Citation Nr: 21029891 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 12-31 006A DATE: May 17, 2021 ORDER Entitlement to a rating in excess of 10 percent from March 19, 2008 for traumatic arthritis of the left knee is denied. FINDING OF FACT Throughout the entire appeal period, the Veteran's traumatic arthritis of the left knee is characterized by noncompensable limitation of motion with pain, including upon clinical examination or as determined to result after repeated use over time or during flare-ups, and he had no incapacitating exacerbations. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 10 percent from March 19, 2008 for traumatic arthritis of the left knee have not been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code (DC) 5260. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from September 1955 to September 1959. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision issued by a VA Regional Office (RO). By way of background, the Board denied the Veteran's claim in May 2019 for entitlement to a rating in excess of 10 percent for traumatic arthritis of the left knee from March 19, 2008. Subsequently, the Veteran appealed the denial of his increased rating claim to the United States Court of Appeals for Veterans Claims (Court/CAVC). In a January 2020 decision, the Court granted the parties' Joint Motion for Partial Remand (JMPR), partially vacated the Board's May 2019 decision, and remanded the matter to the Board for action consistent with the ruling. In the JMPR, the parties stated that the Appellant only took issue with the Board's denial of entitlement to a rating in excess of 10 percent for traumatic arthritis of the left knee from March 19, 2008. The Board's other denials were explicitly not challenged. Consequently, the Board will not consider them in this decision. Subsequent to the JMPR, the Board remanded the Veteran's claim in June 2020 for further evidentiary development to include affording the Veteran a new VA examination for his left knee condition to assess its current severity as well as to obtain a retrospective opinion on earlier VA examinations of the Veteran's left knee. A review of the claims file now shows that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). 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); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Whether the issue is one of an initial rating or an increased rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; separate ratings may be assigned for distinct disabilities resulting from the same injury only where the symptomatology for one condition is not duplicative or overlapping with the symptomatology of the other condition. See 38 C.F.R. § 4.14; see also Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of his symptoms. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). The Court, in Correia v. McDonald, 28 Vet. App. 158 (2016), held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Thus, the Court's holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate. Further, in evaluating joint disabilities, 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 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The 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 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. at 592. Additionally, the Court has stated that flare-ups must be factored into an examiner's assessment of functional loss. Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017). 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 was granted service connection for traumatic arthritis of the left knee at 10 percent disabling effective July 11, 2005, under 38 C.F.R. § 4.71a, DC 5260, pertaining to limitation of flexion. As noted in the introduction, this appeal stems from the Veteran's claim filed in March 2008 indicating his condition had worsened. Thus, the Board will consider the severity of his knee disability from March 2008, as well as whether there was a factually ascertainable increase in severity within the year preceding his increased rating claim. See 38 C.F.R. § 3.400(o)(2). The Veteran's current 10 percent rating is based on painful limitation of motion with x-ray evidence of traumatic arthritis. See 38 C.F.R. § 4.59, 4.71a, DC 5260-5010. Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). 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. The Board observes that former regulation 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the AOJ. In Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9(b)(2) (now as noted renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. As such, pursuant to 38 C.F.R. § 20.904(d)(2), the Board will proceed to adjudicate the Veteran's claim. Under the pre-amended criteria, arthritis due to trauma, which is substantiated by X-ray findings, is to be rated as degenerative arthritis under DC 5003. 38 C.F.R. § 4.71a, DCs 5010. Under DC 5003, when the limitation of motion is noncompensable under the appropriate diagnostic code, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion. A rating of 20 percent may be applied where there are occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, DCs 5003. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. The amended criteria revised DC 5010 stating that traumatic arthritis is now to be rated as "limitation of motion, dislocation, or other specified instability under the affected joint." 38 C.F.R. § 4.71a, DCs 5010. Effectively, the 10 percent rating under DC 5003 for non-compensable limitation of motion has now been removed for traumatic arthritis. Under DC 5260, flexion of the leg limited to 60 degrees is rated noncompensable (0 percent) disabling; flexion of the leg limited to 45 degrees is rated 10 percent disabling; flexion of the leg limited to 30 degrees is rated 20 percent disabling; and flexion of the leg limited to 15 degrees is rated 30 percent disabling. Also relevant to any discussion of knee disabilities are the criteria under Diagnostic Codes 5256 through 5263. 38 C.F.R. § 4.71a. Under DC 5256, favorable ankylosis of the knee, in full extension or in slight flexion between 0 degrees and 10 degrees warrants a 30 percent disability rating; ankylosis in flexion between 10 degrees and 20 degrees warrants a 40 percent disability rating; ankylosis in flexion between 20 degrees and 45 degrees warrants a 50 percent disability rating; and extremely unfavorable ankylosis in flexion at an angle of 45 degrees or more warrants a 60 percent disability rating. Under DC 5257, slight recurrent subluxation or lateral instability will be rated as 10 percent disabling, moderate recurrent subluxation or lateral instability will be rated as 20 percent disabling, and severe recurrent subluxation or lateral instability warrants a 30 percent rating. Under DC 5258, a claimant is entitled to a 20 percent rating for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. Under DC 5259, a 10 percent evaluation is assigned for symptomatic removal of semilunar cartilage. Under DC 5261, extension of the leg limited to 5 degrees is rated noncompensably (0 percent) disabling; extension of the leg limited to 10 degrees is rated 10 percent disabling; extension of the leg limited to 15 degrees is rated 20 percent disabling; extension of the leg limited to 20 degrees is rated 30 percent disabling; extension of the leg limited to 30 degrees is rated 40 percent disabling; and extension of the leg limited to 45 degrees is rated 50 percent disabling. Under DC 5262, a 10 percent rating is warranted for malunion of the tibia and fibula with slight knee or ankle disability. A 20 percent rating is warranted for malunion of the tibia and fibula with moderate knee or ankle disability. A 30 percent rating is warranted for malunion of the tibia and fibula with marked knee or ankle disability. A maximum 40 percent rating is warranted with nonunion of the tibia and fibula, with loose motion, requiring a brace. Under DC 5263, a 10 percent rating is warranted for genu recurvatum (acquired, traumatic, with weakness and insecurity in weight-bearing objectively demonstrated). Effective February 7, 2021, DC 5257 was amended to provide ratings for recurrent subluxation or lateral instability. A 30 percent rating is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability and a medical provider prescribing both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. A 20 percent rating is warranted for either (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribing 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 prescribing either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 10 percent rating is warranted 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. DC 5257 also provides for ratings based on patellar instability. A 30 percent rating is warranted 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. A 20 percent rating is warranted 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 10 percent rating is warranted 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. Note [1] to DC 5257 states that for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note [2] to DC 5257 states 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. Also, effective February 7, 2021, DC 5262 is amended to provide for a 40 percent rating for nonunion of the tibia and fibula, with loose motion, requiring brace. Malunion of the tibia and fibula are to be evaluated under diagnostic codes 5256, 5257, 5260, or 5261 for the knee or 5270 or 5271 for the ankle, whichever results in the highest evaluation. Separate ratings are also provided for medial tibial stress syndrome (MTSS) or shin splints. Normal ranges of motion of the knee are to 0 degrees in extension, and to 140 degrees in flexion. 38 C.F.R. § 4.71, Plate II. Turning to the evidence of record, in a February 2008 statement, the Veteran described that his knee pain has increased, that his knee has become more stiff, and that painkillers "limit [his] ability to do everyday things." During an April 2008 VA knee examination, the Veteran reported "weakness, stiffness, swelling, giving way[,] and lack of endurance." Also, "[h]e does not have heat, redness, locking, fatigability, or dislocation." The pain was "constant," but "he can function with medication." The Veteran displayed normal posture and normal gait. Extension is normal, and flexion is from 0 to 90 degrees. "[J]oint function is additionally limited by the following after repetitive use: pain, fatigue, weakness, lack of endurance and pain has the major functional impact." Knee stability testing was within normal limits. According to the examiner, "[t]he effect of the condition on the [Veteran's] usual occupation is limited prolonged walking and standing due to knee pain" and "[t]he effect of the condition on the [Veteran's] daily activity is limited prolonged walking and standing due to knee pain." A September 2008 VA medical examiner described knee pain but stated that the Veteran is "ambulatory with steady gait." In an October 2008 statement, the Veteran described that the prior DBQ was inaccurate because "there was med[icine] in [his] body to be help [him] to be able to move around with pain and tenderness....". A December 2008 VA knee examination report contains findings that are essentially identical to those reported in the April 2008 knee examination, including no limitation of extension, forward flexion of 90 degrees, normal posture, normal gait, and that knee stability testing is within normal limits. Also, according to both examinations, "joint function is additionally limited by the following after repetitive use: pain, fatigue, weakness, lack of endurance and pain has the major functional impact." The only major difference was that the December 2008 VA knee examiner described "[t]he effect of the condition on the Veteran's daily activity" as follows: "WALK/STAND < 5 MINUTES, SIT < 20 MINUTES." Also, swelling was not reported in the December 2008 examination report, but was reported in the April 2008 examination report. An August 2009 VA medical record states that the Veteran "is a candidate for knee replacement, however he does not wish to undergo surgery at this time." In a different August 2009 VA medical record, the Veteran "states that his knees are giving him trouble, but he is able to tolerate." A September 2012 VA medical record indicates that the Veteran uses a cane to walk. In his November 2012 VA Form 9, the Veteran stated that some mornings he "can't walk because of pain" and that he has "fallen on the steps going up and down." An April 2013 VA medical record indicates knee pain and that the Veteran used a cane to walk. A September 2016 VA medical record reflects that the Veteran's left knee would "give out when walking a lot [sic]." A December 2016 VA medical record indicates worsening left knee pain, that the left knee "buckles from underneath him," that the Veteran "has fallen down steps (1 year ago) from [left] knee giving away," and that the Veteran used a cane. Left knee flexion was limited to 85 degrees and extension was normal. A January 2017 VA medical record describes "continued [left] knee pain on a daily basis with every step." A June 2017 VA medical record indicates "left knee pain... with activities." An imaging study of the same date revealed "bone on bone changes." A January 2019 VA medical opinion concluded that "[i]t is at least as likely as not the [Veteran] has additional limits on functional ability on repeated use or during flare ups of pain, fatigue and incoordination." A January 2019 VA knee examination report indicates that "[t]he flare ups of the right knee can be described as giveaway weakness." Functional loss was reflected by "decreased ability to stand and walk." Extension was normal, and flexion was limited to 120 degrees. The Veteran was able to perform repetitive use testing with at least three repetitions and no additional loss in range of motion or functional loss. Pain, fatigue, and incoordination significantly limited functional ability with repeated use over time and during flare-ups, but with no loss in range of motion (flexion is 120 degrees). Additional contributing factors of disability were instability of station, disturbance of locomotion, and interference with standing. There was no history of recurrent subluxation or lateral instability, but medical testing indicated the existence of some joint instability. There is no ankylosis. The Veteran constantly uses a cane. Private medical records from Vitality Medical Center from March 2020 indicate the Veteran continued to report pain, stiffness, swelling, and instability in his left knee. A radiologist note contains a report that the Veteran's left knee has osteoarthritis with no fracture or soft tissue swelling. Additional private treatment reports from March 2020 indicate the attempt by the Veteran to use knee braces for without success and that he has attempted several knee injections to alleviate the pain in his knees without much success. The Veteran was afforded a final VA knee examination in January 2021 in which the Veteran's left diagnosis of post-traumatic arthritis was confirmed. The Veteran reported no flare ups at this time however, he did report that his knee condition prevented him from being able to perform any high impact activities including running. He also reported the inability to climb stairs or work more than "3-4 city blocks" without rest. The examiner noted that the Veteran had a history of instability or recurrent subluxation with no frequent effusion. Upon initial testing, range of motion was indicated as normal however, pain was noted upon flexion and extension. The examiner also noted that upon passive and active range of motion, there was evidence of pain which causes functional loss. There was no evidence of pain upon weight bearing or non-weight bearing. The examiner further noted the same functional loss as previously reported by the Veteran to include the inability to perform high impact activities and climb stairs. There was objective evidence of crepitus with localized tenderness or pain upon palpation described as mild in severity. Upon repetitive range of motion testing, no additional loss of range of motion was reported nor after repeated use over time. The examiner noted that there was no evidence suggestive of pain, fatigability, weakness, lack of endurance or incoordination that significantly would limit functional ability after repeated use or repeated use over time. The examiner also noted that the Veteran did not report flare ups during the examination, there were no additional factors contributing to his disability, no muscle atrophy, no ankylosis nor recurrent or persistent instability. The examiner did not however, that the Veteran currently uses a walker that was prescribed by a medical provider even though there is no recurrent patellar instability, shin splints, stress fractures or any other tibial or fibular impairment. In addition, the examiner reported no meniscal conditions or history of surgeries and remarked that the constant use of a walker was "for instability in [the] left knee and generalized weakness due to other co-morbid conditions". Furthermore, the examiner noted that a goniometer was used for all range of motion testing and emphasized that there was no evidence of lateral instability nor chronic exertional compartment syndrome in the lower extremities. A January 2021 radiology consult consisting of X-rays of the Veteran's left knee showed no sign of fracture or other significant bone or soft tissue abnormality. In additional there was no significant evidence of arthritis noted. The Board notes at the outset that the April and December 2008 VA examinations along with the January 2019 VA examination have been deemed inadequate by the CAVC in its' January 2020 decision. However, when considered in conjunction with the latest VA examination of January 2021, along with the other evidence of record, the Board finds that the current medical record is now adequate upon which to determine the extent and severity of the Veteran's left knee disability. Given the totality of the information, including the Veteran's own descriptions of his limitations, the Board finds that the requirements of DeLuca, Sharp, and Correia have been adequately addressed. DeLuca v. Brown, 8 Vet. App. At 202; Sharp v. Shulkin, 29 Vet. App. at 32; Correia v. McDonald, 28 Vet. App. at 158. See also Mozingo v. Shinseki, 26 Vet. App. 97, 107 (2012) ("even if a medical opinion is inadequate to decide a claim, it does not necessarily follow that the opinion is entitled to absolutely no probative weight...[I]f the opinion is merely lacking in detail, then it may be given some weight based upon the amount of information and analysis it contains."). A rating in excess of 10 percent from March 19, 2008 for traumatic arthritis of the left knee is denied. The Board notes that the criteria under which the Veteran's left knee is currently rated, 38 C.F.R. § 4.71a, DC 5260, was not affected by the February 7, 2021, amendments. However, because his disability was rated based on evidence of traumatic arthritis, the criteria under DC 5010, was affected as it pertains to the Veteran. Nevertheless, the February 7, 2021 criteria is not applicable here since the evidence of record is all dated prior to February 7, 2021. As such the Veteran's claim will be reviewed based on the rating criteria in effect prior to February 7, 2021. Under the criteria of DC 5260, the Veteran's left knee disability did not warrant a rating in excess of 10 percent at any time during the appeal period. Flexion was not limited to 30 degrees, including upon clinical examination, or as determined to result after repeated use over time or during flare-ups, thereby warranting a 20 percent rating under the criteria of DC 5260. See 38 C.F.R. § 4.59; Mitchell v. Shinseki, 25 Vet. App. at 32. Although flexion was not limited to a compensable degree during the appeal period, the Veteran had x-ray evidence of arthritis in the knee and painful motion, warranting a 10 percent rating under the criteria of DC 5003, 5010. However, he had no incapacitating exacerbations meriting a 20 percent rating under the criteria of DC 5003. Accordingly, a rating in excess of 10 percent for left knee traumatic arthritis under DC 5260 is not established. The Board has considered whether rating the knee disability under additional or alternative diagnostic codes pertaining to the knees would be more appropriate or advantageous to the Veteran. However, rating either disability under DC 5256 is not indicated as there is no evidence of ankylosis or functional equivalence of ankylosis. Further, the Veteran does not have any meniscal conditions warranting rating under DC 5258 or DC 5259. Extension has not been limited to 5 degrees such that additional rating might be available under DC 5261. Finally, there is no malunion or nonunion of the tibia and fibula and no genu recurvatum indicating rating under DC 5262 and DC 5263. The Board has considered whether an additional rating is warranted under the pre-amended or amended criteria of DC 5257 however, the Board notes that the Veteran is currently in receipt of a 30 percent rating for left knee instability from November 4, 2012. This rating is the maximum allowed under VA regulations and was first awarded by the Board in its' May 2019 decision. Furthermore, as noted above in the JMPR, the parties stated that the Veteran only took issue with the Board's denial of entitlement to a rating in excess of 10 percent for traumatic arthritis of the left knee from March 19, 2008. The Board's other denials and other staged time periods were explicitly not challenged and thus are not now before the Board. Accordingly, the left knee disability is most appropriately rated under DC 5260 and no additional ratings are indicated that have not previously been awarded. The Board recognizes the Veteran's belief that his left knee traumatic arthritis merits a higher rating. However, an application of the relevant diagnostic codes and consideration of the DeLuca factors indicates that a higher evaluation is not warranted based on the evidence of record. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. F. Minnitte, Attorney Advisor 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.