Citation Nr: 18160717 Decision Date: 12/28/18 Archive Date: 12/27/18 DOCKET NO. 08-14 085 DATE: December 28, 2018 ORDER Entitlement to a disability rating in excess of 30 percent for medial collateral ligament strain of the right knee with limitation of extension from May 8, 2012 forward is denied. Entitlement to a separate 20 percent disability rating for meniscal tear of the right knee is granted. FINDINGS OF FACT 1. The Veteran’s right knee disability manifested at worst with flexion limited to 80 degrees and extension limited to 20 degrees from May 8, 2012 forward; no more than slight instability or subluxation is shown. 2. The Veteran’s right knee meniscal tear manifested with frequent episodes of locking, pain, and effusion. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 30 percent since May 8, 2012 for medial collateral ligament strain of the right knee with limitation of extension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5261. 2. The criteria for a separate 20 percent disability rating for meniscal tear of the right knee have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.73, Diagnostic Code 5258. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1956 to August 1959. This matter comes before the Board of Veterans’ Appeals (Board) from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). By way of background, this appeal was previously before the Board in November 2017, when the Veteran was denied a disability rating in excess of 10 percent prior to May 8, 2012 and in excess of 30 percent from May 8, 2012 forward. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). The parties agreed to a joint motion for partial remand regarding the issue of a higher rating since May 8, 2012, which was approved by the Court. The Veteran did not contest the denial of a rating in excess of 10 percent prior to May 8, 2012. The appeal regarding the rating since May 8, 2012 is now back before the Board. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, 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 question 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 (2017). See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate ratings can be assigned for knee disabilities when none of the symptomatology overlaps and the separate rating is based on additional disabling symptomatology; this includes separate ratings based on limitation of flexion (Diagnostic Code 5260), limitation of extension (Diagnostic Code 5261), lateral instability or recurrent subluxation (Diagnostic Code 5257), and meniscal conditions (Diagnostic Codes 5258, 5259). See VAOPGCPREC 23-97, 62 Fed. Reg. 63,603 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,703 (1998); VAOPGCPREC 9-2004; 69 Fed. Reg. 59,988 (2004); Lyles v. Shulkin, 29 Vet. App. 107 (2017). The normal range of motion of the knee is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. Limitation of flexion warrants 10, 20, and 30 percent ratings when limitation is to 45 degrees, 30 degrees, and 15 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Limitation of extension warrants 10, 20, 30, 40, and 50 percent ratings when limitation is to 10 degrees, 15 degrees, 20 degrees, 30 degrees, and 45 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5261. A 10 percent rating can also be assigned for the knee joint if there is painful motion without compensable limitation of motion. 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5003; see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that the applicability of 38 C.F.R. § 4.59 is not limited to arthritis claims). Recurrent subluxation and lateral instability of the knee warrants a 10, 20, or 30 percent rating if slight, moderate, or severe, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Ratings can also be assigned when the knee disability affects the meniscus, with a 20 percent rating for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint and a 10 percent rating for removal of semilunar cartilage (e.g., meniscectomy) and current residual symptoms. 38 C.F.R. § 4.71a, Diagnostic Codes 5258, 5259. Ratings can also be assigned for impairment of the tibia or fibula, genu recurvatum, or ankylosis of the knee. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5262, 5263. Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). Ankylosis is also defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 93 (30th ed. 2003). In this case the evidence does not reflect and the Veteran does not allege that he has tibia or fibula impairment, genu recurvatum, or ankylosis of the knee. As such, those diagnostic codes are not for application. Initially, the Board notes that treatment records are not in significant conflict with the VA examination findings discussed below. Range of motion testing of the right knee was performed during VA examinations in May 2012, October 2016, and June 2017, and showed at worst 80 degrees of flexion and extension limited to 20 degrees. At the examinations, the Veteran was asked about pain, flare-ups, and functional limitations, and relevant testing was performed during the May 2012 examination, to include testing for pain and testing to reveal any additional functional limitations in certain circumstances, such as after repetitive use. During this examination, after repetitive use testing, the Veteran’s flexion was to 80 degrees, and extension to 15 degrees (an improvement from 20 degrees prior to repetitive use testing). During the October 2016 VA examination, the Veteran was unable to perform 3 repetitions due to pain. During the June 2017 VA examination, the Veteran was unable to do repetitive use or passive range of motion testing due to pain and risk of injury to the knee. Regarding flare-ups and limitation after repetitive use, it is noted that at the examinations flare-ups were reported but could not be tested as the Veteran was not having a flare-up at the time of examination. The Board is not required to provide an examination during a flare-up. Voerth v. West, 13 Vet. App. 117, 122 (1999). Here, the Veteran states that he suffers from flare-ups 2 or 3 times monthly, and that they last approximately a day to a day and a half in duration. Similar to Voerth, the Veteran here has a condition that worsens only for a short period of time, which would render scheduling an examination during this short period impractical; unlike in Ardison, where flare-ups were reported to last weeks. Ardison v. Brown, 6 Vet. App. 405, 408 (1994). Next, the disability ratings for the knee do not specifically allow for compensable ratings for conditions only lasting a short period. Voerth, 13 Vet. App. at 123. Thus, the Board concludes, based on the facts of record, that the medical examinations conducted accurately reflect the Veteran’s disability. Id. The Board finds that the examiners in this case have considered all procurable and assembled data, before stating that an opinion regarding functional loss during flare-ups could not be reached. Sharp v. Shulkin, 29 Vet. App. 26 (2017). Further, the examiners explained the basis of their conclusions that they could not determine functional loss during a flare-up as the Veteran was not currently suffering a flare-up at the time of examination. Id. The inability to provide the opinion was not a limitation due to lack of expertise, insufficient information, or unprocured testing of an individual examiner. Id. Rather, the examiners ascertained and appropriately considered adequate information regarding frequency, duration, characteristics, severity, and functional loss during flare-ups as reported by the Veteran. Simply put, even considering the Veteran’s description of flare-ups and limitations, the information is not sufficient for a medical clinician to provide an estimate of degrees of knee motion with any accuracy. Notably, while asked to describe his flare-ups, the Veteran has not described limitation of motion in any terms which would facilitate estimation in degrees. The Board recognizes that repetitive use testing of the knee was not performed at the October 2016 or June 2017 examinations because of the Veteran’s reports of pain and discomfort and that passive range of motion testing was not performed at the June 2017 examination due to the risk of injury or perceived risk of injury. The absence of testing does not represent affirmative evidence of limitation of motion to the degree required for a higher rating. If the Board were to accept the absence of testing as representative of additional limitation of motion it would essentially have to consider it evidence of no motion in the knee. The Board would essentially be finding that the knee was ankylosed, which is clearly not the case given the Veteran’s ability to ambulate. The Veteran himself indicated that his limitations included difficulty with prolonged walking, squatting, and other tasks, which indicates his knee is not ankylosed and does not rise to the level of the functional equivalent of ankylosis. Thus, the lack of testing leaves the Board with no usable information regarding how far the Veteran can bend his knee. VA has tried to procure data about functional limitations and has successfully tested range of motion on multiple occasions as described above. This represents the best available data. While additional testing was not performed due to the Veteran’s reports of pain and discomfort, this simply does not inform the Board’s decision as to precisely how much motion the Veteran has in his knee. Given the above, the Board finds that overall right knee flexion was limited at most to 80 degrees and extension to 20 degrees. Extension to 20 degrees warrants a 30 percent rating, which has already been assigned. 38 C.F.R. § 4.71a, Diagnostic Code 5260. A rating in excess of 30 percent is not warranted for limitation of extension as the evidence does not more nearly approximate extension limited to 30 degrees. Id.; 38 C.F.R. § 4.7. A separate rating for limitation of flexion is not warranted as flexion is shown to be greater than 45 degrees and the Veteran is already receiving greater than the minimal compensable rating for limitation of motion of the joint. 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Codes 5003, 5260, 5261. The Veteran is separately rated for right knee instability at the 10 percent rate and has reported experiencing instability of his knee. Specifically, in October 2016 and June 2017 he stated his knee “gives out” and locks. Notably, there are specific medical tests that are designed to reveal instability and laxity of the joints. These tests were administered by a medical professional in May 2012 and showed normal stability. Testing was not performed in October 2016 as the Veteran was guarding and grimacing upon palpation of the knee, or in June 2017 due to the risk or injury or perceived injury. However, based on the Veteran’s reports both examiners determined there was a history of no more than slight right knee instability or subluxation. The examination findings and examiner’s opinions after review of the procurable data, including the Veteran’s statements, represent the most probative evidence as to the disability level in this case. As the most probative evidence shows no more than slight instability or subluxation of the right knee, a disability rating in excess of 10 percent under Diagnostic Code 5257 is not warranted. 38 C.F.R. § 4.71a. The Board finds that a separate 20 percent rating for right knee meniscal tear is warranted as the evidence demonstrates a right knee meniscal tear (see October 2016 and June 2017 VA Knee Examinations) as well as frequent episodes of locking, pain, and effusion of the joint (see October 2016 VA Knee Examination). While the Veteran has had a previous meniscectomy, it appears that he has another meniscal tear as the June 2017 VA examiner noted a tear shown on MRI as recently as 2005 and no surgeries since 2001. As such the meniscal condition is best rated under Diagnostic Code 5258 which provides for a higher 20 percent disability rating for a meniscal condition. 38 C.F.R. § 4.71a. A separate 10 percent rating for symptomatic removal of semilunar cartilage under Diagnostic Code 5259 cannot be awarded as the symptoms overlap with the dislocated semilunar cartilage and would constitute impermissible pyramiding. Id., see also 38 C.F.R. § 4.14. (Continued on the next page) For the reasons above, the Board finds that for the period at issue the Veteran’s right knee disability warrants a 30 percent rating for limitation of extension, a 20 percent rating for dislocated semilunar cartilage, and a 10 percent rating for instability/subluxation, but no higher. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5256 through 5263. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Megan Shuster, Law Clerk