Citation Nr: 18154111
Decision Date: 11/29/18	Archive Date: 11/29/18

DOCKET NO. 10-38 492
DATE:	November 29, 2018
ORDER
Entitlement to an increased evaluation for right knee degenerative joint disease in excess of 10 percent is denied.
Entitlement to an increased evaluation for right knee instability associated with degenerative joint disease in excess of 10 percent is denied.
Entitlement to an increased evaluation for left knee degenerative joint disease in excess of 10 percent is denied.
FINDINGS OF FACT
1. For the entire appeal period, the right knee disability was manifested by pain and instability and flexion that was limited to 100 degrees generally or 60 degrees with pain, and limitation in extension and ankylosis are not shown.  
2. For the entire appeal period, the right knee demonstrated no more that slight instability.
3. For the entire appeal period, the left knee disability was manifested by pain and flexion that was limited to 110 degrees generally or 80 degrees with pain, and limitation in extension, ankylosis, recurrent subluxation, and lateral instability are not shown.  
CONCLUSIONS OF LAW
1. The criteria for a disability rating of 10 percent, but no higher, for the right knee disability are met for the entire appeal period. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010-5260, 5261. 
2. The criteria for a disability rating of 10 percent, but no higher, for the right knee instability associated with the right knee degenerative joint disease are met for the entire appeal period. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257. 
3. The criteria for a disability rating of 10 percent, but no higher, for the left knee disability are met for the entire appeal period. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010-5260, 5261. 
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from September 1979 to August 2001.  
The Board previously remanded the case for further development in April 2016 and May 2017. The case has now been returned to the Board for appellate review.  
Following the April 2016 Board remand, the AOJ asked, in April 2016, the Veteran for information on his primary care providers, orthopedists, or physical therapists who have treated his knee symptoms in order to obtain VA and non-VA treatment records; no response from the Veteran has been received. Moreover, two VA examinations for knees have been conducted as per the Board remands, and, for the reasons provided below, the Board finds that they substantially comply with the remand directives. Therefore, the Board’s April 2016 and May 2017 remand instructions have now been complied with.  See Stegall v. West, 11 Vet. App. 268, 271 (1998). 
Increased Rating
Initially, in a February 2002 rating decision, the RO granted service connection for right knee condition, status post arthroscopy with non-compensable evaluation and service connection for left knee condition, status post arthroscopy with non-compensable evaluation. In January 2008, the Veteran filed a claim for increased evaluation for bilateral knee disabilities. Subsequently, in a June 2008 rating decision, the RO assigned an increased evaluation of 10 percent rating (under diagnostic code [DC] 5010-5261) for painful limited motion from his right knee degenerative joint disease, 10 percent rating (under DC 5010-5257) for instability from his right knee degenerative joint disease, and 10 percent rating (under DC 5010-5261) for painful limited motion from the left knee degenerative joint disease, effective January 31, 2008. The Veteran filed his notice of disagreement in May 2009, stating that his bilateral knee conditions had been getting worse, the left knee worse than the right. He reported that he had trouble with getting out of bed or a chair due to his knee disability and he had cracking in both knees. He also stated that another surgery was not recommended due to a 50% chance of improving the condition. Subsequently, the Veteran’s appeal has been perfected, and now it is before the Board for consideration. The Board looks to the evidence since January 2007 up to the present in this appeal. 
Applicable Law: 
Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is a guide in the evaluation of disability resulting from all types of diseases and injuries resulting from or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 
Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. The additional code is shown after a hyphen. Regulations provide that when a disability not specifically provided for in the rating schedule is encountered, it will be rated under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20.
In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).
If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. 
The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107 (b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
Disabilities of the knees are evaluated pursuant to the criteria specified at 38 C.F.R. § 4.71a, including DC 5256 (ankylosis), DC 5257 (other impairment, including recurrent subluxation or lateral instability), DC 5258 (dislocated semilunar cartilage), DC 5259 (symptomatic removal of semilunar cartilage), DC 5260 (limitation of flexion), DC 5261 (limitation of extension), DC 5262 (impairment of the tibia and fibula), and DC 5263 (genu recurvatum). DC 5010 is assigned for arthritis, due to trauma, substantiated by X-ray findings; it directs to rate the condition under arthritis, degenerative, which is rated under DC 5003. 
Under DC 5003 5010, the severity of degenerative arthritis, established by X-ray findings, is to be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints affected. When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010. 
Under 38 C.F.R. § 4.59, with any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to the affected joints.  The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased.  Flexion elicits such manifestations.  
Read together, DCs 5003, 5010 and 38 C.F.R. § 4.59 state that painful motion of a major joint or groups caused by degenerative arthritis, where the arthritis is established by x-ray, is deemed to be limited motion and entitled to a minimum 10 percent rating per joint, combined under DC 5003, even though there is no actual limitation of motion.  See Mitchell v. Shinseki, 25 Vet. App. 32, 40 (2011).  
A claimant who has both arthritis and instability of a knee may be rated separately under DCs 5003 and 5257. However, any separate rating must be based on additional disabling symptomatology that meets the criteria for a compensable rating. VAOPGCPREC 23-97; VAOPGCPREC 9-98. 
DC 5257 provides for a maximum rating or 30 percent where there is severe recurrent subluxation or lateral instability.  A 20 percent rating is assigned for moderate instability or subluxation, and a 10 percent disability for slight instability or subluxation. 38 C.F.R. § 4.71a, DCs 5257.
DC 5258 provides for a maximum 20 percent evaluation for cartilage, semilunar, dislocated with frequent episodes of “locking,” pain, and effusion into the joint, while DC 5259 allows a maximum of 10 percent for cartilage, semilunar, removal of, symptomatic. 38 C.F.R. § 4.71a, DCs 5258, 5259. 
Under DC 5260, a noncompensable rating will be assigned for limitation of flexion of the leg to 60 degrees; a 10 percent rating will be assigned for limitation of flexion of the leg to 45 degrees; a 20 percent rating will be assigned for limitation of flexion of the leg to 30 degrees; and a 30 percent rating will be assigned for limitation of flexion of the leg to 15 degrees. 
Under DC 5261, a noncompensable rating will be assigned for limitation of extension of the leg to 5 degrees; a 10 percent rating will be assigned for limitation of extension of the leg to 10 degrees; a 20 percent rating will be assigned for limitation of extension of the leg to 15 degrees; a 30 percent rating will be assigned for limitation of extension of the leg to 20 degrees; a 40 percent rating will be assigned for limitation of extension of the leg to 30 degrees; and a 50 percent rating will be assigned for limitation of extension of the leg to 45 degrees. 
Normal extension of the knee is to 0 degrees and normal flexion of the knee is to 140 degrees. 38 C.F.R. § 4.71a, Plate II. 
Summary of the Evidence: 
An April 2007 X ray for the right knee revealed small joint effusion, spurring at the quadriceps insertion, large degenerative area of spurring, thickening of patellar tendon and spurring at patellar tendon insertion. The Veteran complained of knee pain and reported that his left knee felt like almost giving out at times. April 2007 Treatment Record. The X ray for the left knee in the same month indicated degenerate change in patellofemoral joint and enthesophytes was noted. 
An April 2007 MRI for the right knee reveals small joint effusion, possible intercondylar notch cyst or ganglion, and no evidence of meniscal tear. At an October 2007 clinical visit, the Veteran complained of pain on the medical side of his right knee and pain on the anterior side of his left knee. The MRI for the left knee taken at that time revealed small lateral effusion adjacent to the lateral femoral condyle. Also found were soft tissue calcification at the inferior pole of the patellar/superior pole of the patellar tendon and a possible lateral meniscus tear, which appears not confirmed as existing. 
At a February 2008 VA examination, the Veteran reported that he was working for bankruptcy court as a facility and property manager. He reported pain, weakness, swelling, giving away, fatigability, and lack of endurance. The regular knee treatment was physical therapy and taking Motrin as necessary. The results of the range of motion testing during the examination are summarized as below: 
Movement	Right			Left		
	Initial ROM	Repetitive ROM	Additional degree?  	Initial ROM	Repetitive ROM	Additional degree? 
Flexion [0-140]	100	100	No	110	110	No

For the left knee, pain began at 80 degrees and ended at 110 degrees, and for the right knee, pain began at 60 degrees and ended at 100 degrees. The Veteran had normal gait, no ankylosis, but pain with motion, fatigue, weakness, and lack of endurance were noted bilaterally. No additional limitation following repetitive use was found, and no incoordination or instability was found for the left knee. The examiner found instability in the right knee, however. The examiner found arthritis in both knees and the right knee worse than the left. For additional limitation of joint function, the examiner estimated that the degree lost due to pain was 40 degrees and the loss due to lack of endurance was 40 degrees. The examiner, moreover, noted that the Veteran had instability or giving away. No flare-ups were reported. No subluxation was found. 
In March 2008, the Veteran was fitted for a knee brace on his right knee in addition to the existing left knee brace. In October 2008, the Veteran reported increase in the left knee pain with instability. In May 2009, the Veteran stated that his knee condition had gotten worse since the recent ratings with the left knee worse than the right. He reported that he had to be careful when getting out of bed or getting out of a chair after sitting for a while. He indicated that he needed to move his left knee by hands when putting on pants or taking off shoes. He reported cracking of knees. Additionally, in July 2009, he reported that his knees throbbed when traveling by air or by car. In February 2010, the Veteran was fitted with new knee braces bilaterally. In March 2010, the Veteran rated his pain without medications at 5 out of the scale of 10 with 10 being the worst and with medications at 3 out of 10 in both knees. He said it was aching pain and the pain was felt all the time. 
An April 2016 physical therapy evaluation for his back condition indicates that he could walk up and down steep hills, one flight of stairs, curbs with moderate difficulty, limited by pain and other symptoms. The Veteran reported that he could walk up to 10 minutes with slight difficulty, limited by pain and other symptoms and that he could perform activities involving deep squatting with moderate difficulty. 
As per the April 2016 Board remand, the Veteran underwent a VA examination in September 2016. The Veteran reported that he had bilateral knee arthroscopies in 2000 and no new events occurred since the surgeries. The Veteran stated that he felt the left knee was unstable at times and he had to hold a handrail to descend stairs. He had physical therapy years ago for the knees, but he no longer exercised. He reported numbness over the left lateral calf and the top of the left foot. The Veteran did not report flare-ups. The results of the range of motion testing are summarized as below: 
 

Movement	Right			Left		
	Initial ROM	Repetitive ROM	Additional degree?  	Initial ROM	Repetitive ROM	Additional degree? 
Flexion [0-140]	130	130	No	130	130	No
Extension [0] 	0	0	No	0	0	No

For both knees, no pain was noted during the range of motion testing. There was no evidence of pain with weight bearing, no evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. No crepitus was found. No findings or opinion were reported for repetitive use over time. Muscle strength was normal and no ankylosis was found. No history of recurrent subluxation, lateral instability, or recurrent effusion was found. The joint stability testing yielded normal results. The functional impact on his ability to perform any type of occupational task such as standing, walking, lifting, or sitting was his inability to sit more than 30 minutes without standing to move around. 
As per the second May 2017 Board remand, another examination was conducted in October 2017. During this most recent examination of record, the Veteran reported that he “deals with” stiffness and indicated that he takes no medications for his knees. He complained of intermittent giving away, but uses no canes, walkers, or no braces. He reported that he sometimes uses a travel suitcase with wheels for support. He reported that he has received no treatment since about 2010. The Veteran did not report any flare-ups. His complained functional loss due to his knees was difficulty with stairs. The results of the range of motion testing are summarized as follows: 
Movement	Right			Left		
	Initial ROM	Repetitive ROM	Additional degree?  	Initial ROM	Repetitive ROM	Additional degree? 
Flexion [0-140]	110	110	No	120	120	No
Extension [0] 	0	0	No	0	0	No
Bilaterally, no pain was noted during the exam. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. There was no evidence of pain with weight bearing or evidence of crepitus. The examiner found that pain, weakness, fatigability, or incoordination does not significantly limit functional ability with repeated use over time. The Veteran did not report flare-ups. No ankylosis was found. No history of recurrent subluxation, lateral instability, or recurrent effusion was found. The joint stability testing yielded normal results. No use of assistive device was found. Other pertinent testing revealed that there was no objective evidence of pain bilaterally when either knee was used in non-weight bearing. Passive range of motion was the same as the active range of motion bilaterally, no pain was observed bilaterally. The examiner found no change in the diagnosis of the Veteran’s knees. Further, the examiner opined that the Veteran has a desk job and sits most of the day with some period of standing; he can accomplish that without need for medication or braces for his knees. The examiner found that there is no limitation in his work environment. 
1. Right knee with painful motion and instability
The symptomatology of the Veteran’s right knee disability does not warrant an evaluation in excess of 10 percent for the right knee disability under DC 5010-5260, 5262, based on limited motion. The evidence demonstrates that the right knee disability was manifested by pain and instability, but flexion was limited to 100 degrees generally or 60 degrees with pain, and extension and ankylosis are not shown for the entire appeal period. None of the VA examinations conducted during the appeal period reflects limitation of motion severe enough to warrant a 20 percent or higher under either DC 5260 or DC 5161, even though limitation of motion has been noted with pain throughout except in the 2017 VA examination. Therefore, an evaluation of 10 percent, but no higher, is warranted for the right knee for painful motion. 
Moreover, the evidence does not support an evaluation in excess of 10 percent for the right knee instability associated with the right knee degenerative joint disease under DC 5010-5257. At the February 2008 VA examination, the Veteran was found to have some instability in his right knee. Around that time, the Veteran was fitted with knee braces. However, later evidence, including September 2016 and October 2017 VA examination, does not support a finding of knee joint instability, and the Veteran was found not to be wearing knee braces when the most recent examination was administered. While he has reported complaints of instability, this is not confirmed and the braces provided are not being used. Therefore, the Board finds that an evaluation higher than 10 percent is not warranted for the right knee instability under DC 5010-5257.  These findings are indicative of no more than slight instability.
Because the evidence preponderates against the claim, the benefit-of-the-doubt rule does not apply. 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 
2. Left knee
The symptomatology of the Veteran’s left knee disability does not warrant an evaluation in excess of 10 percent under DC 5010-5260, 5261 for limitation of motion. The evidence demonstrates that the left knee disability was manifested by pain and flexion that was limited to 110 degrees generally or 80 degrees with pain, and limitation in extension, ankylosis, recurrent subluxation, and lateral instability are not shown.  
None of the VA examinations conducted during the appeal period reflects limitation of motion severe enough to warrant a 20 percent or higher under either DC 5260 or DC 5261, even though limitation of motion has been noted with pain throughout except in the 2017 VA examination. Therefore, an evaluation of 10 percent, but no higher, is warranted for the right knee for painful motion. The evidence does not support applicability of other diagnostic codes to the symptomatology of his left knee disability.  
Because the evidence preponderates against the claim, the benefit-of-the-doubt rule does not apply.  38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 
 
MICHAEL D. LYON
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Y. Taylor, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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