Citation Nr: 21068741 Decision Date: 11/12/21 Archive Date: 11/12/21 DOCKET NO. 13-30 321 DATE: November 12, 2021 ORDER Entitlement to an increased, 20 percent disability evaluation for right knee tendonitis with meniscal tear and joint osteoarthritis, status-post meniscectomy, for the rating period prior to August 1, 2019, is granted. Entitlement to an increased disability evaluation for right knee tendonitis with meniscal tear and joint osteoarthritis, status-post meniscectomy, rated as 20 percent disabling for the rating period from August 1, 2019 through October 13, 2020 is denied. Entitlement to an increased, 20 percent disability evaluation for right knee tendonitis with meniscal tear and joint osteoarthritis, status-post meniscectomy, for the rating period since October 14, 2020, is granted. FINDING OF FACT For the entire rating period on appeal, the Veteran's right knee right knee tendonitis with meniscal tear and joint osteoarthritis, status-post meniscectomy, is manifested by limitation of flexion; remaining functional flexion was better than 15 degrees and extension was full; there was no indication of locking, tibia or fibula impairment, genu recurvatum, or ankylosis, but there is additional functional loss due to pain. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 20 percent for right knee tendonitis with meniscal tear and joint osteoarthritis, status-post meniscectomy, for the rating period prior to August 1, 2019, have been met. 38 U.S.C. § §§ 1155, 5103A, 5107(b); 38 C.F.R. § § 3.102, 3.159, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5260 (2020). 2. The criteria for a disability rating in excess of 20 percent for right knee tendonitis with meniscal tear and joint osteoarthritis, status-post meniscectomy, for the rating period from August 1, 2019 through October 13, 2020, have not been met. 38 U.S.C. § §§ 1155, 5103A, 5107(b); 38 C.F.R. § § 3.102, 3.159, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5260 (2020). 3. The criteria for a disability rating of 20 percent for right knee tendonitis with meniscal tear and joint osteoarthritis, status-post meniscectomy, for the rating period since October 14, 2020, have been met. 38 U.S.C. § §§ 1155, 5103A, 5107(b); 38 C.F.R. § § 3.102, 3.159, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5260 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from February 1977 to February 1980. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). During the pendency of the appeal, in a February 2020 rating decision, the Veteran was granted an increased, 20 percent disability evaluation for his service-connected right knee tendonitis with meniscal tear and joint osteoarthritis, status-post meniscectomy, effective August 1, 2019. In an October 2020 rating decision, the Veteran's disability evaluation for his service-connected right knee tendonitis was reduced to 10 percent disabling effective October 14, 2020. As the Veteran has not been granted the maximum benefits allowed, the claims of entitlement to increased disability ratings for his service-connected right knee tendonitis with meniscal tear and joint osteoarthritis, status-post meniscectomy, remain on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In September 2017, March 2018, and April 2021, the Board remanded the case to the Agency of Original Jurisdiction (AOJ). A supplemental statement of the case was most recently issued in May 2021. The case has since been returned to the Board for appellate review. The Board finds that there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). In November 2016, a Board videoconference hearing was held before a Veterans Law Judge of the Board. A transcript of the hearing is included in the claims file. The Veterans Law Judge who conducted the hearing has since retired. The Board notes that the Veteran was been provided the opportunity to testify at another hearing; however, the Veteran did not respond. Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Rating Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. In addition, when assessing the severity of a musculoskeletal disability that is rated on the basis of limitation of motion, VA must also consider the extent that the veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when her symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination. See DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. When evaluating musculoskeletal disabilities, VA must consider whether a higher evaluation is warranted, where the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups. See 38 C.F.R. § § 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). Nevertheless, pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Moreover, functional impairment must be supported by adequate pathology. Id.; Johnson v. Brown, 9 Vet. App. 7, 10 (1996) (both citing to 38 C.F.R. § 4.40). Notably, during the appeal period, changes were made to 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5257, 5262. Effective February 7, 2021, VA amended its regulations governing the schedule of rating musculoskeletal disabilities. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5257, 5262). Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). 1. Entitlement to an increased disability evaluation for right knee tendonitis with meniscal tear and joint osteoarthritis, status-post meniscectomy, rated as 10 percent disabling for the rating period prior to August 1, 2019. 2. Entitlement to an increased disability evaluation for right knee tendonitis with meniscal tear and joint osteoarthritis, status-post meniscectomy, rated as 20 percent disabling for the rating period from August 1, 2019 through October 13, 2020. 3. Entitlement to an increased disability evaluation for right knee tendonitis with meniscal tear and joint osteoarthritis, status-post meniscectomy, rated as 10 percent disabling for the rating period since October 14, 2020. The Veteran is currently assigned a 10 percent rating for his service-connected right knee tendonitis with meniscal tear and joint osteoarthritis, status-post meniscectomy, for the rating period prior to August 1, 2019 and a 20 percent disability evaluation from August 1, 2019 to October 13, 2020; he is assigned a 10 percent disability thereafter. The Veteran is rated for his service-connected right knee tendonitis with meniscal tear and joint osteoarthritis, status-post meniscectomy, pursuant to the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5003 5260. See 38 C.F.R. § 4.20. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. The Board notes that the amended Diagnostic Code 5003, effective February 7, 2021, is substantively unchanged. To this point, the Board notes that Diagnostic Code 5003 was revised to reflect that this Diagnostic Code only applies to degenerative arthritis. Diagnostic Code 5003 provides that degenerative arthritis substantiated by x-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When limitation of motion is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each major joint or group of minor joints affected by limitation of motion. A 20 percent evaluation is warranted for x-ray evidence of involvement of 2 or more major or minor joints, with occasional incapacitating exacerbations. See 38 C.F.R. § 4.71a, Diagnostic Code 5003. However, the Veteran does not report experiencing any incapacitating exacerbations with regard to his right knee, and the Veteran's knee disability does not involve 2 or more major or minor joints. The appropriate diagnostic codes for the knee joint are Diagnostic Codes 5260 and 5261, applicable to limitation of flexion and extension of the leg, respectively. Under Diagnostic Code 5260, limitation of flexion of a leg warrants a noncompensable rating when flexion is limited to 60 degrees. A 10 percent rating is warranted if flexion is limited to 45 degrees, and a 20 percent rating is warranted if flexion is limited to 30 degrees. Flexion that is limited to 15 degrees warrants a 30 percent rating. Under Diagnostic Code 5261, limitation of extension of a leg is noncompensable when extension is limited to 5 degrees, warrants a 10 percent rating when it is limited to 10 degrees, a 20 percent rating when it is limited to 15 degrees, a 30 percent rating when limited to 20 degrees, a 40 percent rating when limited to 30 degrees, and a 50 percent rating when limited to 45 degrees. Normal range of motion of the knee is to 0 degrees extension and to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. VA's General Counsel has held that separate ratings may be warranted for limitation of flexion and extension when the criteria for compensable ratings are met for such limitation under Diagnostic Codes 5260 and 5261. VAOPGCPREC 9-2004 (2004). In VAOGCPREC 23-97 (July 1, 1997; revised July 24, 1997), VA's General Counsel held that a claimant who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257, respectively. According to the VA examination reports of record, the Veteran does not experience instability of the right knee. Thus, the Board will not consider Diagnostic Code 5257 here. The Board finds that the weight of the evidence demonstrates that the symptoms of the Veteran's service-connected right knee tendonitis with meniscal tear and joint osteoarthritis, status-post meniscectomy most closely approximates the criteria for a 20 percent disability rating for the entire rating period on appeal. With regard to limitation of motion, the Veteran has not demonstrated that the right knee has compensable limitation of extension during the appeal period. Nevertheless, the Veteran has demonstrated limitation of flexion sufficient to support a 20 percent disability rating for the right knee. The Board acknowledges that the sufficient limitation of flexion to support a 20 percent disability rating was not demonstrated at each of the Veteran's VA examinations, but observes that the Veteran's January 2020 VA examination report reflected limitation of flexion to 20 degrees and the February 2021 VA examination report showed flexion to 70 degrees; at the June 2017 and December 2018 VA examinations, the Veteran's range of motion could not be tested due to pain on motion. Likewise, the October 2020 and November 2020 VA examinations showed flexion to 75 degrees and 90 degrees respectively, are indicative of the variations of the Veteran's range of motion. Upon repetitive use, flexion of the right knee was 70 degrees, and flareups were estimated to be flexion to 70 degrees; extension was unchanged. Additionally, the Veteran reported that he experienced pain, weakness, lack of endurance and fatigability at his VA examinations; he also had tenderness to palpation, pain on motion, and stiffness of the knee at his VA examinations. VA and private treatment records also reflect a history of knee complaints of pain. A higher, 30 percent rating would require flexion of 15 degrees and extension of 20 degrees. In the absence of this level of limited motion, a higher rating based on limitation of motion is not warranted. Therefore, the 20 percent rating, per knee, for service- right knee tendonitis compensates him for the extent of his painful motion during the entire rating period. See 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011) (Painful motion is an important factor of disability, and it is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.). Further, there is no evidence of ankylosis at any time during the rating period on appeal. Thus, a higher rating for the right knee based on Diagnostic Code 5256 is not warranted. The Board notes that the Veteran reported experiencing instability, locking, and joint effusion due to meniscal tears in knee. However, instability, locking, and effusion were not demonstrated at any of the Veteran's VA examinations. As such, the Board finds that the Veteran is not entitled to a separate, 20 percent disability rating for his right knee pursuant to Diagnostic Code 5258. Finally, with regard to functional loss, the Veteran's current evaluation contemplates pathology productive of painful motion. See Burton, supra. The evaluation is consistent with the functional equivalent of limitation of flexion to 20 degrees. In order to warrant a higher evaluation, there must be the functional equivalent of limitation of flexion to 15 degrees (Diagnostic Code 5260) or extension to 20 degrees (Diagnostic Code 5261). The Board accepts the lay evidence that the Veteran experiences pain and limitation of function due to pain and weakness upon flare-ups. However, such evidence does not establish that flexion is functionally limited to 15 degrees or less. Rather, the Veteran retains functional flexion to at least 20 degrees in the right knee and there was no objective evidence of deformity or reduced muscle strength. See DeLuca, citing 38 C.F.R. § § 4.40, 4.45, and 4.59. Moreover, the available medical findings do not show that painful motion, limitation of motion on repetitive use testing, or pain or limitation of motion on active motion/passive motion/in weight-bearing/nonweight-bearing resulted in functional loss warranting the assignment of a higher evaluation for the right knee during the appeal period. The Board finds that the Veteran's subjective complaints of pain have been contemplated in the current rating assignment, as the current rating is based on the objectively demonstrated reduced motion and impairment, as well as estimated limitation of motion during a flare-up; the projected limitation of motion was based on the Veteran's symptomatology and reports of functional loss. See Correia v. McDonald, 28 Vet. App. 158 (2016). As discussed earlier, the Board acknowledges that the Veteran's right knee tendonitis only demonstrated manifestations sufficient to meet the rating criteria for a 20 percent disability rating at the January 2020 VA examination. However, the Board also acknowledges that the Veteran's pain was so severe at several VA examinations as to preclude range of motion testing, and the remaining VA examination reports reflected a wide range of motion. Moreover, the Veteran's VA and private medical records do not reflect actual measurements from range of motion testing. Therefore, the Board will assume that the Veteran's right knee tendonitis with meniscal tear and joint osteoarthritis, status-post meniscectomy, met the criteria for the entire rating period on appeal. For these reasons, the Board finds that the evidence supports a finding of a 20 percent evaluation, but no higher, for the entire rating period on appeal. 38 C.F.R. §§ 4.3, 4.7. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Brokowsky, 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.