Citation Nr: 1758097 Decision Date: 12/14/17 Archive Date: 12/28/17 DOCKET NO. 09-16 183 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an initial rating in excess of 10 percent for a right knee post-operative anterior cruciate ligament repair with patellofemoral syndrome (hereinafter "right knee ACL repair"). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Fales, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1984 to June 1989. He served honorably in the United States Navy. The Board thanks the Veteran for his service to our country. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. This matter was previously before the Board in March 2017 when it was remanded for further development, to include a new VA examination to test the Veteran's right knee in accordance with 38 C.F.R. § 4.59 (2017) and Correia v. McDonald, 28 Vet. App. 158, 168-169 (2016). Previously, in May 2008, the RO granted service connection for a right knee ACL repair but assigned it a noncompensable rating; the Veteran timely appealed that rating decision to the Board. In November 2012 and March 2016, the Board remanded this matter for further development. Following the 2016 remand, the RO assigned a 10 percent rating for the right knee ACL repair under Diagnostic Code (DC) 5260 with an effective date of May 31, 2007. Later, after the 2017 remand, this matter was reassigned to the undersigned Veterans Law Judge for further appellate review. FINDINGS OF FACT 1. The Veteran's right knee is manifested by symptomatic residuals of meniscectomy including inflammation and swelling. 2. The Veteran's right knee is additionally manifested by degenerative arthritis and limitation of flexion and extension no greater than 0 to 100 (and 100 to 0) degrees during flare-ups and with consideration of pain, fatigue, and weakness. 3. The Veteran's right knee is additionally manifested by slight recurrent subluxation, with no evidence of record to indicate a moderate disability. CONCLUSION OF LAW 1. The criteria for an initial, separate rating of 10 percent, but no higher, for symptomatic residuals of meniscectomy have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5259 (2017). 2. The criteria for a rating in excess of 10 percent for right knee arthritis with limitation of flexion have not been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.322, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260. 3. The criteria for a 10 percent rating, but no higher, for right knee lateral instability have been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.322, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist In his May 2009 substantive appeal, the Veteran contended that his prior VA medical opinion was inadequate because he was given improper instructions during testing and he disputed the results. However, since then VA has provided additional examinations that the Veteran has not contested and when his noncompensable rating was increased to 10 percent it was made retroactive to his original filing date in May 2007. Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist. 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 duty to assist argument). Legal Criteria VA assigns an initial percentage rating for a disability by comparing a veteran's history with that disability from the date of service connection against criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. Part 4, § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). The Schedule is based on the average reduction in earning capacity in civilian occupations resulting from diseases and injuries associated with service in the armed forces. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If a veteran's symptoms implicate two different ratings under a single DC in the Schedule, then VA will assign the higher rating provided that the symptoms more closely align with the criteria for the higher rating. See 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. VA's determination about which rating to assign is also informed by a broad interpretation of the law consistent with the facts of each case and, if there is a reasonable doubt as to the degree of a veteran's disability, then the doubt will be resolved in the veteran's favor. See id. § 4.3. After VA assigns a rating, that rating may require re-evaluation in the future in keeping with changes to the veteran's condition, the law, and medical knowledge. See id. § 4.1. Pyramiding, or the process of rating the same disability under multiple DCs, is to be avoided. See id. § 4.14. However, VA may assign multiple ratings for separate and distinct symptoms so long as none of the symptoms overlap. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Further, although using symptoms from a nonservice connected disability for the purposes of rating a disability that is service connected is prohibited, if it is not possible to distinguish between the respective symptoms because they are so intertwined, then the symptoms will be attributed to the service-connected disability. See 38 C.F.R. §§ 3.102, 4.14; Mittleider v. West, 11 Vet. App. 181, 182 (1998). When determining the severity of musculoskeletal disabilities, which are at least partly rated on the basis of range of motion, VA must consider the extent of additional functional impairment a veteran may have above and beyond the limitation of motion objectively demonstrated due to pain, limited or excess movement, weakness, incoordination, and premature or excess fatigability, etc., particularly when symptoms "flare up," to include periods of prolonged use, and assuming these factors are not already contemplated in the governing rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; Sharp v. Shulkin 29 Vet. App. 26 (2017); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. See 38 C.F.R. § 4.59. Knee disabilities are rated pursuant to DCs 5256 through 5263. See id. § 4.71a. Degenerative arthritis is rated under DC 5003. Id. All applicable rating criteria are to be discussed, in addition to any DCs the Veteran is already rated under. See Butts v. Brown, 5 Vet. App. 532, 538 (1993). Analysis The Veteran is status post meniscectomy and ACL repair. Currently, the Veteran has a 10 percent rating under DC 5260. DC 5260 contemplates limitation of flexion of the knee. The June 2016 rating decision noted that the Veteran had degenerative arthritis and painful motion of the knee related to his status post ACL repair. However, the June 2016 rating decision also found that the Veteran had symptomatic residuals of semilunar cartilage removal. Such a finding mandates that a separate 10 percent rating be assigned under DC 5259. Ten percent is the maximum schedular rating under this Diagnostic Code. DC 5259 requires (a) the removal of semilunar cartilage and (b) associated symptoms. The medical evidence of record shows that the Veteran underwent meniscectomies in 1991 and 2006 and, in March and December 2009, he was treated for "inflammation" and "swelling" of the right knee in connection with his surgery. As a result, the Veteran's inflammation and swelling manifested since he was service connected in May 2007. Pursuant to DC 5003, a 10 percent rating will be granted for degenerative arthritis of the knee if a veteran has a diagnosis accompanied by X-ray evidence, noncompensable limited motion, and objective, satisfactory evidence of painful movement. Here, the Veteran was diagnosed with degenerative arthritis of the right knee in May 2016 and it was established by diagnostic imaging. He currently has a 10 percent rating for noncompensable limited motion under DC 5260, which deals with flexion of the knee, due to degenerative arthritis, limitation of motion, and pain on movement. To obtain even a zero percent rating flexion must be limited to 60 degrees. In the April 2017 VA examination, the Veteran demonstrated limited flexion of 110 degrees. During flare ups, it was limited to 100 degrees. The Board observes that normal flexion is 140 degrees. Also, the April 2017 VA examination report clearly indicates that he suffers from painful motion of his right knee because the examiner noted painful motion during testing. The Board has considered the provisions of 4.40, 4.45, and 4.59 as well as the holdings in the DeLuca and Sharp cases and finds that the preponderance of the evidence is against granting a rating in excess of 10 percent for limitation of motion. During his 2017 examination, the Veteran reported constant pain graded 2/10 with periodic exacerbations to 8/10, about 3 per week, with occasional giving out of the knee. The Veteran was able to perform repetitive-use testing in 2017 and such testing resulted in no additional loss of function or range of motion after 3 repetitions. The examiner assessed that pain, fatigue, and weakness would result in an additional 10 percent loss of range of motion and that pain and fatigue during flare-ups would also result in an additional 10 percent loss of range of motion. Such findings equate to noncompensable range of motion from 0 to 100 degrees even with such considerations. Therefore, the Board finds that a higher rating for loss of motion due to pain or flare-ups is not warranted under either Diagnostic Codes 5260 and/or 5261. Although the Veteran suffers from "instability of station" according to the April 2017 VA examination, that examination also indicated that he has "normal" joint stability with no history of "recurrent subluxation" or "lateral instability" as to his right knee for the purposes of DC 5257. However, in the May 2016 VA examination, it was noted that he had a "slight" history of recurrent subluxation. As this is an initial rating claim, the Board must take into account the Veteran's history with his right knee ACL repair since service connection in May 2007. Where there is a reasonable doubt regarding the degree of disability, as here, because there is a mixed history as to the Veteran's recurrent subluxation, the doubt will be resolved in his favor. The Board notes that, for this particular DC, lay statements from the Veteran that his knee would occasionally "give out" and "buckle" are not symptoms that are contemplated by DC 5257, but they have been considered in connection with the DeLuca and Sharp analysis, above. See Lyles v. Shulkin, __ Vet. App. __ (2017) (Stating that the Federal Circuit has "expressly rejected" the argument "that DC 5257 should be read to include manifestations of knee disability other than recurrent subluxation or lateral instability."). In any event, a separate 10 percent rating under DC 5257 is granted due to slight recurrent subluxation. However, a rating in excess of 10 percent is not warranted because moderate or severe disability has not been demonstrated at any time during the appeal. Turning to the remaining knee DCs, the evidence does not show that the Veteran has ankylosis of the right knee. Accordingly, a rating under DC 5256 is not warranted. Regarding DC 5258, although the Veteran has knee pain on movement, "locking" sensations and joint effusion have not been observed by VA examiners and in fact the Veteran has specifically denied locking. As both locking and joint effusion are required under DC 5258, a rating under this diagnosis is not warranted. DC 5261 addresses limited extension of the knee. To obtain even a zero percent rating under this diagnosis, extension must be limited to five degrees. However, in the April 2017 VA examination, the Veteran demonstrated extension of zero degrees. During flare ups, his extension was unchanged. In the May 2016 VA exam, his extension was unlimited. Accordingly, a rating for this diagnosis is not warranted. DC 5262 involves impairment of the tibia and fibula. As the evidence does not show that the Veteran's tibia and fibula are impaired, a rating under this diagnosis is not warranted. Last, DC 5263 implicates genu recurvatum. As the evidence does not show that the Veteran has this condition, a rating under this diagnosis is not warranted. In reaching the above conclusions, the Board has not overlooked the Veteran's statements regarding the severity of his service connected disabilities and that a higher rating is warranted. See August 2017 Post-remand Brief. The Board agrees and has assigned 2 separate 10 percent ratings herein. To the extent that he is arguing that his knee ratings should be even higher, the Veteran is competent to report on factual matters of which he has first-hand knowledge, such as experiencing back and knee symptoms. See Washington v. Nicholson, 19 Vet. App. 362 (2005). However, while the Board may consider the Veteran's subjective statements regarding the severity of his disabilities, and has in this case, the Board notes that with respect to the Rating Schedule, the criteria set forth therein generally require medical expertise which the Veteran has not been shown to have, that these types of findings are not readily observable by a layperson, and that objective medical findings and opinions provided by VA examiners are afforded the greater probative weight. The probative value of medical evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the Board as adjudicator. See Guerrieri v. Brown, 4 Vet. App. 467 (1993). Here, the Board has determined that the findings and opinions provided by the VA examiner of record should be afforded the greater probative weight. Id. In sum, along with the Veteran's existing 10 percent rating under DC 5260, the Board concludes that a new 10 percent rating for his degenerative arthritis of the right knee is granted pursuant to DC 5259. Also, a new 10 percent rating is granted for his slight recurrent subluxation under DC 5257. The effective date for his new initial ratings shall be May 31, 2007, to coincide with his initial service connection date and rating under DC 5260. ORDER An initial rating in excess of 10 percent for a right knee arthritis and limitation of motion due to ACL repair is denied. A 10 percent rating for right knee instability is granted, subject to the laws and regulations governing the payment of monetary benefits. A 10 percent rating for symptomatic residuals of right knee ACL repair is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ M. C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs