Citation Nr: 1756963 Decision Date: 12/08/17 Archive Date: 12/15/17 DOCKET NO. 10-09 946 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a disability rating in excess of 20 percent for a service-connected lateral meniscal tear of the left knee. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Baker, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1980 to May 2002. This matter comes to the Board of Veteran's Appeals (Board) on appeal from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. A Board hearing was requested and scheduled, but the Veteran failed to report for her hearing. She subsequently withdrew her hearing request. The matter was previously before the Board in April 2013, April 2016, and March 2017. The matter now returns to the Board for appellate consideration. The issue of entitlement to a TDIU has not been raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). FINDINGS OF FACT 1. The most probative evidence of record does not show that the Veteran's left knee disability is manifested by severe recurrent subluxation or lateral instability. 2. The Veteran's left knee disability is manifested by torn semilunar cartilage, with frequent episodes of pain, locking, and effusion, without compensable limitation of motion. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 20 percent for left knee instability or recurrent subluxation due to a meniscal tear have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2015); 38 C.F.R. §§ 3.951(b), 4.59, 4.71a, Diagnostic Code 5257 (2016). 2. The criteria for entitlement to a separate 20 percent disability rating for other impairment of the left knee, residual of lateral meniscal tear, have been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2015); 38 C.F.R. §§ 3.951(b), 4.59, 4.71a, Diagnostic Code 5258(2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2015); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Legal Criteria Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2015); 38 C.F.R. § 4.1 (2016). In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2 (2016); Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7 (2016). It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21 (2016). Consideration of the appropriateness of a staged rating, meaning assign different ratings at different times during the rating period to compensate the Veteran for times when the disability may have been more severe than at others, is required for increased rating claims, irrespective of whether it is an initial rating at issue or instead an established rating. See Hart v. Mansfield, 21 Vet. App. 505 (2008). As such, the Board has considered whether different ratings for different periods of time, based on the facts found, are warranted throughout the appeal. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59 (2016). The provisions of 38 C.F.R. § 4.59 (2016), which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). The evaluation of the same disability or symptoms under different DCs, known as "pyramiding", must be avoided. See 38 C.F.R. § 4.14 (2016). However, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptoms for one condition are not duplicative of or overlapping those of the other condition. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The holding in DeLuca clarified that, when evaluating musculoskeletal disabilities that are at least partly rated on the basis of limitation of motion, VA may consider granting a higher rating in cases in which there is functional loss due to pain, weakness, excess fatigability or incoordination, assuming these factors are not already contemplated by the relevant rating criteria. Functional loss due to pain is rated at the same level as functional loss where motion is impeded. Schafrath, 1 Vet. App. at 592. Pursuant to 38 C.F.R. § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in. See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995). However, although pain may cause functional loss, pain itself does not constitute functional loss. See Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011). Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance", in order to constitute functional loss. Id.; see 38 C.F.R. § 4.40. Degenerative arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint(s) involved. When the limitation of motion is noncompensable under the appropriate diagnostic code(s), a 10 percent rating is for application for each major joint affected by limitation of motion, to be combined, not added under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Under DC 5257, a 10 percent rating is warranted for slight recurrent subluxation or lateral instability; a 20 percent rating is warranted for moderate recurrent subluxation or lateral instability; and a 30 percent rating is warranted for severe recurrent subluxation or lateral instability. For the purpose of rating disability due to arthritis, the knee is considered a major joint. 38 C.F.R. § 4.45 (f) (2016). The terms "mild," "moderate," and "severe" are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Use of terminology such as "mild" or "moderate" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding a higher rating. 38 C.F.R. §§ 4.2, 4.6. Under 38 C.F.R. § 4.71a, DC 5258, disabilities involving cartilage, semilunar, dislocated, with frequent episodes of locking, pain, and effusion into the joint are assigned a maximum 20 percent rating Under 38 C.F.R. § 4.71a, DC 5260, a 10 percent rating is warranted for flexion of the knee limited to 45 degrees; a 20 percent rating is warranted for flexion limited to 30 degrees; and a 30 percent rating is warranted for flexion limited to 15 degrees. Under 38 C.F.R. § 4.71a, DC 5261, a 10 percent rating is warranted for extension of the knee limited to 10 degrees; a 20 percent rating is warranted for extension limited to 15 degrees; a 30 percent rating is warranted for extension limited to 20 degrees; a 40 percent rating is warranted for extension limited to 30 degrees; and a 50 percent rating is warranted for extension limited to 45 degrees. Normal range of motion of the knee is 0 degrees of extension to 140 degrees of flexion. See 38 C.F.R. § 4.71a, Plate II. Under 38 U.S.C.A. §7104, Board decisions must be based on the entire record, with consideration of all the evidence. The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. Timberlake v. Gober, 14 Vet. App. 122, 128-29 (2000). The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). Analysis The relevant rating period on appeal is from up to one year prior to the Veteran's filing of her claim for increase in December 2007. The Veteran's left knee condition is currently rated at 20 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5260. However, the record does not show compensable restrictions in flexion of the knee. The record does not show evidence of traumatic arthritis, ankylosis, removal of semilunar cartilage, genu recurvatum, or impairment of the tibia and fibula. Concerning the range of motion findings of the joint at issue, the Board notes that the VA examination reports do not include passive range of motion and do not specify range of motion with and without weight-bearing. See Correia v. McDonald, 28 Vet. App. 158 (2016). The fundamental issue for Correia is that VA examinations perform adequate joint testing for pain. Generally, active range of motion testing produces more restrictive results than passive range of motion testing, in that passive range of motion testing requires the physician to force the joint through its motions. There is also no indication that range of motion testing was performed other than on weight bearing. Therefore, there is no prejudice to the Veteran in relying on the VA examinations that involved active range of motion testing because such results tend to produce the "worst case scenario" of impairment and thus would tend to support the highest possible rating. The Veteran contends that she experiences constant pain in the left knee, which is worsened by prolonged standing or changing positions. She reports difficulty with stairs, and can not squat. The Veteran reports frequent buckling and instability of the left knee, and states that she wears a knee brace and sometimes uses a cane to help with stability. The record shows that the Veteran wore a knee brace in 2009, and had continued feelings of stiffness and instability in 2010. The Veteran reported to her physician that she had a falling incident in July 2010 due to her knee buckling. A May 2013 VA examination showed no subluxation or lateral instability. The Veteran indicated that her left knee only buckled occasionally in October 2013. A July 2014 record showed subluxation. A June 2016 VA examination found 1+ lateral instability. At her April 2017 VA examination, the Veteran reported having never fallen. There, the examiner indicated that the Veteran had a history of slight lateral instability, without recurrent subluxation. The left knee showed 1+ lateral instability. The examiner noted regular use of a brace, and occasional use of a knee scooter and walker. The Board affords great weight to the findings of the April 2017 VA examiner, who described the Veteran's instability as "slight." Thus, as the record does not show severe recurrent subluxation or lateral instability, entitlement to a rating in excess of 20 percent under DC 5257 is denied. However, the record also shows that the Veteran has a meniscal tear that has not required surgery. The record shows consistent reports of frequent joint locking, pain, and effusion. Thus, a separate 20 percent rating under DC 5258 is warranted. The record, as illustrated by multiple VA examinations, shows that at worst, the Veteran's flexion of the knee, even when considering flare-ups and repetitive use, was limited to 70 degrees. Although the Veteran consistently reports painful motion, and the record supports a finding of degenerative joint disease, the Veteran's knee pain is contemplated by his rating assigned under DC 5258 above, and a separate rating under DC 5003-5260 is not warranted. The Board recognizes that a May 2013 VA examination limited the Veteran's extension to 28 degrees. However, other VA examinations show no impairment in knee extension, and the Board finds that the record consistently shows no limitation in extension of the knee. Thus, a rating under DC 5261 is not warranted. The Board has considered whether the Veteran is entitled to higher ratings for the service-connected degenerative changes of the right knees under 38 C.F.R. §§ 4.40, 4.45 and 4.59 on the basis of additional functional loss during flare-ups or upon repetitive use over time. See DeLuca, 8 Vet. App. 202 (1995). However, the record does not show that the Veteran had additional functional loss during flare-ups or upon repetitive use over time such that the criteria for a higher rating was more closely approximated at any time during the appeal period. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, No. 15-2818, 2017 U.S. App. Vet. Claims LEXIS 319, *8-9 (Vet. App. March 17, 2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). (CONTINUED ON NEXT PAGE) ORDER Entitlement to a disability rating in excess of 20 percent for recurrent subluxation and lateral instability, residual of lateral meniscal tear of the left knee, is denied. Entitlement to a separate 20 percent disability rating for other impairment of the left knee, residual of lateral meniscal tear, is granted. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs