Citation Nr: 21026792 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 18-22 040 DATE: May 4, 2021 ORDER A rating in excess of 10 percent for right knee osteoarthritis is denied. A separate rating of 20 percent, but no higher, for right knee instability is granted. FINDING OF FACT The Veteran's osteoarthritis of the right knee has been manifested by painful motion and moderate lateral instability, but not severe recurrent subluxation or lateral instability, ankylosis, limitation of flexion to 45 degrees, limitation of extension to 10 degrees, dislocated or removed semilunar cartilage, or impairment of the tibia or fibula. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 10 percent for right knee osteoarthritis are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.59, 4.7, 4.71a, Diagnostic Code 5260. 2. The criteria for a separate 20 percent rating, but no higher, for right knee instability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.59, 4.7, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served in the Navy from November 1966 to August 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This appeal was last before the Board in February 2020 where it was remanded for additional development. The Veteran's right knee osteoarthritis is evaluated under Diagnostic Code 5010-5260. Limitation of motion of knee joints is rated under Diagnostic Code 5260 for flexion, and Diagnostic Code 5261 for extension. 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. Under Diagnostic Code 5260, flexion that is limited to 60 degrees warrants a 0 percent rating; flexion that is limited to 45 degrees warrants a 10 percent rating; flexion that is limited to 30 degrees warrants a 20 percent rating; and flexion that is limited to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5261, extension that is limited to 5 degrees warrants a 0 percent rating; extension that is limited to 10 degrees warrants a 10 percent rating; and extension that is limited to 15 degrees warrants a 20 percent rating; extension that is limited to 20 degrees warrants a 30 percent rating; extension that is limited to 30 degrees warrants a 40 percent rating; and extension that is limited to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Normal motion of a knee is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. Under Diagnostic Code 5257, recurrent subluxation or lateral instability of the knee warrants a 10 percent rating when it is slight, a 20 percent rating when it is moderate, and a 30 percent rating when it is severe. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Under Diagnostic Code 5258, a 20 percent rating is assigned for a knee with dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. 38 C.F.R. § 4.71a, Diagnostic Code 5258. 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."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In a May 2015 rating decision, service connection was granted for right knee osteoarthritis, and a 10 percent disability rating was assigned for painful motion, effective March 18, 2011, pursuant to the criteria set forth in 38 C.F.R. § 4.59. The Veteran contends that he is entitled to a higher rating because his right knee osteoarthritis has worsened. See September 2017 VA Treatment Records; February 2020 Brief. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for his right knee osteoarthritis. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that he has difficulty standing for long periods, walking long distances, and rising from a sitting position would not result in limitation of motion more nearly approximating flexion limited to 30 degrees. The Veteran's VA treatment records contain multiple instances of right knee complaints. An orthopedic consult dated November 14, 2016 with the Columbus VA Medical Center noted his daily right knee pain, with reports of locking and giving way. Objective findings during this assessment found no obvious deformity in the knee. There was no effusion and the Veteran's active range of motion was from 0 to 120 degrees. The medial joint line was noted to be tender, but there was no obvious instability. September 2017 treatment records show that the Veteran reported that his right knee was worsening and noted that there was pain with flexion and extension. A VA examination was obtained in December 2016. The Veteran reported that his right knee hurts all of the time, and weight bearing activities such as walking or stairs may be painful. The knee pops and cracks, and he takes over the counter medications as needed to treat the pain. Range of motion was abnormal in flexion to 60 degrees, where 140 is normal, and extension normal to 0 degrees. Pain was present during motion. Following repetitive use testing, there was no further loss in function. Muscle strength was still normal, without atrophy. There was no ankylosis, recurrent subluxation, lateral instability, recurrent effusion, or any meniscal condition. The Veteran walked with a slightly antalgic gait pattern, but was capable of performing transfers to and from the exam table without difficulty. Traumatic arthritis was present, but no assistive device was used to aid with locomotion. It was noted that stairs, prolonged walking or standing, repetitive bending, or squatting may produce discomfort. A VA examination was obtained in March 2020. The VA examiner noted flexion to 130 degrees, and full extension with pain. See March 2020 VA examination. The examiner further noted pain with weight bearing, and crepitus. The examiner further noted disturbance of locomotion and interference with standing. There was no ankylosis, no history of subluxation, a moderate history of lateral instability, no history of recurrent effusion, and no joint instability. Lastly, the examiner noted that the Veteran constantly used a cane and occasionally used a walker as assistive devices. Additionally, the Veteran reported that the pain prevents the him from standing for long periods, makes it difficult to walk long distances and also makes it difficult for him to rise up from a sitting position. The Veteran stated, "my knee hurts all the time especially when I try to flex my knee to put my foot on the brake or gas when driving my car." See March 2020 VA examination. The Veteran also added "my right knee gives out sometimes and recently when it gave out I fell and hit my head and had to have 17 staples." Id. The Veteran further reported at least daily flare-ups of pain in his right knee which he described as sharp in nature. Id. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the United States Court of Appeals for Veterans Claims (Court) held that VA examiners must estimate the functional loss that would occur during periods of flare-up. Specifically, examiners must name the precipitating and alleviating factors for the flare-ups and estimate, per the Veteran's reports, the extent to which flare-ups affect functional impairment. The VA examiner noted that the VA examination was not conducted during a flare-up but he opined that "[t]he best estimate of the veteran's flare up impact on the veteran's range of motion is that the veteran's flare ups reduce the veteran's range of motion by a maximum of an additional 10 degrees." Additionally, "[t]he best estimate of the veteran's flare up frequency is the same as indicated above in the description of flareups," and "[t]he best estimate of the veteran's flare up duration is 24 hours." Taking this into account, during a flare-up, the Veteran's flexion would likely decrease to 0 to 120 degrees, extension would likely decrease to 110 to 0 degrees. In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that, pursuant to 38 C.F.R. § 4.59, an adequate VA joint examination must include testing the joint for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of motion of the opposite undamaged joint. The March 2020 VA examiner noted that, when examining the Veteran's affected joint during passive range of motion testing, there was evidence of pain and limitation of range of motion during both weight bearing and non-weight bearing testing. Further, when examining the Veteran's affected joint during active range of motion testing, there was evidence of pain and limitation of range of motion during both weight bearing and non-weight bearing testing. Therefore, the Veteran's right knee osteoarthritis is primarily manifest by painful movement. In order to warrant a higher 20 percent rating under Diagnostic Code 5260, the evidence must show limitation of flexion to 30 degrees, which has not been more nearly approximated in this case. Thus, a rating in excess of 10 percent for painful motion associated with right knee arthritis is not warranted. That notwithstanding, the Board finds that a separate rating is warranted for right knee instability. As discussed above, the medical evidence during the period on appeal, including the March 2020 VA examination and the Veteran's statements, clearly reflects that the Veteran has right knee lateral instability, and therefore the Board finds that a separate rating is warranted for instability. Under Diagnostic Code 5257, slight instability is rated 10 percent disabling. Id. Moderate instability is rated 20 percent disabling, while severe instability is rated 30 percent disabling. Id. Based on the evidence discussed above, the Board finds that a separate 20 percent rating, but no higher, is warranted for right knee lateral instability. The March 2020 VA examiner noted that the Veteran's lateral instability was moderate. A higher disability rating of 30 percent is not warranted because the Veteran's right knee instability has not been determined to be "severe." DC 5257. The Board observes that the schedular criteria for evaluating disabilities of the musculoskeletal system, including the knee joint, have undergone revision during the pendency of this appeal. Specifically, and as relevant to this case, revisions to Diagnostic Code 5257 (instability) were made effective February 7, 2021. See 85 Fed. Reg. 76460, 76457 (Feb 7, 2021). Effective February 7, 2021, Diagnostic Code 5257 provides a 30 percent rating for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device and bracing for ambulation. There is no evidence demonstrating that the Veteran has an unrepaired or failed repair of a ligament tear in the right knee. As such, a higher rating in excess of 20 percent under the new rating criteria is not warranted. The Board has also considered the other Diagnostic Codes pertaining to the knee and leg. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). The remainder of the diagnostic codes pertaining to the knee and leg also do not justify a rating in excess of 10 percent. Taking the remaining codes in numerical order, Diagnostic Code 5256 is not applicable because there is no ankylosis of the Veteran's knees. The existence of ankylosis is not supported by the Veteran's ranges of motion. Diagnostic Code 5258 is applicable where there is cartilage, semilunar, dislocated, with frequent episodes of "locking" pain and effusion into the joint. There has been no finding of dislocated, semilunar cartilage in the knees in the medical evidence, including in X-rays from the VA examination or treatment records. Diagnostic Code 5259 is not applicable because it does not allow ratings in excess of 10 percent. Diagnostic Code 5262 has not been raised by the medical evidence, including the X-rays of record, and Diagnostic Code 5263 also does not provide for a rating in excess of 10 percent. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for a rating in excess of 10 percent for right knee osteoarthritis, but the evidence of record does show that a separate 20 percent rating for right knee instability is warranted. 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5257. Romina A. Casadei Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. N. Wilson, 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: Appeal to the United States Court of Appeals for Veterans Claims (Court) File with the Board a motion for reconsideration of this decision File with the Board a motion to vacate this decision File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court's website at: http://www.uscourts.cavc.gov. The Court's website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court's website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. 5904; 38 C.F.R. 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board's decision. See 38 C.F.R. 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. 5904; 38 C.F.R. 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED