Citation Nr: 18153414 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 13-30 431 DATE: November 27, 2018 ORDER Entitlement to an initial evaluation in excess of 10 percent for a left knee meniscal tear, status-post arthroscopy with residual scars is denied. Entitlement to an initial evaluation in excess of 10 percent for left knee instability is denied. FINDINGS OF FACT 1. The Veteran’s service-connected left knee disability has been shown to have painful limited flexion and slight lateral instability. 2. The Veteran’s left knee disability is not productive of actual or functional flexion limited to 30 degrees; actual or functional extension limited to 5 degrees; moderate recurrent subluxation or lateral instability; ankylosis; impairment of the tibia and fibula; or genu recurvatum. 3. The Veteran has not had the symptomatic removal of semilunar cartilage of the left knee. 5. The Veteran does not have dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation of 10 percent for painful limited flexion of the Veteran’s service-connected left knee disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.45, 4.71a, Diagnostic Codes 5003, 5010, 5256-5263. 2. The criteria for an initial evaluation of 10 percent for instability of the Veteran’s service-connected left knee disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.45, 4.71a, Diagnostic Codes 5003, 5010, 5256-5263. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1967 to May 1969. He had additional service in the Illinois Army National Guard. This matter initially came before the Board of Veterans’ Appeals (Board) on appeal from a June 2013 rating decision. In that decision, the Agency of Original Jurisdiction (AOJ) granted service connection for the Veteran’s left knee meniscal tear, status-post arthroscopy with residual scars and assigned a noncompensable evaluation, effective from October 27, 2010. During the pendency of the appeal, in an August 2013 rating decision, the AOJ increased the rating for the left knee disability to 10 percent, effective from October 27, 2010. In a May 2016 rating decision, the AOJ granted service connection for instability of the left knee and assigned a separate 10 percent evaluation, effective from April 22, 2016. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In January 2015, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. In May 2015 and September 2017, the Board remanded this matter to the AOJ for further development. That development was completed, and the case has since been returned 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, as here, 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). The Court has clarified that, 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). Instead, in Mitchell, the Court explained that, 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 (38 C.F.R. §§ 4.40), as well as 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 (38 C.F.R. § 4.45). 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 (avoidance of pyramiding) 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. 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 left knee meniscal tear is currently assigned a 10 percent rating, pursuant to 38 C.F.R. § 4.71a, Diagnostic Codes 7805-5260, for limitation of flexion, and a 10 percent rating, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5257, for recurrent subluxation or lateral instability. 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 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. Other diagnostic codes are potentially for application. 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. 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. In addition, Diagnostic Code 5003 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, which in this case, would be Diagnostic Codes 5260 (limitation of flexion of the leg) and 5261 (limitation of extension of the leg). 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 two or more major joints or two or more minor joint groups and a 20 percent evaluation is authorized if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and there are occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5003. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to increased ratings for his service-connected left knee disability. The Board finds that the Veteran is not entitled to a higher rating under Diagnostic Code 5257 for recurrent subluxation or lateral instability. The record does not show moderate recurrent subluxation or lateral instability. In fact, an April 2016 VA examiner noted that the Veteran had no history of recurrent subluxation and only slight lateral instability. The April 2016 VA examiner specifically indicated that anterior and posterior instability tests were normal and that medial and lateral instability tests showed 1+ (0 to 5 millimeters) of instability. Moreover, the July 2018 VA examiner reported that the Veteran had slight recurrent subluxation and slight lateral instability in his left knee. He also indicated that joint stability testing showed no joint instability in the left knee. He specifically reported that anterior, posterior, medial, and lateral instability tests were normal. The VA examiner further noted that a 2010 MRI showed intact anterior and posterior cruciate ligaments and intact medial and lateral ligaments. He indicated that stress testing of the left knee revealed no evidence of lateral or medial ligamentous instability or cruciate instability. He noted that the Veteran had a feeling of giving way of the left knee which was a pain reflex that was quite common for patients with patellofemoral degenerative changes. In addition, the July 2018 VA examiner noted that the Veteran had reported that he was unaware that his left knee did not sublux or dislocate. Thus, a higher evaluation is not warranted under this diagnostic code. The Board also finds that the Veteran is not entitled to a higher rating under Diagnostic Code 5260 for limitation of flexion. The record does not show that flexion was limited to 30 degrees to warrant a 20 percent evaluation at any point during the appeal period. In fact, during the April 2016 VA examination, the Veteran demonstrated left knee flexion to 100 degrees. In addition, during the July 2018 VA examination, the Veteran had left knee flexion to 65 degrees with objective evidence of painful motion. Thus, the Veteran does not meet the criteria for a higher or separate evaluation under Diagnostic Code 5260. Nevertheless, the Board has considered whether a higher or separate evaluation is warranted under other relevant Diagnostic Codes. 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 rating under another Diagnostic Code. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). The Board finds that the Veteran is not entitled to an increased evaluation under Diagnostic Code 5261 for limitation of extension. The record does not show that extension was limited to 10 degrees to warrant a compensable rating under these criteria. Specifically, during the April 2016 and July 2018 VA examinations, the Veteran demonstrated left knee extension to 0 degrees. As such, a compensable evaluation is not warranted under Diagnostic Code 5261. The April 2016 and July 2018 VA examiners did indicate that x-rays of the left knee showed traumatic arthritis. However, there is no evidence of involvement of two or more joints. Therefore, the Veteran is not entitled to a higher or separate evaluation for arthritis under Diagnostic Codes 5003 and 5010. In addition, the Board finds that a separate 10 percent evaluation is not warranted for the left knee under Diagnostic Code 5259 for the symptomatic removal of semilunar cartilage. Semilunar cartilage is one of the menisci of the knee joint. Stedman’s Medical Dictionary 296 (27th ed., 2000). Although the Veteran is service-connected for a left knee meniscal tear, there is no indication that his semilunar cartilage has been removed. Instead, the April 2016 and July 2018 VA examiners noted that the Veteran had residual arthralgia due to a 2001 left knee arthroscopy. The Board further finds that the Veteran is not entitled to a higher or separate evaluation under Diagnostic Code 5258. Under Diagnostic Code 5258, a 20 percent evaluation is warranted for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. The Board again notes that the Veteran is service-connected for a left knee meniscal tear, and he has complained of pain. However, the most probative evidence indicates that he does not have the other requisite symptomatology under Diagnostic Code 5258. During the April 2016 VA examination, the Veteran reported frequent episodes of joint locking, joint pain, and joint effusion in his left knee, yet the examiner only indicated that he had arthralgia upon evaluation. Thus, an objective examination did not reveal locking or effusion. Moreover, the July 2018 VA examiner noted that the Veteran only complained of frequent episodes of joint pain and a meniscal tear. He did report experiencing stiffness, but there was no report of locking. There is also no documentation of effusion or locking in the treatment records. Rather, a September 2011 private treatment record noted that there was no effusion in the left knee. Thus, the preponderance of the most probative evidence does not show that the Veteran has frequent episodes of locking and effusion. 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 of the left knee, 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. 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). Indeed, the April 2016 and July 2018 VA examiners reported that there was no left knee ankylosis. Further, based on the aforementioned range of motion findings, the record shows that the Veteran’s left knee is not fixated or immobile even when painful motion is considered. Therefore, separate or higher ratings are not warranted under Diagnostic Codes 5256, 5262, and 5263. 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 left 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 has complained of pain throughout the appeal period. However, the effect of the pain in the Veteran’s left 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 July 2018 VA examiner indicated that the Veteran’s left knee did not have any diminution with repetitive testing. The April 2016 and July 2018 VA examiners 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 left knee disability under DeLuca. Accordingly, the Board concludes that increased or separate evaluations are not warranted for the Veteran’s service-connected left knee disability. J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Osegueda, Counsel