Citation Nr: 18150545 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 07-33 953 DATE: November 15, 2018 ORDER 1. Entitlement to an initial rating in excess of 10 percent for degenerative joint disease of the right knee is denied. 2. Entitlement to a separate 10 percent rating, but not higher for symptomatic residuals of right knee semilunar cartilage removal with a feeling of instability is granted. 3. A separate compensable disability rating on the basis of recurrent subluxation and/or lateral instability of the right knee, in addition to the 10 percent rating assigned for symptomatic residuals of right knee semilunar cartilage removal with a feeling of instability, is denied. FINDINGS OF FACT 1. Throughout the pendency of this claim, the Veteran’s degenerative joint disease of the right knee has been manifested by limitation of motion due to pain resulting in zero degrees extension and flexion limited, at worst, to 90, which is objectively confirmed by findings such as pain and crepitus. 2. The Veteran had a meniscectomy of the right knee and has residuals of pain, swelling, popping, grinding, and buckling; and also reports a feeling of instability although he has not reported falls and instability testing is negative. 3. Recurrent subluxation and lateral instability is not objectively demonstrated, and the Veteran’s feeling of instability/give way weakness is compensated by the 10 percent rating assigned under Diagnostic Code 5259. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 10 percent for service-connected degenerative joint disease of the right knee on the basis of painful motion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.45, 4.71a, Diagnostic Code 5010-5260. 2. The criteria for a separate rating of 10 percent, but not higher, for removal of the semilunar cartilage of the right knee manifested by a feeling of instability have been met for the entire period covered by this claim. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5259. 3. The criteria for the assignment of a separate compensable disability rating on the basis of recurrent subluxation or lateral instability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.14, 4.45, 4.71a, Diagnostic Code (DC) 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the U.S. Marine Corps from September 1977 to February 2006. In a June 2006 rating decision, the RO granted service connection for a right knee disability and assigned an initial 10 percent rating. The Veteran appealed for a higher rating. In a March 2014 decision, the Board denied entitlement to a rating in excess of 10 percent for a right knee disability. The Veteran appealed that determination to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a Joint Motion for Partial Remand (JMR), the Secretary of VA and the Veteran moved to vacate a March 2014 Board decision. It was agreed upon that the claim would be remanded because the March 2014 did not adequately consider or explain why a separate rating would not be warranted under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5259, for removal of the semilunar cartilage, in conjunction with the currently assigned 10 percent rating under DC 5003 (via DC 5010-5260) for arthritis. In addition, why a separate rating would not be warranted degenerative arthritis under DC 5003 and recurrent subluxation or lateral instability of the knee under DC 5257. In June 2015, the Court granted the Joint Motion and the case was returned to the Board. Pursuant to the JMR, the Board remanded the Veteran’s right knee disability claim in October 2015, August 2016 and May 2017 for further development. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Here, the Veteran disagreed with the initial 10 percent rating assigned following the grant of service connection for a right knee disability. Accordingly, the entire appeal period must be considered. The Board will also consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). In making all determinations, the Board must fully consider the lay assertions of record. A Veteran is competent to report on that of which he or she has personal knowledge. Layno v. Brown, 6 Vet. App. 465, 470 (1994). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Hyphenated diagnostic codes are used when a rating for a particular disability under one diagnostic code is based upon rating of the residuals of that disability under another diagnostic code. 38 C.F.R. § 4.27. The first four numbers reflect the diagnosed disability. The second four numbers after the hyphen identify the criteria used to evaluate that disability. Under DC 5003, degenerative arthritis is rated based upon limitation of motion of the affected part. When 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, arthritis warrants a 10 percent rating 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, Diagnostic Code 5003. The knee is considered a major joint. 38 C.F.R. § 4.45(f). DCs 5256 through 5263 address disability ratings for the knee and leg. DC 5256 governs ankylosis of the knee and permits a 30 percent rating for favorable angle in full extension, or in slight flexion between 0 degrees and 10 degrees, while a 40 percent rating is called for with flexion between 10 and 20 degrees, and a 50 percent rating for flexion between 20 and 45 degrees. Extremely unfavorable ankylosis, with flexion at an angle of 45 degrees or more warrants a maximum 60 percent evaluation. Under DC 5257, a 10 percent rating will be assigned for slight recurrent subluxation or lateral instability of a knee; a 20 percent rating will be assigned for moderate recurrent subluxation or lateral instability; and a 30 percent rating will be assigned for severe recurrent subluxation or lateral instability. Under DC 5258, dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint warrants a 20 percent evaluation. Under DC 5259, symptomatic removal of semilunar cartilage warrants a 10 percent rating. Under DC 5260, a noncompensable rating will be assigned for limitation of flexion of the knee to 60 degrees, a 10 percent rating will be assigned for limitation of flexion of the knee to 45 degrees, a 20 percent rating will be assigned for limitation of flexion of the knee to 30 degrees, and a 30 percent rating will be assigned for limitation of flexion of the knee to 15 degrees. Under DC 5261, a 10 percent disability rating is warranted for knee extension limited to 10 degrees, a 20 percent disability rating is assigned for extension limited to 15 degrees, a 30 percent disability rating is assigned for extension limited to 20 degrees, a 40 percent disability rating is assigned for extension limited to 30 degrees, and a 50 percent disability rating is assigned for extension limited to 45 degrees. Under DC 5262, impairment of the tibia and fibula warrants a 10 percent rating where there is malunion of the tibia and fibula with slight ankle or knee disability. A 20 percent rating is warranted where there is malunion of the tibia and fibula with moderate ankle or knee disability. A 30 percent rating is warranted where there is malunion of the tibia and fibula with marked ankle or knee disability. A maximum 40 percent rating is warranted for nonunion of the tibia and fibula with loose motion, requiring brace. DC 5263 provides a 10 percent rating where there is evidence of acquired genu recurvatum or traumatic genu recurvatum with weakness and insecurity in weight-bearing objectively demonstrated. The VA General Counsel held that a knee disability may receive separate ratings under diagnostic codes evaluating instability (DC 5257) and those evaluating range of motion (DCs 5003, 5010, 5256, 5260, and 5261). See VAOPGCPREC 23- 97. Additionally, the General Counsel held that separate ratings under Code 5260 (limitation of flexion of a knee) and Code 5261 (limitation of extension of a knee) may be assigned for disability of the same joint. See VAOPGCPREC 9-2004. Normal range of knee motion is 140 degrees of flexion and zero degrees of extension. 38 C.F.R. § 4.71, Plate II. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.” Rather, pain may result in functional loss, but only if it limits the ability “to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance.” Id. When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. §§ 4.40 and 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). The Veteran’s right knee disability is currently rated at 10 percent for noncompensable painful and limited motion effective March 1, 2006 under DCs 5010-5260. An April 2006 VA examination diagnosed degenerative joint disease of the right knee. On examination, crepitus was noted, but no instability or flares. The Veteran is limited to driving and walking for 20 minutes, standing for 15 minutes, and has difficulty sitting down and rising from a normal height commode. On examination, the Veteran had extension to 0 with pain and flexion to 130 degrees with no pain. The Veteran reported pain all day with swelling, buckling, popping, and grinding of the knee, but no locking. An April 2006 x-ray, revealed spur formation in the medial and lateral compartments. A June 2007 VA examination showed mobility from 0 through 135 degrees of flexion with pain expressed only at the extreme of flexion. During examination, the Veteran reported using a soft brace for lengthy walks. Neither tenderness of the knee on palpation nor ligament instability was noted. A May 2011 VA examination noted swelling, popping, and grinding. However, there was no locking or buckling. It was reported that the Veteran is limited to walking and standing for 20 minutes, and experiences flares with sharp pain when climbing stairs. On examination, there was extension to 0 and flexion to 115 with no pain. No additional functional loss was appreciated with repetitive testing. A January 2016 VA examination revealed the Veteran had flexion from 0 to 130 degrees without pain. The examiner reported no crepitus, history of flare-ups, recurrent subluxation or lateral instability. No additional functional loss was appreciated with repetitive testing. The x-ray, however, showed mild progression of degenerative joint disease of the right knee since the April 2006 x-ray. A September 2016 VA examination revealed tender to palpation and painful motion at 90 degrees of flexion. The Veteran reported swelling, popping, and flare-ups, but no locking. It was noted that the Veteran experienced flare-ups when he sits for extended periods of time. The examiner opined that the Veteran’s description of popping is due to his degenerative joint disease. The Veteran is limited standing and sitting for 30 minutes. A March 2018 VA examination noted mild suprapatellar tenderness and crepitus. On examination, the Veteran had flexion from 0 to 110 degrees with pain at 90 degrees. Pain was noted during motion testing; however, no additional functional loss was appreciated with repetitive testing. No evidence of instability, weakness, excess fatigability or incoordination was shown. The examiner noted a history of effusion because the Veteran reported occasional swelling. The Veteran reported right knee instability, but he has not fallen. It was further noted the Veteran has pain when he stands and sits for extended periods of time, and experiences stiffness going up stairs. However, the Veteran did not report flare-ups. In consideration of the medical and lay evidence, the Board finds that an initial rating in excess of 10 percent is not warranted under DCs 5003-5260. The evidence throughout the entire period on appeal shows flexion was, at worst, limited to 90 degrees with pain. Accordingly, only a 10 percent rating is warranted for painful limitation of motion that is noncompensable. Moreover, the Veteran has had normal extension throughout the period on appeal; therefore, a separate rating based on limited extension is not warranted. After reviewing the medical evidence of record, the Board finds no ankylosis has been noted and thus a separate rating under DC 5256 is not warranted. The Board considered whether the Veteran was entitled to a separate rating under DC 5257. Although, the Veteran is competent and credible to report buckling and instability, stability tests were normal and diagnostic testing taken during the aforementioned VA examinations did not reveal evidence of subluxation. Regarding entitlement to a separate rating under DC 5258, neither the medical nor lay evidence documents locking. The Board acknowledges that the Veteran reported swelling, buckling, popping, and grinding in the aforementioned VA examinations. In addition, a history of recurrent effusion was noted on the March 2018 VA examination. However, no examination report revealed a finding edema, warmth, or erythema. While pain have been related to the Veteran’s right knee disability, this is not sufficient to warrant a separate rating under DC 5258 and is contemplated by his 10 percent rating based on painful limitation of motion. Accordingly, the Board finds that a separate rating is not warranted under DC 5258. Further, there is no evidence of impairment of the tibia and fibula or acquired or traumatic genu recurvatum and thus, separate ratings under DC 5262 and 5263 are not warranted. The Board additionally considered whether the Veteran is entitled to a higher rating due to functional impairment under the provisions of 38 C.F.R. §§ 4.40 and 4.45. See DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). In making this determination, the Board considered the Veteran’s testimony regarding his symptoms, VA examination reports, and VA treatment records. While the record shows knee pain, swelling, crepitus, and difficulty with prolonged exertional activities (e.g. standing and walking), the evidence does not show that his symptoms and flare-ups produce functional loss that is manifested by adequate evidence of disabling pathology for higher ratings. See 38 C.F.R. § 4.40; Mitchell, 25 Vet. App. at 38. Indeed, the Veteran did not experience additional limitation of motion after repetitive use testing or during a flare up and his disability ratings are already based on the extent to which his symptoms reduce range of motion. However, when semilunar cartilage has been removed, but remains symptomatic, a 10 percent rating is assigned. 38 C.F.R. § 4.71a, Diagnostic Code 5259. Furthermore, separate ratings for limitation of motion under DCs 5260 and/or 5261 do not preclude a separation rating for meniscal symptoms under DCs 5258 or 5259. See Lyles v. Shulkin, 29 Vet. App. 107 (2017). Here, the evidence indicates that the Veteran received a right knee arthroscopy in April 2005, for a torn meniscus. Since then, he has experienced residual symptoms of pain and decreased range of motion. At the March 2018 VA examination, the examiner noted the right knee meniscectomy resulted in residual symptoms to include pain and decreased range of motion. The Veteran has consistently reported popping, grinding, and buckling. Although the Veteran’s symptoms of pain and decreased motion are already contemplated by the 10 percent rating assigned under Diagnostic Code 5003-5260, the Veteran has credibly reported that he feels that his knee is unstable. Given that the Veteran has symptomatic removal of semilunar cartilage, and feels that his knee is unstable, the Board resolves all doubt and finds that a separate 10 percent rating is warranted for the Veteran’s additional symptoms aside from pain and limited motion. While the Veteran has reported that his knee feels unstable, stability testing was normal, and the Veteran has not fallen as a result. Accordingly, the Board finds that the separate 10 percent rating is more appropriately assigned under Diagnostic Code 5259 rather than 5257. Given the meniscal tear, it is reasonable to infer that the Veteran’s “feeling” of instability, or give-way weakness, has resulted from the meniscal tear, and as such, it would be pyramiding to assign separate compensable ratings under both Diagnostic Code 5257 and 5259, as this would compensate the Veteran twice for the same symptoms. 38 C.F.R. § 4.14. The Board concludes that these findings and the Veteran’s lay statements are highly probative and finds that a separate compensable rating of 10 percent is warranted under Diagnostic Code 5259, but not under Diagnostic Codes 5257 and 5259. In this regard, the Board is mindful that the VA examiner in March 2018 indicated that the Veteran’s post-operative residuals of surgery include increased pain and limitation motion, which is already contemplated by the rating under Diagnostic Code 5003-5260. Thus, the Board finds that the Veteran’s feeling of instability could also be rated under Diagnostic Code 5257 instead of 5259. However, given the fact that the Veteran has reported only a feeling of instability, without falls or other objective signs of lateral instability, a rating in excess of 10 percent under Diagnostic Code 5257 would not be assignable. Accordingly, the Board finds that no more than a 10 percent rating is assignable under either Diagnostic Code 5257 or 5259, but not both. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD W. Wells, Associate Counsel