Citation Nr: 18150373 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 13-34 235A DATE: November 15, 2018 ORDER Entitlement to a disability rating in excess of 10 percent for residuals of a left medial meniscus tear with degenerative joint disease (a left knee meniscal tear) is denied. Entitlement to a disability rating in excess of 10 percent for residuals of a torn medial meniscus, right knee (a right knee meniscal tear), is denied. Entitlement to a disability rating in excess of 10 percent for status post left knee arthroscopy, associated with a left knee meniscal tear, is denied. Entitlement to a disability rating in excess of 10 percent for status post right knee arthroscopy, associated with a right knee meniscal tear, is denied. Entitlement to a compensable disability rating for limitation of extension, left knee, associated with a left knee meniscal tear, is denied. Entitlement to a compensable disability rating for limitation of extension, right knee, associated with a right knee meniscal tear, is denied. FINDINGS OF FACT 1. In an August 2018 rating decision, the RO granted service connection for additional disabilities associated with the Veteran’s service-connected residuals of left and right knee meniscal tears, including left and right knee arthroscopies, each evaluated as 10 percent disabling, and separate noncompensable evaluations for limitation of extension. 2. For the period on appeal, the Veteran’s residuals of a left knee meniscal tear have been manifested by arthritis with painful motion, with flexion greater than 45 degrees and extension to 5 degrees or better. 3. For the period on appeal, the Veteran’s residuals of a right knee meniscal tear have been manifested by arthritis with painful motion, with flexion greater than 45 degrees and extension to 5 degrees or better. 4. For the period on appeal, the Veteran’s left knee cartilage has been removed and his left knee is symptomatic, to include symptoms such as effusion, pain, and locking. 5. For the period on appeal, the Veteran’s right knee cartilage has been removed and his right knee is symptomatic, to include symptoms such as effusion, pain, and locking. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for residuals of a left knee meniscal tear, with degenerative joint disease, have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5003-5260. 2. The criteria for a rating in excess of 10 percent rating for residuals of a right knee meniscal tear, is continued. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5260. 3. The criteria for a compensable rating for limitation of extension, left knee, have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5003-5261. 4. The criteria for a compensable rating for limitation of extension, right knee, have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5003-5261. 5. The criteria for a rating in excess of 10 percent rating for status post left knee arthroscopy have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5259. 6. The criteria for a rating in excess of 10 percent rating for status post right knee arthroscopy have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5259. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1979 to September 1983 and from February 1985 to April 1991. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran filed a claim for an increased disability rating for his already service-connected residuals of a left knee meniscal tear, which was evaluated as 10 percent disabling effective April 1991, in April 2011. He also sought a separate award of service connection for a right knee meniscal tear. In the August 2012 rating decision, the RO denied an evaluation higher than 10 percent for the service-connected left knee meniscal tear, but did grant the Veteran’s service connection claim for his right knee, and assigned a 10 percent evaluation effective April 13, 2011, the date of his service connection claim. The Veteran then commenced with the present appeal. In an August 2018 rating decision, the RO awarded separate ratings for left and right knee arthroscopy associated with the Veteran’s bilateral meniscal tears and assigned each a 10 percent rating, also effective April 13, 2011. In addition, non-compensable ratings were assigned for his bilateral knee disabilities based on limitation of extension, both effective the date of the Veteran’s most recent VA examination in November 2017. As the Veteran’s increased rating claims encompass all disabilities of his left and right knees, and as separate and higher evaluations may still be awarded, all of the evaluations relating to his knees are knee disabilities are before the Board. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in November 2016. A transcript of the hearing is of record. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person’s ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). A disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Disabilities of the knee are rated under Diagnostic Codes 5256 to 5263. 38 C.F.R. § 4.71a. Diagnostic Code 5260 provides that flexion of the leg limited to 15 degrees warrants a 30 percent rating; flexion limited to 30 degrees warrants a 20 percent rating; flexion limited to 45 degrees warrants a 10 percent rating; and flexion limited to 60 degrees warrants a 0 percent (noncompensable) rating. Id. Diagnostic Code 5261 provides that extension of the leg limited to 45 degrees warrants a 50 percent rating; extension limited to 30 degrees warrants a 40 percent rating; extension limited to 20 degrees warrants a 30 percent rating; extension limited to 15 degrees warrants a 20 percent rating; extension limited to 10 degrees warrants a 10 percent rating; extension limited to 5 degrees warrants a 0 percent (noncompensable) rating. Id. For comparison, normal range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion. See 38 C.F.R. § 4.71, Plate II. A 10 percent rating can also be assigned for the knee joint if there is painful motion without compensable limitation of motion. 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5003; see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that the applicability of 38 C.F.R. § 4.59 is not limited to arthritis claims). Recurrent subluxation and lateral instability of the knee warrants a 10, 20, or 30 percent rating if slight, moderate, or severe, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5257. When the knee disability affects the meniscus, a 20 percent rating is warranted when there is dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint. 38 C.F.R. § 4.71a, Diagnostic Code 5258. A 10 percent rating is warranted when there has been removal of semilunar cartilage (e.g., meniscectomy) and current residual symptoms. 38 C.F.R. § 4.71a, Diagnostic Code 5259. Separate ratings can be assigned for the above knee disabilities (Diagnostic Codes 5257, 5258, 5259, 5260, and 5261) when none of the symptomatology overlaps and the separate rating is based on additional disabling symptomatology. See VAOPGCPREC 23-97, 62 Fed. Reg. 63,603 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,703 (1998); VAOPGCPREC 9-2004; 69 Fed. Reg. 59,988 (2004); Lyles v. Shulkin, 29 Vet. App. 107 (2017). Lastly, ratings can also be assigned for impairment of the tibia or fibula, genu recurvatum, or ankylosis of the knee. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5262, 5263. Here, as previously noted, the Veteran is currently in receipt of multiple ratings for his bilateral knee disabilities during the period on appeal, including: a 10 percent rating under Diagnostic Code 5003-5260 for his initial award of service connection for his left medial meniscus tear with degenerative joint disease; a 10 percent rating under Diagnostic Code 5260 for limitation of flexion of the right knee; separate 10 percent ratings for both the right and left knee under Diagnostic Code 5259 for removal of semilunar cartilage due to the Veteran’s history of bilateral arthroscopy; and separate noncompensable ratings under Diagnostic Code 5003-5261 for limitation of extension of the bilateral knees. The Veteran was first afforded a VA examination for his left and right knee claims in July 2012. The examiner noted that the Veteran’s left knee pain began during his active service and was diagnosed as a torn medical meniscus. While arthroscopic surgery was performed on the left knee in 1995, the Veteran reported ongoing “popping,” dull pain, stiffness, locking, and giving way. Diagnostic testing of the left knee in May 2011 revealed degenerative joint disease. The examiner also noted that the Veteran’s right knee meniscal tear was a result of overcompensating for his left knee. An arthroscopy was also eventually performed on the right knee, with the Veteran reporting continued pain, pressure, stiffness, locking, “clicking,” and giving way. Diagnostic testing of the right knee in January 2011 revealed a small joint effusion with Baker’s cyst. Constant use of knee braces was also noted. Aside from the Veteran’s above reported symptoms, the examination report noted no deformity, instability, incoordination, dislocation, or subluxation. Physical examination and range of motion testing of the left knee revealed objective evidence of pain with active motion, flexion to 90 degrees, and normal extension. Clicks/snaps were also observed. Physical examination of the right knee revealed objective evidence of pain with active motion, flexion to 110 degrees, and normal extension. Grinding was also observed. No additional limitations were noted bilaterally after repetitive use testing. The examiner opined that the Veteran’s bilateral knee disabilities had a mild-to-moderate effect on most of the usual activities of his daily living, with sports and recreational activities completely prevented. A Disability Benefits Questionnaire (DBQ) was completed by the Veteran’s VA care provider in December 2012. The DBQ notes bilateral knee pain with flare-ups two to three times monthly, with his symptoms aggravated by climbing, kneeling, squatting, prolonged standing, and prolonged walking. Range of motion testing revealed 135 degrees flexion and normal extension, bilaterally, but with pain noted at 35 degrees flexion on the left and 50 degrees on the right. The Veteran was able to perform repetitive-use testing without any additional functional loss. Strength and stability testing were normal, however recurrent subluxation/dislocation was noted as slightly severe bilaterally. No additional meniscal condition was noted other than the residuals of his previous meniscal arthroscopies. During his November 2016 hearing testimony before the undersigned, the Veteran stated that the symptoms of his bilateral knee disabilities had worsened since the VA examination more than four years earlier. As such, the Board remanded the Veteran’s claims in October 2017 to afford him a new VA examination to determine the nature and severity of his knee disabilities, which took place the following November 2017. Upon examination, the Veteran reported flare-ups of knee pain, difficulty climbing stairs, an inability to run, jump, squat, or sit for extended periods of time, and a limited ability to exercise. Diagnostic testing revealed mild degenerative changes, bilaterally. Range of motion testing revealed left knee extension and flexion from 5 to 95 degrees, with pain noted on both flexion and extension. Right knee extension and flexion was from 5 to 90 degrees, with pain noted on flexion. There was no additional loss of function or range of motion after three repetitions. There was also no pain noted on weight bearing, bilaterally; however, there was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. Although the examiner noted that the examination was conducted during a flare-up, it was not conducted immediately after repetitive use over time. However, it was noted that the examination was neither medically consistent or inconsistent with his statements describing such functional loss after repetitive use due to pain, fatigue and weakness, and estimated no additional loss of motion. Muscle strength testing revealed no atrophy but strength was reduced. As to instability, no history of recurrent subluxation or lateral instability was indicated. The Board notes, however, that joint stability testing was not performed on either knee due to the Veteran’s report of pain. Finally, no meniscal condition other than the Veteran’s previous meniscal tears and episodes of joint locking were noted. The examiner opined that the functional impact of his bilateral knee disabilities allowed only sedentary or light physical tasks. The remainder of the evidence is essentially consistent with the above examination findings, with VA treatment records during the period on appeal noting left knee pain and stiffness that contributes to difficulty with running, jumping, climbing, and squatting, as well as the regular use of knee braces. January, April and May 2017 VA treatment records note continued mechanical problems such as locking, buckling, and popping. Diagnostic testing revealed degenerative changes of the femoral tibial joints, with the possibility of a small right effusion of the suprapatellar joint. Range of motion was, at worst, zero degrees extension and 115 degrees flexion, bilaterally, and strength testing was normal. While VA treatment records note the Veteran reported that his knees buckle and “give way,” the record is negative for a finding of recurrent subluxation, lateral instability, or a history of falling. Based on the foregoing, the Board finds that the evidence is against a finding that higher disability ratings are warranted under the diagnostic codes for which the Veteran is currently assigned. Flexion in either knee has been limited to, at most, 90 degrees, to include after repetitive use, during flare-up, or because of other functional limitations. Limitation of extension, which the Board notes was not indicated until the November 2017 VA examination, has been no more than 5 degrees. Thus, higher ratings are not warranted for limitation of flexion or extension under Diagnostic Codes 5260 or 5261 during the period on appeal, nor is a separate rating for extension warranted prior to November 10, 2017. 38 C.F.R. § 4.71a. During examinations the Veteran was asked about pain, flare-ups, and functional limitations, and relevant testing was performed, to include testing for pain and testing to reveal any additional functional limitations in certain circumstances, such as after repetitive use. No report suggests that the specific findings on examination, in terms of range of motion, would change to the degree required for a higher rating during a flare-up, after repetitive use, due to pain, or with weight bearing, nor does any other evidence of record to include the Veteran’s lay statements. While the Veteran has essentially stated that she has reduced motion in his knee, he has not described a range of motion which would warrant a higher rating. In this regard, during the July 2012 and November 2017 VA examinations, as well as in the December 2012 DBQ, the Veteran reported flare-ups consisting of increased pain, stiffness, and locking. The Veteran’s statements do not show the requisite limitation of motion necessary for a higher rating. Treatment records do not show greater limitation of motion than the examination findings. Absent indication by the Veteran or other evidence suggesting additional limitation of motion during flare-up or after repetitive use over time there is no reason to suspect range of motion is limited any more than reflected during examination and additional inquiry in this regard is unnecessary. Moreover, range of motion findings were obtained during a flare-up and an estimate of range of motion after repetitive use was offered by a VA examiner; both findings are against the award of higher or separate ratings based on limitation of motion. Given the above, higher ratings are not warranted based on limitation of motion. As to the evaluation for his left and right knee arthroscopies, the Veteran’s current 10 percent ratings are the highest available under Diagnostic Code 5259, and the previous meniscal tears and subsequent surgeries, along with their current symptoms, were the only meniscal conditions noted upon examination. As such, a higher, 20 percent evaluation is not warranted under Diagnostic Code 5258 for dislocated semilunar cartilage. 38 C.F.R. § 4.71a. The Board has considered whether there is any other basis for a separate or higher rating for the Veteran’s knee disabilities, but has found none. As the evidence in this case does not reflect and the Veteran does not allege that he has tibia or fibula impairment, genu recurvatum, or ankylosis, those diagnostic codes are not for application. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5262, 5263. In addition, a separate rating is not warranted under Diagnostic Code 5257 for recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a. While the Veteran may experience a feeling that his knees “give way” or are unstable, and thus has taken to use knee braces, VA treatment records are negative for any history of falls, instability, or episodes of subluxation. More importantly, there are specific medical tests that are generally recognized in the medical community as designed to reveal instability, subluxation, and laxity of the joints. These testing results and comments by medical professionals are given more probative weight than the Veteran’s lay statements regarding the symptoms he experiences. To be clear, the Board is not finding that medical evidence is categorically more probative than lay statements. Instead, for the reasons that follow, the Board finds that in this case, the findings of the examiners represent the most probative evidence as to the presence of lateral instability and recurrent subluxation. Stability tests were administered by medical professionals in this case in July 2012 and December 2012. While the December 2012 DBQ noted the Veteran’s reported history of slight subluxation/dislocation, actual joint stability testing was normal. During the July 2012 examination, the Veteran reported knee popping and locking, the right knee giving, and use of a brace. However, the examiner’s medical interpretation of the Veteran’s complaints was that he was not reporting instability or subluxation as evidenced by the examiner indicating “No” history of instability and that regarding dislocations and subluxation there were “None.” Likewise, although joint stability testing was unable to be performed during the November 2017 examination due to the Veteran’s report of pain, the examiner still noted the impression that the Veteran was not providing a history of recurrent subluxation or lateral instability despite his comments about his knees popping and buckling twice a week. Thus, the VA medical professionals’ interpretation of the Veteran’s lay statements is that he was not reporting a history of subluxation or instability. While the private provider indicated a history of slight subluxation, stability testing at that examination and a previous examination was normal. If subluxation or lateral instability were present to a slight degree, as required for a separate compensable rating, the Board would expect that this would have been identified at least once during the multiple diagnostic tests that were performed. See 38 C.F.R. §§ 4.31, 4.71a, Diagnostic Code 5257. The Board also finds it significant that the November 2017 examiner noted the Veteran’s reports of popping and buckling of the knees in the portion of the examination detailing his meniscal conditions. The Veteran is already compensated for symptoms after removal of semilunar cartilage and to compensate those same symptoms with another separate rating would constitute impermissible pyramiding of benefits. 38 C.F.R. § 4.14. The Board further finds that no separate rating is warranted for any scar on the Veteran’s knees attributable to his meniscectomies. While a knee scar was noted on the December 2012 DBQ, no other examination or medical treatment record shows the presence of any scar, let alone any scar that was deep or caused limited motion and cover areas at least six square inches (39 sq. cm.), was superficial and did not cause limited motion and cover areas of 144 square inches (929 sq. cm.) or greater, was superficial and unstable, was painful, or caused other disabling affects to warrant a separate compensable rating. See 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802, 7803, 7804, 7805. Finally, the Board also recognizes that it is the intent of the rating schedule to recognize painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. In this case, the Veteran is already assigned 10 percent ratings for his knees, which is the minimum compensable rating allowable for the knee joint. Additionally, the evidence is negative for X-ray reports during the appeal period that indicate involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations, to warrant a higher, 20 percent rating based upon limitation of motion of the affected part under Diagnostic Code 5003. 38 C.F.R. § 4.71a. The Board is sympathetic to the Veteran’s lay statements that his knee disabilities are worse than currently evaluated and those statements have been considered. The Veteran 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 (1994). He is not, however, competent to identify a specific level of disability according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran’s disability have 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 the clinical records) directly address the criteria under which his bilateral knee disabilities are evaluated. The medical and lay evidence has been assessed by the Board in determining the overall disability ratings. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. 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). Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Scarduzio, Associate Counsel