Citation Nr: 21004155 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 06-32 507 DATE: January 26, 2021 ORDER Entitlement to a rating in excess of 20 percent for a right knee disability is denied. Entitlement to a rating in excess of 20 percent for a left knee disability prior to September 30, 2019, and beginning December 1, 2019, is denied. Entitlement to a separate 10 percent rating for symptomatic removal of semilunar cartilage of the left knee beginning September 30, 2019, is granted. FINDINGS OF FACT 1. For the entire period on appeal, the Veteran’s right knee disability has been manifested by flexion limited to, at worst, 40 degrees, and pain. 2. For the entire period on appeal, the Veteran’s left knee disability has been manifested by flexion limited to, at worst, 30 degrees. 3. The Veteran underwent a left knee meniscectomy on September 30, 2019, and has current symptoms of locking and pain. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for a right knee disability have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5256, 5257, 5258, 5259, 5260, 5261, 5262, 5263 (2019). 2. The criteria for a rating in excess of 20 percent for a left knee disability have not been met prior to September 30, 2019, or beginning December 1, 2019. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5256, 5257, 5260, 5261, 5262, 5263 (2019). 3. The criteria for a separate rating of 10 percent, but not higher, for symptomatic removal of semilunar cartilage of the left knee have been met beginning September 30, 2019. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5258, 5259 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from November 1976 to March 1977, and from December 1990 to August 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In April 2008, the Veteran testified in a hearing before a Veterans Law Judge who is no longer with the Board. A transcript of that hearing has been associated with the Veteran’s claims file. In October 2020, the Veteran was sent a letter notifying him of that fact and offered him the opportunity to appear at a hearing before a current member of the Board. In an October 2020 reply, the Veteran declined to appear at another hearing, and expressed his desire to have his appeal decided based on the evidence currently of record. This case was previously before the Board. In a November 2010 decision, the Board denied the claims currently on appeal. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a March 2012 Order, the Court granted a Joint Motion of the parties, vacated the Board’s decision, and remanded the case to the Board for action consistent with the Joint Motion. The case was remanded by the Board for additional development in September 2014, March 2015, July 2015, and February 2016. In August 2017, the Board again denied the issues currently on appeal. The Veteran appealed that decision to the Court. In a July 2018 Order, the Court granted a Joint Motion of the parties, vacated the Board’s decision, and remanded the case to the Board for action consistent with the Joint Motion. The case was remanded by the Board for additional development in August 2019. The case has not been returned to the Board for further appellate action. In a December 2019 rating decision, the Veteran was assigned a temporary100 percent rating for his left knee disability for purposes of convalescence, effective September 30, 2019. The Veteran’s rating for his left knee disability was then returned to 20 percent following the cessation of the convalescence period, effective December 1, 2019. That does not constitute a full grant of the benefit sought on appeal. However, the Board has limited its consideration accordingly. Increased Ratings – Right and Left Knee Disabilities The Veteran has asserted that he should have higher ratings for his right and left knee disabilities as his symptoms are worse than those contemplated by the currently assigned ratings, to include that he should be awarded entitlement to separate compensable ratings for his knee disabilities under additional diagnostic codes pertaining to the knee. At an April 2006 VA knee examination, the Veteran reported that he currently experienced pain in both knees approximately 80 percent of the time. He reported that his pain was sharp and aching in nature. He reported that his knees would occasionally lock, and that he has fallen twice over several years. He reported occasional swelling of the knees, and that he worse braces on both knees. He reported that the braces helped with stability, but did not relieve pain. The Veteran reported that his knee disabilities made it difficult and painful to work at his current job as he had to climb ladders and carry heavy equipment. The Veteran reported that he experienced severe pain when squatting. He reported that climbing stairs was difficult and painful. Upon physical examination of the knees, the Veteran was noted to have a normal gait. Muscle strength testing was normal, although there was some slight quadricep weakness that was equal, bilaterally. Palpation of the knees was essentially normal. Range of motion (ROM) testing revealed full right and left knee extension without pain, but with a large amount of crepitans; right knee flexion to 106 degrees, with pain beginning at 60 degrees, and nonverbal communications of pain with passive range of motion past 60 degrees; left knee flexion to 114 degrees, with pain at 60 degrees. The Veteran was able to perform repetitive testing, but there was no additional limitation in either knee following repetition. X-rays revealed arthritis in both knees. The examiner diagnosed bilateral meniscus derangement, patellofemoral pain syndrome, and moderately-severe traumatic arthritis; and, a baker’s cyst on the right knee. The examiner noted that they were unable to estimate any additional functional impairment during a flare-up without resorting to speculation. However, the examiner did not that the Veteran reported that he only had flare-ups during periods of bad weather, but that he was able to continue working despite additional pain during flare-ups, and that the flare-ups did not result in the Veteran being incapacitated. At an April 2007 VA knee examination, the Veteran reported continued knee pain, with the right knee being worse than the left. He reported that his right knee pain was a 9 out of 10 in intensity. With regard to the left knee, he reported that the pain seemed “deep” in the joint, and rated it an 8 out of 10 in intensity. He reported painful flare-ups of his knees where the pain was a 10 out of 10 in intensity, especially when climbing up and down stairs. He reported a history of night pain, swelling, popping with pain, and locking. The Veteran reported that he used a brace intermittently, but was noted to not be wearing a brace at the time of the examination. He did not use other assistive devices for ambulation. He reported that he could walk a half mile without pain, but that he was limited in motion in his occupation as his knees made it difficult to pick up objects. He reported that he was currently working in a factory. Upon physical examination of the knees, deep tendon reflexes were normal. Sensory examination was normal. ROM testing revealed flexion to 120 degrees, bilaterally; and, full extension, bilaterally. The Veteran was able to perform repetitive testing, and there was no additional limitation of function of either knee following repetition. The examiner noted that active and passive ROM was the same. There was pain noted on the extremes of motion, but stability testing was normal. There was tenderness to palpation of both knees. The Veteran was noted to have patella grind in both knees, but there was no effusion in either knee on examination. The examiner noted that there was mild discomfort on examination of the knees, but it was conceivable that pain could further limit function as described by the Veteran, particularly with repetition. However, the examiner noted that it was not feasible to attempt to express any additional limitation in terms of degrees of motion lost, as such matters could not be estimated with any degree of medical certainty. At a September 2008 VA knee examination, the Veteran reported that his knee pain continued to get worse over time. He reported that reported that sometimes his knee pain was a 5-7 out of 10 in intensity, but that his pain did increase to a 9-10 out of 10 in intensity when he walked longer than 30 minutes, used stairs, or did a lot of squatting or bending. He reported that he used knee braces on both knees, but they did not provide any relief. Other than pain with walking for longer than 30 minutes, the examiner noted that the Veteran did not describe specific flare-ups, but rather stated that his pain was increased with activity and repetitive type motion. The Veteran reported that his knee pain affected his ability to perform activities of daily living in that he was unable to do any sort of walking, stairs, or bending without pain. He reported that his knee disabilities impacted his ability to work. He reported occasional muscle spasms around his knees, occasional locking, and occasional night pain. Upon physical examination, the Veteran did not have effusion, overlying skin changes, or masses. ROM testing revealed left knee flexion to 115 degrees; right knee flexion to 95 degrees; and full extension, bilaterally. ROM testing was performed both actively and passively. There was significant pain noted throughout the left knee arc of motion. His quadriceps were noted to contract and resist motion on passive ROM testing past 115 degrees on the left and 95 degrees on the right. The Veteran was able to perform right and left knee repetitive testing, and there was no additional limitation following repetition. There was no instability or subluxation in either knee. There was no popping, locking or crepitans on examination of either knee. There was no effusion in either knee. The Veteran was noted to have an antalgic gait. The examiner noted that the Veteran’s knees would impact his ability to perform heavy labor types of activities. The examiner noted that it was conceivable that the Veteran would have additional functional impairment resulting from pain after being on his feet all day. However, the examiner noted that it would not be feasible to attempt to express additional limitation in terms of degrees of motion lost. At an April 2015 VA knee examination, the Veteran reported chronic, constant pain in both knees, the right being worse that the left. He denied flare-ups at that time. The Veteran described his functional impairment to consist of increased pain with activity, that was improved by rest. Upon physical examination, ROM testing revealed flexion to 140 degrees, bilaterally; and extension to 0 degrees, bilaterally. The examiner noted that there was no evidence of pain with weight bearing in either knee. There was tenderness to palpation of both knees. There was no objective evidence of crepitus in either knee. The Veteran was able to perform repetition, and there was no additional limitation of either knee following repetition. The examiner noted that the Veteran would not be significantly limited by pain, weakness, fatigability, or incoordination in either knee following repeated use over a period of time. Muscle strength testing was normal, and there was no muscle atrophy. There was no ankylosis found. There was no history of recurrent subluxation, lateral instability, or recurrent effusion in either knee. Joint stability testing was normal in both knees. The Veteran did not have a meniscal condition in either knee. There were no other pertinent physical findings, complications, conditions, sights, or symptoms in either knee. The Veteran did not require assistive devices for ambulation. At a November 2015 VA knee examination, the Veteran reported that his knee pain had gotten progressively worse over time. He denied current symptoms of catching/locking or giving way, but did report pain with stair use. Upon physical examination, ROM testing revealed flexion to 140 degrees, bilaterally; and extension to 0 degrees, bilaterally. There was pain noted on examination, but the examiner reported that it did not result in functional impairment. There was pain with weight bearing, and pain to palpation of both knees. There was objective evidence of crepitus in both knees. The Veteran was able to perform repetitive testing, but there was no additional limitation of function following repetition. The examiner noted that the Veteran would not be significantly limited by pain, weakness, fatigability, or incoordination in either knee following repeated use over a period of time. Muscle strength testing was normal, and there was no muscle atrophy. There was no ankylosis. There was no history of recurrent subluxation, lateral instability, or recurrent effusion in either knee. Joint stability testing was normal, bilaterally. There were no other pertinent physical findings, complications, conditions, signs, or symptoms in either knee. The Veteran was noted to occasionally use a knee brace. At a May 2016 VA knee examination, the Veteran reported increased pain in both knees over time. He reported flare-ups of his knee pain that occurred with changes in the weather. He reported that flare-ups occurred approximately 10 days per month, and that they would last a full day at a time. He reported that during a flare-up he could not squat without holding onto something, but he was able to walk for two blocks and stand for 20 minutes. The Veteran described functional impairment to consist of only being able to walk 5 blocks and stand for 45 minutes, and he had to rest after climbing one flight of stairs. Upon physical examination, ROM testing revealed flexion to 140 degrees, bilaterally; and extension to 0 degrees, bilaterally. There was pain with weight bearing in both knees, and tenderness to palpation of both knees. There was no objective evidence of crepitus in either knee. The Veteran was able to perform repetitive testing, and there was no additional limitation in either knee following repetition. The examiner noted that the Veteran would be significantly by pain during a flare-up, but that it would not result in limitation of motion. Muscle strength testing was normal, and there was no muscle atrophy. There was no ankylosis. There was no history of recurrent subluxation, lateral instability, or recurrent effusion in either knee. Joint stability testing was normal, bilaterally. The Veteran was noted to have a right meniscal tear, per June 2006 treatment note. The Veteran was noted to regularly use a knee brace. At a December 23, 2019, VA knee examination, the Veteran reported that his knees had continued to get worse over time, especially within the last 18 months. He reported that he was unable to squat as a result of pain, and that he was unable to run without his knees swelling up. The Veteran reported that he worked as a “driver” and that his legs would “lock up” when stepping down. The Veteran reported that in September 2019, he underwent a left meniscus repair surgical procedure as he had been told he had a 50/50 chance of resolutions of his symptoms if he had the surgery. The Veteran reported that as a result of the significant arthritis in his knees, he would eventually require total knee arthroplasty. He reported current symptoms of locking up, throbbing pain, and occasional falls dur to his knees locking up. He reported that his normal pain level was a 6 out of 10 in intensity. The Veteran reported experiencing right knee flare-ups of his knee, where he experienced an increase severity of throbbing pain. He reported that he usually experienced flare-ups twice a day, and that they were generally worse at night. He estimated that the pain during a flare-up was moderate to severe, and rated it an 8 out of 10 in intensity. The Veteran was noted to deny flare-ups in the left knee. The Veteran described functional impairment that included slowing down in his activities, aggravated knee pain with increased weight bearing, and aggravated knee pain with bending. Upon physical examination, ROM testing showed right knee flexion to 65 degrees, with extension to 0 degrees; and left knee flexion to 35 degrees, with normal extension. The Veteran was noted to experience pain on flexion of both knees that resulted in the functional loss. It was noted that the pain would limit the Veteran’s ability to perform bending and climbing steps. There was no evidence of pain on palpation of either knee. There was objective evidence of crepitus and pain with weight bearing in both knees. There was no objective evidence of pain on passive ROM testing, or on non-weight bearing of either knee. The Veteran was able to perform repetitive testing, and there was no additional functional loss following repetition. The examiner note that the Veteran would not be significantly limited by pain, weakness, fatigability, or incoordination in either knee after repeated use over a period of time or during a flare-up. The examiner noted that the Veteran experienced additional functional impairment that consisted of disturbance of locomotion, in that he required a cane for assistance with ambulation. Muscle strength testing was normal, and there was no muscle atrophy. There was no ankylosis in either knee. There was no history of recurrent subluxation, lateral instability, or recurrent effusion in either knee. Joint stability testing of both knees was normal. The Veteran did not have a disability affecting his right meniscus; but, was noted to have had a left meniscus tear with frequent episodes of both joint locking and joint pain. The meniscus was noted to have been repaired in September 2019 during an arthroscopic meniscectomy. The examiner noted that the Veteran’s knee disabilities impacted his ability to work in that he had missed work while recovering from his left knee meniscectomy. It was also noted that the Veteran reported that the duties of his job, including pushing wheelchairs for passengers, and bending to lock the wheelchairs, aggravated his knee pain. At a December 30, 2019, VA knee examination, the Veteran again reported that his pain had increased in severity in the last 18 months. He reported that when he squatted or ran, his knees would start to swell. He reported that his pain was aggravated by prolonged standing and walking. He reported that when he stepped down of the bus (he worked as a driver), his legs would “lock up.” He reported that pain woke him from sleep at night, and his knees would lock up at night. The Veteran reported his current knee symptoms included locking up, constant throbbing pain, occasional falls due to locking, and painful flare-ups. He described his left knee pain to constantly be an 8 out of 10 in intensity; and, described his right knee pain as a 6 out of 10 in intensity when not flaring, and as an 8 out of 10 in intensity during a flare-up. He reported that right knee flare-ups occurred approximately twice a day, where his pain would increase in severity and throb. He reported that the flare-ups lasted around 24 hours. The Veteran reported his functional impairment as a slowing down of activities, and an aggravation of his pain while performing his job duties. Upon physical examination, ROM testing revealed right knee flexion to 50 degrees, left knee flexion to 40 degrees, and extension to 0 degrees, bilaterally. The examiner noted that the Veteran’s range of motion was limited by pain, and that the pain also limited his ability to perform tasks that required bending. There was pain on passive ROM testing of both knees, and there was no objective evidence of pain in non-weight bearing in either knee. The Veteran experienced pain to palpation of both knees that was moderate in severity. There was pain with weight bearing in both knees, and objective evidence of crepitus in both knees. The examiner noted that the Veteran was able to perform repetitive testing, but there was no additional limitation following repetition. The examiner noted that the Veteran would be significantly limited by pain and weakness in the right knee following repeated use over a period of time, during which his flexion would be further limited to 40 degrees. The examiner noted that the Veteran would be significantly limited by pain, weakness, and incoordination in the left knee following repeated use over a period of time, during which his flexion would be further limited to 30 degrees. The examiner also noted that the Veteran would be significantly limited by pain and weakness in the right knee during a flare-up, but that he would not have additional limitation of motion as a result. The examiner noted that additional factors contributing to disability consisted of disturbance of locomotion, in that the Veteran used a cane for assistance with ambulation due to pain and weakness, and interference with prolonged standing. Muscle strength testing revealed a decrease in muscle strength with active movement against some resistance in both flexion and extension, bilaterally. However, there was no muscle atrophy. There was no ankylosis. There was no history of recurrent subluxation, lateral instability, or recurrent effusion in either knee. Joint stability testing was normal, bilaterally. The Veteran was noted to have right knee meniscus impairment that resulted in frequent episodes of locking and joint pain, and a left knee meniscus tear with frequent episodes of locking and pain. There were no other pertinent physical findings, complications, conditions, signs, or symptoms present in either knee. The examiner noted that the Veteran’s knee disabilities did impact the Veteran’s ability to work. In this regard, the examiner noted that the Veteran’s knee disabilities resulted in aggravation of knee pain by weight bearing and performing some of his required duties. A review of the record shows that the Veteran receives treatment for various disabilities at the VA Medical Center and from private providers, to include for his knee disabilities. However, a review of the treatment notes of record does not show the Veteran to have symptoms worse than those reported in the various VA examination reports of record, to include additional limitation of motion, or additional limitation following repeated use over a period of time or during a flare-up. The Board finds that the Veteran is not entitled to a rating in excess of 20 percent for his right knee disability. In this regard, there is no indication from the record that the Veteran has right knee flexion limited to 30 degrees or worse. In fact, the Veteran was noted to have right knee flexion limited to, at worst, 40 degrees during the appeal period. Further, the December 30, 2019, VA examiner specifically considered any additional limitation as a result of pain, weakness, fatigability, or incoordination following repetition, repeated use over a period of time, or during a flare-up when reporting the Veteran’s ROM testing results. As such, even with consideration of all pertinent disability factors, there remains no reasonable basis for assignment of a rating in excess of 20 percent for the right knee. Therefore, a higher rating is not warranted at this time. 38 C.F.R. §§ 4.40, 4.45, 4.71a, Diagnostic Code 5260 (2019). With regard to the Veteran’s claim that he should have a separate rating for his right knee for a disability of the semilunar cartilage, consideration has been given to assigning a separate compensable rating for such. The Board notes that while the evidence is somewhat inconsistent as to whether the Veteran has a disability impacting the right knee meniscus, for purposes of this decision, the Board will assume that the findings of right knee meniscus impairment in the December 30, 2019, VA examination report are accurate. However, the Board finds that there is no indication from the record that the Veteran has dislocated semilunar cartilage with frequent episodes of “locking, pain, and effusion into the joint” (emphasis added). In fact, it has been expressly noted that while the Veteran may experience locking and pain, he has not history of recurrent effusion, let alone recurrent effusion into the joint. Additionally, the Veteran has not had any surgical procedure on his right knee resulting in the removal of semilunar cartilage. As such, a separate compensable rating for a disability of the semilunar cartilage is not warranted, and the Veteran is appropriately rated based on pain and limitation of flexion. 38 C.F.R. §§ 4.71a, Diagnostic Codes 5258, 5259 (2019). Consideration has also been given to assigning the Veteran a separate compensable rating for right knee impairment under another diagnostic code pertaining to the knee. However, there is no indication from the record that the Veteran has right knee ankylosis, recurrent subluxation or lateral instability, extension limited to 10 degrees or more, impairment of the tibia or fibular, or genu recurvatum. As such, a separate compensable rating for the right knee under another diagnostic code pertaining to the knee is not warranted. 38 C.F.R. §§ 4.71a, Diagnostic Codes 5256, 5257, 5261, 5262, 5263 (2019). The Board finds that the Veteran is not entitled to a rating in excess of 20 percent for his left knee disability. In this regard, there is no indication from the record that the Veteran has right knee flexion limited to worse than 30 degrees. In fact, the Veteran was noted to have left knee flexion limited to, at worst, 30 degrees during the appeal period. Further, the December 30, 2019, VA examiner specifically considered any additional limitation as a result of pain, weakness, fatigability, or incoordination following repetition, repeated use over a period of time, or during a flare-up when reporting the Veteran’s ROM testing results. As such, even with consideration of all pertinent disability factors, there remains no reasonable basis for assignment of a rating in excess of 20 percent for the left knee. Therefore, a higher rating is not warranted at this time. 38 C.F.R. §§ 4.40, 4.45, 4.71a, Diagnostic Code 5260 (2019). The Board finds that the Veteran is entitled to a separate 10 percent rating for symptomatic semilunar cartilage removal of the left knee beginning September 30, 2019. In this regard, the Veteran underwent a left knee meniscectomy in September 2019. At his December 2019 VA examination, he was noted to experience frequent episodes of locking and pain as a result of his (repaired) meniscal tear. As such, the Veteran is entitled to a separate 10 percent rating for symptomatic removal of semilunar cartilage. 38 C.F.R. § 4.71a, Diagnostic Code 5259 (2019). Consideration has been given to assigning a separate compensable rating for left knee symptomatic removal of semilunar cartilage prior to September 30, 2019. However, there is no indication from the record that the Veteran had semilunar cartilage removed from his left knee prior to his September 2019 meniscectomy. In fact, multiple examination reports of record prior to September 2019 specifically note that the Veteran had not had surgery on his left knee. As such, a separate compensable rating for left knee symptomatic removal of semilunar cartilage is not warranted prior to September 30, 2019. 38 C.F.R. § 4.71a, Diagnostic Code 5259 (2019). Consideration has been given to assigning a higher rating for impairment of the left knee semilunar cartilage. However, while the Veteran has undergone a left knee meniscectomy, and he has been noted to have frequent locking and pain in his left knee, there is no indication from the record that he has recurrent effusion into the left knee joint. In fact, it has been specifically noted at various VA examinations, to include the most recent December 2020 VA examination, that the Veteran does not have effusion into the joint. As such, a higher rating for semilunar cartilage impairment is not warranted. 38 C.F.R. §§ 4.71a, Diagnostic Code 5258 (2019). Consideration has also been given to assigning the Veteran a separate compensable rating for left knee impairment under another diagnostic code pertaining to the knee. However, there is no indication from the record that the Veteran has left knee ankylosis, recurrent subluxation or lateral instability, extension limited to 10 degrees or more, impairment of the tibia or fibular, or genu recurvatum. As such, a separate compensable rating for the left knee under another diagnostic code pertaining to the knee is not warranted. 38 C.F.R. §§ 4.71a, Diagnostic Codes 5256, 5257, 5261, 5262, 5263 (2019). Consideration has been given to assigning staged ratings. However, at no time during the period in question has a disability warranted a higher schedular rating than that assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Sutherell, 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.