Citation Nr: 21026756 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 14-20 867 DATE: May 3, 2021 ORDER Entitlement to a rating in excess of 10 percent for left knee arthralgia with arthritis, post-operative, is denied. FINDING OF FACT The Veteran's left knee arthralgia with arthritis, post-operative, is not manifest in occasional incapacitating exacerbations. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for left knee arthralgia with arthritis, post-operative, have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5020. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army from January 1973 to August 1974. This claim comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in a September 2018 hearing, a transcript of which has been associated with the claims file. This matter was previously before the Board in February 2019, when it was remanded in order to obtain a new VA examination due to the Veteran stating his left knee condition had worsened since his last examination. This matter has since returned to the Board for further appellate review. Entitlement to a rating in excess of 10 percent for left knee arthralgia with arthritis, post-operative, is denied. Disability ratings are assigned in accordance with VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from a disability. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. When a question arises as to which of two ratings shall be applied under a particular Diagnostic Code, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. The evaluation of the same "disability" or the same "manifestations" under various diagnoses is prohibited. See 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993) (interpreting 38 U.S.C. § 1155). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, if a veteran has separate and distinct manifestations attributable to the same injury, they may be compensated under different diagnostic codes (DCs). See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993). Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitation, and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of the examination. Where the rating appealed is the initial rating assigned with a grant of service connection, the entire appeal period is for consideration, and separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Moreover, adjudication of a claim for a higher initial disability rating should include specific consideration of whether staged ratings are appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999). A veteran may receive more than one compensable rating for different conditions of the same knee. Thus, the Board will discuss all applicable rating criteria for the knees. See VAOPGCPREC 09-04; VAOPGCPREC 23-97. The Veteran is currently service connected for left knee arthralgia with arthritis, post-operative, and seeks an increased rating. His arthritis is currently rated as 10 percent disabling under DC 5020, governing synovitis. This DC was removed from the rating criteria effective February 7, 2021, and the note referring to former DC 5020 states that diseases previously evaluated under this DC should be evaluated as degenerative arthritis based on limitation of motion of affected parts. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76,453, 76,463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a). Because this revision occurred during the pendency of the Veteran's claim, whichever version is most favorable to him must be applied. However, the new version can only be applied as of its effective date. 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114; VAOPGCPREC 3-2000, 7-2003; Kuzma v. Principi, 341 F.3d 1327, 1328-29 (Fed. Cir. 2003). Under the old criteria of DC 5020, synovitis is rated on limitation of motion of affected parts, as arthritis, degenerative. In the current version of 38 C.F.R. § 4.71a, DC 5020 was removed, and the new note for this DC states that it will be evaluated as degenerative arthritis based on limitation of motion of affected parts. Under the old criteria, DC 5256 is for ankylosis of the knee. Extremely unfavorable ankylosis in flexion at an angle of 45 degrees or more is rated at 60 percent. Unfavorable ankylosis in flexion between 20 degrees and 45 degrees warrants a50 percent rating. Unfavorable ankylosis in flexion between 10 degrees and 20 degrees warrants a 40 percent rating. A 30 percent rating is warranted for favorable ankylosis at an angle in full extension or in slight flexion between 0 degrees and 10 degrees. The criteria for the current DC 5256 are the same as the old DC 5256. Under the old criteria, DC 5257 consisted of severe, moderate, or slight recurrent subluxation or lateral instability that warranted either a 30, 20, or 10 percent disability rating, respectively. Under the current DC 5257, recurrent subluxation or instability that was unrepaired or failed repair of complete ligament tear causing peristent instability warrants a 30 percent rating. A 20 percent rating is warranted for a sprain, incomplete ligament ter, or repaired complete ligament tera causing peristent instability, or unprepared or failed repair of complete ligament tear causing persistent instability. Patellar instability warrants a 30 percent disability rating if 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. A 20 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace, cane, or walker. A 10 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without a history of surgical repair) that does not require a prescription for a brace, cane, or walker. Under the old criteria, DC 5258 provided a 20 percent disability rating for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. The current DC 5258 criteria is the same as the prior criteria. Similarly, both the old and current criteria for DC 5259 provides a 10 percent rating for symptomatic removal of the semilunar cartilage. Under the old and current criteria, DC 5260, limitation of flexion of the knee to 15 degrees warrants a 30 percent rating. A 20 percent rating is warranted for flexion limited from 16 to 30 degrees. A 10 percent rating is warranted for flexion limited to 45 degrees. Flexion limited to 60 degrees is noncompensable. Under the prior and current criteria for DC 5261, extension of the knee limited to 45 degrees or more warranted a 50 percent rating. A 40 percent rating is warranted for extension limited from 44 to 30 degrees. A 30 percent rating is warranted for extension limited from 29 to 10 degrees. A 20 percent rating is warranted for extension limited from 19 to 15 degrees. A 10 percent rating is warranted for extension limited from 14 to 10 degrees. Limitation to 5 degrees is rated as noncompensable. Under the previous criteria for DC 5262, nonunion of either the tibia or fibula with loose motion requiring a brace warranted a 40 percent rating. For malunion of the tibia or fibula with either marked, moderate, or slight knee or ankle disability, a 30, 20, or 10 percent disability rating is warranted, respectively. Under the current criteria, DC 5262 provides for a 40 percent rating for nonunion of the tibia and fibula, with loose motion, requiring a brace. The DC also notes that malunion should be evaluated under DCs 5256, 5257, 5260, or 5261 for the knee or DC 5262, whichever results in the highest evaluation. A 30 percent rating is warranted for medial tibial stress syndrome or shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shore orthotics or other conservative treatment, both lower extremities. A 20 percent rating is warranted when it requires treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, one lower extremity. A rating of 10 percent is warranted when it requires treatment for no less than 12 consecutive months, and unresponsive to either shoe orthotics or other conservative treatment, one or both lower extremities. Treatment less than 12 consecutive months for one or both lower extremities is noncompensable. Genu recurvatum, acquired, traumatic, with weakness and insecurity in weight-bearing objectively demonstrated, is rated at 10 percent disability under both the prior and current DC 5263 rating criteria. When assessing the severity of musculoskeletal disabilities that are, at least partly, rated on the basis of limitation of motion, VA also must consider the extent that a veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when a veteran's symptoms are most prevalent ("flare-ups") due to the extent of his or her pain (and painful motion), weakness, premature or excess fatigability, and incoordination, assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59. The Veteran was afforded VA examinations in July 2012, April 2016, and December 2020. In the July 2012 examination, the Veteran's initial left knee flexion was noted to be to 130 degrees, with no objective evidence of pain noted. His left knee could extend to 0 degrees, with no limitation of extension nor any objective evidence of painful motion. After repetitive-use testing, the Veteran's left knee flexion and extension remained unchanged. The examiner noted the Veteran had no functional loss in his left knee, no localized tenderness on palpation, normal muscle strength, no instability, no history of subluxation, but he did have a current diagnosis of arthritis. The Veteran also had arthroscopic surgery with no residuals noted, but did report using a brace occasionally for support In the April 2016 examination, the Veteran's initial left knee flexion was to 115 degrees, and his extension was to 0 degrees, with pain noted during both flexion and extension. His range of motion after repeated-use testing showed flexion to 105 degrees and extension to 0 degrees. The Veteran also reported having flare-ups, describing it as a severe pain that makes it difficult for him to walk for an extended period of time due to the pain and discomfort. The examiner estimated that the Veteran's flare-ups affected his range of motion by limiting flexion to 100 degrees; no additional limitation of extension was estimated. The Veteran's strength was noted as normal, with no subluxation, instability, or ankylosis noted. He reported using a cane occasionally and was noted to have difficulty with prolonged standing, walking, and climbing stairs. The Veteran's diagnosis of osteochondritis dissecans with chondromalacia and degenerative joint disease remained unchanged. In the December 2020 examination, the examiner noted the Veteran's diagnosed conditions had changed to osteoarthritis, patellofemoral pain syndrome, chondromalacia patella, and residuals from arthroscopic knee surgery, all of which were a progression of his previous diagnoses. He reported pain, swelling, and instability, and stated that standing, bending, and sitting for long periods aggravated his knee pain. The Veteran's initial right knee flexion was to 105 degrees, and his extension was to 0 degrees, with pain noted in both movements. His initial left knee flexion was to 115 degrees and extension to 0 degrees, with pain noted in both movements. There was no additional loss in range of motion after repetitive-use testing. The Veteran also reported that he could not stand or sit for long periods of time and experienced flare-ups in his left knee daily. These flare-ups were typically precipitated by running, walking, sitting, or standing, and were alleviated by steroid shots. He also described experiencing constant throbbing pain, as well as his knee giving out at times. The Veteran stated he could only stand or about 5 minutes before his knee pain increased. The examiner estimated that the Veteran's ranges of motion during flare-ups were flexion to 100 degrees of flexion and to 0 degrees of extension in his right knee and flexion to 110 degrees and extension to 0 degrees in his left knee. Muscle strength was noted at 4/5 in all measurements, but there were no signs of atrophy. There was also no history of subluxation or lateral instability, as well as no instability noted during testing. The Veteran did experience recurrent effusion a couple times a week and had objective signs of crepitus. No ankylosis was noted. The examiner noted objective evidence of pain in active and passive ranges of motion, as well as with weightbearing and non-weightbearing. He reported regular use of a brace and constant use of a cane. At the September 2018 hearing, the Veteran testified that he gets a lot of swelling in his knee and that his knee will give out on him while he is walking, essentially losing function in his left knee from time to time. He also testified that he could not extend his left knee and wears a brace. Additionally, he stated he favored his right knee because the pain in his left knee makes it difficult for him to put pressure on it. The Veteran testified he received steroid shots in his knee every four months. He also remarked that his knee pain prevents him from working, along with his back pain. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for left knee left knee arthralgia with arthritis, post-operative. The Board acknowledges the Veteran's lay reports of symptoms, including swelling, pain, his knee giving away at times when walking, difficulty standing for more than 5 minutes at a time, and difficulty sitting for long periods, and also acknowledges there was functional loss due to these symptoms. However, his condition does not cause incapacitation with involvement of two major joints to warrant a 20 percent rating under either prior or current rating criteria for degenerative arthritis, as the Veteran is only service-connected for his left knee. 38 C.F.R. § 4.71a, DCs 5003, 5020. And even when considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by his statements would not result in limitation of motion more nearly approximating flexion limited to 45 degrees or less or extension limited to 10 degrees or more to warrant a separate or higher rating based on limitation of flexion or extension under Diagnostic Codes 5260 and 5261. The Board also considered the other Diagnostic Codes (DCs) pertaining to the knee and leg. To this end, the preponderance of the evidence does not support a separate rating under the criteria for DCs 5256, 5258, 5259, 5262, or 5263. The Veteran's left knee disability is not manifested by ankylosis, dislocation of the semi-lunar cartilage, symptomatic removal of semi-lunar cartilage, any impairment of the tibia and/or fibula, or genu recurvatum throughout the entire appeal period. Thus, these diagnostic codes are not applicable in this case under the criteria either prior to February 7, 2021 or the criteria since. The Board acknowledges that the Veteran reported occasional feelings of instability and giving way in his knee. The Board finds the Veteran's complaints to be competent and credible insofar as they report feelings of the knee giving out or general instability. However, the term instability can have multiple meanings and here, the July 2012, April 2016, and December 2020 VA examiner all conducted thorough examination of the Veteran's knees, to include joint stability testing, and all opined that there was no joint instability. As the Veteran does not have any instability that could be objectively elicited, the Board does not find that the Veteran has any instability that is slight in degree to warrant a separate 10 percent evaluation for either knee; therefore, a higher or separate rating under Diagnostic Code 5257 is not warranted. The Board will apply the version of the rating criteria more beneficial to the Veteran effective from February 7, 2021. See Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991); see also Kuzma, 341 F.3d at 1329. The Board therefore finds that, had the Veteran's left knee arthralgia with arthritis, post-operative, been rated under the amended regulation, it would have been evaluated at 10 percent prior to February 7, 2021, and at 10 percent from February 7, 2021. Accordingly, the Board finds that the previous and current rating criteria result in the same rating, and therefore will continue rating under the rating criteria in effect prior to February 7, 2021. Accordingly, the Board finds that the preponderance of the evidence is against finding that a disability rating in excess of 10 percent, for the Veteran's left knee arthralgia with arthritis, post-operative, is warranted. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Gabrielle Ongies, 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.