Citation Nr: 1817210 Decision Date: 03/20/18 Archive Date: 03/30/18 DOCKET NO. 10-39 699 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES Entitlement to a rating in excess of 10 percent prior to June 13, 2014, and in excess of 20 percent from June 13, 2014 to the present day for a service-connected left knee disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Giaquinto, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from November 1989 to July 1993. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, in which the RO denied the Veteran's claim of entitlement to an increased rating in excess of 10 percent for his service-connected left knee disability. Jurisdiction over the case has since been transferred to the RO in Atlanta, Georgia. In September 2014, the Appeals Management Center (AMC) granted an increased rating of 20 percent from June 13, 2014. As this does not represent a full grant of benefits sought, the Board retains jurisdiction over the claim. FINDINGS OF FACT 1. Prior to June 13, 2014, the Veteran's left knee disability was manifested by noncompensable limitation of motion with objective evidence of painful motion. In addition, the Veteran's left knee showed indications of slight lateral instability, but no effusion. 2. Since June 13, 2014, the Veteran's knee disability has been manifested by a meniscal condition with frequent episodes of locking, pain, and effusion. In addition, the Veteran's left knee showed indications of slight lateral instability. CONCLUSIONS OF LAW 1. Prior to June 13, 2014, the criteria for the assignment of a rating greater than the currently-assigned 10 percent for left knee injury and surgery residuals are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.59, 4.71a, Diagnostic Code 5260 (2017). 2. From June 13, 2014 to the present day, the criteria for a rating greater than the currently-assigned 20 percent for left knee traumatic arthropathy with meniscus (semilunar cartilage) condition, are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.71a, Diagnostic Code 5258 (2017). 3. For the entire period under review, the criteria for a separate 10 percent rating for left knee instability are met. 38 U.S.C. §§ 1155, 5107 (202); 38 C.F.R. §§ 3.321(b), 4.1, 4.2, 4.7, 4.10, 4.71a, Diagnostic Code 5257 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Pertinent Law and Regulations Disability evaluations are determined by the application of the facts presented to the VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Where an increase in the level of a disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disabilities. 38 C.F.R. § 4.14. Generally, separate disability 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. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Court has also held that within a particular diagnostic code, a claimant is not entitled to more than one disability rating for a single disability unless the regulation expressly provides otherwise. Cullen v. Shinseki, 24 Vet. App. 74 (2010). The evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). Knee disabilities are unique in the rating code, as they are one of a few orthopedic disabilities in which a Veteran may receive multiple ratings based on separate symptoms in the same joint. While the law generally prevents considering the same symptoms under various diagnoses to support separate ratings, some of the relevant Diagnostic Codes for the knee have been interpreted to apply to different functions of the knee, therefore warranting separate consideration. Specifically, the evidence may warrant separate ratings for limitation of flexion of the knee, limitation of extension of the knee, and lateral instability and recurrent subluxation of the knee. Under Diagnostic Code 5257, 10, 20, and 30 percent ratings are warranted for slight, moderate, or severe recurrent subluxation or lateral instability, respectively. Under Diagnostic Code 5258, a maximum 20 percent rating is warranted for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. Diagnostic Code 5259 holds that symptoms due to the removal of the semilunar cartilage of either knee warrant a 10 percent rating, which is the maximum rating under that diagnostic code. Diagnostic Code 5260 rates based on limitation of flexion, and provides for a noncompensable rating where flexion is limited to 60 degrees; a 10 percent rating where flexion is limited to 45 degrees; a 20 percent rating is warranted where flexion is limited to 30 degrees; and a 30 percent rating is warranted where flexion is limited to 15 degrees. Under Diagnostic Code 5261, a 10 percent rating requires extension limited to 10 degrees. A 20 percent rating is warranted where extension is limited to 15 degrees and a 30 percent rating is warranted where extension limited to 20 degrees. For a 40 percent rating, extension must be limited to 30 degrees. And finally, where extension is limited to 45 degrees a 50 percent rating may be assigned. The diagnostic criteria applicable to impairment of the tibia and fibula are found at 38 C.F.R. § 4.71a, Diagnostic Code 5262. Under that code, a 10 percent evaluation is warranted when malunion of the tibia and fibula is productive of slight knee or ankle disability. A 20 percent evaluation is warranted when malunion of the tibia and fibula is productive of moderate knee or ankle disability, and a 30 percent evaluation is warranted when such disability is marked. A 40 percent evaluation is warranted for nonunion of the tibia and fibula, with loose motion, requiring a brace. Diagnostic Code 5263 is the rating code for genu recurvatum. Genu recurvatum is a deformity in the knee in which the knee bends backwards. Normal range of knee motion is 140 degrees of flexion and zero degrees of extension. 38 C.F.R. § 4.71, Plate II. Relevant Evidence The Veteran was granted service connection for residuals of a left knee injury at a 10 percent rating in September 1994, under Diagnostic Code 5257 for impairment of the knee due to lateral instability. He filed the present claim for an increased rating in April 2009. In the August 2009 rating decision currently on appeal, the RO continued the 10 percent rating, but changed the Diagnostic Code to 5299-5260 based on noncompensable limitation of flexion of the knee with objective evidence of painful motion. Although the RO noted that two separate 10 percent evaluations may be assigned if there is evidence of slight instability or subluxation in the knee together with arthritic changes which cause any limited or painful knee motion, the RO did not award separate ratings in that decision. The Veteran disagreed and perfected this appeal. During the appeal period, the RO recharacterized the Veteran's service-connected disability as left knee traumatic arthropathy with meniscus (semilunar cartilage) condition, and awarded a 20 percent rating under Diagnostic Code 5003-5258. The Board's analysis will include consideration of all codes specific to rating knee disabilities below. In May 2009, the Veteran underwent a VA examination. At that time, he stated that he had moderate to severe sharp pain, swelling, popping, weakness, and giving out of the left knee on a daily basis. He reported that he had flare-ups of the left knee during cold and rainy weather, but that there was no additional functional impairment. The examiner reported evidence of pain, weakness, incoordination, and giving way. There were no episodes of dislocation or subluxation, but there was evidence of instability. There were repeated effusions, but no reported locking episodes. Flexion was limited to 125 degrees, with normal extension. There was objective evidence of pain with active motion, but no additional limitation of motion after repetitions. VA and private medical records show that the Veteran was treated regularly for left knee pain subsequent to the May 2009 examination. In June 2014, the Veteran underwent another VA examination. The examination showed a diagnosis of degenerative arthritis and traumatic arthropathy with a meniscus condition. The examiner reported that flexion of the left knee was limited to 100 degrees with normal extension. The examiner noted painful motion began with flexion at 80 degrees. After three repetitions, flexion was limited to 90 degrees. The examiner indicated that there was functional loss due to pain on movement, swelling, instability of station, disturbance of locomotion, and interference with sitting. There was pain on palpation and objective evidence of slight medial lateral instability. The examiner also reported that the diagnosed meniscus condition manifested in frequent episodes of locking and joint pain. The Veteran reported flare-ups once a week after using the left knee more and that, during those flare-ups, he had more pain and would have to stay off the knee for several hours. The examination revealed a scar due to previous left knee surgery, but found that it had a total area less than 39 square centimeters. The Veteran underwent an additional VA examination in November 2016. There, the Veteran reported flare-ups that resulted in swelling and throbbing pain that caused difficulty sleeping. Range of motion testing showed that flexion was limited to 80 degrees, with normal extension. The examiner noted that range of motion itself contributed to functional loss due to decreased knee flexibility and that there was additional functional loss due to pain on both flexion and extension. There was also evidence of pain on passive range of motion testing and when the joint was used in non-weight bearing. There was objective evidence of slight localized tenderness around the patella and no objective evidence of crepitus. The examiner reported that there was functional loss due to pain, weakness, and lack of endurance with repeated use over time and with flare-ups, but that he was unable to describe the losses in terms of range of motion without direct observation. Testing revealed slight medial instability and the examiner reported a meniscus condition manifested by frequent episodes of joint locking, pain, and effusion, as well as residual pain, swelling, and instability due to a prior meniscectomy. The previously noted scar continued to total less than 39 square centimeters in area. Subsequent to the Board's last remand, the Veteran underwent an additional VA examination in August 2017. There, the Veteran reported that flare-ups of the left knee resulted in swelling and pain and required steroid injections every three months. The examiner noted that the Veteran was experiencing a left knee flare-up at the time of examination, allowing for an objective evaluation of the resulting functional loss and satisfying the requirements set out in Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Range of motion testing showed flexion limited to 90 degrees and extension limited to 5 degrees during flare-ups. The examiner reported that the range of motion itself did not contribute to functional loss, but that there was functional loss due to pain on flexion and extension that manifested in difficulty with prolonged walking or standing. The examiner reported no additional functional loss with repetitive use testing and that pain, weakness, fatigability, and incoordination did not significantly limit functional ability with repeated use over a period of time. There was evidence of pain on weight bearing, but no evidence of pain when the left knee was used in non-weight bearing. There was evidence of pain on passive range of motion testing. There was no objective evidence of localized tenderness or pain on palpation and no objective evidence of crepitus. Joint stability testing was positive for slight lateral joint instability and the examiner noted that the Veteran's meniscal condition manifested in frequent episodes of locking, pain and effusion. Analysis As was noted above, all disabilities, including those arising from a single disease entity, are rated separately, provided that doing so does not result in pyramiding. During the period on appeal, the Veteran left knee condition has been manifested by three distinct disabilities, represented by several different Diagnostic Codes. He has had noncompensable limitation of flexion and extension, evaluated under Diagnostic Codes 5260 and 5261. He has had recurrent slight lateral instability, evaluated under Diagnostic Code 5257. And he has had a meniscus condition, also referred to as semilunar cartilage dislocation, with frequent episodes of locking, pain, and effusion, evaluated under Diagnostic Code 5258. See 38 C.F.R. § 4.71a. At issue in the evaluation of the rating is whether these disabilities may all be rated separately, or whether the aforementioned Diagnostic Codes contemplate overlapping symptoms. VA has determined that a separate rating may be assigned for lateral instability and for limitation of range of motion without causing pyramiding. See VAOPGCPREC 23-97, 9-98. Likewise, the Court has ruled that an evaluation of a meniscal condition under Diagnostic Code 5258 does not preclude a separate evaluation for subluxation or lateral instability under Diagnostic Code 5257. Lyles v. Shulkin, No. 16-0994, 2017 U.S. App. Vet. Claims LEXIS 1704, at 1 (Vet. App. Nov. 29, 2017). When considering whether an evaluation for a meniscal condition and an evaluation for limitation of motion under either Diagnostic Code 5260 or 5261 would result in pyramiding, the Board must consider the symptoms being rated under these codes. Diagnostic Code 5258 contemplates functional loss due to pain; therefore, if the Board has evaluated a disability of limitation of motion, to include as due to painful motion, separate evaluations under Diagnostic Codes 5258 and either 5260 or 5261 would constitute pyramiding. If the Board's evaluation of limitation of motion is solely based on measured range of motion and does not consider functional loss due to pain, then the Board must consider separate evaluations. Id. Ratings Prior to June 13, 2014 The Veteran was first granted service connection for his left knee disability in April 1994 with a 10 percent rating under Diagnostic Code 5257. In the August 2009 rating decision currently on appeal, the RO continued the 10 percent rating, but instead evaluated the disability under Diagnostic Code 5260 for noncompensable limitation of flexion with painful motion. The Veteran's May 2009 VA examination showed flexion limited to 125 degrees. That measurement itself does not afford a compensable rating, but a 10 percent rating under Diagnostic Code 5260 was appropriate based on the provisions of 38 C.F.R. § 4.59. The Board notes that the May 2009 examiner also noted in a summary of joint symptoms that the Veteran had a history of left knee instability. Upon examination though, the examiner noted in a summary of joint findings that the Veteran did not have instability. The examiner nevertheless indicated that the Veteran intermittently used a brace. Although instability was not demonstrated on examination, the Board will resolve all doubt in the Veteran's favor and find that slight instability is demonstrated through the examiner's recognition of a history of instability with use of a brace in the her symptoms summary. Accordingly, it is appropriate to award the Veteran a separate 10 percent rating under Diagnostic Code 5257 for all times since the Veteran filed his claim for increase. The Board adds that a third compensable rating under Diagnostic Code 5258 prior to June 13, 2014 is not warranted, as the evidence specifies that the Veteran had "no definite suprapatellar effusion" of the left knee. See the May 2009 VA examiner's report. Indeed, the Veteran's symptoms of knee pain on motion are contemplated in the 10 percent in effect, under the provisions of 38 C.F.R. § 4.59. No additional functional loss identified during this time period, to include during flare-ups, demonstrates that the Veteran's disability manifested to a degree warranting a higher schedular rating based on limitation of motion. Indeed, In May 2009, the Veteran reported flare-ups of the left knee during cold and rainy weather, but that there was no additional functional impairment identified. Ratings Since June 13, 2014 At the June 13, 2014 VA examination, the examiner noted a meniscus condition of the left knee, which was manifested by frequent episodes of locking, pain, and effusion. Such symptoms warrant a 20 percent rating under Diagnostic Code 5258. As noted above, the Veteran's left knee prior to this point had been rated for noncompensable limitation of flexion with painful motion under Diagnostic Code 5260 and instability of the knee under 5257. Crucially, the June 2014 examination-and all subsequent examinations-have shown the Veteran continues to have noncompensable limitation of flexion and/or extension with objective evidence of painful motion. Under 38 C.F.R. § 4.59, evidence of painful motion of a joint is to be rated at 10 percent disabling. In this case, the Board finds the 20 percent rating under 5258 recognizes and compensates the Veteran's painful motion. To provide a separate rating under 38 C.F.R. § 4.59 based on painful motion would be to provide two different awards for the same symptoms. Accordingly, under 38 C.F.R. § 4.7, the higher disability rating should be applied. This means that from June 13, 2014, the Veteran should be awarded a rating of 20 percent under Diagnostic Code 5258 and should not be rated under Diagnostic Code 5260 or Diagnostic Code 5261. In addition, however, VA examinations have continued to document evidence of lateral instability of the left knee that is slight. See the June 2014, November 2016 and August 2017 VA examination reports (identifying no more than "slight" instability upon examination and testing). As separate ratings under Diagnostic Codes 5258 and 5257 do not constitute pyramiding, the Veteran should continue to be awarded a separate rating under Diagnostic Code 5257 for lateral instability from June 13, 2014 as well. In evaluating the Veteran's claim, the Board recognizes the Veteran has experienced flare-ups of the left knee. Crucially, the August 2017 VA examination took place during a flare-up. Although additional functional loss was identified by the examiner, such loss does not reach the level of severity warranting a higher rating based on Deluca factors, as range of motion testing during a flare showed limitation to only 90 degrees of flexion and 5 degrees of extension, both would still equate to a noncompensable limitation of flexion or extension of the knee under the range of motion diagnostic codes. The preponderance of the evidence is against a finding of any other compensable disabilities of the left knee. Throughout the entire appeal period, ankylosis of the knee is not shown, nor is tibia and fibular impairment, or genu recurvatum. Thus, additional compensable ratings are not available. (CONTINUED ON NEXT PAGE) ORDER Prior to June 13, 2014, entitlement to a rating greater than the currently-assigned 10 percent for left knee injury and surgery residuals, is denied. From June 13, 2014, entitlement to a rating greater than the currently-assigned 20 percent for left knee traumatic arthropathy with meniscus (semilunar cartilage) condition, is denied. For the entire period under review, entitlement to a separate compensable 10 percent rating for left knee instability is granted. ____________________________________________ V. Chiappetta Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs