Citation Nr: 20021685 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 17-11 208 DATE: March 26, 2020 ORDER For the entire initial rating period on appeal, entitlement to a rating higher than 10 percent for medial meniscus tear repair in the left knee is denied. For the entire initial rating period on appeal, entitlement to a separate 10 percent rating, but not higher, for left knee instability, is granted. FINDINGS OF FACT 1. For the entire initial rating period on appeal, the weight of Veteran’s left knee disability manifested as arthritis with noncompensable limitation of motion and extension. 2. For the entire initial rating period on appeal, the Veteran’s left knee manifested as slight lateral instability. CONCLUSIONS OF LAW 1. For the entire initial rating period on appeal, the criteria for a rating higher than 10 percent for medial meniscus tear repair in the left knee are not met or approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.71a, DC 5010-5259 (2019). 2. For the entire initial rating period on appeal, the criteria for a separate 10 percent rating, but no higher, for instability of the left knee have been approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.71a, DC 5257 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1998 to June 1999, from October 2001 to January 2003, and from January 2007 to March 2007. He had additional service with the Air National Guard of Ohio and the Air Force Reserve. In December 2019, the Veteran testified in a videoconference hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record and has been reviewed. In March 2020, the Veteran’s representative provided a waiver of AOJ consideration for all relevant evidence associated with the claims file subsequent to the December 2016 statement of the case. Initial Rating for a Left Knee Disability Disability evaluations are determined by comparing a veteran’s present symptoms with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the Veteran. 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran’s condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. When a claimant is awarded service connection and assigned an initial disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found. Where the veteran is appealing the rating for an already established service-connected condition, her present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Knee disabilities can be rated under Diagnostic Codes 5256, 5257, 5258, 5259, 5260, 5261, 5262, and 5263. 38 C.F.R. § 4.71a. DC 5257 provides a 10 percent rating for slight recurrent subluxation or lateral instability, a 20 percent rating for moderate recurrent subluxation or lateral instability, and 30 percent rating for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The words “slight,” “moderate” and “severe” as used in various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6; Sellers v. Wilkie, 30 Vet. App. 157 (2018). DC 5258 provides a 20 percent rating may be assigned for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint. 38 C.F.R. § 4.71a. DC 5259 provides for a 10 percent rating for symptomatic removal of the semilunar cartilage. 38 C.F.R. § 4.71a. DC 5260 provides for the evaluation of limitation of flexion of the knee. A non-compensable rating is warranted when leg flexion is limited to 60 degrees. A 10 percent rating is warranted when it is limited to 45 degrees, a 20 percent rating is warranted when it is limited to 30 degrees, and a 30 percent rating is warranted where flexion is limited to 15 degrees. 38 C.F.R. § 4.71a. Under DC 5261, extension limited to 5 degrees warrants a 0 percent rating, extension limited to 10 degrees warrants a 10 percent rating, extension limited to 15 degrees warrants a 20 percent rating, extension limited to 20 degrees warrants a 30 percent rating, extension limited to 30 degrees warrants a 40 percent rating, and extension limited to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a. Under DC 5263, genu recurvatum (acquired, traumatic, with weakness and insecurity in weight-bearing objectively demonstrated) warrants a 10 percent rating. 38 C.F.R. § 4.71a. Genu recurvatum is a hyperextension of the knee. See DORLAND’S ILLUSTRATED MEDICAL DICTIONARY (30th Ed. 2003) at 765. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. Where arthritis results in painful motion of the joint, the rating criteria allow for at least the minimum compensable evaluation for the joint. 38 C.F.R. § 4.59. The intent of the rating schedule is to recognize painful motion with joint or particular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or misaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Id. The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. 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 disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Here, for the entire initial rating period on appeal, the RO rated the Veteran’s left knee disability pursuant to DC 5010-5259 based on findings of symptomatic residuals of semilunar cartilage removal and x-ray evidence of traumatic arthritis with noncompensable limitation of motion. For the reasons expressed below, the Board finds that a rating higher than 10 percent is not warranted. Turning to the evidence, in support of his claim, the Veteran submitted a private July 2014 disability benefits questionnaire (DBQ), in which the medical professional rendered a diagnosis of left knee meniscal tear. The Veteran reported severe pain with flexion and extension. The Veteran reported having flare-ups, which were described as significant problem with weight-bearing that required using a knee brace when walking. Functional loss was described as inability to walk for any prolonged period of time and loss of sleep. Although the medical professional noted that range of motion of the left knee revealed flexion to 90 degrees and extension to 80 degrees, it was then noted that range of motion was essentially normal. There was evidence of pain with passive range of motion and the left knee was painful to palpation. The medical professional indicated that contributing factors to the disability included less movement than normal; weakened movement; excess fatigability; incoordination; swelling; pain on movement; instability of station; disturbance of locomotion; interference with sitting and standing; and, atrophy of disuse. The medical professional further stated that during flare-ups, the Veteran developed increased gait instability. Muscle strength testing revealed active movement against some resistance (4/5), which the medical professional identified as muscle atrophy described as loss of quadriceps muscle mass. The medical professional noted no history of recurrent subluxation or lateral instability. The meniscus tear resulted in frequent episodes of locking and joint pain. According to July 2014 VA occupational therapy summary, the Veteran complained of chronic left knee pain resulting from an old meniscal tear that required seven surgeries. The medical professional noted that the Veteran had his first surgery in 2003 followed by six more surgeries in 2010. He wore a knee brace at times, which increased his ability to walk. Symptoms of the left knee included dull pain with occasional sharp/stabbing pain that increased with walking and stairs. The Veteran was independent with all his activities of daily living. He could drive up to one and half hours before stopping to stretch and woke up one to two hours due to knee pain but was able to all back asleep quickly. He worked full-time as a production engineer mostly at the desk but at times went to the shop to supervise operations and check processes. He was able to remain at his desk from forty-five minutes to two hours before needing to stand/move. Range of motion of the left knee revealed flexion to 126 degrees and normal extension. Muscle strength testing was normal. At the end of the assessment, the Veteran reported left knee pain that was six out of ten in severity. X-rays revealed mild to moderate degenerative changes. Subsequent August 2014 treatment records indicated that the Veteran received a steroid injection for the left knee and was taking Tramadol. According to September 2014 VA treatment records, the Veteran continued to complain of left knee pain with gait disturbances. In support of his claim, the Veteran submitted an additional March 2015 DBQ, at which time the medical professional rendered diagnoses of knee joint arthritis, knee cartilage restoration surgery, and patellofemoral pain syndrome. The Veteran complained of chronic left knee pain and instability. He reported flare-ups, which were described as recurrent pain and swelling of the joint with instability. Functional loss was described as limited walking and standing and feeling that the knee was giving out. Range of motion of the left knee revealed flexion to 140 degrees and extension to 5 degrees. The medical professional noted that range of motion was normal, but the Veteran had significant discomfort with range of motion with “grinding.” There was no change in range of motion after repetitive use testing. There was evidence of pain with weight-bearing. The medical professional indicated that the Veteran’s reported pain was consistent with MRI findings that showed a full thickness articular cartilage defect and meniscal thinning. Factors contributing to the disability included weakened movement; excess fatigability; incoordinated; pain on movement; swelling; instability of station; disturbance of locomotion; interference with standing; and, prolonged walking caused left knee joint instability requiring a brace. The medical professional noted that these factors affected range of motion but concluded that it would still result in normal flexion to 140 degrees and extension to 5 degrees. Muscle strength testing revealed active movement against some resistance (4/5), which the medical professional identified as muscle atrophy described as loss of quadriceps muscle mass. The medical professional noted that the Veteran had a recurrent patellar dislocation that was severe. The Veteran had a meniscal tear with frequent episodes of locking, pain, and effusion. Though, the medical professional noted that this was in 2009 prior to the surgery. According to March 2015 VA treatment records, the Veteran reported left knee pain with giving out a couple times per week. He further reported swelling, locking, and catching. He felt that his muscles were weak mostly to disuse and pain. He had bone grafting and cartilage transplant but no other interventions since 2009. He continued to work full-time as an engineer mainly at a desk job despite the limitations caused by his knee disability. According to May 2015 VA treatment records, the Veteran continued to complain of knee pain. Range of motion of the left knee revealed flexion to 120 degrees and extension lacking 10 degrees. Physical examination of the left knee in June 2015 showed full range of motion with significant crepitus. Muscle strength testing was normal with no evidence of atrophy. According to March 2016 VA treatment records, the Veteran underwent a knee procedure two weeks earlier and was recovering at his aunt’s house. He continued to complain of knee pain throughout 2016. In October 2016, the Veteran complained of persistent left knee pain. He stated that he felt better after a March 2016 surgery, but the pain returned with overall no improvement. The reported surgery was a stem cell surgery to stimulate new cartilage formation within the right knee joint. Additional treatment records dated from 2016 to 2019 showed continuous complaints of left knee pain. During the December 2019 Board hearing, the Veteran reported having continuous left knee pain and indicated that he had to wear a knee brace. He added that he had constant issues with the knee giving out, which he described as “large stabbing pain” resulting in him losing control over his knee. Later in December 2019, the Veteran underwent a VA knee examination, at which time the examiner rendered diagnoses of left knee arthritis and medial meniscus tear status post partial medial meniscectomy and femoral condyle Carticel implant. The Veteran reported symptoms of pain and stiffness. MRI of the left knee showed degenerative changes and cartilage defect. The Veteran reported having flare-ups, which he described as increased pain and stiffness that may last for days, at which time he could barely walk on it. Functional loss was described as having pain while climbing stairs, standing, walking, and biking. Upon physical examination, range of motion of the left knee revealed flexion to 135 degrees and extension to 0 degrees. Pain was not noted on examination and there was no evidence of localized tenderness or pain on palpation. There was also no evidence of pain with weight bearing and no objective evidence of crepitus. The examiner indicated that the Veteran was not examined immediately after repetitive use over time and/or during a flare-up, but the examination was medically consistent with the Veteran’s statement describing functional loss after repetitive use over time and during flare-ups. The examiner indicated that pain, weakness, and lack of endurance significantly limited functional ability with repeated use and or during flare-up and estimated that range of motion will be limited to 130 degrees of flexion with normal extension. Muscle strength testing was normal with no evidence of muscle atrophy. There was no ankylosis of the knee and no history of recurrent subluxation or lateral instability. Joint stability testing did not reveal joint instability. The examiner indicated that the Veteran did not have and never had recurrent patellar dislocation. Regarding meniscal conditions, the examiner noted that the Veteran had a history of a left meniscus tear with surgical repair. The Veteran use a brace regularly. Upon review, the Board finds that a rating higher than 10 percent based on limitation of motion of the left knee is not warranted. Notably, the Veteran’s left knee flexion was at worse to 80 degrees and even considering the Veteran’s competent reports of flare-ups, the lay and medical evidence does not show such a significant decrease in range of motion to more nearly approximate the next higher rating; i.e., 60 degrees flexion. In addition, a separate rating pursuant to DC 5010 is not warranted. Notably, the Veteran’s painful motion is already contemplated by the already assigned 10 percent disability rating pursuant to DC 5259 and assigment of separate ratings also under DC 5010 would violate the prohibition against pyramiding. 38 C.F.R. § 4.14; Esteban, 6 Vet. App. at 261. In addition, a higher rating based on limitation of extension is also not warranted. Although one treatment record showed extension to 5 degrees and one isolated treatment record showed extension to 10 degrees, the evidence as a whole showed that the Veteran had normal extension throughout the pendency of the appeal. As such, the Board finds that a higher rating based on limitation of extension is not warranted. Notably, for a compensable rating, there must be evidence of limitation of extension to 10 degrees, which other than one treatment record, all other evidence prior and subsequent to this treatment record showed normal extension. Regarding the cartilage removal, the Veteran is already in receipt of the highest possible schedule rating pursuant to DC 5259. In addition, a separate rating pursuant to DC 5258 is not warranted as the Veteran had a cartilage removal in 2009 prior to the pendency of the appeal and did not have a meniscal tear during the pendency of the appeal. In regard to the Veteran’s reported instability of the left knee, the record does not reflect medical evidence of lateral instability. However, in English v. Wilkie, 30 Vet. App. 347, 349 (2018), the Court held that DC 5257 did not require medical evidence of lateral instability for a rating to be assigned. Instead, the Board had to address any relevant lay evidence and compare it to the medical evidence to determine which was more probative, keeping in mind that objective medical evidence was not automatically more probative than lay evidence. Here, the record reflects several reports from the Veteran complaining of his left knee giving way. In addition, the private DBQs and other medical evidence supported the Veteran’s assertions indicating that he sustained a few falls as a result. While the VA examiner did not find any joint instability from a medical point of view, the Veteran’s numerous complaints of his knee giving way were not clearly considered. Given the findings above, the evidence is in relative equipoise as to whether the Veteran experienced left knee instability warranting a separate compensable rating under DC 5257 during this rating period on appeal. Resolving reasonable doubt in favor of the Veteran, entitlement to a separate 10 percent rating for left knee lateral instability under DC 5257 is warranted for the entire initial rating period on appeal. However, the Board finds that the symptoms most nearly approximated slight lateral instability, and the preponderance of the evidence reflects that they did not more nearly approximate moderate instability. In this regard, the Board notes that while the Veteran complained of “giving way” throughout the pendency of the claim, the private DBQs and the 2019 VA examiner found that there was no evidence of instability or deformities. The benefit of the doubt doctrine is thus not for application in this regard, and a separate rating of 10 percent, but no higher, for left knee lateral instability is warranted under DC 5257. The Board has considered the applicability of other potential diagnostic codes during this period on appeal. As the evidence of record fails to demonstrate ankylosis; impairment of the tibia or fibula; or genu recurvatum, the Veteran is not entitled to a higher or separate rating under DCs 5256, 5262, or 5263 respectively. Finally, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Specifically, although the private DBQs as well as the Veteran testimony suggested that his knee disabilities in fact impacted his ability to work, the evidence clearly shows that he continued to work full-time despite difficulties caused by the left knee disability. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Yaffe, 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.