Citation Nr: 21025474 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 14-18 895 DATE: April 28, 2021 ORDER Entitlement to increased rating in excess of 10 percent for service-connected left knee osteoarthritis with chondrocalcinosis and anterior cruciate ligament deficiency (previously rated as left knee condition), is denied. FINDING OF FACT The Veteran’s service-connected left knee osteoarthritis with chondrocalcinosis and anterior cruciate ligament deficiency (previously rated as left knee condition), has been manifested by complaints of pain, painful motion with limitation of flexion at worst to 80 degrees, limitation of extension at worst to 0 degrees and difficulty with prolonged walking and standing. CONCLUSION OF LAW The criteria for an increased 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 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.59, 4.7, 4.71a, Diagnostic Code 5260, 5261 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the U.S. Air Force from August 1978 to August 2000. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2020 rating decision of the Department of Veterans Affairs (RO) Regional Office (RO). In September 2018, 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 October 2021. The Veteran’s VA claims file has been returned to the Board for further appellate proceedings. In an October 2020 rating decision, the RO granted service connection for intervertebral disc syndrome (claimed as numbness in the back) with an evaluation of 20 percent, effective June 6, 2011; right knee osteoarthritis with an evaluation of 10 percent, effective June 6, 2011; and left and right lower extremity neuropathy ( numbness in left and right leg) is granted with an evaluation of 10 percent effective August 12, 2020. Therefore, those claims are no longer before the Board. The October 07, 2020 supplemental statement of the case (SSOC) mentions claims for earlier effective dates for the bilateral lower extremity neuropathy (claimed as numbness in left and right legs). These claims are not on appeal because a notice of disagreement has not been received following the October 2020 rating decision. 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). Left Knee The Veteran contends that the 10 percent disability ratings under Diagnostic Code 5003-5260 that are currently assigned to his left knee osteoarthritis does not contemplate the severity of the Veteran's symptoms. Diagnostic Code 5010-5260 covers arthritis and limitation of flexion. As noted above, under Diagnostic Code 5003, degenerative arthritis established by x-ray findings is rated on the basis of limitation of motion under the appropriate Diagnostic Codes for the specific joint involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003. As such, the Veteran's knee disabilities will be rated based on the Diagnostic Code concerning limitation of motion of the knee. 38 C.F.R. § 4.71a, Diagnostic Code 5003-5260 and under the previous 5257 rating. The Board will begin with the Diagnostic Code covering limitation of flexion, but all potentially applicable rating criteria will be considered. In June 2011, the Veteran submitted a supplemental claim which included an increase rating claim for left knee. The Veteran reported that his knee had gotten worse. See June 2011 VA 21-526b, Veteran Supplemental Claim. In September 2012, the Veteran submitted a statement in support of claim, the Veteran stated since he retired from the military, he worked as a sales representative and was on his feet 10 to 12 hours a day; which put a lot of stress with continuous pain on both his knees and back. He stated by the end of a workday his knees were weak and “unpredictable”. The Veteran indicated that he compensated for pain in his right knee by putting more stress on his bad left leg which caused low back pain and caused him to limp. He also noted that he tried starting his day off with anti-inflammatories, but it did not resolve the problems. The Veteran indicated that he was still working but did not know how much longer he could work with the continuous knee pain, back pain, and his restricted mobility. See September 2012 VA 21-4138 Statement In Support of Claim, p.1. In August 2013, the Veteran was afforded a VA knee and lower leg examination. The examiner reviewed the claims file; considered the Veteran’s accounts and conducted an evaluation. The examiner diagnosed right knee strain and left knee patellofemoral syndrome. However, the examination was focused on the Veteran’s right knee not his left knee. The initial range of motion for flexion was at 140 or greater, with painful motion beginning at 135 degrees. There was no objective evidence of painful motion with extension. There was no additional loss of motion. The Veteran tenderness or pain to palpation; muscle strength testing was normal; and stability tests were normal. There was no evidence or history of recurrent patellar subluxation/ dislocation, no medial tibial stress syndrome, and no meniscal conditions. In November 2017 the Veteran was afforded another knee and lower leg conditions VA examination. The Veteran indicated that he did not have any flare-ups or functional loss or functional impairment. The initial range of motion revealed flexion was at 110 degrees and extension at 0 degrees, but pain was not noted on exam. There was no additional functional loss or range of motion after three repetitions. The examiner indicated that he was unable to say without speculation that pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over a period of time. There was no reduction in muscle strength, muscle atrophy or ankylosis. There was no history of recurrent subluxation, lateral instability, or recurrent effusion. There was no joint instability. The Veteran did not have medial tibial stress syndrome or a semilunar cartilage condition. The Veteran did not use any assistive devices and the condition did not impact his ability to work. The examiner also noted that there was no evidence of pain on passive range of motion or on non-weight bearing in non-weight bearing. In March 2018, the Veteran was given another knee and lower leg VA examination. The Veteran reported that episodes of his knees “buckling” were gradually increasing in frequency. The Veteran noted bilateral knee pain on a daily basis, localized to the anterior knee. The Veteran stated he took medication daily and had completed physical therapy. The Veteran reported flare-ups of the knee with increased pain and swelling with increased weight bearing. The Veteran reported functional loss and functional impairment due to decreased weight bearing tolerance. Initial range of motion revealed flexion was at 90 degrees and extension at 0 degrees, but pain was not noted on exam. Pain was noted on flexion and extension. There was objective evidence of pain with weight bearing, localized tenderness, or pain on palpation but no crepitus. There was no additional functional loss or range of motion after three repetitions. The examiner indicated that there was pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over a period of time and with flare-ups. There was no reduction in muscle strength, muscle atrophy or ankylosis. There was no history of recurrent subluxation, lateral instability, or recurrent effusion. There was no joint instability. The Veteran did not have medial tibial stress syndrome or a semilunar cartilage condition. The Veteran did not use any assistive devices and the condition did impact his ability to work, because the Veteran could not tolerate employment requiring prolonged weight bearing. In August 2020, the Veteran underwent an X-ray study. The radiologist noted the Veteran’s history of arthritis and found no evidence for an acute fracture but diagnosed chondrocalcinosis with mild arthritis. See October 2020 C&P Exam. In August 2020, the Veteran was afforded another knee and lower leg conditions VA examination. The Veteran reported having flare-ups of the left knee with his current symptoms at the time being left knee pain, swelling, discomfort, which caused “compensatory” right knee pain. The Veteran also indicated flare-ups and having functional loss or impairment that included excessive pain and discomfort with prolonged sitting, standing, walking, and climbing stairs, which occurred 3 times a week. He also stated that he had a limp. He reported using a knee brace periodically to stand for prolonged periods of time. He also reported flare-ups in spasm of the left more so than the right. Range of motion testing revealed left knee flexion to 80 degrees and extension to 0 degrees with evidence of painful motion. There was evidence of localized tenderness or pain on palpation which was mild and located at the anterior cruciate ligament. There was evidence of pain on weight bearing but no crepitus. Repetitive use testing did not result in an additional loss of motion. Pain, weakness and fatigability or incoordination did significantly limit functional ability with repeated use over a period of time and with flare-ups, but the predicted range of motion did not change and was 80 degrees flexion and 0 degrees extension. There was no muscle strength reduction, muscle atrophy or ankylosis. There was no history of recurrent subluxation, lateral instability, or recurrent effusion. There was no joint instability or meniscus/ semilunar conditions. The examiner cited an X-ray that showed evidence of an old anterior cruciate ligament injury (that had been surgically repaired) but no current ligament laxity. The Veteran reported that he used knee braces regularly due to bilateral degenerative arthritis of the knees. The condition did impact his ability to work, because he had difficulty with prolonged sitting, standing, walking, and climbing stairs due to pain and discomfort. The examiner further noted that there was objective evidence when the left knee was used in non-weight bearing. The Board finds no objective evidence that would warrant a rating greater than 10 percent for the Veteran's knee disabilities, as discussed below. See Esteban, supra. 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. 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 each knee was predicated upon his reports of painful motion, not upon loss of flexion or extension. See 38 C.F.R. § 4.59, DeLuca, supra. A 10 percent rating is the highest award that can be given based solely upon painful motion. 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. To receive a compensable rating under Diagnostic Code 5257, there must be slight recurrent subluxation or instability. The evidence of record does not indicate either the presence of slight recurrent subluxation or instability, therefore DC 5257 is not applicable. However, the Board acknowledges that effective September 1, 2000, the Veteran was granted a 10 percent under this diagnostic code (prior to the February 7, 2021 amendment) for recurrent subluxation or lateral instability which was slight. As noted in the December 6, 2000 rating decision the Veteran was granted 10 percent under this diagnostic code, because his service treatment records revealed his activities were limited because his knee would give way, occasionally pop and there was occasional effusion. Although the Veteran reported the use of a brace for support when standing for long periods of time and episodes of “buckling,” the clinical evaluations found no current ligament deficits indicating that the episodes were due to fatigue and pain. None of the clinical reports indicated joint instability or positive Lachman's tests, and there is no evidence of record during the current period on appeal of the presence of recurrent subluxation or instability. And no compensable ratings under Codes 5258 (dislocated semilunar cartilage) or 5259 (removal of semilunar cartilage, symptomatic), are for application. Turning to Diagnostic Code 5260, leg flexion limited to 30 degrees warrants a rating of 20 percent. In the August 2020 VA examination findings, the Veteran's left knee flexion was to 80 degrees, and extension was to 0 degrees. However, the VA examination, and treatment records do not suggest that the Veteran's knee flexion was never limited to 30 degrees. 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 knees, so it is clearly not ankylosed. As such, DC 5256 is not applicable. Diagnostic Code 5261 is also not applicable because the Veteran has not exhibited any limitation of extension. 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. 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 knee disabilities. J.W. FRANCIS 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.