Citation Nr: 21066413 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 16-45 228 DATE: October 29, 2021 ORDER From December 9, 2014 to March 27, 2020, entitlement to a rating of 10 percent for painful motion and a separate 10 percent for symptomatic removal of cartilage associated with left knee strain is granted. From March 27, 2020, entitlement to a rating of 20 percent for cartilage damage with effusion into the joint, 10 percent for instability, and 10 percent for limitation of extension during flare ups associated with left knee strain is granted. FINDINGS OF FACT 1. Prior to March 27, 2020, the Veteran's left knee strain manifested with pain on motion and residuals of the symptomatic removal of cartilage but not with compensable limitations of flexion or extension, recurrent subluxation, or lateral instability, genu recurvatum, or malunion of tibia or fibula, and was not ankylosed. 2. From March 27, 2020, the Veteran's left knee strain manifested with cartilage damage with effusion into the joint, limitation of extension during flare-ups, and slight instability but did not manifest as compensable limitations of flexion, recurrent subluxation, genu recurvatum, or malunion of tibia or fibula, and was not ankylosed. CONCLUSIONS OF LAW 1. Prior to March 27, 2020, the criteria for a rating of 10 percent for painful motion under 38 C.F.R. § 4.59 and 10 percent for symptomatic removal of cartilage have been met. 38 U.S.C. §§ 1155 (2012); 38 C.F.R. §§ 3.321(b)(1), 4.71a, Diagnostic Codes 5003, 5010, 5256-63 (2020). 2. From March 27, 2020, the criteria for a rating of 20 percent for cartilage damage with effusion into the joint, 10 percent for instability, and 10 percent for limitation of extension during flare ups have been met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 3.321(b)(1), 4.71a, Diagnostic Codes 5003, 5010, 5256-63. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty in the United States Army from February 2002 to November 2010. This matter comes before the Board of Veterans' Appeals (Board) from a February 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In a March 2021 rating decision, the Agency of Original Jurisdiction (AOJ) increased the rating of the Veteran's service-connected left knee strain to 10 percent from a noncompensable rating. As this does not constitute a full grant of the benefit sought, the issue remains in appellate status. See AB v. Brown, 6 Vet. App. 35, 39 (1993). Increased Ratings The Veteran asserts that he warrants a rating in excess of 10 percent for his service-connected right knee strain. Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate Diagnostic Codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several Diagnostic Codes; however, the critical element in permitting the assignment of several ratings under various Diagnostic Codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. Deluca v. Brown, 8 Vet. App. 202 (1995). 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 enervation, or other pathology, or it 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 that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45. The Court has held that VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss under 38 C.F.R. § 4.40, which requires VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. See DeLuca, 8 Vet. App. 202. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Painful motion is an important factor of joint disability, which is entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. However, the evaluation of painful motion as limited motion only applies when the limitation of motion is noncompensable under the applicable Diagnostic Code. Where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. However, subjective pain and numbness in and of itself will not establish a current disability. Consideration should be given to the impact, or lack thereof, from pain, focusing on evidence of functional limitation caused by pain. See Saunders v. Wilkie, 886 F. 3d 1356 (Fed. Cir. 2018). Musculoskeletal VA examinations, to be adequate, must address particular issues when are where that are practicable and medically possible to include active and passive motion; weight bearing and non-weight bearing; range of motion of an opposing joint; and findings as to loss of motion during flare-ups. See Correia v. McDonald, 28 Vet. App. (2016); Sharp v. Shulkin, 29 Vet. App. 26 (2017). The AOJ has rated the Veteran's left knee strain under 38 C.F.R. § 4.71a, Diagnostic Code 5260. Disabilities of the knee and leg are generally rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5256 through 5263. Prior to February 7, 2021, under Diagnostic Code 5257 for recurrent subluxation or lateral instability, a 10 percent rating is warranted for slight recurrent subluxation or lateral instability of the knee; a 20 percent rating is warranted for medical evidence showing that the recurrent subluxation or lateral instability can be characterized as moderate; and a 30 percent rating is warranted for recurrent subluxation or lateral instability which medical evidence discloses can be characterized as severe. The rating criteria pertaining to Diagnostic Code 5257 were revised effective February 7, 2021. A 10 percent rating is assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker; a 20 percent rating is assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: a brace, cane, or walker; and a 30 percent rating is assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. Under Diagnostic Code 5260 for limitation of flexion, a noncompensable rating is assigned for flexion limited to 60 degrees; a 10 percent rating is assigned for flexion limited to 45 degrees; a 20 percent rating is assigned for flexion limited to 30 degrees; and a 30 percent rating is assigned for flexion is limited to 15 degrees. Under Diagnostic Code 5261 for limitation of extension, a noncompensable rating is assigned for extension limited to 5 degrees; a 10 percent rating is assigned for extension limited to 10 degrees; a 20 percent rating is assigned for extension limited to 20 degrees; a 30 percent rating is assigned for extension is limited to 20 degrees; a 40 percent rating is assigned for extension is limited to 30 degrees; and a 50 percent rating is assigned for extension is limited to 15 degrees. Separate compensable ratings may be assigned for limitation of flexion and for limitation of extension, without violating the rule against pyramiding. See 38 C.F.R. § 4.14. Diagnostic Code 5256 pertains to ratings for ankylosis of a knee. The Court has scrutinized the "meaning" of ankylosis. See, e.g., Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) citing Dorland's Illustrated Medical Dictionary at 86 (27th ed. 1988) (Ankylosis is "immobility and consolidation of a joint due to disease, injury, or surgical procedure."); Chavis v. McDonough, No. 18-2928 (April 16, 2021) ("flare-ups resulting in symptoms more nearly approximating ankylosis can warrant a higher rating under the general rating formula"). Diagnostic Code 5262 applies to ratings for impairment of the tibia and fibula. Diagnostic Code 5258 applies to a dislocated semilunar cartilage. Diagnostic Code 5259 applies to removal of the semilunar cartilage. Diagnostic Code 5263 applies to rating genu recurvatum. The rating criteria pertaining to Diagnostic Code 5262 were revised effective February 7, 2021. However, as those Codes are not applicable in this matter, and the February 7, 2021 effective revision does not require further discussion. In Lyles v. Shulkin, 29 Vet. App. 107 (2017), the Court held that under 38 C.F.R. § 4.71, a separate evaluation may be assigned for meniscal problems under Diagnostic Codes 5258 or 5259, even when ratings are in effect under Diagnostic Codes 5257 and 5261. The Board must also consider functional impairment with respect to the baseline range of motion (ROM) noted during clinical evaluation. English v. Wilkie, 30 Vet. App. 347 (2018) (the Board must adequately explain how it considered functional loss due to pain, including during flare-ups). When considering disability of the musculoskeletal system, arthritis is considered. An evaluation of traumatic arthritis, Diagnostic Code 5010, is rated under the criteria for Diagnostic Code 5003, which in turn evaluates disabilities based on the degree of limitation of motion under the appropriate Diagnostic Codes. 38 C.F.R. § 4.71a. If the disability is noncompensable under the appropriate Diagnostic Code for the joint involved, a 10 percent rating will be for application for such major joint or group of minor joints affected by limitation of motion. 38 C.F.R. § 4.71a. Painful motion of a joint not otherwise compensable is entitled to at least the minimum compensable rating. 38 C.F.R. § 4.59. The rating criteria pertaining to Diagnostic Code 5010 was revised effective February 7, 2021. Posttraumatic arthritis is rated as limitation of motion, dislocation, or other specified instability under an affected joint. If there are two or more joints affected, each rating shall be combined in accordance with 38 C.F.R. § 4.25. Evidence and Analysis VA received the Veteran's application to "reopen on left knee condition" on May 21, 2014. As the Veteran had already been granted service connection and a 10 percent rating for a left knee disability, effective November 21, 2010, the application is considered a claim for an increased rating. On December 9, 2014, the Veteran reported for a VA knee conditions examination. A clinician received the claims file; considered the Veteran's lay accounts of his medical history; and conducted an appropriate evaluation. The Veteran did not report left knee flare-ups; however, he indicated functional loss or impairment. The Veteran reported that his left knee buckled when he walked fast and occasional sharp subpatellar burning in the anterior side of the left knee. The clinician reported such as a positive indication of a semilunar cartilage condition (post meniscectomy). The clinician attributed the Veteran's description of "buckling" to the effect of the cartilage pain; a clinical assessment of joint instability was normal. The Veteran had left knee flexion to 130 degrees and left knee extension to zero degrees. The clinician indicated that there was no pain upon examination and abnormal range of motion itself did not contribute to functional loss. There was no pain with weight bearing; however, the clinician reported left subpatellar and medial joint-line tenderness to palpation. The Veteran was able to perform left knee repetitive-use testing (of at least three repetitions), without additional loss in range of motion or additional functional loss. The Veteran maintained full left knee muscle strength. There was neither evidence of muscle atrophy nor ankylosis. Likewise, the clinician reported no evidence of recurrent subluxation; history of recurrent effusion; or left knee joint instability. The clinician provided that there was no evidence of left knee patellar subluxation, left knee shin splits (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome, or other tibial and/or fibular impairment. Upon examination, the clinician reported residuals of this meniscal procedure resulting in the symptoms noted above. The Veteran reported that he used a left knee assistive device of a regular basis. X-ray imaging did not disclose the presence of degenerative or traumatic arthritis. Whereas an April 2010 MRI disclosed a left medial meniscal tear; however, the cartilage appeared intact. There was no objective evidence of crepitus. The clinician indicated that this disability did not functionally impact the Veteran's ability to perform any type of occupational task. A review of the Veteran's VA progress notes discloses multiple complaints of left knee pain. VA clinicians took note of the Veteran's 2010 left knee arthroscopy with repair of a left medial meniscus tear. In December 2014, a VA physical therapist reported that the Veteran's knee range of motion (upon flexion and upon extension) was within normal limits. In a January 2020 VA treatment record, the Veteran sought treatment for chronic back pain and left knee pain. The Veteran continued to report left knee pain. Upon review of March 2021 x-ray imaging of the Veteran's left knee, a clinician assessed normal left kneewithout a fracture; without dislocation or subluxation; no significant joint effusion; no significant joint narrowing or degenerative changes; and no abnormal soft tissue swelling. On March 27, 2020, the Veteran reported for VA knee conditions examination. The Veteran reported flare-ups when left knee pain worsened. This clinician provided current diagnoses of left knee strain and left meniscal tear (residuals), both of these diagnoses date from 2010. As of the instant examination, the clinician added a diagnosis of left knee instability. The Veteran reported functional loss of functional impairment consisting of difficulty running; difficulty walking or standing for long periods; and difficulty climbing ladders and stairs. The Veteran reported that these collective flare-up symptoms led caused difficulty completing work tasks. The Veteran had left knee flexion to 130 degrees, with pain; and extension to zero degrees, with pain. There was no objective evidence of localized tenderness or pain on palpation of the joint of associated soft tissue. The clinician indicated an absence of pain with weight bearing; however, the clinician indicated that crepitus was present. The Veteran was able to perform left knee repetitive-use testing (of at least three repetitions), without additional loss in range of motion. Nevertheless, the clinician indicated that pain limited functional ability with repetitive use over a period of time. Here the clinician translated such into flexion from 10 to 130 degrees and extension from 130 to 10 degrees. Upon consideration of flare-ups, the clinician provided the same findings as to pain and translation into degrees of ranges of motion. The clinician indicated other symptoms attributable to left knee chondromalacia, namely less movement that normal and swelling. Muscle-strength testing showed flexion and extension at 4/5 ("active movement against some resistance"). There was no evidence of either muscle atrophy or ankylosis. Joint stability testing was normal. The clinician provided that there was no evidence of patellar subluxation, bilateral shin splits (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome, or other tibial and/or fibular impairment. The clinician noted a history of left meniscal tear and frequent evidence of joint pain and joint effusion. Here, the clinician opined that the Veteran still experienced residuals of his 2010 left meniscal tear surgical procedure. The Veteran conveyed that he used a left knee brace regularly. As noted above, x-ray imaging failed to disclose the presence of traumatic arthritis. The clinician reported that there was no objective evidence on non-weight bearing and passive range of replicated those of active range of motion. (The clinician also performed opposite joint range of motion testing.) The clinician indicated that this disability functionally impacted his ability to perform any type of occupational task. Specifically, difficulty running; difficulty walking or standing for long periods; and difficulty climbing ladders and stairs led to issues with the Veteran completing physical tasks at work. In supplemental comments, the clinician indicated that over time the Veteran's residuals of the left meniscal tear and chondromalacia have led to instability in the left knee. The Veteran believes that his service-connected left knee strain warrants a rating in excess of 10 percent. He is competent to report discernable symptoms. The Board has considered this lay evidence. 38 C.F.R. § 3.159(a)(2). The evidence of record does not disclose that either the Veteran or his representative possess the medical expertise to render an opinion as to the clinical severity of any complex medical matter, such as a left knee strain. 38 C.F.R. § 3.159(a)(1). The Board finds that the competent clinical evidence of record is entitled to considerable probative weight. The Veteran's left knee strain is rated at 10 percent under Diagnostic Code 5260. As already noted, Diagnostic Code 5260 provides for a 10 percent rating for flexion limited to 45 degrees; a 20 percent rating for flexion limited to 30 degrees; and a 30 percent rating for flexion limited to 15 degrees. At worst, left knee flexion is limited to 130 degrees. Such a limitation in flexion is noncompensable under Diagnostic Code 5260 but the minimum 10 percent rating for painful joint is warranted prior to March 27, 2020. Turning to Diagnostic Code 5261, a 10 percent rating is assigned for extension limited to 10 degrees and a 20 percent rating is assigned for extension limited to 20 degrees. Resolving all doubt in the Veteran's favor, a 10 percent rating is warranted for limitation of flexion that occurs during flare-ups under Diagnostic Code 5261 from March 27, 2020. No examination or treatment records found evidence of ankylosis (or any suggestion of such during flare-ups, Chavis, No. 18-2928 (April 16, 2021)); subluxation; genu recurvatum; tibia or fibula impairment. Here, the Board observes that the December 12, 2014 clinician provided a positive finding as to a symptomatic semilunar cartilage condition, post meniscectomy. As articulated above the Veteran reported that his left knee buckled when he walked fast and occasional sharp subpatellar burning in the anterior side of the left knee. Therefore a 10 percent rating for symptomatic cartilage damage is warranted prior to March 27, 2020 under Diagnostic Code 5259. However, the March 27, 2020 clinician indicated that over time the Veteran's residuals of the left meniscal tear and chondromalacia have led to instability in the left knee. Likewise, this clinician noted frequent episodes of joint locking, joint pain, and joint effusion. As articulated above under 38 C.F.R. § 4.71, a separate evaluation may be assigned for meniscal problems under Diagnostic Codes 5258 or 5259, even when ratings are in effect under Diagnostic Codes 5257 and 5261. Lyles, 29 Vet. App. 107. Therefore, a 20 percent rating for cartilage damage with effusion into the joint is warranted from March 27, 2020 under Diagnostic Code 5258. In this case, the Veteran has not been rated under Diagnostic Coder 5257. Under Diagnostic Code 5257, a 10 percent rating is assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. Whereas a 20 percent rating is assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: a brace, cane, or walker. The Board finds that the Veteran's left knee best approximated a 10 percent rating from March 27, 2020 for slight instability under the old and new criteria from this date. While the evidence of record shows that the Veteran underwent surgical repair of a left meniscal in 2010; however, the evidence fails to disclose that the Veteran requires a prescription by a medical provider for a brace, cane, or walker. Indeed, the evidence shows that the Veteran used a left knee brace; there is no medical, and for that matter lay evidence, that reveals that a physician prescribed the left knee brace. Turning to the issue of arthritis, the competent medical evidence of record shows that the Veteran does not have arthritis in the left knee. Consequently, Diagnostic Codes 5003 and 5010 are not for application. The Board has considered whether higher ratings are warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. Painful motion is an important factor of disability; and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. The March 27, 2020 clinician indicated functional loss during repetitive use and upon flare-ups. Specifically, the clinician indicated a loss of 10 degrees of flexion and 10 degrees in extension. The Board finds that this quantum of discernable loss in measurable degrees of functional loss after repetitive use and during flare-ups warrants a 10 percent rating. Consequently, the Veteran's service-connected left knee strains warrants a separate 10 plus 10 percent ratings from December 9, 2014 to March 27, 2020 under the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59 and 38 C.F.R. § 4.71a, Diagnostic Codes 5259. And, from March 27, 2020, for reasons discussed above, the left knee warrants a 20 plus 10 plus 10 percent ratings for the afore-noted reasons and 38 C.F.R. § 4.71a, Diagnostic Codes 5261, 5257 and 5258. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. J. Komins, 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.