Citation Nr: 19160271 Decision Date: 08/02/19 Archive Date: 08/02/19 DOCKET NO. 0945896 DATE: August 2, 2019 ORDER An initial rating of 20 percent for residuals of internal derangement of the right knee from March 30, 2009, is granted. An initial 10 percent disability rating for right knee instability from March 30, 2009, is granted. FINDING OF FACT For the appeal period prior to November 1, 2011, the Veteran’s right knee disability was manifested by meniscal tear with episodes of locking, pain, and joint effusion, as well as slight instability. CONCLUSIONS OF LAW 1. The criteria for a maximum rating of 20 percent for dislocated semilunar cartilage with locking, pain, and effusion into the joint of the right knee for the appeal period from March 30, 2009, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.14, 4.71a, Diagnostic Code 5258. 2. The criteria for entitlement to a separate disability rating of 10 percent, but no higher, for instability of the right knee for the appeal period from March 30, 2009, have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. Part 4, including §§ 4.7, 4.71(a), Diagnostic Code 5257. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from September 2000 to February 2001 and from February 2003 to July 2003. At a June 2011 hearing, the Veteran testified before a Veterans Law Judge who is no longer employed at the Board. An additional hearing was conducted in March 2019 by the undersigned Veterans Law Judge. This matter is on appeal from a May 2009 rating decision. In May 2014, the Board denied entitlement to an initial rating in excess of 10 percent for service-connected internal derangement of the right knee prior to November 1, 2011, and a rating in excess of 20 percent thereafter. The Veteran subsequently appealed the Board’s May 2014 decision to the Court of Appeals for Veterans Claims (Court). In an October 2015 Memorandum Decision and Order, the Court vacated and remanded the part of the Board’s decision that denied a rating in excess of 10 percent for the right knee prior to November 1, 2011, and dismissed the part of the Board’s decision that assigned a 20 percent rating for the period from November 1, 2011, forward. 1. An initial rating of 20 percent for residuals of internal derangement of the right knee prior to November 1, 2011 Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). 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 Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45 (2016); DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). Further, in claims for higher ratings for musculoskeletal disabilities, where the Veteran has a noncompensable rating and complains of pain on motion, he may be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Id. 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. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, 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 conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran’s service-connected right knee disability is currently evaluated under the provisions of 38 C.F.R. § Diagnostic Code 5258-5260. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. The diagnostic codes assigned for the service-connected cartilage disability, the first four digits, 5258 in this case, represent the diagnostic code for rating dislocated semilunar cartilage, while the second four digits, 5260 in this case, represent the diagnostic code used to rate limitation of motion of the knee, or more specifically to rate flexion of the leg. Under Diagnostic Code 5258, a 20 percent evaluation can be assigned for cartilage, semilunar, dislocated, with frequent episodes of “locking,” pain, and effusion into the joint. 38 C.F.R. § 4.71a, Diagnostic Code 5258. Limitation of motion of the knee is evaluated under Diagnostic Codes 5260 and 5261. Under Diagnostic Code 5260, a 10 percent rating is warranted for flexion limited to 45 degrees, a 20 percent rating is warranted for flexion limited to 30 degrees, and a 30 percent rating is warranted for flexion limited to 15 degrees. Under Diagnostic Code 5261, a 10 percent rating is warranted for extension limited to 10 degrees, a 20 percent rating is warranted for extension limited to 15 degrees, a 30 percent rating is warranted for extension limited to 20 degrees, a 40 percent rating is warranted for extension limited to 30 degrees, and a 50 percent rating is warranted for extension limited to 45 degrees. 38 C.F.R. § 4.71a, Plate II, indicates that normal flexion of the knee is 140 degrees and normal extension of the knee is zero degrees. Separate ratings for knee disabilities may be assigned for disability of the same joint, if none of the symptomatology on which each rating is based is duplicative or overlapping. See VAOPGCPREC 9-04 (2004); 69 Fed. Reg. 59,990 (2004); 38 C.F.R. § 4.14. Evaluations for knee impairment can also be assigned due to ankylosis, removal of semilunar cartilage, nonunion or malunion of the tibia and fibula, or genu recurvatum, but as the Veteran has not at any time been found to have ankylosis of the right knee, removal of the semilunar cartilage, nonunion or malunion of the tibia and fibula, or genu recurvatum, these diagnostic codes are not applicable and will not be further discussed. See 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5259, 5662, 5263. Recurrent subluxation or lateral instability can be rated as slight (10 percent), moderate (20 percent), or severe (30 percent). 38 C.F.R. § 4.71a, Diagnostic Code 5257. In a March 2009 VA treatment report, the Veteran reported that he injured his knee during hand to hand combat training while he was on active duty service. Specifically, he reported that he injured his right knee as a result of a twisting injury and ultimately tore his right anterior cruciate ligament (ACL) and relocated his knee cap. He reported his knee felt wobbly, but not weaker. A brace made him feel more secure. He reported that pain in his knee was aggravated by walking long distances, cold weather, and driving for extended periods of time. The treating provider noted that the Veteran demonstrated physical signs of attenuated, if not a torn anterior cruciate ligament, and chondromalacia patella. The Veteran was afforded a VA examination in April 2009. The examiner noted that the Veteran walked from the waiting room to the examining room with a visible knee brace, minimal limp, and good posture. The examiner further noted that the Veteran transferred from the chair to the examination table without any difficulty. Upon examination, visible swelling of the right knee was noted, with no palpable fluid. The examiner noted that the Veteran’s knee could be fully extended four times, with no pain, weakness, fatigue, or lack of endurance. With a two-pound weight used for repetitive use testing, the Veteran’s knee was fully extended three times with no pain, weakness, fatigue or lack of endurance. Additionally, the examiner noted that the Veteran’s knee fully flexed from 0-140 degrees four times with no pain, weakness, fatigue, or lack of endurance. The examiner also noted that the Veteran’s medial and collateral ligaments, as well as his anterior and posterior cruciate ligaments were tight. Finally, the examiner noted that there was good strength to resistant flexion, and good strength to resistant extension of his knee. The examiner opined that upon clinical examination, the Veteran’s knee appeared to be stable. The examiner stated that the Veteran’s right knee did not affect his activities of daily living and there was no increase in pain on any repetitive movements and no history of any flare-ups. The examiner diagnosed internal derangement of the knee. In a May 2009 VA treatment record, the Veteran reported pain, a Baker’s cyst, and that he had fallen within the last six months. Physical examination revealed limited range of motion to no more than 70 degrees, swelling, and no obvious effusion. July 2009 magnetic resonance imaging (MRI) of the Veteran’s knee revealed anterior and posterior cruciate ligaments were intact; medial collateral ligament, lateral collateral complex, and medial meniscus were intact; extensor mechanism was within normal limits; bone marrow signal was within normal limits; articular cartilage was normal in all three compartments; joint effusion was small; and visualized muscles were grossly unremarkable. An impression of “vertical tear in the midportion of anterior horn medial meniscus, extending to the superior and inferior articular surfaces” and a “small amount of joint effusion” was noted. In August 2009, the Veteran presented to a VA facility with complaints of right knee pain. He reported a dull achy pain in his knees and that his knee was unstable without a brace and buckled. He also reported that his knees were sore after prolonged sitting or standing. Upon examination, the treating provider noted that the Veteran’s knees were symmetrical, without deformity, swelling, crepitus, effusion, erythema, joint laxity or tenderness. In June 2011, the Veteran testified at a Board hearing as to the severity of his service-connected right knee disability. The Veteran testified that the symptomatology associated with his right knee disability included reduced range of motion, with pain on attempting to reach full range of motion, and symptoms of instability in his right knee. The Veteran stated that his treating physicians had recommended surgical procedures and several pain medications in order to treat his right knee disability. However, due to his age and witnessing other people undergo similar treatment with poor results, he opted to not undergo certain treatment methods. He stated that he was currently not working but was in the process of going back to college. He also reported that his prior employer allowed him to work under special accommodations due to his disabilities. The Veteran also testified as the onset of his disability. Specifically, he reported that he suffered a twisting injury during hand to hand combat training, in which his foot stayed planted and his upper body twisted. The Veteran was afforded a VA examination of his knees in November 2011. The examiner noted that the Veteran had a history of right knee pain, with frequent episodes of “locking,” pain, and effusion into the joint. The examiner also noted that the Veteran exhibited no fractures, no significant degenerative changes, and no large joint effusion. It was also noted that the Veteran occasionally used assistive devices, such as braces and canes. Upon physical examination of the Veteran’s right knee, the examiner noted that flexion ended at 120 degrees with no objective evidence of painful motion, and the Veteran exhibited no limitation of extension. Finally, the examiner noted that the Veteran was unable to drive for over fifty minutes and was unable to stand for long periods of time. The examiner noted that the Veteran did not exhibit any functional loss and/or functional impairment of the knee and lower leg. Finally, the examiner noted that after extensive testing, there was no objective evidence of anterior instability; posterior instability; medial-lateral instability; or patellar subluxation/dislocation. The examiner rendered an impression of “negative right knee.” After a review of all the evidence of record, the Board finds that, for the initial rating period on appeal prior to November 1, 2011, the right knee disability has been manifested by dislocation of the semilunar cartilage with frequent episodes of “locking,” pain, and painful, noncompensable, limitation of motion, without arthritis, ankylosis, recurrent subluxation, removal of the semilunar cartilage, nonunion or malunion of the tibia and fibula, or genu recurvatum. As such, the Board finds that a 20 percent rating under Diagnostic Code 5258 for dislocated semilunar cartilage is warranted. The Board observes that a 20 percent rating can be assigned throughout the appeal period for cartilage impairment of the right knee under Code 5258. 38 C.F.R. § 4.71a, Code 5258. In March 2009, the use of a brace, pain, and an attenuated or torn ACL were noted. While locking was not specifically described, the use of his brace was noted to prevent pain and increase stability with the right knee. Further, while effusion was not noted in March 2009, the July 2009 MRI was the first diagnostic testing done following his complaints and found a meniscus tear and small joint effusion. The November 2011 VA examiner noted that the Veteran had a right knee meniscal tear and experienced frequent right knee episodes of joint pain, locking, and effusion. Giving the Veteran the benefit of the doubt and given the description of frequent episodes of joint locking, pain, and effusion, the Board finds that these symptoms did not begin at the time of the November 2011 VA examination, but were alluded to as early as March 2009. As the Veteran’s meniscus condition demonstrated symptoms of locking, pain, and effusion, a 20 percent rating can be assigned throughout the appeal period. 38 C.F.R. § 4.71a, Code 5258. With respect to limitation of motion, assigning separate ratings under both Diagnostic Codes 5260 and 5258 would constitute pyramiding; both Diagnostic Codes 5260 and 5258 overlap in symptoms or findings of pain and limitation of motion (of which “locking” is a form), including limitation of motion due to pain, thus, assigning separate ratings under both would violate the prohibition against pyramiding because it would compensate the Veteran twice for the same symptomatology, here, painful limitation of motion. 38 C.F.R. § 4.14; Esteban at 261. For these reasons, the Veteran is not entitled to separate disability ratings under both Diagnostic Codes 5258 and 5260 for the painful limitation of motion associated with the right knee disability. In addition, other than decreased, painful motion, there is no lay or medical evidence of additional functional loss or impairment throughout the initial appeal period upon usage of the right knee. In this regard, the Veteran has reported pain that limits his ability to stand, walk, or drive long distances. However, the other objective evidence of record, including the April 2009 VA examination report, does not contain evidence of additional functional limitation due to fatigability, weakness, lack of endurance, or incoordination. Additionally, the Board finds that any additional functional impairment experienced by the Veteran, including during flare-ups, is contemplated by the disability ratings currently assigned to his right knee disability. Indeed, the Board finds that the increased pain, as well as the difficulty standing, walking, and driving long for prolonged periods of time, is adequately compensated by the rating currently assigned for painful, limited motion caused by his right knee meniscus disability. Therefore, the Board finds that an increased rating is not warranted based on application of 38 C.F.R. §§ 4.40 and 4.45, DeLuca, supra, or Burton, supra. With respect to subluxation and instability, the evidence shows the Veteran has variously reported continued, yet occasional instability. See VA treatment records dated March 2009 and May 2009; see also November 2011 VA examination and June 2011 Board Hearing. Additionally, the evidence shows that, since April 2009, the Veteran has used a brace on his right knee. Nevertheless, the objective evidence has varied regarding the nature and severity of instability throughout the appeal. In March 2009, the treating physician noted apprehension during the laxity testing, but did not actually report any laxity issues. In the April 2009 and November 2011 VA examinations there was no objective evidence of joint or ligamentous instability, as all stability tests were normal. However, in May 2009 and August 2011 VA treatment records it was noted the Veteran had fallen within the last six months and that his knee would buckle and give way. Further, while the November 2011 VA examiner noted the stability tests were normal, the examiner also indicated that there was instability of station. While the Veteran’s right knee instability has varied throughout the appeal, the Board finds that, given the consistent, subjective reports of instability and buckling, occasional evidence of ligamentous or joint instability, and the Veteran’s consistent use of a right knee brace, the Board finds that the Veteran’s right knee laxity and instability more nearly approximate a slight disability, which warrants a 10 percent rating under Diagnostic Code 5257. A rating higher than 10 percent is not warranted, however, because moderate instability or laxity in the right knee is not shown in the preponderance of the evidence. Indeed, as noted, in April 2009 and, more recently in November 2011, there was no objective evidence of joint or ligamentous instability, as all stability tests were normal. Therefore, the Board finds that the Veteran’s right knee instability is no more than slight and, as such, warrants no more than a 10 percent rating for right knee disability under Diagnostic Code 5257. In evaluating all periods on appeal, the Board has considered the Veteran’s lay statements regarding the functional impact of his right knee disability. The Veteran is competent to report his own observations with regard to the severity of his right knee disability, including reports of pain, swelling, and limited mobility. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board finds his statements to be credible and consistent with the rating assigned. To the extent he argues that his symptomatology is more severe, his statements must be weighed against the other evidence of record. Here, the specific examination findings of trained health care professionals are of greater probative weight than the Veteran’s more general lay assertions. An initial rating of 20 percent, but no higher, for cartilage impairment for the appeal period prior to November 1, 2011, as well as a separate rating of 10 percent, but no higher, for slight instability of the right knee is warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against finding for any higher ratings than those now assigned, that doctrine is not applicable. 38 U.S.C. § 5107(b); See, e.g., Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Extraschedular Referral Consideration The Board had also considered whether an extraschedular rating is warranted for the service-connected right knee disability. Ratings shall be based as far as practicable upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular ratings are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extraschedular rating commensurate with the average earning capacity impairment due exclusively to the service connected disability or disabilities. The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). The Court has clarified that there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. Initially, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability are inadequate. Second, if the schedular rating does not contemplate the veteran’s level of disability and symptomatology and is found inadequate, the Board must determine whether the veteran’s disability picture exhibits other related factors such as those provided by the regulation as “governing norms.” Third, if the rating schedule is inadequate to evaluate a veteran’s disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran’s disability picture requires the assignment of an extraschedular rating. Thun v. Peake, 22 Vet. App. 111 (2008). With respect to the first prong of Thun, the Veteran’s right knee disability has been manifested by pain, giving way, painful limitation of motion, crepitation, occasional swelling, and tenderness. The schedular rating criteria specifically contemplate such symptomatology and functional impairment. 38 C.F.R. § 4.71a, Diagnostic Codes 5057, 5258, 5260, 5261; DeLuca, 8 Vet. App. 202. Further, any functional limitations imposed by the Veteran’s right knee disability, which here includes right knee pain with prolonged standing, walking, or driving, and such pain is considered as part of the schedular rating criteria, to include as due to orthopedic DeLuca and 38 C.F.R. §§ 4.40, 4.45, 4.59 factors such as weakness or weakened movement, incoordination, and fatigability, which are incorporated into the schedular rating criteria as applied to the particular diagnostic code. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991) (read together with schedular rating criteria, 38 C.F.R. §§ 4.40 and 4.45 recognize functional loss due to pain); Burton v. Shinseki, 25 Vet. App. 1, 4 (2011) (the majority of 38 C.F.R. § 4.59, which is a schedular consideration rather than an extraschedular consideration, provides guidance for noting, evaluating, and rating joint pain); Sowers v. McDonald, 27 Vet. App. 472 (2016) (38 C.F.R. § 4.59 is limited by the diagnostic code applicable to the claimant’s disability, and is read in conjunction with, and subject to, the relevant diagnostic code); Mitchell v. Shinseki, 25 Vet. App. 32, 33-36 (2011) (pain alone does not constitute functional impairment under VA regulations, and the rating schedule contains several provisions, such as 38 C.F.R. §§ 4.40, 4.45, 4.59, that address functional loss in the musculoskeletal system as a result of pain and other orthopedic factors when applied to schedular rating criteria). Therefore, the effects of the Veteran’s right knee pain and associated limitations on occupational and daily life are specifically contemplated by the schedular criteria. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C. § 1155. “Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.” 38 C.F.R. § 4.1. In this case, the problems reported by the Veteran are specifically contemplated by the criteria discussed above, including the functional limitations and the effects on daily life. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kelly A. Gastoukian, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.