Citation Nr: 18145944 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 16-53 342A DATE: October 30, 2018 ORDER A rating of 20 percent for residuals of a medial meniscectomy of the left knee is granted, subject to the regulations governing payment of monetary awards. A rating in excess of 20 percent for arthritis of the left knee is denied. FINDINGS OF FACT 1. Throughout the appeal, the Veteran’s residuals of a medial meniscectomy of the left knee has been manifested by symptoms of frequent locking and decreased muscle strength that is productive of moderate instability. 2. Throughout the appeal, the Veteran’s arthritis of the left knee has not been manifested by flexion limited to less than 25 degrees, including after repetition or on onset of pain. CONCLUSIONS OF LAW 1. The criteria for a rating of 20 percent, but no higher, for residuals of a medial meniscectomy of the left knee have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code (Code) 5257. 2. The criteria for an increased rating in excess of 20 percent for arthritis of the left knee have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Code 5260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, served on active duty from June 1967 to February 1970. Increased Rating 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 evaluations shall be applied, 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. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The United States Court of Appeals for Veterans Claims (Court) has held that “staged” ratings are appropriate for an increased rating claim where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board notes that it has reviewed all of the evidence in the Veteran’s claims file, with an emphasis on the evidence relevant to these appeals. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence where appropriate and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Service connection for residuals of a medial meniscectomy of the left knee was granted initially by the Regional Office (RO) in a May 1983 rating decision. A 10 percent disability rating was awarded at that time under the provisions of Code 5259, for removal of the semilunar cartilage. Since that time, the 10 percent rating has been continued under the provisions of Code 5257, for other impairment of the knee. Service connection for an additional disability of the left knee as a result of arthritis was granted in a January 2007 rating decision. A 10 percent disability rating was awarded under the provisions of Codes 5260 and 5010, for that disability. The Veteran’s current claim for an increased rating for the left knee was received in March 2014. In the August 2014 rating decision on appeal, the RO denied a disability rating in excess of 10 percent for the Veteran’s residuals of a medial meniscectomy of the left knee. The RO also granted an increased rating of 20 percent, effective March 31, 2014 (date of claim), for the Veteran’s arthritis of the left knee. The Veteran asserts that higher disability ratings are warranted for his left knee. Normal ranges of motion of the knee are to 0 degrees in extension, and to 140 degrees in flexion. 38 C.F.R. § 4.71, Plate II. Diagnostic Code 5003 provides that degenerative arthritis that is 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 there is no limitation of motion of the specific joint or joints that involve degenerative arthritis, Diagnostic Code 5003 provides a 20 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, and a 10 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. Note (1) provides that the 20 percent and 10 percent ratings based on X-ray findings will not be combined with ratings based on limitation of motion. Note (2) provides that the 20 percent and 10 percent ratings based on X-ray findings, above, will not be utilized in rating conditions listed under Diagnostic Codes 5013 to 5024, inclusive. When there is some limitation of motion of the specific joint or joints involved that is noncompensable (0 percent) under the appropriate diagnostic codes, Diagnostic Code 5003 provides a rating of 10 percent 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. When there is limitation of motion of the specific joint or joints that is compensable (10 percent or higher) under the appropriate diagnostic codes, the compensable limitation of motion should be rated under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a. Separate disability ratings are possible for arthritis with limitation of motion under Diagnostic Codes 5003 and instability of a knee under Diagnostic Code 5257. See VAOPGCPREC 23-97. When x-ray findings of arthritis are present and a veteran’s knee disability is rated under Diagnostic Code 5257, the veteran would be entitled to a separate compensable rating under Diagnostic Code 5003 if the arthritis results in noncompensable limitation of motion and/or objective findings or indicators of pain. See VAOPGCPREC 9-98. Diagnostic Code 5256 provides ratings for ankylosis of the knee. Favorable ankylosis of the knee, with angle in full extension, or in slight flexion between zero degrees and 10 degrees, is rated 30 percent disabling. Unfavorable ankylosis of the knee, in flexion between 10 degrees and 20 degrees, is to be rated 40 percent disabling; unfavorable ankylosis of the knee, in flexion between 20 degrees and 45 degrees, is rated 50 percent disabling; extremely be rated 60 percent disabling. 38 C.F.R. § 4.71a. Diagnostic Code 5257 provides ratings for other impairment of the knee that includes recurrent subluxation or lateral instability. Slight recurrent subluxation or lateral instability of the knee is rated 10 percent disabling; moderate recurrent subluxation or lateral instability of the knee is rated 20 percent disabling; and severe recurrent subluxation or lateral instability of the knee is rated 30 percent disabling. 38 C.F.R. § 4.71a. Separate disability ratings are possible for arthritis with limitation of motion under Diagnostic Codes 5003 and instability of a knee under Diagnostic Code 5257. See VAOPGCPREC 23-97. When x-ray findings of arthritis are present and a veteran’s knee disability is rated under Diagnostic Code 5257, the veteran would be entitled to a separate compensable rating under Diagnostic Code 5003 if the arthritis results in noncompensable limitation of motion and/or objective findings or indicators of pain. See VAOPGCPREC 9-98. Diagnostic Code 5258 provides a 20 percent rating for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint. 38 C.F.R. § 4.71a. Diagnostic Code 5259 provides a 10 percent rating for removal of semilunar cartilage that is symptomatic. 38 C.F.R. § 4.71a. Diagnostic Code 5260 provides ratings based on limitation of flexion of the leg. Flexion of the leg limited to 60 degrees is rated noncompensably (0 percent) disabling; flexion of the leg limited to 45 degrees is rated 10 percent disabling; flexion of the leg limited to 30 degrees is rated 20 percent disabling; and flexion of the leg limited to 15 degrees is rated 30 percent disabling. 38 C.F.R. § 4.71a. See VAOPGCPREC 09-04 (separate ratings may be granted based on limitation of flexion (Diagnostic Code 5260) and limitation of extension (Diagnostic Code 5261) of the same knee joint). Diagnostic Code 5261 provides ratings based on limitation of extension of the leg. Extension of the leg limited to 5 degrees is rated noncompensably (0 percent) disabling; extension of the leg limited to 10 degrees is rated 10 percent disabling; extension of the leg limited to 15 degrees is rated 20 percent disabling; extension of the leg limited to 20 degrees is rated 30 percent disabling; extension of the leg limited to 30 degrees is rated 40 percent disabling; and extension of the leg limited to 45 degrees is rated 50 percent disabling. 38 C.F.R. § 4.71a; see also VAOPGCPREC 09-04 (separate ratings may be granted based on limitation of flexion (Diagnostic Code 5260) and limitation of extension (Diagnostic Code 5261) of the same knee joint). Diagnostic Code 5262 provides ratings based on impairment of the tibia and fibula. Malunion of the tibia and fibula with slight knee or ankle disability is rated 10 percent disabling; malunion of the tibia and fibula with moderate knee or ankle disability is rated 20 percent disabling; and malunion of the tibia and fibula with marked knee or ankle disability is rated 30 percent disabling. Nonunion of the tibia and fibula with loose motion, requiring a brace, is rated 40 percent disabling. 38 C.F.R. § 4.71a. 1. Entitlement to a rating in excess of 10 percent for residuals of a medial meniscectomy of the left knee. On private orthopedic evaluation dated in May 2014, it was reported that the Veteran had undergone three surgical procedures on the left knee beginning in 1968 with the most recent in 2006 or 2007. It was also noted that in December 2011, the Veteran had a flare-up of his symptoms that was treated with conservative modalities and an intra-articular steroid injection. He had subsequent flare-ups in September 2012 and September 2013 that were again treated with injections. In April 2014, he was noted to again have exacerbation of his symptoms. The private physician stated that the Veteran had had a progression of his degenerative joint disease and was coming significantly closer to the need for a total knee replacement. An examination was conducted by VA in August 2014. At that time, the diagnosis was arthritis of the left knee with reduced range of motion, status post left medical meniscectomy with laxity lateral collateral ligament status post additional surgeries with scars. The surgeries were noted to have been in 1968, 1999, and 2006. Muscle strength testing was noted to be 4/5 on flexion and extension of the left knee. The examiner could not conducted joint stability testing in the left knee. There was no evidence of patellar subluxation or dislocation and no evidence of shin splints, stress fracture or compartment syndrome of the lower extremity. Frequent episodes of joint locking and pain were noted on the left. He also reported having stiffness as a result of the knee surgeries. He used a knee brace on a regular basis. The examiner described functional impact in that the Veteran had difficulty standing, walking and climbing stairs. The examiner stated that the diagnosis of status post medical meniscectomy with laxity of the lateral collateral ligament had changed in that there was a progression of the previous diagnosis as a result of progression of the condition and he had had additional arthroscopic surgeries of the knee. In a November 2014 statement, the Veteran’s private physician indicated that the Veteran had been examined in September 2014 when he was noted to have marked recurrence of the pain. This was on walking up and down stairs, squatting, rising from a sitting position, and on prolonged weightbearing. He had limitation of flexion and was again injected with a steroid medication. The private physician stated that the Veteran was a candidate for total knee replacement surgery. A private MRI study conducted in April 2015 showed displaced bucket-handle variant left knee lateral meniscus tear involving predominantly the body and posterior horn displaced into the intercondylar notch posteriorly, complex left knee medial meniscus tear extruding into the medial gutter, severe lateral compartment predominant tricompartmental left knee osteoarthritis, mucoid infiltration of a grossly intact ACL and small left knee joint effusion. On private orthopedic examination in October 2016, it was noted that the Veteran had been again treated with a cortisone injection in September 2016. On examination, left knee alignment was noted to be valgus. There was no swelling, ecchymosis, effusion or atrophy noted. Stability testing was negative in the left knee. X-ray studies showed severe tricompartmental arthritis with near complete loss of joint space in the lateral and patellofemoral compartment. A total left knee replacement was considered inevitable. An examination was conducted by VA in April 2017. At that time, the diagnoses were arthritic changes of the left knee with reduced range of motion and knee instability. On muscle strength testing strength in the left knee was noted to be 4/5. No muscle atrophy or ankylosis was described. Joint stability testing showed no recurrent subluxation, but moderate lateral instability. There was no history of recurrent effusion. Joint stability testing could not be performed because of pain. The Veteran reported having had a meniscal tear and frequent episodes of joint locking. The Veteran had lateral laxity of the collateral ligament. The examiner described the functional impact of the Veteran’s decreased range of motion in extension and flexion as well as the unsteady gait. It was stated that this would limit the Veteran’s ability to walk, stand, or sit for any prolonged period. The weakness in the knee would also make it difficult for him to lift heavier objects properly and make further injury possible. The Veteran’s left knee instability was initially rated on the basis of symptomatic removal of the semilunar cartilage under Code 5259. The rating was maintained under the provisions of Code 5257 for slight impairment of the left knee. This rating is based on symptoms such as instability and subluxation. (As noted, limitation of motion has been separately rated and will be addressed below.) The Veteran’s joint stability could not be accurately tested on VA examination in 2014, but the examiner did describe symptoms of frequent locking and decreased muscle strength. In 2017, the examiner reported moderate instability. With the resolution of reasonable doubt, the Board finds that the disability associated with the surgical procedures that the Veteran underwent on his left knee to be more nearly productive of moderate knee impairment. As such, a 20 percent rating under Code 5257 is shown to be warranted throughout the appeal. However, the record is not sufficient to show severe impairment; therefore, a rating in excess of 20 percent is not warranted. 2. Entitlement to an increased rating in excess of 20 percent for arthritis of the left knee. As noted, the rating of 20 percent for arthritis of the left knee was established on the basis of limitation of motion of the left knee, effective in March 2014. An examination was conducted by VA in August 2014. At that time, left knee extension was to 0 degrees. Left knee flexion was to 30 degrees, with pain noted at 25 degrees. After repetitive use testing, flexion was to 25 degrees. The examiner noted less movement than normal and pain on movement. On private examination in October 2016, active and passive range of motion was from 5 degrees extension to 125 degrees flexion. On examination by VA in April 2017, range of motion of the Veteran’s left knee flexion was from 5 to 125 degrees and extension was from 125 to 5 degrees. There was pain on flexion and extension, but no localized tenderness on palpation. There was evidence of pain on weight bearing and objective evidence of crepitus. The Veteran was able to perform repetitive use testing without additional loss of function or range of motion. The Veteran was not examined during a flare-up or after repetitive use over time. On examination by VA in 2014, left knee flexion was shown to be limited to only 25 degrees after repetition or on onset of pain. This became the basis for the rating of 20 percent that was awarded for the Veteran’s left knee arthritis. It is noted that some improvement of flexion was demonstrated on subsequent examinations, including on private evaluation in 2016. The Board finds that, given the range of motion testing that was performed throughout the appeal, there is no basis for a rating in excess of the 20 percent that was awarded, which would require flexion to be limited to only 15 degrees or greater impairment (such as ankylosis). The Veteran has been separately service-connnected for limitation of extension of the left knee. See April 2018 rating decision. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran’s claim for increased rating for limitation of motion of the left knee, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Joseph P. Gervasio