Citation Nr: 22014476 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 15-19 642 DATE: March 14, 2022 ISSUES Entitlement to an initial rating in excess of 10 percent for left knee instability. Entitlement to a rating in excess of 10 percent, prior to May 5, 2021, and in excess of 30 percent thereafter, for limited flexion of the left knee. ORDER Entitlement to an initial rating in excess of 10 percent for left knee instability is denied. Entitlement to a separate rating for left knee arthritis is denied. Entitlement to a 20 percent rating, but no higher, from September 8, 2011 to May 5, 2021, for limited flexion of the left knee is granted. Entitlement to a rating in excess of 30 percent, from May 5, 2021, for limited flexion of the left knee, is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) remanded. FINDINGS OF FACT 1. During the entire period on appeal, the Veteran's left knee disability has been manifested by slight instability, at its worst. 2. The Veteran is in receipt of a compensable rating for limitation of motion of his left knee with arthritis. 3. From September 8, 2011 to May 5, 2021, the Veteran's left knee flexion was to 30 degrees with objective evidence of painful, at its worst. 4. From May 5, 2021, the Veteran's left knee flexion has been manifested by limitation of flexion to 15 degrees, during a flare-up, at its worst. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for instability of the left knee have not been met or approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.27, 4.40, 4.59, 4.71a, Diagnostic Code 5009-5257. 2. The criteria for a separate compensable rating for left knee arthritis have not been met or approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.27, 4.40, 4.59, 4.71a, Diagnostic Code 5009-5257. 3. The criteria for a 20 percent rating, but no higher, from September 8, 2011 to May 5, 2021, for limitation of flexion of the left knee were met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.27, 4.40, 4.59, 4.71a, Diagnostic Code 5009-5260. 4. The criteria for a rating in excess of 30 percent, from May 5, 2021, for limitation of flexion of the left knee have not been met or approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.27, 4.40, 4.59, 4.71a, Diagnostic Code 5260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from October 1977 to September 1995. These matters come to the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In an August 2021 VA Form 21-8940, the claimed that his service-connected left knee disability, in part, contributed to his inability to sustain gainful employment. A claim for a total disability TDIU is part of an increased rating claim when such a claim is raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). As the record now raises a question of whether the Veteran is unemployable due to his service-connected left knee disability, a claim for a TDIU is properly before the Board. In a June 2021 rating decision, the RO granted a 30 percent rating, effective May 5, 2021, for left knee flexion. As this does not represent a grant of the maximum benefits sought, the Board finds that the matter remains on appeal. Increased Rating 1. Entitlement to an initial rating in excess of 10 percent for left knee instability. 2. Entitlement to a rating in excess of 10 percent prior to May 5, 2021, and in excess of 30 percent thereafter, for limited flexion of the left knee. The Veteran contends that he is entitled to an increased rating for his service-connected left knee disability because he suffers from limited range of motion and pain in his left knee. See August 2013 Notice of Disagreement. He also contends that he is entitled to a separate compensable rating for arthritis of a major joint. Id. For the reasons explained below, the Board finds that a 20 percent rating, but no higher, is warranted for the Veteran's limitation of flexion of the left knee. Knee disabilities may be rated under several different diagnostic codes (DCs 5256 through 5263). Currently, the Veteran is rated as 10 percent disabling under Diagnostic Code 5009-5257 for instability of the left knee and arthritis and 10 percent disabling prior to May 5, 2021, and 30 percent disabling thereafter for limitation of flexion under Diagnostic Code 5260. He was previously rated for limitation of flexion under Diagnostic Code 5009-5260. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. Here, DC 5009 applies to arthritis and instructs that the disability is to be rated under the appropriate diagnostic codes for the specific joint or joints involved, with a 10 percent rating where there is limitation of motion objectively confirmed by findings including satisfactory evidence of painful motion. Normal ranges of motion of the knee are to zero degrees in extension, and to 140 degrees in flexion. 38 C.F.R. § 4.71, Plate II. Under 38 C.F.R. § 4.71a, DC 5003, 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. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion. A rating of 20 percent is assigned for each such major joint or group of minor joints, with occasional incapacitating exacerbations, 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. Diagnostic Code 5256 provides ratings for ankylosis of the knee. Favorable ankylosis of the knee, with angle in full extension, or in slight flexion between zero degrees and 10 degrees, is rated 30 percent disabling. Unfavorable ankylosis of the knee, in flexion between 10 degrees and 20 degrees, is to be rated 40 percent disabling. Unfavorable ankylosis of the knee, in flexion between 20 degrees and 45 degrees, is rated 50 percent disabling. Extremely unfavorable ankylosis, in flexion at an angle of 45 degrees or more is to be rated 60 percent disabling. 38 C.F.R. § 4.71a. Diagnostic Code 5257 provides ratings for recurrent subluxation or lateral instability. Slight recurrent subluxation or lateral instability of the knee is rated 10 percent disabling; moderate recurrent subluxation or lateral instability of the knee is rated 20 percent disabling; and severe recurrent subluxation or lateral instability of the knee is rated 30 percent disabling. Diagnostic Code 5257 as revised and in effect after February 7, 2021 is substantially modified. The pertinent sections relating to lateral instability are as follows. 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 warranted for 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; (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 30 percent rating is warranted 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. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (after Feb. 7, 2021). Separate disability ratings are possible for arthritis with limitation of motion under Diagnostic Codes 5003 and instability of a knee under Diagnostic Code 5257. See VAOPGCPREC 23-97. When X-ray findings of arthritis are present and a veteran's knee disability is rated under Diagnostic Code 5257, the veteran would be entitled to a separate compensable rating under Diagnostic Code 5003 if the arthritis results in noncompensable limitation of motion and/or objective findings or indicators of pain. See VAOPGCPREC 9-98. Diagnostic Code 5258 provides a 20 percent rating for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. 38 C.F.R. § 4.71a. Diagnostic Code 5259 provides a 10 percent rating for symptomatic removal of the semilunar cartilage. Diagnostic Code 5260 provides ratings based on limitation of flexion of the leg. Flexion of the leg limited to 60 degrees is rated noncompensably (zero 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. 38 C.F.R. § 4.71a. See VAOPGCPREC 09-04. (separate ratings may be granted based on limitation of flexion (Diagnostic Code 5260) and limitation of extension (Diagnostic Code 5261) of the same knee joint). Diagnostic Code 5261 provides ratings based on limitation of extension of the leg. Extension of the leg limited to 5 degrees is rated noncompensably (zero 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. Diagnostic Code 5262 provides ratings based on impairment of the tibia and fibula. Malunion of the tibia and fibula with slight knee or ankle disability is rated 10 percent disabling; malunion of the tibia and fibula with moderate knee or ankle disability is rated 20 percent disabling; and malunion of the tibia and fibula with marked knee or ankle disability is rated 30 percent disabling. Nonunion of the tibia and fibula with loose motion, requiring a brace, is rated 40 percent disabling. 38 C.F.R. § 4.71a. Diagnostic Code 5263 provides a maximum 10 percent evaluation for genu recurvatum. VA's General Counsel has also held that separate ratings may be assigned in cases where a service-connected knee disability includes both a compensable limitation of flexion under DC 5260 and a compensable limitation of extension under DC 5261, provided that the degree of disability is compensable under each set of criteria. VAOPGCPREC 9-2004; 69 Fed. Reg. 59990 (2004). VA General Counsel has also held that separate ratings may be assigned in cases where the service-connected knee disability includes both arthritis and instability. VAOPGCPREC 23-97 (July 1, 1997). When a knee disorder is already rated under DC 5257, the Veteran must also have limitation of motion under DC 5260 or 5261 in order to obtain a separate rating for arthritis. If the Veteran does not at least meet the criteria for a zero percent rating under either of those codes, there is no additional disability for which a rating may be assigned. If a Veteran has a disability rating under DC 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. VAOPGCPREC 9-98. Given the findings of osteoarthritis, the availability of a separate evaluation under DC 5003 in light of sections 4.40, 4.45, 4.59 must be considered. Lichtenfels v. Derwinski, 1 Vet. App. 484. Absent x-ray findings of arthritis, limitation of motion should be considered under DCs 5260 and 5261. The claimant's painful motion may add to the actual limitation of motion so as to warrant a rating under DCs 5260 or 5261. It should also be noted that 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). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. The Veteran was afforded VA examinations in October 2011, May 2019, February 2020, and May and September 2021. He reported symptoms of increased pain, swelling, difficulty walking and maintaining balance. Oct 2011 VA examination: Flexion to 45 degrees, but objective evidence of painful motion starting at 30 degrees and extension to 120 degrees. No evidence of instability, subluxation. May 2019 VA examination: normal range of motion with no pain noted and no evidence of instability. February 2020 VA examination: Flexion to 120 degrees and extension to 120 degrees. There was evidence of pain in weight bearing, but no evidence of instability. May 2021 VA examination: Flare ups l knee daily. Moderate to severe and last 1-2 hours. Difficulty walking even short distances. No instability or subluxation. Flex to 60 degrees ext 0 degrees. Pain in weight bearing, passive motion, active motion, straightening knee. Repeated use over time flex to 40 degrees. During flare-up flex to 15 degrees Sept 2021 VA examination: No testing for left knee. The Veteran endorsed episodes of flare-ups with severity of mild to severe and which last all day. The Veteran reported inability to kneel. Letter and records from Dr. K.W. indicate bilateral knee pain, but right more severe than left knee (pain 4 on a 10-point scale) Based on the foregoing, the Board finds that a 20 percent rating, but no higher, is warranted, from September 8, 2011 (date of claim) to May 5, 2021 (day of the May 2021 VA examination) for the Veteran's left knee due to limitation of flexion under Diagnostic Code 5260. In that regard, the Board credits the October 2011 VA examination report which shows that the Veteran's left knee flexion was limited at the point where objective evidence of painful motion began 30 degrees. Under Diagnostic Code 5260, a 20 percent rating is warranted for limitation of flexion of the knee to 30 degrees. That being said, there is no evidence that between September 8, 2011 and May 4, 2021, the Veteran's limitation of flexion was limited to 15 degrees or less which would warrant a 30 percent rating. From May 5, 2021 (date of VA examination), the Board finds that although the criteria for a 30 percent rating was shown, a rating in excess of 30 percent is not warranted. The Board credits the May 2021 VA examination report which reflected limitation of flexion to 15 degrees which equates to a 30 percent rating. This is the highest rating available under Diagnostic Code 5260 and there is no evidence that the Veteran is entitled to a higher rating under any other diagnostic code based on his reported symptoms. In that regard, although the Veteran reported the inability to kneel at his September 2021 VA examination, there is no evidence of ankylosis of the knee under Diagnostic Code 5256. Further, the Board finds that a rating in excess of 10 percent is not warranted for the Veteran's left knee instability. In order to be eligible for a rating in excess of 10 percent, there must be evidence of moderate recurrent subluxation or lateral instability. During the course of the period on appeal, the examiners have assessed the Veteran as having no instability or slight instability, at its worst. The Board credits the examination reports as they appear to provide an accurate assessment of the Veteran's left knee symptoms. The Board also credits the Veteran's treating doctor, Dr. K.W.'s assessment that the Veteran's left knee symptoms are not as severe as his service-connected right knee symptoms. This is demonstrated by the VA examination reports discussed above. The Board has further considered whether factors including functional impairment and pain as addressed under 38 C.F.R. §§ 4.40 and 4.45 would warrant higher ratings. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board takes notice of the Veteran's reports of increased pain, swelling, difficulty walking and maintaining balance due to the symptoms of his left knee disability. However, the medical evidence does demonstrate loss of function due to pain, weakness, etc. equate to limitation of flexion to 15 degrees or less, prior to May 5, 2021, or greater than 15 degrees of less, from May 5, 2021. The Board further notes the Veteran's diagnosis of arthritis. However, the Board finds that the Veteran is not entitled to a higher rating or separate rating under Diagnostic Code 5003 for arthritis. Diagnostic Code 5003 instructs that arthritis will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved, unless the limitation of motion is noncompensable under the code. Here, the Veteran does experience limitation of motion which is rated as compensable under Diagnostic Code 5260. REASONS FOR REMAND 1. Entitlement to a TDIU is remanded. In an August 2021 VA Form 21-8940, the Veteran indicated that his service-connected back and knee disabilities precluded employment. He listed his previous places of employment. In February 2022, the RO attempted to contact the Veteran's previous employers. In a March 2022 letter, one of the employers requested that the RO provide clarification of the information requested. Therefore, the Board will remand the matter to afford the RO an opportunity to follow up with the Veteran's former employers. The matters are REMANDED for the following action: Contact each employer identified on the Veteran's August 2021 VA Form 21-8940 and request such complete and return to VA an employer information form (VA Form 21-4192). Follow-up should be accomplished as appropriate to ensure the necessary information is obtained with regard to each employer identified by the Veteran. See March 2022 letter from Rogers City Country Club. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Baskerville 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.