KNEE IMPAIRMENT OF

K. OSBORNE · 2021 · Case ID: 21023798

DENIED

Summary

The veteran, who served from December 1976 to February 1981 and again from March 1990 to October 1997, appeals the denial of an increased rating for his left knee traumatic arthritis, which is currently rated at 10 percent disabling. The veteran sought a higher rating based on increased pain, swelling, and functional limitations, particularly during flare-ups. The Board reviewed multiple VA examinations from January 2014, October 2015, and October 2020, as well as private medical records and the veteran's testimony. The January 2014 exam noted flexion limited to 50 degrees, with pain and functional limitations after repetitive use or during flare-ups. The October 2015 exam showed flexion limited to 110 degrees, with pain and functional limitations during flare-ups. The October 2020 exam, conducted due to the veteran's Alzheimer's disease, noted pain limiting functional ability after repeated use, but no specific range of motion measurements were taken. The Board found that the evidence did not support a rating higher than 10 percent, as the veteran's flexion limitations did not meet the criteria for a 20 percent rating (limited to 30 degrees), and there was no objective evidence of instability or ankylosis. The Board also noted that painful motion is already contemplated by the 10 percent rating. As the preponderance of the evidence was against the claim, the benefit-of-the-doubt standard did not apply, and the claim for an increased rating was denied.

Rationale

Flexion limited to 50 degrees, not meeting criteria for 20% rating (30 degrees); No objective evidence of instability or ankylosis; Painful motion is compensated by the 10% rating

Special Benefit

NO SPECIAL BENEFIT

Docket No.

15-19 418

Full Decision Text

Citation Nr: 21023798
Decision Date: 04/21/21 Archive Date: 04/21/21

DOCKET NO. 15-19 418
DATE: April 21, 2021

ORDER

Entitlement to an evaluation in excess of 10 percent for traumatic left knee arthritis, status post arthroscopic meniscectomy, is denied.

FINDING OF FACT

The Veteran’s left knee has exhibited flexion limited to no less than 50 degrees; moreover, there is no indication of left knee ankylosis, and the preponderance of the evidence is against a finding that the Veteran exhibited left knee limitation of extension or instability.

CONCLUSION OF LAW

The criteria for entitlement to a rating in excess of 10 percent for left knee traumatic arthritis are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5055, 5257, 5260, 5261.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from December 1976 to February 1981 and from March 1990 to October 1997. This matter was last before the Board in June 2020. It was remanded to the Agency of Original Jurisdiction (AOJ) for further development of the record. Following the issuance of a November 2020 supplemental statement of the case continuing the denial of an increased rating, the case was returned to the Board for its adjudication.

The Veteran testified at a February 2016 hearing before the undersigned Veterans Law Judge; a copy of the transcript of that hearing is of record.

Left Knee Traumatic Arthritis

The Veteran is seeking an increased rating for his left knee traumatic arthritis, currently rated as 10 percent disabling. He filed a claim for increase in November 2013, which begins the period of appellate review now before the Board (plus consideration of the one-year look back period prior to the filing of that claim). See Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010).

Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. 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.

In determining the appropriate rating for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Factors of joint disability include increased or limited motion, weakened movement, excess fatigability, incoordination, and painful movement, including during flare-ups and after repeated use. DeLuca v. Brown, 8 Vet. App. 202, 206-08 (1995); 38 C.F.R. § 4.45. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40.

Additionally, “pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system.” Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). Pain in a particular joint may result in functional loss, but only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance. Id.; 38 C.F.R. § 4.40. Under 38 C.F.R. § 4.59, painful joints are entitled to at least the minimum compensable rating for the joint.

Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. 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 U.S.C. § 5107(b); 38C.F.R. §§3.102, 4.3.

Before evaluating the propriety of the Veteran’s disability rating for the right knee
to at least the minimum compensable rating for the joint.

Before evaluating the propriety of the Veteran’s disability rating for the right knee osteoarthritis, the Board notes that during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes “to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities.” Id. As will be discussed, none of the diagnostic codes applicable to the evaluation of the Veteran’s left knee condition were altered by these amendments.

The Board will consider additional diagnostic codes pertinent to the evaluation of knee disabilities in order to determine the highest possible evaluation for the right knee condition during the entire period of the appeal. Of note, the Veteran is in receipt of a separate 20 percent rating for left knee meniscal disorder pursuant to Diagnostic Code 5258, corresponding to dislocated semilunar cartilage. In considering the applicability of the remaining available diagnostic codes, the Board finds that Diagnostic Codes 5256 (ankylosis), 5257 (instability), 5259 (symptomatic removal of semilunar cartilage), 5262 (disability of the tibia and fibula), and 5263 (genu recurvatum) are not applicable in this instance as the medical evidence does not show that the Veteran experiences these conditions in the right knee. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5257 (both prior to and since February 7, 2021), 5258, 5259, 5263.

Under Diagnostic Code 5260, limitation of flexion of the leg, a noncompensable rating is assigned when flexion is limited to 60 degrees; a 10 percent rating is assigned when flexion is limited to 45 degrees; a 20 percent rating is assigned when flexion is limited to 30 degrees; and a 30 percent rating is assigned when flexion is limited to 15 degrees.

Under Diagnostic Code 5261, limitation of extension of the leg, a noncompensable rating is assigned when extension is limited to 5 degrees; a 10 percent rating is assigned when extension is limited to 10 degrees; a 20 percent rating is assigned when extension is limited to 15 degrees; a 30 percent rating is assigned when extension is limited to 20 degrees; a 40 percent rating is warranted for extension limited to 30 degrees; and a 50 percent rating is assigned when extension is limited to 45 degrees.

The standardized description of joint measurements is provided in Plate II under 38 C.F.R. § 4.71a. For VA purposes, “normal” extension and flexion of the knee is from zero to 140 degrees, and references to normal motion below indicate that the Veteran, in fact, had motion from zero to 140 degrees. 38 C.F.R. § 4.71a, Plate II. The VA General Counsel has held that a knee disability may receive separate ratings under diagnostic codes evaluating instability (Code 5257) and those evaluating range of motion (Codes 5003, 5010, 5256, 5260, and 5261). See VAOPGCPREC 23-97. The Board additionally notes that separate ratings under Diagnostic Codes 5260 and 5261 may be assigned for disability of the same knee joint. See VAOPGCPREC 9-2004.

During the appeal period, the severity of the left knee condition was first evaluated in a January 2014 VA knee examination, wherein the Veteran reported experiencing left knee pain and locking restricting his ability to ambulate. In addition, he endorsed experiencing flare-ups of additional pain resulting in his inability to walk whatsoever until the symptoms subside. Range of motion testing revealed left knee flexion limited to 50 degrees with no loss of extension as well as tenderness and/or pain to palpation of the left knee joint line. After repetitive use testing flexion was further reduced to 45 degrees. During a flare-up of symptomatology, the examiner estimated that left knee flexion would be further reduced to 40 degrees, while extension would be limited by 5 degrees. The examiner also noted that after repetitive use or during a flare-up of symptoms the Veteran would experience the following additional functional limitations: less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, atrophy of disuse, instability of station, disturbance of locomotion, and interference with sitting, standing and weight-bearing. The examiner did not find any evidence of instability, ankylosis or patellar subluxation. While it was noted that the Veteran had a history of a meniscus condition, the examiner did not note any residual symptomatology from that condition. A radiographic evaluation revealed degenerative arthritis as well as degenerative joint disease of the left knee. In summation, the examiner found that the left knee condition contributed to impairment of occupational functioning in the form of restricted ambulation and a full preclusion of running and squatting.

The Veteran submitted an October 2014 private medical record from a Dr. R.D.M who reported that the Veteran was being followed for a left knee condition. According to Dr. R.D.M., the Veteran underwent blood aspiration of the left knee, which was then placed in a cast for three weeks. The Veteran apparently reported experiencing constant chronic knee pain which prevented him from walking more than a short distance. A physical examination revealed tenderness on flexion about 20 degrees without additional tenderness on other ranges of motion.

In a March 2015 correspondence the Veteran reported that he was using a cane to assist in ambulation and that he fell a few times due to his left knee.

The severity of the left knee condition was next evaluated in an October 2015 VA knee examination, during which the Veteran reported experiencing bilateral knee pain aggravated by prolonged standing or walking, with occasional swelling. He also endorsed experiencing flare-ups of additional symptomatology about once per week lasting one to two hours; while experiencing a flare-up, the Veteran detailed that he could not ambulate until the pain subsided. Range of motion testing revealed left knee flexion limited to 110 degrees with no loss of extension as well as tenderness and/or pain to palpation of the left knee joint line and pain with weight-bearing. After repetitive use testing flexion was further reduced to 105 degrees. During a flare-up of symptomatology, the examiner estimated that left knee flexion would be further reduced to 100 degrees, with no limitation of extension. The examiner also noted that after repetitive use or during a flare-up of symptoms the Veteran would experience disturbance of locomotion and interference with standing. The examiner did not find any evidence of instability, ankylosis or patellar subluxation. In summation, the examiner found that the knee conditions together contributed to mild to moderate impairment of occupational functioning in the form of a restriction in the Veteran’s ability to perform sedentary and physical activities.

During the February 2016 hearing, the Veteran reported that he had been using a cane to assist with ambulation after he fell in the bathroom, which he attributed to his left knee. He also related that he could not run anymore, although he acknowledged that he was still able to walk short distances.

Pursuant to the Board’s June 2020 remand instructions, the Veteran was scheduled for a new VA knee examination in October 2020. Unfortunately, due to the impact of his Alzheimer’s disease, the Veteran was unable to respond to questioning about his condition; accordingly, his wife accompanied him and answered on his behalf. While she did not detail his current symptomatology, she did note that he experienced flare-ups of additional pain occurring daily after walking that was relieved with pain medication. Range of motion was not evaluated on the examination due to the Veteran’s Alzheimer’s disease; however, the examiner did find that pain would limit the Veteran’s functional ability following repeated use of the left knee per the Veteran’s wife’s report. Similarly, the examiner found that pain during a flare-up would also result in a significant limitation of functional ability, although the examiner was unwilling to provide an estimate of the extent of that limitation in terms of loss of range of motion. No ankylosis or instability was noted on the examination; furthermore, the examiner found no evidence of pain in non-weight bearing. In summation, the examiner found that the left knee condition contributed to impairment of occupational functioning in the form of difficulty with work requiring prolonged standing, walking, frequent squatting, running, climbing or jumping; however, the examiner did note that the Veteran would be able to perform sedentary occupations that allowed him to sit.

A review of available VA medical records reflects that the Veteran has been receiving treatment for left knee traumatic arthritis for the entirety of the appeal period. Outpatient records dating from February and December 2015 show that the Veteran reported several instances of falling due to knee instability and began using a cane regularly for assistance with ambulation. In an October 2017 record it was detailed that the Veteran experienced breakthrough bilateral knee pain that prevented him from walking. An April 2019 outpatient note indicates that the Veteran reported experiencing recurrent left knee swelling in December 2018. Most recently, an October 2020 outpatient note shows that the Veteran again reported experiencing left knee swelling in June 2020.

Upon consideration of the evidence, the Board does not find that an increased rating is warranted for the Veteran’s left knee traumatic arthritis. At no point during the appeal period did the Veteran exhibit flexion limited to 30 degrees, which would be necessary for a 20 percent rating under Diagnostic Code 5260. The Board finds that the AOJ has substantially complied with the prior remand directives, to the extent possible, and the Board may proceed with its adjudication utilizing the October 2020 VA examination. See Stegall v. West, 11 Vet. App. 268 (1998). Furthermore, on the basis of that examination as well as the evidence of record that precedes it, the Board finds that the Veteran has not exhibited a limitation of flexion commensurate with the higher 20 percent rating under Diagnostic Code 5260.

Moreover, while the Board acknowledges that the January 2014 VA examiner estimated that the Veteran would experience 5 degrees of limitation of extension during a flare-up, this would warrant a noncompensable rating under Diagnostic Code 5261. As such, the Board is unable to provide for a separate rating for limitation of extension.

Objective evidence of left knee instability is not shown in the Veteran’s VA medical records. As such, the Board also finds that it is unable to provide for a separate rating for left knee instability at any point during the appeal period.

The Board has reviewed the Veteran’s lay testimony and the VA treatment records in the claims file, but this evidence does not tend to show that the symptoms of the left knee traumatic arthritis warranted a rating in excess of 10 percent at any point during the appeal period. As stated, for any additional functional loss to warrant a higher rating, that loss must rise to the level of the more severe symptomatology represented by the ratings in excess of those assigned and/or must reflect additional symptomatology not encompassed within the current assigned ratings which is sufficient to be rated separately, none of which has been shown. Furthermore, although the Veteran reported experiencing flare-ups of right knee symptomatology on all three VA examinations, each VA examiner did not find evidence to support a determination that the Veteran would exhibit additional loss of range of motion during a flare-up of knee symptomatology commensurate with a higher rating. While the Board acknowledges that the Veteran reported that he would experience increased pain and loss of range of motion during flare-ups, there is no indication that this increase in symptomatology during flare-ups would be so significant as to equate to flexion reduced to 30 degrees or extension limited to 10 degrees. As such, ratings higher than what is assigned for limitation of motion is not
which is sufficient to be rated separately, none of which has been shown. Furthermore, although the Veteran reported experiencing flare-ups of right knee symptomatology on all three VA examinations, each VA examiner did not find evidence to support a determination that the Veteran would exhibit additional loss of range of motion during a flare-up of knee symptomatology commensurate with a higher rating. While the Board acknowledges that the Veteran reported that he would experience increased pain and loss of range of motion during flare-ups, there is no indication that this increase in symptomatology during flare-ups would be so significant as to equate to flexion reduced to 30 degrees or extension limited to 10 degrees. As such, ratings higher than what is assigned for limitation of motion is not warranted. Sharp, supra; Correia v. McDonald, 28 Vet. App. 158 (2016). The Board acknowledges the Veteran’s statements regarding the pain he experiences in his left knee. However, painful motion is contemplated and compensated by the 10 percent rating currently assigned. DeLuca, supra.

Therefore, the Board finds that the assigned 10 percent rating for left knee traumatic arthritis contemplates the impaired motion exhibited by the Veteran during the appeal period.

As the preponderance of the evidence is against the Veteran’s claim, the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C. § 5107 (b). The claim is accordingly denied.

K. OSBORNE

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board Christopher M. Collins, 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.

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