Citation Nr: 1807062 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 14-15 048 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for right knee degenerative joint disease (DJD) with meniscal tear, bursitis, and chondromalacia patella status post arthroscopic debridement and medial collateral ligament sprain (hereinafter "right knee disability"). 2. Entitlement to a rating in excess of 10 percent for right knee instability due to right knee disability. 3. Entitlement to a separate rating for a right knee meniscus condition under Diagnostic Code (DC) 5258. ATTORNEY FOR THE BOARD J. Nichols, Counsel INTRODUCTION The Veteran served on active duty from April 1994 to April 1997 and from October 2000 to September 2010. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which, in pertinent part, granted service connection for right knee DJD and assigned a noncompensable rating, effective September 30, 2010. The Veteran perfected his appeal as to the initial rating for the right knee disability. In November 2015, the Board remanded this case for further development. Thereafter, in a March 2016 rating decision, the Appeals Management Center (now Appeals Management Office) increased the disability rating for a right knee disability to 10 percent, effective December 9, 2013. Pursuant to the Board's November 2015 remand, the Veteran was provided with a VA examination in March 2016 in order to evaluate the current severity of his right knee disability. Subsequent to the March 2016 VA knee examination, the Court, in Correia v. McDonald, 28 Vet. App. 158 (2016), established additional requirements that must be met prior to finding that a VA examination is adequate. As such, the Board, in November 2016 again remanded for a new VA examination in compliance with Correia. Based on the results of the new examination, which took place in December 2016, during the pendency of the appeal, the Appeals Management Office (1) assigned a uniform 10 percent rating for the right knee disability from September 30, 2010, the day following discharge from active duty, and (2) assigned a separate 10 percent rating for right knee instability from December 30, 2016. Since these assignments do not represent a total grant of benefits sought on appeal, the claim for increase remains before the Board for appellate consideration as reflected by the additional issues listed on the title page. AB v. Brown, 6 Vet. App. 35 (1993). FINDINGS OF FACT 1. The Veteran's right knee disability has been manifested by flexion no worse than 85 degrees and extension no worse than 0 degrees, with pain. 2. The Veteran's right knee disability has been manifested by moderate instability, but does not more nearly approximate severe instability. 3. The Veteran has a right knee meniscus condition that is characterized by locking, pain, and effusion into the joint. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for right knee DJD with meniscal tear, bursitis, and chondromalacia patella status post arthroscopic debridement and medial collateral ligament sprain, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.59, 4.71a, DC 5260 (2017). 2. The criteria for an increased rating of 20 percent, but not higher, for right knee instability due to right knee disability, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.6, 4.59, 4.71a, DC 5257 (2017). 3. The criteria for a maximum 20 percent separate rating for a right knee meniscus condition under DC 5258, effective September 30, 2010, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.59, 4.71a, DC 5258 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (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); Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). I. General Rating Principles Disability evaluations are determined by comparing a veteran's present symptoms with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the Veteran. 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran's condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a claimant is awarded service connection and assigned an initial disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found. Where the veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). 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. See 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. Where arthritis results in painful motion of the joint, the rating criteria allow for at least the minimum compensable evaluation for the joint. 38 C.F.R. § 4.59. The intent of the rating schedule is to recognize painful motion with joint or particular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or misaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Id. The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Moreover, when evaluating musculoskeletal disabilities, VA may, in addition to applying the schedular criteria, assign a higher disability rating when the evidence demonstrates functional loss due to limited or excessive movement, pain, weakness, excessive fatigability, or incoordination, to include during flare-ups and with repeated use, if those factors are not considered in the rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202 (1995). Nonetheless, a rating higher than the minimum compensable rating is not assignable under any DC (relating to range of motion) where pain does not cause a compensable functional loss. The "pain must affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance,'" as defined in 38 C.F.R. § 4.40, before a higher rating may be assigned. This is because "pain alone does not constitute a functional loss under the VA regulations that evaluate disability based upon range-of-motion loss." Mitchell v. Shinseki, 25 Vet. App. 32, 33, 43 (2011). Section 4.59 does not require objective evidence of painful motion. The regulation does not speak to the type of evidence required when assessing painful motion and therefore certainly does not, by its own terms, restrict evidence to "objective" evidence. Petitti v. McDonald, 27 Vet. App. 415, 427 (2015). If credible, lay testimony may consist of a veteran's own statements to the extent that the statements describe symptoms capable of lay observation. 27 Vet. App. 415, 427-28 (2015) (citing Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). II. Discussion The Veteran avers that his right knee disability is worse than what is currently contemplated by the 10 percent rating, which is rated under DC 5260. See 38 C.F.R. § 4.71a. This 10 percent rating was based upon painful motion (DeLuca factors). See March 2016 Rating Decision. For the reasons that follow, the Board finds against a higher rating under DC 5260, but finds that there is an increase in the Veteran's right knee disability, which translates into a higher rating of 20 percent under DC 5257 (second issue on title page) and a separate rating of 20 percent under DC 5258 (third issue on title page). The analysis under the various DCs will be presented below. By way of history, service treatment records (STRs) show that the Veteran has had meniscus problems since service and has received surgery on his right knee. He also had notable right knee genu recurvatum with his stance and gait, along with instability of his right knee (positive McMurray's test). See July and August 2006 STRs. Effusion in the right knee was also noted in service, see December 2008 STR, and he has also experienced joint swelling, stiffness, and intermittent knee locking. See May 2010 STR. An August 2010 VA examination report includes X-ray studies of the right knee. Mild DJD was diagnosed as mild hypertrophic changes were noted at the joint line. A December 2013 primary care evaluation note shows complaints of worsening right knee pain, which seemed to limit him from doing his job as he was on his feet all day. He no longer participated in sports or running. A September 2014 physical therapy note shows complaints of increase in pain with kneeling, squatting, steps, climbing, and jumping. The therapist believes that the medial meniscus tear is causing the pain. Range of motion testing revealed flexion of the right knee to 125 degrees and extension as negative (-) 2 degrees. Findings from other special knee tests were negative/normal. A February 2015 orthopedic surgery consult note shows complaints of right knee pain that is progressive in nature, stiff, and achy. He has a history of locking or giving way. Range of motion studies revealed flexion to 112 degrees and extension to 0 degrees. Special testing for joint stability revealed a positive McMurray's and positive varus testing. There was mild effusion noted. A March 2016 VA examination report reveals complaints of daily constant right knee pain, and limitations on lifting more than 30 pounds, running, squatting, and kneeling; no flare-ups were reported. Range of right knee motion testing yielded normal results (0 to 140 degrees). The Veteran was able to perform repetitive-use testing with at least 3 repetitions. Pain limited functional ability with repeated use over a period of time, but this was not described in degrees of ranges of motion. Muscle strength was normal and there was no ankylosis. The examiner noted no history of recurrent subluxation, lateral instability, or recurrent effusion. Upon joint stability testing, the Veteran tested normal on all of the special tests measuring anterior, posterior, medial, and lateral instability. The examiner also noted that there was no tibial impairment and no meniscal condition. The Veteran regularly used a cane. X-ray studies showed evidence of moderate arthritis of the right knee. The Veteran was currently employed full-time and worked in a warehouse. He was capable of performing daily living activities. He would be limited in doing repetitive or prolonged activities such as standing, running, squatting, kneeling, climbing, pushing, pulling, and lifting, but not limited in sedentary activities. A September 2016 orthopedic general consultation note shows a history of right knee pain after an injury in service in 2007. He has had a torn medial collateral ligament, meniscus, and hamstring rupture and has undergone extensive surgery. Pain never fully went away and he reported that he "[f]eels unstable" since he sustained that injury in 2007. Range of motion testing revealed flexion to 120 degrees and extension of "+12." It was also noted that the Veteran had "[s]ignificant hypertension" which makes it likely that the examiner meant to type "-12 degrees" instead. See discussion, infra. There was also a notation of slight varus deformity. Special tests for instability were negative/normal. Muscle strength was normal. A November 2016 orthopedic clinic note reveals the same results. MRI results from that visit revealed severe medial compartment osteoarthritis with meniscus tears, bursitis, cartilage loss, and small joint effusion. A December 2016 physical therapy note shows an increase in knee pain when kneeling or squatting. He worked at record storage facility which requires bending, stopping, and squatting. He used ice for pain relief. There was pain with walking and he had to shift his weight to one side. There were feelings of instability intermittently. Range of motion testing was within functional limits (noted as "WFL") for extension and flexion; there were episodes of instability when walking for extended periods of time. Another December 2016 note indicates that his right knee gets stiff if he sits for more than one hour. The Veteran was afforded another VA examination in December 2016 where he reported flare-ups of the right knee when standing more than 5 to 10 minutes and walking. He could not stand for more than 1 hour continuously, walking was limited to 50 to 75 yards, and he could not squat or kneel. He was unable to do yard work due to pain on standing and walking. Upon active range of motion testing, the Veteran's flexion was to 90 degrees and his extension was -10 degrees, due to hyperextension that was bilateral. The extension was considered normal because of the hyperextension. There was pain with both extension and flexion. There was pain with weightbearing, and objective evidence of localized tenderness of the joint and crepitus. There was additional loss of motion after three repetitions where flexion was to 85 and extension was -10. With respect to repeated use over time, pain, fatigue, weakness, lack of endurance caused functional loss. Additional loss of range of motion with repeated use over time was best described as moderate in flexion because the examination was not being conducted during a flare-up or after repeated use over time. Upon passive range of motion, flexion of the right knee was 85 degrees and extension was -10 degrees. Weightbearing range of motion (deep knee bend) was not be performed because of the instability of the right knee. There was pain with the non-weight bearing right knee at rest, but it did not cause functional loss; there was pain with passive range of motion (but also did not result in functional loss). Muscle strength was 4/5, and additional factors of the disability were swelling, disturbance of locomotion, and interference with standing. There was no ankylosis. Upon joint stability tests, the Veteran had slight instability and no history of recurrent subluxation. There was recurrent effusion where it is described as an intermittent swelling of the right knee. Joint instability tests were normal except for medial instability where the value was 1+ (value: 0-5 millimeters). The Veteran did not have tibial or fibular impairment. He had a meniscus condition - meniscal tear, frequent episodes of joint pain and frequent episodes of joint effusion - described as "daily moderate medial knee pain and knee joint effusion." He had a scar that was not painful or symptomatic. He regularly used a cane. Lastly, it was noted that the Veteran has not lost any work time due to his right knee. A February 2017 VA treatment note shows frequent flare ups, and treatment with ibuprofen which has not helped. He reported that bending, kneeling, squatting makes things worse; he could not run. Range of motion was said to be limited due to pain (but no values given). He requested additional physical therapy sessions. A. In excess of 10 percent for right knee disability under DC 5260 DC 5260 provides for a noncompensable evaluation where flexion of the leg is only limited to 60 degrees. For a 10 percent evaluation, flexion must be limited to 45 degrees. A 20 percent evaluation is warranted where flexion is limited to 30 degrees. A 30 percent evaluation may be assigned where flexion is limited to 15 degrees. Normal range of knee motion is 140 degrees of flexion and zero degrees of extension. 38 C.F.R. § 4.71, Plate II. In order to achieve the next-higher rating of 20 percent under DC 5260, the Veteran's right knee disability must more nearly approximate flexion limited to 30 degrees. On this record, the worst demonstration of the Veteran's flexion was 85 degrees, as demonstrated at the December 2016 VA examination, when range of motion was measured after 3 repetitions of active motion (and also upon passive range of motion). A veteran experiencing an "actually" painful joint is entitled to at least the minimum compensable rating per joint under the appropriate DC involved. Petitti, 27 Vet. App. at 424 (citing Mitchell v. Shinseki, U.S. Vet. App. No. 09-2169, Secretary's Response (Resp.) to April 6, 2011, Order at 1). The current 10 percent rating already contemplates pain and other functional limitations, to include such as limitations on running, walking, bending, squatting, kneeling, and standing for long periods of time. The Board has carefully considered the Veteran's statements regarding right knee pain and limitations. However, "pain alone does not constitute a functional loss under the VA regulations that evaluate disability based upon range-of-motion loss." Mitchell v. Shinseki, 25 Vet. App. 32, 33, 43 (2011). In other words, flare-ups and limitation of motion are already contemplated by the current 10 percent rating and any increase in rating beyond that 10 percent must be justified by measurable loss, which has not amounted to compensable measurable loss based on the evidence. This is the maximum rating assignable under such circumstances. See Petitti, 27 Vet. App. at 426; Mitchell, 25 Vet. App. at 36. VA's General Counsel has held that separate ratings are available for limitation of flexion and limitation of extension under DCs 5260 and 5261. VAOPGCPREC 9-2004 (2004). DC 5261 provides for a noncompensable evaluation where extension of the leg is limited to 5 degrees. A 10 percent evaluation requires extension limited to 10 degrees. A 20 percent evaluation is warranted where extension is limited to 15 degrees. A 30 percent evaluation may be assigned where the evidence shows extension limited to 20 degrees. For a 40 percent evaluation, extension must be limited to 30 degrees. Where extension is limited to 45 degrees, a 50 percent evaluation may be assigned. On this record, the Veteran's worst display of knee extension has been 0 degrees. The indication on the VA treatment records of "+12" degrees is in error. Given that the Veteran was noted to have hyperextension and slight genu recurvatum, it is consistent with a -12 degree extension. Pursuant to VA standards for measuring flexion and extension, an indication of extension to a negative number shows hyperextension. A 10 percent evaluation requires extension limited to 10 degrees. Zero degrees in extension warrants a noncompensable rating according to DC 5261. Thus, a separate compensable evaluation for limited extension is not warranted. Painful motion and functional limitation has already been compensated for by the current 10 percent rating under DC 5260, as already noted. A rating higher than the minimum compensable rating is not assignable under any DC (relating to range of motion) where pain does not cause a compensable functional loss. The Board does not disagree that the Veteran may feel that he is more severely limited in motion; however, without corroboration with measurable loss warranting an increase, the Veteran's statements alone cannot support a 20 percent or higher rating for his right knee under DC 5260 or a compensable rating under DC 5261. B. In excess of 10 percent for right knee instability Under DC 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, DC 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. Based on the evidence summarized above, the Board finds that the Veteran's right knee instability more nearly approximates "moderate" disability. The Veteran has consistently reported instability, showed positive results on joint stability tests, and reported feeling of being unstable since his surgery in service, which is well-supported by the evidence summarized above. His hyperextension issue contributes to his lateral instability, as he has to shift weight to the other side and restrict his movements, such as walking, because of his right knee instability, along with having to use a cane to ambulate. See December 2016 VA Examination Report. The Board has considered whether the higher rating of 30 percent may be assigned. On this subject, however, the evidence has consistently shown a minimal measurable level of disability on joint stability tests for the right knee. Notably, tests of stability were mostly within normal limits except for a few occasions, to include in December 2016, where the value was 1+ (0-5 millimeters) for lateral instability. The Veteran has slight genu recurvatum and problems with weight bearing, locking pain, and crepitus. The Veteran himself has described some episodes of knee locking and giving way. See, e.g., February 2015 VA Treatment Record; March to December 2016 VA Treatment Records. As such, these findings support at most the 20 percent rating for moderate right knee instability, and do not contemplate a "severe" level of disability required to establish a 30 percent evaluation. Given objective confirmation of slight right knee lateral instability on repeat VA examinations, which have been consistent with his statements regarding instability, and limited indications of anything more severe upon objective testing, the evidence shows a "moderate" severity level. As a result, a higher disability rating than 20 percent for right knee instability is not warranted. C. Separate rating under DC 5258 Under DC 5258, a rating of 20 percent is warranted for dislocation of the semilunar cartilage of the knee with frequent episodes of "locking," pain, and effusion into the joint. 38 C.F.R. § 4.71a. This is the highest rating under this particular DC. As summarized above, the evidence demonstrates that the Veteran has had a meniscus tear followed by surgery in service and has had constant pain, consistent effusion of the joint (as confirmed by MRI evidence), and episodes of locking. As such, a 20 percent separate rating under DC 5258, effective September 30, 2010 (the day following separation from service), is warranted. See Lyles v. Shulkin, 2017 U.S. App. Vet. Claims LEXIS 1704 (holding that evaluation of a knee disability under DCs 5257 or 5261 or both does not, as a matter of law, preclude separate evaluation of a meniscal disability of the same knee under DC 5258 or DC 5259, or vice versa). D. Other potentially applicable DCs Under DC 5263, a 10 percent disability rating is assigned for acquired, traumatic genu recurvatum with weakness and insecurity in weight-bearing objectively demonstrated. This is demonstrated by the record as the Veteran's service treatment records document slight genu recurvatum and subsequent examinations have demonstrated that he has insecurity with weight-bearing. See December 2016 VA Examination Report. In this instance, however, the existence of right knee weakness and insecurity with weight-bearing is already contemplated in the assignment of a 20 percent rating under DC 5257. To attempt to assign a separate additional rating for genu recurvatum based on these symptoms of weakness and instability would contravene the applicable law against providing compensation twice for the same underlying disability. See 38 C.F.R. § 4.14 (providing that under VA's "anti-pyramiding rule," the evaluation of the same manifestation under different diagnoses is to be avoided); see also Esteban, 6 Vet. App. at 262. There is no other schedular provision under which a higher or separate rating could be assigned for the right knee. The remaining DCs pertaining to the knee, 5256 and 5262, provide rating criteria used to evaluate ankylosis and impairment of the tibia and fibula, respectively. As the record shows no ankylosis or tibia/fibula impairment, these DCs are not for application. Finally, the Veteran has a scar at the site of the prior surgeries in the right knee. Throughout the appeal period, as most recently demonstrated upon VA examination in December 2016, this scar has been asymptomatic. A compensable disability level has not been established under 38 C.F.R. § 4.118, DCs 7801-7805. In reaching these conclusions herein, the Board considered the Veteran's reports of observable symptomatology and incorporated such in its evaluation of the Veteran's disability picture. ORDER An initial rating in excess of 10 percent for right knee DJD with meniscal tear, bursitis, and chondromalacia patella status-post arthroscopic debridement and medial collateral ligament sprain, is denied. An increased rating of 20 percent, but not higher, for right knee instability due to right knee disability is granted. A maximum 20 percent separate rating for a right knee meniscus condition under DC 5258 is granted, effective September 30, 2010. ____________________________________________ S.B. MAYS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs