Citation Nr: 20046875 Decision Date: 07/13/20 Archive Date: 07/13/20 DOCKET NO. 14-38 292 DATE: July 13, 2020 ORDER A rating in excess of 10 percent for left knee chondromalacia patella under is denied. A rating in excess of 10 percent for left knee arthritis is denied. A separate 10 percent rating for symptomatic removal of semilunar cartilage from the Veteran's February 21, 2013 semilunar cartilage surgery, under Diagnostic Code 5259, is granted. FINDINGS OF FACT 1. The Veteran’s service connected left knee chondromalacia permits flexion to at least 125 degrees and extension to 0 degrees. 2. The Veteran has left knee arthritis manifested by no more than slight recurrent subluxation or lateral instability. 3. The Veteran has symptomatic meniscal tear and had February 21, 2013 semilunar cartilage surgery for meniscal tear but does not have frequent episodes of “locking”, pain, and effusion into the joint. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for left knee chondromalacia patella have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003-5260, 5261. 2. The criteria for a rating in excess of 10 percent for left knee traumatic arthritis manifested by instability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5003, 5010. 3. The criteria for a separate 10 percent rating for symptoms related to meniscal tear following meniscal surgery under Diagnostic Code 5259 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5259. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from September 1969 to June 1971and from October 2001 to June 2002. These matters come before the Board of Veterans' Appeals (Board) from a June 2011 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Oakland, California. In January 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In the June 2011 rating decision on appeal, the RO granted service connection for traumatic arthritis of the left knee and assigned a 10 percent rating and continued a separate 10 percent rating for instability under 5257 for chondromalacia patella of the left knee. In a February 2015 rating decision, the RO found clear and unmistakable error in the June 2011 rating decision and combined the compensable 10 percent arthritis rating for the left knee with a noncompensable rating for arthritis for the right knee to a single 10 percent rating under 5010. The RO changed the Diagnostic Code for chondromalacia patella from 5257 to 5003-5260 in the July 2017 rating decision. Increased Ratings Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth 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. A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). Under Diagnostic Code 5003, when there is an absence of limitation of motion, and there is X ray evidence of involvement of 2 or more major joints, a 10 percent rating can be assigned. If there is an absence of limitation of motion, X ray evidence of involvement of 2 or more major joints, and occasional incapacitating episodes, a 20 percent rating can be assigned. A 10 percent rating is warranted for slight recurrent subluxation or lateral instability of the knee, a 20 percent rating for moderate recurrent subluxation or lateral instability, and a 30 percent rating for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Code 5257. Under Code 5258, a 20 percent rating is assigned for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. Under Code 5259, removal of semilunar cartilage that is symptomatic warrants a 10 percent rating. 38 C.F.R. § 4.71a. Flexion of the leg limited to 60 degrees warrants a 0 percent rating, flexion limited to 45 degrees warrants a 10 percent rating, flexion limited to 30 degrees warrants a 20 percent rating, and flexion limited to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a, Code 5260. 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, Code 5261. Flexion of the knee to 140 degrees is considered full, and extension to 0 degrees is considered full. 38 C.F.R. § 4.71, Plate II. When determining the severity of musculoskeletal disabilities, which are at least partly rated on the basis of range of motion, VA must consider the extent of additional functional impairment a Veteran may have above and beyond the limitation of motion objectively demonstrated due to pain, limited or excess movement, weakness, incoordination, and premature or excess fatigability, etc., particularly when symptoms "flare up," to include periods of prolonged use, and assuming these factors are not already contemplated in the governing rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; Sharp v. Shulkin, 29 Vet. App. 26, 31-35 (2017); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. See 38 C.F.R. § 4.59. In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities. The final sentence provides that [t]he 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. The Court found that, to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of § 4.59. Correia, 28 Vet. App. at 169-170. Evaluating non-service connected manifestations under a rating for a service connected disability constitutes pyramiding and is prohibited. 38 C.F.R. § 4.14. The Board notes that the Veteran currently has a 10 percent rating for his service connected left knee chondromalacia, based on painful motion of the knee under 38 C.F.R. § 4.59 (see the July 2017 rating decision), and which has been assigned Diagnostic Code 5003-5260; and that he has another 10 percent rating, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5003’s provisions that permit a 10 percent rating when there is an absence of compensable limitation of motion but X ray evidence of arthritis of 2 or more major joints (in this case, the AOJ found this for the Veteran's left and right knee). Given that the Veteran is essentially receiving two 10 percent ratings for the same manifestation (limitation of motion) of the same disability, arthritis, and that DC 5003 is only applicable when the limitation of motion is noncompensable under the appropriate Diagnostic Codes, the Board finds that it is more appropriate to rate the chondromalacia patella disability currently under DC 5003 under DC 5257, as it had been previously. [The Board also believes that the Veteran’s arthritis of the right knee should be characterized and listed separately from the left knee; however, the Board does not currently have jurisdiction over the right knee disability.]. Based on a review of the evidence, the Board finds that a rating in excess of 10 percent is not warranted for any part of the rating period for the Veteran's service-connected left knee chondromalacia patella pursuant to Diagnostic Code 5260 or 5261, including when 38 C.F.R. §§ 4.40, 4.45, and Sharp and Correia are considered. The evidence shows that the Veteran has left knee pain at times, including as shown by a January 2015 VA medical record, but that his left knee does not have a compensable degree of limitation of motion under Diagnostic Code 5260 or 5261, including when 38 C.F.R. §§ 4.40, 4.45, and Sharp and Correia are considered. The evidence shows that the Veteran has left knee flexion to at least 125 degrees and extension to 0 degrees. The Veteran’s left knee flexion was to 140 degrees on VA examination in January 2011, and his left knee extension was to 0 degrees, including after 3 repetitions. He had “limited” movement of his left knee in January 2012 but the precise nature of it was not reported, and so a higher rating cannot be assigned based on that record. He had normal left knee range of motion on VA examination in February 2015, including after repetitive motion testing. Range of motion was not painful on active, passive, or repetitive use testing, and there was no pain on weight-bearing or non-weight-bearing. The examiner indicated that the Veteran had no functional loss of his left lower extremity attributable to his left knee disability. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability during flare-ups or when the joint was used repeatedly over time. Muscle strength was 5/5 for left knee flexion and extension. The July 2017 VA examination shows that the Veteran denied flare-ups and that his left knee flexion was to 125 degrees and that extension was to 0 degrees. There was pain noted on examination, but it did not cause functional loss and it was not present on weight-bearing. Left knee muscle strength was 5/5 for flexion and extension, with no reduction in muscle strength, and no muscle atrophy. The October 2019 VA examination shows that the Veteran denied flare-ups and did not report functional impairment of the left knee joint. Left knee flexion was to 125 degrees, and extension was to 0 degrees. There again was no pain with weight-bearing. The Veteran was able to perform repetitive use testing with at least 3 repetitions with no additional functional loss afterwards. He was examined immediately after repetitive use testing, and pain, weakness, fatigability, or incoordination did not significantly limit functional ability. Muscle strength was again 5/5. The next question to be addressed is whether the Veteran can receive a higher rating than the current 10 percent assigned for arthritis, which the Board has more appropriately assessed under Diagnostic Code 5257. A December 15, 2014 VA medical record shows that the Veteran had progressively worsening left knee pain on ambulation, and that he was feeling that the joint was loose and hearing a popping sound. The Board finds that the preponderance of the evidence is against a finding that the Veteran has more than slight recurrent subluxation or lateral instability of his left knee, and so a rating in excess of 10 percent cannot be assigned for arthritis. While Dr. Welden indicated on a prescription form in January 2018 that the Veteran has moderate left knee instability and recurrent subluxation with walking, that finding was not explained and the other evidence of record regarding instability reveals that the Veteran’s instability more nearly approximates slight instability. The Veteran has denied having recurrent subluxation and/or instability on numerous occasions, and/or instability has been examined for on multiple occasions before and since then, without it being found. This includes at the times of the VA examinations in January 2011, February 2015, July 2017, and October 2019. His left knee was found to be stable, with the only exception being a questionably positive Lachman’s test on VA examination in January 2011. At that time, his medial and collateral ligaments appeared normal, and his anterior and posterior drawer test was negative. However, he reported looseness and popping on December 14, 2015, 1+ varus instability was found on VA evaluation on May 9, 2017. Also, in September 2018, the Veteran had a positive left knee valgus test but negative anterior and posterior drawer signs. Thus the preponderance of the evidence is against a finding that the Veteran has moderate left knee lateral instability or recurrent subluxation to warrant a 20 percent rating, as other than Dr. Welden’s note on the prescription form, there is no report indicating that moderate instability has been found on any examination or evaluation. It was not found on VA examination in October 2019 after Dr. Welden reported it in January 2018; Dr. Welden does not explain what his basis is for reporting that the Veteran has moderate instability and recurrent subluxation; the Veteran had only 1+ varus on 1 occasion, in May 2017; and only had a positive left knee valgus test in September 2018, with negative anterior and posterior drawer signs; and his left knee was clinically stable on a number of other occasions. And, the Veteran has steadfastly denied recurrent subluxation or lateral instability, including on VA examination in October 2019, after Dr. Welden’s report. When the Veteran was asked if his left knee had ever given out on him or caused him to fall, he testified in January 2018 that he had caught himself from almost falling. No evidence except for the unexplained statement from Dr. Welden reports moderate instability and recurrent subluxation with walking. That statement is accorded very little probative value, as it is unclear what prompted it (was there an interview, examination, evaluation, or assessment, etc., before it was written?) and what supports it, and because it conflicts with the other evidence including the Veteran's own repeated statements before and after it. The next question is whether a 20 percent rating is warranted under Diagnostic Code 5258 for any part of the rating period. This Diagnostic Code requires dislocated semilunar cartilage with frequent episodes of “locking”, pain, and effusion into the joint for its only rating, which is a 20 percent rating. The Board finds that such a rating is not warranted. While there is persuasive evidence that the Veteran had a left knee medial meniscus tear (which qualifies as a dislocated semilunar cartilage) as shown in part by February 2011/July 2012 and February 2015 VA medical records, frequent episodes of locking and effusion into the joint are not shown. Instead, there are no reports of locking, the Veteran denied locking in February and May 2015, and the July 2017 and October 2019 VA examination reports show that there is no history of recurrent effusion. The next question to be addressed is whether there is symptomatic removal of semilunar cartilage to warrant a 10 percent rating under Diagnostic Code 5259 for any part of the rating period. The record shows that during arthroscopy on February 21, 2013, Dr. Allyn found a flap tear of the Veteran's left medial meniscus, and excised it with a motorized shaver. This procedure removed semilunar cartilage. As of March 13, 2013, the Veteran still had minimal pain remaining in his left knee. Subsequent records thereafter, including VA examination reports, noted left meniscal tear. Affording the Veteran the benefit of the doubt, the Board concludes that a separate rating under Diagnostic Code 5259 is warranted. See Lyles v. Shulkin, 29 Vet. App. 107, 118 (2017) (“where a certain manifestation of a disability has not been compensated via an assigned evaluation in a particular DC, evaluation of that manifestation under another DC would not constitute pyramiding”).   It is not claimed or shown that the Veteran has tibia and fibula impairment with malunion or nonunion, or genu recurvatum, and so compensable ratings under Diagnostic Codes 5262 and/or 5263 are not warranted. The Board thanks the Veteran for his service and wishes him well in the future. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Lawson 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.