Citation Nr: 21031818 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 15-32 080 DATE: May 24, 2021 ORDER Entitlement to a higher initial disability rating in excess of 10 percent for the right knee limitation of flexion disability from April 3, 2009 is denied. Entitlement to a higher initial disability rating in excess of 0 percent for the right knee limitation of extension disability from April 3, 2009 is denied. Entitlement to a separate compensable rating of 20 percent for the right knee instability disability from March 3, 2021 is granted. FINDINGS OF FACT 1. For the entire rating period on appeal from April 3, 2009, the right knee limitation of flexion disability manifested in arthritis and flexion between 60 and 115 degrees. 2. For the entire rating period on appeal from April 3, 2009, the right knee limitation of extension disability is most consistent with extension between 0 and 5 degrees. 3. From March 3, 2021, the right knee instability disability manifested in patellar instability after surgical repair that requires a prescription for a walker. 4. For the entire rating period on appeal from April 3, 2009, the right knee did not manifest in ankylosis, dislocation or removal of semilunar cartilage, nonunion or malunion of the tibia and fibula, medial tibial stress syndrome (MTSS) or shin splints, or genu recurvatum. CONCLUSIONS OF LAW 1. The criteria for a higher initial rating in excess of 10 percent for the right knee flexion disability for the entire rating period on appeal, from April 3, 2009, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes, 5003, 5260 (2020), 4.71a, Diagnostic Code 5003 (effective February 7, 2021). 2. The criteria for a higher initial rating in excess of 0 percent for the right knee extension disability for the entire rating period on appeal, from April 3, 2009, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5261 (2020), 4.71a, Diagnostic Code 5261 (effective February 7, 2021). 3. Resolving reasonable doubt in favor of the Veteran, the criteria for a separate compensable rating of 20 percent for the right knee instability, from March 3, 2021, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5261 (2020), 4.71a, Diagnostic Code 5257 (effective February 7, 2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from September 1979 to December 1979, and in the United States Navy from January 1986 to June 2005. This matter is on appeal from a July 2014 rating decision issued by the Regional Office (RO) in Washington, D.C. The Veteran filed a notice of disagreement in September 2014 and a statement of the case was issued in July 2015. The Veteran filed a substantive appeal in August 2013. These matters were brought before the Board in August 2018, October 2019, and September 2020. The Board will abbreviate the procedural history of this case. The latest Board remand was in September 2020. The Board remanded in order to obtain outstanding VA and private treatment records. The Board also remanded to obtain a VA examination. The Board directed the VA examiner to assess the current severity of the disabilities of the right knee, including to test and record the range of motion of each knee in active motion, passive motion, weight-bearing, and non-weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The VA examiner was directed to distinguish functional limitations due to disabilities of the right knee from those due to disabilities left knee or due to other conditions. The VA examiner was also directed to address serpiginous intramedullary sclerotic densities within visualized distal femur and proximal tibia suggestive of intramedullary bone infarcts, as identified upon right knee x-rays in January 2020. In response to the September 2020 Board remand, the March 2021 VA examination found that the Veteran experienced pain with passive and active range of motion testing as well as weight- and nonweight-bearing testing. The VA examiner also found that the serpiginous intramedullary sclerotic densities within visualized distal femur and proximal tibia suggestive of intramedullary bone infarcts are directly linked to the service-connected right knee. The VA examiner explained that the steroid injection used to treat the service-connected right knee DJD is "most likely the cause of the identified intramedullary bone infarcts." As such the symptoms and impact of these sclerotic densities of the distal femurs and proximal tibia are considered as part of the right knee disability. A supplemental statement of the case was issued in March 2021. Duties to Notify and Assist The Board finds that the duties to notify and assist the Veteran in this case have been fulfilled. The Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). Disability Rating Legal Authority Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. § Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability ratings shall be applied, the higher rating 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. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (double "compensation" for the same symptom or impairment is prohibited). When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Further, 38 C.F.R. §§ 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. Painful motion is considered limited motion at the point that pain actually sets in. See VAOPGCPREC 9-98. With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or mal-aligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. The appropriate diagnostic codes for rating limitation of motion of the knees are Diagnostic Codes 5260 and 5261. 38 C.F.R. § 4.71a. Normal range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. In VAOPGCPREC 9-2004, the VA General Counsel interpreted that when considering Diagnostic Codes 5260 and 5261 together with 38 C.F.R. § 4.71, a veteran may receive a rating for limitation in flexion only, limitation of extension only, or, if the 10 percent criteria are met for both limitations of flexion and extension, separate ratings for limitations in flexion under Diagnostic Code 5260 (leg, limitation of flexion) and extension under Diagnostic Code 5261 (leg, limitation of extension). Under Diagnostic Code 5260, limitation of knee flexion is rated 30 percent disabling where flexion is limited to 15 degrees; 20 percent disabling where flexion is limited to 30 degrees; 10 percent disabling where flexion is limited to 45 degrees; and noncompensable where flexion is limited to 60 degrees. 38 C.F.R. § 4.71a. Under Diagnostic Code 5261, limitation of knee extension is rated 50 percent disabling where extension is limited to 45 degrees; 40 percent disabling where extension is limited to 30 degrees; 30 percent disabling where extension is limited to 20 degrees; 20 percent disabling where extension is limited to 15 degrees; 10 percent disabling where extension is limited to 10 degrees; and noncompensable where extension is limited to 5 degrees. 38 C.F.R. § 4.71a. During the pendency of this appeal the diagnostics codes in 38 C.F.R. § 4.71a have been revised, pertinent to this case DCs 5257 and 5262. Prior to February 7, 2021 revision, Diagnostic Code 5257 contemplated "other impairment" of the knee including recurrent subluxation or lateral instability. Under Diagnostic Code 5257, where impairment is severe, moderate or slight, disability evaluations of 30, 20, and 10 percent are assigned, respectively. 38 C.F.R. § 4.71a. From February 7, 2021, Diagnostic Code 5257 contemplates "other impairment" of the knee including (1) recurrent subluxation or instability and (2) patellar instability. For recurrent subluxation or instability, 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 warrants a 30 percent rating. A 20 percent rating is warranted if the veteran exhibits one of the following: (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 either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 10 percent rating is warranted if the veteran exhibits 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. For patellar instability, 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 warrants a 30 percent rating. A 20 percent rating is warranted if the veteran has a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace, cane, or walker. A 10 percent rating is warranted if the veteran has 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. Prior to February 7, 2021, Diagnostic Code 5262 contemplated impairment of the tibia and fibula, assigning a 40 percent rating for nonunion of the tibia and fibula, and 10, 20, and 30 percent ratings for slight, moderate or marked knee or ankle disabilities. The words "slight," "moderate," "severe," and "marked" as used in the various diagnostic codes are not defined in the VA Rating Schedule. From February 7, 2021, the revised Diagnostic Code 5262 contemplates impairment of the tibia and fibula, assigning a 40 percent rating for nonunion of the tibia and fibula with loos emotion requiring brace. A 30 percent rating is assigned for medial tibial stress syndrome (MTSS), or shin splints, requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, both lower extremities. A 20 percent rating is assigned for MTSS, or shin splints, requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, one lower extremity. A 10 percent rating is assigned for MTSS, or shin splints, requiring treatment for no less than 12 consecutive months, and unresponsive to either shoe orthotics or other conservative treatment, one or both lower extremities. A 0 percent rating is assigned for MTSS, or shin splints, requiring treatment less than 12 consecutive months, one or both lower extremities. Under Diagnostic Code 5256, disability ratings are assigned when ankylosis is present. Diagnostic Code 5258 provides a 20 percent disability rating when a dislocated semilunar cartilage is present with frequent episodes of "locking," pain, and effusion into the joint. Diagnostic Code 5259 provides for a 10 percent disability rating when semilunar cartilage has been removed and related symptoms are present. A 10 percent disability rating is assigned under Diagnostic Code 5263 when genu recurvatum is identified. Diagnostic Code 5003 provides that degenerative arthritis established by X-ray findings is to be evaluated on the basis of limitation of motion under the appropriate diagnostic code 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 code, an evaluation 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 DC 5003. 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 10 percent evaluation is assignable for X-ray evidence of involvement of arthritis of two or more major joints or two or more minor joint groups. A 20 percent evaluation is assignable for X-ray evidence of involvement of arthritis of two or more major joints or two or more minor joint groups, with occasional incapacitating episodes. 38 C.F.R. § 4.71a. Notes (1) and (2) under Diagnostic Code 5003 provides the following: Note (1) provides that the 20 percent and 10 per cent ratings based on X-ray findings, above, will not be combined with ratings based on limitation of motion. Note (2) provides that the 20 percent and 10 percent ratings based on X-rays findings, above, will not be utilized in rating conditions listed under Diagnostic Codes 5013 to 5024, inclusive. VA's Office of General Counsel has provided guidance concerning increased rating claims for knee disabilities. VA's General Counsel interpreted that compensating a claimant for separate functional impairment under Diagnostic Code (DC) 5257 and 5003 does not constitute pyramiding. See VAOPGCPREC 23-97. Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition. See Esteban, 6 Vet. App. 259, 262; Lyles, 29 Vet. App. 107. In VAOPGCPREC 9-98, VA's General Counsel reiterated that, if a veteran has a disability rating under Diagnostic Code 5257 for instability of the knee, and there is also X-ray evidence of arthritis, a separate rating for arthritis could also be based on painful motion under 38 C.F.R. §§ 4.59. In addition, the General Counsel considered a hypothetical situation in which a knee disability was evaluated under Diagnostic Code 5259 that was productive of pain, tenderness, friction, osteoarthritis established by X-rays, and a slight loss of motion. For the purposes of the hypothetical, it was assumed that Diagnostic Code 5259 did not involve limitation of motion. Given the findings of osteoarthritis, the General Counsel stated that the availability of a separate evaluation under Diagnostic Code 5003 in light of sections 4.40, 4.45, 4.59 must be considered. See Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). Absent X-ray findings of arthritis, limitation of motion should be considered under Diagnostic Codes 5260 and 5261. The claimant's painful motion may add to the actual limitation of motion so as to warrant a rating under Diagnostic Codes 5260 or 5261. The VA General Counsel further noted in VAOPGCPREC 9-98 that the removal of the semilunar cartilage may involve restriction of movement caused by tears and displacements of the menisci, but that the procedure may result in complications such as reflex sympathetic dystrophy, which can produce loss of motion. Therefore, limitation of motion is a relevant consideration under Diagnostic Code 5259, and the provisions of 38 C.F.R. §§§ 4.40, 4.45, and 4.59 must be considered. The Veteran is in receipt of a 10 percent rating for the right knee limitation of flexion disability under the substantive rating criteria of DC 5003 (mislabeled as DC 5260) from April 3, 2009 and a 0 percent rating for the right knee limitation of extension disability from April 3, 2009. There has been a confusing application of diagnostic codes in this case, while the most recent codesheet indicates that the Veteran has a 10 percent disability rating coded under 5260, there is no evidence of compensable limitations of flexion or compensable limitations of extension. As such, the right knee arthritis disability should be properly coded under DC 5003 for painful arthritis that limits to a noncompensable degree, rather than compensable limitation of flexion under DC 5260. The Board is not changing the DC in this case, but is making a finding that the 10 percent rating previously assigned for the right knee arthritis disability in fact was made using DC 5003 criteria. The Veteran appeals for a higher rating than 10 percent for the right knee arthritis disability. 1. Rating Right Knee Flexion from April 3, 2009 After a review of all the evidence, the Board finds that, for the entire rating period on appeal from April 3, 2009, the right knee limitation of flexion disability manifested in arthritis that limited flexion between 60 and 115 degrees, warranting a 10 percent disability rating under DC 5003 for this noncompensable limitation of motion. See December 2009 VA Examination (indicating that the Veteran has arthritis in the right knee and measuring flexion at 90 degrees); April 2014 VA Examination (indicating that the Veteran has arthritis in the right knee and measuring flexion at 115 degrees); June 2019 VA Examination (indicating that the Veteran has arthritis in the right knee and measuring flexion at 90 degrees); January 2020 VA Examination (indicating that the Veteran has arthritis in the right knee and measuring flexion initially at 75 degrees and at 65 degrees after repetitive use); December 2020 VA Examination (indicating that the Veteran has arthritis in the right knee and measuring flexion initially at 85 degrees and at 80 degrees after repetitive); March 2021 VA Examination (indicating that the Veteran has arthritis in the right knee and measuring flexion initially at 70 degrees and at 60 degrees after repetitive use). The Board finds that the current limitation of flexion disability rating already takes into account the reported the functional limitations associated with the right knee, including pain, fatigue, weakness, and incoordination. Based on the foregoing, the Board finds that the criteria for a higher initial rating in excess of 10 percent for the right knee flexion disability from April 3, 2009 have not been met; as such, the claim must be denied. 2. Rating Right Knee Extension from April 3, 2009 After a review of all the evidence, the Board finds that, for the entire rating period on appeal from April 3, 2009, the right knee limitation of extension disability manifested in extension between 0 and 10 degrees, warranting a 0 percent disability rating. See December 2009 VA Examination (Measuring extension at 0 degrees); April 2014 VA Examination (Measuring extension at 5 degrees); June 2019 VA Examination (Measuring extension at 5 degrees); January 2020 VA Examination (Measuring extension at 0 degrees); December 2020 VA Examination (Measuring extension at 10 degrees); March 2021 VA Examination (Measuring extension at 0 degrees). Although the Veteran's right knee extension manifested a single instance of extension limited to 10 degrees, the preponderance of the evidence reals a range of motion (extension) of the right knee at 5 degrees or better, warranting no more than a noncompensable rating. Based on the foregoing, the Board finds that the criteria for a higher initial rating in excess of 0 percent for the right knee extension disability from April 3, 2009 have not been met; as such, the claim must be denied. 3. Rating Right Knee Instability from March 3, 2021 After a review of all the evidence, the Board finds that, from March 3, 2021, the right knee instability disability manifested in patellar instability after surgical repair that requires a prescription for a walker. With regard to the new rating criteria of DC 5257 that became final on February 7, 2021, the March 3, 2021 VA examination indicates that the Veteran required constant use of a walker for mobility after arthroscopic right knee surgery. This meets the revised rating criteria for a 20 percent disability rating under the revised DC 5257 that became final on February 7, 2021. Lay and medical evidence of record prior to March 3, 2021, indicates that the Veteran had no lateral instability, recurrent subluxation, or the prescription of an assisted device, with all instability testing producing normal results. See April 2009 Private Treatment Records; December 2009 VA Examination; April 2014 VA Examination; June 2019 VA Examination; January 2020 VA Examination; December 2020 VA Examination. Although the use of a walker was noted in the 2020 exams, there is no indication that a prescription was issued for this device. Nevertheless, the revised version of the regulation can be applied no earlier than the effective date of change (February 7, 2021), and the evidence prior to the March 3, 2021 examination does not meet the criteria for a separate rating under DC 5257. Even though the Veteran may have used a walker, the testing of record noted normal findings. Based on the foregoing, the Board finds that the criteria for a separate compensable rating of 20 percent for the right knee instability disability, from March 3, 2021, have been met; the claim must be granted. (Continued on the next page) No Other Separate or Higher Right Knee Ratings The evidence of record does not establish, and the Veteran does not contend, that the right knee exhibited ankylosis, dislocation or removal of semilunar cartilage, nonunion or malunion of the tibia and fibula, medial tibial stress syndrome (MTSS) or shin splints, or genu recurvatum for the rating period on appeal, from April 3, 2009, to warrant separate compensable disability ratings. See December 2009 VA Examination; April 2014 VA Examination; June 2019 VA Examination; January 2020 VA Examination; December 2020 VA Examination; March 2021 VA Examination. See 38 C.F.R. § 4.71a Diagnostic Codes 5256, 5258, 5259, 5262, or 5263. A.M. CLARK Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Costantino, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.