement to a separate disability rating of 10 percent prior to February 7, 2021 and 20 percent from that date forward for instability of the right knee is granted. FINDING OF FACT The preponderance of the probative evidence of record demonstrates that the Veteran has painful range of motion in the right knee with flexion limited to 105 degrees at worst and no impairment in extension. The preponderance of the probative evidence of record demonstrates that the Veteran has persistent slight instability of the right knee which requires bracing. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent for right knee degenerative joint disease with meniscal tear status post meniscectomy are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003-5263. The criteria for a separate 10 percent rating prior to February 7, 2021 and a 20 percent rating from that date forward for instability of the right knee are met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1980 to June 1986. This matter comes before the Board of Veterans’ Appeals (Board) from a January 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In August 2017, the Veteran testified at a Board hearing before the undersigned Veteran’s Law Judge. The transcript of the proceeding is of record. In September 2018, the Board remanded this case for additional development. Increased Rating Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. Where the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a “staged” rating is required. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). VA adjudicators must consider whether to assign different ratings at different times during the rating period to compensate the Veteran for times when the disability may have been more severe than at others. The Court since has extended this practice even to established ratings, not just initial ratings. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). 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). 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, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2017); DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Court in Mitchell explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include 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 (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45 (2017). 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 cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. 1. Entitlement to an initial rating in excess of 10 percent for right knee degenerative joint disease with meniscal tear status post meniscectomy. The Veteran contends that he is entitled to an initial rating in excess of 10 percent for a right knee degenerative joint disease with meniscal tear status post meniscectomy. The Board first received this claim in April 2011. The Veteran’s service-connected right knee limitation of flexion is rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5210-5060. 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. 38 C.F.R. § 4.27 (2017). DC 5010 directs that arthritis, due to trauma and substantiated by x-rays be rated under DC 5003 for degenerative arthritis. DC 5003 provides that degenerative arthritis substantiated by x-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When limitation of motion is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each major joint or group of minor joints affected by limitation of motion. A 20 percent evaluation is warranted for x-ray evidence of involvement of two or more major or minor joints, with occasional incapacitating exacerbations. DC 5260 pertains to limited flexion of the knee. A 10 percent rating applies when flexion is limited to 45 degrees. A 20 percent rating applies when flexion is limited to 30 degrees. A 30 percent rating applies when flexion is limited to 15 degrees. DC 5261 pertains to limited extension of the knee and provides a noncompensable rating when leg extension is limited to 5 degrees. A 10 percent rating is warranted for leg extension limited to 10 degrees. A 20 percent evaluation is for leg extension limited to 15 degrees. A 30 percent evaluation is for leg extension limited to 20 degrees. A 40 percent evaluation is for leg extension limited to 30 degrees. A 50 percent evaluation is for leg extension limited to 45 degrees. In December 2011, the Veteran underwent a VA examination for compensation and pension purposes for his knee. The Veteran was diagnosed with right knee osteoarthrosis, right internal derangement of knee, and meniscus of knee tear. He reported right knee pain with flare-ups of pain 1 to 2 times a month for 2 to 3 days. He relieved the flare-ups by elevation, rest, and ibuprofen. Upon examination right knee flexion ended at 140 degrees or greater with no pain. His extension ended at 0 degrees, having no limitation of extension and no objective evidence of painful motion. The Veteran was able to perform repetitive-use testing with 3 repetitions and his range of motion for his right knee was unchanged. No additional limitation in his range of motion followed repetitive use and no functional loss was noted. The Veteran did not have any tenderness or pain to palpation of the joint line or soft tissue of his right knee. Stability testing was normal. There was no evidence or history of recurrent patellar subluxation/dislocation. There was evidence of a meniscal tear in the right knee and a meniscectomy. However, the examiner found there is no evidence of the Veteran having any residual signs and/or symptoms due to his meniscectomy. The Veteran also uses a brace occasionally as an assistive device. The examiner opined that the Veteran’s knee impacts his ability to work as his knee symptoms slow him down and he has to take time off during a flare-up. A February 2016 private treatment record reveals the Veteran complained of right knee pain. An X-ray was interpreted as showing moderate to severe joint space narrowing. In August 2017, the Veteran testified at a Board hearing before the undersigned Veteran’s Law Judge. The Veteran testified that he has constant pain and instability in the right knee. He stated that his right knee would buckle three times a week and has to wear a brace when he exercises. He also complains of flare-ups of pain. The Veteran also testified that his previous VA examination did not account for his limited range of motion. It is noted that the Veteran walked into the hearing with a limp as he was favoring his right knee. In June 2018, the Veteran sought treatment for chronic right knee pain. X-rays were interpreted as showing severe grade 4 osteoarthritis involving the medial tibiofemoral compartment with complete loss of joint space and bone-on-bone appearance. It also showed moderate to severe degenerative joint disease in the lateral tibiofemoral compartment. There was also lateral translation of tibia with respect to femur that indicates laxity/derangement of knee stabilizers. A subsequent record dated the same month referenced the X-ray results and included an assessment of chronic right knee pain and instability. In the August 2018 medical treatment records, the Veteran complained of having right chronic knee pain. The Veteran stated that he wanted a right knee brace. The clinician noted the Veteran having a good range of motion in the right knee, having local swelling, redness or effusion bilaterally, no ulcers or callouses, and his sensory was intact. It was noted the Veteran was being referred for a knee brace. In May 2019, the clinical records revealed that the Veteran went to a follow up for his knee arthritis. The clinician diagnosed right knee severe degenerative joint disease with no edema and limited right knee range of motion. However, no range of motion testing was recorded. The Veteran commented that his knee gives out on him. In the September 2019 medical treatment records, the Veteran complained of chronic pain in the right knee. He underwent a physical examination which revealed limited right knee range of motion. In January 2020, the Veteran was afforded a VA examination for compensation and pension purposes for his knee and lower leg conditions. He reported joint pain, tiredness, soreness, weakness, and a lot of weakness of both legs when standing for prolonged periods. He used Tylenol for treatment. The Veteran reported flare-ups of symptoms with increased movement, long standing, cold weather and raining. He also reported having functional loss as he cannot stay standing for a prolonged period of time. Upon initial range of motion testing, the Veteran’s right knee flexion ends at 120 degrees and right knee extension ends at 0 degrees. Pain was noted on both range of motion testing. The examiner opined that the range of motion itself contributes to a functional loss as the decreased range of motion impairs kneeling down. There is no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. There is evidence of pain with weight bearing. There is no evidence of crepitus. The Veteran was able to perform repetitive-use testing with 3 repetitions and his range of motion for his right knee flexion ended at 105 degrees. Pain, fatigue, weakness, and incoordination were all factors that cause functional loss. The examiner noted instability of station, interference with sitting and standing as contributing factors of his right knee disability. There was no muscle atrophy or ankylosis in the right knee. There was no history of recurrent subluxation, lateral instability or recurrent effusion in the right knee. Joint stability testing in the right knee was performed but there was no joint instability found. It was noted that there was a history of a meniscal tear in the right knee, but no residuals were found. The Veteran used a cane constantly as an assistive device. The examiner opined that the right knee does impacted the ability to work as the condition impairs the ability for long standing, prolonged walking, and kneeling down. In the March 2020 medical treatment records, the Veteran underwent a physical examination which revealed limited right knee range of motion. Based on the evidence of record an increased rating is not warranted at any time. Throughout the rating period on appeal, the right leg extension has been full to 0 degrees even when taking into account pain on use or during flares. Right leg flexion during the appeal period has been limited to (at worst, and taking account of painful motion) 105 degrees. These limitations of extension and flexion alone would not warrant a compensable evaluation under either Diagnostic Code 5260 or Diagnostic Code 5261. In considering range of motion ratings, it is important to consider whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca v. Brown, 8 Vet. App. 202(1995). A minimum compensable evaluation for a joint disability is warranted for painful motion under 38 C.F.R. § 4.59. However, a rating in excess of the minimum compensable rating must be based on demonstrated functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). Here, the evidence shows that Veteran has painful motion in the right knee. As such, a minimum compensable rating for the right knee has been assigned under Diagnostic Code 5003. However, a higher rating is not warranted. While there is evidence of limitation of flexion due to pain and repeated use, such additional limitation is determined to be 105 degrees at the greatest level of impairment. Even considering the additional functional loss due to pain, the Veteran's knee disability would still not reach the required impairment for a compensable disability rating based on limitation of motion under either pertinent Diagnostic Code. 2. Entitlement to separate disability ratings under Diagnostic Code 5257 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 the symptoms were 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. As of February 7, 2021, Diagnostic Code 5257 contains two sections for rating other impairment of the knee. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The first is for recurrent subluxation or instability. The second is for patellar instability. There is no evidence of patellar instability and this criteria will not be applied. Regarding recurrent subluxation and instability, a compensable rating requires persistent instability. Id.; see also 38 C.F.R. § 4.31. “Persistent” is defined as “continuing or inclined to persist in a course” with “continuing” defined as “constant” and “persist” defined as “to continue to exist.” Merriam-Webster’s Dictionary (merriam-webster.com/dictionary, accessed February 8, 2021). Under these criteria, a 30 percent rating is assigned with unrepaired or failed repair of complete ligament tear which causes persistent instability and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. A 20 percent rating is assigned with either (a) Sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device for ambulation, or (b) Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device or bracing for ambulation. A 10 percent rating is assigned for 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 or bracing for ambulation. At the August 2017 Board hearing, the Veteran testified as to the presence of buckling and lateral knee instability. His statements were found credible and truthful. Additionally, the June 2018 clinical record also indicates testing was interpreted as revealing laxity/derangement of knee stabilizers. Conversely, there are specific medical tests that are designed to reveal instability of the joints. These tests were administered by medical professionals in this case in December 2011 and January 2020, and the testing revealed no instability. Given the tests performed are generally recognized in the medical community as diagnostic for instability, the results are afforded probative value. In addition, the Veteran’s truthful and credible statements and the 2018 clinical records are also afforded probative value. The Board therefore determines the evidence does not preponderate against a finding that the Veteran experiences instability of the service connected knee. Prior to February 7, 2021, the instability in the knee warrants a 10 percent rating under Diagnostic Code 5257 in effect prior to that date. While the Veteran's testimony establishes the presence of instability, the Board finds that the instability is slight at most when viewed in light of all the probative evidence. The majority of the probative medical testing conducted during the appeal period demonstrates that the knee is stable. The Board finds that, if the symptoms associated with the Veteran's knee instability were anything more than small in kind or in amount (slight) instability would have been found by the testing. The June 2018 clinical record establish the presence of knee pathology but does not indicate the extent of impairment due to the pathology. The knee tests conducted to determine knee stability were performed to determine the extent of pathology. Based on this, the Board places greater probative weight on the objective medical findings with regard to the extent of instability the Veteran experiences. The Board finds that a 20 percent rating is warranted for right knee instability under the current version of Diagnostic Code 5257 as of the effective date of the change in regulations. The evidence demonstrates that in July 1984, the Veteran underwent arthroscopy meniscectomy surgery. This is a repaired, complete ligament tear. In addition, the Veteran's testimony establishes that he experiences persistent instability. The Board notes the new version of the Diagnostic Code 5257 does not require any minimal degree of instability in order to warrant this rating. As set out above, the prior criteria did require degrees of instability to warrant compensable ratings. Finally, the evidence in the clinical records demonstrate that in June 2018, the Veteran was referred by a clinician for a brace for his knee due to complaints of instability. This satisfies the rating criteria for a 20 percent evaluation. As there is no evidence the Veteran has been prescribed both an assistive device (such as a cane, crutches, or walker) and bracing for ambulation the 30 percent rating criteria have not been reached. While the Veteran has been observed to use a cane, there is no evidence in the claims file that the Veteran was prescribed the use of the cane as well as a knee brace for his disability. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Hughes 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.