Citation Nr: 21004368 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 17-45 203 DATE: January 26, 2021 ORDER Entitlement to an increased rating greater than 10 percent for postoperative residuals of anterior cruciate ligament repair, left knee, is denied. Entitlement to a separate 20 percent rating from October 8, 2018, for left knee instability associated with postoperative residuals of anterior cruciate ligament repair, left knee, is granted. Entitlement to a separate 20 percent rating from October 8, 2018, for left knee dislocated semilunar (meniscal) cartilage associated with postoperative residuals of anterior cruciate ligament repair, left knee, is granted. Entitlement to an increased rating greater than 10 percent for chondromalacia, right knee, is denied. Entitlement to a separate 10 percent rating from October 8, 2018, for right knee instability associated with chondromalacia, right knee, post-operative, is granted. FINDINGS OF FACT 1. The Veteran’s left knee postoperative residuals of anterior cruciate ligament repair is manifested by pain, swelling, and noncompensable limitation of motion and function. 2. From October 8, 2018, the Veteran’s left knee disability also is manifested by moderate lateral instability and dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion in the joint. 3. The Veteran’s right knee chondromalacia is manifested by is manifested by pain, swelling, and noncompensable limitation of motion and function. 4. From October 8, 2018, the Veteran’s right knee disability also is manifested by slight lateral instability. CONCLUSIONS OF LAW 1. The criteria for an increased rating greater than 10 percent for postoperative residuals of anterior cruciate ligament repair, left knee, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5010-5260 (2019). 2. From October 8, 2018, the criteria for a separate disability rating of 20 percent, but no more, for moderate lateral instability of the left knee associated with postoperative residuals of anterior cruciate ligament repair have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.71a, DC 5257 (2019). 3. From October 8, 2018, the criteria for a separate disability rating of 20 percent, but no more, for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion in the joint of the left knee associated with postoperative residuals of anterior cruciate ligament repair have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.71a, DC 5258 (2019). 4. The criteria for an increased rating greater than 10 percent for chondromalacia, right knee, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.71a, DC 5010-5260. 5. From October 8, 2018, the criteria for a separate disability rating of 10 percent, but no more, for slight lateral instability of the right knee associated with chondromalacia have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.71a, DC 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty in the United States Army from April 1988 to October 1997. In addition to the issues listed above, the previous August 2019 Board remand included the issue of entitlement to restoration of a disability rating of 20 percent for postoperative residuals of anterior cruciate ligament repair, left knee. Specifically, the Board remanded the issue for the provision to the Veteran of a Statement of the Case (SOC). SOCs were issued in April 2020 and June 2020 and the Veteran has not appealed either decision. As such, no further consideration of that rating / issue is warranted. Increased Rating 1. Entitlement to an increased rating greater than 10 percent for postoperative residuals of anterior cruciate ligament repair, left knee 2. Entitlement to an increased rating greater than 10 percent for chondromalacia, right knee 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. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate DCs 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. 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. The Veteran’s entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1. VA must consider whether the Veteran is entitled to “staged” ratings to compensate when his or her disability may have been more severe than at other times during the course of his or her appeal. 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 DCs 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). Historically, the Veteran’s right knee chondromalacia and left knee postoperative residuals of anterior cruciate ligament repair has been rated under DC 5210-5260, for traumatic arthritis (DC 5010) and limitation of flexion of the knee (DC 5260). In this regard, the Board notes that hyphenated DCs are used when a rating under one DC requires use of an additional DC to identify the basis for the rating assigned. 38 C.F.R. § 4.27. The Veteran contends that her current 10 percent ratings for right knee chondromalacia and left knee postoperative residuals of anterior cruciate ligament repair do not accurately reflect the severity of her condition. DC 5010 provides that traumatic arthritis is to be rated under DC 5003. Under DC 5003 degenerative arthritis, when established by x-ray findings, will be rated on the basis of limitation of motion under the appropriate DCs for the specific joint or joints involved. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate DCs, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion to be combined, not added under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, DC 5003. The general rating schedules for limitation of motion of the knee are 38 C.F.R. § 4.71a, DCs 5260 and 5261. Normal range of motion of the knee is to 0 degrees extension and to 140 degrees flexion. See 38 C.F.R. § 4.71a, Plate II. Under DC 5260, a 10 percent disability rating is warranted for flexion limited to 45 degrees. A 20 percent disability rating is assigned for flexion limited to 30 degrees; and a 30 percent disability rating is assigned for flexion limited to 15 degrees. Under DC 5261, a 10 percent disability rating is warranted for extension limited to 10 degrees. A 20 percent disability rating is assigned for extension limited to 15 degrees. A 30 percent disability rating is assigned for extension limited to 20 degrees. A 40 percent disability rating is assigned for extension limited to 30 degrees; and a 50 percent disability rating is assigned for extension limited to 45 degrees. See 38 C.F.R. § 4.71a. The Board also observes that the words “slight,” “moderate” and “severe” as used in the various DCs are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. The Veteran was afforded a VA examination in February 2015. The Veteran reported progressive worsening of her knee disabilities. The pain was aggravated by standing, sitting, walking, and going up stairs. She swam and jogged in the water because land-based activities were too painful. The knee pain was similar on both sides. There was giving way and locking in the right knee. The Veteran reported persistent swelling in both knees. The Veteran denied flare-ups in the bilateral knees. There was functional loss due to limited exercise and walking. Range of motion testing showed left knee limited from 0 to 110 degrees and in the right knee from 0 to 125 degrees. There was difficulty bending or changing positions. Repetitive use testing did not result in further loss of motion. Muscle strength was normal bilaterally and there was no evidence of muscle atrophy or ankylosis. Joint stability testing was negative and there was no evidence of recurrent effusion. There was no evidence of current meniscal conditions, but there was a past history of right and left meniscectomy. The associated scars were not painful, unstable, or large enough to warrant a compensable rating. The Veteran made regular use of knee braces. There was bilateral crepitus and at work she frequently switched between standing and sitting due to pain in the knees and back. In her October 2015 notice of disagreement, the Veteran argued that the February 2015 examiner had passively pushed her knees to the maximum range of flexion and that the recorded numbers were not indicative of her actual available motion. An additional examination of the knees is of record, from July 2017. The Veteran reported worsening knee problems, with frequent popping, pain, and instability. There were flare-ups due to sharp pain and instability. There was functional loss due to problems going to the bathroom (including getting on and off the toilet), climbing stairs, and prolonged standing, walking, driving, and sitting for more than 15 minutes. Right knee range of motion was from 0 to 100 degrees and left knee range of motion was from 0 to 90 degrees. There was pain on weight bearing and tenderness to palpation bilaterally. Following repetitive motion, right knee range of motion was from 0 to 60 degrees and left knee range of motion was from 0 to 80 degrees. This would be the same expected ranges of motion as during flare-ups. Muscle strength in both knees was 4 out of 5 and there was no muscle atrophy or ankylosis. There was no history of recurrent subluxation or lateral instability. There was intermittent joint swelling and the reported instability was anterior and not lateral in nature. There was a right knee meniscal tear, frequent episodes of joint pain, and frequent episodes of joint effusion. There was objective evidence of painful scars. A July 2017 VA scar examination is of record. None of the scars were noted to be painful, unstable, or due to burns. The largest of the five scars on the right knee was 7cm by 3 cm and was noted to be superficial and nonlinear. The scars were well healed. The largest scar on the left knee was 8cm by 1.5cm and was superficial and non-linear. On each knee, the largest scar was tender to palpation. In August 2017, the Veteran was issued bilateral offloading knee orthoses. In October 2017, the Veteran had slightly decreased right lower extremity muscle strengths of 4+ out of 5, with fully normal left lower extremity muscle strength. In June 2018, the Veteran reported that she was ready to go through yet another surgery for her bilateral knee pain. On examination, she was wearing knee braces with a hinge. There was crepitus, tenderness to palpation, and pain with patellar grind. There also was medial and lateral joint line tenderness of the meniscus. Sensation was fully intact. Bilateral ankle and knee strength was normal. Circulation also was normal. There was no evidence of laxity to varus or valgus stress. An October 8, 2018 private Case Study Analysis is of record. As to the right knee, the private physician indicated that the Veteran had normal range of motion, but had instability and pain that limited effective function of the knee to 45 degrees of flexion. As to the left knee, the Veteran reported episodes of the knee giving way, as well as locking, popping, and tenderness. The Veteran displayed significant guarding on examination. In January 2019, right and left knee ranges of motion were from 0 to 115 degrees. Stability testing was normal in both knees. Muscle strength was normal. During her April 2019 Board hearing, the Veteran reported worsening bilateral knee pain. She described giving way of the knees that had caused falls in the past, including an October 2018 incident where she had fallen downstairs due to the giving way that resulted in a dislocated shoulder and torn rotator cuff. There was pain with extended sitting or standing, as well as going up or down stairs. Range of motion was limited that affected her ability to get in and out of a car or use the commode. The Veteran also had daily knee stiffness. She used knee braces to improve stability and a walker to help with ambulation. She had difficulty driving an automobile, but could do so if absolutely necessary. In December 2019, the Veteran underwent two VA contract examinations for the knees. Diagnoses included right knee chondromalacia, left knee meniscal tear, left knee instability, bilateral knee arthritis, post-operative residuals of ACL repair, left knee, and status post-operative right and left knee multiple knee surgery residuals. Symptoms included left knee buckling and giving out, decreased range of motion, a feeling of locking, constant sharp pain, swelling, and an inability to bend or straighten the knee. As to the right knee, the Veteran reported sharp pain, throbbing, and swelling. The Veteran denied flare-ups involving the knees in one examination and in the other reported flare-ups 3 to 4 times per month that primarily occurred with weather changes that required the use of a walker and limited squatting and bending, as well as sitting or standing for longer than 10 minutes. There was functional loss due to difficulty standing too long, stepping up onto a curb, and using stairs. She had given up an apartment because of steps. She could not walk for a long period of time, such as one hour, and experienced excruciating pain. If she was not leaning on something, the Veteran could stand for only 15 to 20 minutes. She could not sit on anything low, lift, squat, or lift more than 40 pounds. She was able to do some clerical work. Both right and left knee range of motion was from 0 to 85 degrees. There was pain on flexion and extension, as well as tenderness to palpation. After repetitive motion during the second examination, range of motion was decreased from 0 to 80 degrees. Functional loss resulted in expected decreased motion to 0 to 75 degrees in each knee as estimated during the second examination. Lower extremity muscle strength was 5 out of 5 bilaterally without evidence of muscle atrophy or ankylosis. There was no history of recurrent subluxation in either knee, but there was slight right knee lateral instability (in the December 30, 2019, examination, but not the prior examination) and moderate left knee lateral instability (in both examinations). There was no evidence of recurrent patellar dislocation, shin splints, stress fractures, chronic exertional compartment syndrome, or any other tibial or fibular impairment. There were bilateral meniscal conditions noted during the second examination (December 30, 2019), including meniscal tear, frequent episodes of joint locking, frequent episodes of joint pain, and frequent episodes of joint effusion. The Veteran made regular use of braces, a walker, a raised toilet seat, seat lift assist, and a shower bench. There was pain in both knees on passive ranges of motion and in non-weight bearing activities. In the examination in which the Veteran reported flare ups, the examiner noted that the Veteran did not report additional loss of motion during those flare-ups. The Board concludes that the evidence of record shows right knee chondromalacia and left knee postoperative residuals of anterior cruciate ligament repair more nearly approximates a 10 percent disability under DC 5010-5260 for the entire appellate time period. See 38 C.F.R. § 4.7. The most severe limitation of motion, including consideration of limitation of function based on repetitive motion, was flexion limited to 45 degrees in each knee. Thus, there is no basis for assigning a rating higher than 10 percent under the above DC for either knee. Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not “duplicative of or overlapping with the symptomatology” of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). A June 2020 rating decision granted a separate 20 percent rating, effective December 9, 2019, for left knee instability. The Board finds, however, evidence to demonstrate moderate left knee instability from the October 8, 2018 private examination, as the physician specifically discussed the Veteran having ongoing left knee instability. The specific severity of the instability was not discussed, but based on subsequent testing results the Board will afford the Veteran the benefit of the doubt that her left knee lateral instability was present and moderate in nature from October 8, 2018. The Board recognizes that the left knee lateral instability likely did not have its onset on the date of the private examination. That said, the most recent medical evidence prior to that date was the July 2017 VA examination report, which indicated that the reported instability was anterior in nature and not lateral. Similarly, the February 2015 VA examination included reports of instability, but normal stability on testing. Given the July 2017 reports of anterior instability, the Board will presume that the February 2015 report also involved anterior instability given the absence of any observable lateral instability on testing. As such, prior to October 8, 2018, the only evidence of instability was anterior in nature. DC 5257 provides ratings only for lateral instability. While the October 2018 examination report did not expressly indicate that the instability was lateral in nature, the Board will afford the Veteran the benefit of the doubt based on subsequent testing results. As such, the Board finds that a 20 percent disability rating for left knee lateral instability under DC 5257 is warranted from October 8, 2018. A higher rating is not warranted because the testing results do not show severe instability. Similarly, the Board concludes that a 10 percent rating for right knee lateral instability is warranted under DC 5257 from October 8, 2018. The report noted ongoing instability of the right knee. The Board notes some discrepancy in the subsequent December 2019 VA examination reports, one of which noted slight right knee lateral instability and the other that did not. The Board affords the Veteran the benefit of the doubt that right knee lateral instability exists and has existed from at least October 8, 2018. For the same reasons as the left knee the Board finds that a higher rating or an earlier effective date for the right knee lateral instability is not warranted. The Board also concludes that a separate 20 percent rating is warranted from October 8, 2018, for the Veteran’s left knee under DC 5258 based on dislocated semilunar cartilage with frequent locking, pain, and effusion in the joint. This finding was made during the October 2018 private physician’s examination and confirmed in the December 30, 2019, VA examination. The Board recognizes that October 8, 2018, likely was not the onset date of this injury, but as the medical evidence prior to that date does not provide a clear date of onset the Board finds that October 8, 2018, is the most appropriate date to assign the 20 percent rating under DC 5258 for the left knee. All these symptoms are not contemplated by the ratings assigned for the left knee under DCs 5010-5260 and now 5257 and, as such, a separate rating is appropriate. Twenty percent is the maximum rating allowed under DC 5258. The Board has considered whether a separate rating could be applied for the right knee under DC 5258. While the December 30, 2019, VA examiner noted episodes required for the rating under DC 5258 the examiner concluded that there was unclear evidence of dislocated semilunar cartilage in the right knee. As such, the Board finds insufficient evidence for granting a separate 20 percent rating for the right knee under DC 5258. The Board has considered the possibility of a higher or alternative rating under a different DC can be applied. The Board notes that other DCs relating to knee disorders include DC 5256 (ankylosis of the knee), DC 5259 (removal of semilunar cartilage), DC 5262 (impairment of the tibia and fibula), and DC 5263 (for genu recurvatum). As noted, the Veteran’s right and left knee disabilities are not manifested by impairment of the tibia or fibula or genu recurvatum. Thus, DCs 5262 and 5263 are not applicable. Ankylosis is “immobility and consolidation of a joint due to disease, injury, surgical procedure.” Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)). The Veteran is able to move her left and right knees with some limitation of motion, so they are clearly not ankylosed, and DC 5256 is not applicable. The Board has considered the applicability of DC 5259, as the Veteran has undergone meniscal surgery on both knees for torn menisci. The evidence indicates that meniscal cartilage was removed from both knees, which would warrant 10 percent ratings under DC 5259, but as the symptoms manifested by that removal, pain, swelling, and other problems are contemplated in the current ratings under DC 5010-5260 (and in the 20 percent rating under DC 5258 for the left knee) the Board concludes that assigning separate ratings under DC 5259 would constitute impermissible pyramiding. As to the Veteran’s service-connected scars associated with the right and left knee surgeries, the Board recognizes that the July 2017 VA examination report documented tenderness in the largest of the scars on both the right and left knees. That said, both prior and subsequent examinations have not shown pain or tenderness in the scars and private and VA treatment records also fail to document ongoing problems with pain or tenderness involving the scars. In light of all the foregoing, the Board finds that any tenderness documented during the July 2017 examination represented only a temporary flare-up of the scar condition and not a permanent situation such that a compensable rating would be warranted for either scar. As such, the Board does not find that a compensable rating is warranted for any of the Veteran’s separately service-connected knee scars associated with her prior surgeries. The Board recognizes that the medical evidence shows some impairment of right and left knee function. For example, the Veteran does complain of swelling, pain, weakness, and locking of the knees, as well as intermittent instability. VA examinations, however, have shown ranges of flexion and extension of the knees that would not warrant a compensable rating under DC 6261 or a rating greater than 10 percent under DC 5260 (the current ratings), even accounting for decreased motion on repetition. In general, evaluation of a service-connected disability involving a joint requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the Veteran undertaking the motion. See 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. See 38 C.F.R. § 4.45. In this case, as discussed above, the separate ratings assigned under the criteria of DCs 5010-5260, 5257, and 5258 (for the left knee) contemplate the Veteran’s reported symptoms, including their effect on her functioning with repetitive motion. As noted, the VA examinations revealed no additional limitation of motion resulting from repetitive use that would meet the criteria for compensable ratings under either DCs 5260 or 5261. Instead, the ratings under DC 5010-5260 are assigned for the Veteran’s pain and limitation of function that limits motion, at most, to 45 degrees. As such, the Board finds that the ratings currently assigned for the Veteran’s left and right knee disabilities already contemplate the degree of functional loss demonstrated. (continued next page) As shown above, and as required by Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991), the Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the Veteran. In this case, the Board finds no provision upon which to assign a rating greater than 10 percent under DC 5010-5260 for either knee and separate 10 and 20 percent ratings under DC 5257 for the Veteran’s right and left knee disabilities, respectively, from October 8, 2018, as well as a separate 20 percent rating for the left knee under DC 5258 from that same date. There is no basis for assigning higher or separate ratings for any other timeframe during the appellate period. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. J. Houbeck, 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.