Citation Nr: 18150273 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 16-36 773 DATE: November 14, 2018 ORDER Entitlement to an initial rating in excess of 10 percent for a right knee disability under Diagnostic Code 5260 is denied. Entitlement to an initial rating in excess of 10 percent for a left knee disability under Diagnostic Code 5260 is denied. Entitlement to a separate 10 percent rating for a right knee disability under Diagnostic Code 5261 is granted. Entitlement to a separate 10 percent rating for a left knee disability under Diagnostic Code 5261 is granted. Entitlement to a separate 10 percent rating for right knee instability under Diagnostic Code 5257 is granted. Entitlement to a separate 10 percent rating for left knee instability under Diagnostic Code 5257 is granted. Entitlement to a separate 20 percent rating under Diagnostic Code 5258 for right knee locking, pain, and joint effusion is granted. Entitlement to a separate 20 percent rating under Diagnostic Code 5258 for left knee locking, pain, and joint effusion is granted. FINDINGS OF FACT 1. The Veteran’s right knee disability manifested as painful limited flexion, painful limited extension, slight instability, and effusion. 2. The Veteran’s left knee disability manifested as painful limited flexion, painful limited extension, slight instability, and effusion. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for a right knee disability pursuant to Diagnostic Code 5260 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260 (2018). 2. The criteria for an initial rating in excess of 10 percent for a left knee disability pursuant to Diagnostic Code 5260 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260 (2018). 3. The criteria for a separate 10 percent rating under Diagnostic Code 5261 for a right knee disability have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260 (2018). 4. The criteria for a separate 10 percent rating under Diagnostic Code 5261 for a left knee disability have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260 (2018) 5. The criteria for a separate 10 percent for right knee instability pursuant to Diagnostic Code 5257 have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.71a, Diagnostic Code 5257 (2018). 6. The criteria for a separate 10 percent for left knee instability pursuant to Diagnostic Code 5257 have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.71a, Diagnostic Code 5257 (2018). 7. The criteria for a separate 20 percent rating for dislocated semilunar cartilage with frequent episodes of “locking” and effusion into the joint pursuant to Diagnostic Code 5258 for a right knee disability have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.71a, Diagnostic Code 5258 (2018). 8. The criteria for a separate 20 percent rating for dislocated semilunar cartilage with frequent episodes of “locking” and effusion into the joint pursuant to Diagnostic Code 5258 for a left knee disability have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.71a, Diagnostic Code 5258 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Neither the Veteran nor his attorney have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Rating Disability ratings are determined by applying the criteria established in VA’s Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.20 (2018). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2018). Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant. 38 C.F.R. § 4.3 (2018). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Given the nature of the present claim for a higher initial evaluation, the Board has considered all evidence of severity since the effective date for the award of service connection in September 2010. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran’s right and left knee disabilities are rated under Diagnostic Code, 5260 for limitation of flexion of the leg. Under this Diagnostic Code, a noncompensable rating is warranted when flexion is limited to 60 degrees. A 10 percent rating is warranted when flexion of the leg is limited to 45 degrees. A 20 percent rating is warranted when flexion is limited to 30 degrees. A 30 percent rating is warranted when flexion is limited to 15 degrees. 38 C.F.R. § 4.71a (2018). Normal flexion is 140 degrees. 38 C.F.R. § 4.71, Plate II (2018). The Board will also consider Diagnostic Code 5261 for limitation of extension of the leg. Under this Diagnostic Code, a noncompensable rating is warranted when extension is limited to 5 degrees. A 10 percent rating is warranted when extension of the leg is limited to 10 degrees. A 20 percent rating is warranted when extension is limited to 15 degrees. A 30 percent rating is warranted when extension is limited to 20 degrees. A 40 percent rating is warranted when extension is limited to 30 degrees. A 50 percent rating is warranted when extension is limited to 50 degrees. 38 C.F.R. § 4.71a (2018). Normal extension is 0 degrees. 38 C.F.R. § 4.71, Plate II (2018). Diagnostic Codes 5260 and 5261 are for limitation of motion. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). The Board must also consider other applicable Diagnostic Codes. Thus, the Board will consider Diagnostic Code 5257, under which, a 10 percent rating is warranted when there is slight recurrent subluxation or lateral instability. A 20 percent rating is warranted when there is moderate recurrent subluxation or lateral instability. A 30 percent rating is warranted when there is severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a (2018). Diagnostic Code 5257 is based upon instability and subluxation, not limitation of motion, as a result, the factors set forth in 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 do not apply. DeLuca, 8 Vet. App. 202. The words “slight,” “moderate,” and “severe” as used in the various Diagnostic Codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are equitable and just. 38 C.F.R. § 4.6 (2018). It should also be noted that use of terminology such as “severe” by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (2018). Last, the Board will consider Diagnostic Code 5258 for meniscus conditions. Under Diagnostic Code 5258, semilunar cartilage that is dislocated with frequent episodes of locking, pain, and effusion into the joint, warrants a 20 percent rating. 38 C.F.R. § 4.71a (2018). The Veteran has arthritis, which is rated under Diagnostic Code 5003. Under Diagnostic Code 5003, the disability is evaluated based upon limitation of motion of the affected part. When limitation of motion is noncompensable, a 10 percent rating is warranted when there is x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. A 20 percent rating is warranted where there is x-ray evidence of the involvement of 2 or more major joints or 2 or more minor joint groups with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a (2018). In this case, his limitation of motion is compensated for because he is receiving a 10 percent rating under Diagnostic Code 5620 in each knee and the Board grants a separate 10 percent rating under Diagnostic Code 5261 for each knee in this decision. A 20 percent rating is not warranted under Diagnostic Code 5003. The Board acknowledges the Veteran’s assertion that he has “incapacitating exacerbations” which warrant a 20 percent rating. However, the 20 percent criteria under Diagnostic Code 5003 are not for consideration when limitation of motion is compensable, as in this case. A higher rating under Diagnostic Code 5003 is not warranted. The Veteran did not have removal of the semilunar cartilage, or have ankylosis or genu recurvatum. Therefore, Diagnostic Codes 5256, 5259, and 5263 do not apply. 38 C.F.R. § 4.71a (2018). Facts The Veteran received a VA examination in March 2011. He reported increased pain after prolonged sitting, prolonged sitting, and climbing up stairs. For both knees, the Veteran experienced giving way, stiffness, and weakness. In his right knee he also experienced swelling and tenderness. In his left knee he experienced locking several times per year and one episode of effusion. Neither knee showed signs of instability, dislocation, or incoordination. For both knees, his flexion was to 120 degrees and his extension was normal, with pain on active range of motion. There was no objective evidence of pain or additional limitation in range of motion following repetitive testing. Neither knee had ankylosis or a meniscal abnormality. An April 2012 VA record documented the Veteran’s continued report of knee pain at his job. He also had pain when he climbed stairs. He used a knee brace. He had no pain with sitting and continued to go to the gym and walk 3 times per week. A May 2013 VA record noted the Veteran had full range of motion in both knees and no instability. In July 2013, he received another VA examination. The Veteran wore a knee brace daily and felt increased pain at night when lying down. He experienced flare ups and had increased pain when taking the stairs, standing, and gardening. In the past year he lost 3 to 4 days of work because of pain. His range of motion in his right knee was flexion to 125 degrees, with pain at 90 degrees, and his extension was normal with no pain. His left knee range of motion was flexion to 125 degrees, with pain at 80 degrees, and his extension was normal with no pain. His right knee had no functional loss after repetition. His left knee flexion decreased to 110 degrees after repetition. He did experience less movement than normal, incoordination, pain on movement, interference with sitting and standing, and pain with weight-bearing tests. The Veteran’s joint stability was normal, and he had no subluxation or meniscus conditions. In September 2013, the Veteran stated that he had incapacitating episodes almost daily. He also stated that his doctor had recommended him for partial knee replacements. As noted above, a higher rating under Diagnostic Code 5003 is not warranted because his limitation of motion is compensable. However, in this decision, the Board will take into account the Veteran’s flare-ups of symptoms. In August 2014, the VA records noted joint effusion was suspected in both knees. At his May 2016 VA examination, the Veteran stated his condition had worsened and he was no longer able to exercise regularly. The examiner noted the same factors noted in the May 2013 examination contributed to loss in his functional ability: pain, fatigue, and lack of endurance. His muscle strength was 4/5, indicating some weakness. For both knees, the Veteran’s flexion was to 120 degrees, and his extension was to 0 degrees, all with pain. There was no additional limitation of motion after repetition. The Veteran reported flare-ups and the examiner estimated that during flare ups the Veteran’s range of motion would be limited by an additional 5 to 10 degrees, but it would depend on the intensity of the flare up. Based on this estimate, the Board finds that during a flare up of the worst intensity, the Veteran’s right knee range of motion would be 10 degrees of extension and 115 degrees of flexion, and his left knee range of motion would be 10 degrees of extension and 100 degrees of extension. This calculation is based on the assumption that an additional 10 degrees of flexion and extension would be lost during a flare up. For the left knee, the Board used the post-repetition measurement of 110 degrees of flexion. The Veteran’s knees showed no signs of atrophy, ankylosis, subluxation, or instability. He had a history of recurrent effusion described as “diffuse knee swelling.” The Veteran’s next VA examination was in July 2016. He reported that he had problems with prolonged standing, walking, and sitting. He stated that he could not run, jump, or exercise. The Veteran reported flare ups that caused swelling around his knees and constant pain in his joints. For both knees his flexion was to 95 degrees, and his extension was to 0 degrees. He experienced pain during active range of motion testing and weight-bearing testing. After repetition, his right knee’s range of motion was flexion to 90 degrees and left’s knees range of motion was flexion to 85 degrees. The examiner opined pain, fatigue, and lack of endurance would lead to additional functional loss after prolonged use. His muscle strength was 5/5, which is normal. The Veteran did not have ankylosis, subluxation, nor instability. The examiner noted the Veteran had a meniscal tear in each knee with frequent episodes of joint locking, pain, and effusion. He also continued to use a cane. In an April 2017 private examination, the Veteran’s range of motion for both knees was 5 degrees to 90 degrees with moderate effusion. The examiner noted that the Veteran’s knees could not get past 90 degrees without pain and had difficulty getting up from a seated position. The Veteran’s most recent examination was in August 2017. He reported flare ups 1 to 2 times per week and rated the pain as a 10. He had problems with bending, lifting heavy items, and exercising. The range of motion for his right knee was flexion “50< to 110” degrees and extension was “110 to 50< degrees.” The range of motion for his left knee was flexion “50< to 105” degrees and extension was “105 to 50< degrees.” The VA examiner noted that the Veteran’s extension was “50<”. The “<” symbol means “less than.” See Medical Abbreviations 352 (Neil M. Davis, 15th ed 2011). The use of the “<” symbol notes that the Veteran’s extension was 50 degrees or less. This notation reasonably means that the Veteran, when asked to extend his leg, had pain at 50 degrees. Then, the examiner then did not complete range of motion testing, and the examination report does not record the endpoint of extension. It is not reasonable for the Board to assume that the Veteran’s extension was limited to 50 degrees, especially when considering the many other extension measurements of record. In March 2011, twice in May 2013 (in both a VA treatment note and at a VA examination), July 2013, May 2016, and July 2016, his extension was measured at normal (0 degrees). Sometimes there was pain, other times there was not. The most severe measured extension was 5 degrees in a private treatment record from April 2017. The May 2016 VA examiner estimated that, at worst, the Veteran would lose 10 additional degrees during a flare-up. Considering the record as a whole, it is reasonable to conclude that the August 2017 VA examiner did not record the full testing of the Veteran’s extension, and that instead it was less than 50 degrees, but the endpoint was not recorded. The measurement is not usable for rating purposes. The Veteran experienced pain with range of motion testing and functional limitation in the form of his ability to bend and stoop. There was no change in his range of motion after repetition. The examiner opined that he was unable to say if the DeLuca factors impacted the Veteran’s functional ability without speculation because there was no conception or empirical basis for making such a determination without directly observing his function. The examiner noted the Veteran did not have ankylosis, subluxation, instability, or a meniscus condition. The Veteran constantly used a brace and cane. He lost 1 to 2 weeks of work in the past year due to his knee disabilities. He worked in an office job, but had trouble walking long distances and climbing stairs. Analysis Diagnostic Codes 5260 and 5261 Separate ratings are available for limitations of flexion and limitations of extension under Diagnostic Codes 5260 and 5261. VAOPGCREC 9-2004 (2004). At worst, the Veteran is unable to flex his right knee beyond 90 degrees and his left knee beyond 85 degrees. Based on the Veteran’s flexion his disability rating is more closely described by the criteria for a noncompensable rating. At no point during the appeal period has the Veteran’s flexion, for either knee, been limited to 60 degrees. Therefore, even when, considering all of the range of motion tests of record, the Veteran does not meet at 10 percent rating criteria based on his flexion measurements. However, a 10 percent rating was granted to compensate him for painful, limited motion under 38 C.F.R. § 4.59. As discussed above, at worst, the Veteran’s extension would be an estimated 10 degrees during a severe flare-up, according to the May 2016 VA examiner. For this reason, a separate 10 percent rating under Diagnostic Code 5261 is granted for each knee. 38 U.S.C. § 4.71a. However, a higher rating is not warranted. As noted above, at his most recent examination in August 2017, the Veteran’s right and left knee extension was “50<” degrees. This measurement is not usable for rating purposes as it does not capture the endpoint of extension. The functional loss described by the Veteran does not cause his extension to be limited to 15 degrees. A 20 percent rating under Diagnostic Code 5261 is not warranted. The medical evidence of record supports a finding that the Veteran has some functional loss in his knees due to pain. In multiple VA examinations the Veteran has reported that his knee pain has led to functional loss in the form of fatigability, lack of endurance, stiffness, and weakness. He also has effusion into the knees, which results in swelling. The Veteran also reported that his knee pain has limited his ability to stand, walk, or sit for prolonged periods. Consequently, the Veteran’s functional loss in the form of painful motion, weakness, stiffness, decreased endurance, and fatigability have been considered in the evaluation of his right and left knees. Therefore, when considering these factors, a separate 10 percent rating under Diagnostic Code 5261 for each knee is warranted. However, even when considering functional limitations due to pain and other factors identified in 38 C.F.R. §§ 4.40, 4.45, the Board finds that the Veteran’s functional loss from his right and left knee disabilities is not more closely described by the 20 percent criteria, which requires that flexion be limited to 30 degrees and extension limited to 15 degrees. At worst, the Veterans is unable to flex his right knee beyond 90 degrees and his left knee beyond 85 degrees, and his extension has not been limited to 15 degrees. 38 C.F.R. § 4.71a (2018). Diagnostic Code 5257 Based on the evidence of record the Board finds a separate rating for slight instability is warranted under Diagnostic Code 5257 for each knee. In April 2012, the Veteran reported using a knee brace occasionally, and at his July 2013 VA examination he reported using a knee brace daily. The Veteran has continued to wear knee braces and in July 2016 reported using a cane as well. The Veteran’s complaints are competent and credible. The Board finds that this constitutes slight instability. However, instability was not clinically found at his VA examinations or noted in his medical records. At each VA examination, the Veteran’s knees have tested normal for anterior instability, posterior instability, medial instability, and lateral instability. Additionally, a history of instability or subluxation was not noted. Therefore, while the Veteran had consistent complaints of instability, because his knees were consistently stable upon clinical testing of the joint, his disability picture is most accurately described as slight as opposed to moderate. See 38 C.F.R. § 4.71a (2018). Diagnostic Code 5258 Rating a knee disability under Diagnostic Code 5257, 5260, or 5261, does not, as a matter of law, preclude the assignment of a separate rating for a meniscal disability of the same knee under Diagnostic Code 5258 or 5259. Lyles v. Shulkin, 29 Vet. App. 107 (2017). The majority of the VA examinations specifically found no meniscus condition existed. However, joint effusion was noted from June 2014 onward. The July 2016 VA examiner was the first to state that there was a meniscus tear in each knee with frequent episodes of “locking,” joint pain, and joint effusion. The Board must therefore consider whether a separate rating under Diagnostic Code 5258 is warranted. In this case, his pain effusion and pain have arguably already been compensated for by the assignment of separate ratings under Diagnostic Codes 5260 and 5261 in each knee under 38 U.S.C. § 4.40 and 4.45. “Effusion” is defined as “the escape of fluid into a part or tissue, as an exudation or a transudation.” Dorland’s Illustrated Medical Dictionary, 595 (32nd ed. 2012). Effusion results in swelling, which is contemplated in 38 C.F.R. § 4.45(f) and considered when evaluating disabilities based on limitation of motion, such as in Diagnostic Codes 5260 and 5261. However, locking is not contemplated by the other rating criteria applicable to the knee. Even when considering symptoms such as pain and effusion, the criteria for higher ratings based upon limitation of motion were still not met, as discussed above. Thompson, 815 F.3d 781. Therefore, it is also arguable that he is not being compensated for pain and effusion. To afford the greatest benefit to the Veteran, a separate rating under Diagnostic Code 5258 is granted for each knee. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Brunot, Associate Counsel