Citation Nr: 20054445 Decision Date: 08/17/20 Archive Date: 08/17/20 DOCKET NO. 13-33 608 DATE: August 17, 2020 ORDER A rating in excess of 10 percent for left knee lateral instability, prior to March 5, 2018, is denied. A rating in excess of 10 percent for a left knee disability status post partial meniscectomy, prior to February 23, 2018, is denied. A rating in excess of 30 percent for a left knee disability status post partial meniscectomy, from February 23, 2018, through March 4, 2018, is denied. A separate rating of 20 percent for frequent episodes of locking and effusion of the left knee is granted. FINDINGS OF FACT 1. The Veteran served on active duty from March 1977 to March 1980. 2. Prior to February 23, 2018, the left knee disability was manifested by subjective complaints of pain, giving way, and locking. Objective findings included arthritis, recurrent meniscal tear, slight instability, limitation of flexion, and effusion. 3. From February 23, 2018, through March 4, 2018, the left knee disability was manifested by subjective complaints of pain, giving way, and locking. Objective findings included arthritis, recurrent meniscal tear, ankylosis, slight instability, limitation of flexion, and effusion. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for left knee lateral instability, prior to March 5, 2018, have not been met. 38 U.S.C. §§ 1117, 1155, 5103(a), 5103A (2012); 38 C.F.R. §§ 4.1, 4.3, 4.31, 4.59, 4.7, 4.71a, Diagnostic Codes (DC) 5010-5257 (2020). 2. The criteria for a rating in excess of 10 percent for a left knee disability status post partial meniscectomy, prior to February 23, 2018, have not been met. 38 U.S.C. §§ 1117, 1155, 5103(a), 5103A (2012); 38 C.F.R. §§ 4.1, 4.3, 4.31, 4.59, 4.7, 4.71a, DCs 5010-5256 (2020). 3. The criteria for a rating in excess of 30 percent for a left knee disability status post partial meniscectomy, from February 23, 2018, through March 4, 2018, have not been met. 38 U.S.C. §§ 1117, 1155, 5103(a), 5103A (2012); 38 C.F.R. §§ 4.1, 4.3, 4.31, 4.59, 4.7, 4.71a, DCs 5010-5256 (2020). 4. The criteria for a separate rating of 20 percent, but no greater, for frequent episodes of locking and effusion of the left knee have been met. 38 U.S.C. §§ 1117, 1155, 5103(a), 5103A (2012); 38 C.F.R. §§ 4.1, 4.3, 4.31, 4.59, 4.7, 4.71a, DCs 5010-5258 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS This appeal was previously addressed by the Board in May 2018, at which time the Board granted a temporary total evaluation for the left knee for a period of post-surgical convalescence. The issues of increased ratings for the left knee disability manifestations prior to the surgery were remanded, as was the issue of the rating appropriate to the left knee replacement after the convalescence period. In a June 2018 rating decision, a 30 percent rating was assigned to the left knee replacement after the end of the convalescence, but in an April 2020 rating decision, the rating assigned was increased to 60 percent. The decision stated that the appeal was resolved as the 60 percent rating is the maximum available for a knee replacement under Diagnostic Code 5055, which is correct. The Veteran also did not dispute that determination. Therefore, the issue of the appropriate rating assigned to the Veteran’s left knee replacement has been resolved and the issues remaining on appeal pertain only to the ratings assigned to the Veteran’s left knee disability prior to his surgery on March 5, 2018. Turning to the relevant laws and regulations, disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. The Veteran’s left knee disability has been rated as 10 percent disabling under DCs 5010-5260 for limitation of flexion of the knee due to arthritis post partial meniscectomy prior to February 23, 2018 and as 30 percent disabling thereafter until March 5, 2018 under DCs 5010-5256 for symptoms of arthritis manifested by ankylosis. An additional 10 percent rating was assigned under DCs 5010-5257 for instability from January 13, 2012, (the date of the claim for increase) to March 5, 2018. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. The additional code is shown after a hyphen. The Board will consider all potentially relevant diagnostic codes. In this regard, separate ratings for knee disabilities may be assigned for limitation of flexion, limitation of extension, instability, and dislocated cartilage. Thus, to warrant a higher rating, the evidence must show: • ankylosis of the knee in a favorable angle in full extension or on slight flexion between 0 degrees and 10 degrees (30% under DC 5256); • ankylosis of the knee in flexion between 10 degrees and 20 degrees (40% under DC 5256); • moderate instability of the knee (20% under DC 5257); • symptomatic removal of the semilunar cartilage (10% under DC 5259) • flexion of the knee limited to 45 degrees (10% under DC 5260) • flexion of the knee limited to 30 degrees (20% under DC 5260); • flexion of the knee limited to 15 degrees (30% under DC 5260); • extension of the knee limited to 15 degrees (20% under DC 5261); • extension of the knee limited to 20 degrees (30% under DC 5261); • extension of the knee limited to 30 degrees (40% under DC 5261); • dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint (20% under DC 5258). The maximum rating for arthritis of a major joint under DC 5010 is 10 percent and such rating may only be assigned when the limitation of motion is not compensable. 38 C.F.R. § 4.71a, DC 5010. Accordingly, as limitation of flexion or ankylosis has been compensated throughout the appeal period, a separate rating under DC 5010 is not applicable. Turning to the evidence, the Veteran has not been diagnosed with impairment of the tibia and fibula (DC 5262). Therefore, this diagnostic code is not for application. At a June 2012 VA examination, the diagnoses were left knee meniscectomy and left knee degenerative joint disease (DJD) with meniscal tear. The Veteran reported pain daily with flare-ups of pain resulting from aggravation due to increased activity. Left knee flexion was from 0 degrees extension to 120 degrees flexion with pain at 75 degrees. There was no additional loss of motion with repetition. The examiner found tenderness to palpation of the soft tissues of the knee. X-rays showed post-traumatic, post-surgical DJD with collapse lateral greater than medial of the joint, and patellar tendinosis. In February 2018, the Veteran had a Disability Benefits Questionnaire (DBQ) completed by a private physical therapist. The Veteran reported problems with the knee giving out and trouble navigating stairs. Range of motion was from -7 degrees extension to 118 degrees flexion. Repetitive motion resulted in further reduced range of motion from -10 degrees extension to 110 degrees flexion. The clinician stated that the Veteran had end-range pain with range of motion and pain with weight-bearing. Additional factors of disability included less movement than normal, weakened movement, excess fatigability, pain on movement, swelling, instability, disturbance of locomotion, interference with sitting. Additionally, there was potential for knee buckling. The clinician observed flexion contracture at 7 degrees active range of motion (AROM) and 4 degrees passive range of motion (PROM) and noted ankylosis in favorable angle in full extension or in slight flexion between 0 and 10 degrees. Instability testing was normal except for 1+ medial instability. There was increased edema, reportedly worse with activity. The clinician found meniscal involvement secondary to advanced osteoarthritis causing frequent episodes of joint locking, joint pain, and joint effusion. Overall functional impairment included difficulty ambulating, especially community distances, and pain with stair navigation, squatting, and getting in and out of a vehicle. A review of treatment notes reveals that during the appeal period the Veteran underwent VA physical therapy for his left knee and received injections to mitigate symptoms. In addition, he sought private treatment for his left knee, which resulted in the recommendation and completion of the left knee replacement in March 2018. Notably, in February 2012, a private physician found range of motion from -4 degrees extension to 130 degrees flexion, deconditioning of the knee with mild swelling, and motor tone 4+/5. The diagnosis was recurrent medial meniscus tear superimposed on DJD, which was supported by a March 2012 MRI. A June 2014 treatment note documented reports of locking. A December 2017 VA orthopedic consult found range of motion from 0 degrees extension to 120 degrees flexion, negative McMurray’s test, positive anterior drawer test, and slight opening with varus stress. For the left knee instability, the 10 percent rating assigned contemplated slight instability. In a November 2017 statement, the Veteran asserted that his instability was more than slight. However, while he reported feeling like his knee was going to buckle, trouble navigating stairs, and experiencing at least one fall due to the knee giving out, treatment notes did not document any more than a slight degree of instability with only slight opening to varus stress found in December 2017. Further, clinical testing of knee instability at VA examinations consistently found 1+ instability, which is the lowest level of instability above normal on a scale from 0 to 3+. Accordingly, while the Board has considered the Veteran’s subjective perceptions of his instability, a rating in excess of 10 percent is not warranted at any time during the period on appeal. Regarding the definition of slight, moderate, and severe for Diagnostic Code 5257, the Board is of the opinion that, even considering the Veteran’s lay statements regarding instability, more than slight instability would be supported by objective testing showing more than 1+ instability. Further, to the extent the Veteran argues that he is entitled to a higher rating due to injury to other body parts (e.g., hips, back, elbow) due to the antalgic gait caused by his left knee disability or from falls caused by his left knee, such injuries or symptoms may not be rated as part of a left knee disability. Service connection is already in effect for right and left hip disabilities and right elbow trauma, as associated with the left knee disability, but he may file for increased ratings for those disabilities if he chooses. Regarding his back, service connection was claimed and denied, but he may attempt to reopen that claim. Regarding the ratings for the left knee disability status post partial meniscectomy, the 10 percent rating assigned prior to February 23, 2018, contemplated the Veteran’s traumatic arthritis resulting in limitation of flexion (DCs 5010-5260). The 10 percent rating is the maximum rating available under DC 5010 and is assigned when arthritis results in limitation of motion not compensable under the limitation of motion codes. Separate ratings may not be assigned for arthritis and limitation of motion, and the criteria for a rating in excess of 10 percent have not been met under the codes for limitation of flexion (DC 5260) and limitation of extension (DC 5261). Flexion was limited to greater than 45 degrees, even when considering the Veteran’s experience of pain with motion, and the knee consistently reached full extension or better. Regarding other rating codes, the Veterans Claims Court has found that separate ratings may be assigned under DCs 5258 and 5259 if manifestations under those codes are not otherwise contemplated in the rating(s) assigned. Lyles v. Shulkin, 29 Vet. App. 107 (2017). Further, as the Veteran has a diagnosed recurrent meniscal tear and is also post-menisectomy, both DC 5258 (for dislocated cartilage) and DC 5259 (for symptomatic removal of cartilage) are for consideration. Regarding DC 5258, slight to moderate effusion was frequently documented in treatment notes, imaging studies, and clinical examinations. Further, an April 2018 VA examination, performed post-knee replacement, reported a history of pain, giving out, and effusion prior to the surgery. As for locking, while locking was a reason for surgery during service, the evidence regarding locking during the appeal period is equivocal. For example, in June 2014, his reports were documented as “occasional ? locking,” and locking was denied in some treatment notes, and the June 2012 VA examination. Nevertheless, the February 2018 DBQ recorded frequent episodes of joint locking, joint pain, and joint effusion as existing and ongoing manifestations, and the Veteran’s concerns over falling and navigating stairs, as well as other limitations such as climbing ladders as reported in lay statements contemplated locking of the knee as well as instability. Accordingly, the Board affords the Veteran the benefit the doubt and finds that a separate rating of 20 percent, but no greater is warranted under DCs 5010-5258 for the period prior to February 23, 2018. Finally, none of the medical evidence prior to February 2018 documented ankylosis of the left knee to any degree so as to warrant assignment of a rating under DC 5256 for that period. For the period from February 23, 2018, through March 4, 2018, the 30 percent rating assigned contemplated the ankylosis documented in the February 2018 DBQ. The ankylosis described concerned flexion contracture; hence assignment of a separate rating under DC 5260 would be pyramiding, which is prohibited. 38 C.F.R. § 4.14; see Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). There was no limitation of extension to warrant consideration of a separate or higher rating under DC 5261. Regarding DC 5258, while the clinician documented frequent episodes of joint locking, joint pain, and joint effusion, locking is arguably be contemplated in the rating for ankylosis. Nevertheless, the effusion and pain are not. Accordingly, the Board determines that a separate rating under DCs 5010-5258 is also warranted for the period from February 28, 2018, through March 4, 2018. Finally, regarding DC 5259, the 10 percent rating is assigned for symptomatic removal of the cartilage. As the Veteran’s post-surgical symptoms of painful motion, instability, locking, and effusion are contemplated in the ratings assigned by the agency of original jurisdiction (AOJ) and the Board herein, a rating under DC 5259 would also be pyramiding. Thus, a separate rating of 20 percent, but no greater, is granted for frequent episodes of locking and effusion of the left knee throughout the appeal period. All other higher and separate ratings are denied. As is evident from the above discussion, the Board has considered the Veteran’s lay statements that his disability is worse, as well as the statements of his wife and daughter. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Similarly, his wife and daughter are competent to speak to their observations of his symptoms and limitations. However, laypersons such as the Veteran and his daughter are not competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. The Veteran’s wife is a nurse and therefore, has applicable technical and medical knowledge. However, her statement provided no details of the Veteran’s left knee manifestations not also presented in medical evidence. Rather, her statement primarily concerned secondary effects of the left knee, such as injury to the hips and back. Competent evidence concerning the nature and extent of the Veteran’s left knee disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which this disability is evaluated. Moreover, as the examiners have the requisite medical expertise to render a medical opinions regarding the degree of impairment caused by the disability and had sufficient facts and data on which to base the conclusion, the Board affords the medical opinions great probative value. As such, these records are more probative than the Veteran’s subjective complaints of increased symptomatology. In sum, after a careful review of the evidence of record and application of the benefit of the doubt rule, ratings in excess of those assigned by the AOJ and the Board herein are not warranted, and such ratings are denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (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). DUSTIN L. WARE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. M. Schaefer, 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.