Understanding Knee Injury Disability Rating

Knee injury is very common among servicemen.  The injury may be slight, but years later, many veterans develop severe knee arthritis attributed to their initial service injury.  Many veterans are so disabled by their knee arthritis that they are unable to work.  Regrettably, the rating for knee disability are outdated and have not been updated for many years.  As a result, regional offices around the country provide rating of only 10% to 20%.  Many veterans with knee disability are unable to maintain gainful employment, and yet they cannot apply for unemployability because their disabling condition is rated as only 20%.

This article is written to assist veteran service organizations to pursue higher rating for the veterans they  assist.  I know that the material is highly technical and may not be suitable for the general public.  I tried to provide the representatives however, with an introduction to the anatomy and the common pathology seen in knee injuries and chart a pathway to obtain higher rating for knee injuries.  I argue that the representative shall object to the practice.  Currently used by the VA of simple measurement of flexion and extension limitation.  The representative should insist that the limitation include full evaluation of stability, the use of braces, crutches and canes, the effect of pain, endurance , gait disturbance, and the combined effect of all those limitations on veterans ability to work and his daily activities.

Knee anatomy

The knee is one of the largest and most complex joints in the body. The knee joins the thigh bone (femur) to the shin bone (tibia). The smaller bone that runs alongside the tibia (fibula) and the kneecap (patella) are the other bones that make the knee joint.

Tendons connect the knee bones to the leg muscles that move the knee joint. Ligaments join the knee bones and provide stability to the knee:

The anterior cruciate ligament prevents the femur from sliding backward on the tibia (or the tibia sliding forward on the femur).

The posterior cruciate ligament prevents the femur from sliding forward on the tibia (or the tibia from sliding backward on the femur).

The medial and lateral collateral ligaments prevent the femur from sliding side to side.

Two C-shaped pieces of cartilage called the medial and lateral menisci act as shock absorbers between the femur and tibia.

Numerous bursae, or fluid-filled sacs, help the knee move smoothly.

Knee Conditions

·        
Chondromalacia patella (also called patellofemoral syndrome): Irritation of the cartilage on the underside of the kneecap (patella), causing knee pain. This is a common cause of knee pain in young people.

·        
Knee osteoarthritis: Osteoarthritis is the most common form of arthritis, and often affects the knees. Caused by aging and wear and tear of cartilage, osteoarthritis symptoms may include knee pain, stiffness, and swelling.

·        
Knee effusion: Fluid buildup inside the knee, usually from inflammation. Any form of arthritis or injury may cause a knee effusion.

·        
Meniscal tear: Damage to a meniscus, the cartilage that cushions the knee, often occurs with twisting the knee. Large tears may cause the knee to lock.

·        
ACL (anterior cruciate ligament) strain or tear: The ACL is responsible for a large part of the knee’s stability. An ACL tear often leads to the knee “giving out,” and may require surgical repair.

·        
PCL (posterior cruciate ligament) strain or tear: PCL tears can cause pain, swelling, and knee instability. These injuries are less common than ACL tears, and physical therapy (rather than surgery) is usually the best option.

·        
MCL (medial collateral ligament) strain or tear: This injury may cause pain and possible instability to the inner side of the knee.

·        
Patellar subluxation: The kneecap slides abnormally or dislocates along the thigh bone during activity. Knee pain around the kneecap results.

·        
Patellar tendonitis: Inflammation of the tendon connecting the kneecap (patella) to the shin bone. This occurs mostly in athletes from repeated jumping.

·        
Knee bursitis: Pain, swelling, and warmth in any of the bursae of the knee. Bursitis often occurs from overuse or injury.

·        
Baker’s cyst: Collection of fluid in the back of the knee. Baker’s cysts usually develop from a persistent effusion as in conditions such as arthritis.

·        
Rheumatoid arthritis: An autoimmune condition that can cause arthritis in any joint, including the knees. If untreated, rheumatoid arthritis can cause permanent joint damage.

·        
Gout: A form of arthritis caused by buildup of uric acid crystals in a joint. The knees may be affected, causing episodes of severe pain and swelling.

·        
Pseudogout: A form of arthritis similar to gout, caused by calcium pyrophosphate crystals depositing in the knee or other joints.

·        
Septic arthritis: Bacterial infection inside the knee can cause inflammation, pain, swelling, and difficulty moving the knee. Although uncommon, septic arthritis is a serious condition that usually gets worse quickly without treatment

Limitation of motion

as can be readily appreciated by reviewing the rating table enclosed, one can clearly see that for the common knee injuries presented the maximal rating is 30%.  I shall ignore the rating for knee, ankylosis.  Because the condition is extremely rare for veterans due to advances in knee surgery.  Ankylosis means that the knee is fixed and flexion and extension of the knee is at best incomplete.

5256  Knee, ankylosis of:
Extremely unfavorable, in flexion at an angle of 45° or more	60
In flexion between 20° and 45°	50
In flexion between 10° and 20°	40
Favorable angle in full extension, or in slight flexion between 0° and 10°	30
5257  Knee, other impairment of:
Recurrent subluxation or lateral instability:
Severe	30
Moderate	20
Slight	10
5258  Cartilage, semilunar, dislocated, with frequent episodes of “locking,” pain, and effusion into the joint	20
5259  Cartilage, semilunar, removal of, symptomatic	10
5260  Leg, limitation of flexion of:
Flexion limited to 15°	30
Flexion limited to 30°	20
Flexion limited to 45°	10
Flexion limited to 60°	0
5261  Leg, limitation of extension of:
Extension limited to 45°	50
Extension limited to 30°	40
Extension limited to 20°	30
Extension limited to 15°	20
Extension limited to 10°	10
Extension limited to 5°	0

We should contrast , the rating for knee injuries with the rating for knee replacement.  It is ironic that actually after the veteran undergoes successful knee replacement with reduced pain instability and easier ambulation, the veteran is considered more disabled than he was before he underwent such surgery.  The only reason for the difference between the rating of this group of patients is that rating for artificial knee is rather new.  While the rating for knee injury was created before World War II.

5055  Knee replacement (prosthesis).
Prosthetic replacement of knee joint:
For 1 year following implantation of prosthesis		100
With chronic residuals consisting of severe painful motion or weakness in the affected extremity		60
With intermediate degrees of residual weakness, pain or limitation of motion rate by analogy to diagnostic codes 5256, 5261, or 5262.
Minimum rating		30

5257 Knee Instability:

Documented instability that is not correctable by bracing and that interferes with activities of daily living                  30

Documented instability that is correctable by bracing, but that interferes at times with activities of daily living and prevents activities such as running and jumping        20

Documented instability that is correctable by bracing and that does not interfere with activities of daily living, but at times may interfere with activities such as running and jumping                         10

Note: Combine with an evaluation of pain (under § 4.59) when appropriate

In 2003 , the VA after extensive studies has provided amendment to the rating for musculoskeletal injuries, which was published in the

Federal Register /Vol. 68, No. 28/Tuesday, February 11, 2003/Proposed Rules and, I argue, is binding on the veteran administration.  I will discuss this amendment later, but for the purpose of completing the discussion on knee replacement.  I would like to add that the VA proposes the following amendment:

“Knee replacement (diagnostic code

5055   Total or partial knee arthroplasty or replacement (with prosthesis):

From date of hospital admission for arthroplasty, either initial or revision                100

Requiring use of two crutches or a walker for ambulation                   1 90

Requiring use of one crutch or two canes for most ambulation, due to pain, instability, or weakness (mus¬cle strength grade zero to 2 out of 5); or with loss of more than 40 degrees of the full arc of motion                        70

Requiring use of one crutch or two canes only for ambulating long distances (500 feet or more), due to pain, instability, or weakness (muscle strength grade 3 to 4 out of 5); or with loss of 21 to 40 degrees of the full arc of motion                       50

Requiring use of one cane or brace for ambulation, due to pain, instability, or weakness; or with loss of 10 to 20 degrees of the full arc of motion                        40

Minimum evaluation following arthroplasty                                30

Note (1): A full arc of motion of the knee after arthroplasty is a range of motion of 0 to 110 degrees.

I argue that the same limitations should also be considered for knee injuries without knee replacement

Evaluation of pain

The Board most recently reviewed how rating of knee injuries should be performed [Citation Nr: 1302451 Decision Date: 01/23/13 Archive Date: 01/31/13 DOCKET NO. 10-11 530] relating:

“In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45 are for consideration.  DeLuca v. Brown, 8 Vet. App. 202 (1995).”

38 C.F.R. § 4.10.  holds that the basis of disability evaluation is the ability of the body, system or organ of the body to function under the ordinary conditions of daily life including employment.

38 C.F.R. § 4.40.   holds that  Disability of the musculoskeletal system is primarily the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance.  Functional loss may be due to the absence or deformity of structures or other pathology, but it may also be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion.  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  With respect to joints, inquiry must be directed to weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse.

 38 C.F.R. § 4.45. holds that  Degenerative arthritis established by x-ray findings is evaluated under Diagnostic Code 5003, which in turn is evaluated based on the limitation of motion under the appropriate diagnostic code for the specific joint involved,

The Board also must consider a Veteran’s pain, swelling, weakness, and excess fatigability when determining the appropriate rating for a disability using the limitation of motion diagnostic codes.  38 C.F.R. §§ 4.40, 4.45; see DeLuca v. Brown, 8 Vet. App. 202 (1995).

In Deluca the Court held:

“The Board, however, based its evaluation of the disability entirely on the recorded limitation of motion. Although it is possible that the examiners took into account the functional disability due to pain in determining the veteran’s limitation of motion, neither the record nor the BVA decision contains clear indication that they did so. It seems no less plausible that the examiners may have recorded only the actual limitation of motion and may not have considered whether there was any additional disability due to pain or weakness of the left shoulder

Determination of whether the application of sections 4.40 and 4.45 entitles the veteran to an increased rating requires factual findings as to the extent to which the veteran’s left-shoulder pain and weakness cause additional disability beyond that reflected in the measured limitation of his left-shoulder motion”

Additionally, VA General Counsel opinions provide for separate evaluations for knee instability and knee arthritis in certain cases. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5260, 5261, 5257 (2012); see also VAOPGCPREC 23-97; 62 Fed. Reg. 63604 (1997) (knee arthritis and instability may be rated separately under Diagnostic Codes 5003 and 5257, provided that any separate rating is based upon additional disability); VAOPGCPREC 9-98; 63 Fed. Reg. 56704 (1998) (if a disability rating under Diagnostic Code 5257 for instability of the knee is in effect, and there is X-ray evidence of arthritis, a separate rating for arthritis based on painful motion can be assigned under 38 C.F.R. § 4.59).

In Mitchell v. Shinseki [No. 09-2169 8/2011] the United States Court of Appeals for Veteran Claims (CAVC) held that remand is warranted where the examiner did not  reconcile a veteran’s complaints of pain and fatigue with the examination that found minimal loss of movement on passive flexion and extension.

§ 4.59 Evaluation of pain in musculoskeletal conditions.

When the evaluation criteria for a condition in § 4.71a are based on signs and symptoms other than pain, and pain is a complaint, combine (do not add) the evaluation based on criteria other than pain with an evaluation for pain based on the following scale, and assign a single (combined) evaluation for the condition under the appropriate diagnostic code:

(a)       Complaint of pain that globally interferes with and severely limits daily activities; meets the requirement for a 30-percent evaluation under this section; and a psychiatric evaluation has excluded other processes to account for the

pain     100

(b)       Complaint of pain at rest, with pain on minimal palpation or on attempted range of motion on physical examination; X-ray or other imaging abnormalities; and abnormal findings on a vascular or neurologic special study      30

(c)        Complaint of pain on any use, with pain on palpation and through at least one-half of the range of motion on physical examination; and X-ray or other imaging abnormalities              20

(d)       Complaint of pain on performing some daily activities, with pain on motion (through any part of the range of motion) on physical examination; and X-ray or other imaging abnormalities         10

(e)       Complaint of mild or transient pain on performing some daily activities, with correlative finding(s) on physical examination (for example, pain on palpation or pain on stressing the joint), but without X-ray or other imaging abnormalities      0

in 2003, the VA provided a handbook for the raters who perform the C&P evaluation.  The handbook was largely replaced by a computerized form, but it does indicate the importance the VA places on complying with CAVC holdings.  Specifically DeLuca

11.3 How is functional assessment of joints conducted?

Because the CAVC found that the traditional VA method of assessing disabilities for rating purposes – one-time measurement of active and passive ROM – was inadequate under VA regulations, as functional impairment may be underestimated, additional factors must be considered for each joint examined.  See Deluca v. Brown, 6 Vet. App. 321, 324 (1993).

 

These include:

1) pain with joint movement

2) weakened movement against varying resistance

3) lack of endurance following repetitive use

4) effects of episodic exacerbations (flare-ups) on functional ability. 

 

b. Each of these issues should be assessed and the amount the joint is additionally limited (if any) resulting from one or more of these factors should – if possible –be reported in degrees of additional loss of motion.  The absence of any (or all) of these factors should also be noted.  You must be specific as to where (i.e., from flexion or extension) any additional losses should be subtracted.  For example, if knee pain on ROM testing prevents full flexion and an additional ROM loss for pain of 20 degrees is warranted, you must specifically state the additional limitation of flexion due to pain (e.g., “An additional 20 degrees loss of knee flexion is warranted because of pain on movement” or, better and clearer, “Because of pain on movement, the ROM is estimated to be 0 to X rather than 0 to Y found on range of motion without taking pain into consideration.”).  At present there are no guidelines as to which tests should be used to determine the strength and endurance for the various joints.  These tests should be individualized, keeping in mind patient safety.

 

Example:  If shoulder abduction is 0 to 180 degrees against gravity, but there is evidence of pain (verbal complaint, facial grimace, etc.) between 120 degrees and 180 degrees, this should be documented.  If further testing for endurance against resistance (e.g., 10 repetitions using a 5-pound dumbbell) reduces shoulder abduction to 90 degrees, this should be reported.  If more than one factor is contributing to loss of ROM, state – if possible – which has the major functional impact.  This can be done as a comment.  For the above example, this might read:  “Comment: While shoulder abduction against gravity is full, 0 to 180 degrees, because of the combined effects of pain and lack of endurance, the veteran’s functional ROM is best estimated to be 0 to 90 degrees.”

c. Describe the patient’s functional disability as to effects on daily activities (eating, dressing, walking, breathing, etc.) and employment.

 

Combined knee injury disability rating and the rule against pyramiding

the VA frequently will raise only one condition and not address all the conditions raised by the veteran.  For example, if the veteran has limitation of motion, knee instability as well as surgery for removal of the meniscus the VA will simply choose one of the three often arguing that the rule against pyramiding allows him to do so

The law provides that a vet is entitled to a separate disability evaluation when an injury manifests in 2 different disabilities.

Under  38 C.F.R. § 4.14 – “Avoidance of Pyramiding”

the rule provides that evaluation of the same disability (or manifestation of disability) under various/different diagnoses is to be avoided.

  As long as the symptoms do not overlap or are duplicative, then the rule against pyramiding set forth in section 4.14 isn’t violated.

 Esteban v. Brown, 6 Vet.App. 259, 261-262 (1994)

clarifies the application of this law in Esteban.  Veteran was injured on right side of face in motor vehicle accident in January 1949 in Okinawa.

He sustained            4 scars (slight to moderate disfigurement),injury to facial muscles,

and pain on right side of face.  The BVA denied his claim for injury to his facial muscles and pain to his face and limited his benefits to the scars and assigned a 10% rating under DC 7800 for moderately disfiguring scars.

The court rejected the BVA analysis.  It held that the summary conditions may be rated separately unless they constitute the “same disability” or the “same manifestation” under 38 C.F.R. § 4.14.

The support for establishing, three separate disabilities is that “None of the symptomatology for any of the 3 conditions is duplicative of or overlapping with symptomatology of the other 2 conditions”.

Veterans symptomatology is distinct and separate:

•           (1) disfigurement;

•           (2) painful scars; and

•           (3) facial damage resulting in problems with mastication (chewing).

Thus, the court concluded that as a matter of law.  Veteran is entitled to combine (under 38 C.F.R. § 4.25) his 10% rating for disfigurement under DC 7800

with an additional 10% rating for tender and painful scars under DC 7804

and a third 10% rating for facial muscle injury interfering with mastication under DC 5325.

Pursuant to the Esteban  holding the veteran administration General Counsel provided an opinion binding on the VA (VA Gen. Coun. Prec. Op. 23-97 (July 1,1997)

it held that     Limitation of Motion and instability may be rated separately under DCs 5003, 5260, or 5261 for limitation of motion and DC 5257 for instability.

Pursuant to this decision .  The disability listed in the following rating code can be combined

® DC 5003 – Degenerative Arthritis

® DC 5260 – Limitation of Flexion

® DC 5261 – Limitation of Extension

® DC 5257 – Recurrent Subluxation or Lateral Instability

because none of the symptoms addressed in the limitation of motion DCs (DCs 5003, 5260, 5261) duplicate or otherwise overlap

under another opinion ( VA Gen. Coun. Prec. Op. 9-98)

A separate rating for arthritis could also be based on X-ray findings and painful motion under 38 C.F.R. § 4.59, per Lichtenfels v. Derwinski, 1 Vet.App. 484 (1991).

The Lichtenfel’ court held that the VA must combined, DC 5003, and §4.59

and thus 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% rating, per joint, even though there is no actual limitation of motion.”

A more recent decision by the CAVC ( Burton v. Shinseki, 25 Vet.App. 1 (2011)

held that Painful motion   even without x-ray findings of arthritis may also warrant a separate compensable rating under 38 C.F.R. § 4.59.

 VA Gen. Coun. Prec. Op. 9-2004 (Sept.17, 2004)

provides for Separate ratings under DC 5260 (leg, limitation of flexion) and DC 5261 (leg, limitation of extension), may be assigned for disability of the same joint.

Proposed amendment to musculoskeletal rating

In 2003 , the VA after extensive studies has provided amendment to the rating for musculoskeletal injuries, which was published in the

Federal Register /Vol. 68, No. 28/Tuesday, February 11, 2003/Proposed Rules

mysteriously, despite any objection to the proposed rules, the new rating code were not incorporated in the rating guidelines, I argue, however, that to these new rule are binding on the veteran administration.

In Gerard Cullen, , v. Eric K. Shinseki,.
United States Court Of Appeals For Veterans Claims
24 Vet. App. 74;2010 U.S. App. Vet. Claims LEXIS 1477 No. 08-1193June 10, 2010,

Cullen argued that the VA did not adequately provide separate rating to his lumbar spine injuries.  The VA realizing the weaknesses of the current rating codes argued before the court that they actually rely on the proposed amendment rule which they published 10 years earlier .  The court held that they must provide substantial deference to the proposed amendments offered by the VA

“Turning to VA’s notice of proposed rulemaking, published in the Federal Register in September 2002 (prior to the final rule’s enactment in November 2003….The Court concludes that VA’s position is consistent both with the regulation itself and with VA’s demonstrated interpretation of the regulation and is therefore due substantial deference from the Court. See Auer,   519 U.S. at 461-62; Cathedral Candle Co.,  400 F.3d at 1364”.

I therefore argue that when the old ratings were not replaced by the new ratings that the advocate should ask to the BVA to accept their own proposed rule as binding

the enclosed is our excerpts of the publications that can be found on:

Knee and Lower Leg Federal Register /Vol. 68, No. 28/Tuesday, February 11, 2003/Proposed Rules

Diagnostic code 5257 is currently titled ‘‘Knee, other impairment of,’’ but the criteria are based only on the extent of recurrent subluxation or lateral instability. Thirty percent is assigned if the condition is ‘‘severe,’’ 20 percent if it is ‘‘moderate,’’ and 10 percent if it is ‘‘slight.’’ The proposed amendment , provides a 30- percent evaluation if there is documented instability that is not correctable by bracing and that interferes with activities of daily living; a 20-percent evaluation if there is documented instability that is correctable with bracing, but that interferes at times with activities of daily living and that prevents activities such as running and jumping; and a 10- percent evaluation if there is documented instability that is correctable by bracing and that does not interfere with activities of daily living, but at times may interfere with activities such as running and jumping. The VA  proposes to add a note directing that an evaluation under diagnostic code 5257 may be combined with an evaluation for pain (under § 4.59)

Diagnostic code 5258 is currently titled ‘‘Cartilage, semilunar, dislocated, with frequent episodes of ‘locking,’ pain, and effusion into the joint’’. It provides a single evaluation level of 20 percent. The VA  proposes to provide a 20-percent evaluation for meniscus injury with episodes of giving way, locking, or joint effusion that interfere at times with activities of daily living and prevent activities such as running and jumping, and a 10-percent evaluation for meniscus injury with episodes of giving way, locking, or joint effusion that do not interfere with activities of daily living, but that at times interfere with activities such as running and jumping. The VA also  proposes that evaluation alternatively be based on instability, degenerative arthritis, etc., depending on the specific findings, under the appropriate diagnostic code, because these are possible effects of meniscus injury or surgery. The VA  also proposes to add a note directing that an evaluation under diagnostic code 5258 be combined with an evaluation for pain (under § 4.59) when appropriate..

Diagnostic codes 5260 and 5261 currently pertain to limitation of flexion of the leg and limitation of extension of the leg, respectively. Because the terms extension and flexion are functions of the knee joint. Flexion of the knee limited to 15 degrees is currently evaluated at 30 percent, flexion limited to 30 degrees is evaluated at 20 percent, flexion limited to 45 degrees is evaluated at 10 percent, and flexion limited to 60 degrees is evaluated at zero percent. Based on the  VHA Orthopedic Committee the VA  proposes to provide a 30-percent evaluation if flexion is limited to 30 degrees, a 20- percent evaluation if it is limited to 60 degrees, and a 10-percent evaluation if it is limited to 90 degrees.

Under diagnostic code 5261, currently ‘‘Leg, limitation of extension current evaluations are 50 percent if extension is limited to 45 degrees, 40 percent if it is limited to 30 degrees, 30 percent if it is limited to 20 degrees, 20 percent if it is limited to 15 degrees, 10 percent if it is limited to 10 degrees, and zero percent if it is limited to 5 degrees. The VA  proposes to provide evaluation levels of 50 percent if extension is limited to more than minus 30 degrees (lacks more than 30 degrees of full extension), 30 percent if extension is limited to between minus16            and 30 degrees (lacks 16 to 30 degrees of full extension), and 10 percent if extension is limited to between minus 5 and 15 degrees (lacks 5 to 15 degrees of full extension).

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