Citation Nr: 1807359 Decision Date: 02/05/18 Archive Date: 02/14/18 DOCKET NO. 10-29 975 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a disability rating in excess of 10 percent for patellar syndrome and degenerative joint disease with residuals, right knee, postoperative (right knee disability), to include entitlement to a separate compensable rating for instability. REPRESENTATION Veteran represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD T. Minot, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from March 1989 to September 1990, and from January 1991 to May 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The issue on appeal was remanded by the Board for evidentiary development in May 2016, and again in July 2017. FINDINGS OF FACT 1. The Veteran's right knee disability has been productive of moderate instability. 2. The Veteran's right knee disability has been manifested by functional limitation of extension to no more than 10 degrees; functional limitation of flexion to 45 degrees has not been shown. CONCLUSIONS OF LAW 1. The criteria for a separate, 20-percent disability rating based on moderate instability of the right knee have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71(a), Diagnostic Code (DC) 5257 (2017). 2. The criteria for a rating in excess of 10 percent based on limitation of extension of the right knee have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71(a), DC 5010-5261 (2017). 3. The criteria for a separate, compensable rating based on limitation of flexion of the right knee have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71(a), DC 5260 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran contends that his service-connected right knee symptoms are more severe than what is reflected by his current disability rating. For the following reasons, the Board finds that a separate, 20-percent rating for instability is warranted but that increased ratings are not warranted based on limitation of motion. Pertinent Laws and Regulations Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, 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 Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). "Staged" ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). When assessing the severity of a musculoskeletal disability that is rated on the basis of limitation of motion, VA must, in addition to applying schedular criteria, also consider 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 VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-207 (1995). The provisions of 38 C.F.R. §§ 4.40 and 4.45 should only be considered in conjunction with the DCs predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). The Veteran's right knee symptoms are rated under DC 5010-5261. 38 C.F.R. § 4.71(a). However, the matter on appeal involves several relevant regulations and ratings criteria. DC 5010 provides that traumatic arthritis is to be evaluated as degenerative arthritis pursuant to DC 5003. Under DC 5003, degenerative arthritis substantiated by X-ray findings is rated on the basis of limitation of motion under the appropriate DCs for the specific joint or joints involved. See 38 C.F.R. § 4.71(a). Normal range of motion of the knee is zero to 140 degrees of extension to flexion. Id. (Plate II). Under DC 5261, a noncompensable rating is warranted when knee extension is limited to 5 degrees; a 10-percent rating is warranted when extension is limited to 10 degrees; a 20-percent rating is warranted when extension is limited to 15 degrees; a 30-percent rating is warranted when extension is limited to 20 degrees; a 40-percent rating is warranted when extension is limited to 30 degrees; and a 50-percent rating is warranted when extension is limited to 45 degrees. Id. Under DC 5260, a noncompensable rating is warranted when knee flexion is limited to 60 degrees; a 10-percent rating is warranted when flexion is limited to 45 degrees; a 20-percent rating is warranted when flexion is limited to 30 degrees; and a 30-percent rating is warranted when flexion is limited to 15 degrees. Id. The VA General Counsel has noted that "separate ratings may be assigned under Diagnostic Code 5260 and Diagnostic Code 5261, where a Veteran has both a limitation of flexion and limitation of extension of the same leg; limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg." See VAOPGCPREC 9-2004 (September 17, 2004). In addition, under DC 5257, knee impairment with recurrent subluxation or lateral instability is rated 10 percent when slight, 20 percent when moderate, and 30 percent when severe. 38 C.F.R. § 4.71(a). A Veteran may be assigned separate ratings for arthritis with limitation of motion under DC 5260 or 5261 and for instability/subluxation under DC 5257. See VAOPGCPREC 23-97 (July 1, 1997). Finally, DC 5258 assigns a 20-percent rating for dislocation of the semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. 38 C.F.R. § 4.71(a). DC 5259 assigns a 10-percent rating for removal of the semilunar cartilage which is "symptomatic." Id. Notably, in Lyles v. Shulkin, 2017 U.S. App. Vet. Claims LEXIS 1704, *2 (Nov. 2017), the Court of Appeals for Veterans Claims (Court) held that assigning an evaluation under DCs 5257 or 5261 or both does not, as a matter of law, preclude a separate evaluation for meniscal disability of the same knee under DC 5258 or 5259, and vice versa. The Court further held that entitlement to a separate evaluation in a given case depends on whether the manifestations of disability for which a separate evaluation is being sought have already been compensated by an assigned evaluation under a different DC. Id. Factual Background The Veteran filed the instant claim for entitlement to an increased rating in January 2010. In the year prior, VA outpatient records show that he received ongoing treatment for right knee pain. In February 2010, the Veteran reported that his symptoms were "excruciatingly unbearable," and stated that he could not walk half a block without moderate pain and mild swelling. He noted that his knees had developed "disfiguration" with "extreme joint popping and locking which happen[] spontaneously." He reported being unable to sit or stand for extended periods, and stated that he could not climb the stairs without extreme pain. He also reported "ridiculous" stiffness. On VA examination in February 2010, the Veteran reported symptoms of pain, weakness, stiffness, swelling, instability, giving way, "locking," fatigability, and lack of endurance. He reported flare-ups of right knee locking almost daily which lasted several hours and caused diminished overall activity. He reported using a brace for stability, support, and comfort. With respect to surgical history, the Veteran reported that he had a scopic procedure done in 1991 and a debridement of degenerated tissue done in 1998; the examiner noted a scopic site scar which was superficial, two centimeters around, and asymptomatic. Range of motion testing revealed flexion to 130 degrees and extension to zero degrees; however, the examiner noted that there was crepitus, patellar grind, marked tender joint lines, and pain with torque motion, as well as lack of endurance. No additional range of motion loss was noted after repetitive use. No ligament or meniscus abnormalities were noted. In terms of functional limitation, the examiner noted that the Veteran was unable to run, squat, jump, or climb stairs without pain. His could only walk a half-block; any farther was too painful. In August 2010, the Veteran was seen by his VA orthopedic surgeon. Right knee flexion to 115 degrees with full extension was observed. No laxity or effusion was noted. In September 2010, a VA student outpatient note reflects that the Veteran had flexion to 135 degrees. In July 2012, a consult with the Veteran's orthopedic surgeon revealed right knee active range of motion from 25 to 110 degrees. His surgeon noted the consequences of limited extension of the knee, including additional strain on the lumbar spine. Thereafter, on VA examination in August 2012, the Veteran reported that he had increasing pain and was unable to walk or stand for extended periods. Range of motion testing revealed flexion to 125 degrees, with objective evidence of painful motion at 120 degrees. The examiner noted that the Veteran was unable to fully extend his knee, with extension ending at 10 degrees. Repetitive use resulted in flexion ending at 120 degrees and extension ending at 10 degrees. Joint stability testing was performed with normal results. No history of recurrent patellar subluxation was noted. Likewise, there was no history of meniscal conditions or surgical procedures for a meniscal condition; no evidence of meniscal dislocation, tearing, locking, pain, or effusion were noted. A history of arthroscopic surgery was noted (as discussed above). The Veteran reported using a brace and cane for mobility. He reported taking pain medication and receiving injections. According to a February 2015 VA Knee and Lower Leg Conditions Disability Benefits Questionnaire (DBQ), the Veteran reported limited extension of his right knee. He reported increased pain when walking; knee locking and unlocking; and inability to kneel, climb stairs, climb, and sleep due to pain. Range of motion testing of the right knee revealed flexion to 100 degrees and extension ending at 10 degrees. The Veteran was not able to perform repetitive-use testing due to pain. Additional functional loss was noted on repetitive use and weight-bearing and as a result of weakened movement, incoordination, swelling, instability, and interference with sitting, standing, and running; however, the examiner did not provide an estimate in degrees of such additional loss of motion. Recurrent effusion with prolonged or repetitive movements was noted. Joint stability testing was normal. The examiner noted (contrary to the evidence discussed above) that the Veteran had a history of bilateral knee lateral meniscectomy for lateral meniscus tears in 1991 and 1999; no residual symptoms involving the meniscus were noted. The Veteran reported that he used a right knee brace daily and crutches and a cane during flare-ups. Due to concerns about inconsistencies in prior examination findings, the Board remanded the matter for additional examination in May 2016. On subsequent VA examination, in July 2016, range of motion testing revealed flexion to 60 degrees and extension ending at 10 degrees. Pain was noted through the entire range of motion, including with weight-bearing. Crepitus and pain on palpation of the joint were also noted. The Veteran was able to perform repetitive-use testing. Joint stability tests were normal. No history of recurrent effusion was noted. No history of meniscal conditions was noted; the examiner noted that the Veteran underwent an arthroscopy in 2007 with resulting pain and limitation of motion. In July 2017, the Board remanded the matter again for additional examination to ensure compliance with Correia v. McDonald, 28 Vet. App. 158 (2016) (holding that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing, and, if possible, with range of motion measurements of the opposite undamaged joint). On VA examination in August 2017, the Veteran reported flare-ups of right knee pain characterized by stabbing, burning sensations, aching, locking, and stiffness. Range of motion testing revealed flexion to 90 degrees and extension to zero degrees with additional functional loss caused by pain, weakness, and lack of endurance-the examiner noted that when considering these factors range of motion was reduced to 70 degrees of flexion with full extension. Repetitive-use testing also revealed additional functional loss, with flexion limited to 80 degrees. The examiner estimated that during flare-ups range of motion would be reduced to 60 degrees of flexion with full extension. (The examiner noted that passive range of motion was the same as active range of motion, and that there was objective evidence of pain on nonweight-bearing. Range of motion findings with respect to the left knee were also noted.) Joint stability testing indicated anterior instability in the right knee. The examiner subsequently opined that such instability was "moderate" in degree. The examiner indicated that the Veteran had no history of meniscus conditions. With respect to his prior arthroscopic procedures, residual symptoms of joint locking, weakness, and joint edema were noted. Analysis At the outset, the Board finds that a separate, 20-percent rating is warranted for moderate right knee instability, as documented in the Veteran's August 2017 VA examination report. In short, the August 2017 report clearly indicates anterior instability noted on joint stability testing, which the examiner specifically characterized as "moderate." These findings are consistent with the Veteran's lay reports of instability and a sensation of "giving out" in his right knee. See Layno v. Brown, 6 Vet. App. 465, 469-470 (1993); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). As alluded to above, instability is not a symptom that is contemplated in the rating criteria listed in DC 5261, so a separate rating does not violate the rule against pyramiding. 38 C.F.R. § 4.14. The Board reiterates that DC 5257 provides that knee impairment with recurrent subluxation or lateral instability is rated 10 percent when slight, 20 percent when moderate, and 30 percent when severe. 38 C.F.R. § 4.71(a). In light of the VA examiner's finding of moderate instability, a separate 20-percent rating is appropriate. However, for the following reasons, the Board finds that a rating in excess of 10 percent under DC 5010-5261 is not warranted. In order to warrant a higher, 20-percent rating based on limited extension, the weight of the evidence must show functional limitation of extension to at least 15 degrees. Id. Here, the only documentation of limited extension greater than 10 degrees was the July 2012 VA orthopedic surgeon note which showed extension ending at 25 degrees; however, just one month later, a VA examination revealed extension ending at 10 degrees (including considerations of functional impairment such as painful motion, weakness on repetitive use, and limitations on sitting, standing, and bending), and there has been no subsequent lay or medical evidence reflecting limitation of extension greater than 10 degrees. Indeed, the most recent VA examination report reflects that the Veteran had full extension of the right knee. In sum, the weight of the evidence demonstrates that the Veteran's symptomatology with respect to limitation of extension more nearly approximates functional limitation to no more than 10 degrees. Consequently, a rating in excess of 10 percent under DC 5010-5261 is not warranted. As discussed above, the Board has applied the provisions of 38 C.F.R. §§ 4.40 and 4.45 in the Veteran's favor by finding that the limitation of extension reflected in the VA examination reports represents the extent of his motion loss. See DeLuca, 8 Vet. App. at 204-207. The Board notes that the Veteran's current evaluation, under DC 5010-5261, contemplates both limitation of extension on range of motion testing and reduced motion due to functional impairment-i.e., due to such symptoms as flare-ups, chronic pain, weakness, fatigability, incoordination, swelling, locking, and stiffness, as well as associated interference with sitting, standing, walking, and running. Notably, the most recent VA examination report specifically considered these factors (including loss of motion during flare-ups) in estimating functional limitation of motion. See Sharp v. Shulkin, 29 Vet. App. 26 (2017) (holding that when flare-ups are an indicated part of a claimant's service-connected disability, VA examiners are obligated to elicit information concerning the "severity, frequency, duration, or functional loss manifestations" of such flare-ups). The August 2017 report also noted range of motion findings for both passive and active range of motion, as well as in both weight-bearing and nonweight-bearing and in relation to the opposite joint. These findings comply with the Board's July 2017 remand directives, pursuant to Correia. The Board is aware of the implications of the Court's holding in Lyles that a separate rating under DC 5258 or 5259 would not be prohibited as a matter of law. See Lyles, 2017 U.S. App. Vet. Claims at *2. On review, however, the Board finds that because the Veteran's current, 10-percent rating under DC 5010-5261 contemplates functional motion loss due to, inter alia, locking, chronic pain, and swelling, a separate rating under DC 5258 or 5259 would, under the circumstances of this case, violate the rule against pyramiding. See 38 C.F.R. § 4.14; see also Lyles, 2017 U.S. App. Vet. Claims at *2 (holding that entitlement to a separate evaluation in a given case depends on whether the manifestations of disability for which a separate evaluation is being sought have already been compensated by an assigned evaluation under a different DC). Moreover, the weight of the evidence is against a finding that the Veteran has a meniscus condition, to include recurrent dislocation or removal. While a history of bilateral meniscectomy was noted on the February 2015 DBQ, it appears that was in error, as there is no evidence of such a procedure in the record. The Board further finds that a separate, compensable rating under DC 5260 based on limitation of flexion is not warranted by the evidence of record. In order to warrant a compensable rating based on limited flexion, the weight of the evidence must show functional limitation of flexion to at least 45 degrees. 38 C.F.R. § 4.71(a), DC 5260. Here, there is simply no credible lay or medical evidence reflecting such findings. The examination reports of record demonstrate right knee flexion limited, at worst, to 60 degrees when estimating additional functional loss during flare-ups. See VA Knee and Lower Leg Conditions Examination Report, p. 7 (August 2017). As noted in the August 2017 examination report, these findings specifically contemplate the provisions of 38 C.F.R. §§ 4.40 and 4.45 by factoring in reduced motion due to flare-ups, chronic pain, weakness, fatigability, incoordination, swelling, joint locking, stiffness, and interference with sitting, standing, walking, and running. The Veteran has not described right knee flexion limited to less than 60 degrees. See Layno, 6 Vet. App. at 469-470; Jandreau, 492 F.3d at 1376-77. Finally, the Board notes that there is no evidence of ankylosis of the right knee joint or any impairment of the tibia or fibula of the right leg to warrant consideration of a higher rating under either DC 5256 or 5262. See 38 C.F.R. § 4.71(a). Additionally, while the Veteran has a scar on his right knee that is related to his history of arthroscopic surgeries, he has not claimed entitlement to a compensable rating for this scar, nor is there any credible evidence to suggest that it is tender, painful, unstable, or of a size that would justify a compensable rating. Rather, the relevant VA examination reports reflect that the scar is not painful or unstable and does not have a total area equal to or greater than 39 square centimeters. As such, a compensable rating for right knee post-surgical scarring is not warranted. 38 C.F.R. § 4.118, DCs 7802 and 7804. ORDER Entitlement to a separate, 20-percent disability rating for right knee instability is granted. Entitlement to a rating in excess of 10 percent based on limitation of motion of the right knee is denied. ______________________________________________ YVETTE R. WHITE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs