Citation Nr: 1751034 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 17-26 020 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Entitlement to a rating in excess of 10 percent for right knee osteoarthritis, status post meniscal tear, and status post anterior cruciate ligament ACL repair prior to March 3, 2017, and in excess of 20 percent thereafter. 2. Entitlement to a rating in excess of 10 percent for left knee osteoarthritis, status post ACL tear and repair prior to March 3, 2017, and in excess of 30 percent thereafter. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Leifert, Associate Counsel INTRODUCTION The Veteran had active military service from August 1989 to July 1997. This case comes before the Board of Veterans' Appeals (Board) following a June 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland, which continued ratings of 10 percent for right and left knee disabilities. The Veteran timely appealed the ratings assigned. In March 2017, the RO awarded a rating of 20 percent for a right knee disability, effective March 3, 2017; and a rating of 30 percent for a left knee disability, effective March 3, 2017. The Veteran did not indicate satisfaction with the grant of these ratings, and these issues therefore remain on appeal. See AB v. Brown, 6 Vet. App. 35, 39 (1993) (a veteran is presumed to be seeking the maximum possible rating unless he indicates otherwise). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. Prior to March 3, 2017, the Veteran's right knee disability was manifested by pain and range of motion no worse than flexion of 130 degrees and extension of 0 degrees. 2. From March 3, 2017, the Veteran's right knee disability is manifested by constant pain, crepitus, and range of motion no worse than flexion of 120 degrees and extension of 10 degrees. 3. The evidence is in equipoise as to whether symptoms of the Veteran's right knee disability have more nearly approximated slight lateral instability, but the preponderance of the evidence reflects that they have not more nearly approximated moderate lateral instability. 4. The evidence is in equipoise as to whether the Veteran's right knee disability is manifested by dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. 5. Prior to March 3, 2017, the Veteran's left knee disability was manifested by pain and range of motion no worse than flexion of 130 degrees and extension of 0 degrees. 6. From March 3, 2017, the Veteran's left knee disability is manifested by constant pain, crepitus, and range of motion no worse than flexion of 120 degrees and extension of 20 degrees. 7. The evidence is in equipoise as to whether symptoms of the Veteran's left knee disability have more nearly approximated slight lateral instability, but the preponderance of the evidence reflects that they have not more nearly approximated moderate lateral instability. 8. The evidence is in equipoise as to whether the Veteran's left knee disability is manifested by dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for limitation of motion due to a right knee disability prior to March 3, 2017; and in excess of 20 percent thereafter, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.20, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5003-5261, 5260 (2017). 2. With reasonable doubt resolved in favor of the Veteran, the criteria for a separate rating of 10 percent, but no higher, for recurrent subluxation/lateral instability of the right knee have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.71a, DC 5257 (2017). 3. With reasonable doubt resolved in favor of the Veteran, the criteria for a separate rating of 20 percent for semilunar cartilage dislocation of the right knee have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.71a, DC 5258 (2017). 4. The criteria for a rating in excess of 10 percent for limitation of motion due to a left knee disability prior to March 3, 2017; and in excess of 30 percent thereafter, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.20, 4.40, 4.45, 4.59, 4.71a, DCs 5003-5261, 5260 (2017). 5. With reasonable doubt resolved in favor of the Veteran, the criteria for a separate rating of 10 percent, but no higher, for recurrent subluxation/lateral instability of the left knee have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.71a, DC 5257 (2017). 6. With reasonable doubt resolved in favor of the Veteran, the criteria for a separate rating of 20 percent, but no higher, for semilunar cartilage dislocation of the left knee have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.71a, DC 5258 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Neither the Veteran nor her representative has raised any issues with regard to the duty to notify or duty to assist, and no such issues have been raised by the evidence of record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). II. Analysis Disability ratings are intended to compensate for impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Id. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran's favor. 38 C.F.R. §§ 4.2, 4.3. If there is a question as to which disability rating to apply to the Veteran's disability, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where entitlement to compensation has already been established, VA must address the evidence concerning the state of the disability from the time period one year before the claim for an increase was filed until VA makes a final decision on the claim. The United States Court of Appeals for Veterans Claims (Court) has held that consideration of the appropriateness of a staged rating is required. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The Veteran contends that her right knee disability is more disabling than reflected by the 10 percent disability rating assigned prior to March 3, 2017, and 20 percent thereafter. Likewise, she contends that her left knee disability is more disabling than reflected by the 10 percent disability rating assigned prior to March 3, 2017, and 30 percent thereafter. When evaluating musculoskeletal disabilities, VA must consider granting a higher rating in cases in which the Veteran experiences functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination (to include during flare-ups or with repeated use), and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Additionally, under VAOPGCPREC 9-2004 (September 17, 2004), separate ratings under Diagnostic Code 5260 and Diagnostic Code 5261 may be assigned for limitation of flexion and limitation of extension of a single knee joint. As stated above, in its June 2013 rating decision, the RO continued a 10 percent rating for the Veteran's right and left knee disabilities under DC 5260. In March 2017, the RO awarded a rating of 20 percent for the Veteran's right knee disability under DC 5003-5258, effective March 3, 2017; and a rating of 30 percent for the Veteran's left knee disability under DC 5003-5261, effective March 3, 2017. See 38 C.F.R. § 4.27 (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 diagnostic code is shown after the hyphen). Under DC 5003 for degenerative arthritis, degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 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 major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. 38 C.F.R. § 4.71a. The knee is a major joint. See 38 C.F.R. § 4.45. DC 5260 provides the rating criteria for limitation of flexion of the leg. Under this diagnostic code provision, flexion that is limited to 60 degrees is noncompensable; flexion that is limited to 45 degrees warrants a 10 percent disability rating; flexion that is limited to 30 degrees warrants a 20 percent disability rating; and flexion that is limited to 15 degrees warrants a 30 percent disability rating. 38 C.F.R. § 4.71a, DC 5260. DC 5261 provides the rating criteria for limitation of extension of the leg. Under this diagnostic code provision, extension that is limited to 5 degrees is noncompensable; extension that is limited to 10 degrees warrants a 10 percent disability rating; and extension limited to 15 degrees warrants a 20 percent disability rating. Extension limited to 20 degrees warrants a 30 percent disability rating; extension limited to 30 degrees warrants a 40 percent disability rating; and extension limited to 45 degrees warrants a 50 percent disability rating. 38 C.F.R. § 4.71a, DC 5261. Normal range of knee motion is 140 degrees of flexion and zero degrees of extension. 38 C.F.R. § 4.71, Plate II. VA General Counsel has provided that separate ratings under 38 C.F.R. § 4.71a, DC 5260 (limitation of flexion of the leg) and under DC 5261 (limitation of extension of the leg), may be assigned for disability of the same joint. VAOPGCPREC 9-2004 (September 2004). The rating schedule provides for a 10 percent rating for slight recurrent subluxation or lateral instability, a 20 percent rating for moderate recurrent subluxation or lateral instability, and a 30 percent rating for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, DC 5257. VA General Counsel provided guidance in VAOPGCPREC 23-97 (July 1997) that a veteran who has arthritis and instability of the knee may be rated separately under DCs 5003 and 5257, provided that a separate rating must be based upon additional disability. When a knee disorder is already rated under DC 5257, the Veteran must also have limitation of motion under DC 5260 or 5261 in order to obtain a separate rating for arthritis. If the Veteran does not at least meet the criteria for a zero percent rating under either of those codes, there is no additional disability for which a rating may be assigned. In VAOPGCPREC 9-98, General Counsel also clarified, if a Veteran has a disability rating under DC 5257 for instability of the knee, and there is also x-ray evidence of arthritis, a separate rating for arthritis could also be based on painful motion under 38 C.F.R. § 4.59. Given the findings of osteoarthritis, the General Counsel stated that the availability of a separate evaluation under DC 5003 in light of sections 4.40, 4.45, 4.59 must be considered. See Lichtenfels, 1 Vet. App. 484. Absent x-ray findings of arthritis, limitation of motion should be considered under DCs 5260 and 5261. The claimant's painful motion may add to the actual limitation of motion so as to warrant a rating under DCs 5260 or 5261. The terms slight, moderate, and marked as used in the various DCs are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence. 38 C.F.R. § 4.6. It should also be noted that use of terminology such as severe by VA examiners and others, although an element to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. DC 5258 provides for a single 20 percent rating for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. In this case, a June 2013 private treatment record reflects sharp left knee pain with catching and locking of the left knee, but the Veteran denied any "giving way." During her examination, both knees showed good alignment. She had normal extension bilaterally and bilateral flexion of 130 degrees. She had good stability, negative McMurray test, some discomfort to palpation along the medial joint line and lateral joint line, and no swelling or effusion. X-rays confirmed early mild-to-moderate arthritis in the medial compartment with osteophyte along the medial margin. The Veteran's current symptoms were likely due to torn meniscus, loose bodies, progressive osteoarthritis in the medial compartment, and possible iliotibial (ITB) band friction syndrome on the left lateral knee. Magnetic resonance imaging (MRI) of the left knee revealed abnormal signal in the posterior horn of the medial meniscus, suspicious for meniscus tear. The meniscus was small, which was most likely from a prior surgery. Private treatment records in September 2016 document MRI of the right knee with impression of status post ACL repair with intact appearance of the graft; attenuated appearance of the lateral meniscus, which might be post-surgical in nature or secondary to a tear; complex medial meniscus tear; high-grade chondromalacia within all three compartments of the knee; and heterogeneous appearance of the marrow, likely representing a hematopoietic process such as anemia. MRI of the left knee revealed an impression of status post ACL repair with intact appearance of the graft; attenuated appearance of the medial meniscus, likely postsurgical in nature though correlation with prior surgical history and comparison with prior studies was recommended; high-grade chondromalacia within all three compartments of the knee; and mild quadriceps tendinopathy. A March 2017 VA examination report reflects diagnoses of right knee meniscal tear in 2004, bilateral ACL tear, and bilateral knee osteoarthritis. The examiner noted that the Veteran had ACL reconstruction surgeries in 1992 and 1994, but continued to have pain, swelling, and instability in both knees. She experienced clicking, popping, and grinding in both knees; and had to have fluid withdrawn from both knees multiple times. X-rays indicated bone-on-bone rubbing, and the Veteran reported that she was unable to extend her legs out straight at night to sleep so she used a pillow for support. Her current symptoms were pain, stiffness, swelling, cracking, popping, grinding, and instability. She was unable to lay flat with her legs extended, unable to sit or stand for extended periods, and unable to do house work without taking multiple breaks; and had difficulty going up and down stairs secondary to pain. She currently used bilateral knee braces to aid in stability, a pillow nightly under her knees to be able to sleep, ice and heat therapy, and took pain medication. She continued home physical therapy exercises. She endorsed flare-ups in both knees every couple of weeks of severe intensity that lasted 30 minutes to a few hours, and resulted in increased stiffness, pain, and swelling, such that it became painful to do any type of work and resulted in her not being able to go to work. The Veteran also reported that when she walked her knees weakened and gave way. She denied any falls, but stated that she nearly fell and had severe pain in both knees. Range of motion of the right knee was flexion of 120 degrees and extension of 10 degrees with pain on all movement that did not result in or cause functional loss. There was tenderness to anterior and medial portions of the right knee with light palpation, and pain and tenderness noted with deep palpation. Range of motion of the left knee was flexion of 120 degrees and extension of 20 degrees with pain on all movement that did not result in or cause functional loss. There was tenderness to anterior, lateral, and medial portions of the left knee with light palpation, and pain noted with deep palpation. There was pain on weight-bearing and evidence of crepitus bilaterally. There was no additional limitation of motion in both knees on repetition, and the examiner stated that he was unable to say without resorting to mere speculation whether pain, weakness, fatigability, or incoordination significantly limited functional ability over a period of time. The Veteran had weakened muscle strength in the bilateral knees of 3/5 with flexion and 2/5 with extension, but no muscle atrophy. The examiner noted that the Veteran was unable to extend her knees to 0 degrees and that there were tremors/spasms on flexion when relaxing. The examiner noted that there was no history of recurrent subluxation or lateral instability, but that there was a history of recurrent effusion. The Veteran was unable to perform the joint stability tests in either knee due to pain, but she reported that she experienced instability in both knees intermittently while walking. The examiner noted that the Veteran had a meniscus tear in the right knee in 2004, and that she experienced frequent episodes of joint "locking" and pain in both knees. The examiner also noted that the Veteran's current signs and symptoms from her ACL reconstruction were floating bone and meniscal tear, pain, stiffness, crepitus, popping, joint "locking," and instability in the right knee, and pain, stiffness, crepitus, popping, joint "locking," and instability in the left knee. She noted that the Veteran used a knee brace regularly due to bilateral knee instability. Upon review of the evidence, the Board finds that a rating for the right knee in excess of 10 percent prior to March 3, 2017, and in excess of 20 percent thereafter for limitation of motion is not warranted. Likewise, a rating for the left knee in excess of 10 percent prior to March 3, 2017, and in excess of 30 percent thereafter for limitation of motion is not warranted. As an initial matter, the Board notes that the RO rated the Veteran's right knee under DC 5003-5258, and the Veteran's left knee under DC 5003-5261. However, the Board finds that the Veteran's right knee should be rated under DC 5003-5261 for limitation of motion, and that, from March 3, 2017, separate ratings for each knee under DC 5257 (instability) and DC 5258 (semilunar cartilage) are warranted. Prior to March 3, 2017, the evidence indicates that the Veteran had flexion of 130 degrees and normal extension bilaterally. There was no indication of instability and, while the Veteran reported catching and locking of the left knee, she denied any "giving way." There was no indication of frequent popping, "locking," or effusion. Moreover, there was no ankylosis, indication of tibia and fibula impairment, or genu recurvatum. As such, prior to March 3, 2017, a rating in excess of 10 percent is not warranted under any DC associated with the knee. From March 3, 2017, the evidence reflects right knee flexion of 120 degrees and extension of 10 degrees, with flare-ups, pain on movement, frequent joint popping and "locking," recurrent effusion, and instability. Likewise, the evidence shows that the Veteran had left knee flexion of 120 degrees and extension of 20 degrees, with flare-ups, pain on movement, frequent joint popping and "locking," recurrent effusion, and instability. The Veteran had diminished muscle strength bilaterally, was unable to extend either knees to 0 degrees, and had tremors and muscle spasms with flexion when relaxing bilaterally. Although the VA examiner noted that the Veteran experienced pain on motion, the pain and limitation are contemplated by the 20 percent rating currently assigned for the right knee and the 30 percent rating currently assigned for the left knee. Thus, the Board finds that the evidence does not reveal limitation of flexion or extension of the left knee sufficiently restricted to warrant a rating higher than 20 percent for the right knee and higher than 30 percent for the left knee under 5261, or a separately compensable rating under DC 5260 at any time during the appeal period. The Board has also considered the Veteran's statements including her description of flare-ups. The March 2017 VA examiner reviewed the Veteran's file and carefully considered the Veteran's statements of pain, instability, recurrent effusion, and frequent "locking" and popping. However, she noted that she was unable to estimate any additional limitation of motion due to flare-ups without resorting to mere speculation because "there was no conceptual or empirical basis for making such a determination without directly observing function under these conditions." Moreover, the Veteran indicated that her flare-ups resulted in increased stiffness, swelling, and pain, not additional limitation of extension or flexion. Thus, the Veteran did not indicate that there was additional limitation of motion during flare-ups of a degree that would have resulted in extension limited to 20 degrees warranting a 30 percent rating for the right knee, or limited to 30 degrees warranting a 40 percent rating for the left knee under DC 5261, or flexion limited to 45 degrees bilaterally warranting a 10 percent rating under DC 5260. The Board has also considered whether the Veteran is entitled to separate ratings for right and left knees under DC 5257, which provides ratings for different degrees of recurrent subluxation or lateral instability. The March 2017 VA examiner noted instability and "giving way" in both knees; that the Veteran wore a knee brace on both knees due to instability; and that while she had not fallen, she had nearly done so on several occasions. However, the Veteran was unable to complete the anterior, posterior, medial, and lateral instability tests for either knee due to pain, and there was no evidence of history of recurrent patellar subluxation/dislocation. Given the mixed findings regarding instability, the evidence is in equipoise as to whether the Veteran has experienced lateral instability warranting a separate compensable rating under DC 5257. Resolving reasonable doubt in favor of the Veteran, entitlement to a separate compensable rating for both the right and left knees recurrent subluxation/lateral instability under DC 5257 is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. As to the appropriate rating under DC 5257, the March 2017 VA examination reflects that the Veteran experienced intermittent instability in both knees when walking, and that she denied any falls due to instability. Further, the Veteran has not indicated a significant degree of severity during the pendency of her appeal. Therefore, the Board finds that the symptoms most nearly approximated slight lateral instability during the pendency of the claim, and the preponderance of the evidence reflects that they did not more nearly approximate moderate instability. The benefit of the doubt doctrine is thus not for application in this regard, and a separate initial rating of 10 percent, but no higher, for left knee lateral instability is warranted under DC 5257. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. The Board has also considered whether the Veteran is entitled to separate ratings for right and left knees under DC 5258, which provides a 20 percent rating for dislocation of semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. In this regard, while she has not undergone the removal of semilunar cartilage, the evidence reflects a meniscus (semilunar cartilage) tear in the right knee, and a possible meniscus tear in the left knee. In addition, the March 2017 VA examiner noted that the Veteran experienced frequent "locking" and pain in both knees, as well as recurrent effusion in the joints. As such, resolving reasonable doubt in the Veteran's favor, separate ratings under DC 5258 for both the right and left knees are warranted. The Board has considered the applicability of other potential diagnostic codes. As the evidence of record fails to demonstrate ankylosis, impairment of the tibia or fibula, or genu recurvatum, the Veteran is not entitled to a higher or separate rating under DCs 5256, 5262, or 5263 respectively, in the right or left knees. For all the foregoing reasons, the Board finds that the claim for a rating in excess of 10 percent for limitation of motion of the right knee prior to March 3, 2017, and in excess of 20 percent thereafter must be denied. Likewise, the claim for a rating in excess of 10 percent for limitation of motion of the left knee prior to March 3, 2017, and in excess of 30 percent thereafter must also be denied. Further, reasonable doubt has been resolved in favor of the Veteran in granting separate 10 percent disability ratings under DC 5257 for the right and left knees. Moreover, reasonable doubt has been resolved in favor of the Veteran in granting separate 20 percent disability ratings under DC 5258 for the right and left knees. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. ORDER Entitlement to a rating in excess of 10 percent for a right knee disability prior to March 3, 2017; and in excess of 20 percent thereafter, is denied. Entitlement to a separate rating of 10 percent, but no higher, for recurrent subluxation/lateral instability of the right knee, is granted, subject to controlling regulations governing the payment of monetary awards. Entitlement to a separate rating of 20 percent for semilunar cartilage dislocation of the right knee is granted, subject to controlling regulations governing the payment of monetary awards. Entitlement to a rating in excess of 10 percent for a left knee disability prior to March 3, 2017; and in excess of 30 percent thereafter, is denied. Entitlement to a separate rating of 10 percent, but no higher, for recurrent subluxation/lateral instability of the left knee, is granted, subject to controlling regulations governing the payment of monetary awards. Entitlement to a separate rating of 20 percent for semilunar cartilage dislocation of the left knee is granted, subject to controlling regulations governing the payment of monetary awards. ____________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs