Citation Nr: 21066649 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 14-09 359 DATE: November 1, 2021 ORDER A rating in excess of 20 percent for residuals of a left knee injury (hereinafter, left knee disability) with patellar subluxation is denied. The assignment of a separate rating for patellofemoral pain syndrome, meniscal tear, and patellar realignment of the left knee with limited extension (hereinafter, left knee limitation of extension), evaluated as 40 percent disabling as of February 5, 2019, is proper; the appeal is denied. A separate 10 percent rating, but no higher, for left knee disability with symptomatic removal of semilunar cartilage is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. For the entire appeal period, the Veteran's left knee disability with patellar subluxation was manifested by flexion limited to, at most, 70 degrees, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups, and no more than moderate recurrent subluxation and lateral instability without ankylosis, surgical repair for patellar instability, impairment of the tibia and fibula, or genu recurvatum. 2. Prior to February 5, 2019, the Veteran's left knee extension was normal and, as of such date, was limited to, at most, 40 degrees, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups. 3. For the entire appeal period, the Veteran's left knee disability resulted in symptomatic removal of semilunar cartilage manifested by effusion in the joint. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for left knee disability with patellar subluxation have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71A, Diagnostic Code 5257. 2. The assignment of a separate rating for left knee extension, evaluated as 40 percent disabling as of February 5, 2019, is proper. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71A, Diagnostic Code 5261. 3. The criteria for a separate 10 percent rating, but no higher, for left knee disability with symptomatic removal of semilunar cartilage have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71A, Diagnostic Code 5259. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1989 to February 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in October 2012 by a Department of Veterans Affairs (VA) Regional Office. In April 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In April 2018, April 2020, and May 2021, the Board remanded the case for additional development and it now returns for further appellate review. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history, and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in 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. § 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011), the United States Court of Appeals for Veterans Claims (Court) held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). In this regard, 38 C.F.R. § 4.59 requires that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint." Correia v. McDonald, 28 Vet. App. 158 (2016). Further, 38 C.F.R. § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable or malaligned joints or periarticular regions, regardless of whether the Diagnostic Code under which the disability is evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). The appeal period before the Board stems from the Veteran's January 30, 2012, claim for an increased rating for her left knee disability, plus the one-year look-back period. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). 1. Entitlement to a rating in excess of 20 percent for left knee disability with patellar subluxation. 2. Propriety of the assignment of a separate rating for left knee limitation of extension, evaluated as 40 percent disabling as of February 5, 2019. For the entire appeal period, the Veteran's left knee disability is evaluated as 20 percent disabling pursuant to Diagnostic Code 5257 based on recurrent subluxation. 38 C.F.R. § 4.71A. She is also in receipt of a separate 40 percent rating for left knee limitation of extension as of February 5, 2019, pursuant to Diagnostic Code 5261. Id. During the pendency of the appeal, the rating criteria for evaluating musculo-skeletal disabilities under 38 C.F.R. § 4.71A were amended effective February 7, 2021. 83 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021, and both the old and new rating criteria from February 7, 2021, applying the criteria that is more favorable to the Veteran. Prior to February 7, 2021, Diagnostic Code 5257 provides for the assignment of a 10 percent rating when there is slight recurrent subluxation or lateral instability, a 20 percent rating when there is moderate recurrent subluxation or lateral instability, and a 30 percent rating for severe recurrent subluxation or lateral instability. As of February 7, 2021, Diagnostic Code 5257 provides ratings for patellar instability and recurrent subluxation or lateral instability. For the former, a 10 percent rating 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 provided 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. 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. With regard to recurrent subluxation or lateral instability under the amended Diagnostic Code 5257, a 10 percent rating is warranted for a sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistance device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 20 percent rating is assigned for one of the following: (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation, or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 30 percent rating is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. Note (1) provides that for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note (2) states that a surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). Both prior to and as of February 7, 2021, Diagnostic Code 5260 provides for a zero percent rating where flexion of the leg is only limited to 60 degrees. For a 10 percent rating, flexion must be limited to 45 degrees. For a 20 percent rating is warranted where flexion is limited to 30 degrees. A 30 percent rating may be assigned where flexion is limited to 15 degrees. Diagnostic Code 5261 provides for a zero percent rating where extension of the leg is limited to five degrees. A 10 percent rating requires extension limited to 10 degrees. A 20 percent rating is warranted where extension is limited to 15 degrees. A 30 percent rating may be assigned where the evidence shows extension limited to 20 degrees. For a 40 percent rating, extension must be limited to 30 degrees. Finally, where extension is limited to 45 degrees a 50 percent rating may be assigned. Normal range of knee motion is 140 degrees of flexion and zero degrees of extension. 38 C.F.R. § 4.71, Plate II. VA's General Counsel has also stated that separate ratings under Diagnostic Code 5260 (limitation of flexion of the leg) and Diagnostic Code 5261 (limitation of extension of the leg) may be assigned for disability of the same joint. VAOPGCPREC 9-04 (September 17, 2004), published at 69 Fed. Reg. 59,990 (2004). With respect to the Veteran's reported left knee symptoms, she described an aching, throbbing discomfort and difficulty when sitting for long periods, kneeling, and squatting in 2011. She also described a dull, constant ache, swelling, and pain in October 2012 and constant knee pain in June 2013. At the April 2017 Board hearing, the Veteran testified that she did not really have limited range of motion; rather, her concerns focused on stability, recurrent meniscal tears, giving way, dislocations, swelling, and pain. She described being unable to carry over 20 pounds worth of weight and being unable to stand or walk for long distances. On VA examination in February 2019, the Veteran reported symptoms of pain and swelling that interfered with standing, and the January 2021 VA examination report reflects her complaints of pain, inflammation, and stiffness. Turning to the medical evidence of record, private treatment records dated in May 2011, June 2011, and September 2011 reflect full range of motion in the left knee, whereas private treatment records dated in October 2011 and November 2011 show flexion limited to 135 degrees and 130 degrees, respectively, without limitation of extension. The October 2012 VA examination report indicates the Veteran had full range of motion in the left knee, and there was no evidence of additional loss of range of motion after repetitive testing, functional impairment, or instability. In June 2013, examination revealed flexion limited to 115 degrees, with pain beginning at 110 degrees, but no additional loss with repetition. Additionally, stability was normal, and the VA examiner found the Veteran did not have a history of recurrent patellar subluxation or dislocation. However, it was noted that the Veteran's pain interfered with sitting, standing, and weight-bearing. A June 2013 VA treatment record indicates left knee flexion was limited to 130 degrees with full extension, and a March 2018 VA treatment record shows left knee flexion to 135 degrees and extension to zero degrees with normal patellar mobility. A February 5, 2019, VA examination report demonstrates flexion limited to 115 degrees and extension limited to 5 degrees on physical examination. However, the VA examiner estimated flexion would be limited to 90 degrees following repetitive use and during flare-ups. With respect to extension, the VA examiner found such would be limited to 30 degrees after repetitive use and to 40 degrees during flare-ups. In addition, the VA examiner found the Veteran had a history of moderate recurrent subluxation and slight recurrent patellar dislocation, although joint stability testing did not demonstrate any positive findings, and there was also a history of recurrent effusion. Moreover, the VA examiner reported the Veteran underwent a meniscectomy in 2016, with residual symptoms of decreased range of motion and pain. Conversely, a VA examiner in January 2021 determined the Veteran did not report or have a history of instability or recurrent subluxation of the knee, although she did have a "remote history of effusions with aspirations." Active and passive range-of-motion testing revealed flexion to 110 degrees and full extension, with pain on weight-bearing, nonweight-bearing, active motion, passive motion, and on rest. Repetitive-use testing did not reveal any additional loss of function or range of motion; however, the VA examiner estimated flexion would be further limited to 90 degrees after repeated use over time and to 70 degrees during a flare-up, whereas there would be no additional limitation of extension in such situations. The VA examiner further reported evidence of recurrent subluxation or persistent instability and recurrent patellar instability, without a ligament tear, and noted the Veteran required a prescription for a brace for ambulation. It was noted that, while the Veteran had been diagnosed with a meniscal tear and underwent a knee arthroscopy and meniscectomy, she had not undergone surgical repair for patellar instability. In a July 2021 medical opinion, a VA physician reviewed the record and opined that, since both VA examinations in October 2012 and June 2013 revealed full range of motion, with no pain on flexion or extension, it could be assumed that the Veteran's range of motion would remain as noted in weight-bearing, nonweight-bearing, passive, and active motion. Based on the aforementioned findings, the Veteran's left knee flexion was limited to, at most, 70 degrees, during the appeal period, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups. Thus, a separate compensable rating is not warranted under Diagnostic Code 5260. Additionally, the evidence described above does not show any limitation of extension prior to the VA examination conducted on February 5, 2019, to warrant a separate compensable rating under Diagnostic Code 5261. However, as of February 5, 2019, the Veteran's left knee extension was limited to, at most, 40 degrees, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups, and thus, a rating in excess of 40 percent is not warranted under Diagnostic Code 5261. As for a higher rating under Diagnostic Code 5257, the evidence dated prior to February 5, 2019, does not demonstrate any findings of recurrent subluxation or lateral instability. The February 2019 VA examiner, however, indicated there was a history of moderate recurrent subluxation, and the January 2021 VA examiner reported evidence of recurrent subluxation or persistent instability and recurrent patellar instability. Based on the above, the record does not reflect severe recurrent subluxation or lateral instability to warrant a higher rating under the old criteria. Additionally, as the January 2021 VA examiner clearly reported that the Veteran had not undergone surgical repair for patellar instability, and the evidence does not demonstrate an unrepaired or failed repair of a complete ligament tear, the criteria for a 30 percent rating have not been met under the amended Diagnostic Code 5257. 38 C.F.R. § 4.71A. However, in Lyles v. Shulkin, 29 Vet. App. 107 (2017), the Court held that evaluation of a knee disability under Diagnostic Codes 5260 and/or 5261 does not, as a matter of law, preclude separate evaluation of a meniscal disability of the same knee under Diagnostic Code 5258 or 5259, and vice versa. The Court further held that entitlement to a separate evaluation in a given case depends on whether the manifestations of disability for which a separate evaluation is being sought have already been compensated by an assigned evaluation under a different diagnostic code. Diagnostic Code 5258 provides a 20 percent rating when there is dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. Under Diagnostic Code 5259, a 10 percent rating is warranted for symptomatic removal of semilunar cartilage. Here, the medical evidence indicates the Veteran incurred left meniscal tears in 1989, 2008, 2011, and 2016, and underwent multiple meniscectomies to remove the left knee cartilage. Additionally, the Veteran competently testified to frequent episodes of pain and effusion into the joint, which were attributed to her meniscal conditions by the February 2019 VA examiner. Although the Veteran's pain, to include such resulting in limitation of motion, is compensated by her currently assigned ratings, her symptomatology related to effusion into the joint is not currently contemplated. Consequently, the Board finds the award of a separate rating of 10 percent under Diagnostic Code 5259 for symptomatic removal of semilunar cartilage based on episodes of effusion into joint is proper for the entire appeal period. 38 C.F.R. § 4.71A. However, as the evidence of record does not demonstrate ankylosis, impairment of the tibia or fibula, or genu recurvatum at any time during the pendency of the appeal, Diagnostic Codes 5256, 5262, and 5263 are not for application in the instant case. In reaching such determinations, the Board acknowledges the Veteran's belief that her left knee disabilities are more severe than as reflected by the currently assigned disability ratings. In this regard, the Board must consider the entire evidence of record when analyzing the criteria laid out in the rating schedule. While the Board recognizes that the Veteran is competent to describe her symptomatology, she is not competent to provide an opinion regarding the severity of her symptomatology in accordance with the rating criteria. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (explaining that while the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Ultimately, the Board finds the medical evidence as detailed above, in which a professional with specialized expertise examined the Veteran, acknowledged her reported symptoms, and described the manifestations of such disability in light of the rating criteria, to be more persuasive than her own reports regarding the severity of her left knee disability. The Board has also considered whether additional staged ratings under Hart, supra, are appropriate for the Veteran's service-connected left knee disabilities; however, the Board finds that her symptomatology has been stable throughout the established periods on appeal. Thus, assigning additional staged ratings for such disabilities is not warranted. Furthermore, neither the Veteran nor her representative have raised any other issues, nor have any other issues been reasonably raised by the record, with regard to the increased rating claims adjudicated herein. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). In reaching such determinations, the Board has considered the applicability of the benefit of the doubt doctrine, which has resulted in a partial award of a separate 10 percent rating for the Veteran's left knee disability based on symptomatic removal of semilunar cartilage. However, insofar as the Board has denied higher or separate ratings for such disability, the preponderance of the evidence is against such aspects of the Veteran's claim. Thus, the benefit of the doubt doctrine is not applicable in such regard and her claims must otherwise be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. M. Celli, 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.