Citation Nr: 18143604 Decision Date: 10/19/18 Archive Date: 10/19/18 DOCKET NO. 14-25 069 DATE: October 19, 2018 ORDER Increased rating for a right knee disability is denied. FINDINGS OF FACTS The Veteran’s right knee disability has been manifested by moderate instability and slight limited flexion and extension at 20 degrees. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for a right knee disability, manifested by instability have not been met. 38 U.S.C. § 1155; 38 C.F.R. 4.71a, Diagnostic Code 5257. 2. The criteria for a rating in excess of 30 percent for a right knee disability, manifested by limitation of extension have not been met. 38 U.S.C. § 1155; 38 C.F.R. 4.71a, Diagnostic Code 5261. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1983 to November 1995. This matter is on appeal from a June 2012 rating decision and was remanded in January 2018. The Veteran testified before the undersigned Veterans Law Judge at a November 2016 Board hearing. Increased Ratings By way of history, the Veteran was granted service connection for his right knee disability and assigned a noncompensable rating in a February 1999 rating decision. In March 2012, the Veteran filed a claim for increased rating, indicating that his right knee disability was worse than rated. A June 2012 rating decision increased the rating to 10 percent for a partial meniscal tear. In a September 2018 rating decision, a separate 20 percent rating was assigned from March 5, 2018 for right knee instability, and the 10 percent rating was increased to 30 percent as of March 30, 2012 based on limitation of extension. Knee disabilities are rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5256 to 5263. Included within 38 C.F.R. § 4.71a are multiple diagnostic codes that evaluate impairment resulting from service-connected knee disorders, including Diagnostic Code 5256 (ankylosis), Diagnostic Code 5257 (other impairment, including recurrent subluxation or lateral instability), Diagnostic Code 5258 (dislocated semilunar cartilage), Diagnostic Code 5259 (symptomatic removal of semilunar cartilage), Diagnostic Code 5260 (limitation of flexion), Diagnostic Code 5261 (limitation of extension), Diagnostic Code 5262 (impairment of the tibia and fibula), and Diagnostic Code 5263 (genu recurvatum). Additionally, if the knee condition involves arthritis, the knee disability may be rated under provisions for evaluating arthritis. Arthritis due to trauma is rated as degenerative arthritis according to Diagnostic Code 5003. Under Diagnostic Code 5003, 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 such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, the disability is to be rated as follows: with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, 20 percent; with X- ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, 10 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Based on a May 2012 VA examination report, the Veteran reported flare ups which impacted his ability to climb stairs, run, and squat. He demonstrated forward flexion to 75 degrees with no objective evidence of pain. After a repetitive range of motion test, he exhibited no additional limitation of motion. The Veteran also demonstrated full extension. A muscle strength test and joint stability tests showed normal results. There was no evidence of ankylosis or patellar subluxation. There was however a meniscal tear in the right knee and that he had underwent a meniscectomy in 2009. The examiner also documented degenerative/traumatic arthritis of the right knee. Pursuant to the May 2012 VA examination, the Veteran was granted an increased rating for his right knee disability at 10 percent for arthritis. However, the Veteran filed a Notice of Disagreement, asserting that his disability warrants a higher rating. A November 2012 MRI of the right knee show small joint effusion, interval development chondromalacia inferior aspect of the trochlear grove laterally, and interval development of moderate chondromalacia in the medial compartment. In April 2013, the Veteran complained that his right knee was some after playing disc golf over the weekend. It was noted that the Veteran’s right knee was stable and that the Veteran had full range of motion. In June 2013, the Veteran wrote that he had undergone orthoscopic surgery to remove arthritic build up in his right knee and lamenting the increase in the number of incapacitating episodes that caused him to miss work (although it was unclear whether this was the result of the right knee, the back, or some combination of the two). In his June 2014 substantive appeal, the Veteran reported experiencing pain in his knee both before and after his VA examination, as well as on a daily basis in all activities that required weight bearing or movement of the right knee. In June 2014, a VA treatment record noted that the Veteran’s right knee was stable and that he had full range of motion in the knee. At his November 2016 Board hearing, the Veteran testified that he has had difficulty at work because of his knees. He has had to rely on over the counter pain medication to ease his knee pain and a knee brace for stability. Pursuant to a January 2018 Board remand, the Veteran was afforded a new VA examination in March 2018. There, he exhibited an abnormal range of motion with a forward flexion to 120 degrees and an extension to 20 degrees. There was evidence of pain with weight bearing and crepitus. After a repetitive range of motion test, he exhibited no decreased limitation of motion, and no functional loss. A muscle strength test revealed a limited strength in forward flexion and extension. There is no evidence of ankylosis. However, there was evidence of a moderate instability and recurrent effusion. The examiner also noted meniscectomies in 1989, 2016, and 2017. The Veteran was granted an increased rating at 20 percent for instability and a separate 30 percent rating for a limited extension due to his meniscal tear by a September 2018 rating decision. The Board now finds that ratings in excess of the two ratings that are currently assigned for the Veteran’s right knee disability are not warranted. Upon evaluation of the evidence of record, Diagnostic Code 5256 is not applicable because the evidence does not show ankylosis of the right knee. There is no allegation to the contrary. Diagnostic Code 5262 is not applicable because the Veteran’s knee does not involve the impairment of the tibia or the fibula. There is no allegation to the contrary. There is no evidence of nonunion or malunion of the knee. There is no allegation to the contrary. Furthermore, without the showing of genu recuvatum (acquired, traumatic, with weakness and insecurity in weight-bearing), a disability rating under Diagnostic Code 5263 is not warranted. There is no allegation to the contrary. The Veteran is currently rated at 20 percent for moderate instability of the right knee. Diagnostic Code 5257 is used to evaluate recurrent subluxation or lateral instability of the knee. Severe symptoms warrant a 30 percent rating; moderate symptoms warrant a 20 percent rating; and slight symptoms warrant a 10 percent rating. See 38 C.F.R. §§ 4.71a, Diagnostic Code 5257. The Board notes that words such as mild, moderate, and severe are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. In this specific case, objective medical evidence such as the March 2018 VA examination clearly show moderate instability of the right knee. However, to warrant a higher rating of 30 percent, there must be showing of stability to a severe degree, which neither clinical evidence or lay statements support. The Veteran is also currently rated at 30 percent for a meniscal tear. However, the Board notes that the Veteran was compensated for limited extension due to the meniscal tear. Under Diagnostic Code 5261, a 10 percent disability rating is assigned when extension is limited to 10 degrees, and a 20 percent disability rating is assigned when extension is limited to 15 degrees. A 30 percent disability rating is assigned when extension is limited to 20 degrees, and a 40 percent disability rating is assigned when extension is limited to 30 degrees. Finally, a 50 percent disability rating is assigned when extension is limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. In this case, based on the showing that the Veteran’s extension was limited at 20 degrees, demonstrated at the May 2018 VA examination, a separate 30 percent rating was granted. A higher rating however, is not warranted as the evidence fails to show a limited extension of at least 45 degrees or more. Due to the meniscectomy, the Board must now consider whether a higher rating under Diagnostic Code 5258 and 5259. Under Diagnostic Code 5258, a 20 percent rating is provided for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. 38 C.F.R. § 4.71a, Diagnostic Code 5258. Diagnostic Code 5259, awards a maximum 10 percent rating for symptomatic removal of semilunar cartilage. The Veteran has a meniscal condition and has previously undergone multiple meniscectomies. However, to warrant a separate 10 percent rating under Diagnostic Code 5259, it must be symptomatic. “Symptomatic” means indicative, relating to, or constituting the aggregate, of symptoms of disease. Thus, the second Diagnostic Code 5259 requirement being “symptomatic” is broad enough to encompass all symptoms, including pain, limitation of motion, stiffness, and instability. Given the separate 20 percent rating already assigned for instability, the Board finds that the Veteran had already been compensated and to grant a separate 10 percent under Diagnostic Code 5259 would violate the rule against pyramiding. 38 C.F.R. § 4.14. The critical element in permitting the assignment of separate ratings under various Diagnostic Codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261 (1994). Similarly, the Board finds that a separate rating under Diagnostic Code 5258 is not warranted. While there is evidence of effusion due to a meniscal condition, the Veteran has already been compensated for a meniscal condition manifested by limited extension. To grant a separate rating under Diagnostic Code 5258 would also violate the rule against pyramiding because the Veteran’s symptoms have been accounted for by the rating already assigned under Diagnostic Code 5261. The Board will now consider whether a separate compensable rating is warranted based on limitation of flexion. Diagnostic Code 5260 pertains to limited flexion of the knee. Flexion limited to 60 degrees is noncompensable. A 10 percent rating applies when flexion is limited to 45 degrees. A 20 percent rating applies when flexion is limited to 30 degrees. A 30 percent rating applies when flexion is limited to 15 degrees. Here, while there is slight limitation of flexion, it does not warrant a separate compensable rating. At most, the Veteran demonstrated a limited flexion at 75 degrees. His most recent VA examination in May 2018 reported a forward flexion at 120 degrees. Moreover, range of motion noted in the VA treatment records showed full range of motion in the right knee on multiple occasions. The Board has also considered whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. Additionally, painful motion is an important factor of disability; and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 Here, as noted, the Veteran’s range of motion was most limited at his March 2012 VA examination when flexion as limited to 75 degrees. His forward flexion later improved at 120 degrees by 2018. At both examinations, the Veteran was able to complete repetitive motion testing without experiencing additional pain or additional loss of flexion, and the examiner noted that pain, weakness, fatigability and incoordination did not significantly limit the functional ability of either knee with repeated use over a period of time. As such, the Board does not find that the Veteran’s range of motion in the right knee to be functionally limited beyond what was shown on clinical testing. While the Veteran undoubtedly experiences pain in the right knee, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32 (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. As discussed, the criteria for the assignment of higher ratings for the Veteran’s right knee disability have not been met and the claim is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N.Yeh, Associate Counsel