Citation Nr: 21029139
Decision Date: 05/12/21	Archive Date: 05/12/21

DOCKET NO. 04-37 982
DATE: May 12, 2021

ORDER

A rating in excess of 10 percent for chondromalacia of the left patella is denied.

A separate rating of 10 percent for left knee instability is granted.

A rating in excess of 10 percent for chondromalacia of the right patella with instability is denied.

A rating of 20 percent for degenerative changes of the right knee prior to March 14, 2007, is granted.

A rating of 40 percent for degenerative changes of the right knee from March 14, 2007, is granted.

FINDINGS OF FACT

1. Throughout the period on appeal, the Veteran's left knee disability is manifested by limitation of motion, pain, and degenerative arthritis shown by X-ray findings and flexion of the left knee is limited to no less than 70 degrees with painful motion.

2. The evidence is in equipoise as to whether the left knee is manifested by slight instability.

3. The Veteran's chondromalacia of the right patella with instability is characterized as slight throughout the appeal period.

4. Prior to March 14, 2007, the Veteran's degenerative changes of the right knee were manifested by complaints of pain and functional loss; objective findings included flexion to no worse than 60 degrees and extension to no worse than 15 degrees, even taking additional limitation due to pain, flare-ups, and following repeated use into account, X-ray studies that showed arthritis, no ankylosis, and no prior meniscectomies that resulted in pain and limited motion.

5. Since March 14, 2007, the Veteran's degenerative changes of the right knee were manifested by complaints of pain and functional loss; objective findings included flexion to no worse than 60 degrees and extension to no worse than 25 degrees, even taking additional limitation due to pain, flare-ups, and following repeated use into account, X-ray studies that showed arthritis, no ankylosis, and no prior meniscectomies that resulted in pain and limited motion.

CONCLUSIONS OF LAW

1. The criteria for a rating in excess of 10 percent for limitation of flexion of the left knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5010-5260.

2. The criteria for a rating of 10 percent, but not higher, for left knee instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5257.

3. The criteria for a rating in excess of 10 percent for a right knee instability disability have not been met or approximated. 38 U.S.C. §§ 1155, 5107, 7104; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.20, 4.45, 4.59, 4.71a, Diagnostic Code 5257.

4. Resolving reasonable doubt in favor of the Veteran, the criteria for a 20 percent disability rating, but no higher, for left knee limitation of extension have been met prior to March 14, 2007. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5261.

5. Resolving reasonable doubt in favor of the Veteran, the criteria for a 40 percent disability rating, but no higher, for left knee limitation of extension have been met since March 14, 2007. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5261.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from October 1968 to July 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).

In a September 2004 rating decision, the RO separated the Veteran's 20 percent rating for his right knee into two separate ratings. Specifically, the Veteran was assigned a 10 percent rating for his chondromalacia of the right patella with instability and a 10 percent rating for his degenerative arthritis of the right knee.

The Veteran testified before the undersigned Veterans Law Judge during a February 2007 hearing. A transcript of the hearing is associated with the Veteran's claim file.

The Board previously remanded the matter in May 2007, March 2010, July 2013, November 2014, June 2018, and May 2020.

Increased Rating

Legal Criteria

Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 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 their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1.

VA should interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability shall be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations apply, the higher of the two should be assigned where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7.

Additionally, when evaluating a musculoskeletal disability, VA must consider functional loss due to pain, weakness, excess fatigability, or incoordination. See DeLuca v. Brown, 8 Vet. App. 202, 206 (1995); 38 C.F.R. §§ 4.40, 4.45. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. The examiner should also determine the point, if any, at which such factors cause functional impairment. See Mitchell v. Shinseki, 25 Vet. App. 32, 43-44 (2011); Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017); see also 38 C.F.R. § 4.59.

The Board notes that during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453 -76463 (Nov. 30, 2020). These amendments revised select Diagnostic Codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied.

Knee disabilities are unique in the rating code, as they are one of a few orthopedic disabilities in which a veteran may receive multiple ratings based on separate symptoms in the same joint. While the law generally prevents considering the same symptoms under various diagnoses to support separate ratings, some of the relevant Diagnostic Codes for the knee have been interpreted to apply to different functions of the knee, therefore warranting separate consideration. Specifically, the evidence may warrant separate ratings for limitation of flexion of the knee, limitation of extension of the knee, and lateral instability and recurrent subluxation of the knee. The Board will explore all possibilities in this case.

Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating. 38 C.F.R. § 4.27. In this case, Diagnostic Codes 5003-5260 and 5010-5261 reflect consideration of the effects of degenerative arthritis (5010) and limited flexion and extension (5260, 5261).

Prior to the regulatory change, Diagnostic Code 5010 contemplated traumatic arthritis, which was to be rated as for degenerative arthritis. 38 C.F.R. § 4.71a. Diagnostic Code 5003 address degenerative arthritis, which states degenerative arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate Diagnostic Codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2020). Diagnostic Code 5003 further provides that when limitation of motion due to arthritis is noncompensable under the appropriate Diagnostic Code, 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 Diagnostic Code 5003. As of February 7, 2021, under the amended criteria, Diagnostic Code 5003 concerns degenerative arthritis, other than post-traumatic arthritis, while Diagnostic Code 5010 provides that post-traumatic arthritis should be rated as limitation of motion, dislocation, or other specified instability under the affected joint. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010).

Under Diagnostic Code 5260, limited knee flexion is assigned a 0 percent rating if it is limited to 60 degrees, 10 percent requires flexion limited to 45 degrees, and the next rating of 20 percent requires flexion limited to 30 degrees. Under Diagnostic Code 5261, limited knee extension is assigned a 0 percent rating where it is limited to 5 degrees, a 10 percent requires extension limited to 10 degrees, a 20 percent evaluation requires extension limited to 15 degrees, a 30 percent evaluation is required for extension limited to 20 degrees, and a 40 percent evaluation is required for extension limited to 30 degrees. 38 C.F.R. § 4.71a. The Board notes that the recent amendments to the rating criteria for evaluating musculoskeletal disabilities did not revise these Diagnostic Codes, and, as such, they were not changed.

Under the former rating criteria for Diagnostic Code 5257, which evaluates recurrent subluxation or lateral instability of a knee, a 10 percent rating is assigned for slight impairment; a 20 percent rating for moderate impairment; and a 30 percent rating for severe impairment. 38 C.F.R. § 4.71a. The terms "mild," "moderate," and "severe" are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. 

The revised criteria for Diagnostic Code 5257, effective February 7, 2021, evaluates other impairment of the knee, to include recurrent subluxation or instability and patellar instability. Regarding recurrent subluxation or instability, a 10 percent rating is assigned for 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., cane(s), crutch(es), walker) or bracing for ambulation. A 20 percent rating is assigned for either (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation, or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 30 percent rating is assigned for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation.

Regarding patellar instability, under the revised criteria for Diagnostic Code 5257, a 10 percent rating is assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. A 20 percent rating is assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: a brace, cane, or walker. A 30 percent disability rating is assigned 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 and either a cane or a walker.

Note (1) provides that for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. See 38C.F.R. §4.71a, Diagnostic Code 5257, Note (1).

Note (2) provides that a surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). See 38C.F.R. §4.71a, Diagnostic Code 5257, Note (2).

Ratings can also be assigned for impairment of the tibia or fibula, disability affecting the meniscus, genu recurvatum, or ankylosis of the knee. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5258, 5259, 5262, 5263. Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). Ankylosis is also defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary 93 (30th ed. 2003). In this case, the evidence does not reflect, nor does the Veteran allege, that he has impairment of the tibia or fibula, meniscus, genu recurvatum, or ankylosis of his knees during the appeal period. As such, Diagnostic Codes 5256, 5258, 5259, 5262, and 5263 are not for application.

Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. This regulation also requires that, whenever possible, the joints involved are tested for pain on both active and passive motion, in weightbearing and non-weightbearing and, if possible, with the range of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016).

Evidence

Private treatment records in October 2001 and December 2001 show the Veteran complained of increased right knee pain as well as the inability to fully extend his knees past 15 degrees flexion contracture. He had joint line tenderness and minimal degenerative changes of the right knee.

The Veteran was afforded a VA examination in February 2003. The Veteran reported a severe limp with back and hip pain developing. He had pain, crunching and knees that gave way. He could not go up and down stairs. He had some activities of daily living limited secondary to pain. On physical examination, the examiner noted abnormal posture, right pelvic tilt, and a limp to the left. There was evidence of atrophic changes to the quadriceps. Right knee flexion was 0 to 140 degrees and extension was 0 degrees. Pain began at 125 degrees of flexion on the right. He had some difficulty with squatting and there was some degree of bony irregularity of the right knee with a slight protrusion. The right knee was tender at the medial aspect with a moderately positive drawer's test and a negative McMurray's test. Pain, incoordination, and instability were the main limitations of movement. Left knee flexion was to 140 degrees and extension was to 0 degrees. Drawer's and McMurray's tests were within normal limits. There was no evidence of pain, fatigue, weakness, lack of endurance or incoordination. 

A February 2003 VA treatment record noted the Veteran walked with a limp secondary to his knee and that he had right lower extremity weakness with muscle atrophy.

In the Veteran's August 2003 notice of disagreement, the Veteran noted he could not straighten his right leg and had to put more weight on his left leg as a result. He also noted his decreased range of motion and noted his right leg was much smaller than his left leg. 

A March 2004 VA treatment record noted the Veteran's right knee began hurting after bending over and he felt something pop.

A June 2004 VA treatment record noted the Veteran's right knee gave way.

In the Veteran's October 2004 substantive appeal, the Veteran noted his knees were in constant pain and that he hobbled around. 

A February 2006 VA treatment record noted no edema, no crepitus and full range of motion of the knees.

A May 2006 VA X-ray of the bilateral knees showed no evidence for any acute fracture or subluxation.

A June 2006 VA treatment record showed full range of motion, although some pain was noted at the extreme of range of motion. 

An August 2006 VA treatment record showed right knee range of motion from 10 to 90 degrees. There was no effusion and no actual instability detected.

A December 2006 VA treatment record showed the right knee was able to extend to approximately 150 degrees. The right knee was tender with minimal effusion.

In February 2007, the Veteran and his wife testified before the undersigned at a Board hearing. The Veteran stated that he was supposed to use a brace on his right knee when needed, but he did not use it. He could not go up and down stairs. He described his knee pain as constant. He stated his knees locked and described this as his knee would go backwards. He could not straighten his right leg. His wife stated that he would have to stop walking every 15 to 20 minutes and stretch his leg. After resting he may need assistance in getting back up after resting. The Veteran stated his knee felt like it was grinding chips. He stated that it felt like it did not line up and when he took a step there was nothing there to hold him up. He noted his left knee extended fully but the grinding had increased.

A March 2017 VA treatment record showed the Veteran had traumatic arthritis of the right knee with limited motion. Bracing was noted as not appropriate for this problem. Examination revealed range of motion for the right knee from 25 degrees to 105 degrees. There was no effusion. The ligamentous structures appeared stable, but it may have been that the stability was a result of a loss of motion and to degenerative changes in the knee. Left knee range of motion was from 0 to 115 degrees. X-ray examination showed advanced degenerative changes in the right knee and minimal changes in the left knee. 

The Veteran was afforded another VA examination in July 2008. The Veteran did not report flare-ups but reported exacerbations and remissions. He did not use a brace or a cane; however, he had a cane and stated that when his knee is very bad he uses the cane. The right knee did not give way and there was no evidence of locking. The Veteran related one episode of the left knee giving way and he stubbed his toe. There was no evidence of the left knee locking. The left knee did not go backwards, there were no flare-ups of the left knee, and he did not use a cane, brace, or other assistive device for the left knee. He was able to dress and undress himself, although his wife stated that sometimes he does need help. Walking tolerance was noted to be about 70 yards. 

On physical examination, the right knee revealed a 10-degree flexion contracture. Extension was measured as plus 10 degrees without pain. Flexion was 10 to 120 degrees, with pain commencing at about 90 degrees. Left knee range of motion was normal with 0 degrees of extension and 0 to 135 degrees of flexion without pain. He had good stability in both planes. There was no effusion, swelling, or redness. There was vague tenderness around the knee. Quadricep muscle function was good, but there was some wasting on the right side. There was bone on bone crepitus in the right knee. The examiner opined there was a progression of the right knee to a moderate disability. The examiner could not find objective disease in the left knee and the left knee problems were minimal. The examiner was not sure whether the episode of the left knee giving way was due to the knee or whether it was due to whole left leg weakness.

A May 2009 VA treatment record noted the Veteran was still having problem with his knees.

A November 2011 VA treatment record noted the Veteran's knees were doing well. He still had some joint pain, but it was not high.

A February 2010 VA treatment record noted the Veteran's complaint of left knee pain after using the elliptical machine. There was no redness, swelling, or deformity. There was mild localized tenderness over superio-lateral knee, full range of motion, and muscle strength was 5/5.

The Veteran was afforded another VA examination in June 2010. The Veteran reported he was able to carry out activities of daily living, to include dressing and undressing. He could walk 200 feet. There was no evidence of flare-ups for either knee. He sometimes used a cane but did not use any other assistive devices. His right knee was more painful than his left. His right knee did not give way and there was no evidence of locking. The Veteran reported the left knee gave way approximately four times over a two-year period and he had actually fallen. There was no locking associated with the left knee. 

On physical examination, the examiner noted the Veteran walked without a limp or had a slight antalgic gait that was hardly perceptible. The right knee was tender. Extension measured to 10 degrees (or flexion contracture) and flexion measured 10 to 120 degrees with pain commencing at 90 degrees. Examination of the left knee showed full extension to 0 degrees and flexion of 0 to 135 degrees. Examination of both knees for instability revealed no instability of the medial/lateral or anterior/posterior planes in either knee. The examiner noted that the Veteran did not need any specific assistance to come to a standing position. The examiner noted that both knees showed no evidence of instability, subluxation, hyperextension, locking, fatigue, or weakness. There was some evidence of muscle atrophy on the right and some giving way on the left.

The Veteran was afforded another VA examination in November 2016. The Veteran reported flare-ups that increased in severity of knee pain with any prolonged weight bearing. Functional loss was described as difficulty with prolonged walking, standing, and sitting. On physical examination, right knee extension was to 0 degrees and flexion to 120 degrees. The examiner noted there was no pain noted on examination but also noted there was evidence of pain with weight bearing. There was crepitus. The left knee extension was to 0 degrees and flexion to 130 degrees. The examiner noted there was no pain noted on examination but also noted there was evidence of pain with weight bearing. There was crepitus. There was no additional functional loss or range of motion after three repetitions of either knee. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over time in either knee. There was full muscle strength in both knees. There was no recurrent subluxation, lateral instability, or recurrent effusion. All joint stability testing was normal. There was occasional use of knee braces. The functional impact of the knees was difficulty with prolonged standing and walking.

The Veteran was afforded another VA examination in March 2019. The Veteran reported flare-ups and described them as knee pain, stiffness, limited range of motion, difficulty with bending, prolonged standing, walking, or climbing stairs. On physical examination, the Veteran's right knee extension was to 0 degrees and flexion was to 60 degrees. There was no pain noted on examination. There was crepitus. Left knee extension was to 0 degrees and flexion was to 75 degrees. There was no pain noted on examination. There was crepitus. Both knees demonstrated additional loss of range of motion after three repetitions due to pain, fatigue, weakness, and lack of endurance. Right knee range of motion after three repetitions was 0 degrees of extension to 55 degrees of flexion. Left knee range of motion after three repetitions was 0 degrees of extension to 70 degrees of flexion. Pain, fatigue, weakness, and lack of endurance caused functional loss in both knees with repeated use over time. Right knee range of motion was limited to 0 to 50 degrees and left knee range of motion was limited to 0 to 65 degrees. Pain, fatigue, weakness, and lack of endurance caused functional loss in both knees with flare-ups. Right knee range of motion was limited to 0 to 45 degrees and left knee range of motion was limited to 0 to 60 degrees. Muscle strength testing was 4/5 for both knees. There was no muscle atrophy. There was no ankylosis. There was no joint instability. There were no meniscal conditions. There was regular use of a cane for walking support. The functional impact of his knees included knee pain, stiffness, limited range of motion, difficulty with bending, prolonged standing, walking, or climbing stairs.  

A February 2019 VA treatment record noted the right knee range of motion was from 0 to 100 degrees with crepitus. There was no effusion and the joint was stable. It was noted that the Veteran may benefit from right total knee arthroplasty.

The Veteran was afforded another examination in February 2021. He reported daily knee pain. He reported he had pain whenever he moved the right knee or stands. He could not walk without increased pain in the right knee mainly and he reported his knees gave out. He had problems with walking, standing, and sitting. Flare-ups of the right knee occurred daily, were severe, and lasted for 10 minutes after he got off his knee. Flare-ups of the left knee occurred daily, were moderate, and lasted 5 to 10 minutes until he got off his knee. Functional loss was described as problems with walking, standing, and sitting.

On physical examination, right knee range of motion was from 0 degrees extension to 120 degrees flexion. Pain was noted on examination and caused functional loss as pain increased with range of motion. Left knee range of motion was from 0 degrees extension to 140 degrees flexion. There was no pain noted on examination. There was tenderness on the right but not on the left. There was additional loss of function after three repetitions on the right side due to pain with range of motion from 0 to 110 degrees. There was no additional loss on the left side. Pain also caused functional loss with repeated use over time on the right side with range of motion from 0 to 100 degrees. There was no functional loss on the left side with repeated use over time. Pain also caused functional loss with flare-ups on the right side with range of motion from 0 to 90 degrees. There was no functional loss on the left side with flare-ups. There was no muscle atrophy, ankylosis, joint instability, tibular or fibular impairment, or meniscal conditions. There was occasional use of a knee brace from chondromalacia, but the examiner indicated that the Veteran did not require a prescription of an assistive device for ambulation.

Analysis

1. A rating in excess of 10 percent for chondromalacia of the left patella

The preponderance of evidence is against a rating in excess of 10 percent for the Veteran's left knee disability, based on limitation of flexion, throughout the period on appeal. For a disability evaluation in excess of 10 percent to be assigned under Diagnostic Code 5260, flexion of the knee must be limited to 30 degrees or less. 38 C.F.R. § 4.71a, Diagnostic Code 5260. The most probative evidence shows that the Veteran has flexion of the left knee well beyond 30 degrees on every occasion range of motion testing was performed during the period on appeal.

There is no medical evidence supporting that the Veteran's left knee had flexion limited to a compensable degree. Treatment records and VA examinations consistently noted range of motion of at least 60 degrees or more. Any loss of range of motion with repetitive usage or flare-ups did not result in limitation of flexion below 70 degrees. As such, the Veteran's current 10 percent disability rating for his left knee disability based on limitation of flexion and painful motion takes into consideration and incorporates the functional loss and impairment due to pain. His left knee disability has not been shown to produce additional impairment that would warrant a rating higher than 10 percent under Diagnostic Code 5260. Therefore, the current functional impairment of his left knee disability and the symptoms of pain are encompassed in the 10 percent rating assigned.

The preponderance of the evidence is against a rating higher than 10 percent for the Veteran's left knee disability causing limitation in flexion throughout the period on appeal, and the claim for a higher rating is denied.

2. A separate rating for chondromalacia of the left patella with instability

The Board finds that a separate rating of 10 percent, but no higher, for instability of the left knee is supported for the entire appeal period.

In February 2003, the Veteran reported pain, crunching, and that his knees gave way. However, on physical examination, the VA examiner did not indicate any issues with left knee instability.

At the February 2007 Board hearing, the Veteran testified that his left knee would lock up and he would go down. He stated that it felt like things did not line up and when he took a step there would be nothing there to hold him.

While the Veteran reported a single episode of his left knee giving away during the July 2008 VA examination, the examiner noted that the Veteran had good stability. Further, the Veteran reported that he did not use a brace or cane, but that he had a cane that he used when his knee was really bad.

During the June 2010 VA examination, the Veteran reported that his left knee had given way four times over a two-year period and that he had fallen. He also reported that he used a cane sometimes, but he did not use crutches, wheelchairs, walkers, or braces. On physical examination, the examiner noted there was no instability. The examiner found no evidence of instability, subluxation, hyperextension, locking, fatigue, or weakness of either knee. However, the examiner did acknowledge that there was some evidence of giving way in the case of the left knee.

The Board notes that medical evidence is not categorically more probative than lay evidence under Diagnostic Code 5257. See English v. Wilkie, 30 Vet. App. 347, 352-54 (2018). Thus, it is reasonable to grant the Veteran 10 percent for instability of the left knee, considering the overall severity of his symptoms. However, the Board finds that a higher rating is not called for because there is no objective evidence of more than mild recurrent subluxation or lateral instability during the period on appeal. Specifically, there is no actual indication of ligamental instability on clinical evaluation.

The Board notes the use of assistive devices alone is not enough to support more than slight knee instability where objective testing noted normal anterior instability testing, normal posterior instability testing, normal medial instability testing, and normal lateral instability testing throughout the appeal period.

The Board also finds that the weight of the evidence is against a rating in excess of 10 percent for the left knee under the criteria for Diagnostic Code 5257 from February 7, 2021. There is no evidence that the Veteran's chondromalacia, a diagnosed condition of the patellofemoral complex, has resulted in a history of surgical repair of the patellofemoral complex resulting in recurrent instability. As noted, joint stability testing during the February 2021 VA examination was normal. Finally, as previously discussed, there is no evidence of subluxation, or a sprain, incomplete ligament tear, or complete ligament tear resulting in persistent instability that requires a medically prescribed assistive device. Accordingly, a disability rating in excess of 10 percent for left knee instability is not warranted under the criteria for Diagnostic Code 5257 from February 7, 2021.

3. A rating in excess of 10 percent for chondromalacia of the right patella with instability

Regarding the right knee disability under Diagnostic Code 5257, the criteria for a rating in excess 10 percent evaluation for slight recurrent subluxation of the right knee is not warranted. During the February 2003 VA examination the Veteran reported that his knees gave way. On physical examination, the examiner noted that pain, incoordination, and instability were the main limitations of movement. A June 2004 treatment record noted the Veteran's right knee gave way. On all other VA examinations during the appeal period, the examiners found some improved symptoms, to include the finding of no laxity or instability. Thus, the Board concludes that the recurrent subluxation/instability more nearly approximates the rating criteria for slight recurrent subluxation, but not moderate or severe to warrant an evaluation higher than the 10 percent rating. Therefore, the criteria for an evaluation higher than 10 percent under Diagnostic Code 5257 are not met. See 38 C.F.R. § § 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. 202; Mitchell, 25 Vet. App. at 44.

The Board also finds that the weight of the evidence is against a rating in excess of 10 percent for the right knee under the criteria for Diagnostic Code 5257 from February 7, 2021. There is no evidence that the Veteran's chondromalacia, a diagnosed condition of the patellofemoral complex, has resulted in a history of surgical repair of the patellofemoral complex resulting in recurrent instability. As noted, joint stability testing during the February 2021 VA examination was normal. Finally, as previously discussed, there is no evidence of subluxation, or a sprain, incomplete ligament tear, or complete ligament tear resulting in persistent instability that requires a medically prescribed assistive device. Accordingly, a disability rating in excess of 10 percent for right knee instability is not warranted under the criteria for Diagnostic Code 5257 from February 7, 2021.

4. A rating of 20 percent for degenerative changes of the right knee prior to March 14, 2007 

5. A rating of 40 percent for degenerative changes of the right knee from March 14, 2007

After a review of all the evidence, lay and medical, the Board finds that the evidence demonstrates that the criteria for a 20 percent disability rating under Diagnostic Code 5261 have been met for the period on appeal prior to March 14, 2007. Diagnostic Code 5261 provides for 0, 10, 20, 30, 40, and 50 percent ratings when extension is limited to 5, 10, 15, 20, 30, and 45 degrees, respectively. As noted above, the December 2001 treatment record noted the Veteran could not fully extend his knees past 15 degrees flexion contracture. The Board has resolved reasonable doubt in favor of the Veteran and finds that such limitation of extension more nearly approximates the criteria for a 30 percent rating under Diagnostic Code 5261 (limitation of extension to 15 degrees). Further, the March 2007 VA treatment record noted the Veteran's right knee range of motion was from 25 degrees to 105 degrees. This was the first time in the record the Veteran's extension was limited beyond 15 degrees. Rounding up to the nearest ten degrees, the Board has resolved reasonable doubt in favor of the Veteran and finds that such limitation of extension more nearly approximates the criteria for a 40 percent rating under Diagnostic Code 5261 (limitation of extension to 30 degrees). At no time in the appeal period has the Veteran's extension been limited to 45 degrees.

The Board has considered whether any other diagnostic code would allow for an even higher rating for the Veteran's right knee disability, manifested by limitation of motion, pain, or other orthopedic factors such as weakness or fatigability.

Under Diagnostic Code 5260, where flexion is limited to 60, 45, 30, and 15 degrees, ratings of 0, 10, 20, and 30 percent, respectively, are assigned. In this case, the Veteran had right knee flexion to no worse than 60 degrees. Thus, even taking the Veteran's painful motion into account, as the criteria for a compensable rating under Diagnostic Code 5260 (limitation of flexion to 45 degrees) have not been met or more nearly approximated, the lay and medical evidence, which includes limitation of motion due to painful motion and other orthopedic factors, does not support a higher rating (in excess of 20 percent) under Diagnostic Code 5260 for the right knee disability.

The VA General Counsel has interpreted that separate ratings may be assigned under Diagnostic Codes 5260 and 5261 for disability of the same joint where there is both compensable limitation of flexion and extension in order to adequately compensate a veteran for functional loss associated with injury to the leg. VAOPGCPREC 9-2004. The evidence must show compensable limitation of motion of extension (10 degrees) and limitation of motion of flexion (45 degrees) to warrant separate compensable ratings for both limitation of extension and limitation of flexion. See id. However, in this case, as stated above, the Veteran's flexion measurements do not meet the criteria for a compensable disability rating under Diagnostic Code 5260 at any time during the increased rating period on appeal. Therefore, separate ratings for limitation of flexion (Diagnostic Code 5260) and extension (Diagnostic Code 5261) are not warranted in this case.

Next, Diagnostic Code 5003 provides that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (e.g., Diagnostic Codes 5260 and 5261), provided the limitation of motion is compensable; however, when limitation of motion of the specific joint involved is noncompensable under the appropriate diagnostic codes, Diagnostic Code 5003 provides that a rating of 10 percent is for application for each such major joint affected by limitation of motion. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a compensable evaluation is only assigned when there is X-ray evidence of involvement of two or more major or minor joint groups. In this case, Diagnostic Code 5003 allows for a maximum of a 10 percent rating, and, thus, does not allow for a higher rating.

In considering whether a higher rating is warranted based on loss of motion under another diagnostic code, the Board finds that Diagnostic Code 5256 does not apply, as there is no evidence of knee ankylosis.

The Board has already considered whether any other diagnostic code would allow for an even higher rating for the Veteran's knee disability, manifested by instability under Diagnostic Code 5257.

In further consideration of higher ratings for instability, Diagnostic Code 5258 does not apply, as the Veteran does not have any meniscal conditions. Diagnostic Codes 5262 and 5263 do not apply, as there is no evidence of malunion or nonunion of the tibia or fibula, and no evidence of genu recurvatum.

With regard to Diagnostic Code 5259, which addresses symptomatic removal of semilunar cartilage, the highest available rating under that code is 10 percent; thus, it does not allow for a higher rating. Moreover, a separate rating under Diagnostic Code 5259 is not warranted as the Veteran does not have a meniscus condition.

Thus, the weight of the evidence is against a rating in excess of 20 percent for the right knee disability prior to March 14, 2007, and a rating in excess of 40 percent thereafter, and against any separate ratings other than the already awarded rating for instability under Diagnostic Code 5257. The Board has considered the Veteran's statements that his knee disability is worse, as well as his reports of pain and functional loss. While he is competent to provide evidence regarding matters that can be perceived by the senses, he is not shown to be competent to render medical opinions regarding whether his symptoms meet the next higher rating criteria under VA regulations.

Such competent evidence concerning the nature and extent of the Veteran's knee disability were provided by the medical personnel who examined him during the current appeal. The medical findings (as provided in the examination reports and clinical records) directly address the criteria under which the knee disability is evaluated.

The specific clinical measures of ranges of motion, including examiners' findings and opinions regarding additional limitations of motion due to such factors, have been weighed and considered by the Board. Such specific measures and findings are of more probative value in determining specific ranges of motion than are general histories or general descriptions of symptoms of pain or limitations, such as this Veteran's report of pain and functional loss.

Thus, except as otherwise provided herein, the overall evidence does not show that pain or other factors resulted in additional functional limitation or limitation of motion such as to enable a finding that the disability picture more nearly approximates a disability rating in excess of 20 percent for the right knee disability prior to March 14, 2007, and in excess of 40 percent thereafter under the rating criteria for knee disabilities at any time during the rating period on appeal.

Despite the Veteran's contention of a debilitating knee disability, the current disability rating indicates a significant impact on his functional ability. Such a disability evaluation assigned by VA recognizes his pain, indicating very generally a 20 percent reduction in his ability to function due to his knee disability prior to March 14, 2007, and 40 percent thereafter. The critical question in this case, however, is whether the problems he has cited meet the next highest level under the rating criteria. For reasons cited above, the Board finds they do not.

In sum, resolving reasonable doubt in favor of the Veteran, the Board finds that the evidence is at least in equipoise as to whether a 20 percent disability rating prior to March 14, 2007, and 40 percent disability rating thereafter, but no higher, for the right knee disability is warranted. To the extent any higher level of compensation is sought, the preponderance of the evidence is against this claim, and, hence, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).

 

 

MARJORIE A. AUER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Kelly A. Gastoukian

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.