Citation Nr: 20060302 Decision Date: 09/14/20 Archive Date: 09/14/20 DOCKET NO. 13-14 634 DATE: September 14, 2020 ORDER Entitlement to a rating in excess of 10 percent for a left knee disability, based on limitation of motion, is denied. Entitlement to a rating in excess of 10 percent for a right knee disability, based on limitation of motion, is denied. Entitlement to a separate disability rating of 10 percent, but no higher, for a right knee disability, based on residuals of a meniscectomy, is granted. FINDINGS OF FACT 1. The preponderance of the evidence shows that the Veteran's left knee disability is not manifested by ankylosis; symptomatic removal of semilunar cartilage; dislocated semilunar cartilage with frequent locking, pain, and effusion; recurrent subluxation or lateral instability; malunion or nonunion of the tibia and fibula; genu recurvatum; or limitation of flexion to 30 degrees or limitation of extension to 15 degrees. 2. The preponderance of the evidence shows that the Veteran's right knee disability is not manifested by ankylosis; dislocated semilunar cartilage with frequent locking, pain, and effusion; recurrent subluxation or lateral instability; malunion or nonunion of the tibia and fibula; genu recurvatum; or limitation of flexion to 30 degrees or limitation of extension to 15 degrees. 3. The preponderance of the evidence shows that the Veteran’s right knee disability is manifested by the removal of semilunar cartilage, symptomatic. CONCLUSIONS OF LAW 1. The criteria for disability ratings in excess of 10 percent for a left knee disability and in excess of 10 percent for a right knee disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a. 2. The criteria for a separate 10 percent rating, but no higher, for a right knee disability, based on residuals of a meniscectomy, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from April 1983 to May 1989. These matters come before the Board of Veterans’ Appeals (Board) on appeal of a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The June 2010 rating decision also proposed to discontinue the assignment of a 10 percent rating for left knee degenerative joint disease under DC 5010 separate from a 10 percent rating for left knee tendonitis under DC 5099-5024. The RO found that, since both conditions were rated under DC 5003 for arthritis based on limitation of motion, separate ratings violated the prohibition on pyramiding in 38 C.F.R. § 4.14 and constituted clear and unmistakable error (CUE). DC 5010 (traumatic arthritis) and DC 5024 (Tenosynovitis) are both required to be rated under Diagnostic Code 5003, the code for degenerative arthritis. 38 C.F.R. § 4.71 (a). A September 2010 rating decision implemented the discontinuance. A September 2017 Board decision found that the discontinuance of the separate ratings was proper and remanded the matters of entitlement to ratings in excess of 10 percent for each knee for additional development. The Board notes that the September 2017 Board decision, upholding the propriety of discontinuance of two separate ratings for the left knee, does not preclude separate ratings for other service-connected left knee pathology and symptoms not encompassed by the criteria in DC 5003. In a September 2018 Board decision, the Veteran’s claims were remanded again for additional development. These matters have returned to the Board for further appellate review. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. When rating the Veteran’s service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate higher or lower compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as “staged” ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The assignment of a particular diagnostic code to evaluate a disability is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis, and demonstrated symptomatology. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, with or without degenerative arthritis, it is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59; see Burton v. Shinseki, 25 Vet. App. 1, 5 (2011) (holding that the provisions of 38 C.F.R. § 4.59 are not limited to disabilities involving arthritis). Moreover, when evaluating musculoskeletal disabilities, VA may, in addition to applying the schedular criteria, assign a higher disability rating when the evidence demonstrates functional loss due to limited or excessive movement, pain, weakness, excessive fatigability, or incoordination, to include during flare-ups and with repeated use, if those factors are not considered in the rating criteria. See 38 C.F.R. § § 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202 (1995); Burton, 25 Vet. App. at 5. Nonetheless, a disability rating higher than the minimum compensable rating is not assignable under any diagnostic code relating to range of motion where pain does not cause a compensable functional loss. Rather, the "pain must affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance," as defined in 38 C.F.R. § 4.40, before a higher rating may be assigned. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011) (noting that while "pain may cause a functional loss, pain itself does not constitute a functional loss," and, is therefore, not grounds for entitlement to a higher disability rating). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). Entitlement to a disability rating in excess of 10 percent for a left knee disability and in excess of 10 percent for a right knee disability. The Veteran's service-connected right knee disability is currently rated as 10 percent disabling under DC 5259-5024 for “residuals, injury to right knee with x-ray evidence and patellofemoral malalignment with history of Osgood-Schlatter’s disease, status post partial medial meniscectomy and lateral parapatellar retinacular release.” The Veteran’s service-connected left knee disability is currently rated as 10 percent disabling under DC 5099-5024 for “patellar tendinitis with patellofemoral malalignment, symptomatic, with history of Osgood-Schlatter’s disease, left knee, with degenerative arthritis.” The Veteran contends that his symptoms are productive of a higher rating for both knees. As noted above, a separate rating for the Veteran’s left knee for degenerative arthritis under DC 5010 was discontinued as impermissible pyramiding by a September 2010 rating decision and affirmed by a September 2017 Board decision. However, this discontinuation does not preclude separate ratings for other service-connected left knee pathology and symptoms not encompassed by the criteria in DC 5003 and 5010, such as meniscal conditions, recurrent subluxation, lateral instability, or gena recurvatum. As to the Veteran’s current ratings, the Board notes that both knees were initially rated under DC 5099-5024 in a 1989 rating decision. Pursuant to a November 1993 rating decision, DC 5099 was replaced with DC 5259 (Cartilage, semilunar, removal of, symptomatic) for the Veteran’s right knee as the result of the Veteran’s partial medial meniscectomy in 1990. Diagnostic Code 5099 represents an unlisted disability requiring rating by analogy to one of the disorders listed under 38 C.F.R. § 4.71a. The record indicates that DC 5024, for tenosynovitis, was applied as analogous to the Veteran’s diagnosis for tendinitis, patellofemoral malalignment, and residuals of knee injury. The diseases under Diagnostic Codes 5013 through 5024, except gout, are rated on limitation of motion of the affected parts, as degenerative arthritis under DC 5003. DC 5003 provides 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. See 38 C.F.R. § 4.71a, Diagnostic Code 5003. When there is arthritis with at least some limitation of motion, but to a degree which would be noncompensable under a limitation-of-motion code, a 10 percent rating will be assigned for each affected major joint or group of minor joints. 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, a 10 percent evaluation is warranted if there is X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups and a 20 percent evaluation is authorized if there is X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups and there are occasional incapacitating exacerbations. Id. Under DC 5260, a noncompensable rating is warranted for flexion limited to 60 degrees. A 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. A 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. Under DC 5261, limitation of extension of the leg to 45 degrees warrants a 50 percent rating; limitation to 30 degrees warrants a 40 percent rating; limitation to 20 degrees warrants a 30 percent rating; limitation to 15 degrees warrants a 20 percent rating; limitation to 10 degrees warrants a 10 percent rating; and limitation to 5 degrees warrants a noncompensable rating. 38 C.F.R. § 4.71a, DC 5261. Normal knee flexion is to 140 degrees, and normal knee extension is to 0 degrees. See 38 C.F.R. § 4.71, Plate II. As the Veteran’s limitations of motion were found to be noncompensable under the appropriate rating codes, the Veteran was been assigned a 10 percent rating for each knee under DC 5003 (thru DC 5024) and in consideration of 38 C.F.R. § 4.59. With the long history and current status of the Veteran’s ratings for his bilateral knee disabilities in mind, the Board turns to the medical evidence. The Veteran was provided a VA examination for joints in April 2010. The Veteran was diagnosed with residual injury to right knee with patellofemoral malalignment and Osgood-Schlatter disease status post partial medial meniscotomy and lateral parapatellar retinacular release; degenerative joint disease associated with patellar tendonitis with patellofemoral malalignment symptomatic with Osgood-Schlatter disease left knee; and patellar tendonitis with patellofemoral malalignment symptomatic with a history of Osgood-Schlatter disease left knee. The examiner found bilateral evidence of crepitus, tenderness on palpation, and fluid on palpitation. The examiner noted pain at the end of extension bilaterally. The examiner found flexion of the right knee from 0 to 140 and from 0 to 96 after repetitive motion. The examiner found flexion of the left knee from 0 to 108 and from 0-82 after repetitive motion. No objective sign of pain was noted during range of motion testing. The examiner found normal stability upon testing. Upon review of x-rays, the examiner found no acute fracture, dislocation, or joint effusion. The examiner found that the bones are osteopenic with degenerative changes. The Veteran was provided a VA examination for knee and lower leg conditions in March 2013. The Veteran was diagnosed with residuals of injury to right knee with x-ray evidence of patellofemoral malalignment with history of Osgood-Schlatter’s disease, status post partial medial meniscectomy and lateral parapatellar retinacular release; and left knee degenerative joint disease with patellar tendonitis with patellofemoral malalignment symptomatic with history of Osgood-Schlatter’s disease. The Veteran reported flare ups once to twice per week depending on the amount of time spent standing and walking. The Veteran's right knee range of motion was measured at 0 to 110 degrees with pain at 110 degrees. The examiner found no limitation of extension or pain on extension. The examiner found range of motion after repetitive use testing ended at 110 degrees for flexion and no limitations of extension. The Veteran's left knee range of motion was measured at 0 to 120 degrees with pain at 120 degrees. The examiner found that the Veteran was unable to fully extend his left knee with extension ending at 10 degrees with pain. The examiner found range of motion after repetitive use testing ended at 10 degrees for flexion and extension to 10 degrees. The examiner found less movement than normal, pain on movement, and disturbance of locomotion were the contributing factors of functional loss, functional impairment, or additional limitation of range of motion of the knee. The examiner found pain on palpation or tenderness bilaterally. The examiner found normal muscle strength bilaterally. The examiner found normal joint stability upon testing bilaterally. The examiner found no evidence of a history of recurrent patellar subluxation/dislocation. The examiner did not find evidence of medial tibial stress syndrome (shin splints), stress fractures, chronic exertional compartment syndrome, genu recurvatum, or leg length discrepancy. The examiner found that the Veteran had a meniscal tear in his right knee and a partial medial meniscectomy with lateral retinacular release of the right knee in 1990. The examiner did not find any signs or symptoms due to the meniscectomy. The examiner found that imaging studies of the knee show degenerative or traumatic arthritis of the right knee. The examiner found that the Veteran’s bilateral knee disability does not impact his ability to work. Pursuant to the September 2017 Board remand, the Veteran was provided a VA examination for knee and lower leg conditions in March 2018. The examiner diagnosed the Veteran with residuals of injury to right knee with x-ray evidence of patellofemoral malalignment with history of Osgood-Schlatter’s disease, status post partial medial meniscectomy and lateral parapatellar retinacular release; and left knee degenerative joint disease with patellar tendonitis with patellofemoral malalignment symptomatic with history of Osgood-Schlatter’s disease. The Veteran did not report flare-ups of the knee or lower leg. The Veteran's right knee range of motion was measured at 0 to 100 degrees for flexion and 100 to 0 for extension. The Veteran's left knee range of motion was measured at 0 to 110 degrees for flexion and 110 to 0 for extension. The examiner noted pain on range of motion testing bilaterally but found that it does not cause functional loss. The examiner did not find localized tenderness, pain on palpation, or pain with weight bearing. The examiner found objective evidence of crepitus bilaterally. The examiner did not find reduced muscle strength or muscle atrophy. The examiner did not find additional loss of function or range of motion after three repetitions or repeated use over time. The examiner noted swelling and disturbance of locomotion for the Veteran’s right knee. The examiner found no additional factors contributing to disability in the Veteran’s left knee. The examiner did not find ankylosis, history of recurrent subluxation, history of lateral instability, history of recurrent effusion, joint instability upon testing, recurrent patellar dislocation, medial tibial stress syndrome (shin splints), stress fractures, chronic exertional compartment syndrome, genu recurvatum, or leg length discrepancy. The examiner found meniscal conditions, noting the Veteran’s right meniscal tear and meniscectomy. The examiner found residual symptoms of frequent episodes of joint locking and frequent episodes of joint pain in the Veteran’s right knee. The examiner found frequent episodes of joint pain in the Veteran’s left knee. The examiner found that degenerative or traumatic arthritis is documented by imaging studies bilaterally. The examiner found that the Veteran’s bilateral knee disability does not impact his ability to perform occupational tasks. Pursuant to the September 2018 Board remand, an addendum to the March 2018 VA examination was obtained in November 2019. Following consideration of additional evidence, the examiner made the following corrections and additions to the earlier examination. The examiner found pain limits functional ability with repeated use over a period of time in the Veteran’s right knee. The examiner found range of motion after repeated use over time limited to flexion from 0 to 90 degrees and extension from 90 to 0 degrees in the Veteran’s right knee. The examiner found no evidence of pain on passive range of motion testing or when used in non-weight bearing. The examiner stated that the Veteran’s right and left knee conditions alone should not preclude sedentary employment. The examiner further stated that activities requiring driving/operating machinery or other hazardous operations; climbing; lifting; carrying; bending; standing; walking; kneeling; squatting; or physical exertion are limited given the Veteran's significant limitations with range of motion bilaterally. The Board also notes that while treatment records also periodically document the Veteran's complaints and treatment related to his knee disabilities, nothing in these records show his adverse symptomatology to be markedly worse than what was reported at the above VA examinations. Based on the foregoing evidence, the Board finds that ratings in excess of the current 10 percent evaluations, currently based on limitation of motion, for the Veteran's left knee and right knee disabilities are not warranted. See 38 C.F.R. § § 4.7, 4.71a. Ratings in excess of 10 percent for the Veteran’s right and left knee disabilities are not available due to limited range of motion, as such a rating would require a finding of limitation of flexion to 30 degrees or limitation of extension to 15 degrees, which are not shown even when incorporating functional loss due to the factors set forth in 38 C.F.R. § § 4.40 and 4.45. See DeLuca, 8 Vet. App. at 207; see also Mitchell, 25 Vet. App. at 32; Correia, 28 Vet. App. at 158; Sharp, 29 Vet. App. at 26. Additionally, Diagnostic Code 5003 cannot serve as the basis for a higher rating for the knee disability, inasmuch as the knee is a single joint. A maximum rating of 10 percent would be assigned for the knee under Diagnostic Code 5003, therefore a higher rating is not warranted. 38 C.F.R. § 4.71a. Diagnostic Code 5003. While the Veteran has reported experiencing pain in his left and right knees (the basis of the 10% ratings), the medical findings are clear for any underlying neurological abnormalities. Thus, the Board finds that a separate rating for neurological manifestations, is not warranted. The Board has also considered whether separate or increased evaluations are warranted under any other Diagnostic Codes pertaining to knee disabilities that would afford the Veteran higher ratings. Here, there is no evidence of ankylosis of the knee to warrant a rating under Diagnostic Code 5256; no evidence of malunion or nonunion of the tibia and fibula to warrant a rating under Diagnostic Code 5262 for impairment of the tibia, no evidence of recurrent subluxation or lateral instability to warrant a rating under 5257; no evidence of dislocated semilunar cartilage with frequent locking, pain, and effusion to warrant a rating under Diagnostic Code 5258; and no evidence of genu recurvatum to warrant a rating under Diagnostic Code 5263. Hence, the Board will not discuss these Diagnostic Codes any further. There is also no evidence of symptomatic removal of semilunar cartilage to warrant a rating under Diagnostic Code 5259 for the left knee. Accordingly, the Board finds that the preponderance of the evidence shows that the Veteran's left knee disability is not manifested by ankylosis; symptomatic removal of semilunar cartilage; dislocated semilunar cartilage; malunion or nonunion of the tibia and fibula; genu recurvatum; or limitation of flexion to 30 degrees or limitation of extension to 15 degrees. Therefore, the Board finds that the criteria for a higher rating are not met. See 38 C.F.R. § 4.71a; Fenderson, supra. The record does show that the Veteran had a meniscal tear in his right knee that was treated with a partial medial meniscectomy. The record also shows that the Veteran has residual symptoms of joint locking and joint pain. Accordingly, the Board finds that the preponderance of the evidence indicates that the Veteran’s right knee disability is manifested by the removal of semilunar cartilage, symptomatic. In assigning a separate rating for the symptomatic residuals of a partial meniscectomy under DC 5259, the Board is cognizant of the rules against pyramiding. 38 C.F.R. § 4.14; see also Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In Lyles v. Shulkin, 29 Vet. App. 107 (2017) the Court held that the evaluation of a knee disability under Diagnostic Codes 5257 or 5261 or both did not, as a matter of law, preclude a separate evaluation of a meniscal disability of the same knee pursuant to DC 5258 or 5259. The Court explained that entitlement to a separate evaluation in a given case depends on whether the manifestations of disability for which a separate evaluation is being sought have already been compensated by an assigned evaluation under a different DC. The Court held that where a certain manifestation of a disability has not been compensated via an assigned evaluation under a particular DC, evaluation of that manifestation under another DC would not constitute pyramiding. Under the facts of this case, the Board finds that the residual symptoms of the Veteran's meniscectomy and meniscal pathology of his right knee, including joint locking and joint pain, are sufficiently distinct from the limitation of motion that serves as the basis for the Veteran’s current 10 percent rating for his right knee. Thus, a separate 10 percent rating for removal of semilunar cartilage under DC 5259 is warranted without violating the prohibition against pyramiding. In this regard, the current hyphenated rating for the Veteran’s right knee disability for both 5204 and 5259 can be split into separate and distinct ratings for the Veteran. As to additional increases for the Veteran’s right knee disability, the Board finds that the preponderance of the evidence shows that the Veteran's left knee disability is not manifested by ankylosis; dislocated semilunar cartilage; malunion or nonunion of the tibia and fibula; genu recurvatum; or limitation of flexion to 30 degrees or limitation of extension to 15 degrees. Therefore, the Board finds that the criteria for a higher ratings or separate ratings in addition to the new rating under DC 5259, are not met. See 38 C.F.R. § 4.71a; Fenderson, supra. In sum, the Board finds that entitlement to a ratings in excess of 10 percent for a left knee and right knee disabilities, based on painful motion, are not warranted; and that entitlement to a separate disability rating of 10 percent, but no higher, for a right knee disability, based on residuals of a meniscectomy, is warranted. While the Veteran believes that higher ratings are warranted for his left knee disability and may believe that his right knee disability warrants additional increases, the evidence of record does not support these beliefs. While the Veteran is competent to report the symptoms of his disabilities, he is not competent to opine on matters requiring medical knowledge, such as determining the severity of his medical condition at any given time, based on the criteria above. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Again, it is important for the Veteran to understand that the medical findings provide highly probative evidence against the claims that the Board cannot, unfortunately, ignore. The medical findings outweigh the Veteran's belief that his disability warrants a higher disability rating and provide a clear basis for the opinion. Therefore, the Board provides more weight to the competent medical evidence of record and must deny the claim. This does not suggest, in any way, that the Veteran is not having problems with the above disabilities. It is these problems that are the basis of the current ratings. While the Board acknowledges the Veteran has significant problems as a result of his knee disabilities, the evidence of record does not indicate that the Veteran meets the rating criteria for higher evaluations or additional separate ratings. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, where the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Neither the Veteran nor his representative has identified any other rating criteria that would provide a higher rating or an additional rating. However, the potential applications of various provisions of Title 38 of the Code of Federal Regulations (2016) have been considered as required by the holding of the Court in Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. VanValkenburg, 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.