Citation Nr: 21028213
Decision Date: 05/10/21	Archive Date: 05/10/21

DOCKET NO. 15-42 743
DATE: May 10, 2021

ORDER

Entitlement to an increased disability rating in excess of 10 percent for left knee degenerative joint disease (DJD), based on limitation of motion, is denied.

FINDINGS OF FACT

1. The Veteran's left knee DJD has been manifested by pain with movement; limitation of flexion to 60 degrees or less, or limitation of extension to 10 degrees or more, have not been evidenced.

2.  The service-connected left knee DJD symptomatology is adequately contemplated by the rating schedule and does not present an exceptional disability picture as to warrant an extraschedular rating.

CONCLUSION OF LAW

1. The criteria for entitlement to a rating in excess of 10 percent for left knee DJD, based on limitation of motion, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71(a), Diagnostic Codes 5003, 5260, 5261.

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran served on active duty with the United States Army from August 1998 to November 2001, and September 2002 to February 2006; he was additionally a member of the Reserves. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). 

The January 2015 rating decision denied increased ratings for both left knee DJD, based on limitation of motion (Code 5003-5260), and left knee patellar subluxation (Code 5003-5257).  However, the Veteran specifically limited his disagreement to the evaluation assigned for limited motion and excluded that for subluxation and instability. 

The matter was previously before the Board in April 2014, at which time it was remanded for additional development and are now before the Board for appellate review.

Duty to Notify and Assist

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). These duties have been satisfied in this case. Appropriate notice was provided in November 2014, January 2015, July 2020.

The RO associated the Veteran's service and VA and private outpatient treatment records with the claims file. All released or submitted private treatment records have been associated with the claims file. No other relevant records have been identified and are outstanding.

Appropriate and necessary examinations were afforded the Veteran, and are adequate for evaluation, as they include needed findings to permit application of the rating schedule and identification of current disability. Such includes the examinations ordered in the April 2020 Board remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). As such, VA has satisfied its duty to assist. 38 U.S.C. § 5103A; 38C.F.R. §3.159(c).

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.

In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. 

If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

The Veteran is currently rated 10 percent disabled by DJD, left knee, under 38 C.F.R. § 4.71(a), Code 5003-5260, which pertains to arthritis and limitation of extension of the knee, respectively. Hyphenated Codes are used when a rating under one Code requires use of an additional Code to identify the basis for the evaluation assigned. The Veteran has alleged that his condition has worsened over time and argues that his assigned rating should reflect a greater degree of impairment.

Multiple Codes are potentially applicable to evaluation of the knees with regard to motion. Simultaneous compensation under several Codes is permissible so long as differing symptomatology is being compensated by each Code. For example, limitations of flexion (Code 5260) and extension (Code 5261) may both be rated, but a rating for arthritis (Code 5003) cannot be combined with either, as it refers to general limitations of motion and would include both flexion and extension. Similarly, meniscal disabilities (Codes 5258 and 5259) can be rated with limits of motion, and with each other, so long as differing symptoms and manifestations are being compensated. VAOGCPREC 9-2004; VAOPGCPREC 23-97; VAOPGCPREC 9-98. All potentially applicable Codes have been considered.

Code 5256 is utilized for evaluation of ankylosis or the functional equivalent Neither the January 2015 nor the November 2019 show evidence of ankylosis. Therefore, Code 5256 is not applicable. Code 5262 pertains to impairment of the tibia and fibula. While evaluations under Code 5262 may be based in part upon knee disability, the underlying impairment must be related to damage to the bones of the lower leg. As no tibia or fibula impairment have been shown here, this Code is not for application. Additionally, Codes 5258 and 5259 evaluate impairment of the semilunar cartilage, or menisci. The January 2015 and November 2019 examines show now evidence of a semilunar cartilage or meniscal condition. Therefore, Codes 5258 and 5259 are not applicable

Code 5003 assigns evaluations for degenerative arthritis, other than post-traumatic. Degenerative arthritis established by X-ray findings will be rated based on limitation of motion under the appropriate Codes for the specific joint or joints involved (Code 5200 etc.). When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate Codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71(a), Code 5003.

Code 5260 provides that a 10 percent rating is assignable for flexion limited to 45 degrees, 20 percent when limited to 30 degrees, and 50 percent when limited to 15 degrees. 38 C.F.R. § 4.71(a), Code 5260.

Code 5261 provides that a 10 percent rating is assignable for extension limited to 10 degrees, 20 percent for when limited to 15 degrees, 30 percent when limited to 20 degrees, 40 percent when limited to 30 degrees, and 50 percent when limited to 45 degrees. 38 C.F.R. § 4.71(a), Code 5261.

Effective February 7, 2021, VA amended the rating schedule with regard to the musculoskeletal system.  However, with regard to the Diagnostic Codes applied here, there changes are not substantive and are therefore not discussed in detail.

A VA knee examination was conducted in January 2015 for evaluation of his torn anterior cruciate ligament (ACL), recurrent subluxation, and arthritis of the left knee.  The Veteran reported that after a September 2014 arthroscopy, he experienced pain and swelling with walking for 30 minutes and sitting for two hours.  He used a cane and a brace for stability. He denied flare-ups.  Initial range of motion testing was slightly limited in flexion, to 110 degrees, and was full in extension, to 0 degrees; ranges were unchanged with repeated motion and use over time, though additional incoordination was noted.  Flexion was painful, and was evident with weightbearing. The joint was tender to palpation. Strength was slightly reduced at 4/5 with flexion and extension.  There was no ankylosis or muscle atrophy, and no indication of meniscal injury.

The Veteran was afforded a second VA examination in November 2019. Upon physical examination the Veteran displayed flexion to 80 degrees and extension of 0 degrees for his left knee. The Veteran was not examined immediately after repetitive use over time. However, the examiner found that the examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time. Specifically, pain was identified as significantly limiting functional ability with repeated use over a period of time. The examiner described this in terms of ROM, as 70 degrees on flexion and 0 degrees on extension. 

The examination report referenced an ACL tear, bilateral osteoarthritis, left knee recurrent patellar dislocation, and left knee instability. The Veteran reported experiencing flare-ups, which were described as, "pain skyrockets up and the pain feels like bone-on-bone." He further reported functional loss or functional impairment, which he indicates caused him to be unable to walk rapidly or bend the knee to kneel. He has favored his right leg to cope with left knee pain, which has caused pain in the right knee. 

The examiner attributed pain and degenerative anatomical changes as contributing to loss of function. There was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue, which included severe pain for the entire knee joint. There was evidence of pain with weight bearing and objective evidence of crepitus. The Veteran was found able to perform repetitive use testing with at least three repetition without any additional loss of function or range of motion (ROM). The examiner noted evidence of pain on passive ROM testing and no pain when the joint is used non-weight bearing. 

The November 2019 examiner noted pain during ROM testing, passive ROM testing, weight bearing testing, and during palpitation of the joint. The Veteran indicated that his pain increases through the day due to continued movement. He is also prescribed medication to treat his knee pain. VA treatment records from July 2015 note that the Veteran has chronic knee pain causing significant functional limitations. Under Code 5003-5260, his left knee DJD warrants a minimal compensable rating of 10 percent based on painful, limited motion of the knee with arthritis.

As only a single joint is involved, no higher rating is available under C ode 5003, for arthritis with limited motion.  The degree of limitation of motion under a joint specific Code is the only avenue to increased rating.  Unfortunately, even with consideration of the actual degree of functional impairment from pain, weakness, incoordination, and fatigability, the measured impairments of flexion and extension do not rise to the levels required for compensable evaluations, let alone rating in excess of 10 percent.

Extraschedular Consideration

The Veteran has specifically raised the question of entitlement to increased evaluation on an extraschedular basis under 38 C.F.R. § 3.321.  Extraschedular consideration involves a three-step analysis.  Thun v. Peake, 22 Vet. App. 111 (2008).  First, a determination must be made as to whether the schedular criteria reasonably describe a veteran's disability level and symptomatology.  Id. At 115.  If the schedular rating criteria do reasonably describe a veteran's disability level and symptomatology, referral for extraschedular consideration is not required and the analysis stops.  Id.

If the schedular rating criteria do not reasonably describe a veteran's level of disability and symptomatology, a determination must be made as to whether an exceptional disability picture includes other related factors, such as marked interference with employment and frequent periods of hospitalization.  Id. At 116.

If an exceptional disability picture including such factors as marked interference with employment and frequent periods of hospitalization exists, the matter must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating.  Id.

The Veteran contends that his history of metal fragments in his left knee from his initial combat injury cause more pain and warrants departure from the Codes applicable to his disability. 

However, regardless of source, the schedular rating specifically considers the effect of pain on ROM, particularly as it considers factors such as, more or less movement than normal; weakened movement; excess fatigability; incoordination; and pain on movement; swelling; deformity; or atrophy of disuse. 38 C.F.R. § 4.45; see also DeLuca v. Brown, 8 Vet. App. 202, 206 (1995).  Any pain that the fragments cause, and which results in functional impairment, is contemplated by the schedular rating as applied.  This makes the schedular criteria fully adequate; no additional extraschedular discussion is required. 

 

WILLIAM H. DONNELLY

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Nolan, Shane D.

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.