KNEE IMPAIRMENT OF

Summary

The veteran, who served from May 1982 to May 1985, appeals the denial of service connection for right knee disability, adenomatous polyps, and hemorrhoid disability. The veteran also sought increased ratings for left knee osteoarthritis, left knee instability, left knee total replacement residuals, and right hip strain. The Board denied service connection for the right knee, adenomatous polyps, and hemorrhoids, finding the evidence weighed against a service connection or a secondary connection to service-connected left knee and right hip disabilities. The Board gave probative weight to VA medical opinions that found the right knee disability was less likely than not related to service or aggravated by service-connected conditions, citing a lack of chronicity and severity in the record. For the left knee, the Board granted a 20 percent rating for moderate instability prior to November 16, 2021, based on lay evidence and treatment records indicating instability and cane use, resolving reasonable doubt in the veteran's favor. However, the Board denied a higher rating for painful motion or residuals of total knee replacement, finding the evidence did not support the severity required for higher ratings. For the right hip, the Board denied a rating in excess of 10 percent for painful motion, finding the evidence did not support the required flexion limitation. However, the Board granted a separate 10 percent rating for right hip limited adduction, based on a December 2023 VA examination finding the veteran could not cross his legs due to limitation. The claim for Total Disability based on Individual Unemployability (TDIU) was remanded for further development, as the veteran had not been provided proper notice or the necessary application form.

Rationale

STR silent for right knee complaint; VA medical opinions found less likely than not related to service; Veteran's lay statements regarding overcompensation not medically supported for severity

Full Decision Text

Citation Nr: 25012149
Decision Date: 09/25/25	Archive Date: 09/25/25

DOCKET NO. 18-49 502
DATE: September 25, 2025

ORDER

Service connection for right knee disability is denied.

Service connection for adenomatous polyps, to include as due to contaminated water at Camp Lejeune, is denied.

Service connection for hemorrhoid disability, to include as due to contaminated water at Camp Lejeune, is denied.

A rating in excess of 10 percent for left knee osteoarthritis with painful motion prior to November 16, 2021 is denied.

A separate 20 percent rating for left knee moderate instability prior to November 16, 2021 is granted.

A rating in excess of 30 percent for total left knee replacement residuals from May 1, 2022 is denied.

A rating in excess of 10 percent for right hip strain with painful motion is denied.

A separate rating of 10 percent for right hip limited adduction is granted.

REMANDED

Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded.

FINDINGS OF FACT

1. The evidence persuasively weighs against finding right knee disability manifested during service, is related to service, or is secondary to service-connected left knee or right hip disabilities.

2. The evidence persuasively weighs against finding adenomatous polyps manifested during service or are related to service, to include as due to contaminated water at Camp Lejeune.

3. The evidence persuasively weighs against finding hemorrhoid disability manifested during service or is related to service, to include as due to contaminated water at Camp Lejeune

4. Prior to November 16, 2021, the evidence persuasively weighs against finding left knee flexion limited to 30 degrees or extension limited to 15 degrees.

5. Prior to November 16, 2021, the evidence supports finding moderate left knee instability.

6. From May 1, 2022, the evidence weighs against finding residuals of left total knee replacement produced severe painful motion or weakness.

7. The evidence persuasively weighs against finding right hip flexion limited to 30 degrees.

8. The evidence supports finding right hip limitation in adduction after observed repetitive use prevents the Veteran from crossing his legs.

CONCLUSIONS OF LAW

1. The criteria for service connection for right knee disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310.

2. The criteria for service connection for adenomatous polyps are not met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 

3. The criteria for service connection for hemorrhoid disability are not met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

4. Prior to November 16, 2021, the criteria for a rating in excess of 10 percent for left knee osteoarthritis with painful motion are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5260, 5261.

5. Prior to November 16, 2021, the criteria for a separate 20 percent rating for left knee moderate instability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5257.

6. From May 1, 2022, the criteria for a rating in excess of 30 percent for residuals of left knee total arthroplasty are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5055.

7. The criteria for a rating in excess of 10 percent for right hip strain with painful motion are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5252.

8. The criteria for a separate 10 percent rating for right hip limited adduction are met
 left knee total arthroplasty are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5055.

7. The criteria for a rating in excess of 10 percent for right hip strain with painful motion are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5252.

8. The criteria for a separate 10 percent rating for right hip limited adduction are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5253.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from May 1982 to May 1985.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2016 rating decision. The Veteran appeared for a hearing before the undersigned Veterans Law Judge in August 2022. The hearing transcript is associated with the claims file.

Service Connection

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004).

Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013).

Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).

Service connection for right knee disability

The Veteran contends right knee disability secondary to his service-connected left knee and/or right hip disabilities. 

The Veteran has a current diagnosis of right knee osteoarthritis status post total knee replacement. See June 2016 rating decision and August 2018 SOC. The Veteran is service connected for left knee disability and right hip disability. Therefore, the question for the Board is whether the Veteran's right knee disability manifested during service, is related to service, or is secondary to his service-connected left knee or right hip disabilities.

Service treatment records (STR) are silent for right knee complaint, treatment, or diagnosis. 

Post-service, a September 2011 VA treatment visit to establish VA care noted he was not seeing a non-VA physician. He reported knee pain dating back to service. He reported he had not been seen or had PT for his knees. A September 2013 VA Emergency Department visit reported right knee pain increasing over past two days. He reported initially injuring his left knee on active duty. Assessment was bilateral knee arthralgia. Bilateral knee x-rays showed moderately severe tricompartmental degenerative joint disease (DJD). A February 2014 VA rheumatology consultation for knee pain reported an in-service left knee injury. He reported progressive left knee pain since service. He reported right knee pain was a problem for several years. The clinician assessed bilateral knee osteoarthritis.

A May 2016 VA examination diagnosed right knee osteoarthritis. The Veteran reported left knee injury in service, which led to right knee pain, with no injury to right knee during service.

At an August 2022 Board hearing, the Veteran reported he began having right knee pain three
 injuring his left knee on active duty. Assessment was bilateral knee arthralgia. Bilateral knee x-rays showed moderately severe tricompartmental degenerative joint disease (DJD). A February 2014 VA rheumatology consultation for knee pain reported an in-service left knee injury. He reported progressive left knee pain since service. He reported right knee pain was a problem for several years. The clinician assessed bilateral knee osteoarthritis.

A May 2016 VA examination diagnosed right knee osteoarthritis. The Veteran reported left knee injury in service, which led to right knee pain, with no injury to right knee during service.

At an August 2022 Board hearing, the Veteran reported he began having right knee pain three to five years after his initial left knee injury. He stated he would hop around on his opposite right leg and overcompensate "with stairs and everything else." He reported it altered how he walked.

In May 2021, the Veteran had a right total knee replacement. 

A September 2023 VA treatment visit reported still having intermittent knee pain.

A December 2023 VA examination diagnosed history of right knee total arthroplasty. The Veteran reported after separation from service, he would hop around on his good knee. He stated his right knee developed DJD. 

A December 2023 VA medical opinion found the Veteran's right knee disability is less likely than not proximately due to or the result of his service-connected left knee or right hip disabilities. The clinician stated there is no clear evidence from review of orthopedic literature to suggest an injury to one joint would have significant impact on another or opposite uninjured joint or limb, unless the injury resulted in a major muscle or nerve damage causing partial or complete paralysis, or shortening of the injured limb resulting in length discrepancy of more than 5cm so that the individual's gait pattern has been altered to the extent that clinically there is an obvious Trendelenburg gait. The clinician stated this level of severity is not supported by the record, history, or exam. The clinician stated it is not unusual for two joints to share properties in the same person, but one joint's disease does not 'spread' to another or cause damage to it. (Oxford's Textbook on Orthopedics and Trauma). The clinician found it was less likely than not the Veteran's right knee disability was aggravated by these service-connected conditions. The clinician stated, as referenced above, there is no clear evidence from review of orthopedic literature to suggest an injury to one joint would have any significant impact on another or opposite uninjured joint or limb. The clinician stated this level of severity is not supported based on the record, history, or exam.

An August 2024 VA medical opinion found the Veteran's right knee disability was less likely than not proximately due to his service-connected left knee or right hip disabilities. The clinician stated he has significant osteoarthritis in both knees, both required surgery. The clinician stated right hip strain would not cause this significant severity of osteoarthritis. The clinician opined his right knee osteoarthritis was caused partially by genetics and partially by "wear and tear" of the joint. The clinician stated the Veteran worked in construction which more likely would have caused the Veteran's knee condition.

The Veteran has not contended his right knee disability manifested during service or is related to service. This is consistent with STR being silent for right knee disability. This is consistent with the Veteran reporting in treatment records decades after separation from service that he injured his left knee during service and his right knee disability began years later. 

The Veteran contends his right knee disability is secondary to his service-connected left knee and right hip disabilities. Specifically, he contends he would overcompensate on his right leg due to his service-connected disabilities. See August 2022 hearing and December 2023 VA examination.

The evidence weighs against finding the Veteran's right knee disability was caused or aggravated by his service-connected left knee and right hip disabilities. The Board gives probative weight to the December 2023 and August 2024 VA medical opinions. These opinions are credible because the opinions are based on an accurate medical history and provide clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The December 2023 clinician specifically addressed the Veteran's contention that his right knee osteoarthritis was secondary to overcompensating his service-connected conditions. The clinician stated orthopedic literature states an injury to one joint would not have any significant impact on another or opposite uninjured joint or limb, unless the injury resulted in a major muscle or nerve damage causing partial or complete paralysis, or shortening of the injured limb resulting in length discrepancy of more than 5cm so that the individual's g
 opinions are credible because the opinions are based on an accurate medical history and provide clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The December 2023 clinician specifically addressed the Veteran's contention that his right knee osteoarthritis was secondary to overcompensating his service-connected conditions. The clinician stated orthopedic literature states an injury to one joint would not have any significant impact on another or opposite uninjured joint or limb, unless the injury resulted in a major muscle or nerve damage causing partial or complete paralysis, or shortening of the injured limb resulting in length discrepancy of more than 5cm so that the individual's gait pattern has been altered to the extent that clinically there is an obvious Trendelenburg gait. The clinician stated this level of severity was not supported based on record review, history or exam.

There is no other competent evidence of record to support finding the Veteran's right knee disability is caused or aggravated by his service-connected disabilities. The Veteran is competent to report symptoms, but is not competent to opine as to the etiology of those symptoms, as that requires medical expertise that is outside the realm of common knowledge of a layperson. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Here, the VA medical opinion considered the Veteran's lay statements regarding symptoms and overcompensation, but found the medical evidence did not support the severity that would produce significant impact on another or opposite uninjured joint or limb.

Accordingly, service connection for right knee disability is denied.

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Service connection for hemorrhoid disability

Service connection for adenomatous polyps

The Veteran contends rectal bleeding related to service, specifically related to exposure to contaminated water at Camp Lejeune. See March 2016 and March 2017 statements, October 2018 VA Form 9, August 2022 hearing testimony.

The evidence shows a diagnosis of hemorrhoids and adenomatous polyps. The Veteran is recognized as presumed exposed to contaminated water at Camp Lejeune. See August 2024 TERA Memo. Therefore, the question for the Board is whether these disabilities manifested in service or are otherwise related to service, to include as due to exposure to contaminated water at Camp Lejeune.

A Veteran who had no less than 30 days (consecutive or nonconsecutive) of service at Camp Lejeune during the period from August 1, 1953 to December 31, 1987, shall be presumed to have been exposed during such service to the contaminants in the water supply, unless there is affirmative evidence to establish that the individual was not exposed to contaminants in the water supply during that service. 38 C.F.R. § 3.307(a)(7). If a Veteran served at Camp Lejeune during the time frame specified, certain diseases including kidney cancer, liver cancer, non-Hodgkin's lymphoma, adult leukemia, multiple myeloma, Parkinson's disease, aplastic anemia and other myelodysplastic syndromes, and bladder cancer shall be service connected even though there is no record of such disease during service. 38 C.F.R. § 3.309(f).

Adenomatous polyps and hemorrhoid disability are not disabilities determined to have positive association with exposures at Camp Lejeune. However, the absence of a disease from the presumptive list does not preclude a claimant from otherwise proving his disability resulted from exposure to contaminated water at Camp Lejeune. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).

Service treatment records (STR) show a November 1984 visit for external hemorrhoid.

Post-service, a September 2011 VA treatment visit to establish VA care denied abdominal pain, changes in bowel pattern, or blood in stool. A January 2014 VA treatment visit denied abdominal pain, changes in bowel pattern, or blood in stool. At a December 2015 VA treatment visit, the Veteran reported some blood in stool and endorsed hemorrhoids earlier that year. At a February 2017 VA treatment visit, the Veteran reported rectal bleeding in 1983, attributed by Veteran to hemorrhoids, with similar episodes for the last year, bleeding almost every day. He was assessed with persistent rectal bleeding and a colonoscopy was ordered. In April 2017, the Veteran had a colonoscopy, which biopsy identified an adenomatous polyp. A June 2017 colonoscopy was performed to resect the rectal polyp. A February 2023 colonoscopy showed adenomatous polyp. The clinician stated the polyp
 in stool. At a December 2015 VA treatment visit, the Veteran reported some blood in stool and endorsed hemorrhoids earlier that year. At a February 2017 VA treatment visit, the Veteran reported rectal bleeding in 1983, attributed by Veteran to hemorrhoids, with similar episodes for the last year, bleeding almost every day. He was assessed with persistent rectal bleeding and a colonoscopy was ordered. In April 2017, the Veteran had a colonoscopy, which biopsy identified an adenomatous polyp. A June 2017 colonoscopy was performed to resect the rectal polyp. A February 2023 colonoscopy showed adenomatous polyp. The clinician stated the polyp was removed completely, biopsy of the polyp did not reveal cancer. The clinician stated there was no evidence of any residual polyp, just inflammation.

At the August 2022 Board hearing, the Veteran reported rectal bleeding on and off since 1983. He reported he sought treatment in service and has had issues since service.

A December 2023 VA examination for intestinal conditions diagnosed history of colonic polyps (adenomatous). The clinician opined the claimed condition was less likely than not incurred in or caused by service. The clinician noted the Veteran was diagnosed with an external hemorrhoid in November 1984. The clinician noted partial removal of adenomatous polyp in the rectum in 2022 and tubular adenoma colon polyps in 2023. The clinician stated from the initial diagnosis in 1984, there is no mention again until a claim was filed in 2011, decades later. The clinician stated due to a lack of chronicity, it was less likely than not his current disability was incurred in or caused by service.

The Veteran is presumed to have engaged in a toxic exposure risk activity (TERA) based on his exposure to contaminated water at Camp Lejeune. See August 2024 TERA Memo. There is a statutory duty to provide a TERA-related examination and medical opinion unless certain exceptions apply. In response to the Veteran's identified TERA, a VA examination and medical opinion was provided. An August 2024 VA intestinal examination diagnosed a history of adenomas polyp status post resection. An August 2024 VA rectum and anus examination diagnosed hemorrhoids. The clinician found the claimed conditions were less likely than not caused by the indicated toxic exposure risk activity, after considering the total potential exposure through all applicable military deployments of the veteran and the synergistic, combined effect of all toxic exposure risk activities of the veteran. The clinician noted an in-service history of hemorrhoids with intermittent bleeding. He noted a 2017 colonoscopy revealed several polyps, which were resected and sent to pathology. He noted a 2022 repeat colonoscopy revealed multiple polyps, which were resected along with a residual rectal polyp, which were sent to pathology with results of one of the polyps being adenomatous or pre-cancerous if not removed in the colon. The rectal biopsy concluded it was inflammation, which appeared to be an internal hemorrhoid. A diagnosis of internal hemorrhoids and history of adenomatous polyp status post resection made at time of VA exam. The clinician stated medical literature makes no connection between adenomatous polyps or hemorrhoid conditions and Camp Lejeune contaminated water exposures.

The evidence weighs against finding the Veteran's adenomatous polyps or hemorrhoid disability manifested during service or are related to service. 

The Board gives probative weight to the VA medical opinion finding adenomatous polyps and hemorrhoid disability were less likely than not incurred in service. The clinician considered the in-service external hemorrhoid and found no evidence of chronicity with the Veteran's current hemorrhoid disability. This finding is consistent with treatment visits in September 2011 and January 2014 denying abdominal pain, changes in bowel pattern, or blood in stool. The finding is consistent with a December 2015 VA treatment visit reporting some blood in stool and having hemorrhoids earlier that year. The Board finds ordinarily if an individual had persistent rectal bleeding for decades, this is the severity and frequency of symptom that would have been reported at the September 2011 VA treatment visit establishing VA care, in which he denied abdominal pain, changes in bowel pattern, or blood in stool. Additionally, the Board finds ordinarily if an individual had persistent rectal bleeding for decades, this is the severity and frequency of historic symptom that would be reported to his physician at the December 2015 VA treatment visit for blood in stool. The Board finds statements at these treatment visits are exceptionally credible, as an individual would have a strong motive to tell the truth in order to receive proper care.

The evidence weighs against finding the Veteran's adenomatous polyps and hemorrhoid disability were
 if an individual had persistent rectal bleeding for decades, this is the severity and frequency of symptom that would have been reported at the September 2011 VA treatment visit establishing VA care, in which he denied abdominal pain, changes in bowel pattern, or blood in stool. Additionally, the Board finds ordinarily if an individual had persistent rectal bleeding for decades, this is the severity and frequency of historic symptom that would be reported to his physician at the December 2015 VA treatment visit for blood in stool. The Board finds statements at these treatment visits are exceptionally credible, as an individual would have a strong motive to tell the truth in order to receive proper care.

The evidence weighs against finding the Veteran's adenomatous polyps and hemorrhoid disability were otherwise related to service. The Board gives probative weight to the August 2024 VA medical opinion finding the claimed conditions were less likely than not caused by the indicated toxic exposure risk activity, after considering the total potential exposure through all applicable military deployments of the veteran and the synergistic, combined effect of all toxic exposure risk activities of the veteran. The opinion is credible because it is based on an accurate medical history and provided a clear conclusion and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). There is no other competent evidence of record showing his adenomatous polyps and hemorrhoid disability were related to Camp Lejeune contaminated water exposures.

The Board notes a March 2015 VA treatment record noted complaints of gastrointestinal upset related to ibuprofen prescribed for treatment of bilateral knee disability. The record does not support finding, and the Veteran denies contending, gastrointestinal symptoms secondary to his use of ibuprofen. See August 2024 VA examination and medical opinions. 

As the evidence weighs against the claim, service connection for adenomatous polyps and hemorrhoid disability is denied.

Increased Rating

A June 2016 rating decision granted service connection for left knee osteoarthritis with an evaluation of 10 percent, effective June 8, 2014. The Veteran perfected an appeal of the decision, contending a higher rating was warranted. During the appeal period, an August 2024 rating decision granted an increased rating for total left knee replacement to 100 percent, effective November 16, 2021, with an evaluation of 30 percent for residuals, effective May 1, 2022. Therefore, the Board will consider whether a rating in excess of 10 percent is warranted prior to November 16, 2021, and whether a rating in excess of 30 percent is warranted from May 1, 2022.

Entitlement to a rating in excess of 10 percent for left knee osteoarthritis with painful motion prior to November 16, 2021

For the period prior to November 16, 2021, the Veteran was assigned a 10 percent rating under DC 5003-5260, which suggests a rating based on compensable limitation of flexion. However, a review of the evidence reflects his left knee was rated based on osteoarthritis and painful noncompensable limitation of motion. See June 2016 rating decision.  

The diagnostic codes associated with painful limitation of motion are DC 5260 (flexion) and DC 5261 (extension). Under DC 5260, a noncompensable rating is warranted for flexion limited to 60 degrees; a 10 percent rating is warranted for flexion limited to 45 degrees; a 20 percent rating is warranted for flexion limited to 30 degrees; and a 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. Under DC 5261, a noncompensable rating is warranted for extension limited to 5 degrees; a 10 percent rating is warranted for extension limited to 10 degrees; a 20 percent rating is warranted for extension limited to 15 degrees; a 30 percent rating is warranted for extension limited to 20 degrees; a 40 percent rating is warranted for extension limited to 30 degrees; and a 50 percent rating is warranted for extension limited to 45 degrees. 38 C.F.R. § 4.71a, DC 5261.

When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown,
30 degrees; and a 50 percent rating is warranted for extension limited to 45 degrees. 38 C.F.R. § 4.71a, DC 5261.

When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria.").

Looking to evidence during the appeal period, a June 2015 VA rheumatology consultation reported intermittent pain in the knee, worse with physical activity and at night. He denied swelling. There was no effusion or tenderness. Left knee range of motion was full, but crepitations noted. The clinician noted strength was 5/5. It was noted he was too young for knee replacement, so they would attempt to keep it under control with injections and oral medication. An addendum noted the Veteran works full-time in construction. He stated he cannot take much time off work for procedures. He reported his knee pain resulted in decreased activity, hobbies, and ability to exercise.

A November 2015 VA treatment visit reported chronic knee pain, described as 8 out of 10, which woke him up the night prior. He reported working in construction. The clinician assessed osteoarthritis and ordered knee braces.

A May 2016 VA examination diagnosed bilateral knee osteoarthritis. The Veteran reported pain and swelling with use. Left knee range of motion testing showed flexion to 105 degrees and extension to 0 degrees. The report denied a history of recurrent subluxation or lateral instability. The examiner noted periodic swelling. The report stated joint stability testing was normal. The report denied recurrent patellar dislocation, "shin splints" (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment. It was noted he did not use an assistive device. The clinician stated the impact of his left knee on his ability to perform any type of occupational task was the Veteran could perform light sedentary work.

A February 2017 VA treatment visit reported bilateral knee pain of 7 out of 10. The clinician assessed osteoarthritis on knees. It was noted the Veteran would require a bilateral knee replacement.

In his March 2017 NOD, the Veteran expressed disappointment with his VA examination, stating it was rushed and not able to convey key details. 

A June 2017 VA knee examination reported he was waiting for a knee replacement. The Veteran denied flare-ups. He reported chronic pain. Left knee range of motion testing showed flexion to 120 degrees and extension to 0 degrees. The clinician noted pain with weight bearing, localized tenderness or pain on palpation, and crepitus. The report denied a history of recurrent subluxation, lateral instability, or recurrent effusion. Joint stability testing was normal. The report denied recurrent patellar dislocation, "shin splints" (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment. The report denied meniscus (semilunar cartilage) condition. The report noted occasional use of a cane. The clinician opined the Veteran's knee disability impacted his ability to perform any type of occupational task, described as limited to sedentary work.

A June 2017 VA treatment visit reported bilateral knee pain. He reported his main problem was he could not work in construction any longer due to the severe osteoarthritis in his knees. 

A February 2018 VA treatment visit
 testing was normal. The report denied recurrent patellar dislocation, "shin splints" (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment. The report denied meniscus (semilunar cartilage) condition. The report noted occasional use of a cane. The clinician opined the Veteran's knee disability impacted his ability to perform any type of occupational task, described as limited to sedentary work.

A June 2017 VA treatment visit reported bilateral knee pain. He reported his main problem was he could not work in construction any longer due to the severe osteoarthritis in his knees. 

A February 2018 VA treatment visit reported his knees are bad when walking. He was looking forward to the total knee replacements (TKR). He reported he could barely take stairs and could not walk far. The clinician noted limping due to knee pain. The clinician assessed severe bilateral osteoarthritis, pending TKR.

A March 2018 VA orthopedic consultation reported knee pain. It was noted he wanted to discuss candidacy for left TKR. It was noted he did not use an assistive device. Mild effusion was noted. The clinician assessed severe bilateral knee OA. The clinician noted a left TKR would be appropriate once he discontinued alcohol use.

A December 2020 orthopedic consultation noted he was retired due to lower extremity pain. He reported painful bilateral knees. He reported associated symptoms of swelling and pseudolocking. He reported exacerbating activities of walking a block and stairs. He noted cane use. Effusion was noted with warmth and tenderness. Range of motion was 5 degrees to 120 degrees. The clinician instructed to start clearance for TKR, would start with right knee.

A January 2021 pre-op visit for right knee TKR noted bilateral knee pain, worse with stairs and walking distances. It was noted the knees were unstable and he needed a cane.

A November 2021 treatment note reported constant left knee pain. He reported swelling and instability. He reported using a cane.

In November 2021, a total left knee arthroplasty was performed.

At an August 2022 Board hearing, the Veteran reported from 2014 until his knee replacement, his knee continued to get worse. He reported between 2014 and his procedure, his left knee stability was horrible, stating he had to stop working, could only stand short periods of time, and could not do stairs. He reported using a cane. He reported since surgery, his left knee was doing a lot better. He reported still having pain during inclement weather.

The Veteran is in receipt of a 10 percent rating for the left knee for painful noncompensable range of motion. To warrant a higher rating under DC 5260, for limited flexion, the evidence must show flexion limited to 30 degrees. To warrant a higher rating under DC 5261, for limited extension, the evidence must show extension limited to 15 degrees. The evidence weighs against finding range of motion limited to or approximating this severity. During the appeal period, flexion was at worst 105 degrees and extension was at worst 5 degrees. The Board considered the Veteran's lay statements describing his symptoms and functional loss, which are not consistent with finding the severity of limited motion of flexion to 30 degrees or extension to 15 degrees. 

The Board considered the other Diagnostic Codes pertaining to the knee and leg. Other disability ratings may be assigned if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). 

The evidence does not show, and the Veteran has not contended, ankylosis of the knee (DC 5256), dislocation of semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint (DC 5258), symptomatic removal of semilunar cartilage (DC 5259), impairment of the tibia and fibula (DC 5262), or genu recurvatum (DC 5263). 

However, the evidence supports finding left knee instability during the appeal period. Under DC 5257, a 10 percent rating is warranted for slight recurrent subluxation or lateral instability. A 20 percent rating is warranted for moderate recurrent subluxation or lateral instability. A 30 percent rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71
location of semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint (DC 5258), symptomatic removal of semilunar cartilage (DC 5259), impairment of the tibia and fibula (DC 5262), or genu recurvatum (DC 5263). 

However, the evidence supports finding left knee instability during the appeal period. Under DC 5257, a 10 percent rating is warranted for slight recurrent subluxation or lateral instability. A 20 percent rating is warranted for moderate recurrent subluxation or lateral instability. A 30 percent rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, DC 5257.

According to MERRIAM WEBSTER'S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), "slight" means small in amount.  "Moderate" means limited in scope or effect.  "Severe" means very painful or harmful or of a great degree.

Objective medical evidence is not required to establish lateral knee instability under DC 5257, so objective medical evidence cannot be categorically found more probative than lay evidence with respect to this Diagnostic Code.  See English v. Wilkie, 30 Vet. App. 347, 352-53 (2018).

Resolving reasonable doubt in favor of the Veteran, the Board finds the Veteran's left knee disability produced moderate instability. A June 2017 VA examination noted occasional use of a cane. A December 2020 VA treatment visit noted pseudolocking and use of a cane. A January 2021 pre-op visit noted knees were unstable and he needed a cane. A November 2021 VA treatment visit noted instability and use of a cane. At the August 2022 Board hearing, the Veteran stated between 2014 and his knee replacement, his knee stability was horrible and reported using a cane.

The Board does not find evidence of severe instability or instability that is very painful or of a great degree. Joint stability testing performed during treatment visits and VA examinations throughout the appeal period were normal. The evidence shows use of a cane, but the Veteran did not require a walker or wheelchair. There was no evidence of falls. Treatment records indicated he regularly worked out at home using a stationary bike.

The Board notes VA enacted amendments to the musculoskeletal system rating schedule, to include changes to DC 5257, effective February 7, 2021. 85 Fed. Reg. 76453 (Nov. 30, 2020). The Board applied the old rating criteria prior to February 7, 2021 and considered whether the new rating criteria would be more favorable to the Veteran after February 7, 2021. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Here, the evidence does not show, and the Veteran has not contended, left knee sprain or incomplete ligament tear; repaired complete ligament tear or unrepaired or failed repair of complete ligament tear; or patellar instability.

In conclusion, prior to November 16, 2021, the evidence is against a rating in excess of 10 percent for left knee osteoarthritis with painful motion. Prior to November 16, 2021, the evidence supports finding a separate 20 percent rating for left knee moderate instability.

Entitlement to a rating in excess of 30 percent for residuals of left knee replacement from May 1, 2022

An August 2024 rating decision granted an increased rating for total left knee replacement to 100 percent, effective November 16, 2021, with an evaluation of 30 percent for total knee replacement residuals from May 1, 2022.

Effective February 7, 2021, Diagnostic Code 5055 applies to knee resurfacing or replacement (prosthesis) and provides a 100 percent rating for four months following the implantation of prosthesis or resurfacing. After a total replacement, a minimum 30 percent rating is assigned with intermediate degrees of residual weakness, pain or limitation of motion rated by analogy to Diagnostic Codes 5256 (ankylosis of the knee), 5260 (limitation of flexion of the knee), or 5262 (limitation of extension of the knee). A 60 percent rating is assigned for chronic residuals consisting of severe painful motion or weakness in the affected extremity.

Looking to the evidence, a May 2022 VA treatment visit noted intermittent pain. Range of motion was normal. The Veteran requested a short term placard for knee pain.

At an August 2022 Board hearing, the Veteran reported since surgery, his left knee was doing a lot better. He reported still having pain during inclement weather.

A September
 assigned with intermediate degrees of residual weakness, pain or limitation of motion rated by analogy to Diagnostic Codes 5256 (ankylosis of the knee), 5260 (limitation of flexion of the knee), or 5262 (limitation of extension of the knee). A 60 percent rating is assigned for chronic residuals consisting of severe painful motion or weakness in the affected extremity.

Looking to the evidence, a May 2022 VA treatment visit noted intermittent pain. Range of motion was normal. The Veteran requested a short term placard for knee pain.

At an August 2022 Board hearing, the Veteran reported since surgery, his left knee was doing a lot better. He reported still having pain during inclement weather.

A September 2022 VA treatment visit reported left knee pain and popping. He denied redness, warmth or swelling. 

An October 2022 treatment visit noted left knee pain. He reported overall doing well, but reported some sharp shooting pain. The clinician denied swelling, effusion, or signs of infection. The clinician noted full extension and flexion to 115 degrees without pain. The clinician stated there was no instability or laxity.

A February 2023 VA treatment visit reported intermittent pain. The clinician noted full range of motion to all extremities. He requested a short term placard for knee pain.

A December 2023 VA examination diagnosed history of left total knee arthroplasty. He reported knee pain rated as 2 to 3 out of 10. He denied flare-ups. The report denied a history of instability, recurrent subluxation, or frequent effusion. Left knee active range of motion testing was flexion to 120 degrees and extension to 0 degrees. Passive range of motion testing was flexion to 130 degrees and extension to 0 degrees. The Veteran was able to perform repetitive use testing with additional loss of flexion due to pain of 100 degrees. The clinician stated procured evidence, to include statements from the Veteran, suggested pain and lack of endurance would limit functional ability with repeated use over time, estimated as flexion to 110 degrees and extension to 0 degrees. The clinician denied recurrent subluxation or persistent instability. The clinician denied a ligament sprain or tear. The clinician noted a history of total knee replacement in 2021, with residuals of surgical scar, denying residual symptoms of chronic residuals consisting of severe painful motion or weakness. The clinician noted occasional use of a cane. The clinician opined the impact on the Veteran's ability to perform occupational tasks was he could not push, pull, or carry objects on a flat surface or carry them up or down a flight of stairs due to knee pain and muscle weakness in his legs and hips.

The evidence weighs against finding the Veteran's residuals of left total knee replacement produced severe painful motion or weakness from May 1, 2022. The Veteran reported intermittent pain. At an August 2022 Board hearing, the Veteran reported since surgery, his left knee was doing a lot better. He reported still having pain during inclement weather. At the January 2024 VA examination, the Veteran described knee pain as 2 to 3 out of 10 and dull. The examiner denied evidence of residual symptoms of severe painful motion or weakness.

Accordingly, a rating in excess of 30 percent for residuals of left total knee replacement is denied.

Entitlement to a rating in excess of 10 percent for right hip disability

A June 2016 rating decision granted service connection for right hip strain with an evaluation of 10 percent, effective June 8, 2014. The 10 percent rating was awarded for painful noncompensable motion of the hip under DC 5252.

Under DC 5252, a 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. A 30 percent rating is warranted for flexion limited to 20 degrees. A maximum 40 percent rating is warranted for flexion limited to 10 degrees. 38 C.F.R. § 4.71a, DC 5252.  

Looking to the evidence, a February 2014 VA treatment visit reported occasional right hip pain.

A November 2015 VA treatment visit reported right hip pain of 8 out of 10. On physical examination, the examiner observed limited range of motion due to pain. The clinician assessed right hip pain.

A December 2015 VA treatment visit reported some right hip pain associated with numbness, but no motor deficit. The clinician noted full painless passive range of motion of the hips.

A May 2016 VA hip examination reported right hip pain with use. He denied flare-ups. Right hip range of motion testing was normal. Pain was noted on examination, but did not result in functional loss. He
 DC 5252.  

Looking to the evidence, a February 2014 VA treatment visit reported occasional right hip pain.

A November 2015 VA treatment visit reported right hip pain of 8 out of 10. On physical examination, the examiner observed limited range of motion due to pain. The clinician assessed right hip pain.

A December 2015 VA treatment visit reported some right hip pain associated with numbness, but no motor deficit. The clinician noted full painless passive range of motion of the hips.

A May 2016 VA hip examination reported right hip pain with use. He denied flare-ups. Right hip range of motion testing was normal. Pain was noted on examination, but did not result in functional loss. He denied the use of assistive device. The clinician denied an impact to his ability to perform occupational tasks.

In his March 2017 NOD, the Veteran expressed disappointment with his VA examination, stating he was rushed and not able to convey key details. The Veteran reported constant pain in his hip restricts daily activity. He reported limited range of motion and inability to stand long periods. He reported it affects his employment opportunities. He reported working approximately 5 months in past 5 years.

A June 2017 VA hip examination reported chronic hip pain. He denied flare-ups. Right hip range of motion testing was normal. Pain was noted on exam, but did not result in functional loss. There was evidence of pain with weight bearing. The examiner stated there was no malunion or nonunion of femur, flail hip joint or leg length discrepancy. The Veteran reported occasional use of a cane.

A June 2017 VA treatment visit reported right hip pain.

An August 2017 VA phone note indicated increasing hip pain, now constant.

A February 2018 VA treatment visit assessed right hip pain.

At an August 2022 Board hearing, the Veteran reported his right hip pain had gotten worse since 2014. He reported a hip replacement was recommended for the future. He reported not having normal strength in his legs for years.

A December 2023 VA examination reported right hip pain "like a toothache and pretty constant." He stated it throbs after he walks. He denied flare-ups. He reported functioning pretty well, but the pain slows him down. He reported not being able to walk for years because of his knees, but now he can walk. He reported pain in his groin after walking and getting in and out of car. Range of motion testing showed active range of motion of flexion to 120 degrees, extension to 30 degrees, abduction to 40 degrees, adduction to 25 degrees, external rotation to 55 degrees, and internal rotation to 30 degrees. Passive range of motion was flexion to 125 degrees, abduction to 45 degrees, adduction to 25 degrees, external rotation to 60 degrees, and internal rotation to 40 degrees. The clinician denied limitation in adduction prevented the Veteran from crossing his/her legs. The Veteran was able to perform repetitive use testing resulting in additional functional loss of flexion to 120 degrees, extension to 30 degrees, abduction to 35 degrees, adduction to 20 degrees, external rotation to 45 degrees, and internal rotation to 25 degrees. The clinician found limitation in adduction after observed repetitive use prevents the Veteran from crossing his legs. The clinician stated the Veteran was not being examined after repeated use over time, but opined pain and weakness would limit functional ability with repeated use over time, estimated as flexion to 120 degrees, extension to 25 degrees, abduction to 35 degrees, adduction to 25 degrees, external rotation to 45 degrees, and internal rotation to 30 degrees. The clinician opined the impact of the Veteran's right hip disability on his ability to perform any occupational task was that the Veteran stated he could not push, pull or carry objects on a flat surface or carry them up or down a flight of stairs due to knee pain and muscle weakness in his legs and hips. 

The evidence of record persuasively weighs against finding a rating in excess of 10 percent for right hip disability under DC 5252. To warrant a higher rating, the evidence would need to show flexion limited to 30 degrees. The evidence does not show flexion limited to or approximating 30 degrees. VA examination shows flexion at worst to 120 degrees. The Veteran's lay statements describing his symptoms and functional impact are not consistent with flexion limited to 30 degrees.

The Board considered the other Diagnostic Codes pertaining to the hip and thigh. Separate evaluations are permitted under DC 5251, 5252, and 5253 and do not constitute pyramiding if they represent distinct disabilities/impairment. 

The Board finds a separate 10 percent rating is warranted under DC 5253 for limitation of adduction, cannot cross
 DC 5252. To warrant a higher rating, the evidence would need to show flexion limited to 30 degrees. The evidence does not show flexion limited to or approximating 30 degrees. VA examination shows flexion at worst to 120 degrees. The Veteran's lay statements describing his symptoms and functional impact are not consistent with flexion limited to 30 degrees.

The Board considered the other Diagnostic Codes pertaining to the hip and thigh. Separate evaluations are permitted under DC 5251, 5252, and 5253 and do not constitute pyramiding if they represent distinct disabilities/impairment. 

The Board finds a separate 10 percent rating is warranted under DC 5253 for limitation of adduction, cannot cross legs. Under DC 5253, a 20 percent rating is assigned for abduction loss beyond 10 degrees, a 10 percent for adduction resulting in the inability to cross the legs, and a 10 percent for rotation where the affected leg is limited to 15 degrees of toe out rotation. The December 2023 VA examination found limitation in adduction after observed repetitive use prevented the Veteran from crossing his legs.

Accordingly, a rating in excess of 10 percent for right hip strain with painful motion is denied. A separate rating of 10 percent for right hip limited adduction is granted.

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REASONS FOR REMAND

Entitlement to a TDIU

With regard to the TDIU claim, the United States Court of Appeals for Veterans Claims (Court) has held a request for TDIU, whether expressly raised by a Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather is part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Here, the Veteran has raised the issue of unemployability due to his service-connected disabilities numerous times in the record. See March 2017 correspondence, March 2017 NOD, and August 2022 hearing testimony.

The record does not contain a complete record of the Veteran's work or education history. The Veteran has not been provided notice of how to substantiate the claim of TDIU or a VA Form 21-8940, Application for Increased Compensation Based On Unemployability.

The matters are REMANDED for the following action:

Provide the appropriate notice to substantiate the claim of TDIU, to include providing a VA Form 21-8940, Application for Increased Compensation Based On Unemployability.

 

 

KELLI A. KORDICH

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	T. Winkler

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.