Citation Nr: 22016128 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 15-43 457 DATE: March 21, 2022 ORDER A rating higher than 10 percent for left knee, traumatic arthritis with patellofemoral syndrome, from January 30, 2013 to the present, is denied. A 20 percent rating for left knee instability, from January 30, 2013 to the present, is granted. An initial 10 percent rating for left knee, limitation of flexion, from December 17, 2021 to the present, is granted. FINDINGS OF FACT 1. From January 30, 2013 to the present, the evidence shows left knee arthritis established by x-ray findings without incapacitating exacerbations. 2. From January 30, 2013 to the present, the evidence shows moderate impairment from subluxation or lateral instability of the left knee. 3. From December 17, 2021 to the present, the evidence shows left knee flexion limited to 45 degrees considering additional limitation caused by flare-ups. CONCLUSIONS OF LAW 1. From January 30, 2013 to the present, the criteria for a rating higher than 10 percent for left knee, traumatic arthritis with patellofemoral syndrome, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5010-5003. 2. From January 30, 2013 to the present, the criteria for a 20 percent rating for left knee instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, DC 5257. 3. From December 17, 2021 to the present, the criteria for an initial 10 percent rating for left knee, limitation of flexion, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, DC 5260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1953 to August 1959. This matter was previously before the Board of Veterans' Appeals (Board) in May 2021 when the issues of ratings higher than 10 percent for left knee traumatic arthritis with patellofemoral syndrome, and left knee instability were remanded for a new VA knee examination to determine the current nature of the Veteran's left knee condition. In accordance with the May 2021 Board remand, a VA knee examination was provided in December 2021. A December 2021 Regional Office (RO) rating decision granted a separate noncompensable rating for left knee, limitation of flexion, effective December 17, 2021. Further development having been completed as directed; the matter is once again before the Board. After review of the evidence, the Board has determined the following: A rating higher than 10 percent for left knee, traumatic arthritis with patellofemoral syndrome, from January 30, 2013 to the present, will be denied because, at worst, the evidence shows left knee arthritis established by x-ray findings without incapacitating exacerbations. A 20 percent rating, but not higher, for left knee instability, from January 30, 2013 to the present, will be granted because the evidence shows moderate impairment from subluxation or lateral instability of the left knee. An initial 10 percent rating, but not higher, for left knee, limitation of flexion, from December 17, 2021 to the present, will be granted because the evidence shows flexion limited to 45 degrees considering additional limitation caused by flare-ups. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. While a veteran's entire history is reviewed when assigning a disability rating, where service connection has already been established and an increase in the rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). In rating disabilities of the musculoskeletal system, it is necessary to consider, subject to the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity, or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing, and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that 38 C.F.R. § 4.59 applies to disabilities other than arthritis). In determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the appeal, the assignment of staged ratings is necessary. 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 veteran. 38 C.F.R. § 4.3. 1. A rating higher than 10 percent for left knee, traumatic arthritis with patellofemoral syndrome, from January 30, 2013 to the present, is denied. 2. A 20 percent rating for left knee instability, from January 30, 2013 to the present, is granted. 3. An initial 10 percent rating for left knee, limitation of flexion, from December 17, 2021 to the present, is granted. The Veteran filed a supplemental claim for increased ratings for his service-connected left knee conditions on January 30, 2013. At that time, his left knee, traumatic arthritis with patellofemoral syndrome, and left knee instability disabilities were each rated as 10 percent disabling, under DC 5010 and 5257 respectively. The period on appeal has been previously determined as beginning on January 30, 2013, and this determination is not in dispute. Therefore, the period on appeal is from January 30, 2013 to the present, and the following analysis will address the nature and severity of the Veteran left knee condition during this period only. As noted above, a December 2021 rating decision granted a separate noncompensable rating for left knee, limitation of flexion, under DC 5260, effective December 17, 2021. The Veteran contends that his left knee condition is worse than that which is contemplated by his current ratings. For the following reasons, a rating higher than 10 percent, from January 30, 2013 to the present, for left knee, traumatic arthritis with patellofemoral syndrome, is not warranted, and the claim is denied; a 20 percent rating, but not higher, from January 30, 2013 to the present, for left knee instability, is warranted, and the claim is granted; and a 10 percent rating, but not higher, for left knee, limitation of flexion, from December 17, 2021 to the present, is warranted, and the claim is granted. DC 5010 represents arthritis due to trauma, substantiated by x-ray findings, which in turn is to be rated under DC 5003 as degenerative arthritis (hypertrophic or osteoarthritis). 38 C.F.R. § 4.71a. Pursuant to DC 5003, arthritis established by x-ray findings will be rated based on limitation of motion of the specific joint involved. When, however, the limitation of motion of the specific joint 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. 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, x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations warrants a 20 percent evaluation. X-ray evidence of involvement of two or more major joints or two or more minor joints warrants a 10 percent evaluation. 38 C.F.R. § 4.71a. Note (1) and Note (2) provide that the 20 percent and 10 percent ratings based on X-ray findings will not be combined with ratings based on limitation of motion and are not to be utilized in rating conditions listed under DCs 5013 to 5024. Id. For rating disability from arthritis, the knee is considered a major joint. See 38 C.F.R. § 4.45. Standard motion of a knee joint is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. Limitation of leg motion is governed by DCs 5260 and 5261. DC 5260 concerns limitation of leg flexion. DC 5260 provides for a zero percent rating where flexion of the leg is only limited to 60 degrees. For a 10 percent rating, flexion must be limited to 45 degrees. A 20 percent rating is warranted where flexion is limited to 30 degrees. A 30 percent rating may be assigned where flexion is limited to 15 degrees. DC 5261 provides for a zero percent rating where extension of the leg is limited to five degrees. A 10 percent rating requires extension limited to 10 degrees. A 20 percent rating is warranted where extension is limited to 15 degrees. A 30 percent rating may be assigned where extension is limited to 20 degrees. For a 40 percent rating, extension must be limited to 30 degrees. Finally, where extension is limited to 45 degrees a 50 percent rating may be assigned. Under DC 5257, a 10 percent rating is warranted for slight impairment from subluxation or lateral instability. A 20 percent rating is warranted for moderate impairment from subluxation or lateral instability. A maximum, 30 percent rating is warranted for severe impairment from recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, DC 5257. In the January 2013 supplemental claim of increased ratings for service-connected left knee conditions, the Veteran reported that he is unable to bend or stand on his left knee, and that if he puts weight onto the knee, "it goes out from under me [and] feels like it hyperextends at times." An April 2013 VA primary care note shows that the Veteran reported that his left knee pain, to include its duration, is progressing, and he said he used a cane for walking. He reported that he recently fell twice when attempting to get into and out of a fishing boat. In a June 2013 statement, the Veteran reported that his left knee condition, to include pain, had worsened. He stated that he could not rise without using his arms for support, and that he could not walk on uneven ground. He said he had difficulty walking up and down stairs. An October 2013 VA knee examiner noted the Veteran had left knee chondromalacia patella, and degenerative joint disease (DJD). The Veteran reported that he is no longer able to fish because of his left knee condition. Flare-ups were reported as medial joint line (MJL) pain and occasional swelling, lasting a few hours per episode. Initial range of motion (ROM) measurements were recorded as flexion from 0 to 90 degrees, with objective evidence of pain at 80 degrees, without limitation of extension. ROM measurements after repetitive use testing were the same as those recorded on initial ROM testing. However, the examiner noted that the Veteran had functional loss/impairment in the form of less movement than normal and pain on movement. The examiner also noted that the Veteran had tenderness or pain to palpation of the joint line or soft tissues of the left knee. Muscle strength was normal, five out of five, on flexion and extension. Joint stability testing revealed normal results. Evidence and a history of recurrent patellar subluxation/dislocation was denied. The Veteran denied having "shin splints," stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment. The examiner did not find meniscal conditions and the Veteran denied a history of joint replacement and other surgical procedures. The Veteran had a moderate antalgic gait compensation on the left side with heavy reliance on the use of a cane for weightbearing on the left side. The Veteran reported he regularly used a cane. The examiner noted that available imaging studies showed the degenerative or traumatic arthritis. There was no x-ray evidence of patellar subluxation and no other significant diagnostic findings. In terms of functional impact of the condition on the Veteran's ability to work, the examiner noted that prolonged weight bearing, or walking would be problematic, but sedentary work should be tolerable. The examiner noted that there were some limited functions on initial movements of 50 degrees of flexion, but with no additional loss of movements with repetition. The examiner also noted that the Veteran did not have a flare-up during the examination, and that an opinion on additional limitations caused by flare-ups could not be provided without resorting to mere speculation. In December 2013, the Veteran reported that he was unable to walk on uneven surfaces, even with the use of a cane, and had difficulty walking stairs. He reported that he recently disposed of his fishing boat because he was unable to get into and out of the boat by himself. A December 2013 VA orthopedic record shows that the Veteran underwent a left knee corticosteroid (Depomedrol) injection procedure. His left knee ROM was 0 to 120 degrees. The examiner noted that the left knee had stable ligaments, quadricep muscle strength of five out of five, and moderate crepitus. The examiner noted that an x-ray, performed the same day, shows tricompartmental osteoarthritis, worse at the patellofemoral and MJL. A June 2014 VA orthopedic record shows that the Veteran reported that his December 2013 steroid injection provided only brief relief. He had a left knee injection (Hyalgan) at the time. In a later June 2014 VA orthopedic record, the Veteran reported that his first Hyalgan injection reduced his pain in the area it was injected but caused pain in a new area. The Veteran underwent a second Hyalgan injection at the time, and a third Hyalgan injection the following month. During a February 2015 VA orthopedic consultation, the Veteran reported that the series of Hyalgan injections did not help his condition, nor did steroid injections. The Veteran stated that he was not interested in a total knee replacement. A March 2015 VA primary care note shows that the Veteran reported that his left knee pain was unchanged. He continued the use of a cane. A September 2015 VA orthopedic record shows that the Veteran reported that he drove to his appointment, and that he indicated that he is happy with his decision not to have a knee replacement. In a statement received in December 2015, the Veteran reported that he was sometimes unable to walk. During the December 2015 VA knee examination, the examiner diagnosed left knee, patellofemoral pain syndrome. The Veteran reported that he was not having a flare-up at the time of the examination. However, he reported that he has flare-ups, which are caused by walking farther than one block, standing longer than 15 minutes, and sitting for prolonged periods. Initial ROM measurements were flexion from 0 to 80 degrees, without limitation of extension. ROM itself was noted not to contribute to functional loss. However, pain caused functional loss. Evidence of pain with weight bearing was noted. There was tenderness to the MJL and compression of the patellofemoral joint. There was no crepitus. There was no additional functional loss or ROM on repetitive use. The Veteran was not examined on repeated use over time, and the examination was not conducted during a flare-up. The examiner stated he could not report functional loss during flare-ups without mere speculation because the Veteran did not have a flare-up at the time of the examination. Muscle strength was normal, five out of five, on flexion and extension, and there was no muscle atrophy. Ankylosis was also denied. Joint stability testing revealed normal results. The Veteran denied recurrent subluxation, lateral instability, and recurrent effusion. The Veteran also denied recurrent patellar dislocation, "shin splints," stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment. The examiner noted no history of or current meniscal condition. The examiner indicated that the Veteran's condition had no impact on his ability to perform any type of occupational task. During the April 2018 Board hearing, the Veteran testified that symptoms of his left knee condition had worsened, to include reported hyperextension, swelling, difficulty getting up from a squatted position, inability to put pressure/weight on his left leg, and decreased ROM. He also testified to difficulty traversing stairs. During the December 2021 VA knee examination, the examiner diagnosed left knee traumatic arthritis with patellofemoral syndrome, and instability. The Veteran reported current constant, aching, left knee pain, and he used a cane. He stated that he cannot do anything with his left knee, and that he cannot put pressure on it because it is unstable, gives out, or hyperextends without warning. The Veteran added that his left knee was "useless." The Veteran stated that he was careful when walking on uneven terrain and was unable to traverse stairs. The Veteran reported that flare-ups occur with any pressure applied. He reported a typical duration of a flare-up as lasting from one to seven days and described pain with flare-ups as moderate to severe. He also reported that cold weather and barometric changes increases his stiffness and pain. He stated that flare-ups are alleviated with time and rest, and that he does not use any medication to treat his condition. Rather, he stated "I just live with it." He also reported having functional loss or impairment in the form as described above. The Veteran reported he had a history of instability or recurrent subluxation of the left knee, in that his knee gives out and he has a history of hyperextension. He denied frequent effusion of the knee. Initial ROM measurements were flexion from 0 to 70 degrees, without limitation of extension. The examiner noted that limitation of ROM contributes to a functional loss because the Veteran has pain when walking, standing for prolonged periods, climbing, squatting, and changing positions. The examiner noted the Veteran's knee was painful on flexion and extension. Passive ROM measurements were the same as those recorded on initial ROM testing. Evidence of pain was noted on flexion and extension, and with weight bearing, non-weight bearing, and active and passive motion, which causes functional loss due to increased pain. There was no evidence of crepitus. The examiner noted tenderness to the patellar tendon, joint lines, quadriceps tendon, and lateral and medial collateral ligaments. The patella apprehension test was positive. The Veteran complained of severe pain during the ROM testing and to palpation. The Veteran had no additional loss of function or ROM on observed repetitive use testing. The Veteran was not examined on repeated use over time. However, the examiner noted that pain, fatigability, weakness, and lack of endurance cause functional loss on repeated use over time. The examiner estimated additional limitation of ROM on repeated use over time as flexion to 65 degrees. No additional limitation on extension was indicated. The examination was not conducted during a flare-up. However, the examiner noted that pain, fatigability, weakness, and lack of endurance cause functional loss with flare-ups. The examiner estimated additional limitation of ROM with flare-ups as flexion to 55 degrees but noted no additional limitation on extension. Additional factors contributing to the Veteran's left knee condition were interference with sitting and standing, disturbance of locomotion, less movement than normal, and weakened movement. There was no muscle atrophy or ankylosis but the Veteran reported recurrent subluxation or persistent instability. However, he denied recurrent patellar instability. He also denied recurrent patellar dislocation, "shin splints," stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment and the examiner noted no meniscal conditions. The examiner noted that the Veteran has audible grinding and popping in the left knee. The examiner noted that the Veteran cannot walk on uneven ground, cannot walk on the beach, cannot stand for prolonged periods, climbing was problematic, and squatting and changing positions causes pain. The examiner noted that the Veteran's left knee pain begins at 60 degrees and ends at 70 degrees, and that flare-ups cause an additional loss of ROM of 10 degrees. The examiner noted that the left knee recurrent subluxation is slight, there is no history of lateral instability, but there are findings of joint instability. However, the examiner noted that the anterior, posterior, medial, and lateral instability tests were normal. From January 30, 2013 to the present, a rating higher than 10 percent for left knee, traumatic arthritis with patellofemoral syndrome, is not warranted. Although the evidence shows left knee arthritis established by x-ray findings, the evidence does not show that the Veteran has had incapacitating exacerbations due to his left knee arthritis during the period. Therefore, a rating higher than 10 percent under DC 5010-5003 is not warranted at any time during the period, and the claim is denied. From January 30, 2013 to the present, a 20 percent rating for left knee subluxation/instability is warranted. The December 2021 VA examiner noted slight recurrent subluxation and a finding of joint instability, with no history of lateral instability. However, since January 2013, the evidence consistently shows symptoms of hyperextension, swelling, stiffness, difficulty with squatting, instability, buckling, grinding, and popping. The evidence therefore shows moderate subluxation and instability of the left knee throughout the entire period. Therefore, from January 30, 2013 to the present, a 20 percent rating is warranted under DC 5257, and the claim is granted to that extent. However, a higher rating is not warranted at any time during the period on appeal. The September 2015 VA orthopedic record shows that the Veteran drove to his appointment and, as of the December 2021 VA knee examination, the Veteran reported that he can work in his yard, but that he must be careful of uneven terrain. In addition, throughout the period on appeal, the evidence shows that the Veteran can bend his knee and walk, albeit with pain, difficulty, and reliance on the use of a cane. The evidence does not show severe impairment from subluxation or lateral instability, at any time during the period. Therefore, a rating higher than 20 percent under DC 5257 is not warranted, at any time during the period, and to this extent, the claim is denied. From January 30, 2013 to December 16, 2021, the evidence shows left knee, limitation of flexion, without limitation such as to meet the criteria for any rating under DC 5260, because the evidence does not show limitation of flexion limited to 60 degrees or less during the period. DC 5260 provides for a zero percent rating where flexion of the leg is only limited to 60 degrees. Indeed, the October 2013 VA examiner noted that there were some limited functions on initial movements of 50 degrees of flexion. However, the examiner noted that there was no additional loss of movements with repetition, and flexion was limited to 90 degrees, with objective evidence of pain at 80 degrees, on initial ROM testing. In addition, the December 2013 VA orthopedic record shows ROM measured as 0 to 120 degrees, and the December 2015 VA examination shows flexion limited to 80 degrees on initial ROM testing. Although the October 2013 VA examiner noted some limited functions on initial movements of 50 degrees of flexion, without additional loss of movements with repetition, the totality of the evidence during the period does not show flexion limited to 60 degrees or less. As such, the evidence shows that the Veteran's left knee, limitation of flexion, does not meet the rating criteria for any rating during the period under DC 5260. Therefore, from January 30, 2013 to December 16, 2021, a rating for left knee, limitation of flexion, is not warranted and, the claim is denied. From December 17, 2021 to the present, an initial 10 percent rating, but not higher, for limitation of flexion of the left knee is warranted. The evidence shows that the Veteran had limitation of flexion of, at worst, 45 degrees, considering additional limitation caused by flare-ups. A 10 percent rating is therefore warranted during the period under DC 5260. See DeLuca, 8 Vet. App. at 202. However, a rating higher than 10 percent is not warranted, at any time during the period, because the evidence does not show flexion limited to 30 degrees even considering additional limitation caused by flare-ups. Therefore, from December 17, 2021 to the present, a 10 percent rating for limitation of flexion is warranted and the claim is granted. Throughout the entire period on appeal, the evidence does not show any left knee, limitation of extension. Therefore, a separate rating under DC 5261 is not warranted at any time during the period on appeal. Throughout the entire period on appeal, the evidence shows that ankylosis has been denied, there is no indication of recurrent effusion into the joint associated with dislocated semilunar cartilage, and there is no indication of malunion of the tibia and fibula. Thus, separate ratings under DCs 5256, 5258, and 5262 are not warranted at any time during the period on appeal. Lastly, there is no evidence of genu recurvatum to warrant a higher or separate rating under DC 5263 at any time during the period on appeal. In conclusion, a rating higher than 10 percent, from January 30, 2013 to the present, for left knee, traumatic arthritis with patellofemoral syndrome, is not warranted and, to this extent, the claim is denied; a 20 percent rating, but not higher, from January 30, 2013 to the present, for left knee instability, is warranted and, to this extent, the claim is granted; and a 10 percent rating, but not higher, for left knee, limitation of flexion, from December 17, 2021 to the present, is warranted and, to this extent, the claim is granted. (CONTINUED ON THE NEXT PAGE) To the extent that the claims have been denied, the preponderance of the evidence is against the claims; there is no reasonable doubt to be resolved; and any further increased rating is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Timothy T. Emmart The Board's action is binding only in this case. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.