Citation Nr: 21028961
Decision Date: 05/12/21	Archive Date: 05/12/21

DOCKET NO. 14-42 532
DATE: May 12, 2021

ORDER

Entitlement to a disability rating in excess of 30 percent for a right knee condition, characterized as chondromalacia and instability, is denied. 

Entitlement to a disability rating in excess of 10 percent for post traumatic arthritis of the right knee with limited motion, is denied. 

FINDINGS OF FACT

1. The Veteran is in receipt of the maximum schedular rating for right knee instability; her symptoms are contemplated by the diagnostic criteria and have not resulted in interference with employment or frequent hospitalization. 

2. The Veteran's right knee disability has demonstrated no less than 70 degrees of limited motion based on flexion, with painful motion; she has not shown any limitation of extension of the knee. 

CONCLUSIONS OF LAW

1. The criteria for a rating in excess of 30 percent for right knee instability, have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257.

2. The criteria for a rating in excess of 10 percent for right knee arthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DCs 5003, 5010, 5260. 

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from September 1978 to February 1979, with an additional unconfirmed period of active duty service in October 1982. She retired from the Army National Guard in February 2002, after 23 years of reserve service. 

This appeal comes before the Board of Veterans' Appeals (Board) from an October 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) denying a disability rating higher than 30 percent for a right knee condition with chondromalacia and instability, and a disability rating in excess of 10 percent for post traumatic arthritis of the right knee with limited motion. 

This claim was previously before the Board following a March 2016 rating decision, in which the RO decreased the disability rating for the Veteran's right knee condition with chondromalacia and instability from 30 percent to noncompensable, effective June 1, 2016. In January 2020, the Board restored the Veteran's 30 percent rating and remanded her claims for increased ratings of both right knee conditions for a new VA examination and additional development. The Board is now satisfied that there was substantial compliance with the remand. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-147 (1999). 

In July 2019, the Veteran testified during a Board videoconference hearing before a Veterans Law Judge (VLJ) who is no longer employed with the Board. A transcript of that hearing is of record. In March 2021, the Veteran was notified via a letter that the VLJ who conducted her hearing was no longer employed by the Board. The letter also informed the Veteran that she was entitled to another hearing before a VLJ who would participate in the final determination of her case, should she so desire. See 38 C.F.R. § 20.707. The Veteran was given 30 days to reply to the letter, but no response was received. The Board therefore concludes that the Veteran does not desire another hearing and will proceed accordingly. 

Increased Rating

Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran's entire history is reviewed when making disability evaluations. See generally, Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. Where the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection is required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Further, "[w]here 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 evaluating joint disabilities rated based on limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. The Court of Appeals for Veterans Claims (Court) clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32, 42-43 (2011).

Instead, the Court in Mitchell explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above.

The Veteran's right knee disability is rated as 30 percent disabling based on severe instability. It is separately rated as 10 percent disabling due to arthritis resulting in loss of flexion. She asserts she is entitled to higher ratings for the right knee disabilities. 

The Veteran's right knee disabilities are separately rated under Diagnostic Codes (DCs) 5257, which compensates based on impairment of the knee with recurrent subluxation or lateral instability, and 5010-5260, which compensates for arthritis resulting in loss of flexion (hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. In this matter, DC 5010 implies arthritis due to trauma, and DC 5260 implies loss of flexion. 38 C.F.R. § 4.27). These separate ratings are granted for the knee as when rating based on limitation of flexion, a separate rating may be assigned for knee disabilities based on limitation of flexion as well as limitation of extension of the knee. Likewise, separate ratings may be assigned based on limitation of motion, as well as instability or subluxation, if found. See VAOPGCPREC 23-97 (Multiple Ratings for Knee Disability).

Traumatic arthritis is to be rated as degenerative arthritis under DC 5003. 38 C.F.R. § 4.71a , DC 5010. Degenerative arthritis is rated based on limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a single 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 diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id., DC 5003.

Limitation of flexion of the knee results in a noncompensable rating when flexion is limited to 60 degrees or greater. Flexion limited to 45 degrees is assigned a 10 percent rating. Flexion limited to 30 degrees is assigned a 20 percent rating. Flexion limited to 15 degrees is assigned a 30 percent rating. Id., DC 5260.

Limitation of extension to 5 degrees or less is assigned a noncompensable rating. Extension limited to 10 degrees is assigned a 10 percent rating. Extension limited to 15 degrees is assigned a 20 percent rating. Extension limited to 20 degrees is assigned a 30 percent rating. Extension limited to 30 degrees is assigned a 40 percent rating. Finally, extension limited to 45 degrees or greater is assigned a 50 percent rating. Id., DC 5261.

When slight impairment of the knee due to recurrent subluxation or lateral instability is found, a 10 percent rating is assigned. Moderate recurrent subluxation or lateral instability is granted a 20 percent rating. Severe recurrent subluxation or lateral instability is assigned a 30 percent rating. Id., DC 5257.

Words such as "severe," "moderate," and "mild" are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6.

A disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40 With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. Although pain may cause functional loss, pain itself does not constitute functional loss. Rather, pain must affect some aspect of "the normal working movements of the body," such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40 ); see also DeLuca v. Brown, 8 Vet. App. 202, 206-207 (1995).

1. Entitlement to a rating in excess of 30 percent for a right knee condition, characterized as chondromalacia and instability.

2. Entitlement to a rating in excess of 10 percent for post traumatic arthritis of the right knee, based on loss of flexion

The Veteran filed her claim for increased disability ratings on March 2, 2011. She was initially afforded a VA examination for her right knee conditions in July 2011. At that time, her right knee flexion ended at 70 degrees without any objective evidence of painful motion. Extension was complete to 0 degrees without any limitation. Right knee showed medial collateral ligamentous instability. The examiner provided an addendum in September 2011, stating that the Veteran developed fatigue, weakness and pain of her right knee after repeated manipulation, however there were no changes in her measurements. The examiner clarified that her right knee instability was moderate at most. 

The Board finds that this VA examination does not support any higher rating than those already assigned. The Veteran did not have any limitation of extension, and although the Veteran's right knee flexion was abnormal, it was limited to 70 degrees which does not rise to a compensable level. Thus, a single 10 percent rating for arthritis of the right knee is appropriate under DCs 5003, 5010 and 5260. Likewise, at the time, the Veteran was already in receipt of the maximum rating based on impairment of the knee due to instability or subluxation, despite the examiner finding the instability as "moderate". Therefore, a higher schedular rating cannot be assigned. 

In October 2014, the Veteran underwent a new VA examination for her right knee conditions. At that time, she reported flare-ups occurring during physical activities and cold weather, lasting one to two days. In her own words she reported functional loss as decreased range of motion with increased pain, fatigue, and weakness. Flexion was limited to 110 degrees. Extension was normal. Pain was noted on examination with no additional loss of motion found. Upon repetitive testing, range of motion was the same. The examiner noted functional loss as pain on movement, swelling and disturbance of locomotion of the right knee. 

The examiner conducted joint stability tests, resulting in all tests being "normal" for the right knee joint. No subluxation or dislocation of the right knee was noted. In addition, no meniscal conditions or evidence of prior surgeries were found. The examiner added that the Veteran had a normal gait and was able to stand tip toe and stand heel during the examination. In terms of functional impact, the examiner stated that the Veteran cannot stand or walk for long periods and has to reposition her right knee frequently. The examiner was unable to provide a decreased range of motion in degrees without mere speculation, but noted moderate functional problems during flare-ups. Although the examination was not conducted during a flare-up, the examination was not inconsistent with the Veteran's reports of limitation during such a period of flare. The examiner found that the knee disability resulted in disturbance of locomotion, and interference with sitting and standing. Muscle strength was normal at both flexion and extension. 

The Board finds that this examination, too, does not support higher ratings than those already assigned. As noted with the July 2011 examination, the Veteran's right knee was not limited in either extension or flexion to a compensable degree. This considers the Veteran's own statements regarding how her knee disability limits such range of motion, as well as the findings of the examiner. Therefore, the 10 percent rating based on arthritis with painful motion, but not rising to a compensable degree based on either limitation of flexion or extension is all that is warranted under the schedular criteria. Likewise, the Board notes that at that time, the Veteran continued to be rated at the maximum schedular rating for impairment of the right knee based on subluxation or instability, even though the examiner's stability testing resulted as all normal. Therefore, the Board cannot assign a higher rating based on that diagnostic code. Finally, there is no such pathology, like ankylosis, or impairment of the tibia and fibula such that a rating in excess of 30 percent might be assigned under a different diagnostic code. As such, the Board finds that this examination report also does not support an increased rating for the right knee. 

Finally, the Veteran was evaluated at a VA examination in September 2020. At that time the Veteran reported constant bilateral knee pain which worsens with prolonged walking or standing. She also stated that a change in weather makes the symptoms worse. As far as functional impact, she reported difficulty with prolonged walking or standing, and using the stairs. Flexion was to 90 degrees, with extension to 0 degrees. The examiner noted pain on both flexion and extension. There was no objective evidence of localized tenderness or pain on palpation of the joint or soft tissue. There was objective evidence of weight and non-weight bearing pain, but the range of motion measurements remained the same. There was no objective evidence of crepitus. The Veteran was able to complete repetitive use testing with no additional loss of motion. The examination was not conducted during a flare-up, however, it was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time. 

The examiner found that pain would significantly limit use over time, particularly limiting the Veteran's flexion to 90 degrees (extension remained normal). Muscle strength was normal on both flexion and extension. There was no evidence of ankylosis. Joint stability testing was performed, resulting in anterior, posterior and medial instability as all normal. Lateral instability was noted as 2+ (5-10 millimeters). No history of meniscal conditions was found. The examiner noted regular use of a right knee brace to ease symptoms. The examiner stated that functionally speaking, she experienced difficulty with prolonged walking or standing. 

The Board finds that this examination does not support a rating in excess of the 10 percent already assigned based on painful motion. While the Board acknowledges the Veteran's competent and credible reports of severe pain of her right knee, that pain has not resulted in limitation of motion (either extension or flexion) to a compensable degree. Indeed, despite her pain, her extension remains complete, and her flexion is only limited to 90 degrees, even when accounting for factors such as pain, fatigue, weakness, etc. As such, the Board cannot grant a rating in excess of the 10 percent for arthritis with painful motion which is already granted under the statutory rating criteria. 

Likewise, the Board finds that the latest examination does not support a rating in excess of 30 percent already assigned for instability of the right knee. Here, the Board notes that the Veteran has been in receipt of the maximum schedular rating available based on instability of the right knee, despite the July 2011 examiner noting the instability as "moderate"; the October 2014 results of all normal; and the September 2020 test results showing a worsening to 5-10 millimeters of instability. Although test results have varied during the period on appeal, a maximum rating is warranted as the Veteran's right knee instability has required the use of a sleeve, and at times, a metal brace. 

Other Diagnostic Codes

The evidentiary record does not suggest nonunion or malunion of the tibia and fibula or genu recurvatum of the right knee. As such, separate disability ratings under Diagnostic Codes 5262 and 5263 are not warranted. Further, the Veteran has not exhibited ankylosis of the right knee. Hence, a separate rating under Diagnostic Code 5256 is not warranted. Additionally, no examinations of record show evidence of a meniscal condition, and neither dislocation nor removal of semilunar cartilage is shown in the record. Thus, a separate rating under Diagnostic Codes 5258 or 5259 is not warranted. All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). 

Extraschedular Consideration

To the extent that the Veteran has implied that she is entitled to a rating in excess of the maximum allowable rating for her right knee instability under Diagnostic Code 5257, the Board finds that referral for consideration on an extraschedular basis is not warranted. 

In considering whether an extraschedular rating may be warranted, VA must first determine whether the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran's level of disability and symptomatology. If the rating criteria are inadequate, VA must then determine whether the Veteran exhibits an exceptional disability picture indicated by other related factors such as marked interference with employment or frequent periods of hospitalization. If such related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration. See Thun v. Peake, 22 Vet. App. 111 (2008).

In this case, the evidence does not indicate that Veteran's disability picture could not be adequately contemplated by the applicable schedular rating criteria discussed above. Specifically, while the Veteran has difficulty with prolonged standing, walking or utilizing the stairs, there is no indication that these symptoms constitute "marked interference" with employment. The Board concludes that while any loss in income due to this service-connected disability is not compensated in full, it is adequately addressed by the applicable diagnostic codes. See Mittleider v. West, 11 Vet. App. 181 (1998). As such, the Veteran's symptoms are not so unusual that they are outside the schedular criteria.

Therefore, given that the applicable schedular rating criteria are more than adequate in this case, the Board need not consider whether the Veteran's disability picture includes exceptional factors, and referral for consideration of the assignment of a disability evaluation on an extraschedular basis is not warranted. See Thun, 22 Vet. App. at 111; see also Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).

Based on the evidence of record, the Board determines that ratings in excess of those awarded for the Veteran' right knee disabilities are not warranted for the period on appeal. As such, the appeal is denied. 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.

 

B.T. KNOPE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	T. McDonald