Citation Nr: 20009760 Decision Date: 02/05/20 Archive Date: 02/05/20 DOCKET NO. 12-04 748 DATE: February 5, 2020 ORDER Entitlement to an initial rating in excess of 10 percent for left knee arthritis is denied; however, the 10 percent rating is in effect over the entire appeal period, to include since May 18, 2016. Entitlement to a separate initial rating of 20 percent, but no higher, for left knee meniscal disability is granted from January 1, 2010. Entitlement to a separate initial rating of 10 percent, but no higher, for left knee instability is granted from January 1, 2010 to June 24, 2017; a 20 percent rating, but no higher, is granted from June 24, 2017. FINDING OF FACTS 1. For the entire appeal period, the Veteran’s left knee disability has been manifested by arthritis with painful noncompensable limitation of motion. 2. For the entire appeal period, the Veteran left knee disability, status post partial meniscectomy, has been manifested by frequent episodes of joint locking, pain, and effusion into the joint. 3. From May 18, 2016 to June 24, 2017, the Veteran’s left knee disability has been manifested by slight instability; since June 24, 2017, the Veteran’s left knee has been manifested by moderate instability. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for left knee arthritis are not met; however, the 10 percent rating is in effect over the entire appeal period, to include since May 18, 2016. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes (DCs) 5003, 5260. 2. The criteria for a separate 20 percent rating, but no higher, for left knee meniscal condition are met from January 1, 2010. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, DC 5258. 3. The criteria for a separate initial 10 percent rating, but no higher, for left knee instability are met from January 1, 2010 to June 24, 2017; a 20 percent rating is established from June 24, 2017. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, DC 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from June 1989 to December 2009. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In December 2015, the Veteran testified at a hearing before the undersigned Veterans Law Judge. In March 2016 and June 2017, the Board remanded the claim on appeal for further development. 1. Entitlement to an initial rating in excess of 10 percent for left knee arthritis is denied; however, the 10 percent rating is in effect over the entire appeal period, to include since May 18, 2016. 2. Entitlement to a separate initial rating of 20 percent, but no higher, for left knee meniscal disability is granted from January 1, 2010. 3. Entitlement to a separate initial rating of 10 percent, but no higher, for left knee instability is granted from January 1, 2010 to June 24, 2017; a 20 percent rating, but no higher, is granted from June 24, 2017. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity in civil occupations. 38 U.S.C. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. If two disability ratings are potentially applicable, 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. Reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Separate ratings can be assigned for separate periods based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court of Appeals for Veterans Claims (Court) later clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. By way of background, service connection for a left knee disability (arthritis) was awarded in an April 2010 rating decision and was assigned a 10 percent rating, effective January 1, 2010. A July 2016 rating decision increased the rating to 20 percent, effective May 18, 2016. The current appeal period before the Board begins on January 1, 2010, the date of service connection. Notwithstanding that the April 2009 and May 2016 VA examinations failed to test passive range of motion and range of motion in non-weight-bearing conditions, the Board finds that the examinations nevertheless are adequate for VA rating purposes. Passive range of motion is the amount of motion possible when an examiner moves a body part with no assistance from the individual being evaluated. It is usually greater than active range of motion because the integrity of the soft tissue structures does not dictate the limits of movement. Comparisons between passive range of motion and active range of motion provide information about the amount of motion permitted by the associated joint structures (passive range of motion) relative to the individual’s ability to produce motion at a joint (active range of motion). Cynthia Norkin & D. Joyce White, Measurement of Joint Motion: A Guide to Goniometry 8-9 (2016). Testing the joint under weight-bearing conditions involves movement of the body against gravity. J. Randy Jinkins, et. al., Upright, Weight-bearing, Dynamic-kinetic Magnetic Resonance Imaging of the Spine: Initial Results, 15 J. Eur. Radiol. 1815-25 (2005). When evaluating range of motion, it is preferable to test in weight-bearing conditions because testing in non-weight-bearing conditions underestimates the degree of pathology present. Id. at 1823. Because there is no indication that the structural integrity of the Veteran’s left knee is compromised, such that passive range of motion in this case would be more limited than active, and because testing in weight-bearing conditions is more demonstrative of the degree of pathology, the Board finds that the failure to test for limitation of motion on passive range of motion and in non-weight-bearing is not prejudicial. The Board will therefore evaluate the Veteran’s range of motion using the available findings of active range of motion. From January 1, 2010 to May 18, 2016, the Veteran’s left knee was rated pursuant to DCs 5299-5260 for painful motion of a major joint. However, DCs 5003-5260 should have and will be employed, as the Veteran had evidence of degenerative arthritis at that time. Under DC 5003, degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (DC 5200 etc.). When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 pct 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. Under DC 5260, a 10 percent rating is assigned for flexion limited to 45 degrees, a 20 percent rating is assigned for flexion limited to 30 degrees, and a maximum 30 percent rating is assigned for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. Also, under DC 5261, a 10 percent rating is warranted for limitation of extension to 10 degrees, with higher ratings available for more severe limitation. 38 C.F.R. § 4.71a, DC 5261. DC 5258 provides a maximum 20 percent rating for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. 38 C.F.R. § 4.71a, DC 5258. DC 5257 evaluates recurrent subluxation or lateral instability of a knee, and provides a 10 percent rating for slight impairment, a 20 percent rating for moderate impairment, and a 30 percent rating for severe impairment. 38 C.F.R. § 4.71a, DC 5257. On VA examination in April 2009, the Veteran reported aching left knee pain in addition to symptoms of weakness, swelling, heat, and locking, status post partial meniscectomy in 1994. He denied stiffness, redness, giving way, lack of endurance, fatigability and dislocation. The Veteran exhibited full left knee range of motion, with pain causing functional loss after repetitive use but no additional loss of motion. Joint stability testing and meniscus testing were normal. The examiner noted tenderness and crepitus in the left knee but found no evidence of edema, effusion, weakness, guarding of movement, subluxation, or locking pain. At the May 18, 2016 VA examination, the Veteran reported constant throbbing pain that increased with prolonged activity. He denied flare-ups. Left knee range of motion was from 5 to 125 degrees with no additional loss of motion upon repetition. There was evidence of pain with weight-bearing, pain on palpation, and crepitus. Muscle strength testing showed active movement against some resistance (4/5) on flexion and joint stability testing was normal, although a history of slight recurrent subluxation and lateral instability was reported. Left knee meniscal tear resulting in frequent episodes of joint locking and pain was noted. On VA examination in June 2017, the Veteran endorsed left knee instability and functional impairment with bearing, carrying, or lifting weight, walking, standing, or sitting for prolonged periods, using stairs or ladders, kneeling, squatting, bending, and driving long distances. He reported flare-ups, in which his knee swells, locks up in a near extension position, is unstable, and accompanied by significant pain. Left knee range of motion was from zero to 110 degrees, with pain. The examiner noted there was significant loss of flexibility and agility and found objective evidence of pain on palpation, pain with weight-bearing and nonweight-bearing, and crepitus. Upon repetition, the Veteran achieved zero to 95 degrees with pain, fatigue, and weakness causing functional loss. The examiner noted the Veteran was not experiencing a flare-up at the time of the examination but indicated that range of motion could be limited to zero to 95 degrees, due to pain, fatigue, and weakness. The examiner also noted additional contributing factors of the left knee included less movement than normal, weakened movement, swelling, deformity, instability of station, disturbance of locomotion, and interference with sitting and standing. Muscle strength testing indicated active movement against some resistance (4/5) as well as left meniscal tear resulting in frequent episodes of joint locking, pain, effusion, buckling, and swelling. Joint stability testing should 1+ (0-5 millimeters) lateral instability in addition to the Veteran’s reported history of moderate instability. Regarding the Veteran’s diagnosed left knee arthritis, the Board finds that, even when considering DeLuca factors, the Veteran’s left knee disability has been productive of painful, but noncompensable limitation of motion, thereby precluding a rating in excess of 10 percent under DCs 5003-5260 or a separate rating under DC 5261. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. 202; VAOPGCPREC 9-2004. Therefore, a rating higher than 10 percent is not warranted at any point during the appeal period. However, this rating is extended beyond May 18, 2016. Moreover, a separate maximum 20 percent rating is warranted under DC 5258 for the entire appeal period, as the Veteran underwent partial meniscectomy in 1994 and has consistently reported locking and swelling over the appeal period related to his meniscal disability. Lyles v. Shulkin, 29 Vet. App. 107 (2017) (evaluation of a knee disability under DCs 5257 or 5261 or both does not, as a matter of law, preclude separate evaluation of a meniscal disability of the same knee under DC 5258 or 5259, and vice versa, so long as manifestations of disability for which a separate evaluation is being sought have not already been compensated by an assigned evaluation under a different DC). Furthermore, the Board finds that a separate 10 percent rating is warranted under DC 5257 since the beginning of the appeal period. Id. In this regard, the Veteran reported additional strain on his ligaments in order to compensate for his left knee weakness, his knee giving way, as well as a history of slight recurrent subluxation and lateral instability. See April 2009 and May 2016 VA examination reports. While objective knee joint stability testing was normal, based on the Veteran’s competent and credible reports, the Board finds that the record supports a finding of slight instability of the left knee so as to warrant a 10 percent rating from January 1, 2010 to June 24, 2017. Beginning June 24, 2017, a 20 percent rating is warranted under DC 5257 based on objective testing showing 1+ (0-5 millimeters) lateral instability in addition to the Veteran’s reported history of moderate instability. See June 2017 VA examination report. Additionally, the Board has considered whether higher or separate ratings are warranted under alternate diagnostic codes. However, there is no indication of ankylosis, removal of semilunar cartilage, tibia and fibula impairment, or genu recurvatum at any point during the period on appeal. See April 2009, May 2016, and June 2017 VA examination reports. As such, ratings under DCs 5256, 5259, 5262, and 5263 are precluded. Finally, the Board has also considered whether a separate compensable rating is warranted for the Veteran’s left knee scar. However, the April 2009, May 2016, and June 2017 VA examiners found that the scar was not painful or unstable and not greater than 39 square centimeters (6 square inches), which does not allow for a separate compensable rating under the rating criteria for scars. See 38 C.F.R. § 4.118, DCs 7800-7805. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.S. Mahoney 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.