Citation Nr: 21003591 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 11-15 688 DATE: January 22, 2021 ORDER Entitlement to a disability rating greater than 10 percent for residuals status post right knee arthroscopy and meniscal tear is denied. Entitlement to service connection for a left knee disability, diagnosed as left knee arthritis, to include as secondary to service-connected right knee disability, is granted. FINDINGS OF FACT 1. The Veteran’s residuals status post right knee arthroscopy and meniscal tear is characterized by arthritis-related painful motion and X-ray evidence of arthritis. 2. Resolving reasonable doubt in his favor, the Veteran’s left knee disability, diagnosed as left knee arthritis, was caused by his service-connected right knee disability. CONCLUSIONS OF LAW 1. The criteria for an evaluation greater than 10 percent for service-connected residuals status post right knee arthroscopy and meniscal tear have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5010-5260 (2019). 2. The criteria for service connection for a left knee disability, diagnosed as left knee arthritis, to include as secondary to service-connected right knee disability, have been met. 38 U.S.C. §§ 1101, 1110, 5100, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309, 3.310 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from June 1979 to August 1979, from June 1980 to November 1980, from December 1985 to December 1986, and from August 2004 to October 2006. Of record is a DD-215 which shows that he was awarded the Combat Infantryman Badge (CIB). This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In October 2014, the Veteran testified during a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. This claim was previously before the Board in March 2019, at which time it was remanded for additional development. Increased Ratings Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. Generally, the degrees of disability specified by the schedule are considered adequate to compensate veterans for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. 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.” Hart v. Mansfield, 21 Vet. App. 505 (2008). 1. Entitlement to a disability rating greater than 10 percent for residuals status post right knee arthroscopy and meniscal tear The Veteran asserts that his residuals status post right knee arthroscopy and meniscal tear, rated under 38 C.F.R. § 4.71a, Diagnostic Code 5010-5260, warrants a rating in excess of 10 percent. For purposes of this decision, the Board notes that the average normal range of motion of the knee is flexion from 0 to 140 degrees and extension from 140 to 0 degrees. 38 C.F.R. § 4.71. Diagnostic Code 5010 provides that arthritis due to trauma that is substantiated by X-ray findings is to be rated as degenerative arthritis. Diagnostic Code 5003 provides that degenerative arthritis that is 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. When there is no limitation of motion of the specific joint or joints that involve degenerative arthritis, Diagnostic Code 5003 provides a 20 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, and a 10 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. Note (1) provides that the 20 percent and 10 percent ratings based on X-ray findings will not be combined with ratings based on limitation of motion. Note (2) provides that the 20 percent and 10 percent ratings based on X-ray findings, above, will not be utilized in rating conditions listed under Diagnostic Codes 5013 to 5024, inclusive. When there is some limitation of motion of the specific joint or joints involved that is noncompensable (0 percent) under the appropriate diagnostic codes, Diagnostic Code 5003 provides a rating of 10 percent for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. When there is limitation of motion of the specific joint or joints that is considered to be compensable (10 percent or higher) under the appropriate diagnostic codes, the compensable limitation of motion should be rated under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a. Separate disability ratings are possible for arthritis with limitation of motion under Diagnostic Codes 5003 and instability of a knee under Diagnostic Code 5257. See VAOPGCPREC 23-97. When X-ray findings of arthritis are present and a veteran’s knee disability is rated under Diagnostic Code 5257, the veteran would be entitled to a separate compensable rating under Diagnostic Code 5003 if the arthritis results in noncompensable limitation of motion and/or objective findings or indicators of pain. See VAOPGCPREC 9-98. Disabilities of the knee are rated under Diagnostic Code 5256 through Diagnostic Code 5263 of 38 C.F.R. § 4.71a (2017). Diagnostic Code 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. Diagnostic Code 5258 provides a 20 percent disability rating for cartilage, semilunar, dislocated, with frequent episodes of “locking,” pain, and effusion into the joint. 38 C.F.R. § 4.71a. Diagnostic Code 5259 provides a 10 percent rating for symptomatic residuals of removal of a semilunar cartilage. Ratings under Diagnostic Code 5259 require consideration of 38 C.F.R. §§ 4.40 and 4.45 because removal of a semilunar cartilage may result in complications producing loss of motion. VAOGCPREC 9-98. Diagnostic Code 5260 provides ratings based on limitation of flexion of the leg. Flexion of the leg limited to 60 degrees is rated at 0 percent disabling, flexion of the leg limited to 45 degrees is rated 10 percent disabling; flexion of the leg limited to 30 degrees is rated 20 percent disabling; and flexion of the leg limited to 15 degrees is rated 30 percent disabling. 38 C.F.R. § 4.71a. See VAOPGCPREC 09-04 (separate ratings may be granted based on limitation of flexion (Diagnostic Code 5260) and limitation of extension (Diagnostic Code 5261) of the same knee joint). Diagnostic Code 5261 provides ratings based on limitation of extension of the leg. Extension of the leg limited to 5 degrees is rated 0 percent disabling, extension of the leg limited to 10 degrees is rated 10 percent disabling; extension of the leg limited to 15 degrees is rated 20 percent disabling; extension of the leg limited to 20 degrees is rated 30 percent disabling; extension of the leg limited to 30 degrees is rated 40 percent disabling; and extension of the leg limited to 45 degrees is rated 50 percent disabling. 38 C.F.R. § 4.71a. Diagnostic Code 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. The Veteran received a VA examination in April 2010 and reported that his pain was 9/10 constantly. There were flare-ups six times per month where the pain would be 10/10. Upon examination, the examiner noted that the Veteran walked with a slow gait and a cane in his right hand. He also wore a brace on his right knee. Right knee flexion was to 125 degrees and he had pain at the extremes of flexion. The knee was stable to varus and valgus stress and there was some mild pain with patellar grind. Three repetitions of range of motion did not increase the pain or decrease the range of motion from his baseline. At the October 2014 Board hearing, the Veteran testified that he had a right knee arthroscopy in March 2005 during service. His knee was constantly hurting, and he could barely walk any distance. The Veteran also wore a knee brace daily. Pursuant to the April 2015 Board remand, the Veteran received a VA examination in April 2016 and the examiner noted residuals status post right knee arthroscopy and right knee chondromalacia patella with calcification. His right knee pain was rated 7/10 on most days with flare ups that caused pain to go to 10/10. Upon examination, right knee flexion was from 0 to 100 degrees and extension was from 100 to 0 degrees. Pain was noted on examination on flexion, but it did not result in functional loss. Muscle strength testing revealed normal strength on right knee flexion and right knee extension, and there was no muscle atrophy. Joint stability was normal, and there was no evidence or history of recurrent patellar subluxation or dislocation. Finally, there was no ankylosis present. Pursuant to the September 2017 Board remand, the Veteran received a VA examination in December 2018 and the examiner noted that the Veteran fell five times in October 2018. He experienced flare-ups three to four times per month with “10 level pain” that lasted all day. Upon examination, flexion was from 0 to 90 degrees and extension was from 90 to 0 degrees. Pain was noted on examination on flexion, and it caused functional loss. There was tenderness or pain to palpation in the right knee, while muscle strength testing revealed normal strength on right knee flexion and right knee extension. There was, however, no muscle atrophy and no ankylosis. The Veteran’s right meniscal tear was repaired in 2006, but evidence of residuals was not noted. Joint stability was normal, and there was no evidence or history of recurrent patellar subluxation or dislocation. Pursuant to the March 2019 Board remand, the Veteran received a VA examination in September 2020 and did not report flare-ups of the knee. Upon examination, flexion was from 0 to 135 degrees and extension was from 135 to 0 degrees. There was no pain noted and no additional loss of function or range of motion after three repetitions. There was no tenderness or pain on palpation in the right knee, and no evidence of crepitus. Pain limited functional ability with repeated use over time, and the examiner found flexion would be 0 to 125 degrees and extension would be 125 to 0 degrees. Muscle strength testing revealed normal strength on right knee flexion and right knee extension, and there was no muscle atrophy. Joint stability was normal, and there was no evidence or history of recurrent patellar subluxation or dislocation. With regards to the right meniscal tear, there were no frequent episodes of joint locking, joint pain, or joint effusion. There were also no signs or symptoms attributable to the Veteran’s previous meniscectomy. Finally, there was no evidence of ankylosis. The Board notes that the Veteran was assigned a disability rating of 10 percent under Diagnostic Code 5010-5260 based on functional loss due to painful motion and x-ray evidence of arthritis. The Board finds that the Veteran is not entitled to an increased rating under DeLuca. There is no additional non-compensated motion that can form the basis of an increased rating and no limitation of motion for which the Veteran is not already receiving compensation. To compensate the Veteran for the same painful motion under 38 C.F.R. § 4.59 and DeLuca would constitute the prohibited practice of pyramiding. See 38 C.F.R. § 4.14. Likewise, prohibitions regarding pyramiding preclude compensation for painful motion under Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016). A VA examination of the joints must, wherever possible, include range of motion testing for pain on active motion, passive motion, weight-bearing, nonweight-bearing, and, if possible, with the range of the opposite undamaged joint. Correia, 28 Vet. App. at 169-70; 38 C.F.R. § 4.59. However, as was noted previously, the Veteran is already being compensated for his painful noncompensable motion and there is no uncompensated limitation of motion that can provide a basis for an increased rating under Correia or on any other basis. In regard to Diagnostic Codes 5260 and 5261, there is no compensable limitation of motion that can form the basis for the assignment of a separate disability rating. Therefore, the Board finds that a separate rating under these Diagnostic Codes is not warranted. The Veteran is also not entitled to a separate compensable evaluation for ankylosis because the record does not show any ankylosis of the left knee. Therefore, Diagnostic Code 5256 is not applicable. The Veteran had his right meniscal tear repaired in 2006, and separate ratings have been considered for cartilage, semilunar, dislocated or symptomatic residuals of removal of a semilunar cartilage, and/or the removal of such with residual symptoms. However, findings on examination have consistently demonstrated the absence of locking, pain, effusion, or other symptoms associated with the Veteran’s meniscectomy. Thus, a separate rating under Diagnostic Code 5258 or 5259 is not warranted. As to Diagnostic Codes 5262 and 5263, there is no probative evidence of any impairments of the Veteran’s tibia or fibula nor has the Veteran been shown to have genu recurvatum. Thus, an increased rating under these Diagnostic Codes is not warranted. Based on all of the foregoing, the Board must unfortunately find that a rating in excess of 10 percent is not warranted for residuals status post right knee arthroscopy and meniscal tear for the entire time frame on appeal. Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to establish service connection for a disability resulting from a disease or injury incurred in service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). Service connection for certain chronic diseases may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year (three years for active tuberculous disease and Hansen’s disease; seven years for multiple sclerosis) from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). The term “chronic disease” refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C. § 1101(3); 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where a chronic disease under 3.309(a) is “shown as such in service” (“meaning clearly diagnosed beyond legitimate question,” Walker, 708 F.3d at 1339) or in the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). In cases where a chronic disease is “shown as such in service,” the Veteran is “relieved of the requirement to show a causal relationship between the condition in service and the condition for which service connected disability compensation is sought.” Walker, 708 F.3d at 1336. Instead, service connection may be granted for subsequent manifestations of the same chronic disease without any evidence of link or connection between the chronic disease shown in service and manifestations of the same disease at a later time. In other words, “there is no ‘nexus’ requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease.” Id. If evidence of a chronic condition is noted during service or during the presumptive period, but the chronic condition is not “shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned,” i.e., “when the fact of chronicity in service is not adequately supported,” then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Proven continuity of symptomatology establishes the link, or nexus, between the current disease and service, and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed.” Walker, 703 F.3d at 1336; 38 C.F.R. § 3.303(b). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Entitlement to service connection for a left knee disability, to include as secondary to service-connected right knee disability On the December 2005 Post-Deployment Health Assessment, the Veteran complained of left knee pain. The Veteran submitted a statement in February 2010 indicating that his left knee had been supporting the weight of his right knee since the right knee was injured while on active duty. This caused extra work for his left knee and led to pain. The Veteran received a VA examination in April 2010 and reported some pain over the past several years following his right knee injury. However, in September 2009, he had a horse-riding accident and injured his left medial collateral ligament (MCL) and anterior cruciate ligament (ACL). In March 2010, the Veteran had an arthroscopy which revealed medial and lateral meniscal tears, ACL tear, MCP tear, and patellofemoral joint arthritis. Based on the results of the examination, the examiner diagnosed mild left knee patellofemoral arthritis, left knee ACL and MCL tears with moderate residual laxity, and residuals of medial and medial and lateral meniscectomy which was still in postoperative healing. The examiner noted the Veteran’s claim that he had left knee pain prior to his horseback riding injury and was using his left knee to compensate for the right knee was the cause of his pain. As a result, the examiner concluded that the arthritis was probably the only chronic condition that the Veteran had that was present before his horseback riding injury. The more pressing problems were his ACL tear, MCL tear, and meniscal tears, which occurred as a result of the horseback riding injury. The examiner then opined that it was less likely than not that the Veteran’s right knee was the cause of his current left knee condition. At the October 2014 Board hearing, the Veteran testified that his left knee was related to his right knee because he had to favor one leg over the other. Pursuant to the March 2019 Board remand, the Veteran received a VA examination in September 2019. The examiner noted that the Veteran’s left knee was not injured in service, but rather injured in 2009 when he fell off a horse. He subsequently had a left meniscus repair in 2010. Based on the results of the examination, the examiner concluded that the left knee disability was less likely than not proximately caused or aggravated by the right knee disability, as the disability happened when he fell off a horse in 2009. It was therefore unrelated to the right knee and was a separate diagnosis. At the outset, the Board finds the conclusion of the September 2019 examiner to be of diminished probative value, as she did not consider the Veteran’s lay statements regarding the etiology of his left knee condition. Those statements are highly credible; while the Veteran admits to a horseback riding accident in 2009, he also alleges that his knee pain started prior to the accident due to overcompensating for the pain in his right knee. These statements are corroborated by the medical evidence of record, as the Veteran’s post-deployment health assessment show complaints of left knee pain. Furthermore, the April 2010 examiner competently noted that the Veteran’s left knee arthritis could have been present prior to the horseback riding accident. In light of the diminished probative value of the negative September 2019 nexus opinion, the Board will give the Veteran the benefit of the doubt and conclude that service connection for his left knee disability, diagnosed as left knee arthritis, is warranted. In so reaching that conclusion, the Board has appropriately applied the benefit of the doubt doctrine in this case. 38 U.S.C. § 5107(b) 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Daniels, 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.