Citation Nr: 21062506
Decision Date: 10/07/21	Archive Date: 10/07/21

DOCKET NO. 17-25 425
DATE: October 7, 2021

ORDER

Entitlement to an initial rating higher than 10 percent for internal derangement left knee with meniscal tear (left knee disability) is denied.

Entitlement to a separate award of service connection for left knee instability is granted.

FINDINGS OF FACT

1.  The preponderance of the evidence of record shows that the Veteran's left knee disability has manifested with normal extension with pain, and painful motion on flexion greater than 0 to 60 degrees. 

2. While objective testing has not established subluxation, instability, or cartilage symptoms, the competent and credible lay evidence does indicate some degree of instability at times, which is not contemplated by the currently assigned rating. 

CONCLUSIONS OF LAW

1.  The criteria for and initial rating higher than 10 percent for left knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.59, 4.71a. Diagnostic Code (DC) 5003-5260, 5003-5261.

2. The criteria for a separate award of service connection for left knee instability have been met.  38 U.S.C.A. §§ 1110 , 1155, 5103, 5103A, 5107

REASONS AND BASES FOR FINDING AND CONCLUSION

Upon initial review of this case the Board remanded it to the Agency of Original Jurisdiction (AOJ) for additional development. See 02/22/2019 BVA Decision. As discussed further below, the Board finds substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998).

Entitlement to an initial rating higher than 10 percent for left knee disability is denied.

Applicable Law and Regulation

Disability ratings are intended to compensate for impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.27. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, see 38 C.F.R. §§ 4.1, 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran's favor. 38 C.F.R. § 4.3. Evaluations are based on functional impairments which impact a veteran's ability to pursue gainful employment. 38 C.F.R. § 4.10.

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. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202, 205-08 (1995); 38 C.F.R. §§ 4.40, 4.45. In DeLuca, the Court of Appeals for Veterans Claims stated that increased symptomatology due to weakness, fatigue, etc., where possible, should be, where possible stated by examiners in terms of additional loss of range of motion. DeLuca, 8 Vet. App. at 205.

The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59.

Rating Criteria

For purposes of this decision, the Board notes that normal range of motion for the knee is flexion to 140 degrees and extension to 0 degrees. 38 C.F.R. § 4.71a, Plate II.

Diagnostic Codes 5260 and 5261 provide for rating based on limitation of motion (LOM).

Evaluations for limitation of flexion of a knee are assigned as follows: flexion limited to 45 degrees is 10 percent; flexion limited to 30 degrees is 20 percent; and flexion limited to 15 degrees is 30 percent. 38 C.F.R. § 4.71a, DC 5260.

Evaluations for limitation of extension of the knee are assigned as follows: extension limited to 10 degrees is 10 percent; extension limited to 15 degrees is 20 percent; extension limited to 20 degrees is 30 percent; extension limited to 30 degrees is 40 percent; and extension limited to 45 degrees is 50 percent. 38 C.F.R. § 4.71a, DC 5261.

The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994).

Discussion

The Veteran's initial examination was conducted in 2014. The Board notes that the examination was arranged for the purpose of determining if there was a nexus with the Veteran's active service. Nonetheless, the findings do indicate the severity of the left knee at that point in the rating period. The examination report (02/01/2014 C&P Exam, 5th Entry) reflects the Veteran's history of sustaining a left knee injury while serving in Vietnam. The Veteran reported flare-ups of constant sharp pain of 5/10 intensity and occasional swelling on climbing, walking and standing. Physical examination revealed no tenderness. The examiner indicated on the examination Form that the left knee ROM was 0 to 105 degrees with onset of pain at 110 degrees. Repetitive-use testing revealed no additional loss of ROM. The Board finds that the examiner probably mistakenly reversed the values, as ROM was in all probability 0 to 110 degrees with pain onset at 105 degrees. Motor strength was 4/5, and examiner indicated that the Veteran had no history of left knee instability or subluxation. The examiner noted the Veteran's positive history of a meniscus tear, but there was no indication of positive meniscus symptomatology. X-rays were read as showing no significant degenerative changes. The Veteran reported no use of assistive devices. The examiner opined that there was no work impact, and that the Veteran had not lost the use of the left knee.  Flare-ups were reported but additional functional limitation associated with such flare-ups were not reported.

The AOJ arranged another examination in 2016. The examination report (05/23/2016 C&P Exam, 4th Entry) reflects that the Veteran reported a sensation of the left knee giving away. He reported flare-ups of increased pain and swelling on repeat use, and functional loss on flexion. Id. P. 4. Physical examination revealed moderate tenderness or pain on palpation of the joint or associated soft tissue. Id. P. 6. ROM was 0 to 105 degrees with pain throughout the ROM and without crepitus. Repetitive-use testing did not reveal any additional loss of ROM, and it as estimated at motion would not be further reduced during flare-ups.  The examiner noted that there was positive evidence of pain on weight bearing. Strength was 4/5 without evidence of muscle atrophy. The examination revealed no evidence of instability, and the examiner noted that the sole symptom of the meniscus tear was constant pain. The examiner opined that the Veteran had not lost the use of the left knee. X-rays were not taken.

The objective findings on clinical examination at both examinations revealed that the left knee LOM on flexion was noncompensable, as ROM on flexion was greater than 0 to 60 degrees at both examinations. 38 C.F.R. § 4.71a, DC 5260. Further, both examination reports note that there was not any additional loss of ROM on repetitive-use testing. See 38 C.F.R. §§ 4.40, 4.450.

In his Substantive Appeal, the Veteran asserted that his knee should be examined by an orthopedist. Further, he asserted that the left knee should be rated higher due to pain, swelling, LOM, all due to arthritis; instability; and, because he could not sit or stand for long, or climb. See 05/09/2017 VA Form 9.

As noted earlier, on initial review of this case, the Board determined that the 2016 examination was not adequate for review purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Specifically, the examination did not comply with the requirements of Correia v. McDonald, 28 Vet. App. 158 (2016), in that the examiner did not test for pain on passive ROM (PROM), etc. While not mentioned in the remand, the Board also notes that the examiner did not provide an assessment of whether there would be additional loss of ROM due to functional loss on repeat use over time, though the assessment was made for flare-ups. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). Hence, the case was remanded for another examination. See 02/22/2019 BVA Decision.

The AOJ arranged an examination as directed by the Board. The examination report (12/16/2019 C&P Exam, 1st Entry) reflects that the Veteran reported flare-ups twice a week that consisted of a burning-type pain and swelling, during which he could not stand or walk very far, and that they lasted 12 to 24 hours. He reported his functional loss as being unable to stand for long and to walk very far, and that his wife had to help him to walk. Physical examination revealed positive tenderness to palpation at the medial and lateral sides of the left knee and at the patella. There was evidence of pain on weight bearing. ROM was 0 to 120 degrees with pain and crepitus. The examiner noted, however, that the pain did not contribute to functional loss. As concerns the Correia findings, the examiner noted that there was evidence of pain on PROM and on non-weight bearing. Id. P. 23. During flare-ups, ROM was from 0 to 110 degrees.  Although not noted by the examiner, the Board notes that the right knee is also impaired and now service connected. Hence, a Correia comparison of the left knee to the right would not be indicated. Strength was 5/5, and there was no evidence of muscle atrophy. The Veteran reported regular use of a cane and a brace on his knee.

The objective findings on clinical examination show that the Veteran's left knee LOM is still noncompensable, as it was greater than o to 60 degrees. Further, repetitive-use testing did not reveal additional loss of ROM. The examiner noted that the Veteran's statements as concerned his flare-ups and functional loss were consistent with the examination findings. Assessing the Veteran's lay reports, his history, and the examination findings, the examiner estimated the Veteran's additional loss of ROM due to flare-ups and repeat use over time would be 10 degrees, which means ROM of 0 to 100 degrees. Id. P. 10. ROM of 0 to 100 degrees is still noncompensable. 38 C.F.R. § 4.71a, DC 5260. Further, the examiner noted the Veteran's need for a cane and a brace but still opined that the Veteran had not lost the use of the left knee. The 2019 Board remand did not direct a retroactive Correia or Sharp assessment of the 2014 and 2016 examinations. Hence, the Board finds that the 2019 examination complied with the remand directive.

As noted earlier, the Veteran asserts that he meets the criteria for a higher rating for arthritis. The December 2019 examination report references x-rays showing moderate degenerative changes in the left knee and the examiner opined that it was a progression of the service-connected disability. Exam Report, P. 22. Contrary to the Veteran's assertions, the fact that left knee started to manifest with arthritis does not change the rating.

Pursuant to Diagnostic Code 5003, arthritis established by x-ray findings will be rated on the basis of LOM under the appropriate diagnostic code(s) for the specific joint or joints involved. When, however, the LOM of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion. LOM must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of LOM, x-ray evidence of involvement of 2 or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations warrants a 20 percent evaluation. X-ray evidence of involvement of 2 or more major joints or 2 or more minor joints warrants a 10 percent evaluation. See 38 C.F.R. § 4,71a, DC 5003.

With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight- bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59.

The Veteran asserts that he meets the criteria for two or more major joints. The Board rejects that assertion, as the Veteran must have both of his knees in mind. Although the knee is a major joint, this appeal is for one knee. Further, the 20 percent rating also requires evidence of incapacitating exacerbations, of which there is no evidence. VA defines an incapacitating episode as one for which a physician has prescribed bed rest. Thus, the Board finds that the Veteran's left knee LOM is appropriately rated at 10 percent, and that it has manifested at that rate throughout the initial rating period on appeal. 38 C.F.R. § 4.1, 4.40, 4.45, 4.59, 4.71a, DC 71a, DC 5003-5260.

The Veteran has also asserted that he has LOM on both extension and flexion. See 04/29/2020 VA 21-4138. There simply is no evidence to support this assertion. As set forth above, all of the examination reports reflect that extension was normal at 0 degrees. The Veteran's LOM was on flexion. Hence, he does not meet the criteria for a separate rating for LOM on extension. In the same communication, the Veteran asserted that his left knee is unstable, and the Board noted earlier that he reported at the 2016 examination that he had a sensation of the left knee giving away. See 2016 Exam Report.

Where the evidence of record supports it, separate ratings may be assigned for knee symptoms based on LOM and instability. The Veteran asserts that he meets that criteria. See VAOPGCPREC 23-97 (July 1997).

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The Board acknowledges that the Veteran is fully competent to report the symptoms of his disability, to include knee stability symptoms. See English v. Wilkie, 30 Vet. App. 347, 349 (2018) (objective evidence is not required to establish knee instability under DC 5257 and the Board cannot categorially find objective medical evidence more probative than lay evidence); see also 38 C.F.R. § 3.159(a)(2). In this case, as noted above, examinations have not demonstrated instability.  However, the reports of giving way are deemed credible and appear to be supported by the findings of decreased muscle strength shown on some examinations.  Additionally, clinical records reflect that he was fitted for a knee brace.  Instability is not currently contemplated by the rating in effect.  Accordingly, a separate award of service connection is deemed warranted for such symptomatology here.

The Veteran also asserted in his 2020 statement that he has locking of the left knee. The rating criteria provide that, cartilage, semilunar, dislocated, with frequent episodes of "locking," pain, and effusion into the joint warrants a 20 percent rating. 38 C.F.R. § 4.71a, DC 5258. However, the evidence of record, to include the examination reports, shows that there is no cartilage symptomatology associated with the Veteran's meniscus tear other than pain. Further, the x-ray examination reports of record do not indicate the presence of effusion into the left knee joint. The Veteran is not entitled to a 10 percent rating for symptomatic cartilage removal under DC 5259 because he has never undergone surgery for his meniscus. Hence, based on all of the above, the Board finds no factual basis for a separate rating for instability or meniscus symptoms. The evidence of record supports only a rating for limitation of motion and instability.

 

 

ERIC S. LEBOFF

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	W. T. Snyder

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.