Citation Nr: 21061428 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 19-26 140 DATE: October 4, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for right knee meniscal tear with degenerative arthritis is denied. Entitlement to a separate disability rating of 20 percent, effective June 19, 2021, for right knee effusion is granted. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran's right knee meniscal tear with degenerative arthritis is manifest by limited flexion of no worse than 40 degrees and painful motion. 2. As of June 19, 2021, the Veteran's right knee meniscal tear with degenerative arthritis is manifest by limited flexion of no worse than 40 degrees, painful motion, popping, locking, and effusion. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for right knee meniscal tear with degenerative arthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5260. 2. The criteria for a separate rating of 20 percent for right knee dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion have been met as of June 19, 2021. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.40, 4.45, 4.49, 4.71a, Diagnostic Code 5258. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from January 1984 to November 1986. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Veteran presented sworn testimony at a hearing before the undersigned Veterans Law Judge in January 2021. The Board remanded this matter in March 2021 for additional development. 1. Entitlement to a disability rating in excess of 10 percent for right knee meniscal tear with degenerative arthritis. 2. Entitlement to a separate disability rating of 20 percent, effective June 19, 2021, for right knee effusion. The Veteran contends that he is entitled to a higher rating for right knee meniscal tear with degenerative arthritis. Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. In addition, if we have sufficient data to rate the disability under the revised criteria and there is no other reason to remand, please insert the following language: In this regard, the Board observes that former regulation 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction. In Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9(b)(2) (now as noted renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. As such, pursuant to 38 C.F.R. § 20.904(d)(2), the Board will proceed to adjudicate the Veteran's claim. The Veteran's right knee meniscal tear with degenerative arthritis is rated under 38 C.F.R. § 4.71a, hyphenated Diagnostic Code 5003-5260 for limitation of flexion of the leg. Under Diagnostic Code 5260, a noncompensable rating is warranted for flexion limited to 60 degrees. A 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. A 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. A June 2018 private treatment record from OrthoWest notes that upon examination, his lower right extremity joints have full range of motion with no pain, crepitus, contracture, subluxation, or laxity. A July 2018 VA treatment record notes the Veteran has chronic right knee pain. The Veteran was afforded a VA knee and lower leg conditions examination in December 2018. Diagnoses of residuals of right knee meniscectomy and right knee degenerative arthritis were noted. The Veteran reported flare ups of pain caused by prolonged walking, standing, or using stairs. Initial range of motion of the right knee was measured as follows: 0 to 120 degrees flexion; 120 to 0 degrees extension. Neither pain nor limitation of motion were noted as resulting in a functional loss. Pain upon weight bearing and tenderness upon palpation were noted. No additional loss of range of motion or function was noted after repetitive use testing. Pain, weakness, fatigability, or incoordination were not noted as significantly limiting functional ability with repeated use over time. the examiner would not speculate regarding functional loss during flare-ups. Muscle strength testing was normal, with no atrophy noted. Joint instability was not noted. Regular use of a knee brace was noted. Pain on passive range of motion and non-weight bearing were noted. The Veteran testified at the January 2021 Board hearing that his knee is normally uncomfortable and that when he uses stairs he has not remember to not step off with his right leg, especially with going down. He stated that weather can cause pain in the knee and related that he recently began getting shots for treatment. He endorsed using a knee brace and having a history of instability. He then stated that if he gets up out of a chair he has to "plant [himself]" and that twisting is difficult for him. He further stated that his instability is more severe at work than it is at home, as he has to move at his work. He then stated that if he isn't careful it will flare up. He stated that his knee gives out almost every day. The Veteran was afforded a VA contract knee and lower leg examination in June 2021. A diagnosis of right knee degenerative joint disease status post meniscectomy, instability was noted. The Veteran reported right knee pain, swelling, instability, buckling, popping, grinding, decreased range of motion, locking, tenderness, and tightness. He stated that he has use his left knee first and that it is difficult to perform any physical activities due to right knee pain. He further reported treating his knee with ice, heat, daily use of a brace, and over the counter medications as needed. He reported daily flare-ups of severe pain that last several hours that is precipitated by walking and alleviated by rest and that limit his ability to bend and squat. He then reported that his right knee disability causes him difficulty with doing chores, yard work, running, jumping, walking for long periods, driving for long periods, going up and down a ladder, and limits his activities at work. He then reported chronic right knee instability and swelling. Initial right knee range of motion was measured as follows: 80 degrees flexion; 0 degrees extension. Passive and active measurements were the same. Pain was noted on both measurements in weight-bearing and non-weight-bearing, as well as at rest. Pain was noted as limiting the Veteran in bending and squatting. Crepitus was noted, as was severe tenderness. No additional loss of function or range of motion were noted upon repetitive use. Regarding repetitive use over time and flare-ups, pain, fatigability, weakness, lack of endurance, and incoordination were noted as contributing to functional limitation, with range of motion being estimated as follows: 40 degrees flexion; 0 degrees extension. It was noted that chronic right knee pain, swelling, and tenderness lead to difficulty standing, walking, or sitting more than 15 minutes. Chronic right knee swelling due to meniscectomy was noted. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for right knee meniscal tear with degenerative arthritis. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain, weakened movement, excess fatigability, incoordination, repetitive use, pain during flare-ups, and pain during repetitive use over time. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements would not result in limitation of motion more nearly approximating flexion limited to 30 degrees. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for a rating in excess of 10 percent for right knee meniscal tear with degenerative arthritis. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. The Board has also considered the other Diagnostic Codes pertaining to the knee and leg. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). The Board notes that the Veteran is currently rated separately for right knee instability under diagnostic code 5257. In addition, the Veteran has never demonstrated or been diagnosed with ankylosis of the right knee, impairment of the tibia and fibula, or genu recurvatum. Therefore, Diagnostic Codes 5256, 5262, and 5263 are not applicable. The Board has considered whether the assignment of a separate ratings under Diagnostic Code 5258 violates the rule against pyramiding. Diagnostic Code 5258 contemplates dislocation, effusion, and locking of the knee while Diagnostic Codes 5003/5010, 5260, and 5261 for arthritis and limitation of motion contemplate painful limited motion of the knee in various directions. The evaluation of the same disability or the same manifestations under various diagnoses is prohibited. 38 C.F.R. § 4.14. However, in Lyles v. Shulkin, 29 Vet. App. 107 (2017), the Court of Appeals for Veterans Claims held that separate ratings are not precluded for limitation of motion (Diagnostic Codes 5003, 5260 and 5261), meniscal disability (Diagnostic Codes 5258 and 5259) and instability (Diagnostic Code 5257). In this case, the Veteran reported at the June 2021 VA examination that he experiences locking, popping, and swelling in his right knee. The VA examiner confirmed crepitus and chronic right knee swelling due to meniscectomy. Based on the above evidence, the Board finds that as of June 19, 2021, the date it was first reported, a separate 20 percent rating is warranted under Diagnostic Code 5258 for right knee popping, locking, and effusion. See Swain v. McDonald, 27 Vet. App. 219, 224 (2015) (holding that the effective date for an increased rating is predicated on when the increase in the disability can be ascertained). The Veteran is certainly competent to report these knee symptoms. See English v. Wilkie, 30 Vet. App. 347 (2018); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Further, the June 2020 VA examiner noted chronic effusion due to meniscal tear in their report. Finally, the Board notes that the Veteran's representative raised the issue of extraschedular consideration in the August 2021 informal hearing presentation (IHP). However, the Board further notes that aside from raising the issue generally, the representative provided no argument for why referral to the Director, VA Compensation Services is warranted. The Board finds that the evidence of record does not show any symptoms of the Veteran's right knee disability that are not contemplated by or included within the Schedular Rating Criteria. Hence, referral to the Director for consideration of a higher rating on an extraschedular basis is not indicated. See, Thun v. Peake, 22 Vet. App. 111 (2008). In reaching this determination, the Board notes that in Morgan v. Wilkie, 31 Vet. App. 162, 167-68 (2019), the United States Court of Appeals for Veterans Claims (Court) held that VA's duty to maximize benefits requires it to first exhaust all schedular alternatives for rating a disability before an extraschedular analysis is triggered, including inter alia, secondary service connection (38 C.F.R. § 3.310), analogous ratings (38 C.F.R. § 4.20), and rating under multiple diagnostic codes without pyramiding (38 C.F.R. § 4.14). See also Bailey v. Wilkie, 33 Vet. App. 188, 203 (2021); (Long v. Wilkie, 33 Vet. App. 167, 174 (2020) (en banc). (Continued on the next page) Here, the Board has granted a separate evaluation for right knee locking and finds that there are no manifestations of the Veteran's right knee disability that are not contemplated by the assigned ratings, as noted above. As such, referral for extraschedular consideration is not warranted. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Keeley, Brian 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.