Citation Nr: 21027430 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 15-41 191 DATE: May 5, 2021 ORDER Entitlement to an evaluation in excess of 10 percent for osteoarthritis of the left knee is denied. Entitlement to an evaluation in excess of 10 percent for osteoarthritis of the right knee is denied. Entitlement to a separate rating of 10 percent, but no higher, for left knee instability associated with osteoarthritis is granted. Entitlement to a separate rating of 10 percent, but no higher, for right knee instability associated with osteoarthritis is granted. FINDINGS OF FACT 1. The objective medical evidence shows at no time during the appeal period did osteoarthritis of the left knee more closely approximate limitation of motion for flexion at less than 0 to 60 degrees, limitation of motion for extension at less than 70 to 0 degrees or arthritis involving two or more major or minor joints. 2. The objective medical evidence shows at no time during the appeal period did osteoarthritis of the right knee more closely approximate limitation of motion for flexion at less than 0 to 60 degrees, limitation of motion for extension at less than 70 to 0 degrees or arthritis involving two or more major or minor joints. 3. It is as likely as not that the evidence demonstrates that the Veteran's service-connected left knee disorder is manifested by mild instability, but no more. 4. It is as likely as not that the evidence demonstrates that the Veteran's service-connected right knee disorder is manifested by mild instability, but no more. CONCLUSIONS OF LAW 1. The criteria for an initial disability evaluation in excess of 10 percent for osteoarthritis of the left knee based on painful limitation of motion, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5010, 5260, 5261. 2. The criteria for an initial disability evaluation in excess of 10 percent for osteoarthritis of the right knee based on painful limitation of motion, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5010, 5260, 5261. 3. Resolving all reasonable doubt in the Veteran's favor, the criteria for a separate 10 percent disability rating for mild instability of the left knee are met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5257. 4. Resolving all reasonable doubt in the Veteran's favor, the criteria for a separate 10 percent disability rating for mild instability of the right knee are met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Air Force from July 1972 to July 1992. These matters are on appeal from a January 2013 rating decision granting service connection for osteoarthritis of the left and right knees with 10 percent ratings effective November 9, 2010. The Board notes that the Veteran had surgery on the right knee and was granted a temporary 100 percent evaluation for the right knee from January 9, 2019 to March 1, 2019 and subsequently had surgery on the left knee and was granted a temporary 100 percent evaluation for the left knee from March 6, 2019 to May 1, 2019. These periods of temporary total evaluations are not the subject of the present appeal. The Board of Veterans' Appeals (Board) previously remanded the issues for further development in an April 2019 decision and they have been returned to the Board for appellate review. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R. Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, 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. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. While it is necessary to consider the complete medical history of the Veteran's condition in order to evaluate the level of disability and any changes in condition, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); Francisco v. Brown, 7 Vet. App. 55 (1994). In deciding the Veteran's increased evaluation claim, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 21 Vet. App. 505 (2007), and whether the Veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. 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. 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 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 which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995). 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. In addition, when assessing the severity of a musculoskeletal disability that, as here, is at least partly rated on the basis of limitation of motion, VA must also consider the extent to which the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to symptoms such as pain. See also 38 C.F.R. §§ 4.40, 4.45. Knee Disabilities, Generally Disabilities of the knee are rated under Diagnostic Codes 5256 through 5263. 38 C.F.R. § 4.71a. With respect to instability and subluxation of the knee, prior to February 7, 2021, Diagnostic Code 5257 provides for a 10 percent evaluation where there is mild recurrent subluxation or lateral instability, a 20 percent evaluation is assigned where there is moderate recurrent subluxation or lateral instability, and a 30 percent evaluation where there is severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2019). As of February 7, 2021, Diagnostic Code 5257 concerning recurrent subluxation or lateral instability was revised. A 10 percent rating is warranted for a 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., canes(s), crutch(es), walker) or bracing for ambulation. A 20 percent rating is warranted for 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. Diagnostic Code 5003 directs that, when substantiated by x-rays, degenerative arthritis will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. The joint is the knee and, as shown above, Diagnostic Codes 5260 and 5261 provide the relevant rating criteria for limitation of motion. Diagnostic Codes 5260 and 5261 have not been changed by the revisions effective February 7, 2021. Under Diagnostic Code 5260, a noncompensable rating is assigned when flexion of the leg is limited to 60 degrees; a 10 percent rating is assigned when flexion is limited to 45 degrees; a 20 percent rating is assigned when flexion is limited to 30 degrees; and a 30 percent rating is assigned when flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5261, a noncompensable rating is assigned when extension of the leg is limited to 5 degrees; a 10 percent rating is assigned when extension is limited to 10 degrees; a 20 percent rating is assigned when extension is limited to 15 degrees; a 30 percent rating is assigned when extension is limited to 20 degrees; a 40 percent rating is warranted for extension limited to 30 degrees; and a 50 percent rating is assigned when extension is limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. The Board notes that separate ratings under Diagnostic Code 5260 and Diagnostic Code 5261 may be assigned for disability of the same knee joint. See VAOPGCPREC 9-2004. Additionally, VAOPGCPREC 23-97 held that a claimant who has both arthritis and instability of the knee may receive two separate disability ratings under Diagnostic Codes 5003-5010 and Diagnostic Code 5257 (or under Diagnostic Codes 5258 and 5259) without violating the prohibition of pyramiding of ratings. It was specified that, for a knee disorder already rated under Diagnostic Code 5257, a claimant would have additional disability justifying a separate rating if there is limitation of motion under Diagnostic Code 5260 or Diagnostic Code 5261. Finally, the normal range of knee motion is 140 degrees of flexion and zero degrees of extension. 38 C.F.R. § 4.71, Plate II. 1. Entitlement to an evaluation in excess of 10 percent for osteoarthritis of the left knee 2. Entitlement to an evaluation in excess of 10 percent for osteoarthritis of the right knee The Veteran's bilateral knee osteoarthritis has been rated under Diagnostic Code 5260 based on painful limitation of flexion under 38 C.F.R. § 4.59, which allows consideration of functional loss due to painful motion to be rated to at least the minimum compensable rating for a particular joint. The Veteran asserts that his symptomatology is more severe than contemplated by a 10 percent rating, and also asserts that he is entitled to separate additional ratings for instability of each knee. After careful review, the Board finds that for the entire period on appeal, the record does not demonstrate the requisite manifestations for ratings in excess of 10 percent for either knee. For a 20 percent rating or higher, there must be evidence that flexion is limited to 30 degrees, or extension limited to limited to 15 degrees. Turning to the record, the Veteran was afforded a VA examination in August 2012 whereby he was diagnosed with minimal osteoarthritis of the knees bilaterally. He reported constant knee pain rated at a 5 out of 10 with no reported flare-ups. Range of motion (ROM) testing for the left knee showed flexion from 0 to 120 degrees and no limitation of extension with no objective evidence of painful motion. ROM testing for the right knee showed flexion from 0 to 110 degrees and no limitation of extension with no objective evidence of painful motion. There was no additional loss of ROM of either knee after repetitive use. The examiner noted pain on palpitation for each knee, but no instability, atrophy, or disturbance of locomotion. The Veteran submitted an October 2013 statement from a private physician who stated that it is her medical opinion that the Veteran has significant bilateral knee osteoarthritis. She stated that on examination that day, his right knee had limited ROM at 30 degrees or less and ROM in the left knee above 30 degrees. She stated that he suffers from significant pain and stiffness in both knees and asserted that he has remained active and should not be penalized for maintaining an acceptable ROM. The Veteran was afforded a VA examination in August 2015 whereby the examiner indicated diagnoses of degenerative arthritis of both knees. The Veteran reported flare-ups of both knees and stated that he has bilateral knee pain on a daily basis which ranges from moderately severe to severe and causes him difficulty standing and walking for long periods. ROM testing for the left knee showed flexion from 0 to 95 degrees and extension from 95 to 0 degrees with localized tenderness or pain on palpation, evidence of pain with weight bearing and crepitus noted. ROM testing for the right knee showed flexion from 0 to 100 degrees and extension from 100 to 0 degrees with localized tenderness or pain on palpation, evidence of pain with weight bearing and crepitus noted. There was no ankylosis, recurrent subluxation, muscle atrophy, or meniscus conditions indicated. Some posterior instability of both knees was noted. The Veteran was afforded another VA examination in March 2017. The examiner noted the diagnoses of osteoarthritis of both knees. The Veteran reported an increase in pain in both knees, including flare-ups especially at night that becomes unbearable. ROM testing for the left knee showed flexion from 0 to 90 degrees and extension from 90 to 0 degrees with localized tenderness or pain on palpation, evidence of pain with weight bearing and crepitus noted. ROM testing for the right knee showed flexion from 0 to 70 degrees and extension from 70 to 0 degrees with localized tenderness or pain on palpation, evidence of pain with weight bearing and crepitus noted. There was no ankylosis, instability, recurrent subluxation, muscle atrophy, or meniscus conditions indicated. The examiner noted the Veteran's constant use of braces to assist in locomotion. In a December 2017 clarifying opinion, the examiner stated that all of the Veteran's stability tests were normal on examination at that time. The Board notes that ongoing post-service VA and private treatment records indicate complaints of pain in both knees consistently throughout the appeal period. A November 2018 MRI showed a tear of the medial meniscus in the right knee. The Veteran underwent a right knee arthroscopic surgery with a partial medial meniscectomy in January 2019. A temporary 100 percent evaluation was assigned at that time. The 10 percent evaluation for the right knee was resumed on March 1, 2019. Subsequently, the Veteran underwent a left knee arthroscopic surgery with a partial medial meniscectomy in March 2019. A temporary 100 evaluation was assigned at that time. The 10 percent evaluation for the left knee was resumed on May 1, 2019. An April 2019 Board decision remanded the issues for a new VA examination. Pursuant to the remand, the Veteran was afforded a new VA examination in January 2020. The Veteran reported that after both knee surgeries he has noticed some improvement in both knees but still experiences a lot of pain. Specifically, he reported constant pain in both knees with flares caused by walking, driving, and sitting with right knee pain slightly worse than left knee pain. ROM testing for the left knee showed flexion from 0 to 95 degrees and extension from 95 to 0 degrees with no evidence of localized tenderness or pain on palpation, pain with weight bearing, or crepitus. ROM testing for the right knee showed flexion from 0 to 90 degrees and extension from 90 to 0 degrees with evidence of pain with weight bearing, and no evidence of localized tenderness or crepitus. There was no ankylosis, instability, recurrent subluxation, or muscle atrophy noted for either knee. The examiner indicated the meniscal tears on both the right and left knees which were treated with arthroscopic surgeries as mentioned above. Further, the examiner noted the Veteran's constant use of a cane in order to assist with locomotion. A January 2020 MRI showed mild degenerative changes bilaterally in the knees. As indicated above, for the entire period on appeal, the Veteran's osteoarthritis of the left knee was manifested by pain and flexion limited to 90 degrees at its worst, while his osteoarthritis of the right knee was manifested by pain and flexion limited to 70 degrees at its worst. The Board acknowledges the October 2013 statement from the Veteran's private provider indicating that the Veteran's left knee flexion was limited to less than 30 degrees; however, no specific measurements were provided and thus, the Board finds these findings to have limited probative value. Based on the evidence, the only applicable Diagnostic Codes are 5003-5010, for arthritis and 5260 for limitation of flexion. Throughout the entire appeal period, the Veteran's left and right knee osteoarthritis exhibited no evidence of ankylosis, subluxation, ankylosis, other tibia or fibula bony impairment, or traumatic genu recurvatum. 38 C.F.R. § 4.71a. The highest rating under Diagnostic Code 5259 for being symptomatic for removal of semilunar cartilage is 10 percent and, as the Veteran is already rated at 10 percent, this diagnostic code is not applicable, as an "extra" 10 percent added on for identical or similar symptoms is impermissible "pyramiding" of one diagnosis upon another. See 38 C.F.R. § 4.14. The Board acknowledges the Veteran's assertions that the severity of his knee pain bilaterally warrants higher evaluations than 10 percent. However, the Board notes the objective evidence of record indicates such pain does not limit the Veteran's functional range of motion of the left or right knee to a level greater than contemplated by the 10 percent rating, and, as such, does not serve as a basis for an evaluation in excess of 10 percent. See Mitchell v. Shinseki, 25 Vet. App. 32. Thus, the pain has been contemplated in the ratings assigned throughout the appeals process. 3. Entitlement to a separate rating of 10 percent, but no higher, for left knee instability associated with osteoarthritis 4. Entitlement to a separate rating of 10 percent, but no higher, for right knee instability associated with osteoarthritis The Board has also considered whether a separate rating is warranted under Diagnostic Code 5257 for instability. Objective medical evidence is not required to establish lateral knee instability under Diagnostic Code 5257, so objective medical evidence cannot be categorically found more probative than lay evidence with respect to this Diagnostic Code. See English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). Although the VA examinations have shown mostly normal stability testing, the Veteran has consistently reported bilateral instability to his medical providers and examiners. Additionally, the VA examiners have noted the Veteran's constant use of braces and a cane for ambulation. Some posterior instability of both knees was noted during the August 2015 VA examination. These factors support the Veteran's claim regarding instability. Therefore, with resolution of the doubt in favor of the Veteran, a separate 10 percent rating for instability under Diagnostic Code 5257 is granted, bilaterally. However, overall, the lay and medical evidence indicates that the instability symptoms have varied and do not suggest the presence of symptoms more nearly approximating moderate severity, particularly considering the consistently normal joint stability testing and the objective medical findings being negative for instability. Further, under the revised Diagnostic Code 5257, the Board does not find that the Veteran's instability has manifested by unrepaired or failed repair of complete ligament tear causing persistent instability with a prescribed assistive device to warrant a higher 20 percent evaluation. Therefore, the preponderance of the evidence is against a rating in excess of 10 percent. The Board has considered whether higher or separate ratings are available under other diagnostic codes; however, the evidence is not indicative of an additional rating. In summation, after resolving all reasonable doubt in the Veteran's favor, the Board finds that separate 10 percent disability ratings are warranted for left and right knee instability under Diagnostic Code 5257. However, the Board finds that the preponderance of the evidence is against an evaluation in excess of 10 percent for left or right knee osteoarthritis at any time during the appeal period. Because the preponderance of the evidence is against higher ratings at any point during the appeal, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § § 5107. MICHAEL D. LYON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Sneeringer, 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.