Citation Nr: 18150006 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 12-30 807 DATE: November 14, 2018 ORDER A separate 10 percent rating for status/post multiple left knee meniscectomies is granted, from March 10, 2010 to October 26, 2010, from January 1, 2011 to August 31, 2016, and from December 1, 2016, subject to the payment of monetary benefits. Rating in excess of 10 percent for degenerative joint disease (DJD), left knee is denied. FINDINGS OF FACT 1. The Veteran had active service from February 1994 to July 2005, he has been granted a 100 percent combined rating since April 2013 plus special monthly compensation. 2. For the duration of the appeals period, the Veteran’s left knee disability has been manifested by subjective complaints of constant pain, occasional giving-out, and weakness; objective findings include decreased range of motion for flexion, swelling, and pain on palpation. 3. Between the periods of October 26, 2010 and January 1, 2011, and August 21, 2016 to December 1, 2016, the Veteran had a total rating for convalescence due to meniscal surgery. CONCLUSIONS OF LAW 1. The criteria for a separate 10 percent rating for status/post multiple meniscectomies left knee have been met. 38 U.S.C. §§ 1155, 5107(a), 5107A (2012); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5003, 5260 (2017). 2. The criteria for a rating in excess of 10 percent for DJD, left knee, have not been met. 38 U.S.C. §§ 1155, 5107(a), 5107A (2012); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DCs 5003, 5259 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate Compensable Rating for Painful Limitation of Motion of the Left Knee The Veteran claims he is entitled to a separate compensable rating for painful motion for DJD, status post multiple left knee meniscectomies. He is separately rated under DC 5259 for symptomatic residuals of the removal of cartilage. In order to warrant a separate compensable rating, the evidence must show any of the following:   • X-ray evidence of arthritis with noncompensable limitation of motion objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion (10% under DC 5003); • knee ankylosis in a favorable angle (30% under DC 5256); • slight recurrent subluxation or lateral instability (10% under DC 5257); • dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint (20% under DC 5258); • limitation of flexion to 45 degrees (10% under DC 5260); • limitation of extension to 10 degrees (10% under DC 5261); or • impairment of the tibia or fibula with a slight knee disability (10% under DC 5262). Turning to the evidence, the Veteran has not claimed nor had medical evidence shown ankylosis of the left knee at any angle. VA medical records throughout the applicable appeal period did not show, and VA examiners in August 2018, July 2017, June 2016, and June 2013 did not note any ankylosis. Similarly, while he had two meniscectomies on his left knee, the evidence shows a removal of cartilage and but not dislocated cartilage. The October 2010 and August 2016 surgical records do not show dislocated cartilage. Neither VA examiner listed above noted dislocated cartilage, nor was it noted in VA or private medical records. As such, the medical evidence does not support a separate or higher rating under DCs 5256 or 5258. Next, no impairment of tibia or fibula have been noted. No VA medical records, VA examiners, or private medical records noted any impairment of tibia or fibula. As such, the medical evidence does not support a separate or higher rating under DC 5262. As for slight recurrent subluxation or lateral instability, the evidence weighs against warranting a higher or separate rating. The Veteran has endorsed some weakness and “giving-out” of his knee. However, the examination have not identified recurrent subluxation or lateral instability. The June 2016 VA examiner specifically noted that “giving way” was not the same thing as instability, as it rather was symptomatic of and common of arthritis, and his joint stability tests were normal. The Veteran wears a knee brace, which records generally show is for pain, however, a VA physician ordered a knee brace in June 2011, along with a lateral stabilizer for the right knee to control the medial glide of the left knee. He also told a VA physician he needed additional stability from his knee brace in June 2014. However, along with normal objective stability testing, his VA medical records never mention subluxation, and when he reports symptoms, he uniformly endorses pain but either explicitly denies or fails to mention instability. This includes VA medical records for the entirety of the appeals period. Given that the majority of medical records do not mention instability, VA examinations do not show objective evidence of instability, and the June 2016 VA examiner categorized “giving way” as a symptom of left knee arthritis, rather than a showing of instability, a separate or higher rating under DC 5257 is not warranted. As to limitation of motion, in the VA examinations as well as VA and private medical records, the Veteran’s left knee flexion was never measured at worse than 70 degrees, including with pain or after repetition, as was shown in the June 2013 VA examination. His knee flexion limitation was generally measured at around 110 degrees. Given that a compensable rating for left knee flexion requires flexion limited to 45 degrees, a higher rating under DC 5260 alone is not warranted. Similarly, the Veteran’s limitation of extension was often found to be normal, and never limited to the degree necessary for a compensable rating. The July 2017 VA examiner measured his extension as 110 to 0, and the June 2016 VA examiner measured it as 100 to 0. The June 2013 VA examiner, who measured the most severe limitation of flexion of any examiner, found no limitation of extension. As such, the evidence does not warrant a compensable rating under DC 5261. However, the Veteran has had limitation of motion, and painful motion, specifically flexion, which has been consistently documented throughout the appeals period. He also has X-ray evidence of arthritis, confirmed most recently in June 2015. As he has been consistently treated for painful motion and swelling, and has noncompensable limitation for range of motion, the criteria for a separate compensable rating under DC 5003 are met. This rating does not constitute pyramiding. The Veteran is compensated at 10 percent under DC 5259 for symptomatic residuals following removal of cartilage. In the past, his rating has included the symptoms of painful motion as well as weakness, swelling, and pain on palpation. However, he was originally service connected under DC 5003 for painful motion for DJD of his left knee prior to his meniscal injuries and surgeries. Following his meniscal injuries and surgeries, he was rated under DC 5003-5259, for symptomatic removal of cartilage. Given that painful motion and arthritis preceded the meniscal injuries, and separate symptoms of weakness, swelling, and pain on palpation all exist as symptomatic for the purposes of DC 5259, it is proper that he is separately compensated for painful motion, as the symptomatology is no duplicative or overlapping. As such, the medical evidence supports a separate rating for painful motion. Rating in Excess of 10 percent for DJD The Veteran claims he is entitled to a rating in excess of 10 percent for DJD. As he is now separately compensated for painful motion, this includes symptoms of pain on palpation, swelling, and weakness. He is rated under DC 5259 for symptomatic residuals following removal of cartilage. 10 percent is the maximum rating under DC 5259, so the Board will also consider all potentially relevant diagnostic codes. In order to warrant a higher rating, the evidence must show: • ankylosis of the knee with a favorable angle in full extension or in slight flexion between 0 and 10 degrees (30% under DC 5256); • moderate recurrent subluxation or lateral instability (20% under DC 5257); • dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint (20% under DC 5258); • flexion of the knee limited to 30 degrees (20% under DC 5260); • extension of the knee limited to 15 degrees (20% under DC 5261); or • impairment of the tibia or fibula with a moderate knee disability (20% under DC 5262). However, as noted above, the medical evidence does not support a higher rating for DCs 5256-5262. As such, a separate or higher rating under these diagnostic codes is not warranted. As the Veteran’s has been assigned the maximum schedular rating available for DC 5259 of 10 percent, the appeal on a schedular basis is denied. The Board has also considered the Veteran’s lay statements that his disability is worse. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, Layno v. Brown, 6 Vet. App. 465, 470 (1994), he is not competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran’s left knee disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which this disability is evaluated. Moreover, as the examiner has the requisite medical expertise to render a medical opinion regarding the degree of impairment caused by the disability and had sufficient facts and data on which to base the conclusion, the Board affords the medical opinion great probative value. As such, these records are more probative than the Veteran’s subjective evidence of complaints of increased symptomatology. In sum, after a careful review of the evidence of record, the benefit of the doubt rule is not applicable and the appeal is granted to the extent that a separate rating is warranted for painful motion but denied for DJD. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Brendan A. Evans, Associate Counsel