Citation Nr: 18149846 Decision Date: 11/13/18 Archive Date: 11/13/18 DOCKET NO. 13-17 439 DATE: November 13, 2018 ORDER Entitlement to an initial disability evaluation in excess of 10 percent for degenerative joint disease of the left knee is denied. Entitlement to an initial disability evaluation in excess of 10 percent for degenerative joint disease of the right knee, status post meniscus repair, is denied. Entitlement to an initial disability evaluation in excess of 10 percent for right knee instability is denied. Entitlement to an initial 10 percent evaluation for residuals of a right knee meniscectomy is granted. For the initial rating period from July 31, 2010 to January 30, 2012, entitlement to a total disability rating based upon individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran was not shown to have left knee extension limited to less than 0 degrees or flexion limited to less than 120 degrees, with no subluxation/lateral instability being demonstrated. 2. Throughout the appeal period, the Veteran was not shown to have right knee extension limited to less than 0 degrees or flexion limited to less than 100 degrees, with no more than slight lateral instability being demonstrated. 3. The Veteran’s right knee condition has remained symptomatic post-semilunar cartilage removal, but there is no evidence of joint effusion. 4. For initial rating period from July 31, 2010 to January 30, 2012, the Veteran’s service-connected disabilities prevented him from obtaining or maintaining a substantially gainful occupation; the Veteran is already in receipt of a TDIU for the period beginning January 31, 2012. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for left knee degenerative joint disease, based upon limitation of motion, have not been met at any time. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5260, 5261 (2017). 2. The criteria for a rating in excess of 10 percent for right knee degenerative joint disease, based upon limitation of motion, have not been met at any time. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5260, 5261 (2017). 3. The criteria for a compensable evaluation for left knee degenerative joint disease, based upon subluxation/lateral instability, were not met at any time throughout the course of the appeal. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.71a, Diagnostic Code 5257 (2017). 4. The criteria for an evaluation in excess of 10 percent for right knee degenerative joint disease, based upon subluxation/lateral instability, were not met at any time throughout the course of the appeal. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.71a, Diagnostic Code 5257 (2017). 5. The criteria for a 10 percent disability rating, but no higher, for the Veteran's right knee condition based on symptomatic removal of semilunar cartilage have been met throughout the appeal period. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5259 (2017). 6. For the initial rating period from July 31, 2010 to January 30, 2012, the criteria for entitlement to a TDIU are met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active service from October 1975 to October 1978, from January 2004 to March 2005, and from May 2007 to July 2010. Evaluations Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. Diagnostic Code 5003 provides that 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 (DC 5200 etc.). 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, a 10 percent evaluation is assigned where x-ray evidence shows involvement of two or more major joints or 2 or more minor joint groups. Where there is x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, a 20 percent evaluation is assigned. Note (1) to Diagnostic Code 5003 states that the 20 and 10 percent ratings based on x-ray findings, above, will not be combined with ratings based on limitation of motion. Id. Limitation of motion of the knee is addressed in 38 C.F.R. § 4.71a, Diagnostic Codes 5260 and 5261. Diagnostic Code 5260 provides for a zero percent rating where flexion of the leg is limited to 60 degrees; 10 percent rating where flexion is limited to 45 degrees; 20 percent rating where flexion is limited to 30 degrees; and 30 percent rating where flexion is limited to 15 degrees. Diagnostic Code 5261 provides for a zero percent rating where extension of the leg is limited to 5 degrees; 10 percent rating where extension is limited to 10 degrees; 20 percent rating where extension is limited to 15 degrees; a 30 percent rating where extension is limited to 20 degrees; a 40 percent rating where extension is limited to 30 degrees; and a 50 percent rating where extension is limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. The knee is considered a major joint. 38 C.F.R. § 4.45(f). The normal range of motion of the knee is from zero to 140 degrees. 38 C.F.R. § 4.71, Plate II. Diagnostic Code 5257 provides for assignment of a 10 percent rating when there is slight recurrent subluxation or lateral instability; a 20 percent rating when there is moderate recurrent subluxation or lateral instability; and a 30 percent rating when there is severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. VA's General Counsel has held that a claimant who has arthritis and instability of the knee may be rated separately under diagnostic Codes 5003 and 5257. VAOPGCPREC 23-97; 62 Fed. Reg. 63,604 (1997). The General Counsel subsequently clarified that for a knee disability rated under DC 5257 to warrant a separate rating for arthritis based on x-ray findings and limitation of motion, limitation of motion under DC 5260 or DC 5261 need not be compensable but must at least meet the criteria for a zero-percent rating. A separate rating for arthritis could also be based on x-ray findings and painful motion under 38 C.F.R. § 4.59. VAOPGCPREC 9-98 (1998); 63 Fed. Reg. 56,704 (1998). The General Counsel further held that separate ratings could also be provided for limitation of knee extension and flexion. VAOPGCPREC 9-2004; 69 Fed. Reg. 59,990 (2004). Under DC 5258, a maximum 20 percent rating is assigned when there is evidence of semilunar dislocated cartilage with frequent episodes of locking, pain and effusion into the joint. Under Diagnostic Code 5259, a maximum 10 percent disability rating is warranted for symptomatic removal of the semilunar cartilage. In VAOPGCPREC 9-98, VA's General Counsel reiterated that, if a veteran has a disability rating under Diagnostic Code 5257 for instability of the knee, and there is also x-ray evidence of arthritis, a separate rating for arthritis could also be based on painful motion under 38 C.F.R. § 4.59. In addition, the General Counsel considered a hypothetical situation in which a knee disability was evaluated under Diagnostic Code 5259 that was productive of pain, tenderness, friction, osteoarthritis established by x-rays, and a slight loss of motion. For the purposes of the hypothetical, it was assumed that Diagnostic Code 5259 did not involve limitation of motion. Given the findings of osteoarthritis, the General Counsel stated that the availability of a separate evaluation under Diagnostic Code 5003 in light of sections 4.40, 4.45, 4.59 must be considered. See Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). Absent x-ray findings of arthritis, limitation of motion should be considered under Diagnostic Codes 5260 and 5261. The claimant's painful motion may add to the actual limitation of motion so as to warrant a rating under Diagnostic Codes 5260 or 5261. The General Counsel further noted in VAOPGCPREC 9-98 that the removal of the semilunar cartilage may involve restriction of movement caused by tears and displacements of the menisci, but that the procedure may result in complications such as reflex sympathetic dystrophy, which can produce loss of motion. Therefore, limitation of motion is a relevant consideration under Diagnostic Code 5259, and the provisions of 38 U.S.C. §§ 4.40, 4.45, and 4.59 must be considered. Disability of the musculoskeletal system is the inability to perform normal working movement with normal excursion, strength, speed, coordination, and endurance. Weakness is as important as limitation of motion, and a part which becomes disabled on use must be regarded as seriously disabled. Functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is to be considered in evaluating the degree of disability, but a little-used part of the musculoskeletal system may be expected to show evidence of disuse, through atrophy, the condition of the skin, absence of normal callosity, or the like. 38 C.F.R. § 4.40. The provisions of 38 C.F.R. § 4.45 contemplate inquiry into whether there is crepitation, limitation of motion, weakness, excess fatigability, incoordination, impaired ability to execute skilled movements smoothly, pain on movement, swelling, deformity, or atrophy of disuse. Instability of station, disturbance of locomotion, and interference with sitting, standing, and weight-bearing are also related considerations. It is the intention of the rating schedule to recognize actually painful, unstable, or malaligned joints, due to healed injury, as at least minimally compensable. See also DeLuca v. Brown, 8 Vet. App. 202 (1995) (indicates that pursuant to 38 C.F.R. §§ 4.40 and 4.45, pain may be the basis for a rating for a disability rated based on limitation of motion, regardless of whether the limitation of motion specified in the Diagnostic Code criteria is shown). Treatment records associated with the claim reveal that a January 2009 MRI of the right knee revealed a Grade I tear in the medial collateral ligament along with degenerative changes. In February 2009, the Veteran underwent arthroscopic right meniscectomy surgery. In conjunction with his claim, the Veteran was afforded a VA examination in December 2009. At that time, the Veteran reported having loss of endurance for ambulation and give away sensation in the right knee. Range of motion for the right knee was 0 to 140 degrees with pain in the last 10 degrees and no functional loss. Extension was 0 degrees with pain in the last 20 degrees. There was no functional loss. The left knee had flexion from 0 to 140 degrees with pain in the last 10 degrees and no functional loss and full extension with pain in the last 10 degrees with no functional loss. There was a positive grinding test in the left knee and tenderness in the left knee at the patellar area. There was no instability in the left knee. There was instability in the right knee medical collateral ligament. Diagnoses of right knee degenerative joint disease; right knee meniscal tear; right knee bone contusion; left knee degenerative joint disease; and left knee patellofemoral dysfunction were rendered. At the time of a November 2012 VA examination, the Veteran was diagnosed as having right knee meniscal tear status post arthroscopy; bilateral knee degenerative changes; and bilateral knee patellofemoral pain syndrome. The Veteran stated that he continued to have bilateral knee pain, which was worse going up and down stairs and that he was also having difficulty walking. The Veteran also reported that he had difficulty climbing stairs. Right knee flexion was to 100 degrees with painful, motion beginning at 100 degrees. Extension was to 0 degrees with no pain. Left knee flexion was to 120 degrees, with painful motion at 120 degrees. Extension was to 0 degrees with pain at 0 or any degree of hyperextension. Range of motion remained the same with repetitive motion. Functional loss was pain on movement for both knees. There was pain on palpation. Muscle strength was 5/5 for both knees. Normal findings for both knees were reported for anterior stability, posterior instability, and medial-lateral instability. There was no evidence or history of recurrent patellar subluxation/dislocation. As to the meniscal condition, the examiner indicated that the Veteran had had a right meniscal tear, with a right meniscectomy being performed in 2009. The Veteran was noted to have right knee pain as a residual of the meniscectomy. The scar resulting from the surgery was not painful or unstable and was less than 39 square centimeters. The Veteran reported using a cane for his back/knee conditions. X-ray evidence did not reveal evidence of patellar subluxation. The examiner indicated that the Veteran’s knee conditions did not impact his ability to work. The Veteran underwent an additional VA examination in January 2017. At that time, diagnoses of bilateral degenerative knee arthritis and right knee arthroscopic meniscectomy residuals were rendered. The Veteran reported having pain in both knee joints during ambulation with occasional knee buckling of the right joint. Range of motion was from 0 to 140 degrees for both knees. There was no evidence of pain with weightbearing; however, there was evidence of localized tenderness or pain on palpation of the joint/soft tissue in the peripatellar area. Repetitive movement revealed no additional loss of motion. Muscle strength was 5/5. There was no ankylosis. Stability testing revealed slight recurrent subluxation on the right. There was no history of instability. Anterior instability was 1+ on the right. Posterior, medial, and lateral instability were normal. Instability testing for the left knee was normal for all tests. The Veteran was noted to have undergone right arthroscopic meniscectomy surgery. There were no pertinent physical findings, complications, conditions, signs, or symptoms related to the arthroscopic surgery. The Veteran was found to have two 1cm x .1 cm scars from the surgery. The Veteran was again noted to use a cane for his back and knee problems. The Veteran’s knee problems impacted heavy lifting, carrying, pushing or pulling, and handling. Prolonged standing and prolonged ambulation were also impacted. The examiner indicated that there was no pain with non-weightbearing, passive motion, or weightbearing. In its December 2017 remand, the Board noted that in January 2017, the Veteran underwent an examination of his bilateral knees to determine the current severity of his service-connected disabilities. During the examination, the Veteran was noted to exhibit pain of flexion of both knees, however, the examiner did not state at what point evidence of painful motion was observed. Further, the examiner stated that the Veteran did not indicate flare-ups or additional functional loss due to flare-ups, despite the Veteran reporting flare-ups relating to his knee conditions during VA examinations in 2009 and 2012. The Board found that based upon these discrepancies that a new VA examination should be performed to determine the severity of his service-connected knee disabilities. In February 2018, the Veteran was afforded an additional VA examination. Diagnoses of degenerative joint disease of the left and right knee and status post right knee arthroscopic meniscectomy residuals were rendered. The Veteran reported that he continued to have bilateral knee pain during ambulation. He described flare-ups as a dull pain in both knee joints that limited his capacity for distance ambulation. The Veteran denied having a flare-up during the examination. Physical examination revealed flexion from 0 to 140 degrees in both knees. Pain was noted but did not cause functional loss. There was no evidence of pain with weightbearing. There was no additional loss of motion with repetitive motion. There was localized tenderness on palpation in the peripatellar region. The examiner stated that he could not opine as to whether pain, weakness, fatigability, or incoordination significantly limited functional ability with flare-ups without resort to speculation. Muscle strength was 5/5 for both knees. There was no ankylosis. There was no history of recurrent subluxation. Stability testing for both knees was normal except for 1+ being reported with right anterior instability. The Veteran’s right arthroscopic meniscectomy residuals did not result in any pertinent physical findings, complications, conditions, signs, or symptoms. The Veteran reported occasional use of a brace. The Veteran’s knee problems were noted to impact heavy lifting, carrying, pushing or pulling, and handling. Prolonged standing and prolonged ambulation were also impacted. The examiner indicated that there was no pain with non-weightbearing, passive motion, or weightbearing. The examiner noted that the Veteran was not seen during a period of flare-up or after repetitive use over time. He observed that the Veteran’s lay statements of knee pain at past evaluations in 2009 and 2012 were taken into account, nevertheless, the examiner was unable to give an opinion based on documented pain at the knee joints seen at the records of other evaluations since evidence of record was silent for functional limitations during flare-ups. The examiner stated that he was unable to foresee how the Veteran would react in terms of functional limitations since each individual had unique pain thresholds and would react differently in terms of functional residuals during a flare-up of any type of medical condition. Left Knee As it relates to flexion of the left knee, the Veteran was not shown to have flexion to less than 60 degrees at the time of any VA examination or outpatient visit during the time period in question, with flexion to no less than 120 degrees being reported during the course of the appeal. As the Veteran has been shown to have limitation of motion, although noncompensable for rating purposes, in conjunction with his arthritis, a 10 percent disability evaluation, and no more, would be warranted under 5260. Therefore, a rating in excess of 10 percent for limitation of flexion is not warranted. As to extension, the Veteran has been shown to have extension to 0 degrees at the time of each VA examination. While pain was noted in the last 10 degrees at the time of the 2009 examination, the examiner specifically indicated that the Veteran had no functional loss. As such, a compensable disability evaluation would not be warranted for extension under 5261. See also VAOPGCPREC 9-98; VAOPGCPREC 9-2004. While the Board is sympathetic to the Veteran's reports of pain, objective testing did not reveal that any pain on use or during flare-ups, abnormal movement, fatigability, incoordination, or any other such factors resulted in the left knee being limited in motion to the extent required for a 20 percent rating for limitation of flexion or extension of the left knee. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). As it relates to instability, the Veteran has been found to have no instability or subluxation of the left knee at the time of any VA examination, with the Veteran being noted to have normal findings for anterior stability, posterior instability, and medial-lateral instability. There were no findings of nor has the Veteran reported having any subluxation. As such, a compensable disability evaluation based up subluxation/lateral instability is not warranted at any time. Under Code 5258, a 20 percent rating is assigned for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint. Under Code 5259, removal of semilunar cartilage that is symptomatic warrants a 10 percent rating. 38 C.F.R. § 4.71a. The Veteran has not been shown to have a left knee meniscus condition; as such, separate ratings under these codes are not warranted. Right Knee As it relates to flexion of the right knee, the Veteran was not shown to have flexion to less than 60 degrees at the time of any VA examination or outpatient visit during the time period in question, with flexion being to no less than 100 degrees during the course of the appeal. As the Veteran has been shown to have limitation of motion, although noncompensable for rating purposes, in conjunction with his arthritis, a 10 percent disability evaluation, and no more, would be warranted under 5260. Therefore, a rating in excess of 10 percent for limitation of flexion is not warranted. As to extension, the Veteran has been shown to have extension to 0 degrees at the time of each VA examination. While pain was noted in the last 20 degrees at the time of the 2009 examination, the examiner specifically indicated that the Veteran had no functional loss. As such, a compensable disability evaluation would not be warranted for extension under 5261. See also VAOPGCPREC 9-98; VAOPGCPREC 9-2004. While the Board is sympathetic to the Veteran's reports of pain, objective testing did not reveal that any pain on use or during flare-ups, abnormal movement, fatigability, incoordination, or any other such factors resulted in the right knee being limited in motion to the extent required for a 20 percent rating for limitation of flexion or extension of the right knee. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995) As it relates to instability, the Veteran has been found to have no more than slight instability at the time of any VA examination. At the time of the 2009 VA examination, the Veteran was found to have instability in the medial collateral ligament. At the time of the 2017 and 2018 examinations, the Veteran was found to have 1+ anterior stability. However, posterior instability, medial, and lateral instability were noted to be normal. As such, no more than a 10 percent disability evaluation, demonstrating slight lateral instability, would be warranted. With respect to Codes 5258 and 5259, the Veteran has been shown to have had a meniscectomy of the right knee. However, in determining whether a separate rating is warranted under these codes, the Board must decide whether separate and distinct symptoms exist or whether there is overlapping symptomatology such that only a single rating is appropriate. The critical element in permitting the assignment of more than one evaluation under different diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of another condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Under Code 5258, a 20 percent rating is assigned for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. Under Code 5259, removal of semilunar cartilage that is symptomatic warrants a 10 percent rating. 38 C.F.R. § 4.71a. Treatment records show that the Veteran underwent a meniscectomy in 2009. The Veteran has not been shown to have a history of recurrent effusion or locking of the right knee, which is required for a 20 percent rating under Diagnostic Code 5258. However, the Veteran's treatment records and VA examinations show that the Veteran has reported residual symptoms from his meniscectomy, including pain, tenderness, and slight lateral instability. Accordingly, a 10 percent rating is assigned for symptomatic removal of meniscus under Diagnostic Code 5259. TDIU A total disability rating for compensation based on a TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.34l, 4.16(a) (2017). Where the combined rating percentage requirements are not met, entitlement to the benefits may be nonetheless considered when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16 (b). The Board notes that the Veteran has been awarded a TDIU effective the date he filed a formal claim for a TDIU (i. e., on January 31, 2012). However, this claim was filed following his initial claims for service connection for a bilateral knee, spine, and hearing loss disabilities, and a claim for TDIU is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). As such, the Board finds that consideration of a TDIU is appropriate for the rating period prior to January 31, 2012. The Board finds that the Veteran was in receipt of an 80 percent rating for the entire initial rating period on appeal, to include from July 31, 2010 to January 30, 2012. Further, the evidence demonstrates that the Veteran is unemployable as a result of his service-connected knee and spine disabilities. For these reasons, and upon review of all the evidence of record, the Board finds that the weight of the probative evidence supports a finding that the Veteran has been unable to follow a substantially gainful occupation as a result of his service-connected disabilities disability throughout the initial rating period on appeal. Accordingly, resolving reasonable doubt in favor of the Veteran, the Board finds that the criteria for a TDIU have been met from July 31, 2010 to January 30, 2012. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. ROMINA CASADEI Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T.S.Kelly, Counsel