Citation Nr: 18150625 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 12-30 321 DATE: November 15, 2018 ORDER Entitlement to an evaluation in excess of 40 percent for patellofemoral syndrome and osteoarthritis of the right knee on or after March 7, 2017, is denied. FINDING OF FACT Since March 7, 2017, the Veteran’s patellofemoral syndrome and osteoarthritis of the right knee has not been productive of actual or functional flexion limited to 45 degrees or extension to 45 degrees; recurrent subluxation or lateral instability; dislocated semilunar cartilage with episodes of locking, pain, and effusion into the joint; ankylosis; impairment of the tibia and fibula; or genu recurvatum. CONCLUSION OF LAW The criteria for a rating in excess of 40 percent for patellofemoral syndrome and osteoarthritis of the right knee have not been met on or after March 7, 2017. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.45, 4.71a, Diagnostic Codes 5003, 5257-5263. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 2000 to May 2004. This case is on appeal before the Board of Veterans’ Appeals (Board) from a February 2012 rating decision. In April 2013, the Veteran testified at a hearing before the undersigned Veterans Law Judge at the Agency of Original Jurisdiction (AOJ). A transcript of the hearing has been associated with the record. In March 2015, September 2016, November 2017, and May 2018, the Board remanded the case for further development. That development has been completed, and the case has since been returned to the Board for appellate review. Law and Analysis Neither the Veteran nor his representative has 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). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where a veteran appeals the denial of a claim for an increased disability rating for a disability for which service connection was in effect before he filed the claim for increase, the present level of the veteran’s disability is the primary concern, and past medical reports should not be given precedence over current medical findings. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). However, where the question for consideration is a higher initial rating since the grant of service connection, evaluation of the medical evidence since the grant of service connection to consider the appropriateness of “staged rating” (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. 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 it 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 seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45. VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as “seriously disabled” any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). 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); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Therefore, in rating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.14 do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. The guidance provided under DeLuca must be followed in adjudicating claims where a rating under the Diagnostic Code provisions governing limitation of motion should be considered. However, the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, should only be considered in conjunction with the Diagnostic Code provisions predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). The intent of the Rating Schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually 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. Diagnostic Code 5010 states that traumatic arthritis is to be rated as degenerative arthritis under Diagnostic Code 5003, which in turn, states that the severity of degenerative arthritis, established by X-ray findings, is to be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints affected. When there is arthritis with at least some limitation of motion, but to a degree which would be noncompensable under a limitation-of-motion code, a 10 percent rating will be assigned for each affected major joint or group of minor joints. 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, a 10 percent evaluation is warranted if there is X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups and a 20 percent evaluation is authorized if there is X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups and there are occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5003. VA Office of General Counsel has provided guidance concerning increased rating claims for knee disorders. Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not “duplicative of or overlapping with the symptomatology” of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). VA General Counsel has stated that compensating a claimant for separate functional impairment under Diagnostic Code 5257 and 5003 does not constitute pyramiding. See VAOPGCPREC 23-97 (July 1, 1997). VA General Counsel held in VAOPGCPREC 23-97 that a veteran who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257, provided that a separate rating must be based upon additional disability. When a knee disorder is already rated under Diagnostic Code 5257, the veteran must also have limitation of motion under Diagnostic Code 5260 or 5261 in order to obtain a separate rating for arthritis. If the veteran does not at least meet the criteria for a zero percent rating under either of those codes, there is no additional disability for which a rating may be assigned. In VAOPGCPREC 9-98, General Counsel also held that if a veteran has a disability rating under Diagnostic Code 5257 for instability of the knee, and there is also x-ray evidence of arthritis, a separate rating for arthritis could also be based on painful motion under 38 C.F.R. § 4.59. In addition, General Counsel considered a hypothetical situation in which a knee disability was evaluated under Diagnostic Code 5259 that was productive of pain, tenderness, friction, osteoarthritis established by x-rays, and a slight loss of motion. For the purposes of the hypothetical, it was assumed that Diagnostic Code 5259 did not involve limitation of motion. Given the findings of osteoarthritis, the General Counsel stated that the availability of a separate evaluation under Diagnostic Code 5003 in light of sections 4.40, 4.45, 4.59 must be considered. See Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). Absent x-ray findings of arthritis, limitation of motion should be considered under Diagnostic Codes 5260 and 5261. The claimant’s painful motion may add to the actual limitation of motion so as to warrant a rating under Diagnostic Codes 5260 or 5261. The General Counsel further noted in VAOPGCPREC 9-98 that the removal of the semilunar cartilage may involve restriction of movement caused by tears and displacements of the menisci, but that the procedure may result in complications such as reflex sympathetic dystrophy, which can produce loss of motion. Therefore, limitation of motion is a relevant consideration under Diagnostic Code 5259, and the provisions of 4.40, 4.45, and 4.59 must be considered. In addition, the VA General Counsel has held that separate ratings may be assigned under Diagnostic Code 5260 and Diagnostic Code 5261 for disability of the same joint. VAOPGCPREC 9-2004 (September 17, 2004). In this case, the Veteran’s service-connected right knee disability is currently assigned a 40 percent evaluation, effective March 7, 2017, pursuant to 38 C.F.R. § 4.71a, Diagnostic Codes 5003-5261. Under Diagnostic Code 5260, a noncompensable evaluation is contemplated for flexion limited to 60 degrees. A 10 percent disability evaluation is assigned when flexion is limited to 45 degrees, and a 20 percent disability evaluation is warranted when flexion is limited to 30 degrees. A 30 percent disability evaluation is assigned when flexion is limited to 15 degrees, which is the maximum evaluation available under Diagnostic Code 5260. Under Diagnostic Code 5261, a noncompensable evaluation is assigned for extension limited to 5 degrees, and a 10 percent disability evaluation is contemplated for extension limited to 10 degrees. When there is limitation of extension to 15 degrees, a 20 percent disability evaluation is warranted. A 30 percent rating will be assigned for extension limited to 20 degrees, and a 40 percent rating is contemplated for limitation of extension to 30 degrees. A 50 percent disability evaluation is warranted for extension limited to 45 degrees. The regulations provide that the normal range of motion of the knee is zero degrees on extension to 140 degrees on flexion. 38 C.F.R. § 4.71, Plate II. Under Diagnostic Code 5258, dislocated semilunar cartilage, with frequent episodes of locking, pain, and effusion into the joint, warrants a 20 percent disability rating. 38 C.F.R. § 4.71a, Diagnostic Code 5258. Semilunar cartilage is the meniscus lateralis articulationis genus (lateral meniscus) and the meniscus medialis articulationis genus (medial meniscus). See DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 273, 1013 (28th ed. 1994). A 20 percent rating is the maximum schedular evaluation available under Diagnostic Code 5258. Under Diagnostic Code 5257, a 10 percent disability rating is assigned for slight recurrent subluxation or lateral instability. A 20 percent disability rating is warranted when there is moderate recurrent subluxation or lateral instability, and a 30 percent disability rating requires severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The words “slight,” “mild,” “moderate,” and “severe” as used in the various diagnostic codes are not defined in the VA Rating Schedule. 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. Under Diagnostic Code 5259, a 10 percent disability evaluation is assigned for the symptomatic removal of semilunar cartilage. Under Diagnostic Code 5262, pertaining to impairment of the tibia and fibula, a 10 percent disability rating is assigned for malunion with slight knee or ankle disability, and a 20 percent disability rating is warranted for malunion with moderate knee or ankle disability. A 40 percent disability rating is appropriate where there is nonunion of the tibia and fibula with loose motion requiring a brace. 38 C.F.R. § 4.71a, Diagnostic Code 5262. Under Diagnostic Code 5263, a 10 percent disability rating is assigned for acquired, traumatic genu recurvatum with weakness and insecurity in weight-bearing objectively demonstrated. 38 C.F.R. § 4.71a, Diagnostic Code 5263. The Board has reviewed the evidence of record, including the VA examination reports, VA treatment records, and the Veteran’s lay statements. Initially, the Board finds that the Veteran is not entitled to a higher evaluation under Diagnostic Code 5261 for limitation of extension for the right knee on or after March 7, 2017. Specifically, on or after March 7, 2017, the record does not show that extension was limited to 45 degrees or more to warrant a higher evaluation at any point. In fact, during the March 2017 VA examination, the Veteran had right knee extension from 90 degrees to 40 degrees. During the August 2018 VA examination, the Veteran had right knee extension 90 to 0 degrees. As such, an increased evaluation under Diagnostic Code 5261 is not warranted for the right knee disability for the period on or after March 7, 2017. The Board also finds that the Veteran is not entitled to a higher or separate rating under Diagnostic Code 5260 for limitation of flexion. Since March 7, 2017, the record does not show that flexion was limited to 45 degrees to warrant a separate compensable rating for the right knee. In fact, during the March 2017 and August 2018 VA examinations, the Veteran demonstrated right knee flexion to 90 degrees. As such, an increased or separate evaluation under Diagnostic Code 5260 is not warranted for the right knee disability for the period on or after March 7, 2017. In an effort to afford the Veteran the highest possible rating, the Board has also considered whether any other rating criteria are applicable. The assignment of a particular diagnostic code is “completely dependent on the facts of a particular case.” 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, the current diagnosis, and demonstrated symptomatology. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Thus, the Board has considered the propriety of assigning a higher, or separate, rating under another diagnostic code. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). Nevertheless, the Board finds that the Veteran is not entitled to a separate evaluation for lateral instability or recurrent subluxation under Diagnostic Code 5257 for the right knee. In this regard, the March 2017 VA examiner noted that the Veteran had a history of slight recurrent subluxation and moderate lateral instability in his right knee, but noted that the laxicity instability had been repaired with surgery. She did not perform joint stability testing in the right knee at that time. During the subsequent VA examination in August 2018, the examiner reported that there was no evidence or history of recurrent patellar subluxation, lateral instability, recurrent effusion, or recurrent patellar dislocation in the right knee. The August 2018 VA examiner also reported that joint stability testing in the right knee for anterior instability, posterior instability, medial instability, and lateral instability was normal. Notably, the August 2018 VA examiner considered the Veteran’s reported history and subjective complaints, including the sensation of instability, but she concluded that he did not have lateral instability based on objective testing. Therefore, the Board finds that the findings of the August 2018 VA examiner are highly probative, as she considered both the subjective and objective findings. Thus, higher or separate evaluations are not warranted under Diagnostic Code 5257. Pertaining to Diagnostic Codes 5258 and 5259, semilunar cartilage is the meniscus lateralis articulationis genus (lateral meniscus) and the meniscus medialis articulationis genus (medial meniscus). See DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 273, 1013 (28th ed. 1994). The Board notes that the Veteran is already service-connected for symptomatic removal of semilunar cartilage under Diagnostic Code 5259; a separate 10 percent evaluation was granted by the Board in a May 2018 decision, which is the maximum schedular evaluation available under Diagnostic Code 5259. Moreover, the Veteran is not entitled to a separate 20 percent evaluation under Diagnostic Code 5258 because the semilunar cartilage was removed and the resulting symptomatology is contemplated in the 10 percent evaluation contemplated under Diagnostic Code 5259. The Board has also considered whether a higher or separate evaluation is warranted under any other diagnostic code. However, as the evidence of record does not demonstrate that the Veteran has ankylosis, impairment of the tibia and fibula, or genu recurvatum, he is not entitled to higher evaluations under Diagnostic Codes 5256 (ankylosis), 5262 (impairment of the tibia and fibula), and 5263 (genu recurvatum). There is simply no evidence of such manifestations. Indeed, based on the aforementioned range of motion findings, the record shows that the Veteran’s right knee is not fixated or immobile. Ankylosis is defined as “immobility and consolidation of a joint due to disease, injury, surgical procedure.” Lewis v. Derwinski, 3 Vet. App. 259 (1992) (internal medical dictionary citation omitted). Moreover, the March 2017 and August 2018 VA examiners specifically reported that the Veteran had no ankylosis of the right knee. Therefore, separate or higher ratings are not warranted under Diagnostic Codes 5256, 5262, and 5263. In addition, the Board notes that the Veteran is currently assigned a 40 percent rating, effective March 7, 2017, for the right knee under Diagnostic Code 5261, which contemplates painful motion. There is no x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. Thus, an increased evaluation is not warranted under Diagnostic Code 5010. The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca. However, an increased evaluation for the Veteran’s right knee disability is not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran’s symptoms are supported by pathology consistent with the assigned evaluations, and no higher. In this regard, the Board observes that the Veteran complained of pain throughout the appeal period. However, the effect of the pain in the Veteran’s right knee is already contemplated in the assigned evaluations. The Veteran’s complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation beyond those already assigned. Indeed, the March 2017 and August 2018 VA examiners indicated that the Veteran’s right knee did not have any diminution with repetitive testing. The August 2018 VA examiner also noted normal muscle strength and reported that there was no weakened movement, excess fatigability, incoordination, swelling, deformity, or atrophy of disuse. Accordingly, the Board concludes that an increased or separate evaluation is not warranted for the Veteran’s service-connected right knee disability under DeLuca. Accordingly, the Board concludes that increased or separate evaluations are not warranted for the Veteran’s service-connected right knee disability for the period on or after March 7, 2017. J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Osegueda, Counsel