Citation Nr: 21065885 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 15-05 549 DATE: October 27, 2021 ORDER Beginning July 25, 2013, a separate rating of 10 percent, but no higher, for a right knee meniscal tear with limitation of flexion is granted. Beginning July 25, 2013, but prior to February 29, 2016, a separate rating of 10 percent, but no higher, for a right knee meniscal tear with instability is granted. FINDINGS OF FACT 1. Resolving all reasonable doubt in the Veteran's favor, his right knee disability has been manifested by flexion to 45 degrees from July 25, 2013. 2. Resolving all reasonable doubt in the Veteran's favor, his right knee disability has been manifested by slight instability from July 25, 2013, but prior to February 29, 2016. CONCLUSIONS OF LAW 1. Beginning July 25, 2013, the criteria for a separate rating of 10 percent, but no higher, for a right knee meniscal tear with limitation of flexion have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.20, 4.59, 4.71a, Diagnostic Code 5260. 2. Beginning July 25, 2013, but prior to February 29, 2016, the criteria for a separate rating of 10 percent, but no higher, for a right knee meniscal tear with instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.20, 4.59, 4.71a, Diagnostic Code 5257 (prior to February 7, 2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). By way of procedural background, the Veteran was granted service connection for a tear of the posterior lateral meniscus, status post arthroscopic repair, in an October 2011 rating decision and awarded a noncompensable evaluation from October 13, 2010. His rating was subsequently increased to 10 percent, effective October 13, 2010. In July 2013, he filed a claim for a higher disability rating, which gave rise to this appeal. During the pendency of his appeal, the RO awarded a separate 20 percent rating for the right knee meniscal tear with instability under diagnostic code 5258 from February 29, 2016. Although the Veteran initially requested a hearing before the Board, he withdrew this request in writing in March 2018. In June 2018, the Board remanded the appeal for additional development, including a new VA examination. The matter returned to the Board for readjudication in September 2020, at which time the Board denied entitlement to a rating in excess of 10 percent for limitation of extension and a separate rating based on instability of the right knee prior to February 29, 2016. Although the Board awarded a separate rating for limitation of flexion in the right knee from March 23, 2020, it declined to award a separate rating for limitation of flexion prior to that date. Subsequently, the Veteran appealed the Board's September 2020 decision to the extent that the Board did not award a separate rating for instability prior to February 29, 2016, or a separate rating for flexion prior to March 23, 2020, to the Court of Appeals for Veterans Claims (Court). During the pendency of this appeal, however, the parties entered into a Joint Motion for Partial Remand (JMPR). Pursuant to the terms of the JMPR, the Court vacated the portions of the September 2020 decision regarding instability and limitation of flexion and remanded the matter for further action. The matter now returns to the Board. Increased Rating Disability ratings 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 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. 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. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. 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 pain supported by adequate pathology and evidenced by visible behavior of the claimant 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. When evaluating disabilities of the joints, the Rating Schedule provides for consideration of additional functional impairment due to pain, weakness, fatigue, incoordination, and lack of endurance when assigning evaluations. See 38 C.F.R. §§ 4.40, 4.45, 4.59. Where, as here, entitlement to service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, staged ratings are appropriate for an increased rating claim if the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each piece of evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The evidence before the Board includes the results of various VA examinations. At a January 2014 VA examination, the examiner noted a diagnosis of chronic lateral meniscal body tear of the right knee. The examiner noted his descriptions of flare-ups three times in the last two months with severe pain, weakness, and pain upon range of motion, sensations of giving way, and fatigue. Range of motion testing resulted in flexion to 75 degrees with objective evidence of painful motion beginning at 60 degrees. After three repetitions, flexion ended at 75 degrees. The examiner noted less movement than normal, excess fatigability, pain on movement, and interference with sitting, standing, and weight-bearing of the right knee following repetitive use. The examiner also noted right knee tenderness or pain to palpitation with strength testing, indicating active movement against some resistance upon flexion of the right knee. Joint stability testing resulted in normal results for the right knee, and the examiner reported no evidence or history of recurrent patellar subluxation or dislocation. A meniscal tear of the right knee semilunar cartilage was reported upon examination with a partial meniscectomy completed in the right knee in 2011. A residual of this meniscectomy was pain. The Veteran regularly used a knee brace as an assistive device. Imaging studies revealed no degenerative or traumatic arthritis or patellar subluxation. Functional impairment included difficulty bending, squatting, climbing, stairs, extended standing, and extended walking. The Veteran underwent an additional VA examination in February 2016. That examiner reported that he exhibited symptoms such as instability of station, disturbance of locomotion, and interference with standing. The Veteran's range of motion was abnormal with flexion to 70 degrees. The Veteran's range of motion remained the same after three repetitions, and pain, weakness, and lack of endurance did not result in additional limitation of motion. The examination was negative for any ankylosis or its functional equivalent. In terms of stability, the examiner noted that the Veteran did not have a history of recurrent subluxation or effusion but did have a history of slight lateral instability. There was both anterior and lateral instability on examination; the Veteran reported wearing a brace on the right knee due to instability. Regarding flare-ups, the examination was conducted during a flare-up, but the examiner was unable to describe the functional limitation in terms of range of motion, other than "discomfort, less [range of motion]." The examiner did not offer an opinion as to whether pain, weakness, fatigability, or incoordination significantly limited functional ability during flare-ups. With respect to meniscal conditions, the examiner noted that the Veteran had a right-sided meniscal tear and frequent episodes of pain. Other relevant evidence of record includes VA treatment records, which consistently reflect complaints of pain and reduced range of motion. For instance, a July 2013 VA treatment record indicates that he was taking naproxen twice a day. VA treatment records reflect that in May 2015 he endorsed constant, throbbing pain in his knees that worsened with daily activities, changes in the weather, climbing stairs, and walking, and decreased after using ice, heat, and medications. Range of motion testing at that time indicated that flexion was to 45 degrees. A September 2016 VA treatment note echoes that he had limited range of motion in the right knee, although it was not described in terms of degrees. Similarly, in November 2016, a VA primary care note indicates that the Veteran had limited range of motion of the right knee. A prescription for naproxen was refilled. In December 2017, he told a VA treatment provider that he took naproxen every day for pain and that he had received injections to the right knee in the past. A January 2018 VA treatment record reflects right knee flexion to 64 degrees. In a February 2018 VA treatment record, he described the pain as "so bad that it feels like something is going to break." He described the pain as increased with steps. He indicated that he experienced flare-ups after changes in the weather or being in certain positions for a long period of time, which decreased with medication, icing, and elevation. 1. Beginning July 25, 2013, a separate rating of 10 percent, but no higher, for a right knee meniscal tear with limitation of flexion is granted. Diagnostic code 5260 provides that 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; and a 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § § 4.71a, Diagnostic Code 5260. Normal range of motion of the knee is to zero degrees extension and to 140 degrees flexion. See 38 C.F.R. § § 4.71a, Plate II. The Board has carefully reviewed the text of the JMPR. More specifically, the JMPR indicates that the Board did not adequately explain why it denied entitlement to a compensable rating for limitation of flexion prior to March 2020. In this regard, the JMPR noted that the Board found that the February 2016 VA examination report was inadequate in light of the holding of Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017), but nonetheless relied on it in its September 2020 decision to deny a separate rating prior to March 2020. Here, the Veteran consistently reported feelings of instability in his knees, including during his January 2014 VA examination. He is competent to describe the instability in his knees, and his statements are credible given this consistency. As such, despite the lack of objective evidence of instability, the Board affords him the benefit of the doubt and finds that there was highly probative, subjective evidence of instability prior to February 29, 2016. The Board has carefully considered the directives in the JMPR. To that end, the Board acknowledges that it stated in its June 2018 remand decision that the February 2016 VA examination was not adequate under Sharp to the extent that the examiner did not offer an opinion as to whether pain, weakness, fatigability, or incoordination significantly limited functional ability during flare-ups, or describe the functional limitations during flare-ups in terms of range of motion. As noted in the June 2018 decision, however, the examination was conducted during a flare-up. As such, the examiner would not have been required to render any additional opinions or estimates regarding functional limitations or range of motion during flare-ups, as the examiner had already obtained data during the examination that spoke directly to the Veteran's function during a flare-up. For this reason, the February 2016 VA examination report was not inadequate based under the findings in Sharp. Upon a closer review of the evidence prior to March 2020, however, the Board has determined that a 10 percent rating for limitation of flexion is nonetheless warranted from July 23, 2015. To that end, the Veteran's VA treatment records consistently reflect that he was intermittently taking pain medications, including naproxen, to treat his knee pain. The Board assumes that he was taking these medications at the time of the January 2014 and February 2016 VA examinations. The Board may not deny entitlement to a higher rating on the basis of relief provided by medication when those ameliorative effects are not specifically contemplated by the applicable rating criteria. See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). Moreover, during a May 2015 VA appointment, when it does not appear that he was currently taking naproxen, flexion was limited to 45 degrees. Therefore, the Board finds that a 10 percent rating is at least as likely as not warranted from July 25, 2013, based on limitation of flexion. However, a rating higher than 10 percent is not warranted, as the competent, probative evidence of record does not indicate that the Veteran exhibited limitation of flexion greater than 45 degrees, even when accounting for additional limitation of motion caused by pain, weakness, fatigue, incoordination, and lack of endurance during flare-ups or after repeated use. This symptomatology is distinct from those contemplated under the other diagnostic codes, including 5261, 5257, and 5258. As such, a separate rating under diagnostic code 5260 prior to March 2020 does not constitute impermissible pyramiding. As a final matter, the Board has also considered whether separate or higher ratings are available under diagnostic codes 5256 (ankylosis of the knee), 5262 (impairment of tibia and fibula), and 5263 (genu recurvatum) throughout the period on appeal. Neither ankylosis nor its functional equivalent are present in the evidence of record, and the Veteran has not argued that he experiences any. Diagnostic code 5256 is thus not applicable. Likewise, the Veteran does not have genu recurvatum or impairment of the tibia and fibula, so these diagnostic codes are also not for application. 2. Beginning July 25, 2013, but prior to February 29, 2016, a separate rating of 10 percent, but no higher, for a right knee meniscal tear with instability is granted. The version of diagnostic code 5257 applicable during the relevant portion of the period on appeal provides for ratings of 10, 20, and 30 percent for recurrent subluxation or lateral instability of the knee that was slight, moderate, or severe, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (prior to February 7, 2021). The text of the JMPR indicates that the Board's September 2020 decision did not provide an adequate statement of reasons or bases for not awarding a separate rating for lateral instability for the period prior to February 2016 under diagnostic code 5257. To that end, the JMPR states that the Board impermissibly discounted the Veteran's lay statements regarding the sensation of giving way and gave more weight to objective evidence of record without explaining why it favored the objective evidence over subjective complaints. Having carefully reviewed the evidence of record, the Board finds that a 10 percent rating, but no higher, is warranted under diagnostic code 5257 from July 25, 2013, but prior to February 29, 2016. The Board emphasizes, however, that from February 29, 2016, a separate rating under diagnostic code 5257 is not warranted. This is because the Veteran has already been awarded a 20 percent rating under diagnostic code 5258 from that point; awarding separate ratings for instability under diagnostic codes 5257 and 5258 would thus constitute impermissible pyramiding. Here, although the objective evidence of record does not reveal that any joint instability was present during the January 2014 VA examination, the Veteran nonetheless endorsed a history of a giving way sensation in his right knee. As set forth in the JMPR, the Board cannot categorically find that objective medical evidence of knee instability is more probative than lay evidence. English v. Wilkie, 30 Vet. App. 347, 352 (2018). Accordingly, the Board finds that a 10 percent rating, but no higher, is warranted for slight instability under diagnostic code 5257 from July 25, 2013, but prior to February 29, 2016. A rating higher than 10 percent is not appropriate, however, as the objective evidence in the record prior to February 29, 2016, does not reveal any instability, let alone stability that could be described as moderate. Although his subjective reports of stability are highly probative, the Veteran described the giving way sensation as occurring relatively infrequently (i.e., during flare-ups which had occurred three times over a two-month period). The Board has thus assigned a rating for slight instability, which accounts for the Veteran's subjective description of his knee instability and the lack of objective evidence of moderate instability. The Board has also considered whether separate or higher ratings are available under diagnostic codes 5258 (cartilage, semilunar, dislocated, with frequent episodes of "locking," pain, and effusion to the joint) and 5259 (cartilage, semilunar, removal of, symptomatic). A 20 percent evaluation is available under diagnostic code 5258, while a 10 percent evaluation is available under diagnostic code 5259. As set forth above, however, neither the subjective nor objective evidence from prior to February 29, 2016, indicates that the Veteran had frequent episodes of dislocation, instability, or locking in the joint. As such, a higher rating under diagnostic code 5258 is unavailable. Moreover, a separate rating is not appropriate. It is possible for diagnostic code 5258 and 5257 can consider similar disability manifestations. Indeed, dislocation of the cartilage of the knee can result in giving way in the joint, while diagnostic code 5257 refers to instability and subluxation of the joint, i.e., incomplete or partial dislocation. See Dorland's Illustrated Medical Dictionary, 1817 (ed. 2007). As such, assigning a separate rating under diagnostic code 5259 would amount to pyramiding. For similar reasons, a separate rating under diagnostic code 5259 is impermissible, as the Veteran is now receiving a 10 percent rating under diagnostic code 5257 for slight instability. Awarding a separate rating under diagnostic code 5259 to compensable him for his symptoms of instability would thus constitute impermissible pyramiding. Ultimately, a 10 percent rating, but no higher, under diagnostic code 5257 is warranted from July 25, 2013, but prior to February 29, 2016. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Rademacher, 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.