Citation Nr: 21001685 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 16-16 599 DATE: January 11, 2021 ORDER Entitlement to an evaluation in excess of 10 percent for left knee disability with lateral instability is denied. Entitlement to an evaluation in excess of 10 percent for left knee disability with limitation of flexion is denied. FINDINGS OF FACT 1. The evidence of record shows that the Veteran’s left knee disability with lateral instability more nearly approximates a 10 percent disability rating. 2. The evidence of record shows that the Veteran’s left knee disability with limitation of flexion more nearly approximates a 10 percent disability rating. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for left knee disability with lateral instability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.71a, Diagnostic Code 5257, 5259 (2019). 2. The criteria for a disability rating in excess of 10 percent for left knee disability with limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.71a, Diagnostic Code 5260 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1982 to May 1983 in the United States Army. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2011 rating decision issued by the Department of Veterans Affairs (VA). The issues before the Board were remanded in November 2018. The AOJ issued a Supplemental Statement of the Case (SSOC) in October 2019. This matter is now properly before the Board. Increased Rating The Veteran seeks a higher rating for her left knee disability with limitation of flexion and left knee disability with lateral instability, both currently rated at 10 percent disabling. The Veteran contends that her disability is more severe than reflected by her current disability rating. Legal Criteria Disability ratings are determined by the application of the VA’s Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. Ratings for service-connected disabilities are determined by comparing the Veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. 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 Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Board will also consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). In making all determinations, the Board must fully consider the lay assertions of record. A Veteran is competent to report on that of which he or she has personal knowledge. Layno v. Brown, 6 Vet. App. 465, 470 (1994). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Diagnostic Code 5257 provides for a 10 percent rating for slight recurrent subluxation or lateral instability. A 20 percent rating is warranted for moderate subluxation or lateral instability. A maximum 30 percent rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a , Diagnostic Code 5257. Pursuant to 38 C.F.R. §§ 4.40 and 4.45, pain is inapplicable to ratings under DC 5257 because it is not predicated on loss of range of motion. See Johnson v. Brown, 9 Vet. App. 7, 11 (1996). "DC 5257 is unambiguous; by its plain language, it provides compensation [] from impairments of the knee, other than those enumerated elsewhere in the relevant regulations, that cause the symptoms of recurrent subluxation or lateral instability." Delisle v. McDonald, 789 F.3d 1372 (Fed. Cir. 2015) (noting that this interpretation is consistent with the language of DC 5257 and the remainder of the relevant regulations; and observing that 38 C.F.R. § 4.71a, DC 5284 creates a "catch-all" DC for "Foot Injuries, other" but DC 5257 is not a "catch-all" provision for rating knee disorders (in the absence of past surgery, limited motion of dysfunction from painful motion); and, so, the Federal Circuit was persuaded that DC 5257 was limited to establishing compensation for disabilities causing symptoms specifically enumerated in DC 5257). In VAOPGCPREC 9-98, VA's General Counsel reiterated that, if a veteran has a disability rating under Diagnostic Code 5257 for instability of the knee, and there is also x-ray evidence of arthritis, a separate rating for arthritis could also be based on painful motion under 38 C.F.R. § 4.59 . In addition, the General Counsel considered a hypothetical situation in which a knee disability was evaluated under Diagnostic Code 5259 that was productive of pain, tenderness, friction, osteoarthritis established by x-rays, and a slight loss of motion. For the purposes of the hypothetical, it was assumed that Diagnostic Code 5259 did not involve limitation of motion. Given the findings of osteoarthritis, the General Counsel stated that the availability of a separate evaluation under Diagnostic Code 5003 in light of sections 4.40, 4.45, 4.59 must be considered. See Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). Absent x-ray findings of arthritis, limitation of motion should be considered under Diagnostic Codes 5260 and 5261. The claimant's painful motion may add to the actual limitation of motion so as to warrant a rating under Diagnostic Codes 5260 or 5261. The General Counsel further noted in VAOPGCPREC 9-98 that the removal of the semilunar cartilage may involve restriction of movement caused by tears and displacements of the menisci, but that the procedure may result in complications such as reflex sympathetic dystrophy, which can produce loss of motion. Therefore, limitation of motion is a relevant consideration under Diagnostic Code 5259, and the provisions of 4.40, 4.45, and 4.59 must be considered. The appropriate diagnostic codes for rating limitation of motion of the knee are Diagnostic Codes 5260 and 5261. 38 C.F.R. § 4.71a . Normal range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. In VAOPGCPREC 9-2004, the VA General Counsel interpreted that, when considering Diagnostic Codes 5260 and 5261 together with 38 C.F.R. § 4.71, a veteran may receive a rating for limitation in flexion only, limitation of extension only, or, if the 10 percent criteria are met for both limitations of flexion and extension, separate ratings for limitations in both flexion and extension under Diagnostic Code 5260 (leg, limitation of flexion) and Diagnostic Code 5261 (leg, limitation of extension). Under Diagnostic Code 5260, limitation of knee flexion is rated 30 percent disabling where flexion is limited to 15 degrees; 20 percent disabling where flexion is limited to 30 degrees; 10 percent disabling where flexion is limited to 45 degrees; and noncompensable where flexion is limited to 60 degrees. 38 C.F.R. § 4.71a. Under Diagnostic Code 5261, limitation of knee extension is rated 50 percent disabling where extension is limited to 45 degrees; 40 percent disabling where extension is limited to 30 degrees; 30 percent disabling where extension is limited to 20 degrees; 20 percent disabling where extension is limited to 15 degrees; 10 percent disabling where extension is limited to 10 degrees; and noncompensable where extension is limited to 5 degrees. 38 C.F.R. § 4.71a. Diagnostic Code 5257 contemplates "other impairment" of the knee including recurrent subluxation or lateral instability. Under Diagnostic Code 5257, where impairment is severe, moderate or slight, disability ratings of 30, 20, and 10 percent are assigned, respectively. Diagnostic Code 5259 provides a maximum of 10 percent rating for removal of semilunar cartilage that is symptomatic. 38 C.F.R. § 4.71a. Separate disability 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 condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Compensating a claimant for separate functional impairment under Diagnostic Code 5257 and 5003 does not constitute pyramiding. VAOPGCPREC 23-97 (July 1, 1997) held that arthritis and instability of the same knee may be rated separately under Diagnostic Codes 5003 and 5257. Subsequently, VAOPGCPREC 9-98 further explained that if a Veteran has a disability rating under Diagnostic Code 5257 for instability of the knee, and there is also x-ray evidence of arthritis, a separate rating for arthritis could also be based on painful motion under 38 C.F.R. § 4.59. See also VAOPGCPREC 9-04 (holding that separate ratings under Diagnostic Code 5260 for limitation of flexion of the knee and Diagnostic Code 5261 for limitation of extension of the knee may be assigned). For instance, if there are symptoms as a residual of a meniscectomy (partial removal of semilunar cartilage in the knee) which are subluxation, instability, or limitation of motion, separate ratings for such manifestation may be assigned as here. 1. Entitlement to an evaluation in excess of 10 percent for left knee disability with lateral instability. See Argument in Section 2 Below 2. Entitlement to an evaluation in excess of 10 percent for left knee disability with limitation of flexion. In April 2019 the Veteran was afforded a VA examination. The VA examiner noted that the Veteran’s flexion was 90 degrees. The Veteran’s extension was noted as 10 degrees. The April 2019 examiner noted that there was pain, weakness, fatigability, incoordination which significantly limits functional ability with repeated use over a period of time. The April 2019 examiner also measured the Veteran’s flexion after repeated use and noted flexion of 45 degrees and extension of 10 degrees. The April 2019 examiner noted that the Veteran experienced functional loss because of flare ups, noting that the range of motion was impacted. The examiner also noted contributing factors such as swelling, instability of station, disturbance of locomotion, interference with sitting, interference with standing. Furthermore, joint stability was indicated but was unable to test because the Veteran was in too much pain. The examiner further noted that the Veteran had a left side meniscal tear, frequent episodes of joint locking, frequent episodes of joint pain, and frequent episodes of joint effusion. The examiner stated that the Veteran uses a knee brace occasionally. The Veteran said, “the impact of the condition on my ability to perform occupational functioning and ordinary activities is huge. The pain causes me to be unable to work due to doctor visits. Significant pain flares which cause me to be irritable, short tempered, unhappy. I can’t ride my horses anymore; I can’t do pleasurable outdoor activities due to pain.” The examiner found that there is objective evidence of pain on non-weight bearing testing of the left knee and objective evidence of pain on passive range of motion testing of the left knee. The examiner did not note any evidence of lateral instability. In a June 2019 VA examination, the examiner found that the Veteran did not have any joint instability. The Veteran reported functional loss of the left knee. The June 2019 examiner found that the left knee range of motion was 0 to 110 degrees flexion. The extension was 110 to 0 degrees. The June 2019 VA examiner indicated that the Veteran had interference with sitting and standing. The examiner noted the Veteran had previous MRI and X-ray which noted the Veteran had degenerative or traumatic arthritis documented in her left knee. In January 2018 the Veteran’s private physician provided a knee and lower leg conditions disability benefits questionnaire. The physician noted that the Veteran had osteoarthritis in her left knee and a meniscal tear in her left knee. The physician noted that the Veteran had functional loss due to weakness in left knee and instability of left knee as well as pain with range of motion. The physician noted that the Veteran’s flexion was 130 degrees and had a normal extension. The physician also noted that the Veteran had pain in the left knee on weight bearing. The physician determined that the Veteran had less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, instability, disturbance of locomotion, interference with sitting and interference with standing on the left knee. The physician further noted that the Veteran had slight lateral instability in her left knee. Here, in the April 2019 VA examination, the examiner noted the Veteran’s flexion was limited to 90 degrees and 45 degrees after repeated use test. The Veteran’s flexion as of April 2019 after repeated use test most nearly approximates a disability rating of 10 percent pursuant to Diagnostic Code 5260. However, the Veteran’s flexion prior to the repeated use test is noncompensable. The Veteran’s June 2019 VA examination indicates that flexion is limited to 110 degrees, which does not meet a compensable disability rating requirement under Diagnostic Code 5260. The Veteran’s private physician noted the Veteran’s flexion was 130 degrees, which is also noncompensable under Diagnostic Code 5260. In the April 2019 VA examination, the examiner did not find any lateral instability in the left knee. In the June 2019 VA examination, the examiner noted that there was no lateral instability on the Veteran’s examination. In the Veteran’s January 2018 private examination, the examiner noted that the Veteran had a history of slight lateral instability in the left knee. The Board acknowledges that the medical and lay evidence of record are contradictory. The VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the Veteran. The Board finds that a preponderance of the evidence is against the Veteran’s claim for entitlement of a disability rating greater than 10 percent for her left knee disability with limited flexion. The Veteran is not entitled to a disability rating greater than 10 percent under Diagnostic Code 5260 as there is no evidence of record supporting that the Veteran meets the criteria for a disability rating greater than 10 percent. The Board finds that a preponderance of the evidence is against the Veteran’s claim for entitlement of a disability rating greater than 10 percent for her left knee disability with lateral instability. The April 2019 and June 2019 VA examinations did not find any evidence of lateral instability in the left knee. Diagnostic Code 5257 contemplates “other impairment” of the knee including recurrent subluxation or lateral instability as noted by the January 2018 private physician. The January 2018 exam conducted by the private physician indicated that the Veteran had slight lateral instability, which is evidence of a 10 percent disability rating under Diagnostic Code 5257. There is no evidence of record supporting that the Veteran is entitled to a disability rating greater than 10 percent as there is no indication that impairment is severe or moderate. The Board finds the Veteran’s private physician to be competent, credible and highly probative. The Veteran’s private physician provided ongoing treatment and is most familiar with the Veteran. The Board also finds the Veteran’s lay statements to be competent, credible and highly probative when she indicated that she has experienced lateral instability. The Board has viewed the evidence of record sympathetically and acknowledges the Veteran’s ongoing left knee pain. However, for the reasons discussed above, the preponderance of the evidence is against a finding for a disability rating greater than 10 percent for the Veteran’s left knee disability with lateral instability. The preponderance of the evidence is also against a finding for a disability rating greater than 10 percent for the Veteran’s left knee disability with limitation of flexion. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Hellina Y. Hailu, 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.