Painful motion of knee,

[mrstephens11]

I have a question about painful motion of the knee.  I know that both 5260 limitation of flexion and  5261 limitation of extension can both be granted for one knee and not considered pyramiding.  However, I just got a 10% rating for painful motion of the knee.  They didn't say if it was for flexion or extension.  Does the painful motion of joint in 38 CFR 4.59 only allow for one rating of the joint?  I would think that since both flexion and extension are rated differently that I should be getting 10% for both since my C&P exam states that it was noted on both.

Should I NOD, CUE, or ask for DRO review?

[jlrith]

38 CFR 4.59 covers the joint as a whole, including pain on "pressure or manipulation."

You received the minimum compensible rating for the joint, which is appropriate if you only have painful motion.  

Each joint has specific and comprehensive criteria for ratings higher than the minimum.  

Besides 5260 & 5261, 5257 might apply to your situation. 

5257 Knee, other impairment of:
Recurrent subluxation or lateral instability:
Severe ........................................................... 30
Moderate ....................................................... 20
Slight ............................................................. 10

 

[mrstephens11]

But what about "38 CFR 3.103 - Procedural due process and appellate rights "

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it is the obligation of VA to assist a claimant in developing the facts pertinent to the claim and to render a decision which grants every benefit that can be supported in law

38 CFR 4.59 doesn't specify the whole joint.  In fact it says:

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The intent of the schedule is to recognize painful motion with joint or particular pathology as productive of disability.

Since 5260 and 5261 are different disabilities/pathology doesn't painful motion apply to each of these independently?

And yes 5257 does apply to my knees, they give out from time to time.

[jlrith]

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it is the obligation of VA to assist a claimant in developing the facts pertinent to the claim and to render a decision which grants every benefit that can be supported in law

That is the regulation the VA violates the most.  And it won't matter until you get to the BVA, where the judges actually follow and apply the law properly.

4.59, in part: "as entitled to at least the minimum compensable rating for the joint."  It applies to the whole joint.  5260 & 5261 are different disabilities, and are rated separately, but they have specific criteria for each rating.  

It is possible to combine joint ratings with a rating under 4.59 without pyramiding: http://www.purpleheart.org/serviceprogram/Training2013/11-M--Anti-pyramiding-Lou.pdf

Since you have stability issues with your knees (and from the sound of it are not rated under 5257) you have a basis for an appeal: File a Notice of Disagreement (you then select either the traditional appeal or DRO from there.)  

CUE has a very high bar to cross; since this is just the proper application of regulations, it's not CUE material.  Plus a CUE won't help you in the least since your case has not been closed.  

*NOTE:  Back in 2003, there was a proposed revision to 4.59 posted, but it apparently went no where.  It was more detailed than the current wording.  

https://www.federalregister.gov/documents/2003/02/11/03-2119/schedule-for-rating-disabilities-the-musculoskeletal-system

[pwrslm]

I would look at how you put it in your claim. If you put it 2 claims, one for extension, the second for flexion, then it would be something that I would push. If you think it should have been automatic, you will  need to appeal the decision. I think finding a good lawyer who deals with appeals and getting an opinion from him would be smart.

You can also research this topic at the VBA and CAVC to see if there was ever an award of this type for pain on motion.

[jlrith]

Here is official guidance from the VA:

http://www.benefits.va.gov/warms/docs/admin21/m21_1/mr/part3/subptiv/ch04/m21-1mriii_iv_4_seca.doc

 

Section h:

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Be aware of the following when considering the role of pain in evaluations for multiple motions of a single joint:

·   When either of two qualifying joint motions is actually limited to a compensable degree and there is painful but otherwise noncompensable limitation of the complementary movement, only one compensable evaluation can be assigned. 

-  Mitchell v. Shinseki, 25 Vet. App. 32 (2011) reinforced that painful motion is the equivalent of limited motion only based on the specific language and structure of DC 5003, not for the purpose of DC 5260 and 5261.  For arthritis, if one motion is actually compensable under its 52XX-series DC, then a 10 percent rating under DC 5003 is not available and the complementary motion cannot be treated as limited at the point where it is painful. 

-  38 CFR 4.59 does not permit separate compensable evaluations for each painful joint motion.  It only provides that VA policy is to recognize actually painful motion as entitled to at least the minimum compensable rating for the joint.

·   When each qualifying joint motion is painful but motion is not actually limited to a compensable degree under its applicable 52XX-series DC, only one compensable evaluation can be assigned.

-  Assigning multiple compensable evaluations for pain is pyramiding. 

-  A joint affected by arthritis established by x-ray may be evaluated 10 percent disabling under DC 5003. 

-  For common joint conditions that are not rated under the arthritis criteria such as a knee strain or chondromalacia patella, a 10 percent evaluation can be assigned for the joint based on pain on motion under 38 CFR 4.59.

 

[mrstephens11]

Thanks.