Evaluating Knee Disability

1
Evaluating Knee Disability

• General Counsel Precedent Opinion 23-97
• General Counsel Precedent Opinion 9-98
• General Counsel Precedent Opinion 9-2004
• Fast Letter 04-22
• Judicial Conference Call (October 7, 2004)

2
Avoidance of Pyramiding

• 38 CFR 4.14 states, in part The evaluation of
  the same disability under various diagnoses is to
  be avoided.

3
Avoidance of Pyramiding

• VA General Counsel has determined the knee joint
  may be evaluated under multiple diagnostic codes
  when there are different manifestations of the
  same disability.

4
General Counsel Opinion 23-97 Multiple Ratings
for Knee Disability

• When a claimant has arthritis and instability of
  the knee, does 38 CFR 4.71(a) authorize multiple
  ratings under diagnostic codes 5003 and 5257?

5
VAOPGC PREC 23-97

• DC 5257 provides for evaluation of instability of
  the knee without reference to limitation of
  motion.
• DC 5003, on the other hand, refers to x-ray
  evidence and limitation of motion. It does not
  reference instability of a joint.

6
Rating Schedule 38 CFR 4.71(a)

• 5257 instructs that recurrent subluxation or
  lateral instability be rated as slight, moderate,
  or severe.
• 5003 (5010) instructs that arthritis will be
  rated on the basis of limitation of motion under
  the appropriate diagnostic codes for the specific
  joint or joints involved. (e.g., 5003-5260) If a
  compensable evaluation is not warranted under the
  limitation of motion code, a 10 percent is for
  application for each major joint or group of
  minor joints affected by limitation of motion
  which is confirmed by objective findings of
  swelling, muscle spasm, or evidence of painful
  motion.

7
VAOPGC PREC 23-97

• Since the plain terms of DC 5257 and 5003 suggest
  that those codes apply either to different
  disabilities or different manifestations of the
  same disability, the evaluation of knee
  dysfunction under both codes would not amount to
  pyramiding.

8
VAOPGC PREC 23-97

• HELD
• A claimant who has arthritis and instability of
  the knee may be rated separately under diagnostic
  codes 5003 (limitation of motion) and 5257
  (instability).

9
Additional Considerations

• When determining the evaluation under 5003 and
  other limitation of motion diagnostic codes
  (5260, 5261,etc.), consider
• 4.40 Functional loss.
• 4.45 The joints.
• 4.59 Painful motion.

10
38 CFR 4.40

• Functional loss. Disability of the
  musculoskeletal system is primarily the
  inability, due to damage or infection in parts of
  the system, to perform the normal working
  movements of the body with normal excursion,
  strength, speed, coordination and endurance .
  Weakness is as important as limitation of motion,
  and a part which becomes painful on use must be
  regarded as seriously disabled.

11
38 CFR 4.45

• The joints. Consideration should be given to
• Less movement than normal
• More movement than normal
• Weakened movement
• Excess fatigability
• Incoordination
• Pain on movement, swelling, deformity, or atrophy
  of disuse.

12
38 CFR 4.40 Functional Loss.and 4.45 The
Joints.

• DeLuca v. Brown The Court held that
  consideration of the provisions of 38 CFR 4.40
  and 4.45 when evaluating disabilities involving
  the joints is required.
• This was repeatedly stated in other Court
  decisions prior to DeLuca most notably
  Schafrath v. Derwinski Quarles v. Derwinski and
  Ferraro v. Derwinski.

13
38 CFR 4.59

• Painful Motion. With any form of arthritis,
  painful motion is an important factor 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.

14
38 CFR 4.59 Painful Motion

• Lichtenfels v Derwinski While there may be no
  limitation of motion (which is usually
  noncompensable under DC for limitation of
  motion), a compensable rating may be granted
  where there is painful motion. In arthritis,
  painful motion is an important factor of
  disability, which should be carefully noted and
  definitely related to affected joints. It is the
  intention to recognize actually painful joints,
  due to healed injury, as entitled to at least the
  minimum compensable rating for the joint.

15
Functional Loss and Pain

• Impact and severity of pain must be considered by
  applying 38 CFR 4.40, 4.45, and 4.59.
• The regulation 4.40 does not require a separate
  rating for pain, but the impact of pain must be
  considered in the rating. (Spurgeon V. Brown
  VAOPGCPREC 9-98)
• Diagnostic codes, which are based on limitation
  of motion, do not subsume functional loss due to
  pain. (DeLuca V. Brown)
• Functional loss due to pain must be supported by
  adequate pathology, and evidence by the visible
  behavior of the claimant. (Johnston v. Brown)

16
General Counsel Opinion 9-98 Multiple Ratings
for Musculoskeletal Disability and Application of
38 CFR 4.40, 4.45, and 4.59

• Held
• For a knee disability rated under DC 5257 to
  warrant a separate rating for arthritis based on
  x-ray evidence findings and limitation of motion,
  limitation of motion under DC 5260 or DC 5261
  need not be compensable but must at least meet
  the criteria for a zero-percent rating. A
  separate rating for arthritis could also be based
  on X-ray findings and painful motion under 38 CFR
  4.59.

17
VAOPGCPREC 9-98

• Held
• The provisions of 38 CFR 4.40, 4.45, and 4.59
  must be considered in assigning an evaluation for
  degenerative arthritis or traumatic arthritis
  under DC 5003 or DC 5010. Rating Personnel must
  consider functional loss and clearly explain the
  impact of pain upon the disability.

18
VAOPGCPREC 9-98

• Held
• If a musculoskeletal disability is rated under a
  specific diagnostic code that does not involve
  limitation of motion and another diagnostic code
  based on limitation of motion may be applicable,
  the latter diagnostic code must be considered in
  light of sections 4.40, 4.45, and 4.59.

19
Example

• Service connection is warranted for a veterans
  arthritis and instability of the right knee.
  Examination shows limitation of flexion of the
  right knee to 45 degrees with pain and mild
  instability. There is no additional functional
  loss with repetitive use. How should the
  veterans knee disability be evaluated?

20
Example

• 5003-5260 (or 5010-5260)
• Arthritis of the right knee with limitation of
  flexion
• 10 percent (based on requirements of 5260 being
  met - no additional functional limitations above
  the 10 percent is shown)
• AND
• 5257
• Instability of the right knee
• 10 percent

21
Example

• Service connection is warranted for a veterans
  arthritis and instability of the right knee.
  Examination shows limitation of extension of the
  right knee to 2 degrees with objective evidence
  of pain and mild instability. There is no
  additional functional loss with repetitive use.
  How should the veterans knee disability be
  evaluated?

22
Example

• 5261-5003 (or 5261-5010)
• Arthritis of the right knee with slight
  limitation of motion with pain
• 10 percent (consideration of pain under 5003 for
  a major joint and 4.40, 4.45, and 4.59)
• AND
• 5257
• Instability of the right knee
• 10 percent

23
FAQ QA Committee

• If a veteran has ligament instability and limited
  range of motion, but no arthritis present, can
  separate compensable evaluations be assigned
  under DC 5257 and under DC 5260 OR 5261?

24
FAQ QA Committee

• Separate evaluations MAY be assigned if there is
  instability and limitation of motion due to
  disease or injury other than arthritis.

25
FAQ QA Committee

• If both lateral instability and limitation of
  motion are found, separate evaluations would
  probably be warranted.
• Consideration of 38 CFR 4.40, 445, and 4.59
  must be considered with the diagnostic code
  involving the limitation of motion criteria.

26
Example

• Service connection is warranted for a veterans
  patellofemoral pain syndrome status post ACL
  repair and instability of the right knee.
  Examination shows limitation of flexion of the
  right knee to 112 degrees with objective evidence
  of pain and mild instability. There is no
  additional functional loss with repetitive use.
  How should the veterans knee disability be
  evaluated?

27
Example

• 5260
• Patellofemoral pain syndrome of the right knee
  with limitation of flexion
• 10 percent (considering 4.40, 4.45, and 4.59)
• AND
• 5257
• Instability of the right knee
• 10 percent

28
Rating Limitation of Flexion and Extension of the
Leg

• General Counsel Opinion 9-2004
• Held Separate ratings under DC 5260 (limitation
  of flexion) and DC 5261 (limitation of extension)
  may be assigned for disability of the same joint.
• Fast Letter 04-22
• Where a veteran meets the requirements for a 0
  percent or higher evaluation under DC 5260 and
  under DC 5261, an evaluation under each
  diagnostic code may be assigned.

29
Rating Limitation of Flexion and Extension of the
Leg

• Do not consider evaluating a knee joint under
  both diagnostic codes 5260 and 5261 unless the
  actual limitation of motion of the knee meets the
  schedular requirements for at least a
  noncompensable evaluation.

30
STAR Error

• RD dtd 6/29/09 cont a 10 eval under DC 5260
  based on LOM of flexion to 90 degrees painful
  motion. However, RD dtd 9/30/08 assigned a sep
  10 eval under DC 5261 based on LOM of ext to 10
  degrees. Multiple evaluations under multiple dcs
  for a single knee is not warranted unless the
  requirements for a 0 or higher eval is met. DC
  5260 requires LOM on flexion to 60 degrees for a
  sep eval. Sep 10 eval not warranted. Chg in
  combined eval eff 11/21/08. VAOGCPREC
  9-9838CFR4.14FL 04-2238CFR3.105(a)

31
STAR Error

• RD dtd 12-5-08 incorrectly states extension is
  normal for the right knee. VAE indicates
  extension limited to 10 degrees. Because flexion
  does not meet the 0 criteria, separate eval for
  flexion and extension are not warranted.
  VAOPGCPREC 9-04 and M21-1MR III.iv.6.C.11.a

32
STAR Error

• The rating fails to explain the basis of the 10
  evaluation as required per M21-1 MR
  III.iv.6.C.11.a. c. The rating cited 10
  criteria under 38 CFR 4.71a DCs 5259, 5260,
  5261 - all of which are not applicable as there
  is no semilunar cartilage removal, flexion is not
  45 degrees or less, extension is not less 10
  degrees. The rating appears to note the dx of
  knee strain is being rated analogous to cartilage
  removal which is not in compliance with 38 CFR
  4.20.

33
STAR Error

• The rating incorrectly assigned 2 compensable
  evaluations based on R knee flexion extension.
  The veteran does not meet the noncompensable
  criteria under 38 CFR 4.71 DC 5260. 38 CFR 4.59
  does not apply regarding a separate evaluation in
  this case as R knee LOM warrants compensation
  under DC 5261.

34
STAR Error

• RD assigned a 10 evaluation for RT knee flx
  under DC 5260 for painful motion (PM). 10
  evaluations were properly assigned for ext based
  on LOM (DC 5261) instability (DC 5257). A 10
  evaluation is warranted for PM under DC 5260 or
  5261 where no compensable LOM is demonstrated per
  the Schedule. Since a 10 evaluation was assigned
  for ext, a separate compensable evaluation is not
  warranted for flx unless it meets DC 5260
  criteria. REF 38CFR 4.59 4.71a DC 5260 5261
  FL 04-22 VAOPGCPREC 9-2004

35
VAOPGCPREC 9-2004 - Examples

• Range of motion is 0 degrees of extension and 30
  degrees of flexion.
• Question
• Can you grant two separate evaluations?

36
VAOPGCPREC 9-2004

• Answer
• No, two separate evaluations are not warranted.
• 20 percent under DC 5260, limitation of flexion,
  would be granted
• A disability rating under DC 5261 would not be in
  order as extension is not limited to 5 degrees.

37
VAOPGCPREC 9-2004 - Examples

• Range of motion is 30 degrees of extension and 90
  degrees of flexion.
• Question
• Can you grant two separate evaluations?

38
VAOPGCPREC 9-2004

• Answer
• No, two separate evaluations are not warranted.
• 40 percent under DC 5261, limitation of
  extension, would be granted
• A disability rating under DC 5260 would not be in
  order as flexion is not limited to 60 degrees.

39
VAOPGCPREC 9-2004 - Examples

• Range of motion is 15 degrees of extension and 45
  degrees of flexion.
• Question
• Can you grant two separate evaluations?

40
VAOPGCPREC 9-2004

• Answer
• Yes, two separate evaluations are warranted.
• 10 percent under DC 5260, limitation of flexion,
  would be granted
• 20 percent under DC 5261, limitation of extension

41
Rating Limitation of Flexion and Extension of the
Leg and Consideration of 38 CFR 4.40, 4.45, and
4.59

• If you can grant evaluations under both extension
  and flexion
• Consideration of the provisions of 38 CFR 4.40,
  4.45, and 4.59 must be considered. Where knee
  motion is actually impeded by pain, fatigability,
  weakness, etc., the evaluation assigned based on
  limitation of motion must consider the level at
  which motion is limited.
• Judicial Review Conference Call dated October 7,
  2004 clarified that the medical examination
  report must show the additional limitation of
  motion caused by pain, fatigability, or weakness
  (actual range of motion).

42
Example

• Full range of motion is shown on examination, but
  on repetitive use, extension is limited to 10
  degrees and flexion is limited to 45 degrees due
  to fatigue.
• Question
• Can you grant two separate evaluations?

43
Example

• Yes, two separate evaluations are warranted
• 10 percent under DC 5260, limitation of flexion,
  would be granted
• 10 percent under DC 5261, limitation of
  extension, would be granted

44
Rating Limitation of Flexion and Extension of the
Leg and Consideration of 38 CFR 4.40, 4.45, and
4.59

• Where joint motion is not limited, but there is
  objective evidence of pain on motion, whether in
  flexion, extension, or both, only one compensable
  evaluation would be warranted under EITHER
  diagnostic code 5260 OR 5261.

45
Example

• Full range of motion is shown on examination, but
  on repetitive use, objective evidence of pain is
  shown with extension and with flexion at
  end-points of movement
• Question
• Can you grant two separate evaluations?

46
Example

• No, two separate evaluation are not warranted.
• Either a 10 percent evaluation could be assigned
  under 5260 or 5261.

47
Rating Limitation of Flexion and Extension of the
Leg and Consideration of 38 CFR 4.40, 4.45, and
4.59

• If there is compensable limitation of flexion and
  extension and there is objective evidence of pain
  on motion, but such pain does not actually impede
  motion consider elevating one of the compensable
  evaluations, if it is determined that the painful
  motion results in additional disability beyond
  that reflected in the measured limitation of
  motion. To elevate both evaluations based on
  painful motion would constitute pyramiding.

48
Example

• Range of motion is 10 degrees of extension and 45
  degrees of flexion. The examiner stated that
  there is additional functional loss due to pain,
  incoordination, impaired ability to execute skill
  movements smoothly, and fatigability
• Question
• Can you grant two separate evaluations?

49
Example

• Yes, two separate evaluations are warranted
• 10 percent under DC 5260, limitation of flexion,
  would be granted
• 10 percent under DC 5261, limitation of
  extension, would be granted
• Consideration would be given to elevating ONE of
  the evaluations to 20 percent, if it was
  determined that additional disability is present
  beyond that reflected in the measured limitation
  of motion.

50
Evaluating Knee Disability

• There is a possibility that a single knee could
  be evaluated under three DC codes.
• If,
• There is objective evidence of instability
• Flexion is limited to at least 60 degrees
• Extension is limited to at least 5 degrees
• Then, three evaluations would be warranted.

51
Questions??