Citation Nr: 20021804 Decision Date: 03/27/20 Archive Date: 03/27/20 DOCKET NO. 15-39 885 DATE: March 27, 2020 ORDER Entitlement to a disability rating in excess of 20 percent for left knee instability is denied. Entitlement to a disability rating in excess of 10 percent for left knee arthritis is denied. FINDINGS OF FACT 1. The Veteran’s left knee condition has not been shown to cause severe recurrent subluxation or lateral instability. 2. The Veteran’s left knee condition does not result in ankylosis; flexion functionally limited to 60 degrees or less; extension functionally limited to 15 degrees or more; an impairment of the tibia and fibula; genu recurvatum; or dislocated cartilage that causes frequent episodes of locking, pain, and effusion into the joint. 3. The Veteran’s left knee meniscectomy is symptomatic; however, a separate rating is not warranted as symptoms overlap with the Veteran’s assigned ratings for instability and arthritis. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for left knee instability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257. 2. The criteria for a rating in excess of 10 percent for left knee arthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes, 5010, 5256, 5258, 5259, 5260-5263. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1976 to November 1976. Increased Rating 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. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The primary concern for an increased rating for a service-connected disability is the present level of disability. Although the overall history of the disability is to be considered, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In all claims for an increased disability rating, VA has a duty to consider the possibility of assigning staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s lateral left knee instability is rated under Diagnostic Code 5237, effective December 23, 1992. The Veteran’s left knee arthritis is rated under Diagnostic Code 5010, effective April 26, 2007. The Veteran filed for increased ratings in excess of 20 percent for his lateral left knee instability and in excess of 10 percent for his left knee arthritis in February 2010. A February 2013 rating decision denied the Veteran’s claim for increased ratings for his left knee disabilities. The Veteran timely filed his appeal. An October 2018 Board decision remanded for a new VA examination for his left knee disabilities and to identify and/or obtain any outstanding VA and private treatment records. A VA examination has been provided and additional treatment records have been obtained. The Board finds that there has been substantial compliance with the 2018 Board remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. A rating in excess of 20 percent for left knee lateral instability is denied. The Veteran asserts that he is undercompensated for his left knee lateral instability, which is currently rated at 20 percent. Diagnostic Code 5257 evaluates recurrent subluxation or lateral instability of a knee. Diagnostic Code 5257 assigns a 10 percent disability rating for a slight impairment, 20 percent disability rating for a moderate impairment, and 30 percent disability rating for a severe impairment. Descriptive words such as “slight,” “moderate,” 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 descriptive terminology by medical examiners, 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. 38 U.S.C. § 7104 (a); 38 C.F.R. §§ 4.2, 4.6. The Veteran was afforded a VA examination in May 2012. The Veteran did not report having any flare-ups in his left knee. On examination, anterior instability testing showed slight instability and posterior instability, and medial-lateral instability testing showed normal results. There was no evidence or history of recurrent patellar subluxation/dislocation. The examiner noted that the Veteran occasionally used a brace for his left knee. The Veteran was afforded a VA examination in March 2016. The Veteran was uncooperative, and joint stability testing could not be conducted. The examiner noted that the Veteran used a brace and a walker for his knee conditions. The Veteran was afforded a VA examination in November 2019. The Veteran reported flare-ups in his left knee that caused constant aching pain, rated at 10/10, with swelling and stiffness. He noted that his flare-ups occur with cold weather exposure and last for less than a day. He reported that repetitive climbing causes his knee to buckle and causes instability. On examination, joint stability testing showed normal stability in all areas of the left knee. The examiner noted that there was no history of recurrent subluxation in the left knee. The examiner reported that the Veteran’s left knee instability was quiescent (in a state or period of inactivity or dormancy). The examiner noted that the Veteran regularly used a brace for his left knee arthritis and instability. The Veteran’s VA and private treatment records do not reveal any findings that shows the Veteran has “severe” left knee instability. Private evaluations in December 2016 and August 2017 indicate “trace” anterior, posterior, and varus and valgus laxity of the left knee. Here, the Veteran was shown to have “slight” lateral instability at the May 2012 VA examination. The Veteran has been noted to use a brace for his left knee at all of his VA examinations and a walker at the March 2016 VA examination. Although he has asserted that his knee buckles and becomes unstable when climbing, has been noted to use a left knee brace, and even a walker at times, the weight of the evidence is against a finding that his left knee instability is “severe.” Clinical testing from treatment in 2016 and 2017 indicated “trace” (or slight) instability of the left knee and the 2019 VA examiner did not report any lateral instability in his left knee. The Board finds that the competent, credible evidence of record does not support a finding of “severe” instability of the left knee, during the appeal period. The Veteran’s latest findings as to lateral instability of the left knee, is not found to meet even the criteria for the Veteran’s current 20 percent rating under Diagnostic Code 5257, which requires “moderate” recurrent subluxation or lateral instability. However, the Board will not disturb the 20 percent rating that is currently assigned. Based upon the evidence of record, a rating in excess of 20 percent for left knee lateral instability is denied. Because the evidence preponderates against the claim for a higher rating for left knee instability, the benefit-of-the- doubt doctrine is inapplicable. 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5257. 2. A rating in excess of 10 percent for left knee arthritis is denied. The Veteran asserts that he is undercompensated for his left knee arthritis, which is currently rated at 10 percent, based on functional loss. 38 C.F.R. §§ 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant 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, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Normal ranges of motion of the knee are to 0 degrees in extension, and to 140 degrees in flexion. 38 C.F.R. § 4.71, Plate II. Arthritis shown by X-ray studies is rated based on limitation of motion of the affected joint. When limitation of motion would be noncompensable under a limitation-of-motion code, but there is at least some limitation of motion, a 10 percent rating may be assigned for each major joint so affected. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010. Diagnostic Code 5010 (traumatic arthritis) directs that arthritis be rated under Diagnostic Code 5003 (degenerative arthritis), which states that 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. The 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, X-ray evidence of arthritis involving two or more major or minor joint groups will warrant a 10 percent rating, and two or more major or minor joint groups with occasional incapacitating exacerbations will warrant a 20 percent rating. The 10 percent and 20 percent ratings based on X-ray findings will not be combined with ratings based on limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003 Note 1. Under Diagnostic Codes 5260 and 5261 (limitation of knee flexion and knee extension respectively), a noncompensable rating may be assigned where either knee flexion is limited to 60 degrees or knee extension is limited to 5 degrees. A compensable (i.e. at least 10 percent) rating is assigned for either flexion limited to 45 degrees or extension limited to 10 degrees. A 20 percent rating is assigned for either flexion limited to 30 degrees or extension limited to 15 degrees. Of note, separate compensable ratings may be assigned for limitation of flexion and for limitation of extension, without violating the rule against pyramiding. See 38 C.F.R. § 4.14. The Veteran was afforded a VA examination in May 2012. On examination, the Veteran showed left knee flexion to 115 degrees and extension to 5 degrees, with no objective evidence of painful motion. He did not have additional limitation of range of motion after repetitive use testing. The Veteran did not report additional limitations during flare-ups. The examiner reported that the Veteran’s functional loss was due to pain on movement. The examiner noted that the Veteran had a meniscal condition with frequent episodes of joint pain. There was no evidence of ankylosis, impairment of the tibia or fibula, or genu recurvatum. The Veteran was afforded a VA examination in March 2016. Although he did not cooperate with the range of motion portion of the examination, the examiner noted that the Veteran’s meniscectomy caused residual left knee joint pain. There was no evidence of ankylosis, impairment of the tibia or fibula, or genu recurvatum. The Veteran was afforded a VA examination in November 2019. The Veteran reported flare-ups in his left knee that caused constant aching pain, rated at 10/10, with swelling and stiffness. On examination, the Veteran demonstrated left knee flexion to 90 degrees and extension to 10 degrees, with pain noted on examination. There was objective evidence of moderate localized tenderness in the anterior medial/lateral area due to arthritis and ACL injury residual. The Veteran was able to perform repetitive use testing, with no additional loss of function or range of motion. The examiner noted that weakness and lack of endurance significantly limited functional ability with repeated use. The examiner noted that pain, weakness, and lack of endurance significantly limited functional ability with flare-ups. The examiner reported that the Veteran did not describe functional loss in terms of range of motion for flare-ups. Muscle strength testing showed left knee strength of 4/5 for both flexion and extension. The examiner noted the Veteran’s meniscectomy in 1991. The examiner did not note the symptoms associated with the left knee meniscectomy, but also did not check the “no current symptoms” box. There was no evidence of ankylosis, impairment of the tibia or fibula, or genu recurvatum. The Veteran’s treatment records do not show findings consistent with higher ratings for his left knee disability. The Veteran’s left knee condition does not warrant an increased rating based on limitation of range of motion. The Veteran has not demonstrated left knee limitation of flexion to 30 degrees or less. Even considering the Veteran’s limitations during flare-ups and after repetitive motion, the Veteran demonstrated knee flexion to 80 degrees, in excess of even a noncompensable rating (60 degrees) under Diagnostic Code 5260. As such, a higher rating under Diagnostic Code 5260 is not warranted during the appeal period. 38 C.F.R. § 4.71a, DC 5260. The Veteran has demonstrated compensable left knee limitation of extension; however, at worst the competent evidence of record demonstrates extension to 10 degrees, consistent with a 10 percent rating. The Veteran’s flare-ups cause functional loss but does not cause functional loss in terms of range of motion and does not cause limitation of extension to 15 degrees or more. As such, the criteria for a 20 percent rating based on limitation of extension under Diagnostic Code 5261 are not met. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Additionally, the Board finds that a rating in excess of 10 percent is not warranted based upon the Veteran’s arthritis and limitation of motion under Diagnostic Code 5003. As noted above, a 10 percent evaluation is assigned for arthritis that results in noncompensable limitation of motion of the joint under the appropriate diagnostic code. Here, a 10 percent rating has been assigned based upon limitation of motion of the left knee. A higher 20 percent rating is available with X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations warrants a 20 percent evaluation. Here, the only joint involved is the Veteran’s left knee and has not resulted in incapacitating exacerbations based upon the clinical evidence. As such a rating in excess of 10 percent is not warranted for the Veteran’s arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5003. The Board also finds that separate ratings are not available for pursuant to Diagnostic Codes 5260 or 5261. While the evidence establishes that the Veteran has arthritis of the left knee, noncompensable limitation of flexion of the left knee, and compensable limitation of extension of the left knee, the Board finds that separate ratings for these symptoms would constitute impermissible pyramiding. 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, the Board finds that separate ratings under Diagnostic Codes 5260 and 5003, would contemplate the Veteran’s limitation of flexion twice. Additionally, VA General Counsel has held if the criteria for a compensable rating under Diagnostic Codes 5260 and 5261 are met, separate ratings can be assigned. Here, the Veteran’s limitation of flexion is not to 45 degrees or less, as such, separate ratings for his limitation of flexion and limitation of extension cannot be assigned. The Board has also considered whether higher or separate ratings are warranted based upon other related diagnostic codes. Diagnostic Code 5256 evaluates ankylosis of the knee. The record contains no evidence of right knee ankylosis. As such, this Diagnostic Code is not applicable. Diagnostic Code 5262 evaluates impairment of the tibia and fibula. The record contains no evidence of an impairment of the tibia and fibula. As such, this Diagnostic Code is not applicable. Diagnostic Code 5263 evaluates genu recurvatum. The record contains no evidence of genu recurvatum. As such, this Diagnostic Code is not applicable. Diagnostic Code 5258 evaluates semilunar cartilage, which is synonymous with the meniscus. A 20 percent rating is assigned for a meniscus that is dislocated, with frequent episodes of “locking,” pain, and effusion into the joint. Under Diagnostic Code 5259, a maximum 10 percent rating is prescribed for removal of symptomatic semilunar cartilage. The Veteran had a left knee meniscectomy in 1991 and the weight of the evidence supports a finding that it is symptomatic. Unfortunately, the Board finds that a separate rating under Diagnostic Code 5259 would violate the rule against pyramiding with his assigned ratings under Diagnostic Code 5257 and at the very least Diagnostic Code 5003. The May 2012 VA examiner noted that the Veteran had a meniscal condition with frequent episodes of joint pain and the March 2016 VA examiner noted that the Veteran’s meniscectomy caused residual left knee joint pain. It is unclear if the Veteran’s symptoms of instability are caused by the Veteran’s meniscal issues; however, the Veteran’s meniscal issues have been noted to cause the Veteran pain which is considered by the Veteran’s 10 percent rating assigned for Diagnostic Code 5003 that is based upon the Veteran’s limitations caused by painful motion. As such, the Board finds that a separate rating under Diagnostic Code 5259 is not warranted. 38 C.F.R. §§ 4.14, 4.71a, Diagnostic Code 5259. The Board also finds that a higher or separate rating is not warranted under Diagnostic Code 5258. While the Veteran does have a meniscal condition with frequent episodes of joint pain, the Board finds that the evidence of record does not support that the Veteran’s condition more nearly approximates a meniscus that is dislocated, with frequent episodes of “locking,” pain, and effusion into the joint. The May 2012 VA examiner noted that the Veteran had a meniscal condition with frequent episodes of joint pain and the March 2016 VA examiner noted that the Veteran’s meniscectomy caused residual left knee joint pain. The November 2019 VA examiner did not report the presence of frequent locking or joint effusion. VA treatment records report that x-rays of the left knee from August 2013 report that there was no evidence of joint effusion. The Board finds that the weight of the evidence is against a finding that the Veteran’s meniscal condition has caused frequent episodes of locking and effusion into the joint. As such, a separate rating under Diagnostic Code 5258 is not warranted. The Board acknowledges that the Veteran’s left knee causes him impairment. The Board also acknowledges the Veteran’s wife’s lay statements regarding his left knee disability. She stated in a September 2017 correspondence with VA that he gets steroid injections in his knees to temporarily relieve the pain. She stated that he is in pain all the time, that he wears a knee brace on both knees, and that he also uses a walker. She further stated that his mobility is very limited. The Board is sympathetic to these claims and finds her statements to be credible, however, as explained above, the criteria for increased ratings have not been met. Accordingly, a rating in excess of 10 percent under Diagnostic Codes 5256, 5258, 5259, and 5260-5263 is denied. 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Codes, 5010, 5256, 5258, 5259, 5260-5263. P. M. Johnson Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Fu, 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.