Citation Nr: 1806952 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 14-13 372 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to an initial compensable rating from December 23, 2009, to May 8, 2013, and a rating in excess of 10 percent thereafter for left knee strain. 2. Entitlement to an initial compensable rating from December 23, 2009, to May 8, 2013, and a rating in excess of 10 percent thereafter for right knee strain. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. E. Miller, Associate Counsel INTRODUCTION The Veteran served in the U.S. Army from May 2008 to December 2009. This matter came before the Board of Veterans' Appeals (Board) on appeal from June 2011 and April 2014 decisions of the Waco, Texas, Regional Office (RO). In April 2015, the Veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge. A hearing transcript is in the record. FINDINGS OF FACT 1. The Veteran's right knee disorder caused weakness, pain on weight-bearing, cracking, difficulty squatting and bending, feelings of giving way, warmth, an inability to run more than 2 to 3 miles, flare-ups, difficulty using stairs, difficulty carrying more than 45 to 50 pounds, difficulty picking up his children, difficulty in getting up from a sitting position, difficulty in getting up off the floor, tenderness to palpation, decreased muscle strength on flexion, subluxation and dislocation, shin splints, an unsteady gait, crepitus, locking, a 1.3 centimeter oval radiodensity structure anterior to the distal third of the femur, limitation of flexion to 135 degrees without pain and limitation of extension to 0 degrees without pain, and he used a brace and took prescription medication for pain. 2. The Veteran's left knee disorder caused weakness, pain on weight-bearing, cracking, difficulty squatting and bending, feelings of giving way, warmth, an inability to run more than 2 to 3 miles, flare-ups, difficulty using stairs, difficulty carrying more than 45 to 50 pounds, difficulty picking up his children, difficulty in getting up from a sitting position, difficulty in getting up off the floor, functional impairment and loss, decreased muscle strength on flexion and extension, instability, an unsteady gait, crepitus, locking, giving way, shin splints, limitation of flexion to 50 degrees with pain and limitation of extension to 0 degrees without pain, and he used a brace and took prescription medication for pain. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 10 percent since December 23, 2009, for right knee instability have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257 (2017). 2. The criteria for an initial rating of 20 percent since December 23, 2009, for right knee locking have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5258 (2017). 3. The criteria for an initial rating of 10 percent since December 23, 2009, for left knee instability have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257 (2017). 4. The criteria for an initial rating of 20 percent since December 23, 2009, for left knee locking have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5258 (2017). 5. The criteria for an initial rating of 10 percent from December 23, 2009, to May 8, 2013, for left knee limitation of flexion have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260 (2017). 6. The criteria for an initial rating in excess of 10 percent since May 8, 2013, for left knee limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and to Assist Where, as here, with the appeal for an initial compensable rating following the grant of service connection, the service connection claim is substantiated. No additional VCAA notice is required with respect to the downstream issue of the initial rating assigned to the now service-connected disability. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective dates); 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice upon receipt of a notice of disagreement). In addition, VA obtained all identified evidence and there is no indication that there is additional relevant evidence that is still outstanding. II. Analysis Disability evaluations are determined by comparing the Veteran's current symptomatology with the criteria set forth in the Schedule For Rating Disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2017). The Veteran's knee disorders are currently rated according to diagnostic code 5260. Diagnostic Code 5260 provides ratings based on limitation of flexion of the leg. Limitation of flexion to 60 degrees warrants a noncompensable rating. Limitation of flexion to 45 degrees warrants a 10 percent rating. Flexion limited to 30 degrees warrants a 20 percent rating. Flexion limited to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2017). The average normal range of motion of the knee is flexion from 0 to 140 degrees and extension from 140 to 0 degrees. 38 C.F.R. § 4.71, Plate II. Diagnostic Code 5257 provides ratings for recurrent subluxation or lateral instability. Slight disability warrants a 10 percent rating and a moderate disability warrants a 20 percent rating. Severe disability warrants a 30 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2017). Diagnostic Code 5258 provides that a 20 percent rating is warranted for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. 38 C.F.R. § 4.71a, Diagnostic Code 5258 (2017). 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, 4.59. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Where, as here, the issue involves the assignment of an initial rating for a disability following the initial award of service connection for that disability, the entire history of the disability must be considered. See Fenderson v. West, 12 Vet. App. 119 (1999). An April 2009 service treatment record indicates that the Veteran had right knee weakness and pain on weight-bearing and when running further than 3 miles. He developed pain and guarding when doing a 90 degree squat but no guarding on palpation or during a drawer test. He was diagnosed with joint pain and was authorized to wear a knee brace. A May 2010 VA treatment record indicates that the Veteran had decreased range of motion in his right knee but no swelling or redness. In June 2010, the Veteran was afforded a VA examination. The Veteran stated that his symptoms had been stable with no change since he separated from service. He reported pain and cracking with squatting and bending and that he occasionally felt that his knees would give out. He had not had any falls. He had pain only during activity. He denied any swelling but reported that his knees sometimes felt warm. He reported no redness, locking, flare-ups, or limitations in standing or walking. He sometimes had to use his arms to get up from a squatting position and his running was limited to 2 to 3 miles. On examination his knees appeared normal with no redness, swelling, warmth, or tenderness to palpation. There was some crepitus during motion. He had flexion to 145 degrees without pain bilaterally and extension to 0 degrees bilaterally. There was no change in range of motion following repeated use and stability tests were normal. Right knee X-ray studies revealed a 1.3 centimeter oval radiodensity structure anterior to the distal third of the femur. The X-ray study report stated that "[t]his could represent a subtle soft tissue calcification or foreign body." The right and left knee were otherwise within normal limits. The examiner diagnosed bilateral knee strain. On his July 2011 notice of disagreement (NOD), the Veteran stated that he reported at his June 2010 VA examination that he had pain in both knees on weight-bearing and when walking. He also reported discomfort during the examination. In a January 2013 statement, the Veteran wrote that during his examination, he could not perform a squatting motion while standing due to the pain in his knees. He also reported that he had severe pain while performing bending motions on examination. He reported that the severity of his disorder has not changed. In May 2013, the Veteran was afforded another VA examination. He reported constant pain with flare-ups. His flare-ups resulted in difficulty bending at the knee and picking up his children, difficulty in getting up from a sitting position, difficulty in getting up off the floor, difficulty in climbing up and down stairs, and difficulty in carrying more than 45 to 50 pounds. He was taking several prescription medications for pain. On examination he had flexion to 140 degrees or greater with pain in both knees, right knee extension to 0 degrees without pain, and left knee extension to 0 degrees with pain. There was no additional limitation of motion following repeated use. The examiner indicated that he had no functional loss or functional impairment in either knee. There was no tenderness to palpation, strength testing was normal, stability testing was normal, there was no subluxation or dislocation, he had no meniscal disorders, there were no scars, and he used no assistive devices for movement. X-ray studies revealed no arthritis. The examiner noted that the Veteran reported no change in his knee symptoms since his prior VA examination and that he had subjective pain on range of motion testing. A February 2014 disability benefits questionnaire completed by the Veteran's physical therapist states that the Veteran reported pain and limited ability to squat, use stairs, and lift or carry heavy items. He reported flare-ups that lasted 2 to 3 days each and that impacted his mobility, including preventing him from performing work duties. On examination, he had right knee flexion to 135 degrees without pain, right knee extension to 0 degrees without pain, left knee flexion to 50 degrees with pain, and left knee extension to 0 degrees without pain. He had no additional limitation of motion following repeated use testing. The examiner noted functional impairment and loss in the left lower extremity. He had tenderness to palpation in the right knee, decreased muscle strength in both knees on flexion and in the left knee on extension, and left knee instability. The Veteran reported a history of right knee subluxation and dislocation and bilateral shin splints that increased with jogging. The examiner stated that the Veteran had limitation of motion and moderate weakness in the left knee, which limited his ability to tolerate impact activity and prevented him from properly performing squatting and bending motions. VA treatment records dated between November 2011 and February 2014 indicate symptoms of right knee tenderness; decreased bilateral range of motion; bilateral pain; weakness; difficulty using stairs, running, doing lunges, and doing squats; an unsteady gait; and knees locking. He used a knee brace on his left knee. A February 2014 VA treatment record states that the Veteran's left knee "went out." He was unable to flex the knee but could easily extend. At his April 2015 Board hearing, the Veteran testified that he had bilateral knee pain on weight-bearing and that his symptoms had been of the same severity since service. The Veteran's right knee disorder caused weakness, pain on weight-bearing, cracking, difficulty squatting and bending, feelings of giving way, warmth, an inability to run more than 2 to 3 miles, flare-ups, difficulty using stairs, difficulty carrying more than 45 to 50 pounds, difficulty picking up his children, difficulty in getting up from a sitting position, difficulty in getting up off the floor, tenderness to palpation, decreased muscle strength on flexion, subluxation and dislocation, shin splints, an unsteady gait, crepitus, locking, a 1.3 centimeter oval radiodensity structure anterior to the distal third of the femur, limitation of flexion to 135 degrees without pain and limitation of extension to 0 degrees without pain, and he used a brace and took prescription medication for pain. Given these facts, the Board finds that the Veteran's right knee disorder most closely approximates a 10 percent rating for slight subluxation or instability under diagnostic code 5257 and a 20 percent rating for locking under diagnostic code 5258. 38 C.F.R. § 4.7. See Hart v. Mansfield, 21 Vet. App. 505 (2007). A 20 percent rating for moderate subluxation or instability is not warranted as the instability could not be detected during most testing. A 20 percent rating is the maximum available under diagnostic code 5258. The Veteran's symptoms are most appropriately rated under these two diagnostic codes as he does not have limitation of flexion such that a compensable rating is warranted. He was previously rated for limitation of flexion under 38 C.F.R. § 4.59 but that applies to joints with arthritis, which the Veteran does not have, and the only allows for the minimum compensable rating. Rating the Veteran's disorder under diagnostic codes 5257 and 5258 is more beneficial to him and provides him with a higher rating for his right knee disorder. The Veteran's left knee disorder caused weakness, pain on weight-bearing, cracking, difficulty squatting and bending, feelings of giving way, warmth, an inability to run more than 2 to 3 miles, flare-ups, difficulty using stairs, difficulty carrying more than 45 to 50 pounds, difficulty picking up his children, difficulty in getting up from a sitting position, difficulty in getting up off the floor, functional impairment and loss, decreased muscle strength on flexion and extension, instability, an unsteady gait, crepitus, locking, giving way, shin splints, limitation of flexion to 50 degrees with pain and limitation of extension to 0 degrees without pain, and he used a brace and took prescription medication for pain. Given these facts, the Board finds that the Veteran's left knee disorder most closely approximates a 10 percent rating for slight subluxation or instability under diagnostic code 5257, a 20 percent rating for locking under diagnostic code 5258, and a 10 percent rating for flexion limited to 50 degrees with pain under diagnostic code 5260. 38 C.F.R. § 4.7. See Hart v. Mansfield, 21 Vet. App. 505 (2007). A 20 percent rating for moderate subluxation or instability is not warranted as the instability could not be detected during most testing. A 20 percent rating is the maximum available under diagnostic code 5258. A 20 percent rating for limitation of flexion is not warranted for any period on appeal as the Veteran did not have flexion limited to 30 degrees. In making these determinations, the Board has considered, along with the schedular criteria, the Veteran's functional loss due to pain. 38 C.F.R. §§ 4.40, 4.45 (2017); DeLuca v. Brown, 8 Vet. App. 202, 206-207 (1995). These ratings are warranted since the date that service connection was granted as the Veteran has consistently stated that his symptoms have not changed since service. ORDER An initial rating of 10 percent since December 23, 2009, for right knee instability under diagnostic code 5257 is granted. An initial rating of 20 percent since December 23, 2009, for right knee locking under diagnostic code 5258 is granted. An initial rating of 10 percent since December 23, 2009, for left knee instability under diagnostic code 5257 is granted. An initial rating of 20 percent since December 23, 2009, for left knee locking under diagnostic code 5258 is granted. An initial rating of 10 percent from December 23, 2009, to May 8, 2013, for left knee limitation of flexion under diagnostic code 5260 is granted. An initial rating in excess of 10 percent since May 8, 2013, for left knee limitation of flexion under diagnostic code 5260 is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs