Citation Nr: 20007404 Decision Date: 01/30/20 Archive Date: 01/29/20 DOCKET NO. 15-01 391 DATE: January 30, 2020 ORDER Entitlement to a rating in excess of 10 percent for left knee disability under Diagnostic Code (DC) 5299-5257 is denied, a 20 percent under DC 5258 is granted, and a 10 percent rating for painful motion under 38 C.F.R. § 4.59 is granted. FINDINGS OF FACT 1. The 10 percent rating under DC 5299-5257 since August 1990 is protected under 38 C.F.R. § 3.951(b). 2. During the course of the appeal, the Veteran’s left knee disability has been manifested by meniscus tear with frequent episodes of pain and locking and recurrent effusion which warrants a 20 percent rating under DC 5258. 3. The Veteran’s left knee disability has been manifested by painful motion that is no worse than 70 degrees of flexion and 0 degrees of extension even when considering functional impairment on use or during flares. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 10 percent for left knee disability under DC 5299-5257 have not been met, a 20 percent under DC 5258 have been met, and a 10 percent rating under 38 C.F.R. § 4.59 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1-4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DCs 5256-62. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1987 to August 1990. 1. Entitlement to a higher rating a left knee disorder Disability evaluations 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 (Schedule). 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify various disabilities and the criteria for specific ratings. Relevant regulations do not require that all cases show all findings specified by the Schedule; however, findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. §§ 4.7, 4.21. If two disability 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 rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the veteran. 38 C.F.R. § 4.3. In establishing an appropriate initial assignment of a disability rating, the proper scope of evidence includes all medical evidence submitted in support of the veteran’s claim. Fenderson v. West, 12 Vet. App. 119 (1999). In cases where an assigned disability rating has been challenged or appealed, it is possible for a veteran to receive a staged rating. A staged rating is an award of separate percentage evaluations for separate periods, based on the facts found during the appeal period. Id. at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007) (in determining the present level of a disability for any increased evaluation claim, the Board must consider staged ratings). If two disability 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 rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. This regulation also requires that, whenever possible, the joints involved are tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45 but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). In Sharp v. Shulkin, the United States Court of Appeals for Veterans Claims (Court) decision addressed what constitutes an adequate explanation for an examiner’s inability to estimate motion loss in terms of degrees during periods of flare-ups. 29 Vet. App. 26 (2017). The Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Included within 38 C.F.R. § 4.71a are multiple DCs that evaluate impairment resulting from service-connected knee disorders, 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). According to 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. Under DC 5003, degenerative arthritis, when established by X-ray findings, will be rated on the basis of limitation of motion under the appropriate DCs for the specific joint or joints involved. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate DCs, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion to be combined, not added under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a. 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 of the leg to 45 degrees; a 20 percent rating will be assigned for limitation of flexion of the leg to 30 degrees; and a 30 percent rating will be assigned for limitation of flexion of the leg to 15 degrees. Id. 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. Id. Separate ratings under DCs 5260 and 5261 may be assigned for disability of the same knee joint. See VAOPGCPREC 9-2004. Additionally, for a knee disability already rated under DCs 5260 and/or 5261, a claimant would have additional disability justifying a separate rating if there is instability and/or subluxation of the knee joint under DC 5257. See generally VAOPGCPREC 23-97. Furthermore, the rating criteria do not preclude separate ratings for meniscal injury under DCs 5258 and 5259 where there are separate ratings for limitation of motion under DCs 5260 and/or 5261, or instability under DCs 5257. Lyles v. Shulkin, 29 Vet. App. 107 (2017). The normal range of knee motion is 140 degrees of flexion and zero degrees of extension. 38 C.F.R. § 4.71, Plate II. The terms “slight,” “moderate,” “moderately severe,” 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 terminology such as “slight” or “moderate” by VA examiners and others, 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 regarding an increased rating. In this case, the Veteran’s left knee disorder is rated as 10 percent disabling under DC 5299-5257 throughout the course of the appeal. During a January 2011 VA examination, the Veteran was diagnosed with left femoropatellar arthrosis. The Veteran reported symptoms including weakness, stiffness, swelling, giving way, lack of endurance, locking, fatigability, tenderness, and pain. He reported frequent flare-ups that resulted in difficulty bending the knee. Upon examination, the Veteran’s left knee range of motion was flexion to 140 degrees with pain at 130 degrees, and extension to zero degrees. The knee did not manifest additional range-of-motion limitations after repetitive use testing. The examiner found no meniscus or stability issues with the left knee. February 2014 private medical records reflect left knee range of motion of flexion to 135 degrees and extension to zero degrees. The private physician found no pain on motion, no crepitus, and no stability issues. See also May 2014 Private Medical Records. During a July 2015 VA examination, the Veteran was diagnosed with left knee joint osteoarthritis. The Veteran reported pain when bending the knee and constant pain, but denied flare ups. Upon examination, the Veteran’s left knee range of motion was flexion to 110 degrees with pain and extension to zero degrees. The knee did not manifest additional range-of-motion limitations after repetitive use testing. The examiner noted objective evidence of crepitus, but found no ankylosis, subluxation, or instability. The examiner determined that the Veteran had a meniscus condition with meniscal tear and frequent episodes of pain. In February 2018, the Veteran’s private orthopedist submitted an opinion indicating that the Veteran’s left knee is treated with steroid injections and limits his activity level. The Veteran exhibited difficulty with prolonged standing or walking. During a July 2018 VA examination, the Veteran was diagnosed with several left knee disorders. The Veteran reported having no flare-ups. Upon examination, the Veteran’s left knee range of motion was flexion to 120 degrees with pain and extension to zero degrees. The knee manifested pain on both flexion and extension, and pain on weight bearing. The examiner did not find objective evidence of crepitus. The knee did not manifest additional range-of-motion limitations after repetitive use testing. The examiner found no ankylosis, subluxation, lateral instability, or recurrent effusion. The examiner determined that the Veteran had a meniscus tear with frequent episodes of pain and locking. The examiner found no objective evidence of pain on non-weight bearing use. During an August 2019 VA examination, the Veteran was again diagnosed with several left knee disorders. The Veteran reported having no flare-ups, but he did report increasing pain severity, stiffness, locking, and problems standing, walking, and climbing stairs. Upon examination, the Veteran’s left knee range of motion was flexion to 70 degrees and extension to zero degrees. The knee manifested pain on both flexion and extension, and pain on weight bearing. The knee did not manifest additional range-of-motion limitations after repetitive use testing. Additionally, the examiner did not anticipate additional range-of-motion loss during repeated use over time. The examiner found no ankylosis, subluxation, lateral instability, or recurrent effusion. The examiner also found no left knee meniscal conditions. Finally, the examiner found objective evidence of pain on non-weight bearing use. During a November 2019 VA examination, the Veteran was diagnosed with left knee femoropatellar arthrosis. The Veteran reported instability and problems bending, standing, walking, and climbing stairs. Upon examination, the Veteran’s left knee range of motion was flexion to 100 degrees and extension to zero degrees. The knee manifested pain on flexion, and pain on weight bearing, but no objective evidence of crepitus. The knee did not manifest additional range-of-motion limitations after repetitive use testing. Additionally, the examiner did not anticipate additional functional limitation during repeated use over time. The examiner estimated that flare-ups limited the left knee range of motion, including flexion to 100 degrees and extension to zero degrees. The examiner found no ankylosis, subluxation, lateral instability, but did find recurrent effusion of the left knee joint. The examiner found no left knee meniscal conditions. Finally, the examiner found objective evidence of pain on passive range-of-motion testing and non-weight bearing testing. The Veteran’s left knee disability has been rated as 10 percent disabling under DC 5299-5257 since August 1990. This was based on a finding of “subjective pain indicative of slight impairment.” See Rating Decision dated May 1992. This rating is protected under 38 C.F.R. § 3.951(b) and cannot be reduced even if such symptoms are no longer present. See Murray v. Shinseki, 24 Vet. App. 420, 424 (2011). Given the ambiguity, the Board will presume that the Veteran was rated under DC 5257 for disability analogous to slight instability. The Veteran has credibly reported including weakness and giving way which demonstrates some evidence of instability. However, the clinical evaluations during the appeal period consistently show no clinical instability. The Board finds that the Veteran does describe some instability which establishes at least “slight” instability, but the preponderance of the evidence is against a finding of more than “slight” instability as the clinical findings of no actual instability on physical examination is entitled to significant probative weight as these are based on actual physical examination by trained professionals. During the course of the appeal, the Veteran’s left knee manifested a meniscus tear with frequent episodes of pain and locking and recurrent effusion confirmed by MRI examination prior to the appeal period. These symptoms most closely resemble DC 5258, establishing a 20 percent rating for dislocation of semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint. The Board observes that the November 2019 examiner marked that no meniscal disability was present which is clearly incorrect. Resolving reasonable doubt in the Veteran’s favor, an additional 20 percent rating is warranted under DC 5258 for his service-connected left knee disorder during the course of the appeal. The Board next evaluates whether a separate rating is warranted for motion loss. The Veteran’s left knee flexion manifested, at worst, flexion to 70 degrees and extension to zero degrees. This motion has been painful. Even on repetitive testing or during flares, the Veteran’s motion loss has not met, or more nearly approximated, flexion limited to 60 degrees or extension limited to 5 degrees. VA’s regulations provide that a compensable rating is warranted for pain (as shown by adequate pathology and evidenced by the visible behavior in undertaking motion) under 38 C.F.R. § 4.59 regardless of whether the painful motion is related to arthritis. Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). Given the credible evidence of painful motion, the Board finds that the minimum rating for painful motion have been met under 4.59. During the course of the appeal, the Veteran’s left knee did not clinically manifest ankylosis, and the Veteran has not described ankylosis. As such, a higher or separate rating under DC 5256 is not warranted. In so holding, the Board finds that the Veteran’s descriptions of symptoms and limitations to be credible and consistent with the medical evidence. This evidence is evaluated by compensable ratings for instability under DC 5257, painful motion under 4.59 and meniscal disability under DC 5258. In the opinion of the Board, these ratings contemplate all aspects of his disability. The Board also notes that the November 2019 VA examiner did not discuss the limitation of motion to 70 degrees shown in a prior examination for evaluating functional impairment on use or during flares. However, even assuming such limitations could approximate 60 degrees of flexion loss during flares, the Board notes that a compensable rating for flexion loss would supplant a 10 percent rating under 4.59. There is no lay or medical evidence of extension limitation. As such, the Board finds that any examination errors are harmless on this record. There is no further doubt of material fact to be resolved in his favor. 38 U.S.C. § 5108. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Howell, 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.