Citation Nr: 1824944 Decision Date: 04/24/18 Archive Date: 05/03/18 DOCKET NO. 13-18 321 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Evaluation of left knee sprain and ligament injury, post-surgery, with surgical scar, currently rated as noncompensable. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD A. Arnold, Associate Counsel INTRODUCTION The Veteran served on active duty from July 2002 to April 2010. This matter came before the Board of Veterans Appeals (Board) on appeal from a July 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In August 2016 and July 2017, the Board remanded this matter for further evidentiary development. FINDING OF FACT During the period on appeal, the Veteran's left knee disability has been characterized by painful motion with normal range of motion on both flexion and extension. CONCLUSION OF LAW The criteria for a rating of 10 percent for a left knee disability are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5009, 5024 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION With respect to the Veteran's issue on appeal, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Individual disabilities are assigned separate diagnostic codes. See U.S.C. §1155; 38 C.F.R. § 4.1. When there is a question as to which of two evaluations applies, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for the rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. When evaluating disabilities of the musculoskeletal system, functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements must be considered. See 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202 (1995). Consideration must also be given to weakened movement, excess fatigability and incoordination. 38 C.F.R. § 4.45. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, 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 the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Descriptive words, such as "slight," "moderate" and "severe," are not defined in the 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. The use of descriptive terminology by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision. 38 U.S.C. § 7104(a); 38 C.F.R. §§ 4.2, 4.6. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's left knee disability has been assigned a noncompensable rating under DC 5009-5024. The hyphenated DC in this instance indicates that arthritis, other types, under DC 5009 is the service-connected disorder and tenosynovitis under DC 5024 is a residual condition. Disabilities under DC 5009 are rated as rheumatoid arthritis under DC 5002, which directs that residuals such as limitation of motion are to be rated under the appropriate DCs for the joints involved. When limitation of motion of the joints involved is noncompensable under the codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Diseases under DC 5024 are rated on limitation of motion of the affected parts, as arthritis, degenerative under DC 5003. Degenerative arthritis established by x-ray findings is rated on the basis of limitation of motion under the appropriate DC for the specific joint involved. In the alternative, a 10 percent rating is warranted if there is x-ray evidence of involvement of two or more major joints or two or more minor joint groups and a 20 percent evaluation is warranted if there is x-ray evidence of involvement of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, DC 5003. Included within 38 C.F.R. § 4.71a are multiple DCs that evaluate impairment resulting from knee disabilities, including DC 5256 (ankylosis), DC 5257 (other impairment, including recurrent subluxation or lateral instability), DC 5258 (dislocated semilunar cartilage), DC 5259 (symptomatic removal of semilunar cartilage), DC 5260 (limitation of flexion), DC 5261 (limitation of extension), DC 5262 (impairment of the tibia and fibula), and DC 5263 (genu recurvatum). The criteria of DC 5256 pertain to ankylosis. Ankylosis refers to immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Shipwash v. Brown, 8 Vet. App. 218, 221 (1995) (citing DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 91 (27th ed. 1988)). Under DC 5257, a 10 percent rating will be assigned with evidence of slight recurrent subluxation or lateral instability of a knee; a 20 percent rating will be assigned with evidence of moderate recurrent subluxation or lateral instability; and a 30 percent rating will be assigned with evidence of severe recurrent subluxation or lateral instability. Under DC 5258, a 20 percent rating is warranted for dislocation of semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. Under DC 5259, a 10 percent rating is warranted for symptomatic removal of semilunar cartilage. The DCs that focus on limitation of motion of the knee are DCs 5260 and 5261. Normal range of motion of the knee is to zero degrees extension and to 140 degrees flexion. See 38 C.F.R. § 4.71a, Plate II. Under DC 5260, a noncompensable rating will be assigned for limitation of flexion of the leg to 60 degrees; a 10 percent rating will be assigned for limitation of flexion to 45 degrees; a 20 percent rating will be assigned for limitation of flexion to 30 degrees; and a 30 percent rating will be assigned for limitation of flexion to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. Under DC 5261, a noncompensable rating will be assigned for limitation of extension of the leg to 5 degrees; a 10 percent rating will be assigned for limitation of extension of the leg to 10 degrees; a 20 percent rating will be assigned for limitation of extension of the leg to 15 degrees; a 30 percent rating will be assigned for limitation of extension of the leg to 20 degrees; a 40 percent rating will be assigned for limitation of extension of the leg to 30 degrees; and a 50 percent rating will be assigned for limitation of extension of the leg to 45 degrees. 38 C.F.R. § 4.71a, DC 5261. 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, 2017 U.S. App. Vet. Claims LEXIS 1704 (Nov. 29, 2017). The Veteran's VA treatment records document his complaints of left knee pain. August 2012 VA treatment records note that the Veteran reported that he had experienced knee pain since his 2003 injury, but that he had not had treatment since 2004. He reported pain on bending of the knee and stiffness. Nursing notes from August 2012 observe that he was ambulating without difficulty and stated that he had no pain. June 2011 VA treatment records include left knee x-rays, which found no fracture and well-maintained joint spaces. The findings were of a normal left knee. January 2017 VA treatment records also include knee x-rays that showed no displaced fracture or dislocation. March 2017 VA treatment records contain complete bilateral knee x-rays that found no joint space narrowing, no joint effusion, and no significant degenerative change. The clinician noted that it was an unremarkable examination of both knees. A VA examination was provided in June 2011. The examiner noted the Veteran's reports of weakness, stiffness and pain. There was no swelling, heat, giving way, locking, fatigability, tenderness, effusion, subluxation or dislocation. The examiner also noted that there was no incapacitation in the last 12 months. The examiner found normal range of motion (ROM) measurements and noted that the Veteran did not report any incapacitation in last 12 months. A January 2017 VA examination found that the Veteran had normal ROM in both knees and no pain was noted on the examination. There was also no evidence of pain with weight bearing. Crepitus was noted in the left knee. There was no functional loss with repetitive testing. There was no ankylosis or instability, though the examiner noted a history of recurrent effusion, specifically that the left knee swelled with prolonged ascending or descending activity. X-rays showed no evidence of arthritis. There was no evidence of pain on passive testing or in non weight bearing and weight bearing and non weight bearing tests were repeated after at least 5 repetitions. No pain or change in ROM measurements was found. The examiner observed that the Veteran did not voice pain or show objective manifestations of pain during exam. A VA scars examination regarding the Veteran's left knee surgery scar was also conducted in January 2017. The Veteran reported that his scar had healed well. The examiner found that the scar was a linear scar 10 centimeters long, was not painful or unstable, and caused no functional limitations. A VA examination was provided in June 2017. The examiner noted the Veteran's complaints of pain and stiffness in the knee. The Veteran did not report flare ups. The ROM measurements were conducted in both knees and indicated normal flexion and extension from 0 to 140 degrees in both knees. No pain was noted on the examination and there was no evidence of pain with weight bearing. The examiner also stated that there was no evidence of pain on passive ROM testing of either knee and no evidence of pain on non-weight bearing testing of either knee. The examiner noted that the left knee did not have crepitus but have mild tenderness over the patellar tendon and around the patella. The Veteran had full muscle strength on both knees. There was no additional functional loss on repetitive use testing and the examiner found that the Veteran was not additionally limited by pain, weakness, fatigability or incoordination. There was no ankylosis or recurrent subluxation. The examiner conducted stability testing and the results were normal. The examiner also noted that the Veteran has a scar on his left knee, but that there was no evidence that it was painful, unstable or over 6 square inches in size. The examiner also noted that x-rays were obtained and that they showed no evidence of arthritis. The Veteran contends that he is entitled to a higher rating for his knee disability. At the outset, the Board finds that the VA examinations are adequate for appellate review. There is no evidence that the examiners were not competent or credible, and as the reports are based on the Veteran's statements, in-person examination and the examiners' observations, the Board finds they are entitled to significant probative weight with respect to the severity of the Veteran's right knee disability at the time of the examinations. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-05 (2008). The Veteran has submitted statements regarding his left knee pain. In his June 2013 formal appeal, he stated that he had told the examiner that he has tenderness in his knee and that extending under any weight, even just shoes, causes pain in the knee. He also reported that he has pain when jumping, kneeling and walking down slopes and that swelling occurs after periods of standing and after distances of walking and running. He further stated that areas near his scar are tender and painful when pushed or pressured. The Board notes that the Veteran is competent to report lay observable symptoms such as pain and accords his statements significant probative weight. The Board finds that a rating of 10 percent, but no higher, is warranted based on painful motion, tenderness and swelling. As noted above, the ROM testing in the VA examinations showed normal movement in both the left and right knee and the examiners did not note pain on examination. However, the Board notes that the Veteran has consistently reported left knee pain and functional limitations due to that pain throughout the period on appeal. In addition, while the June 2017 examiner did not note pain on examination, he did note tenderness of the patella and the associated tendons, consistent with the Veteran's statements of knee tenderness. Moreover, the Board notes the Veteran's reports of functional loss due to knee pain, which include an inability to kneel and difficulty with prolonged sitting and walking, which were also noted in the June 2017 VA examination. As the Veteran has consistently reported that he has functional impairments due to his left knee pain and swelling, and his reports of swelling, as well as tenderness in the patella and tendons, crepitus and effusion, have been objectively confirmed by the medical evidence of record, a rating of 10 percent for limitation of motion is warranted under DC 5009-5024. 38 C.F.R. § 4.71a, DC 5009, 5024. This is the highest rating available under the DCs for residuals such as limitation of motion that are noncompensable under the specific diagnostic codes for the joints involved. 38 C.F.R. § 4.71a, DC 5002, 5003. The Board has considered whether a rating is warranted under DC 5260, limitation of flexion, or under 5261, limitation of extension. However, the evidence does not show limited ROM on either flexion or extension at any point during the period on appeal. In fact, all testing during the period has shown normal ROM on flexion and extension. Ratings under DC 5260 and 5261 are therefore not warranted. The Board acknowledges that a separate rating may be warranted for symptoms such as effusion and crepitus. See Lyles, supra. In this regard, the Veteran has reported left knee swelling after periods of standing, walking and running. The Board also notes that reports of swelling were noted by the January 2017 VA examiner, who noted swelling after ascending and descending. That examiner also confirmed effusion and crepitus. The Board has considered a separate rating under DC 5258, but the evidence does not show that the Veteran had dislocated semilunar cartilage at any point during the period on appeal, so rating under this DC is not warranted. A rating is also not warranted under DC 5259 for symptomatic removal of semilunar cartilage, as the evidence does not show that the Veteran has had such a procedure. Moreover, the reported symptoms of effusion and crepitus were restricted to a single VA examination and were not otherwise consistently noted on the record. Further, there is no evidence of ankylosis, impairment of tibia and fibula, or genu recurvatum; therefore, separate ratings under DCs 5256, 5262, and 5263 are not warranted. The Board has also considered whether a separate rating for the Veteran's left knee surgery scar is warranted. However, as the objective evidence indicates that the scar is linear, under six square inches in size and not unstable or painful, and the Veteran has already been compensated for tenderness in his left knee in the rating assigned above, a compensable rating is not warranted. 38 C.F.R. §§ 4.14, 4.118, DC 7804, 7805. In reaching those conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. As the preponderance of the evidence is against evaluations other than, or in excess of, those described above, that doctrine is not applicable here. 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102 (2017); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). ORDER An initial rating of 10 percent, but no higher, for left knee sprain and ligament injury, post-surgery, with surgical scar is granted, subject to the law and regulations governing payment of monetary benefits. ____________________________________________ E. I. VELEZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs