Citation Nr: 18152667 Decision Date: 11/23/18 Archive Date: 11/23/18 DOCKET NO. 17-16 521 DATE: November 23, 2018 ORDER Service connection for left hip condition is granted. Service connection for right knee condition is granted. A rating of 30 percent, but no higher, for limited extension of the left knee prior to May 7, 2014 is granted. A rating of 50 percent, but no higher, for limited extension of the left knee from May 7, 2014 and thereafter is granted. A rating in excess of 10 percent for left knee status post medial meniscectomy with residual traumatic arthritis and limited flexion is denied. FINDINGS OF FACT 1. The evidence is in equipoise as to whether the Veteran’s left hip condition is proximately due to his service-connected left knee condition. 2. The evidence is in equipoise as to whether the Veteran’s right knee condition is proximately due to his service-connected left knee condition. 3. The preponderance of the evidence supports the Veteran’s left knee produced extension limited to 20 degrees prior to May 7, 2014 and produced extension limited to 45 degrees or greater from May 7, 2014 and thereafter. 4. The Veteran’s left knee status post medial meniscectomy with residual traumatic arthritis produced pain, swelling, stiffness, popping, giving way, and flexion to greater than 45 degrees. CONCLUSIONS OF LAW 1. The criteria for secondary service connection for left hip condition are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.310(a). 2. The criteria for secondary service connection for right knee condition are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.310(a). 3. The criteria for a rating of 30 percent, but no higher, for limited extension of the left knee prior to May 7, 2014 have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.40, 4.45, 4.49, 4.71a, Diagnostic Code (DC) 5261. 4. The criteria for a rating of 50 percent, but no higher, for limited extension of the left knee from May 7, 2014 and thereafter have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.40, 4.45, 4.49, 4.71a, DC 5261. 5. The criteria for a rating in excess of 10 percent for left knee status post medial meniscectomy with residual traumatic arthritis and limited flexion have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.40, 4.45, 4.49, 4.71a, DC 5256-5263. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Navy from September 1972 to January 1975. Service Connection Service connection may be granted for a disability or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In order to establish service connection for a present disability the claimant must show: (1) the existence of a present disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a causal relationship or “nexus” between the present disability and the in-service injury or disease. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). 1. Service connection for left hip condition 2. Service connection for right knee condition The Veteran contends his left hip condition and right knee condition are caused by his service-connected left knee condition. The Board recognizes that the Veteran has current left hip and right knee disabilities during the appeal period. The Veteran has been diagnosed with left hip degenerative joint disease (DJD) and right knee DJD. See June 2012 VA examination, June 2012 x-rays, and September 2016 x- rays. The Veteran is service-connected for left knee status post medial meniscectomy with residual traumatic arthritis. See February 2013 rating decision. Therefore, the issue before the Board is whether the Veteran’s left hip DJD and/or right knee DJD are caused by or aggravated by his service-connected left knee condition. The Board finds the evidence is in equipoise as to whether the Veteran’s left hip DJD and right knee DJD are caused by his service-connected left knee condition. A June 2012 VA examiner opined the Veteran’s right knee DJD and left hip DJD were less likely than not caused by, related to, or aggravated by his left knee condition. As rationale, the examiner stated that medical literature indicates that during the stance phase of walking, an individual places no more weight on a knee regardless of whether the opposite knee is normal or painful, instead the stance phase is shortened in the painful knee and prolonged in the painless knee, which does not create injury to the painless knee. In addition, the examiner stated this mild alternation in gait is not sufficient to cause degenerative changes in the hip. A September 2016 private treatment opinion found that secondary physical involvement of the Veteran’s left hip and right knee are directly related and caused by his left knee injury. As rationale, he stated that this occurred because of the prolonged length of time involved in the disability of his left knee. He stated that studies have indicated that limping can cause increased stress to other joints if there is a major displacement of the center of gravity, a significant leg length discrepancy, or the alteration of the gait patterning occurring over a prolonged period of time. The Board finds both the June 2012 VA examination opinion and September 2016 private treatment opinion probative. The September 2016 private treatment examiner had a treatment relationship with the Veteran and is an orthopedist. The examiner used physical examination findings and medical research in his rationale. The findings are consistent with observed altered gait and use a cane throughout the appeal period. The June 2012 VA examiner performed an in-person examination of the Veteran. The examiner cited to medical research in her opinion. As the evidence is in equipoise, the benefit of the doubt must go to the Veteran. Therefore, service connection for left hip condition and service connection for right knee condition are warranted. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. 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). 3. Entitlement to an increased rating for left knee status post medial meniscectomy with residual traumatic arthritis and limited extension 4. Entitlement to an increased rating for left knee status post medial meniscectomy with residual traumatic arthritis and limited flexion The Veteran contends the current ratings assigned do not accurately reflect the true nature and severity of his left knee condition. Specifically, the Veteran contends the evidence supports a 30 percent rating for limitation of extension prior to May 7, 2014, and a 50 percent rating thereafter. See October 2016 Addendum to the VA Form 9. The Board agrees with the Veteran’s contention. The Veteran is currently assigned a 10 percent rating for left knee status post medial meniscectomy with residual traumatic arthritis and limited flexion under DC 5259-5260, and a noncompensable rating for left knee status post medial meniscectomy with residual traumatic arthritis and limited extension under DC 5259-5261. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the rating assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Under DC 5259, a 10 percent evaluation is assigned for the symptomatic removal of semilunar cartilage. Under DC 5260, a 10 percent evaluation is assigned for flexion limited to 45 degrees, a 20 percent evaluation is assigned for flexion limited to 30 degrees, and a 30 percent evaluation is assigned for flexion limited to 15 degrees. Under DC 5261, a 10 percent evaluation is assigned for extension limited to 10 degrees, a 20 percent evaluation is assigned for extension limited to 15 degrees, a 30 percent evaluation is assigned for extension limited to 20 degrees, and a 40 percent evaluation is assigned for extension limited to 30 degrees. A 50 percent evaluation, the maximum available under this diagnostic code, is warranted for extension limited to 45 degrees. Under DC 5010, traumatic arthritis is rated as degenerative arthritis. Degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint involved. 38 C.F.R. § 4.71a, DC 5003. 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. Turning to the evidence of record, a June 2012 VA examination diagnosed left knee status post medial meniscectomy with residual traumatic arthritis. The Veteran reported his left knee symptoms were swelling with overexertion and pain. He reported his left knee would buckle periodically. He reported aggravating factors were prolonged kneeling, standing, or walking. He reported during a flare-up he would rest and apply ice to help the swelling. Physical examination showed flexion to 110 degrees, with painful motion at 110 degrees, extension to 5 degrees, with no evidence of painful motion. Repetitive use testing showed flexion to 100 degrees and extension to 5 degrees. The examiner stated the contributing factors to functional loss were less movement than normal, excess fatiguability, and pain on movement. Muscle strength testing and joint stability testing was normal. There was no evidence of recurrent patellar subluxation or dislocation. The examiner noted the Veteran’s history of meniscectomy, but stated there were no residual signs and/or symptoms. The examiner noted the Veteran used a single crutch on an occasional basis and a knee brace on a regular basis. An August 2012 VA orthopedic visit observed active motion of the left knee from 20 to 100 degrees and passive motion of the left knee from 20 to 120 degrees. The examiner noted the knee was stable on anterior and posterior drawer testing. The Veteran reported stiffness and pain of the left knee. An impression was given of chronic left knee pain with posttraumatic arthropathy/DJD/osteoarthritis. The examiner stated the Veteran’s use of a crutch and brace was advised. At an October 2013 private orthopedic visit, the Veteran reported knee pain and swelling that requires he sit down after 3 to 4 hours of standing. He reported his knee tightens up and swells with use. He reported popping, but not locking. He reported sometimes his left knee gives out. He reported difficulty getting in and out of a car because of left knee swelling. The Veteran used a crutch for support and a brace for stability. Dr. M.R. observed the left knee to be 3 centimeters (cm) larger than the right knee, with obvious swelling, medial joint tenderness, and without instability. Range of motion was 20 degrees extension and 65 degrees flexion. The impression was status post multiple surgical procedures with left knee osteoarthritis. At a May 2014 private orthopedic visit, Dr. M.R. observed left knee swelling, with the left knee being 4cm larger than the right knee. Active range of motion testing showed left knee flexion to 90 degrees and extension to 50 degrees. The examiner noted significant impairment because of limitation of motion. The examiner gave an impression of left knee ankylosis secondary to arthritis. In July 2014, Dr. M.R. submitted a letter stating he reviewed the Veteran’s VA records. The examiner stated VA’s measurements were substantially different from his findings. The examiner stated when he performed many repetitions in the office, the Veteran only had flexion to 90 degrees and extension to 50 degrees. He stated that most guides would find flexion to 90 degrees produces little impairment, but the problem is the significant lack of extension, thus producing significant impairment. In a September 2014 letter, Dr. M.R. stated his July 2014 range of motion findings were at least as restrictive as the Veteran’s range of motion on his first visit in October 2013. In a September 2016 letter from Dr. M.R., he stated the Veteran’s current left knee complaints were pain, stiffness, giving out, and popping. He reported aggravation from steps, ramps, uneven ground, and weather changes. He gave an impression of left knee status post multiple procedures with osteoarthritis. The examiner stated the Veteran is required to keep a crutch in case weakness causes his knee to give out. A September 2016 physical therapy visit performed repetitive use testing of the left knee. The results reported were active range of motion flexion of 90, 94, and 90 degrees, passive range of motion flexion of 100, 100, and 94 degrees, active range of motion extension of 55, 57, and 55 degrees, and passive range of motion extension of 50, 52, and 52 degrees. All range of motion testing was noted to be painful. A September 2016 disability benefits questionnaire (DBQ), submitted by the Veteran’s private orthopedist, diagnosed a history of left knee meniscal tear, left knee osteoarthritis, and left knee joint ankylosis. He noted flexion to 90 degrees and extension to 45 degrees. The examiner opined that range of motion during a flare-up or repeated use over time would be more limited. The examiner was unable to perform repetitive use testing. The examiner stated the Veteran had a left meniscectomy in 1973 with the residual symptoms of pain, limitation of motion, and swelling. The examiner opined there was left knee ankylosis between 45 degrees and 90 degrees. Left knee joint stability testing showed no joint instability. The examiner opined there was no history of recurrent subluxation or lateral instability. The examiner opined the Veteran was limited in standing, walking, and keeping his leg in same position for over 2 hours. The examiner noted the Veteran’s regular use of a cane. Reviewing the Veteran’s left knee extension during the appeal period, the Board finds the Veteran is entitled to a compensable rating for reduced extension. The Veteran’s left knee produced extension limited to 20 degrees prior to May 7, 2014 and produced extension limited to 45 or greater from May 7, 2014 and thereafter. The Board considered that the July 2012 VA examination noted extension to 5 degrees (consistent with a noncompensable rating), but finds that because extension to 20 degrees (consistent with a 30 percent rating) was found on examination the next month and taking into consideration additional functional loss due to pain and weakness, the Board finds assigning a 30 percent rating for the entire period prior to May 7, 2014 is warranted. The Board also considered the September 2014 letter from Dr. M.R. stating the July 2014 examination range of motion findings were at least as restrictive as the October 2013 examination range of motion findings. The Board finds the October 15, 2013 treatment notes more probative because the treatment notes were contemporaneously reported after an examination and reported range of motion measurements in degrees. Reviewing the Veteran’s left knee flexion during the appeal period, the Board finds a separate compensable rating for reduced flexion is not warranted. During the appeal period, the Veteran’s left knee never produced flexion at or near 45 degrees. The Veteran’s left knee consistently produced flexion to 90 or 100 degrees. The Board considered additional functional loss due to pain, weakness, weakened movement, excess fatigability, or incoordination, but still found the Veteran’s left knee flexion more nearly approximates the noncompensable rating criteria. The Veteran’s reduced flexion with painful motion is contemplated by the 10 percent rating under DC 5259 for symptomatic semilunar cartilage removal. The Board considered whether the Veteran is entitled to a more favorable rating under DC 5256 for left knee ankylosis, but found Dr. M.R.’s September 2016 finding of left knee ankylosis between 45 and 90 degrees does not meet any of the rating criteria for ankylosis under DC 5256 and therefore would not warrant a higher rating. Reviewing symptoms reported by the Veteran other than reduced range of motion, the Board finds the Veteran’s reported left knee symptoms of pain, swelling, stiffness, and popping are contemplated by the 10 percent rating under DC 5259 for symptomatic semilunar cartilage removal. The Board finds the assignment of a separate rating under DC 5257 for recurrent subluxation or lateral instability is not warranted. While the Board finds the lay statements of the Veteran regarding his left knee giving out are credible, the Board gives greater probative weight to the medical opinions, to include his treating orthopedist, finding no lateral instability. See June 2012 VA examination, October 2013 private treatment visit, and September 2016 DBQ. These opinions were made after physical examination and instability testing. These examiners noted the Veteran’s reported knee giving way, crutch use, and brace use in examination notes, but still determined lateral instability was not present. Furthermore, the symptom of his knee giving way is contemplated by the 10 percent rating under DC 5259 for symptomatic semilunar cartilage removal. The Board finds the Veteran’s statements about difficulty performing certain tasks, such as steps, ramps, uneven ground, kneeling, or inability for stand or walk for long periods, are not a “symptom” set forth in any portion of the Rating Schedule, yet a result from the symptoms of pain, painful motion, and limitation of motion. Thus, it is a result contemplated by the rating criteria as it is based on the same symptomatology. The Veteran did not contend, nor is there evidence to support, semilunar cartilage dislocation, impairment of tibia or fibula, or genu recurvatum to warrant consideration under another diagnostic code of the knee. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (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). (Continued on the next page)   Accordingly, a 30 percent rating is warranted for reduced extension of the Veteran’s left knee prior to May 7, 2014 and a 50 percent rating is warranted from May 7, 2014 and thereafter. A rating in excess of 10 percent for left knee status post medial meniscectomy with residual traumatic arthritis and limited flexion is not warranted. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Winkler, Associate Counsel