Citation Nr: 18142062 Decision Date: 10/16/18 Archive Date: 10/12/18 DOCKET NO. 16-24 493 DATE: October 16, 2018 ORDER An initial rating in excess of 10 percent for right knee chondromalacia patella with degenerative joint disease (arthritis) is denied. A separate rating for right knee instability, of 10 percent from March 13, 2013 to May 24, 2013, and from July 1, 2013, is granted. FINDINGS OF FACT 1. For the entire initial rating period on appeal from March 13, 2013, the service-connected right knee chondromalacia patella with arthritis disability has been manifested by noncompensable painful motion starting at 120 degrees in flexion, with full degrees in extension. 2. For the rating period March 13, 2013 to May 24, 2013, and from July 1, 2013, the right knee disability has been manifested by not more than mild instability. CONCLUSIONS OF LAW 1. For the rating period from March 13, 2013 to May 24, 2013, and from July 1, 2013, the criteria for an initial disability rating in excess of 10 percent for chondromalacia patella with arthritis and noncompensable painful limitation of motion have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003 (2017). 2. The criteria for a separate 10 percent rating for slight instability of the right knee have been met for the rating period from March 13, 2013 to May 24, 2013, and from July 1, 2013. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5257 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the Appellant, had active service from October 2011 to November 2012. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2014 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO) that granted service connection and assigned an initial rating of 10 percent for a right knee disability, effective from March 13, 2013. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). A VA knee and lower leg conditions examinations took place in June 2014 and January 2016. The examination reports reflect that the record was reviewed and appropriate testing was administered as to the level of impairment. The examination reports reflect that, after a review of the record, the diagnoses were confirmed as degenerative joint disease (DJD) of the right knee and a right knee chondromalacia patella, post arthroscopy surgery. Knee Rating Criteria Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. 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. Where there is a question as to which of two disability ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. 4.14 prohibits compensating a veteran twice for the same symptoms or functional impairment). When rating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. Painful motion is considered limited motion at the point that pain actually sets in. See VAOPGCPREC 9-98. Rating Right Knee Disability In this case, for the rating period from March 13, 2013 to May 24, 2013 and from July 1, 2013, VA assigned a 10 percent initial disability rating for a right knee chondromalacia patella and arthritis, status post arthroscopic surgery, under the rating criteria of 38 C.F.R. § 4.71a, Diagnostic Code 5003 (mislabeled as Diagnostic Code 5260). The Veteran was also in receipt of a 100 percent temporary rating for surgical convalescence from May 24, 2013 until July 1, 2013 that was appropriate and will not be disturbed by this Board decision. 38 C.F.R. § 4.30. Therefore, the relevant appeal period is March 13, 2013 (date of claim) to May 24, 2013 (date temporary 100 percent rating began) and from July 1, 2013 (date temporary 100 percent rating ended). As there has been confusing application of diagnostic codes in this case, further explanation of past adjudications and procedural history is in order. The June 2014 rating decision granted service connection for chondromalacia patella, including arthritis, status post arthroscopic surgery of the right knee. The rating decision granted service connection for a right knee disability based on evidence found in the record to include a June 2014 VA examination, which showed right knee at flexion was limited to 120 degrees (motion ends where pain begins, see VAOPGCPREC 9-98) and that the Veteran’s right knee had full extension. The June 2014 VA examination report reflected a diagnosis of right knee DJD with chronic pain. Upon physical examination, the Veteran’s right knee flexion was reported to end at 130 degrees, with pain beginning at 120 degrees. No limitation of extension was reported. Some functional loss or additional limitation in range of motion was reported to affect the right knee by limiting movement and causing pain on movement. The Veteran reported tenderness or pain to palpation for joint line or soft tissues of the right knee. Muscle strength and joint stability testing was normal. No effusion or subluxation were found. No meniscal conditions or surgical procedures for a meniscal condition were reported. The Veteran had an arthroscopic knee surgery of the right knee in May 2013. No residual signs or symptoms from the surgery were reported. No arthritis or X-ray evidence of patellar subluxation was found; however, a February 2013 MRI found loose intra articular bodies in the right knee, indicating a diagnosis of chondromalacia patella. Private treatment records and operative reports from January 2013 through June 2014 were also considered. A private treatment record from January 2013 revealed a diagnosis of chondromalacia with a moderate sized effusion. It was reported that the Veteran had periods of instability, walked with an antalgic gait, and had an extreme amount of swelling and pain around the right knee. In May 2013 the Veteran underwent a right knee arthroscopy surgery and was diagnosed with early degenerative joint disease (arthritis) of the right knee. The Veteran also reported pain and right knee swelling. As the rating decision found the right knee manifested pain and noncompensable limitation of flexion, the proper Diagnostic Code to assign would have been Diagnostic Code 5003, for arthritis with pain and limitation of motion (unless flexion is limited to at least 45 degrees, it remains noncompensable). However, the RO assigned Diagnostic Code 5260, which provides a 10 percent rating if flexion is limited to 45 degrees. As the right knee had almost full flexion at 120 degrees (where normal is 140 degrees) when tested in June 2014, the evidence did not support a 10 percent rating under Diagnostic Code 5260, so the 10 percent rating was not in fact provided under the criteria of Diagnostic Code 5260. As the medical record and the reasons and bases in the rating decision show that there was no right knee limitation of flexion to 45 degrees or any limitation of extension, at the time of the June 2014 rating decision that granted service connection, and the rating decision did not indicate service connection was being granted for limitation of flexion to 45 degrees (DC 5260 criteria) or limitation of extension to 10 degrees (DC 5261 criteria), service connection for limitation of flexion of the right knee in fact was not granted in June 2014; therefore, Diagnostic Code 5260 should not have been applied to reflect how the service-connected right knee disability was actually rated. The application of Diagnostic Code 5003 was factually and legally more appropriate as the RO actually applied Diagnostic Code 5003, which provides a 10 percent rating for arthritis with noncompensable, painful limitation of motion. 38 C.F.R. § 4.71a. See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (stating that the assignment of a particular diagnostic code is "completely dependent on the facts of a particular case" and the Board can choose the diagnostic code to apply so long as it is supported by reasons and bases as well as the evidence); see also Read v. Shinseki, 651 F.3d 1296, 1302 (Fed. Cir. 2011) (holding that service connection for a disability is not severed when the diagnostic code associated with it is changed to determine more accurately the benefit to which a veteran may be entitled). As to the right knee disability, the Veteran is actually in receipt of a 10 percent disability rating under the criteria of Diagnostic Code 5003 (noncompensable, painful limitation of motion). 38 C.F.R. § 4.71a. Potentially higher ratings based on limitations of motion are available if the service-connected knee disability manifests in compensable (10 percent) limitation of flexion or compensable (10 percent) limitation of extension. In such cases, the rating under Diagnostic Code 5003 would be abandoned in favor of the compensable rating or ratings under specific limitation of motion diagnostic codes (5260 or 5261). During the January 2016 VA examination, the limitation of motion was actually recorded at 120 degrees with no limitation of extension, which under Diagnostic Codes 5260 and 5261 are both noncompensable. 38 C.F.R. § 4.71a. Diagnostic codes for rating limitation of motion of the knees are Diagnostic Codes 5260 and 5261. 38 C.F.R. § 4.71a. Normal range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. Under Diagnostic Code 5260, limitation of knee flexion is rated 30 percent disabling where flexion is limited to 15 degrees; 20 percent disabling where flexion is limited to 30 degrees; 10 percent disabling where flexion is limited to 45 degrees; and noncompensable where flexion is limited to 60 degrees or more. 38 C.F.R. § 4.71a. Under Diagnostic Code 5261, limitation of knee extension is rated 50 percent disabling where extension is limited to 45 degrees; 40 percent disabling where extension is limited to 30 degrees; 30 percent disabling where extension is limited to 20 degrees; 20 percent disabling where extension is limited to 15 degrees; 10 percent disabling where extension is limited to 10 degrees; and noncompensable where extension is limited to 5 degrees or less. 38 C.F.R. § 4.71a. In this case, the Veteran contends that that a higher initial disability rating in excess of 10 percent for the right knee disability is warranted. See August 2014 notice of disagreement. In an August 2014 notice of disagreement, the Veteran submitted a statement that the right knee is subject to relevant symptoms of chronic pain, limited motion, and stiffness. The Veteran also reported in a May 2016 substantive appeal that while in service he was kept on profile and unable to run, except for short periods of time. The Veteran contends that due to this treatment for his right knee during service he cannot extend the right knee and can only bend it half way. Upon review of the contemporaneous lay and medical evidence of record, the Board finds that, for the rating period on appeal from March 31, 2013 to May 24, 2013 and from July 1, 2013, the Veteran’s service-connected right knee arthritis disability has been manifested by noncompensable painful motion starting at 120 degrees in flexion, with no limitation of extension. In this case, the assigned 10 percent disability rating under Diagnostic Code 5003 (corrected by the instant Board decision) incorporates the Veteran’s arthritis with painful limitation of motion of the right knee, although the limitation of motion is to a noncompensable degree. A January 2016 VA examination reported a diagnosis of right knee chondromalacia patella, post arthroscopy, and degenerative arthritis. The Veteran reported that he works full-time as a ramp installer and has daily right knee pain that is moderate, worse with standing, and interferes with the ability to sleep. The Veteran also endorsed flare-ups that cause feelings of intermittent periods of right knee giving way and that he now uses a brace daily and receives knee injections. Objecting testing revealed that the right knee flexion is limited to 120 degrees and that extension was not limited. Pain was reported in flexion, extension, and weight bearing. No crepitus or ankylosis was reported. No subluxation was found, but the Veteran reported a history of recurrent effusion every six months. No instability was found during joint stability testing. Imaging revealed right chondromalacia and degenerative arthritis involving the right knee medial compartment. The weight of the evidence is against a compensable initial rating for limitation of flexion or extension. The weight of the evidence from the June 2014 and January 2016 VA examinations shows limitation of flexion of 120 degrees to a noncompensable (0 percent) degree, where normal is 140 degrees under Diagnostic Code 5260. A rating for limitation of extension under Diagnostic Code 5261 was considered, and the evidence of record reflects that throughout the relevant period on appeal, the right knee extension was measured from 120 degrees to 0, where full extension is to 0 degrees. Nothing in the record indicates that the right knee flexion was limited to at least 45 degrees, or that the right knee extension was limited to at least 10 degrees, which are what is needed to be shown for compensable disability ratings under DC 5260 and 5261, respectively. For these reasons, the Board finds that the criteria for a disability rating in excess of 10 percent for a right knee disability with either limitation of flexion or extension have not been met for any period on appeal. 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5260 and 5261. The Board has considered alternative rating criteria for the Veteran’s right knee disability under Diagnostic Code 5258, and finds that the evidence of record does not demonstrate that at any time during the relevant appeal period that the right knee disability has included a dislocated semilunar cartilage. A rating under Diagnostic Code 5259 was considered, but not applied based on the evidence of record not establishing that a meniscus tear or removal was present during any time of the appeal. The Board finds that a separate or higher disability rating is not warranted for any other right knee disability for the period from March 13, 2013 to May 24, 2013 and from July 1, 2013. As the evidence of record does not reflect that the right knee is ankylosed, that there is malunion or nonunion of the tibia and fibula, that there is a current diagnosis of genu recurvatum, and/or that the right knee disability has been manifested by limitation of flexion or extension to a compensable degree, a separate (or higher) disability rating is not warranted under Diagnostic Codes 5256, 5258, 5259, 5260, 5261, 5262, or 5263. 38 C.F.R. § 4.71a. Separate Rating for Right Knee Instability (DC 5257) The Board has also considered whether a separate rating for right knee instability is warranted. Under Diagnostic Code 5257, where instability is severe, moderate, and slight, disability ratings of 30, 20, and 10 are assigned, respectively. 38 C.F.R. § 4.71a. VA’s General Counsel interpreted that compensating a veteran for separate functional impairment under both Diagnostic Code 5257 and Diagnostic Code 5003 or limitation of motion codes does not constitute pyramiding. See VAOPGCPREC 23-97 and VAOPGCPREC 9-98. After a review of all the evidence, lay and medical, the Board finds that the evidence is at least in equipoise as to whether the Veteran has instability of the right knee. Private treatment records from January 2013 report that the Veteran has periods of instability with significant joint effusion and degeneration; however, testing of the right knee in June 2014 and January 2016 was normal and included X-ray imaging that revealed no evidence of subluxation, fracture, dislocation, effusion. Degeneration was confirmed by imaging. At the January 2016 VA examination, the Veteran provided a medical history of the right knee giving way and that he reported wearing a right knee brace, but it was not clear whether the brace was for instability or pain; however, objective testing revealed no visible instability. Resolving reasonable doubt in the Veteran’s favor on the question of whether there is right knee instability, the Board finds that there is mild instability of the right knee for the rating period from March 13, 2013 to May 24, 2013, and from July 1, 2013 to warrant a separate 10 percent disability rating under Diagnostic Code 5257. 38 C.F.R. §§ 4.3, 4.7. The weight of the lay and medical evidence is against a rating in excess of 10 percent rating for right knee instability for the rating period on appeal from March 13, 2013 to May 24, 2013, and from July 1, 2013, as the instability, which was not even found on clinical examination, was no more than slight. The June 2014 and January 2016 VA examiners did not find instability or any ligament instability, and X-rays were normal and free from evidence of subluxation. The VA examiner in January 2016 reported that the Veteran used a knee brace but was not specific on the reason for the brace, but did report intermittent feelings of giving way. Treatment notes from January 2013 reported periods of instability, but no limitation of daily activities due to instability was reported or indicated. Resolving reasonable doubt in the Veteran’s favor, the Board finds that there is slight right knee instability to warrant not more than a 10 percent rating. J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Reine Bedford, Associate Counsel