Citation Nr: 18147881 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 08-36 383 DATE: November 6, 2018 ORDER An evaluation in excess of 10 percent for left knee limitation of motion is denied. An increased evaluation for right knee limitation of motion, rated 10 percent prior to September 2, 2014, 20 percent from September 2, 2014, 100 percent from April 30, 2015 based on surgical treatment necessitating convalescence, and 20 percent from June 1, 2015, is denied. FINDINGS OF FACT 1. At all times relevant to this appeal, the clinical findings show complaints of pain and limited range of motion of the left knee. Flexion was better than 30 degrees and extension was better than 10 degrees. There was no dislocated semilunar cartilage, with frequent episodes of “locking,” pain, and effusion into the joint, nor was it approximated. 2. Prior to September 2, 2014, the clinical findings show complaints of pain and limited range of motion of the right knee. Flexion was better than 30 degrees and extension was better than 10 degrees. There was no dislocated semilunar cartilage, with frequent episodes of “locking,” pain, and effusion into the joint, nor was it approximated. 3. From September 2, 2014 (exclusive of the period of convalescence for right knee surgery from April 30, 2015 through May 31, 2015), the clinical findings show complaints of pain and limited range of motion of the right knee. Flexion was better than 30 degrees and extension was better than 10 degrees. Dislocated semilunar cartilage, with frequent episodes of “locking,” pain, and effusion into the joint, was present or approximated. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for left knee limitation of motion are not met. 38 U.S.C. §1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5014, 5260. 2. Prior to September 2, 2014, the criteria for a disability rating in excess of 10 percent for right knee limitation of motion are not met. 38 U.S.C. §1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5014, 5260. 3. From September 2, 2014, the criteria for a disability rating in excess of 20 percent for right knee limitation of motion are not met (exclusive of the period of convalescence for right knee surgery from April 30, 2015 through May 31, 2015). 38 U.S.C. §1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5258. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1972 to July 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In September 2010, the Veteran and his spouse testified before the undersigned Veterans Law Judge (VLJ). In the most recent Board decision, dated in September 2017, the issues of increased rating for instability of the right and left knees were dismissed as they had been withdrawn by the Veteran, and the only issues with regard to the knees remaining on appeal were limitation of motion of the left and right knees. These issues were remanded and have been returned to the Board. Increased Rating The Veteran seeks higher ratings for his left and right knee disabilities that have been characterized as limitation of motion for purposes of the appeal. Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civil occupations. 38 U.S.C. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. Separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings." Hart v. Mansfield, 21 Vet. App. 505 (2007). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. When assessing the severity of a musculoskeletal disability that is at least partly rated on the basis of limitation of motion, VA must also consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59. Under 38 C.F.R. § 4.71a, 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 10 percent evaluation is assignable 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. 38 C.F.R. § 4.71a, Diagnostic Code 5003. A 10 percent evaluation will be assigned where there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups. A 20 percent evaluation will be assigned where there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups, and there are occasional incapacitating exacerbations. The 10 and 20 percent evaluations based on X-ray evidence may not be combined with ratings based on limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Pursuant to Diagnostic Code 5260, when flexion of the leg is limited to 60 degrees, a noncompensable rating is warranted. When flexion is limited to 45 degrees, a 10 percent rating is warranted. Flexion limited to 30 degrees warrants a 20 percent rating, while flexion limited to 15 degrees warrants the maximum 30 percent rating. Diagnostic Code 5261 rates based on limitation of extension. That code provides that when extension is limited to 5 degrees, a noncompensable rating is assigned. Extension limited to 10 degrees warrants a 10 percent rating. When limitation of extension is at 15 degrees, a 20 percent rating is warranted. Extension limited to 20 degrees warrants a 30 percent rating. Extension limited to 30 degrees warrants a 40 percent rating. Lastly, extension limited to 45 degrees warrants the maximum, 50 percent rating. VA General Counsel has held that separate evaluations under Diagnostic Code 5260 (limitation of flexion of the leg) and Diagnostic Code 5261 (limitation of extension of the leg) may be assigned for disability of the same joint. VAOGCPREC 9-2004, 69 Fed. Reg. 59990 September 17, 2004). DC 5258 provides a 20 percent rating for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. DC 5259 provides a 10 percent rating for removal of symptomatic semilunar cartilage. Additionally, the anti-pyramiding provision of 38 C.F.R. § 4.14 directs that the evaluation of the 'same disability' or, more appropriately in this case, the 'same manifestation' under various diagnoses is to be avoided. Indeed, in Esteban v. Brown, 6 Vet. App. 259 (1994), the Court held that, for purposes of determining whether a Veteran is entitled to separate ratings for different problems or residuals of an injury, without violating the prohibition against pyramiding, the critical element is that none of the symptomatology for any one of the conditions is duplicative of, or overlapping with the symptomatology of the other conditions. Here, the Veteran is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). He is also competent to report symptoms of knee pain. Layno v. Brown, 6 Vet. App. 465, 469-7 (1994). He is competent to describe his symptoms and their effects on employment and daily activities. 1. Left knee limitation of motion The Veteran’s left knee disability of limitation of motion is rated under DC 5014 for osteomalacia in combination with DC 5260 representative of limitation of flexion. The preponderance of the evidence is against a rating in excess of 10 percent for the left knee. None of the VA examinations relevant to this claim, to include those in April 2007, August 2011, May 2015 and February 2018, demonstrate flexion limited to 30 degrees or less, or limitation of extension to 10 degrees or more. Thus, he does not meet the requirements for a separate 10 percent rating for limited extension under DC 5261 or a 20 percent rating under DC 5260. Also, there was no dislocated semilunar cartilage, with frequent episodes of “locking,” pain, and effusion into the joint, so he does not meet or approximate the criteria for a 20 percent rating under DC 5258. Additionally, he has not had removal of symptomatic semilunar cartilage to warrant a separate 10 percent rating under DC 5259. Specifically, the February 2018 examination report reflects flexion to 100 degrees and extension to 0. Squatting was noted to be limited as a functional loss due to the range of motion. Pain was caused by mild patellar grind from chondromalacia. There was no pain on weight bearing. The Veteran was able to perform repetitive use testing without additional loss or range of motion. His examination was not conducted immediately after repetitive use over time but was medically consistent with his statements describing functional loss with repetitive use over time. No flare-ups were reported. Other factors noted to contribute to disability were listed as swelling, disturbance of locomotion and interference with standing. He complained of intermittent daily pain in both knees. The pain occurred immediately upon weight bearing and the maximum he can be up is 20-30 minutes. Stairs are painful and he cannot squat. There is occasional swelling. There is crepitation and the knees can occasionally give out. The conditions present included chondromalacia and meniscal degeneration, with osteoarthritis noted on 2014 MRI. There is no ankylosis. The February 2018 VA examination report is not inconsistent with the treatment record or the prior examination reports as to the salient points relevant to rating this claim. The physician conducted an exhaustive and accurate review of the record, interviewed and examined the Veteran. The report is considered highly probative as to the manifestations of left knee disability on appeal. Consistent with DeLuca, the Board has considered the Veteran's functional impairment in assessing the limitation of motion in this claim, considering flare-ups and painful motion, weakness, premature or excess fatigability, and incoordination, but they do not result in additional disability beyond that assigned in this claim. No flare-ups are reported by the Veteran in the recent examination, and his estimate of functional limitations is found to be consistent with and accurately compensated by his 10 percent rating based on painful limited flexion. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. In conclusion, for the reasons set forth above, for the left knee disability, a rating in excess of 10 percent is denied. 2. Right knee limitation of motion The Veteran has a staged rating for the right knee limitation of motion. It is rated 10 percent prior to September 2, 2014, under DCs 5014 and 5260, and 20 percent from that date under DCs 5003 and 5258, exclusive of the period from April 30, 2015, to May 31, 2015, for which he is in receipt of a 100 percent rating for convalescence due to surgery. Prior to September 2, 2014 During this period, the Veteran’s right knee disability of limitation of motion is rated under DC 5014 for osteomalacia in combination with DC 5260 representative of limitation of flexion. The preponderance of the evidence is against a rating in excess of 10 percent for the right knee during this period. None of the VA examinations relevant to this claim, to include those in April 2007 and August 2011, demonstrate flexion limited to 30 degrees or less, or limitation of extension to 10 degrees or more. Rather, in 2007 flexion was 130 degrees and extension was to 0 degrees, both with pain, with normal X-rays and no other significant findings. In 2011, flexion was 105 degrees and extension was to -10 degrees, both with pain, and no other significant findings Thus, he does not meet the requirements for a separate 10 percent rating for limited extension under DC 5261 or a 20 percent rating under DC 5260. Also, there was no dislocated semilunar cartilage, with frequent episodes of “locking,” pain, and effusion into the joint, so he does not meet or approximate the criteria for a 20 percent rating under DC 5258. Additionally, he has not had removal of symptomatic semilunar cartilage to warrant a separate 10 percent rating under DC 5259. The 2007 and 2011 VA examination reports are not inconsistent with the treatment records as to the salient points relevant to rating this claim. The examiners conducted thorough and accurate review of the record, interviewed and examined the Veteran. The reports are considered highly probative as to the manifestations of right knee disability on appeal for this time period. Consistent with DeLuca, the Board has considered the Veteran's functional impairment in assessing the limitation of motion in this claim, considering flare-ups and painful motion, weakness, premature or excess fatigability, and incoordination, but they do not result in additional disability beyond that assigned in this claim. No flare-ups are reported by the Veteran in the examinations, and his estimate of functional limitations is found to be consistent with and accurately compensated by his 10 percent rating based on limitation of flexion. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. In conclusion, for the reasons set forth above, for the right knee disability, a rating in excess of 10 percent is denied prior to September 2, 2014. From September 2, 2014 Beginning on this date, the disability is rated under DCs 5003 and 5258 for arthritis with dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint, in conjunction with 5003 for arthritis. Evaluations under DCs 5258 or 5259 do not inherently preclude separate evaluations under 5260, and/or 5261 on the basis of pyramiding when the rating for limitation of motion is not based on additional functional limitation under Deluca. See Lyles v. Shulkin, 29 Vet. App. 107 (2017). However, for the reasons detailed below, the Board finds that the currently assigned 20 percent rating for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint and arthritis is appropriate, and a rating in excess of 20 percent is not warranted. In Lyles, the Court indicated that while compensation under DC 5260 or 5261, for loss of range of motion, does not explicitly preclude compensation under DCs 5258 or 5259, for disability related to the semilunar cartilage. When the claimed symptoms associated with the semilunar cartilage disability do not result in elevation of a range of motion evaluation under Deluca, those manifestations have not yet been compensated for separate evaluation and pyramiding purposes. Lyles, 29 Vet. App. at 118-119. A September 2, 2014 VA treatment record clearly reflects reports of increased pain in the right knee of recent origin. He reportedly twisted his knee. The Veteran underwent right knee arthroscopy and debridement on April 30, 2015. Later notes show he was status post right knee subtotal medial and lateral meniscectomies, and chondroplasty patella. He tolerated the procedure well and ambulated independently, steady on his feet. Pain was reduced to 2 out of 10. The February 2018 examination report reflects the diagnoses of meniscal tear and arthritis. Flexion was to 90 degrees and extension to 0. Squatting was limited. Pain was caused by mild patellar grind from chondromalacia. There was no pain on weight bearing. The Veteran was able to perform repetitive use testing without additional loss or range of motion. His examination was not conducted immediately after repetitive use over time but was medically consistent with the Veteran's statements describing functional loss with repetitive use over time. No flare-ups were reported. Other factors noted to contribute to disability were listed as swelling, disturbance of locomotion and interference with standing. He complained of intermittent daily pain in both knees. The pain occurred immediately upon weight bearing and the maximum he can be up is 20-30 minutes. Stairs are painful and he cannot squat. There is occasional swelling. There is crepitation and the knees can occasionally give out. The examiner observed that in 2011 the Veteran had arthroscopic meniscectomy to the right knee but it provided no benefit, and the 2014 MRI showed right knee meniscal tear, bilateral chondromalacia, tricompartmental degenerative joint disease, and meniscal degeneration. There is no ankylosis. The February 2018 VA examination report is not inconsistent with the treatment record dated since September 2, 2014, as to the salient points relevant to rating this claim. The physician conducted an exhaustive and accurate review of the record, interviewed and examined the Veteran. The report is considered highly probative as to the manifestations of right knee disability on appeal from September 2, 2014, exclusive of the period during which a 100 percent rating was assigned for convalescence following the April 2015 knee surgery. Consistent with DeLuca, the Board has considered the Veteran's functional impairment in assessing the limitation of motion in this claim, considering flare-ups and painful motion, weakness, premature or excess fatigability, and incoordination, but they do not result in additional disability beyond that assigned in this claim. No flare-ups are reported by the Veteran in the recent examination, and his estimate of functional limitations is found to be consistent with and accurately compensated by his 20 percent rating under DCs 5003 and 5258. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. In conclusion, for the reasons set forth above, for the left knee disability, a rating in excess of 20 percent is denied from September 2, 2014. C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. RIPPEL