Citation Nr: 21066079 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 95-32 098 DATE: October 28, 2021 ORDER A rating in excess of 10 percent for degenerative arthritis of the right knee is denied. FINDING OF FACT The weight of the evidence is against finding right knee flexion limited to 30 degrees or less, extension limited to five degrees or more, or dislocated semilunar cartilage with frequent episodes of pain, locking, and effusion. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for degenerative arthritis of the right knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.10, 4.71a, Diagnostic Code (DC) 5260. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from December 1990 to May 1991. He also had service in the National Guard. 1. A rating in excess of 10 percent for degenerative arthritis of the right knee In September 2018, the Board decided the ratings for the left and right knee disabilities, including assigning separate 10 percent ratings for instability. The Veteran appealed the decision to the U.S. Court of Appeals for Veterans Claims (Court). The Court affirmed the Board's decision on the left knee and right knee instability but vacated and remanded the issue of entitlement to a rating in excess of 10 percent for right knee arthritis in a July 2020 memorandum decision. The Court also found the Veteran had not demonstrated error in the Board's handling of the issue of total disability based on individual unemployability. For disabilities based on limitation of motion, VA is to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, be expressed in terms of the degree of additional loss-of-motion due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997); Southall-Norman v. McDonald, 28 Vet. App. 346, 354 (2016) (stating that "the plain language of § 4.59 indicates that it is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable, or malaligned joints or periarticular regions, regardless of whether the DC under which the disability is being evaluated is predicated on range of motion measurements"); 38 C.F.R. § 4.59. The Veteran currently receives a 10 percent rating for right knee limitation of flexion under Diagnostic Code 5260. Standard motion of a knee joint is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. A zero, non-compensable rating is warranted where flexion is limited to 60 degrees and a 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted where flexion is limited to 30 degrees, and a 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. Diagnostic Code 5261 pertains to limitation of leg extension. A 10 percent rating is warranted where extension is limited to 10 degrees. A 20 percent rating is warranted where extension is limited to 15 degrees. A 30 percent rating is warranted where extension is limited to 20 degrees. 38 C.F.R. § 4.71a, DC 5261. Under Diagnostic Code 5258, a 20 percent rating is warranted where there is evidence of dislocated semilunar cartilage, with frequent episodes of locking, pain, and effusion into the knee joint. 38 C.F.R. § 4.71a, DC 5258. Symptomatic removal of semilunar cartilage in the knee warrants a 10 percent rating pursuant to Diagnostic Code 5259. 38 C.F.R. § 4.71a, DC 5259. Under Diagnostic Code 5262, 20, 30, and 40 percent ratings are warranted for malunion of the tibia and fibula with moderate knee or ankle disability, marked knee or ankle disability, and nonunion of the tibia and fibula. 38 C.F.R. § 4.71a, DC 5262. Diagnostic Code 5263 assigns a single 10 percent rating for genu recurvatum (acquired, traumatic, with weakness and insecurity in weight-bearing objectively demonstrated). 38 C.F.R. § 4.71a, DC 5263. Finally, ratings from 30 to 60 are available for ankylosis of the knee joint. 38 C.F.R. § 4.71a, DC 5256. A claimant who has both limitation of flexion and limitation of extension of the same leg may be rated separately under Diagnostic Codes 5260 and 5261 to be adequately compensated for functional loss associated with injury to the leg. However, separate ratings require separate compensable symptomatology. VAOPGCPREC 9-2004 (2004), 69 Fed. Reg. 59,990 (2004). After reviewing the record, the Board finds the criteria for a rating in excess of 10 percent for the right knee have not been met. See 38 C.F.R. § 4.71a, DC 5260. The evidence does not show flexion limited to 30 degrees or less or extension limited to 5 degrees or more to warrant a rating in excess of 10 percent under Diagnostic Code 5260 or a separate rating under Diagnostic Code 5261. The May 2009 VA examiner measured right knee range of motion from zero to 105 degrees and zero to 95 degrees after three repetitions. A June 2009 private evaluator and February 2013 VA examiner measured right knee range of motion from zero to 90 degrees. The Veteran's right knee motion was from zero to 75 degrees during the December 2015 VA examination. The June 2017 VA examiner measured right knee motion from zero to 70 degrees. During the March 2018 examination, the examiner recorded range of motion from zero to 90 degrees, and the Veteran reported experiencing half that range of flexion during flare-ups, or approximately 45 degrees. VA treating providers in February and April 2021 measured right knee range of motion from zero to 110 and zero to 140, respectively. The May 2021 examiner recorded active range of motion in the right knee from zero to 70 degrees and passive motion from zero to 120 degrees. The examiner noted that the Veteran was experiencing a flare-up during the examination and the measured zero to 70 degrees was reflective of the level of impairment in the right knee during a flare. The Board has considered the Veteran's statements of functional impairment due to pain and other symptoms and during flare-ups, including difficulty with squatting, kneeling, walking, and going up and down steps. The Board has also considered the Veteran's wife's June 2009 statement that the Veteran experienced pain with most physical activities and was limited in his abilities and the Veteran's reports to the March 2018 and May 2021 examiners that he experienced weeks-long periods in July 2017 and December 2020 where he could not walk on the right knee at all. The Board notes, however, that the Veteran also reported to the March 2018 examiner that he had good and bad weeks and did not experience pain daily, and he reported to an April 2021 treating provider that he was able to manage his day-to-day affairs without much difficulty and played golf on a regular basis, which is inconsistent with the limitation reported to the May 2021 examiner. There appears to be no record of treatment for the knee in July 2017 or December 2020. Given the inconsistencies and the fact that this evidence is less directly applicable to the rating criteria, the Board relies more heavily on the evidence of range of motion, including the Veteran's report in the March 2018 examination of 45 degrees of flexion during flares of pain. Nevertheless, even that level of limitation of flexion does not satisfy the criteria for a 20 percent rating under Diagnostic Code 5260, and there is simply no lay or medical evidence of right knee extension limited to five degrees or more to warrant a separate rating under Diagnostic Code 5261. The Board has considered the other diagnostic codes applicable to the knees, aside from instability, but there is no evidence of ankylosis, impairment of the tibia or fibula, or genu recurvatum. Additionally, while VA examiners noted a history of left meniscus (semilunar cartilage) tear, they did not find evidence of a meniscus disability in the right knee prior to 2021. A VA treatment record from February 2021 notes the Veteran reported twisting his right knee in January 2021 and had experienced pain and occasional locking and swelling. A subsequent MRI revealed a torn medial meniscus with no joint effusion. By April 2021, the Veteran reported improving pain and no recent history of locking, giving way, or swelling. Prior to January 2021, the evidence does not show a right meniscus condition that could be rated separately. Although the Veteran tore his right medial meniscus in January 2021, the evidence does not show he experienced frequent episodes of locking or swelling (effusion) to support a rating under Diagnostic Code 5258; these symptoms were initially described as occasional and then denied altogether. The effects of pain have already been considered and compensated by the award of 10 percent for limitation of flexion, and assigning a separate rating for this symptom under Diagnostic Code 5258 would constitute impermissible pyramiding. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. Finally, the April 2021 treatment record shows the condition was improving, and there is no indication that the Veteran was scheduled for surgery to remove the semilunar cartilage for a rating under Diagnostic Code 5259 to be applicable. The Board is grateful for the Veteran's honorable service, and this decision is not meant to detract from that service. However, the Board finds that evidence in this case does not reach the level of equipoise, and a rating in excess of 10 percent for the right knee is not warranted. See 38 U.S.C. § 5107(a). A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.P. Armstrong 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.