Citation Nr: 21003590 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 16-59 685 DATE: January 22, 2021 ORDER An increased rating of 20 percent under DC 5258 is granted effective from May 28, 2015; as of this date, this new rating replaces the rating previously assigned under DC 5010-5259. Effective May 28, 2014, a separate 10 percent rating under DC 5260 is granted. Entitlement to a compensable rating for right knee surgical scars is denied. FINDINGS OF FACT 1. The Veteran’s right knee disability is manifest by frequent episodes of locking, pain, and effusion for the entire period on appeal. 2. The Veteran’s right knee disability manifests with painful limited flexion that well-exceeds 30 degrees. His painful flexion was noted a year prior to his claim. 3. Throughout the period on appeal, the Veteran has had three linear scars, from right knee surgery; the evidence does not reflect that these scars are painful or unstable. CONCLUSIONS OF LAW 1. The criteria for a higher rating of 20 percent under DC 5258 for right knee anterior cruciate ligament tear with residual scars have been met as of the date of the claim, and this award replaces his rating under 5259 as of that date. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.400(o), 4.1, 4.3, 4.7, 4.71a, DC 5258. 2. The criteria for a separate rating of 10 percent, but no higher, for the right knee limited motion have been met throughout the appeal period and in the year preceding receipt of his claim, starting from May 28, 2014. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.400(o), 4.59, 4.71a, DC 5260. 3. The criteria for a rating for scar, right knee surgery in excess of 0 percent have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.118, DCs 7804, 7805. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the Air Force from February 1971 to January 1974 and the Army from October 1989 to November 2006. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a August 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the Board remanded this appeal for additional development, and so the Veteran could be afforded a VA examination of his right knee disability. The Board finds that there has been substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions). The Veteran indicated that on July 29, 2015, he underwent a right knee surgery by a private orthopedist for arthroscopic debridement and chondroplasty to address meniscal degeneration. VA has a “well-established” duty to maximize a claimant’s benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Bradley v. Peake, 22 Vet. App. 280 (2008). Accordingly, an opportunity was extended for the Veteran to provide private treatment records following the November 2018 remand, which may have probative value in furthering his claim and maximizing his benefits for his right knee. As of the date of this decision, no response or additional medical evidence has been received from the Veteran. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability there from and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999). 1. An increased rating of 20 percent under DC 5258 is granted effective from May 28, 2015; as of this date, this new rating replaces the rating previously assigned under DC 5010-5259. The Veteran contends that his right knee disability, right knee DJD post-operative meniscectomy, is more severe than the ratings he is assigned. See Appellate Brief (July 2018; October 2020). He noted that his right knee manifests with symptoms such as pain, swelling, flare-up, locking, and reported having increased functional difficulty with tasks involving walking, standing, sitting, bending, kneeling, and climbing. His right knee disability is currently rated under DC 5010-5259. 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 the hyphen. 38 C.F.R. § 4.20. A hyphenated diagnostic code generally reflects rating by analogy to a closely related condition that best approximates the disability picture. See 38 C.F.R. §§ 4.20 and 4.27. In this case DC 5259 is used for rating the Veteran’s symptomatic removal of the semilunar cartilage, while DC 5210 relates to traumatic arthritis, the underlying source of the disability. DC 5259 assigns a 10 percent rating for symptomatic removal of the semilunar cartilage. 38 C.F.R. § 4.71a. A higher rating is not available under DC 5259, as 10 percent is the highest rating available under that code. DCs relevant to knee disabilities include 5003, 5010 and 5256 through 5261. Under DCs 5003 and 5010, arthritis established by x-ray findings is rated on the basis of limitation of motion of the affected joints. When, however, the limited motion of the specific joint or joints involved would be noncompensable under the appropriate diagnostic codes, a 10 percent rating is assigned for each involved major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. 38 C.F.R. § 4.71a. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In an August 2015 private DBQ, the Veteran was noted to have recurrent effusion into the knee. He complained of pain and episodes of locking. Based on the above, the Board finds that the disability picture for the Veteran’s right knee meniscal symptoms most closely approximates the criteria for a rating of 20 percent for dislocation of semilunar cartilage under Diagnostic Code 5258, and it has since receipt of the claim, on May 28, 2015. In making this determination, the Board first acknowledges its duty to maximize a claimant’s benefits. See Buie v. Shinseki, 24 Vet. App. 242 (2011); AB v. Brown, 6 Vet. App. 35 (1993). Additionally, the Board also notes that the Veteran is entitled to ratings under whichever Diagnostic Codes are more favorable. He cannot be assigned two separate ratings under both Diagnostic Codes 5259 and 5258 for the same joint, because these codes essentially compensate the same symptoms, which would result in impermissible pyramiding. The rule against pyramiding is addressed in 38 C.F.R. § 4.14, which notes that evaluation of the “same disability” or the “same manifestation” under various diagnoses is to be avoided. See also 38 U.S.C. § § 1155. It is possible for a Veteran to have separate and distinct manifestations from the same injury that would permit rating under several diagnostic codes; however, 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 conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); 38 C.F.R. § 4.14 (precluding the assignment of separate ratings for the same manifestations of a disability under different diagnoses). Here, the evidence shows that the Veteran was diagnosed with medial meniscus tear and presented locking, effusion, and pain of the right knee at the August 2015 private DBQ. In this vein, the Board finds that the rating of 20 percent under Diagnostic Code 5258 is warranted. This rating shall replace the rating assigned pursuant to Diagnostic Code 5259 and will be effective for the claim period since May 28, 2015, the date of receipt of his claim. Replacing the rating of 10 percent under Diagnostic Code 5259 with a 20 percent rating under Diagnostic Code 5258 is aligned with the benefit-maximization and favorability principles mentioned immediately above. The same manifestations are contemplated and compensated by the newly assigned code, just at a higher level. The Board is resolving doubt in the Veteran’s favor and granting the effective date back to the date of the claim, as his claim was filed only a few months before the DBQ. This is the highest rating available under these codes for these symptoms. 2. Effective May 28, 2014, a separate 10 percent rating under DC 5260 is granted. Following remand, the Veteran’s right knee was assessed during a December 2019 VA examination. The Veteran reported current symptoms of locking, pain, and swelling. Right knee range of motion was measured as 110 to 0 degrees on flexion and 110 degrees to 0 degrees on extension. Range of motion was noted to contribute to achy throbbing pain. The Veteran was able to perform repetitive testing with loss of motion measured from 0 to 105 degrees on flexion and 105 degrees to 0 degrees on extension. Flare ups are precipitated by walking and relieved by Motrin and rest. Flare-ups showed ROM measurements of flexion to 105 degrees and extension remained at 0 degrees. The Veteran receives Synvisc injections into the right knee once a month for DJD of the right knee; takes Motrin 800mg 3 times a day for pain; and Lidocaine patches on the right knee 12 hours on and 12 hours off. Pain was noted on exam on rest/nonmovement. Muscle strength was normal. No muscle atrophy was noted. No ankylosis or instability was noted. Residuals signs and symptoms due to meniscectomy were pain, effusion and limited ROM. The September 2017 private DBQ the Veteran reported current symptoms of persistent aching pain of the right knee that is aggravated by walking, climbing stairs, kneeling, and prolonged sitting. Right knee range of motion was measured as 75 to 0 degrees on flexion and 75 degrees to 0 degrees on extension. The Veteran was able to perform repetitive testing with no loss of motion measured. The veteran was not examined during a flare-up. Further loss of range of motion due to flare-ups could not be determined without resorting to mere speculation. The June 2016 private DBQ the Veteran reported current symptoms of locking, pain, and swelling. Right knee range of motion was measured as 90 to 0 degrees on flexion and 90 to 0 degrees on extension. The Veteran was able to perform repetitive testing with no loss of motion measured. The flare ups of the right knee can be described as aching and painful. The August 2015 private DBQ the Veteran reported current symptoms of locking, pain, and swelling. Right knee range of motion was measured as 130 to 0 degrees on flexion and was not performed on extension, because of positive McMurray test. The Veteran was not able to perform repetitive testing with loss of motion measured because of pain and swelling. Pain was noted on exam on rest/nonmovement. Muscle strength was not tested. Muscle atrophy was noted. No ankylosis was noted. Residuals signs and symptoms due to meniscectomy are pain, effusion and limited ROM. Veteran reported most recent flare-up (prior to surgery) caused decreased in function by waking him from sleep, locking, cannot bend, kneel, nor squat. The Veteran was also unable to perform repetitive-use testing because it caused pain and swelling. It was also reported that Veteran used gripper knee brace for support and stability. July 2015 VA examination. The Veteran reported current symptoms of locking, pain, and swelling. Right knee range of motion was measured as 110 to 0 degrees on flexion and 110 degrees to 0 degrees on extension. Range of motion was noted to contribute to moderate pain at tibial tuberosity. The Veteran was able to perform repetitive testing with no loss of motion. Flare-ups showed ROM measurements of flexion to 90 degrees and extension to 90 degrees. Pain was noted on exam on rest/nonmovement. Muscle strength was active movement against some resistance. No muscle atrophy was noted. No ankylosis or instability was noted. A May 2014 VA treatment record that show that Veteran had painful flexion (mild tenderness on flexion and crepitus). Limitation of flexion of the leg is rated under Diagnostic Code 5260. A noncompensable rating will be assigned for limitation of flexion of the leg to 60 degrees; a 10 percent rating will be assigned for limitation of flexion of the leg to 45 degrees; a 20 percent rating will be assigned for limitation of flexion of the leg to 30 degrees; and a 30 percent rating will be assigned for limitation of flexion of the leg to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Limitation of extension of the leg is rated under Diagnostic Code 5261. A noncompensable rating will be assigned for limitation of extension of the leg to 5 degrees; a 10 percent rating will be assigned for limitation of extension of the leg to 10 degrees; a 20 percent rating will be assigned for limitation of extension of the leg to 15 degrees; a 30 percent rating will be assigned for limitation of extension of the leg to 20 degrees; a 40 percent rating will be assigned for limitation of extension of the leg to 30 degrees; and a 50 percent rating will be assigned for limitation of extension of the leg to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Normal range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71a, Plate II. Notably, where the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, but there is pain on motion, a rating of 10 percent is applicable. 38 C.F.R. § 4.59. When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, 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). In Petitti v. McDonald, 27 Vet. App. 415 (2015), the United States Court of Appeals for Veterans Claims (Court) rejected VA’s argument that § 4.59 requires painful motion, such that the mere presence of joint pain is not sufficient. Id. at 428-29. The Court held that under § 4.59, “the trigger for a minimum disability rating is an actually painful, unstable, or malaligned joint,” explaining that § 4.59 speaks to both painful motion of joints and actually painful joints. Id. at 425. Moreover, the Court held that § 4.59 does not require “objective” evidence but can be satisfied with lay and other non-medical evidence. Id. at 429. The Board finds the Veteran is entitled to a separate 10 percent rating under DC 5260 for limitation of flexion. Regarding flexion, the May 2014 VA treatment record shows, the Veteran experienced pain with flexion (mild tenderness on flexion and crepitus). The record shows he has had painful flexion throughout the appeal period. Accordingly, the Board finds that a 10 percent rating is warranted starting from May 28, 2014, for painful motion. The Board notes that the May 2014 record was recorded on May 4th. This is outside the period described in 38 C.F.R. § 3.400(0), which allows for the effective date of an increased rating to be granted prior to receipt of the claim, if it is factually ascertainable that the change occurred within that year. Given the brief period of time that passed between the date of the notation and the year cut-off, and that he has continued to show painful flexion, the Board resolves doubt in his favor and finds it is factually ascertainable from the record that he had painful motion May 28, 2014. The Board does not find that a rating higher than 10 percent is warranted for limited flexion. During the appellate period, specifically at the September 2017 VA exam, the Veteran’s right knee manifested flexion to 75 degrees, which is the worst flexion measurement on record. This corresponds to a noncompensable rating. However, the record does show that he has had functional loss, including having trouble walking or standing for prolonged periods. Despite this loss, the record has never shown that his function loss has resulted in reduced flexion to 30 degrees or less, which is required for the next higher rating. 38 C.F.R. §§ 4.40, 4.59; DeLuca, 8 Vet. App. 202. The Board finds that a 10 percent rating for his painful motion of the right knee adequately compensates him for the extent of his function loss due to pain, flare-ups, and repeated use over a period of time. The Board also finds that the weight of the evidence is against assigning a higher rating throughout the period of appeal under DC 5261 for limitation of extension for the right knee. The VA medical evidence shows that extension of the right knee was to 0 degrees throughout most of the period of appeal. The record shows limited extension in the year preceding his claim, to 5 degrees, but that is noncompensable under DC 5261. Accordingly, assigning a rating under DC 5261 would not avail him of a higher rating. The Veteran’s private records in February 2015 note his knee gives out, which suggests instability, but that symptom was attributed to neuritis from his back, for which he is already service connected. Objective testing for instability and subluxation throughout the appeal period were consistently negative, and the record does not show he was diagnosed with either. Furthermore, the Board has considered whether higher ratings or additional separate ratings are warranted under other diagnostic codes. However, the evidence of record does not support higher or additional ratings. In this regard, the Veteran’s VA treatment records and VA examination showed normal extension and the Veteran has not been diagnosed with ankylosis, genu recurvatum, impairment of the tibia and fibula, or dislocated semilunar cartilage. Therefore, the Board finds that Diagnostic Codes 5256, 5257, 5259, 5261, 5262, and 5263 are not applicable. 38 C.F.R. § 4.71a. To the extent that the Veteran contends entitlement to an even higher rating, the preponderance of the evidence is against any additional awards, as discussed above. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Entitlement to a compensable rating for right knee surgical scars is denied. The applicable rating criteria for scars were amended effective August 13, 2018. However, the change did not affect the criteria concerning Diagnostic Code 7805, which is currently assigned to the Veteran’s scars. Under DC 7805, the other effects of scars that are not evaluated under DCs 7800, 7801, 7802, or 7804 are to be assigned a rating under the appropriate diagnostic code, depending on the disabling effect of the symptom. 38 C.F.R. § 4.118. The Board notes that DC 7800 pertains exclusively to scars of the head, face, and neck, and is therefore not applicable here. The August 2018 amendments did affect DCs 7801 and 7802. Prior to the amendments, DC 7801 pertained to scars, not of the head, face, or neck, that are deep and nonlinear. An area or areas of 6 square inches or more would result in a compensable evaluation. 38 C.F.R. § 4.118, DC 7801 (2017). The current version of DC 7801 pertains to scars, not of the head, face, or neck, that are associated with underlying soft tissue damage. An area or areas of 6 square inches or more would result in a compensable evaluation. 38 C.F.R. § 4.118, DC 7801. Prior to the 2018 amendments, DC 7802 pertained to scars, not of the head, face, or neck, that are superficial and nonlinear. An area or areas of 144 square inches or more would result in a compensable evaluation. 38 C.F.R. § 4.118, DC 7802 (2017). The current version of DC 7802 pertains to scars, not of the head, face, or neck, that are not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, DC 7802. Under Diagnostic Code 7804, one or two scars that are unstable or painful warrant a 10 percent rating. Three or four scars that are unstable or painful warrant a 20 percent rating. Five or more scars that are unstable or painful warrant a 30 percent rating. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. If one or more scars are both unstable and painful, add 10 percent to the rating that is based on the total number of unstable or painful scars. 38 C.F.R. § 4.118, Diagnostic Code 7804. The December 2019 VA examination shows the examiner reviewed the entire claims file. The examiner noted the right anterior, right medial and right lateral scars were not painful or unstable, with each scar measuring 0.5 x 0.5 cm for a total area of 0.75 sq. cm. None of the scars were unstable. The September 2019 VA examination shows the examiner reviewed the entire claims file. The examiner noted the right anterior, right medial and right lateral scars were not painful or unstable, with each scar measuring 0.5 x 0.5 cm for a total area of 0.75 sq. cm. None of the scars were unstable. None of the scars were due to burns. All the scars were linear. None of the scars resulted in a limitation of function. The examiner opined that the Veteran’s scars did not impact his ability to work. The July 2017 DBQ shows the examiner reviewed the entire claims file. The examiner noted the upper right hip scar was painful. Both the upper right hip and lower right hip scars were not unstable, with the upper right scar measuring 0.5 x 0.2 cm and the lower right hip scar measuring 12 x 0.2 cm. None of the scars were unstable. None of the scars were due to burns. All the scars were linear. None of the scars resulted in a limitation of function. The examiner opined that the Veteran’s scars did not impact his ability to work. The DBQ dated August 2015, shows the examiner reviewed the entire claims file. The examiner only noted the Veteran has scars. The July 2015 DBQ shows the examiner reviewed the entire claims file. The examiner noted the right lateral superficial nonlinear scar was not painful or unstable, with the scar measuring 0.5 x 0.5 cm. The scar was not unstable, and was not due to burns. The scar did not result in a limitation of function. The examiner opined that the Veteran’s scars did not impact his ability to work. After review of the above, the Board finds that a compensable rating is not warranted for the Veteran’s knee scares. A compensable evaluation under Diagnostic Code 7804 is not warranted unless there is at least one scar that is painful or unstable. 38 C.F.R. § 4.118. The record does not show his scars are painful and he has not alleged. A higher evaluation is not warranted under DC 7802 because the evidence does not show an area or areas of 144 square inches or greater. 38 C.F.R. § 4.118. A higher evaluation is not warranted under DC 7801 because the evidence does not show an area of at least 6 square inches that is associated with tissue damage or that are considered deep. 38 C.F.R. § 4.118. Considering the evidence under the both the old and new rating criteria, the Board finds that a rating higher than 0 percent is not warranted. None of the evidence indicates that the Veteran has service-connected linear right knee scars that are painful or unstable, and he has not so alleged. None of the evidence indicates that any of the service-connected scars causes any limitation of motion, or other symptoms not contemplated by the rating criteria. Thus, a higher rating is not warranted at any time during the appeal period. Accordingly, the Board finds that the preponderance of the evidence is against the assignment of a higher rating and the claim is denied. The Board has considered whether entitlement to TDIU is raised int his appeal. The record reveals that the Veteran retired in 2016. From this time, service-connected disabilities have been in receipt of a 100 percent combined rating. Considering the contentions on appeal and the ratings currently assigned, the Board finds that the issue of TDIU is not for consideration. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Ottley III 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.