Citation Nr: 18157939 Decision Date: 12/13/18 Archive Date: 12/13/18 DOCKET NO. 18-03 666 DATE: December 13, 2018 ORDER Entitlement to an evaluation in excess of 20 percent for a right knee disability is denied. Entitlement to a separate 10 percent rating for symptomatic post-operative meniscectomy of the right knee is granted. REMANDED Entitlement to service connection for left hip strain, to include as secondary to service connected disabilities is remanded. Entitlement to service connection for right hip strain, to include as secondary to service-connected disabilities is remanded. Entitlement to a left knee disability, to include as secondary to service-connected disabilities is remanded. Entitlement to service connection for left lower extremity radiculopathy is remanded. Entitlement to service connection for right lower extremity radiculopathy, to include as secondary to service-connected disabilities is remanded. FINDING OF FACT 1. The evidence of record demonstrates that the Veteran’s right knee disability is productive of no worse than moderate subluxation for the entire period on appeal. 2. When viewed in the light most favorable to the Veteran, the evidence of record demonstrates that the Veteran experiences pain, effusion, and swelling status post semi-lunar cartilage removal. CONCLUSION OF LAW 1. The criteria for a rating in excess of 20 percent for subluxation of the right knee, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257 (2018). 2. The criteria for a separate 10 percent rating for symptomatic post-operative meniscectomy of the right knee have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §4.71a, Diagnostic Code 5259 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service with the United States Navy from January 1997 to February 1998. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a January 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to an increased rating for a right knee disability Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. §1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. §4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability, 38 C.F.R. §4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 ; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person’s ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. 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 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 disabled. DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40 (2017); see also 38 C.F.R. §§ 4.45, 4.59 (2017). 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. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Under Diagnostic Code 5257, recurrent subluxation or lateral instability of the knee warrants a 10 percent rating when it is slight, a 20 percent rating when it is moderate, and a 30 percent rating when it is severe. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2018). Under Diagnostic Code 5259, symptomatic removal of semilunar cartilage warrants a maximum rating of 10 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5259 (2018). In an October 2016 VA examination, the Veteran reported right knee pain which was aggravated by squatting, walking longer than 30 minutes or climbing stairs. She reported constant right knee pain, described as tingling initially, which then becomes stabbing pain with walking, rated as 5 to 6 out of 10 at rest, and 10 out of 10 with exercise. On examination, range of motion revealed flexion to 130 degrees and extension to 0 degrees. There was evidence of pain on weight bearing and functional impairment limited the above noted squatting, walking for greater than 30 minutes and climbing stairs. Muscle strength testing of the right knee was 4 out of 5 on flexion and 5 out of 5 on extension. Medial instability was 1+, with no other reported instability in the right knee. The examiner provided a diagnosis of recurrent patellar dislocation which was moderate. The examiner also noted a previous meniscectomy in 2000. At private treatment visits with Dr. K.Z., a sports rehabilitation provider in April 2017, the Veteran reported onset of increasing knee pain to the prior month. She described it as aching with, among other symptoms, decreased mobility, instability, tenderness, numbness, and swelling. She relayed that the knee had a feeling of hyperextension while walking on a treadmill, with several subsequent episodes of buckling. Overall walking and standing aggravated the symptoms. Examination was positive for joint instability, crepitus, joint tenderness and popping. Range of motion of the right knee was 135 degrees on flexion and 0 degrees on extension. There was evidence of mild effusion and swelling on the right with greatest tenderness over the medial joint line. McMurray’s test was positive on the right. However, all other examinations were reported as normal. Upon review of the evidence, the Board finds that the criteria for right knee rating in excess of 20 percent is not warranted as the evidence does not reflect findings consistent with severe instability or subluxation. The October 2016 VA examination and April 2017 private treatment records document some medial instability; however, even the April 2017 private treatment record documents that Lachman’s was negative. There was no evidence in October 2016 VA examination that the Veteran used or required the use of an assistive device, such as a cane for ambulation, and the April 2017 private records specifically acknowledged the Veteran’s subjective report of right knee instability, including buckling and joint instability on physical examination. There is no competent medical evidence that the Veteran’s right knee instability or episodes of subluxation were worse at any point during the period on appeal than that indicated by the October 2016 and April 2017 records. Accordingly, more than moderate instability has not been shown. However, the Board notes that the Veteran also reported significant right knee symptoms other than instability, including pain at rest, swelling and decreased mobility. The October 2016 VA examination reports indicated no history of recurrent effusion and reported no other symptoms status post meniscectomy. However, the Board acknowledges that Dr. K.Z.’s records documented that in addition to joint instability, there was evidence of joint tenderness, crepitus, mild effusion, decreased range of motion and popping. This supports the Veteran’s subjective reports of pain with rest, worse with walking, decreased mobility, recurrent swelling, and hyperextension. As noted, the Veteran is status post meniscectomy reported as occurring in 2000. Thus, resolving all doubt in the Veteran’s favor, the Board finds that the Veteran’s symptoms warrant a separate 10 percent rating for the right knee under Diagnostic Code 5259 for symptomatic removal of semilunar cartilage. Lyles v. Shulkin, 29 Vet. App. 107 (2017). In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against ratings in excess of those assigned, that doctrine is not applicable. 38 U.S.C. §5107(b) (2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). REASONS FOR REMAND 1. Entitlement to service connection for bilateral lower extremity radiculopathy The Veteran asserts that she has a bilateral lower extremity radiculopathy secondary to her service-connected lumbar spine disability. She was denied service connection on the grounds that there was no diagnosis of either a right or left lower extremity radiculopathy. However, the examiner was advised and the VA and private treatment records contain confirmed diagnoses of lower extremity radiculopathies. As such, the Board finds that a new VA examination and opinion are warranted. 2. Entitlement to service connection for bilateral hip strain The Veteran asserts that she has a bilateral hip disability secondary to her service-connected lumbar spine disability. Service connection was denied on the grounds that hip strain was reported to have had its onset in 2012, while back strain had its onset in 2015. However, VA treatment records indicate a history of chronic low back pain as early as October 2006. A private treatment provider has opined that the bilateral hip pain is secondary to lumbar spine and knee issues; however, no rationale was provided for this opinion. Therefore, the Board finds that a new examination and opinion are warranted. 3. Entitlement to service connection for a left knee disability The Veteran asserts that she has a left knee disability which was caused by her service-connected right knee disability. An October 2016 VA opinion stated only that the noted instability in the right and left knee is not caused by or associated with the right knee disability per the medical record. No rationale was provided for the opinion. The Board finds a new opinion is warranted. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature of her bilateral lower extremity radiculopathies and to obtain an opinion as to whether such are possibly related to service-connected lumbar spine disability. The claims file should be reviewed by the examiner in conjunction with the examination. All necessary tests should be conducted and the results reported. Following review of the claims file and examination of the Veteran, the examiner should provide an opinion as to whether: (a) is it at least as likely as not (50 percent probability or greater) that the lower extremity radiculopathies were caused by the service-connected lumbar spine disability? (b) If not caused by the service-connected lumbar spine disability, is it at least as likely as not that the Veteran’s lower extremity radiculopathies are worsened beyond natural progression (aggravated) by his service-connected lumbar spine disability? If the examiner finds that the Veteran’s lower extremity radiculopathies were aggravated by her service-connected lumbar spine disability, the examiner should attempt to quantify the level of aggravation beyond the baseline level of the radiculopathies. 2. Then, opine as to whether the Veteran’s bilateral hip disabilities are related to service-connected disabilities. The claims file should be reviewed by the examiner in conjunction with the examination. All necessary tests should be conducted and the results reported. Following review of the claims file and examination of the Veteran, the examiner should provide an opinion as to whether: (a) is it at least as likely as not (50 percent probability or greater) that the bilateral hip strain was caused by the service-connected lumbar spine disability? (b) If not caused by the service-connected lumbar spine disability, is it at least as likely as not that the Veteran’s bilateral hip strain was worsened beyond natural progression (aggravated) by her service-connected lumbar spine disability? If the examiner finds that the Veteran’s hip disabilities were aggravated by her service-connected lumbar spine disability, the examiner should attempt to quantify the level of aggravation beyond the baseline level of the hip disabilities. 3. Then, obtain an addendum opinion with respect to the Veteran’s left knee claim. If an examination is deemed necessary to respond to the questions provided, one should be scheduled. After review of the claims file, the examiner should state whether (a) it is at least as likely as not (50 percent probability or greater) that the Veteran’s left knee disability was caused by the service-connected right knee disability. (b) If not caused by the service-connected right knee is it at least as likely as not that the left knee has been worsened beyond the normal progression (aggravated) by the right knee? Please explain why or why not. If the examiner finds that the Veteran’s left knee disability was aggravated by her service-connected right knee disability, the examiner should attempt to quantify the level of aggravation beyond the baseline level of the left knee disability. 3. Upon completion of the above, and any additional development deemed appropriate, readjudicate the remanded issues. If the benefits sought remain denied, the Veteran should be provided with a supplemental statement of the case. The case should then be returned to the Board for appellate review if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Rachel Mamis