Citation Nr: 21066006 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 18-00 346A DATE: October 28, 2021 ORDER Entitlement to a rating higher than 10 percent for left knee disability for limitation of motion during flexion is denied. Entitlement to a separate disability rating of 20 percent for dislocation of semilunar cartilage of the left knee is granted. FINDINGS OF FACT 1. The Veteran's left knee disability has not resulted in a compensable limitation of flexion or extension. 2. The Veteran's left knee disability is reasonably manifested by dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 10 percent for left knee disability for limitation of motion during flexion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (Code) 5003, 5260, 5261. 2. The criteria for a separate disability rating of 20 percent for dislocation of semilunar cartilage of the left knee have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.3, 4.7, 4.10, 4.71a, Code 5258. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1951 to April 1954. This matter comes before the Board of Veterans' Appeals (Board) from an April 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2020, this matter was remanded for further development, to include a VA examination. The Board observes that the issue of right knee disability was also before the Board in October 2020; and the Board granted service connection for the right knee disability. In October 2021, the Veteran testified before the undersigned Veterans Law Judge at a Board hearing. Increased Rating Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In Fenderson v. West, 12 Vet. App. 119 (1999), the United States Court of Appeals for Veterans Claims (Court) held that evidence to be considered in the appeal concerning an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. The Court also discussed the concept of the 'staging' of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126-127; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). 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 (musculoskeletal system) or § 4.73 (muscle injury); 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 [or 4.73] criteria.") In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. Additionally, evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. 38 C.F.R. § 4.14. However, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. Id.; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Finally, the Board observes that on February 7, 2021, a final rule, which amends the Schedule for Rating Disabilities by revising the portion of the schedule that addresses the musculoskeletal system, went into effect. The Board notes, however, the disabilities currently before the Board has not undergone any substantive changes. 1. Entitlement to a rating higher than 10 percent for left knee disability for limitation of motion during flexion 2. Entitlement to a separate disability rating of 20 percent for dislocation of semilunar cartilage of the left knee The Veteran's left knee disability is rated under Code 5260 for limitation of flexion of the leg. Under this Code, a noncompensable rating is warranted when flexion is limited to 60 degrees. A 10 percent rating is warranted when flexion of the leg is limited to 45 degrees. A 20 percent rating is warranted when flexion is limited to 30 degrees. A 30 percent rating is warranted when flexion is limited to 15 degrees. 38 C.F.R. § 4.71a. Normal flexion is 140 degrees. 38 C.F.R. § 4.71, Plate II. The Board will also consider Code 5261 for limitation of extension of the leg. Under this Code, a noncompensable rating is warranted when extension is limited to 5 degrees. A 10 percent rating is warranted when extension of the leg is limited to 10 degrees. A 20 percent rating is warranted when extension is limited to 15 degrees. A 30 percent rating is warranted when extension is limited to 20 degrees. A 40 percent rating is warranted when extension is limited to 30 degrees. A 50 percent rating is warranted when extension is limited to 50 degrees. 38 C.F.R. § 4.71a. Normal extension is 0 degrees. 38 C.F.R. § 4.71, Plate II. Codes 5260 and 5261 are for limitation of motion. They provide criteria for limitation of flexion and extension of the leg. When a rating of a disability is based upon limitation of motion, the Board must also consider, in conjunction with the otherwise applicable Code, any additional functional loss the Veteran may have sustained by virtue of other factors. Those factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy from disuse. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the Veteran. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80 (1997). During March 2016 VA examination, the Veteran reported increased pain and stiffness in the left knee. He indicated that it was difficult to walk up stairs of stand for any long periods of time. Left knee physical examination shows no signs of edema, instability, abnormal movement, effusion, weakness, redness, heat, deformity, guarding of movement, malalignment, and drainage. There is no subluxation. There was no locking pain, genu recurvatum, crepitus or ankylosis. Left knee range of motion reveals flexion to 130 degrees and extension to 0 degrees. The Veteran was able to do repetitive range of motion testing and there was no additional limitation of range. The left knee stability tests were within normal limits for anterior and posterior cruciate ligaments, medial and lateral collateral ligaments, and the medial and lateral meniscus. There was no subluxation on the left. Muscle strength testing was 4/5 with reduction noted in both flexion and extension. In various lay statements, the Veteran indicates that his left knee locks up and swells. In his January 2018 substantive appeal, the Veteran stated that he would like to meet with the DRO locally so he could see how he limps and how he has to adjust his gait to compensate for his left knee. The Veteran also stated that the March 2016 examiner did not thoroughly examine him. During March 2021 VA examination, the examiner indicated that the Veteran's left knee disability has worsened since the onset. He states that the Veteran is currently bedridden, and he does not bear weight. He gets around in an electric chair. The Veteran reports that he has episodes of left knee pain with swelling and needing to stop due to pain with prolonged walking, running, and jumping. The examiner noted that the Veteran's current bedridden issues are due to neuropathy and other medical diagnoses not evaluated as part of the home-visit. The Veteran stated that he saw an orthopedic surgeon for many years after leaving the service for recurrent complaints of knee swelling, and the knee buckling from time to time. He reported a past history of physical therapy as well as whirlpool for water therapy. The examiner indicated that although the Veteran is not ambulatory and he is bedridden, the documented range of motion would, if he was ambulating and bearing weight interfere with squatting and rising from the squatting position. Left knee active range of motion reveals flexion to 85 degrees and extension to 0 degrees. Pain was noted on both flexion and extension. Passive range of motion was the same as active range of motion. Pain is also noted on passive motion, non-weight-bearing, and on rest/non-movement. Pain causes functional loss. There was no evidence of crepitus. The Veteran was able to perform repetitive-use testing with at least three repetitions without any additional loss of function or range of motion. Estimated range of motion in degrees for the left knee immediately after repeated use over time is 70 degrees of flexion and 0 degrees of extension. No additional contributing factors for the left knee disability. No ankylosis of the knee joint. There was no left knee instability, to include patellar instability. The examiner indicated that there were no residual symptoms from meniscal tear. The examiner found that functional impact is that the Veteran would have difficulty with repetitive stair use, running, jumping, and squatting. All instability testing was normal. During the October 2021 Board hearing, the Veteran indicated that his left knee frequently locks and that he has pain and swelling. Based on the evidence, the left knee range of motion has not, at any point during the appeals period, been sufficiently limited to warrant a compensable rating, i.e., extension to 10 degrees or flexion to 45 degrees, an increased disability rating under Codes 5260 or 5261 is not warranted. As such, the currently assigned 10 percent disability rating for the left knee disability based on painful motion and limitation of motion which is not compensable under Code 5003 is appropriate and the claim for increased disability rating must be denied. The Board notes that there are additional Codes that pertain to the knee. However, as shown in the VA examinations, the service-connected left knee disability symptoms in this case have not either manifested as or been attributed to ankylosis, recurrent subluxation or lateral instability, removal of symptomatic semilunar cartilage, impairment of the tibia or fibula, or genu recurvatum. Therefore, separate, or higher ratings under the additional knee Codes do not merit further consideration. 38 C.F.R. §§ 4.14, 4.71a; Codes 5256, 5257, 5259, 5262, 5263. The Board has also considered whether the Veteran is entitled to a separate disability rating for the left knee under Code 5258, which provides a 20 percent rating for dislocation of semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. Here, the Veteran experienced a left meniscal tear, as documented on VA examination reports. In lay statements and testimony, he endorsed frequent episodes of joint pain. The Board notes the Veteran is competent to report that his left knee locks, swells, and is painful. The Board has no reason to doubt the Veteran's credibility. Moreover, separate ratings under Codes 5258 and 5260 do not constitute "pyramiding" under 38 C.F.R. § 4.14. In the case of Code 5258, the schedular criteria include pain, locking, and effusion or swelling in the joint, while in the case of Code 5260, limitation of motion is encompassed by the limitation of flexion, including limitation of motion due to pain. Although both Codes list criteria of symptoms of pain, the Board finds the "pain" associated with torn semilunar cartilage under Code 5258 is distinct from that associated with the arthritis and painful limitation of motion under Code 5260. See Lyles v. Shulkin, 29 Vet. App. 107 (2017). Separate disability ratings under Code 5258 and 5260 are therefore permissible in this instance and do not amount to impermissible pyramiding. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Thus, resolving reasonable doubt in the Veteran's favor, a separate disability rating of 20 percent under 38 C.F.R. § 4.71a, Code 5258 dislocated semilunar cartilage for the left knee is warranted. This is the maximum schedular rating for this disability. In sum, for the foregoing reasons, as a preponderance of the evidence is against an increased disability rating higher than 10 percent for left knee limitation of motion during flexion, the benefit of the doubt doctrine is not otherwise for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. The Board finds, however, that a separate 20 percent rating is warranted for left knee disability under Code 5258. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. McPhaull, 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.