Citation Nr: 18150593 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 15-17 866 DATE: November 15, 2018 ORDER A disability rating of 20 percent, but not higher, is granted for right knee medial meniscus tear. FINDINGS OF FACT 1. The March 2017 VA examination noted a meniscal tear with frequent episodes of joint locking, joint pain, and joint effusion. 2. During the March 2017 VA examination, the Veteran’s right knee flexion was 110 degrees and extension was 10 degrees. There was no tibial or fibular impairment. Genu recurvatum was not noted. There was no ankylosis of his right knee. CONCLUSIONS OF LAW 1. The criteria have been met for a disability rating of 20 percent, but not higher, for the Veteran’s right knee medial meniscus tear. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, Diagnostic Code 5258 (2017). (DC 5258 provides a maximum 20 percent rating for semilunar, dislocated cartilage, with frequent episodes of locking, pain, and effusion into the joint). 2. Separate ratings under the other diagnostic codes related to a knee disability are not warranted. 38 C.F.R. §§ 4.3, 4.7, Diagnostic Codes 5260, 5261 (2017) (DC 5260 requires flexion limited to 60 degrees for a non-compensable rating, and DC 5261 requires extension limited to 5 degrees for a non-compensable rating.). 3. Separate ratings under DCs 5256, 5262, or 5263 are not warranted. 38 C.F.R. §§ 4.3, 4.7, Diagnostic Codes 5256, 5262, 5263 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1983 to October 1983 and from August 2005 to November 2006. The Veteran is currently rated at 10 percent under diagnostic code 5260 for pain. The Board finds that the Veteran is not entitled to separate ratings under both Diagnostic Code 5258 (dislocation of semilunar cartilage) and Diagnostic Code 5260 (limitation of flexion). The critical element in permitting the assignment of several ratings under various Diagnostic Codes is that none of the symptoms for any one of the disabilities duplicates or overlaps with the symptoms of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Diagnostic Codes 5258 and 5260 both rate based on limitation of motion and knee pain, as a cause of limitation of motion. In the case of Diagnostic Code 5258, limitation of motion is reflected by the symptoms or findings of pain, locking, and effusion into the joint. See also Firestein, Kelley’s Textbook of Rheumatology 571 (9th ed. 2012) (“locking” is the sudden loss of ability to extend the knee and is usually painful and may be associated with an audible noise, such as a click or pop). In the case of Diagnostic Code 5260, this limitation of motion is encompassed by the limitation of flexion, including limitation of motion due to pain. Both diagnostic codes overlap in “locking” as a form of limitation of motion that is usually accompanied by pain; therefore, the diagnostic codes both rate on knee pain and limitation of motion due to pain. See DeLuca; 38 C.F.R. §§ 4.40, 4.45, 4.59. Were the Board to grant separate ratings under both Diagnostic Code 5258 and 5260, the Veteran would receive compensation under two different codes for the same manifestations of pain and limitation of motion, which would constitute impermissible pyramiding. 38 C.F.R. § 4.14. For these reasons, the Veteran is not entitled to separate disability ratings under both Diagnostic Code 5258 and 5260 for the painful limitation of motion, here, flexion, associated with the knee disability. As such, the Board finds that a 20 percent rating under Diagnostic Code 5258 is warranted because use of Diagnostic Code 5258 is more potentially and actually favorable. As noted above, the Veteran is currently in receipt of a 10 percent rating under Diagnostic Code 5260 for pain; however, Diagnostic Code 5258 allows for a higher (the maximum and only available rating) 20 percent rating. The assignment of a particular diagnostic code is “completely dependent on the facts of a particular case” and the Board can choose the diagnostic code to apply so long as it is supported by reasons and bases as well as the evidence. Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual’s relevant medical history, diagnosis, and demonstrated symptoms. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). It is permissible to switch Diagnostic Codes to reflect more accurately a claimant’s current symptoms. See also Read v. Shinseki, 651 F. 3d 1296, 1302 (Fed. Cir. 2011) (holding that service connection for a disability is not severed when the Diagnostic Code associated with it is changed to determine more accurately the benefit to which a veteran may be entitled). Here, the Board finds that, for the entire rating period, the Veteran’s right knee medical meniscus tear has been manifested by a meniscus tear with joint locking, pain, and effusion, the criteria for a 20 percent rating under Diagnostic Code 5258. See March 2017 VA examination. Because the Board is granting a rating of 20 percent under Diagnostic Code 5258, the 10 percent rating under Diagnostic Code 5260 will be discontinued. Moreover, this change in Diagnostic Code does not amount to a reduction, as the rating of the Veteran’s knee disability increases from 10 percent to 20 percent as a result of this decision. The Board notes that the Veteran’s representative stated in the October 2018 Appellate Brief that the Veteran was seeking a 20 percent rating. Therefore, the Board considers this a full grant of the benefit sought on appeal. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. D’Allaird, Associate Counsel