Citation Nr: 18150742 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 16-44 442 DATE: November 15, 2018 ORDER Entitlement to an increased rating of 20 percent, but no higher, under Diagnostic Code (Code) 5258 for service connected right knee disability is granted. Entitlement to a separate 10 percent rating, but no higher, under Code 5257 for service connected right knee is granted. For the rating period since February 12, 2016, but no earlier, entitlement to a separate 10 percent evaluation, but no higher, under Code 5003 for service connected right knee is granted. FINDINGS OF FACT 1. As of the application date and throughout the duration of the appeal, the Veteran’s right knee disability was manifested by degenerative arthritis, slight, but not greater, instability, and frequent episodes of locking, pain, and effusion with clinical evidence of a meniscus tear. 2. Prior to February 12, 2016, clinical evidence does not demonstrate a limitation of movement in the right knee. 3. Beginning February 12, 2016, the Veteran’s flexion of the right knee was limited to no worse than 95 degrees, with pain and with full extension. CONCLUSIONS OF LAW 1. The criteria for an increased rating of 20 percent throughout the appeal period for the Veteran’s meniscus tear have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Code 5258. 2. The criteria for entitlement to a separate 10 percent rating for recurrent subluxation or lateral instability of the right knee have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Code 5257. 3. For the rating period prior to February 12, 2016, the criteria for entitlement to a separate disability rating under Code 5003 have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Codes 5003, 5260, 5261. 4. For the rating period beginning February 12, 2016, the criteria for entitlement to a separate 10 percent rating under Code 5003 have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Codes 5003, 5260, 5261. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from February 2001 to April 2007. This matter is before the Board of Veterans’ Appeals (Board) on appeal of an August 2012 Department of Veteran Affairs (VA) rating decision from a VA Regional Office (RO). Increased Rating The Veteran contends that a higher rating is warranted for his right knee disability. Disability ratings are determined by the application of a ratings schedule, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where the entitlement to compensation has already been established and an increase in the disability is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). If the factual findings show distinct time periods where the service connected disability exhibits symptoms that would warrant different ratings, then separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as “staged” ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability for the time period beginning one year before filing the claim until the VA makes a final decision on the claim. Id. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt material to the determination is resolved in the Veteran’s favor. 38 C.F.R. § 4.3. If the evidence for and against a claim is in equipoise, then the claim will be granted. A claim will only be denied if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Knee disabilities are evaluated under 38 C.F.R. § 4.71a, Codes 5256 through 5263. As an initial matter, the Board notes that there is nothing in the evidence suggesting the right knee disability has related ankylosis, tibia or fibula impairment, or genu recurvatum, so as to warrant ratings under Codes 5256, 5262, or 5263. See 38 C.F.R. § 4.71a. Accordingly, those Codes will not be addressed further. The Veteran is service connected for right knee disability with Anterior Cruciate Ligament (ACL) disruption, status post ACL reconstruction; residual ACL insufficiency, medial and lateral meniscus tears, and degenerative changes of posterior cruciate ligament under Codes 5259-5257, with a 10 percent disability rating effective April 4, 2007. There, the hyphenated diagnostic codes indicated that the Veteran’s right knee disability is rated, by analogy, under the criteria for symptoms from removal of semilunar cartilage (Code 5259) and slight instability (Code 5257). The Board notes the Statement of the Case (SOC) continued the 10 percent rating based on painful motion of the knee and X-ray evidence of traumatic arthritis with limited motion. The RO continued to rate the Veteran under Code 5259-5257 and continued to recognize an evaluation of ACL disruption, status post ACL reconstruction; residual ACL insufficiency, medial and lateral meniscus tears, and degenerative changes of the posterior cruciate ligament. As the Veteran has been awarded the maximum rating available for symptomatic residuals of semilunar cartilage removal under Code 5259, the analysis turns to whether the Veteran warrants a 20 percent rating under Code 5258, a separate compensable rating under 5257, separate compensable ratings under Codes 5260/5261, and/or a separate compensable rating under Code 5003. Under governing case law and GC opinion, separate ratings may be assigned for arthritis with compensable limitations of flexion and extension, subluxation or instability, and dislocated or symptomatic postoperative semilunar cartilage. See Lyles v. Shulkin, 29 Vet. App. 107 (2017); VAOPGCPREC 23-97; VAOPGCPREC 9-98; VAOPGCPREC 9-04. While evaluations of the same disability under various diagnostic codes is to be avoided, the assignment of separate evaluations for separate and distinct symptomology is permitted where none of the symptomology that justifies an evaluation under one diagnostic code is duplicative of, or overlapping with, the symptomology that justifies an evaluation under another, separate diagnostic code. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994); Lyles, 29 Vet App. 107. VA cannot simply conclude that rating the Veteran under Codes 5257 and 5260 and 5261 precludes a rating under Code 5258 or 5259 on the basis of pyramiding. The evidence of record indicates that multiple diagnostic codes representing separate compensable ratings are applicable based on the Veteran’s symptoms. 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 symptomology. It is permissible to switch Codes to more accurately reflect a claimant’s current symptoms as long as the change does not result in a de facto reduction of disability rating. See Read v. Shinseki, 651 F.3d 1296, 1302 (Fed. Cir. 2011); Murray v. Shinseki, 24 Vet. App. 420 (2011). 1. Entitlement to a compensable rating for limitation of motion under Codes 5260 and 5261 is denied. Codes 5260 and 5261 contemplate rating limitation of motion of the knees. Under Code 5260, knee flexion limited to 60 degrees warrants a noncompensable rating and a limitation to 45 degrees warrants a 10 percent rating. Higher ratings require a greater limitation of flexion (limited to 30 degrees for 20 percent rating and to 15 degrees for a 30 percent rating). Under Code 5261, knee extension limited to 5 degrees warrants a noncompensable rating and to 10 degrees warrants a 10 percent rating. Higher ratings require a greater limitation of extension (limited to 15 degrees for a 20 percent rating and to 20 degrees for a 30 percent rating). The Board finds a compensable rating is not warranted for limitation of motion of the right knee, as the evidence of record does not reflect symptoms that more closely approximate a compensable rating. The Veteran’s flexion and extension range of motion was tested at VA authorized examinations in February 2013 and February 2016. The examiner at the February 2013 VA examination indicated that the Veteran had a full range of motion for flexion and extension with no objective evidence of pain noted on either motion. There was no additional loss of motion after repeated testing. The Veteran reported flare-ups with sedentary activities, like sleeping, that caused stiffness. The examiner noted the Veteran has functional loss in his right knee after repeated use in the form of incoordination, an impaired ability to execute skilled movements smoothly, and difficulty bending. At the February 2016 VA examination, the examiner measured the Veteran’s initial range of flexion to 100 degrees, noting it as abnormal and flexion to 95 degrees with repeated use. The Veteran’s range of extension was 100 to 0 degrees on initial use and 95 to 0 degrees with repeated use, both of which are consistent with a noncompensable rating. Pain was noted on both flexion and extension. While the Veteran reported flare-ups with running and squatting, the examination was not conducted during a flare-up. The examiner was unable to say without mere speculation if pain, weakness, fatiguability, or incoordination limited functional ability with flare-ups due to a flare-up not occurring at the time. Accordingly, the Veteran did not exhibit a limitation of motion prior to February 12, 2016 and exhibited a noncompensable level of limitation of motion for only the flexion of his right knee from February 12, 2016. The Veteran’s extension was full at both examinations. While the Veteran’s range of flexion limitation of 95 degrees does meet the criteria for a noncompensable rating, it does not meet the criteria of a 10 percent rating. The preponderance of evidence is against a claim for a compensable rating under Codes 5260 and 5261. Therefore, an appeal for compensable ratings under Codes 5260 and 5261 must be denied. 38 U.S.C. § 5107; Gilbert, 1 Vet. App. at 56. 2. Entitlement to a separate 10 percent rating for right knee arthritis under Code 5003 is granted from February 12, 2016. If limitation of movement of the specific involved joint is noncompensable and there is degenerative arthritis (established by X-ray findings), a 10 percent rating is warranted, to be combined, not added. The limitation of movement must be objectively confirmed by findings such as evidence of painful motion. 38 C.F.R. § 4.71a, Code 5003. If there is no limitation of movement, a 10 percent rating may be warranted with degenerative arthritis (established by X-ray findings) involving two or more major joints or two or more minor joints. A July 2012 X-ray of his right knee indicated mild degenerative joint disease (DJD). As discussed above, the Veteran exhibited a noncompensable level of limitation of motion of flexion for his right knee beginning February 12, 2016. Prior to the February 2016 VA examination, there was no medical evidence within the appeal period that the Veteran exhibited any limitation of motion. The Veteran does have degenerative arthritis in his right knee (established by X-ray findings), and has painful motion associated with flexion of his right knee as of February 12, 2016. Therefore, he is entitled to a 10 percent rating in accordance with Code 5003, to be added, not combined. 38 C.F.R. § 4.71a; Hart, 21 Vet. App. 505. The Board has considered whether the Veteran warrants a 10 percent rating under Code 5003 prior to February 12, 2016. The Board finds that a 10 percent rating under Code 5003 is not warranted prior to February 12, 2016 as the evidence shows that the Veteran did not exhibit a limitation of motion evidenced by pain and only had degenerative arthritis one joint (his right knee). In order to receive 10 percent rating under Code 5003 with no limitation of motion, there must be degenerative arthritis (established by X-ray findings) in at least two major joints or two minor joints. Accordingly, the Veteran does not meet the criteria for a rating under Code 5003 prior to February 12, 2016. 3. Entitlement of 20 percent rating for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion under Code 5258 is granted throughout the duration of the appeal. Codes 5258 and 5259 provide for disability ratings when the semilunar cartilage is dislocated and/or removed and related symptoms are present. 38 C.F.R. § 4.71a. The Veteran is already in receipt of the highest rating available under Code 5259 for symptomatic residuals of semilunar cartilage removal. Under Code 5258, a 20 percent rating is warranted when there is dislocation of the semilunar cartilage frequent episodes of joint locking, pain, and effusion into the joint. The record reflects that the Veteran has a meniscus tear in his right knee. As reflected in the July 2012 Magnetic Resonance Imaging (MRI) of the right knee, the Veteran was found to have a tear involving the posterior horn and body of the medial meniscus. The MRI also showed a bursa between the semimembranosus and medial muscle, an intact ACL, and a Baker cyst. An August 2012 orthopedic surgery consultation note recommended a consultation for surgery but the Veteran declined arthroscopic surgery. The doctor recommended the Veteran use anti-inflammatory medicine, knee exercises, and a knee brace off and on. There is no evidence in the record the Veteran has undergone surgery to correct the meniscus (semilunar cartilage) tear. Private treatment records from June and July 2012 show complaints of pain in his right knee and how his knee “pops out of joint and locks” with certain movements. In a January 2013 statement in support of his claim, the Veteran explained how his knee aches all of the time and pops out of socket daily. He stated he uses his knee brace 50 percent of the time depending on the amount of pain in his knee and the amount of stress he puts on the knee. On February 2013 VA examination, Veteran complained of constant pain in his right knee, his knee giving away, and feeling as if it was out of place. He also reported taking anti-inflammatories for his knee. X-ray imaging conducted found suprapatellar joint effusion. The examiner noted under meniscal conditions that the Veteran has frequent episodes of joint locking, pain and effusion. On June 2015 VA examination for Post-Traumatic Stress Disorder, the Veteran again complained of his knee popping out of place. On February 2016 VA examination, the examiner noted frequent episodes of joint locking and pain. For these reasons, the Board finds the Veteran’s semilunar cartilage condition more appropriately rated under Code 5258 during this appeal period. See Read, 651 F.3d at 1302. A separate rating of 20 percent under Code 5258 is warranted as the evidence reflects the Veteran with a semilunar cartilage condition with frequent episodes of locking, pain, and effusion in the right knee. As both Codes 5258 and 5259 evaluate residuals affecting the semilunar cartilage, the Board finds that maintaining both disability ratings would violate the rule against pyramiding under 38 C.F.R. § 4.14. Consequently, the rating under Code 5259 is subsumed by the rating under Code 5258 effective the application date. 4. Entitlement to a separate 10 percent rating for lateral instability under Code 5257 is granted. Under Code 5257, a 10 percent rating is warranted for slight recurrent subluxation or lateral instability. Higher ratings require moderate recurrent subluxation or lateral instability (for 20 percent) and severe recurrent subluxation or lateral instability (for 30 percent). 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 for “equitable and just decisions.” 38 C.F.R. § 4.6. Throughout the period on appeal, the Veteran has generally claimed he has experienced instability. On February 2013 VA examination, the Veteran reported his knee giving away and needing to wear a knee brace for any activity involving lateral movement. Additionally, the examiner at the 2013 VA examination noted that the Veteran has functional loss in his right knee after repeated use in the form of incoordination, an impaired ability to execute skilled movements smoothly, and difficulty bending. While the examiner found no objective evidence of instability, the examiner noted the Veteran occasionally uses a knee brace with physical activities. In 2016 VA Form 9, the Veteran reported that he is unable to put any weight on his right leg when his knee is in a dislocated stated. Objective evidence overall shows no instability but the Board finds the Veteran’s lays statements are highly probative to find slight instability. See English v. Wilkie, 2018 U.S. App. Vet. LEXIS 1464 (Nov. 1, 2018). In resolving all reasonable doubt in favor of the Veteran, Board finds a separate 10 percent rating under Code 5257 for slight instability is warranted throughout the duration of the appeal. 38 C.F.R. §§ 4.3, 4.71a, Code 5257. Furthermore, while the Veteran has reported his knee giving away and unable to bear weight when dislocated, more than a slight instability has not been found on any clinical evaluation. The Board gave the benefit of the doubt in its consideration of subjective complaints of instability in granting a 10 percent rating, but objective findings do not show any instability, to commensurate with 20 percent. Accordingly, the Board finds a separate 20 percent rating under Code 5257 for moderate instability is not warranted. 38 C.F.R. § 4.71a, Code 5257 M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Naumovich, Law Clerk