Citation Nr: 20021955 Decision Date: 03/30/20 Archive Date: 03/30/20 DOCKET NO. 14-16 341 DATE: March 30, 2020 ORDER An initial rating in excess of 10 percent for a left knee disability (limited flexion) is denied. An initial rating in excess of 10 percent for a right knee disability (limited flexion) is denied. An initial rating of 20 percent, but no higher, for a left knee disability (moderate instability) is granted. An initial rating of 20 percent, but no higher, for a right knee disability (moderate instability) is granted. A separate rating of 20 percent, but no higher, for a left knee disability based on meniscus tear with locking, pain, and effusion, is granted effective April 17, 2012. A separate rating of 20 percent, but no higher, for a right knee disability based on meniscus tear with locking, pain, and effusion, is granted for the period on appeal.   FINDINGS OF FACT 1. The Veteran’s bilateral knee disabilities are manifested by painful flexion of at least 90 degrees with extension to 0 degrees. 2. The Veteran’s bilateral knee disabilities are manifested by objective instability reflecting moderate instability. 3. From April 17, 2012 onward, the Veteran’s left knee disorder is manifested by symptoms such as frequent episodes of locking, pain, and swelling. 4. For the period on appeal, the Veteran’s right knee disorder is manifested by symptoms such as frequent episodes of locking, pain, and swelling. CONCLUSIONS OF LAW 1. The criteria for initial ratings in excess of 10 percent disabling for residuals of bilateral knee disabilities (flexion) have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.3, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5260. 2. The criteria for increased initial ratings of 20 percent for bilateral knee instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, DC 5257. 3. From April 17, 2012 onward, the criteria for a separate rating of 20 percent for the left knee disorder have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5258. 4. For the period on appeal, the criteria for a separate rating of 20 percent for the right knee disorder have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5258. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Marine Corps from July 1969 to July 1971. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In January 2016 and February 2018, the Board remanded this matter for additional development. This matter has now returned to the Board for appellate consideration. The Board finds there has been substantial compliance with its prior remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). For example, the Veteran’s representative was provided an opportunity to make additional arguments. Additionally, the Board notes that a March 2014 rating decision granted bilateral knee instability and assigned 10 percent ratings effective November 23, 2013. Increased Rating 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 percentages are based on the average impairment of earning capacity as a result of service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations 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. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board must also consider staged ratings, which are appropriate in this case. Hart v. Mansfield, 21 Vet. App. 505, 509–10 (2007). Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. Degenerative arthritis is rated based on limitation of motion under the appropriate diagnostic code for the specific joint or joints involved. Where there is noncompensable limitation of motion, a 10 percent evaluation is assigned for each major joint or group of minor joints, where the limitation is objectively confirmed by swelling, muscle spasm, or satisfactory evidence of painful motion. Where there is no limitation of motion, a 10 percent evaluation is assigned for x-ray evidence of involvement of two or more major joints or minor joint groups, and a 20 percent evaluation is assigned for x-ray evidence of involvement of two or more major joints or minor joint groups, with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, DC 5003, Note (1). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”). However, a veteran may be entitled to a higher disability evaluation than that supported by mechanical application of the rating schedule where there is evidence that his or her disability causes “additional functional loss—i.e., ‘the inability... to perform the normal working movements of the body with normal excursion, strength, speed, coordination[,] and endurance’—including as due to pain and/or other factors” or “reduction of a joint’s normal excursion of movement in different planes, including changes in the joint’s range of movement, strength, fatigability, or coordination.” Lyles v. Shulkin, 29 Vet. App. 107, 117-18 (2017) (quoting 38 C.F.R. § 4.40 and citing 38 C.F.R. § 4.45); Mitchell v. Shinseki, 25 Vet. App. 32, 36-37 (2011); DeLuca v. Brown, 8 Vet. App. 202, 205-07 (1995). The intent of the rating schedule is to recognize painful motion with joint and periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or maligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). 1. Entitlement to initial ratings in excess of 10 percent for left and right knee disabilities. Normal flexion of the knee is to 140 degrees, and normal extension of the knee is to 0 degrees. 38 C.F.R. § 4.71, Plate II. Under 38 C.F.R. § 4.71a, DC 5257 covers “other impairment of the knee,” and an assignment of a 10 percent rating is warranted when there is slight recurrent subluxation or lateral instability. A 20 percent rating is warranted when there is moderate recurrent subluxation or lateral instability. A 30 percent evaluation is for severe knee impairment with recurrent subluxation or lateral instability. Additionally, DC 5258 covers dislocated semilunar cartilage with frequent episodes of locking, pain and effusion into the joint; this warrants a 20 percent rating. Finally, DC 5259 covers removal of symptomatic semilunar cartilage, which warrants a 10 percent rating. Under DC 5260, leg flexion limited to 60 degrees warrants a noncompensable rating. Leg flexion limited to 45 degrees warrants a 10 percent rating. Leg flexion limited to 30 degrees warrants a 20 percent rating. Leg flexion limited to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a, DC 5260. Under DC 5261, leg extension limited to 5 degrees warrants a noncompensable rating. Leg extension limited to 10 degrees warrants a 10 percent rating. Leg extension limited to 15 degrees warrants a 20 percent rating. Leg extension limited to 20 degrees warrants a 30 percent rating. Leg extension limited to 30 degrees warrants a 40 percent rating. Leg extension limited to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a, DC 5261. A knee disability can be rated for both limitation of leg flexion under DC 5260 and limitation of leg extension under DC 5261. See VAOPGCPREC 9-2004 (Sept. 17, 2004). Additionally, General Counsel Opinion 9-98 directs that with respect to Diagnostic Code 5259, limitation of motion can be a relevant consideration so the provisions of 38 C.F.R. § 4.40 and 4.45 must be considered. Because there is no indication that the structural integrity of the Veteran’s service-connected joints 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 and looking at all the relevant medical and lay evidence. It is acknowledged that some of examiners did not provide an estimated loss of motion during flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). However, the Board finds that additional development solely for this purpose would serve only to delay the claim. Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); see also Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board). As noted below, the examination report contains evidence regarding the frequency, severity, and duration of the Veteran’s pain level during flare-ups per his report. The Board finds such information pertinent and useful when evaluating the disability picture concerning the Veteran’s service-connected disabilities. The Veteran underwent an examination in January 2010. It was reported that he had pain at all times and had occasional swelling. He had functional loss in that he was unable to run, and had pain performing household chores. At this time, he did not have locking, popping or catching. His knees gave out on occasion. He had normal range of motion testing without pain, weakness, incoordination, lack of endurance, or fatigability. An additional examination was performed in November 2013. He had flare-ups where he had difficulty with walking or standing of prolonged periods. He had bilateral knee flexion of 125 degrees. He had pain at 95 degrees for his right knee and at 110 degrees for his left knee. His knee extension was normal (zero degrees) bilaterally, but he had pain at 25 degrees for his right knee. He was able to perform three times repetitive use testing with no additional loss of function or range of motion. He had less movement than normal bilaterally, weakened movement for his right knee, and pain on movement for both knees. Pain and weakness limited functional ability when used repeatedly over time. He had pain on palpation/tenderness. He had reduced muscle strength (4/5 active movement against some resistance) for his right knee flexion and extension. He had joint instability. For his right knee, he had 2+ (5-10mm) for anterior and posterior instability, and 1+ (0-5mm) for medial lateral instability. For his left knee, he had 1+ (0-5mm) anterior and posterior instability with normal posterior instability. He did not have a history of recurrent patellar subluxation or dislocation. He did not have recurrent patellar dislocation, shin splints, stress fractures, chronic exertional compartment syndrome, or any other tibial or fibular impairment. He had frequent episodes of joint pain from his meniscal tear and meniscectomy for his right knee. He constantly used a cane. In February 2016, a VA examination was performed. At the time, he did not report flare-ups, but had functional loss in that he was no longer able to perform sporting activities. He had 90 degrees of flexion for both knees with pain that caused functional loss. He had normal range of motion (zero degrees) for his extension. He had pain with weight-bearing and localized tenderness/pain on palpation. Crepitus was documented. He was able to perform three times repetitive use testing with no additional loss of function or range of motion. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time. He had normal muscle strength, no atrophy, and no ankylosis. The examiner reported that he did not have a history of recurrent subluxation, lateral instability, or a history of recurrent effusion. He had normal joint instability testing for Lachman, posterior, medial, and lateral instability. He did not have a history of recurrent patellar subluxation or dislocation. He did not have recurrent patellar dislocation, shin splints, stress fractures, chronic exertional compartment syndrome, or any other tibial or fibular impairment. The examiner reported that he had not have a meniscus condition or surgery. He occasionally used knee braces and regularly used a cane. The Board notes that this examination does not appear to be based on a complete review of the record as the Veteran’s meniscus tears and surgery were not documented. The Veteran’s medical records show joint injections of corticosteroids in his knees in March 2011. He had a right knee arthroscopy in 1996 that removed most of his meniscus. He had a horizontal tear in the posterior horn of the left medial meniscus reported on April 17, 2012. Joint swelling was reported. The Veteran currently has 10 percent ratings for his bilateral knees under DC 5003-5260 for the period on appeal, and 10 percent ratings under DC 5257 from November 23, 2013 onward. After review of the competent and probative evidence, the Board finds that ratings in excess of 10 percent for limited flexion under DC 5260 are not warranted. During the entire period on appeal, the Veteran has not had worse than 90 degrees of flexion (limitation to 30 degrees in need for the next-higher 20 percent rating). Additionally, the Board finds that compensable ratings for limited extension are not warranted under DC 5261. The Veteran has had normal extension (zero degrees) during the period on appeal as shown on the examination reports detailed above. Moreover, the weight of the evidence does not support a finding that the Veteran’s disability picture due to functional loss/limitations or flare-ups with limitation of motion is more nearly approximated by a higher rating. Considering the Deluca and Mitchell factors, and the evidence of record, the Board finds that the current 10 percent ratings already compensates the Veteran for any functional loss due to pain affecting the knees, to include pain and limited motion. Deluca, 8 Vet. App. at 204-07. In light of the foregoing, the Board finds that an increased rating due to functional impairment would not be appropriate under the criteria for 38 C.F.R. §§ 4.40 and 4.45. Additionally, when resolving reasonable doubt in favor of the Veteran, the Board finds that higher ratings of 20 percent for moderate instability are warranted from November 23, 2013, onward under DC 5257. In the November 2013 examination there was competent medical evidence of instability (positive instability testing). Indeed, several joint stability tests showed instability (anterior and posterior of 1+ (0-5 mm) for the left knee, and anterior/posterior of 2+ (5-10mm) and medial lateral of 1+ (0-5mm) for his right knee. Given the tests performed are generally recognized in the medical community as diagnostic for instability and subluxation, the results are afforded high probative value. However, they did not reflect a degree greater than moderate as no test revealed a 3+ (10-15 mm). The Board acknowledges that the Veteran did not have documented instability at the 2016 VA examination. However, the Board has assigned less probative value to that examination as it appears to be incomplete as the examiner did not accurately detail the Veteran’s medical history for his knees (no reported meniscus tears or surgery). As such, when resolving reasonable doubt in favor of the Veteran, ratings of 20 percent for moderate instability are warranted from November 23, 2013, onward. The Board also finds that a separate rating under DC 5258 is warranted for the Veteran’s right knee for the period on appeal. He has had a documented right knee meniscus tear and had an arthroscopy repair in 1996. A rating under DC 5258 is also warranted from April 17, 2012 onward, for his left knee. This is the date his records show a tear in his left medial meniscus. The evidence shows locking, pain, and swelling for both knees. Moreover, the Board finds the pain associated with the Veteran’s meniscus tears are separate than the pain associated with his painful range of motion. As such, ratings of 20 percent, but no higher, are warranted for the period on appeal for the right knee, and from April 17, 2012, onward for the left knee. Additionally, as the Veteran is receiving 20 percent ratings under Diagnostic Code 5258, and a separate rating under 5259 would constitute impermissible pyramiding, the Board finds a separate rating under Diagnostic Code 5259 is not warranted without discontinuing the rating under Diagnostic Code 5258. As a result, a rating under DC 5259 is not warranted. Additionally, ratings under 5256 and 5262 are also not warranted as the Veteran does not have ankylosis or impairment of the tibia and fibula. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Garrett Morales, 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.