Citation Nr: 20007890 Decision Date: 01/30/20 Archive Date: 01/30/20 DOCKET NO. 15-43 886 DATE: January 30, 2020 ORDER A higher initial rating higher than 20 percent for a left knee torn meniscus with fibrous dysplasia (left knee disability) is denied. FINDING OF FACT From December 6, 2011, the left knee disability is manifest by lateral extension limited to 15 degrees due to painful flareups. CONCLUSION OF LAW From December 6, 2011, the criteria for a rating in excess of 20 percent for a left knee disability have not been met or more nearly approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5261. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from May 2007 to June 2008, and from November 2010 to December 2011. The instant case is an appeal from a Department of Veterans Affairs (VA) Regional Office (RO) rating decision from July 2012. The RO granted service connection for a left knee disability. During appeal of the initial rating assigned, a 20 percent disability rating was assigned for the entire initial rating period from December 6, 2011. The case has been before the Board previously. In an August 2018 remand, the Board noted that the Veteran had not had a knee examination since November 2011 and that the Veteran had alleged worsening of left knee disability symptoms. The case was remanded to secure a VA examination. The RO secured that examination and, accordingly, the Board finds that there has been substantial compliance with the October 2017 remand with respect to the knee disability on appeal. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.326 (2018). The Board finds that the duties to notify and assist have been met. Additionally, the initial rating is a “downstream” element of service connection and no further notice is required or triggered by a notice of disagreement to the initial rating. See Dunlap v. Nicholson, 21 Vet. App. 112, 117 (2007) (holding there is no duty to provide VCAA notice upon receipt of a notice of disagreement); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that separate VCAA notification is not required for “downstream” issues following a service connection grant, such as initial rating and effective date claims). For this reason, the Board does not need to further explain how the duties to notify and assist have been met with respect to the initial rating issue. Disability Rating Legal Criteria Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. 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 rating 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 that 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. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14. prohibits compensating a veteran twice for the same symptoms or functional impairment). Where there is a question as to which of two ratings shall be applied, the higher rating 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. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. An appeal from the initial assignment of a disability rating requires consideration of the entire time period involved and contemplates staged ratings where warranted. Fenderson v. West, 12 Vet. App. 119 (1999). For disabilities of the musculoskeletal system, the Board also considers whether a higher disability rating is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling, and pain on movement. 38 C.F.R. § 4.45. With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. Rating the Left Knee The Veteran is in receipt of a 20 percent disability rating for the service-connected left knee disability. After an initial November 2011 examination (still during service), service connection was granted effective December 6, 2011 (day after separation from service). During appeal of initial rating, a higher 20 percent rating was granted for the entire initial rating period from December 2011. The Veteran contends generally that he is entitled to a higher disability rating than 20 percent. Under Diagnostic Code 5260, limitation of knee flexion is rated 30 percent disabling where flexion is limited to 15 degrees; 20 percent disabling where flexion is limited to 30 degrees; 10 percent disabling where flexion is limited to 45 degrees; and noncompensable where flexion is limited to 60 degrees. 38 C.F.R. § 4.71a. Under Diagnostic Code 5261, limitation of knee extension is rated 50 percent disabling where extension is limited to 45 degrees; 40 percent disabling where extension is limited to 30 degrees; 30 percent disabling where extension is limited to 20 degrees; 20 percent disabling where extension is limited to 15 degrees; 10 percent disabling where extension is limited to 10 degrees; and noncompensable where extension is limited to 5 degrees. 38 C.F.R. § 4.71a. Diagnostic Code 5257 contemplates “other impairment” of the knee including recurrent subluxation or lateral instability. Under Diagnostic Code 5257, where impairment is severe, moderate or slight, disability ratings of 30, 20, and 10 percent are assigned, respectively. 38 C.F.R. § 4.71a. Diagnostic Code 5262 contemplates impairment of the tibia and fibula, assigning a 40 percent rating for nonunion of the tibia and fibula, and 10, 20, and 30 percent ratings for slight, moderate or marked knee or ankle disabilities. Id. The words “slight,” “moderate,” “severe,” and “marked” as used in the various diagnostic codes are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for “equitable and just decisions.” Id. Under Diagnostic Code 5256, ankylosis of the knee that is in the favorable angle in full extension, or is in slight flexion between 0 degrees and 10 degrees, warrants a 30 percent disability rating. Ankylosis of the knee in flexion between 10 degrees and 20 degrees warrants a 40 percent disability rating. Ankylosis of the knee in flexion between 20 degrees and 45 degrees warrants a 50 percent disability rating. Extremely unfavorable ankylosis of the knee, in flexion at an angle of 45 degrees or more, warrants a 60 percent rating. A 60 percent rating is the maximum schedular disability rating available under DC 5256. Id. Ankylosis is the immobility and consolidation of a joint. Lewis v. Derwinski, 3 Vet. App. 259 (1992). Diagnostic Code 5258 provides a 20 percent disability rating when a dislocated semilunar cartilage is present with frequent episodes of “locking,” pain, and effusion into the joint. Diagnostic Code 5259 provides for a 10 percent disability rating when semilunar cartilage has been removed and related symptoms are present. A 10 percent disability rating is assigned under Diagnostic Code 5263 when genu recurvatum is identified. 38 C.F.R. § 4.71a. Diagnostic Code 5003 provides that degenerative arthritis established by x-ray findings is to be evaluated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic code, 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. In the absence of limitation of motion, a 10 percent rating is assignable for x-ray evidence of involvement of arthritis of two or more major joints or two or more minor joint groups. A 20 percent evaluation is assignable for x-ray evidence of involvement of arthritis of two or more major joints or two or more minor joint groups, with occasional incapacitating episodes. 38 C.F.R. § 4.71a. After a review of all the evidence, lay and medical, the Board concludes that a disability rating in excess of 20 percent disability for the service-connected left knee disability is not warranted for any period. The 20 percent disability rating was based on private treatment records that showed limitation of extension to 15 degrees with pain. A September 2019 VA examination does not show that a higher rating than 20 percent is warranted for any period based on limitation of extension. The right knee was abnormal in range of motion, with flexion from 0 to 125 degrees (140 is normal) and extension from 125 to 0 degrees (140 is normal), and examination revealed pain and tenderness. The examiner concluded that the decrease was “normal for body habitus/age/no clinical significance.” The (service-connected) left knee also had a moderately decreased range of motion – left knee flexion was 0 to 110 degrees and left knee extension was 110 to 0 degrees (full extension). The VA examiner did note pain in the left knee for both flexion and extension and stated that there was evidence of tenderness to palpation on the left lateral aspect of the knee. There was evidence of pain with weight-bearing and non-weight-bearing on the left knee, but not the right. With repetitive testing, the left knee’s range of motion was reduced slightly from 0 to 105 degrees in flexion and 105 to 0 degrees in extension. In summary, the measurements from the examination do not show grounds for an increased rating based on extension or a separate compensable rating based on limitation of flexion, even when considering factors such as pain, weakness, fatigability, or incoordination. The Veteran also alleged in a November 2015 VA Form 9 that the left knee disability causes ongoing pain and flare-ups that preclude exercising using the knee. The Veteran stated that there was instability and pain in the knee. At the September 2019 VA examination, the Veteran explained that he injured his knee on a fall climbing a mountain during a training exercise and that the disability has worsened over time, with reduced range of motion and mobility. The Veteran reported limited flexing with a constant sharp pain in his back that requires the use of a brace. He reported flare-ups that required medical treatment due to the degree of pain. The frequency of flare-ups is that they happen with activity or exercise four times per year roughly. The VA examiner assessed that the functional loss is limited flexibility and reduced range of motion. The Board has considered the additional limitations of range of motion due to flare ups, but, even with such consideration of additional limitations due to pain, tenderness, and during flareups, the evidence still does not show limitations of extension to 20 degrees to warrant a rating in excess of 20 percent (30 percent rating under DC 5261), or limitation of flexion to 45 degrees to warrant a separate 10 percent rating (DC 5260). Although the Veteran contended that his left knee involved instability at one point in the duration of the case, it has not been a frequent contention. The Veteran’s statement is considered as to his symptomatology, but the weight of the evidence, lay and medical, is against a finding of actual left knee instability. Preliminarily, the Veteran did not report instability during the examination that was testing for it. The VA examiner did a range of testing and concluded that there was no recurrent subluxation, no lateral instability, no recurrent effusion, and no joint instability. Overall, there is no basis for a separate rating based on instability, as even the Veteran’s reports of instability are inconsistent, as instability was not reported when that history was solicited. The VA examination also concluded no degenerative or traumatic arthritis, which the Veteran was not claiming. The VA examiner noted that the Veteran had a history of shin splints, but opined that it was an acute injury that happened to both legs and therefore not a cause for the left knee disability. With respect to overall functional impairment, the VA examiner noted that the Veteran will have difficulty running, kneeling, crawling, squatting, prolonged standing, prolonged walking, and high impact activities due to the left knee disability. The Board has considered other knee rating codes to determine if a separate additional rating is warranted or whether a higher initial rating is warranted. The Board concludes that this is not the case. There are no signs of ankylosis of the knee (Diagnostic Code 5256), other impairment of the knee (Diagnostic Code 5257), and there is no evidence of dislocated semilunar cartilage, with frequent episodes of locking, pain and effusion to the joint (Diagnostic Code 5258). There is likely no evidence of removal of semilunar cartilage (Diagnostic Code 5259), impairment of the tibia and fibula (Diagnostic Code 5262), or genu recurvatum (Diagnostic Code 5263). In summary, the weight of the evidence, both lay and medical, shows that, even with consideration for factors such as pain, weakness, fatigability, or incoordination, and with consideration of flare-ups, an initial rating higher than 20 percent is not warranted for left knee disability based on limitation of extension, and separate ratings are not warranted for left knee limitation of flexion, for instability, or for any other knee impairment. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Smith, 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.