Citation Nr: 21002418 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 17-18 915 DATE: January 13, 2021 ORDER For the appellate periods prior to February 28, 2014 and beginning November 16, 2020, entitlement to a disability rating of 10 percent, but no higher, for right knee patellofemoral pain syndrome with X-ray evidence of arthritis is granted. Between February 28, 2014 and November 15, 2020, entitlement to a disability rating in excess of 10 percent for right knee patellofemoral pain syndrome with X-ray evidence of arthritis is denied. For the entire period on appeal, entitlement to a separate disability rating of 10 percent, but no higher, for right knee instability is granted. For the appellate periods prior to February 28, 2014 and beginning November 16, 2020, entitlement to a disability rating in excess of 20 percent for right knee meniscal dislocation is denied. FINDINGS OF FACT 1. For the entire period on appeal, the Veteran’s right knee disability has been manifested by noncompensable painful motion with X-ray evidence of arthritis. 2. For the entire period on appeal, the Veteran’s right knee disability has also manifested in no worse than slight lateral instability. 3. For the appellate periods prior to February 28, 2014 and beginning November 16, 2020, the Veteran’s right knee meniscal dislocation was manifested by frequent episodes of “locking” and swelling into the joint. CONCLUSIONS OF LAW 1. For the appellate periods prior to February 28, 2014 and beginning November 16, 2020, the criteria for a disability rating of 10 percent, but no higher, for right knee patellofemoral pain syndrome with X-ray evidence of arthritis are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.40, 4.45, 4.59, 4.1, 4.71a, Diagnostic Codes (DCs) 5003-5260. 2. Between February 28, 2014 and November 15, 2020, the criteria for a disability rating in excess of 10 percent for right knee patellofemoral pain syndrome with X-ray evidence of arthritis are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.59, 4.71a, DCs 5003-5260. 3. For the entire period on appeal, the criteria for a separate disability rating of 10 percent, but no higher, for right knee instability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.71a, DC 5257. 4. For the appellate periods prior to February 28, 2014 and beginning November 16, 2020, the criteria for a disability rating in excess of 20 percent for right knee meniscal dislocation are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.71a, DC 5258. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant in this case, served on active duty from August 1989 to December 1989, to January 1991 to March 1991, and from December 2003 to January 2005. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) which, in pertinent part, denied entitlement to a rating in excess of 20 percent for the Veteran’s right knee disability. By way of procedural background, in a March 2014 rating decision, the RO decreased the Veteran’s rating for his right knee disability to 10 percent under DCs 5258-5260, effective February 28, 2014. In a January 2020 decision, the Board remanded the matter to provide an additional VA examination. In a November 2020 rating decision, the RO assigned a rating of 20 percent for the Veteran’s right knee disability under DCs 5003-5258, effective November 16, 2020. In May 2019, the Veteran and his spouse testified at a Travel Board hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is associated with the claims file and has been reviewed. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c) and 38 U.S.C. § 7107(a)(2). Per Third Party Correspondence received June 2020, the Veteran’s representative properly withdrew his representation prior to the re-certification of this matter to the Board. 38 C.F.R. § 14.631(c); see also December 2020 “BVA Letter.” To date, the Veteran has not appointed another representative. Therefore, the Veteran is now proceeding in this matter pro se. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the appellant and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Increased Ratings Claims Disability evaluations are determined by comparing a veteran’s present symptoms with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the veteran. 38 C.F.R. § 4.3. 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 veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine on a case-by-case basis whether a 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). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. at 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Under DC 5003, degenerative arthritis established by radiographic imaging/X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint involved. Limitation of motion must be objectively confirmed by clinical findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Where there is X-ray evidence of arthritis and limitation of motion, but not to a compensable degree under the diagnostic code, a 10 percent rating is for assignment for each major joint affected. A rating in excess of 10 percent is not available absent X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, DC 5003. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. Where arthritis results in painful motion of the joint, the rating criteria allow for at least the minimum compensable evaluation for the joint. 38 C.F.R. § 4.59. The intent of the rating schedule is to recognize painful motion with joint or particular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or misaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Id. Knee disabilities can be rated under DCs 5256, 5257, 5258, 5259, 5260, 5261, 5262, and 5263. 38 C.F.R. § 4.71a. DC 5256 provides ratings for ankylosis of the knee. Favorable angle in full extension, or in slight flexion between 0 degrees and 10 degrees is rated 30 percent disabling; in flexion between 10 degrees and 20 degrees is rated 40 percent disabling; in flexion between 20 degrees and 45 degrees is rated 50 percent disabling; and extremely unfavorable, in flexion at an angle of 45 degrees or more is rated 60 percent disabling. 38 C.F.R. § 4.71a. DC 5257 provides a 10 percent rating for slight recurrent subluxation or lateral instability, a 20 percent rating for moderate recurrent subluxation or lateral instability, and 30 percent rating for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, DC 5257. The words “slight,” “moderate” and “severe” as used in various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6; Sellers v. Wilkie, 30 Vet. App. 157 (2018). DC 5258 provides a 20 percent rating may be assigned for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint. 38 C.F.R. § 4.71a. DC 5259 provides for a 10 percent rating for symptomatic removal of the semilunar cartilage. 38 C.F.R. § 4.71a. DC 5260 provides for the evaluation of limitation of flexion of the knee. A non-compensable rating is warranted when leg flexion is limited to 60 degrees. A 10 percent rating is warranted when it is limited to 45 degrees, a 20 percent rating is warranted when it is limited to 30 degrees, and a 30 percent rating is warranted where flexion is limited to 15 degrees. 38 C.F.R. § 4.71a. Under DC 5261, 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. DC 5262 provides ratings for impairment of the tibia and fibula. A 10 percent rating is warranted for malunion with slight knee or ankle disability. A 20 percent rating is warranted for malunion with moderate knee or ankle disability. A 30 percent rating is warranted for malunion with marked knee or ankle disability. A 40 percent rating is warranted for nonunion with loose motion and requiring a brace. 38 C.F.R. § 4.71a. Under DC 5263, genu recurvatum (acquired, traumatic, with weakness and insecurity in weight-bearing objectively demonstrated) warrants a 10 percent rating. 38 C.F.R. § 4.71a. Genu recurvatum is a hyperextension of the knee. See DORLAND’S ILLUSTRATED MEDICAL DICTIONARY (30th Ed. 2003) at 765. In this matter, the Board notes that the Veteran has not been awarded separate disability ratings that contemplate the differing manifestations of his right knee disability, to include limitation of motion, symptoms of meniscal dislocation, and instability. Rather, the Veteran is in receipt of the following ratings for “right knee patella femoral pain syndrome, internal derangement of lateral meniscus, and osteoarthritic changes”: a 20 percent disability rating under DC 5258 from January 22, 2005, a 10 percent disability rating under DCs 5258-5260 from February 28, 2014, and a 20 percent disability rating under DCs 5003-5258. To account for all manifestations of the Veteran’s right knee disability, and without violating the rule against pyramiding, the Board will address entitlement to separate disability ratings based on painful motion of the right knee, right knee instability, and right knee meniscal dislocation with frequent episodes of “locking” and swelling into the joint. 1. Entitlement to a compensable disability rating for right knee patellofemoral pain syndrome with X-ray evidence of arthritis for the appellate periods prior to February 28, 2014 and beginning November 16, 2020 2. Entitlement to a disability rating in excess of 10 percent for right knee patellofemoral pain syndrome with X-ray evidence of arthritis between February 28, 2014 and November 15, 2020 On review of the evidence, both lay and medical, the Board finds that the Veteran’s right knee disability has been manifested by painful motion with X-ray evidence of arthritis for the entire period on appeal. See VA knee examination reports dated February 2005, January 2012, February 2014, November 2019, and November 2020; December 2017 VA Caregiver Certificate; May 2019 Board hearing transcript. As mentioned previously, where arthritis results in painful motion of the joint, the rating criteria allow for at least the minimum compensable evaluation for the joint. 38 C.F.R. § 4.59. Thus, the Board finds that a 10 percent rating for the Veteran’s right knee patellofemoral pain syndrome is warranted for the appellate periods prior to February 28, 2014 and beginning November 16, 2020 based on painful motion under 38 C.F.R. § 4.59. The Board notes that, effective February 28, 2014, the Veteran was already in receipt of a 10 percent rating based on painful motion of the right knee under 38 C.F.R. § 4.59. See March 2014 rating decision. However, the preponderance of the evidence is against a rating in excess of 10 percent for right knee patellofemoral pain syndrome with X-ray evidence of arthritis for the entire period on appeal. First, higher ratings under DC 5003 are not warranted because the Veteran has not exhibited degenerative arthritis of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. Here, only one major joint, the knee, is involved. Second, higher ratings under DC 5260 based on limitation of flexion are not warranted. The record reflects that the Veteran’s right knee flexion was, at worst, to 50 degrees. See VA knee examination reports dated February 2005 to November 2020. Similarly, higher ratings under DC 5261 are not warranted as the Veteran has exhibited right knee extension to 0 degrees throughout the entire period on appeal. See VA knee examination reports dated February 2005 to November 2020. In considering the applicability of other diagnostic codes, the Board finds that DCs 5256 (ankylosis of the knee), 5259 (symptomatic removal of semilunar cartilage), 5262 (tibia and fibula impairment), and 5263 (genu recurvatum) are not applicable in this instance, as the medical evidence does not show that the Veteran has any of those conditions. Entitlement to separate compensable ratings under DCs 5257 and 5258 are addressed later in this decision. For these reasons, the Board finds that the preponderance of the evidence is against a finding that any functional loss experienced by the Veteran as a result of his right knee patellofemoral pain syndrome with X-ray evidence of arthritis approximated the criteria for a rating higher than 10 percent. 3. Entitlement to a separate disability rating for right knee instability Additionally, the Board finds that a claim for entitlement to a separate compensable rating for right knee instability has been raised by the record. On review of the evidence, both lay and medical, the Board finds that the Veteran’s symptoms and impairment more nearly approximate slight lateral instability in the right knee for the entire period on appeal. The Board observes that the joint stability tests conducted during VA examinations throughout the period on appeal, and even before, revealed normal results. See VA knee examination reports dated February 2005 to November 2020. However, in English v. Wilkie, 30 Vet. App. 347, 349 (2018), the Court of Appeals for Veterans Claims held that DC 5257 does not require medical evidence of lateral instability for a rating to be assigned. Instead, the Board must address any relevant lay evidence and compare it to the medical evidence to determine which was more probative, keeping in mind that objective medical evidence was not automatically more probative than lay evidence. While there is medical evidence of normal joint stability testing, the Veteran has competently and credibly reported a history of falls secondary to right knee instability. See February 2005 VA knee examination report (Veteran reported he felt like his right knee “wants to give way laterally.”); October 2017 VA physical medicine rehabilitation consultation (provider noted “b/l knee pain with instability”); November 2019 VA knee examination report (Veteran reported “hx of falls secondary to knee instability”); March 2020 VA Caregiver Certificate (“Caregiver gets in the shower with Veteran because his knee and back pain makes him susceptible to falls.”). Notably, during the May 2019 Board hearing, the Veteran testified that he usually falls two to three times a week, on “a good week,” due to knee instability. The Board assigns great probative value to the Veteran’s lay descriptions of such observable symptomatology. The Board finds that the Veteran’s lateral instability is best characterized as slight based on the evidence. Although the Veteran’s knee instability causes functional impairment, it is undetectable on all forms of examination. Moderate lateral instability is not shown or approximated. Consequently, the Board finds that a separate 10 percent rating under DC 5257 for right knee instability is warranted, and that the preponderance of the evidence weighs against the award of an even higher rating for lateral instability. 4. Entitlement to a disability rating in excess of 20 percent for right knee meniscal dislocation for the appellate periods prior to February 28, 2014 and beginning November 16, 2020 As mentioned, DC 5258 provides that a 20 percent rating may be assigned for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint. 38 C.F.R. § 4.71a. The Board notes that, as granted herein, the Veteran is now in receipt of a 10 percent rating for the entire period on appeal based on noncompensable painful motion of the right knee. The Board also notes that the RO previously assigned 20 percent ratings under DC 5258 based on frequent episodes of “locking,” pain, and effusion into the joint, and that the November 2020 VA examiner specifically found that frequent episodes of joint pain were a manifestation of the Veteran’s right knee meniscal dislocation. See rating decisions dated February 2005 and November 2020; November 2020 VA knee examination report. Thus, the Veteran’s right knee pain is a symptom that overlaps between his various right knee diagnoses – his patellofemoral pain syndrome and as a manifestation of his dislocated meniscus. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Accordingly, so as not to violate the rule against pyramiding, and to allow for the Veteran’s right knee disability to be evaluated under all applicable diagnostic codes, the Board clarifies that for the appellate periods prior to February 28, 2014 and beginning November 16, 2020, a 20 percent rating is warranted under DC 5258 based on right knee meniscal dislocation with frequent episodes of “locking” and swelling into the joint. See February 2005 VA knee examination report (Veteran endorsed right knee locking and the VA examiner noted a positive McMurray’s test and popping and tenderness over the lateral joint line on physical examination); January 2008 VA physical medicine rehabilitation consultation (provider noted mild swelling and thickening of the synovial membrane of the right knee); November 2020 VA knee examination report (VA examiner noted that the Veteran had right knee meniscal dislocation with frequent episodes of joint “locking” and swelling). A 20 percent rating is the only rating available under DC 5258; therefore, a higher rating is not for consideration. The Board finds that for the appellate period between February 28, 2014 and November 15, 2020, there is no lay or medical evidence in the record of right knee meniscal dislocation with frequent episodes of joint “locking,” swelling, or effusion. Therefore, a separate compensable rating for meniscal dislocation is not warranted during that period. Lastly, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (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). S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. M. Gill, 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.