Transcript Properly Evaluating Knee Disabilities

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)
Avoidance of Pyramiding
• 38 CFR §4.14 states, in part –
“The evaluation of the same
disability under various
diagnoses is to be avoided.”
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.
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?
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 xray evidence and limitation of motion. It
does not reference instability of a joint.
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.
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.
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).
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.
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.
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.
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.
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.
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.
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)
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.
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.
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.
Example
• Service connection is warranted for a
veteran’s 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
veteran’s knee disability be evaluated?
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
Example
• Service connection is warranted for a
veteran’s 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 veteran’s knee
disability be evaluated?
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
FAQ – Q&A 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?
FAQ – Q&A Committee
• Separate evaluations MAY be
assigned if there is instability
and limitation of motion due to
disease or injury other than
arthritis.
FAQ – Q&A 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.
Example
• Service connection is warranted for a
veteran’s 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 veteran’s knee disability
be evaluated?
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
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.
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.
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 998;38CFR4.14;FL 04-22;38CFR3.105(a)
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
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.
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.
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
VAOPGCPREC 9-2004 Examples
Range of motion is 0 degrees of extension
and 30 degrees of flexion.
Question:
Can you grant two separate evaluations?
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.
VAOPGCPREC 9-2004 Examples
Range of motion is 30 degrees of
extension and 90 degrees of flexion.
Question:
Can you grant two separate evaluations?
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.
VAOPGCPREC 9-2004 Examples
Range of motion is 15 degrees of
extension and 45 degrees of flexion.
Question:
Can you grant two separate evaluations?
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
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).
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?
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
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.
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?
Example
• No, two separate evaluation are not
warranted.
• Either a 10 percent evaluation could be
assigned under 5260 or 5261.
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.
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?
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.
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.
Questions??