Citation Nr: 23005299
Decision Date: 01/27/23	Archive Date: 01/27/23

DOCKET NO. 18-29 559
DATE: January 27, 2023

ORDER

Entitlement to a rating in excess of 10 percent for a right knee disability is denied.

FINDING OF FACT

The Veterans right knee disability has been characterized by pain and flexion limited to 110 degrees and no instability has been noted.  

CONCLUSION OF LAW

The criteria for entitlement to a rating in excess of 10 percent for a right knee disability  have not been met.  38 U.S.C. §§ 1155, 2103, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code (DC) 5260.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served in the Marine Corps from October 1990 to October 1994 and the Army in October 2001 and from March 2002 to March 2003.

This case is before the Board of Veterans' Appeals (Board) on appeal from an April 2016 Regional Office (RO) rating decision.

This matter was previously remanded by the Board in 2022 for additional development, including a VA examination. As there has been substantial compliance with prior remand directives, this matter is properly before the Board for adjudication.

Increased Ratings 

Disability evaluations are determined by applying a schedule of ratings which is based on average impairment of earning capacity based on the specific diagnostic codes identifying the various disabilities. 38U.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. 38C.F.R. §4.7.

For musculoskeletal disabilities, a higher rating may be granted based on greater limitation of motion due to pain on use, including during flare-ups. 38C.F.R. §§4. 10, 4.40, 4.45; see also DeLuca v. Brown,8Vet. App.202 (1995). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability, and therefore, actually painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. See38C.F.R. §4.59. The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare-ups.

Regarding knee claims, a claimant who has arthritis and instability of the knee may be rated separately under DCs 5003 and 5257 or 5258/5259. See VAOPGCPREC 23-97. For example, when a knee disorder was already rated under DC 5257 (addressing lateral instability), a separate rating may be warranted if the Veteran's knee also shows limitation of motion which at least meets the criteria for a zero-percent rating under DC 5260 (flexion limited to 60 degrees or less) or 5261 (extension limited to 5 degrees or more).

Moreover, a separate rating could also be warranted under 38C.F.R. §4.59, based on x-ray findings of arthritis with painful motion. See VAOPGCPREC 9-98; see also Degmetich v. Brown, 104 F.3d 1328, 1331 (Fed. Cir. 1997). In addition, the General Counsel has also held that separate ratings may be granted based on limitation of flexion (DC 5260) and limitation of extension (DC 5261) of the same knee joint. VAOPGCPREC 09-04

1. Entitlement to a rating in excess of 10 percent for a right knee disability 

The Veteran contends that he is entitled to a higher rating for his right knee disability. Specifically, 

The Veterans right knee disability has been rated 10 percent under 38 C.F.R. § 4.59, DC 5014-5260 based on painful motion of the knee.

During the course of this appeal, the schedular rating for evaluating other impairments of the knee have been amended. Specifically, the criteria pertaining to recurrent subluxation or lateral instability of the knee under 38 C.F.R. § 4.71a , were amended effective February 7, 2021. See 85 Fed. Reg. 76, 453 (November 30, 2020).

As the Veteran's claim was received prior to the effective date of the regulation changes, the Board must consider the Veteran's knee disability under both the old and the revised rating criteria and must apply the old rating criteria if the result is more favorable to the Veteran. 38 U.S.C. § 5110 ; Kamas v. Derwinski, 1 Vet. App. 308, 313 (1991), overruled in part, Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Here, as the amended criteria include additional restrictions, the pre-amended criteria are more favorable and will be applied here.

Under the pre-amended criteria, in order to warrant an additional or different 10 percent rating for a right knee disability, the evidence must show:

	Slight recurrent subluxation or lateral instability (10 percent under DC 5257);

	Removal of semilunar cartilage, symptomatic (10 percent under DC 5259);

	Limitation of flexion of the leg to 45 degrees (10 percent under DC 5260); or

	Limitation of extension of the leg to 10 degrees (10 percent under DC 5261). 38 C.F.R. § 4.71a.

Under the pre-amended criteria, in order to warrant a rating in excess of 10 percent for a right knee disability, the evidence must show:

	Favorable ankylosis of the knee in full extension, or in slight flexion between 0 and 10 degrees (30 percent under DC 5256);

	Moderate recurrent subluxation or lateral instability (20 percent under DC 5257);

	Dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint (20 percent under DC 5258);

	Limitation of flexion of the leg to 30 degrees (20 percent under DC 5260); or

	Limitation of extension of the leg to 15 degrees (20 percent under DC 5261). 38 C.F.R. § 4.71a.

In this case, after a review of the record, the Board finds the requirements for an increased rating are not met under either standard.  First, the Veterans medical records from September 2007 to April 2018 to fail to demonstrate flexion limited to 60 degrees or less or extension limited to 10 degrees or more. Specifically, despite noting right knee pain and the occasional use of a knee brace, the Veteran denied swelling or mechanical problems. Further, the examination showed no recent reports of effusion. As such, increased ratings are not supported under DCs 5260 or 5261.

Next, the Veteran was given a VA examination in September 2022 where he was diagnosed with degenerative arthritis, other than posttraumatic, ACL tear status post repair, and meniscus tear status post repair. The Veteran stated that he will occasionally fall as his knee will lock up, but he does not take anything for pain and will use a brace on occasion. He stated that he has been told he will need knee replacement in future. Further, the Veteran reported flare ups that occur on occasion that are moderate to severe. Upon examination, the Veteran had right knee flexion to 130 degrees with evidence of painful motion, and no evidence of limitation of extension or pain on extension. During repeated use, the examiner estimated the Veterans range of motion as 120 degrees of flexion and 0 degrees and extension. During flare-ups the examiner estimated the Veterans range of motion as 110 degrees of flexion and 0 degrees extension. The examiner noted that the Veteran had less movement than normal, disturbance of locomotion, interference with standing, deformity, and impairment with squatting, stooping, and climbing, but there is no evidence that these functional limitations resulted in greater limitations in range of motion to support increased ratings under DCs 5260 or 5261.

The Board notes the Veterans argument that the September 2022 VA examiner did not take any new scans and that the examination reflects a progression of his previous diagnosis which supports an increase. However, the Board finds that the examiner performed range of motion testing on the Veteran and the results do not support increased ratings under DCs 5260 or 5261. Specifically, as discussed above, the Veteran did not exhibit limitation of flexion to 30 degrees of limitation of extension to 15 degrees. 

Based on a review of the record, there is no evidence of limitation of flexion or extension of the right knee so great as to warrant increased or additional limitations under DC 5260 or 5261, and the Veteran's painful range of motion is most appropriately contemplated by the 10 percent rating he receives under 38 C.F.R. § 4.59, DC 5260.

Additional separate ratings

Next, the Board has also considered whether any separate ratings are warranted. As an initial matter, separate ratings based on ankylosis, dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint, symptomatic removal of semilunar cartilage, impairment of tibia and fibula, or genu recurvatum are not warranted under DCs 5256, 5258, 5259, 5262, or 5263.

Specifically, in both medical treatment records and his VA examination throughout the period at issue, the evidence specifically indicates that the Veteran has no ankylosis, effusion, removal of semilunar cartilage, tibia or fibula impairment, or genu recurvatum.

Regarding instability, the Board also finds that a separate rating for recurrent subluxation or instability is not warranted under DC 5257.

As an initial matter, the pre-amended version of DC 5257 provides ratings for "slight," "moderate," or "severe" recurrent subluxation or lateral instability. However, neither the Diagnostic Code nor the overall rating schedule defines "slight," "moderate," and "severe." However, "slight" is generally defined as "small in kind or amount." Merriam-Webster's Collegiate Dictionary, 1173 (11th ed. 2003). "Moderate" is defined as "tending toward the mean or average amount." Id. at 798. "Severe" is generally defined as "of a great degree." Id. at 1140. However, the record fails to demonstrate that the Veteran's right knee disability exhibited such symptoms throughout the period at issue.

Specifically, medical records between September 2007 to April 2018 indicated that the Veteran owned a medial unloader brace but did not wear it very often. Further, while the Veteran reported in May 2016 that his knee goes out on him occasionally and testified during his Board hearing in May 2022 that he uses a metal knee brace and neoprene brace that he wears daily for pain, there is no evidence that the Veteran experienced "slight" recurrent subluxation or lateral instability. Specifically, during his most recent VA examination in September 2022, the examiner found that the Veteran had no effusions and found no evidence of subluxation or instability of his right knee. As such, a separate rating for subluxation or instability under DC 5257 is not warranted.

As such, additional or separate ratings under DCs 5256, 5257, 5258, 5259, 5261, 5262, or 5263 are not warranted.

The Board recognizes the Veterans representative's argument that the September 2022 VA examination was inadequate, and specifically that the examiner's statement that the Veteran's complete ligament tear repair successfully resolved the Veteran's knee instability is contrary to the medical evidence which demonstrates that the Veteran continued to experience post-operative knee instability and required physical therapy which did not fully resolve the condition. However, while the medical records in 2018 reflect that the Veteran only reported 50 percent improvement in stability after undergoing physical therapy, there are no medical records after 2018 that reflect instability of the Veteran right knee. Further, the Veteran was examined during his September 2022 VA examination and the examiner did not find instability of the Veterans right knee. 

The Board also recognizes the Veterans representative's argument that the examiner incorrectly reported that the Veteran is not prescribed a knee brace for his right knee instability and did not address the Veterans statement that his knee wobbles. However, during the Veterans September 2022 VA examination, the Veteran reported that he only occasionally uses a knee brace and that he will occasionally fall due to his knee locking up. Therefore, the Board finds that the Veterans September 2022 VA examination was adequate in determining whether an increased rating for the Veterans right knee disability based on range of motion and a rating for instability is warranted. 

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.

 

 

B.T. KNOPE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Vample, Erica