Citation Nr: 21069938 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 11-17 470 DATE: November 22, 2021 ORDER An initial disability rating in excess of 20 percent for osteoarthritis of the right knee is denied. Effective September 15, 2010, a separate 20 percent rating for partial medial meniscectomy for right medial meniscal tear is granted. FINDING OF FACT 1. The Veteran's osteoarthritis of the right knee has not been manifested by flexion limited to 15 degrees or less or any greater loss of motion. 2. From September 15, 2010, the Veteran's right knee disability has involved partial medial meniscectomy for right medial meniscal tear with symptoms consistent with dislocation of semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. CONCLUSION OF LAW 1. The criteria for an initial disability rating in excess of 20 percent for osteoarthritis of the right knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5260. 2. Effective September 15, 2010, the criteria for a separate 20 percent rating based on partial medial meniscectomy for right medial meniscal tear have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.71a, DC 5258. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from December 1990 to July 1991, from December1995 to August 1996, and from August 2005 to November 2006. She also had service in the Reserve. This matter is on appeal from a September 2011rating decision. The Veteran testified at a Board hearing in October 2016. In a May 2017 decision, the Board remanded the claim on appeal for additional development. Most recently, in a March 2021 decision, the Board remanded the case for additional development. In September 2021, the Veteran submitted additional evidence. In July 2021, she waived initial RO consideration of all additional evidence. See 38 C.F.R. § 20.1304(c). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). An initial disability rating in excess of 20 percent for osteoarthritis of the right knee. The Veteran is seeking a higher initial rating for her right knee disability. The appeal period now before the Board begins in May 2009, which is when service connection went into effect for this condition. See Fenderson v. West, 12 Vet. App. 119 (1999). This disability has been assigned a 20 percent rating throughout the entire appeal period exclusive of the period from September 24, 2010, through September 30, 2011, during which time a temporary total rating was in effect under 38 C.F.R. § 4.30. A. Applicable Law The Veteran's disability has been assigned a disability rating under DC 5010-5260 of 38 C.F.R. § 4.71a. The hyphenated code signals that the rating has been assigned determined on the basis of residual conditions under DC 5010, regarding arthritis, under the basic disease listed in DC 5260, regarding limitation of flexion. See 38 C.F.R. § 4.27. The applicable rating schedule was amended during the appeal period. Prior to February 7, 2021, the rating schedule was as follows: 5010 Arthritis, due to trauma, substantiated by X-ray findings: Rate as arthritis, degenerative. 5003 Arthritis, degenerative (hypertrophic or osteoarthritis): Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (DC 5200 etc.). When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 pct is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, rate as below: With X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations 20 With X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups 10 Note (1): The 20 pct and 10 pct ratings based on X-ray findings, above, will not be combined with ratings based on limitation of motion. Note (2): The 20 pct and 10 pct ratings based on X-ray findings, above, will not be utilized in rating conditions listed under diagnostic codes 5013 to 5024, inclusive. Disabilities of the knee are evaluated under the schedular criteria of DCs 5256 through 5263, under 38 C.F.R. § 4.71a. The applicable schedular criteria for these disabilities is set forth as follows: The Knee and Leg Rating 5256 Knee, ankylosis of: Extremely unfavorable, in flexion at an angle of 45° or more 60 In flexion between 20° and 45° 50 In flexion between 10° and 20° 40 Favorable angle in full extension, or in slight flexion between 0° and 10° 30 5257 Knee, other impairment of: Recurrent subluxation or lateral instability: Severe 30 Moderate 20 Slight 10 5258 Cartilage, semilunar, dislocated, with frequent episodes of "locking," pain, and effusion into the joint 20 5259 Cartilage, semilunar, removal of, symptomatic 10 5260 Leg, limitation of flexion of: Flexion limited to 15° 30 Flexion limited to 30° 20 Flexion limited to 45° 10 Flexion limited to 60° 0 5261 Leg, limitation of extension of: Extension limited to 45° 50 Extension limited to 30° 40 Extension limited to 20° 30 Extension limited to 15° 20 Extension limited to 10° 10 Extension limited to 5° 0 5262 Tibia and fibula, impairment of: Nonunion of, with loose motion, requiring brace 40 Malunion of: With marked knee or ankle disability 30 With moderate knee or ankle disability 20 With slight knee or ankle disability 10 5263 Genu recurvatum (acquired, traumatic, with weakness and insecurity in weight-bearing objectively demonstrated) 10 DC 5257 is not predicated on loss of range of motion, and thus §§ 4.40 and 4.45, with respect to pain, do not apply. Johnson v. Brown, 9 Vet. App. 7, 11 (1996). Further, DC 5257 is not a catch-all code intended to cover all disabilities of the knee not expressly contemplated by other DCs. Delisle v. McDonald, 789 F.3d 1372, 1357 (Fed. Cir. 2015). Beginning from February 7, 2021, the rating schedule was as follows: 5010 Post-traumatic arthritis: Rate as limitation of motion, dislocation, or other specified instability under the affected joint. If there are 2 or more joints affected, each rating shall be combined in accordance with §4.25. THE KNEE AND LEG Rating 5256 Knee, ankylosis of: Extremely unfavorable, in flexion at an angle of 45° or more 60 In flexion between 20° and 45° 50 In flexion between 10° and 20° 40 Favorable angle in full extension, or in slight flexion between 0° and 10° 30 5257 Knee, other impairment of: Recurrent subluxation or instability: 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 30 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. (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 20 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 assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation 10 Patellar instability: 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 30 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 20 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 10 Note (1): For patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note (2): 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). 5258 Cartilage, semilunar, dislocated, with frequent episodes of "locking," pain, and effusion into the joint 20 5259 Cartilage, semilunar, removal of, symptomatic 10 5260 Leg, limitation of flexion of: Flexion limited to 15° 30 Flexion limited to 30° 20 Flexion limited to 45° 10 Flexion limited to 60° 0 5261 Leg, limitation of extension of: Extension limited to 45° 50 Extension limited to 30° 40 Extension limited to 20° 30 Extension limited to 15° 20 Extension limited to 10° 10 Extension limited to 5° 0 5262 Tibia and fibula, impairment of: Nonunion of, with loose motion, requiring brace 40 Malunion of: Evaluate under diagnostic codes 5256, 5257, 5260, or 5261 for the knee, or 5270 or 5271 for the ankle, whichever results in the highest evaluation. Medial tibial stress syndrome (MTSS), or shin splints: Requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, both lower extremities 30 Requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, one lower extremity 20 Requiring treatment for no less than 12 consecutive months, and unresponsive to either shoe orthotics or other conservative treatment, one or both lower extremities 10 Treatment less than 12 consecutive months, one or both lower extremities 0 5263 Genu recurvatum (acquired, traumatic, with weakness and insecurity in weight-bearing objectively demonstrated) 10 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; 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 criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). B. Discussion The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss. The Veteran has continuously reported pain and locking while working because her job involved primarily working on her feet. See, e.g., 12/2/2009 VA Primary Care; 10/11/2011 VA Orthopedic; 6/12/2012 private (non-VA) knee consultation; 9/10/2012 VA examination; 1/27/2016 private knee consultation; 11/2/2017 VA consultation addendum. In fact, in January 2014, she reported that she had not gone to work at times due to pain and locking in the knees, up to a couple of times per month. See also 1/9/2018 VA Psychiatry (she had to leave work due to her symptoms). By a November 2019 VA examination, she reported that she had retired from work in December 2018, but while working had difficulty doing her job without pain, discomfort, and swelling in the knee. She has also reported difficulty sleeping due to knee pain. See, e.g., 6/16/2010 VA Physical Therapy; 9/10/2012 VA examination. She also reported difficulty with walking, standing, and driving a car. See, e.g., 6/16/2010 VA Physical Therapy; 6/9/2021 private physical therapy. In March 2015, she reported using a cane due to pain and fatigue; in May 2018, she was issued a new brace and rollator walker. At a May 2017 VA examination, she complained of greater pain and stiffness when it was cold or rained. Even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements would not result in limitation of motion more nearly approximating flexion limited to 15 degrees. She also did not have extension limited to at least 10 degrees. At a May 2009 VA examination, she had range of motion from 5 degrees to 135 degrees. Range of motion was zero to 130 degrees in December 2009; 0 to 101 degrees in June 2010; "full" in September 2010 and October 2011; 4 to 139 degrees in June 2012; zero to 145 degrees in July 2012; zero to 75 degrees at a September 2012 VA examination. From February 2013 through October 2015, she had ongoing private treatment, including knee consultations and physical therapy. The limitation of motion during that time at its greatest was measured as zero to 103 degrees. At a May 2017 VA examination, she had range of motion from zero to 140 degrees. She had range of motion from zero to 50 degrees at a November 2019 VA examination, and 15 to 85 degrees at a December 2020 VA examination. Her range of motion at private consultations were then 8 to 125 degrees in June 2021; zero to 130 degrees in June 2021; zero to 135 degrees in June 2021; and 1 to 135 degrees in July 2021. This evidence shows that her flexion was continuously greater than 15 degrees. On one occasion, the December 2020 VA examination, she had extension limited to 15 degrees, which would be consistent with a 20 percent rating under DC 5261. However, that was an isolated event. The remaining evidence before and after December 2020 shows no compensable limitation of extension. The December 2020 limitation is therefore insufficient to establish a staged rating period. The Board has also considered the other DCs pertaining to the knee and leg. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). Even though a higher rating is not warranted under limitation of motion, the Board finds that a separate 20 percent rating is warranted under DC 5258 beginning from September 15, 2010. At that time, a private magnetic resonance imaging scan revealed medial meniscus tear with knee joint effusion. The exact onset of this condition cannot be ascertained with any degree of certainty. Prior testing, such as in May 2010, was negative for a meniscus condition. By May 2010, she began having knee effusion, and a McMurray's test was positive in June 2010. Such testing was negative per the September 2010 MRI, but was positive according to a September 2010 private Orthopedic consultation. Overall, the earliest that that it can be factually ascertained that she met the criteria for a 20 percent rating under DC 5258 is September 15, 2010, the date of the MRI confirming the meniscus tear. The Veteran underwent a right knee arthroscopy and partial medial meniscectomy for right medial meniscal tear in September 2010. She was awarded a temporary total rating from September 24, 2010, through September 30, 2011, due to this surgery. There is some question as to whether the medial meniscus tear is a component of the service-connected right knee disability. A VA examiner in May 2011 opined that the torn medial meniscus was not due to the service-connected right ankle disability. Rather, the examiner indicated it was from severe torque injury to the right knee joint. The examiner did not address whether the severe torque injury was due to or the result of the right knee disability. Ultimately, the RO awarded the temporary total rating based on this surgery, which the RO assigned based on a finding that "knee is now service connected and the surgery to your knee is considered a worsening of your condition." As such, the meniscus tear is considered a component of the service-connected disability. The Board further finds that the separate 20 percent rating should continue after the convalescence period ended. According to a September 2012 VA examination, the Veteran had residuals of the surgery involving pain. The subsequent private knee consultations and physical therapy notes from February 2013 through January 2016 indicate ongoing effusion. The Veteran also continued to complain of locking. For example, in January 2014, she reported locking up, a couple of times per month, with pain, which caused her to not go to work. A December 2020 VA examination likewise noted ongoing locking. More recent private medical records from June and July 2021 continued to show effusion. Overall, this evidence tends to show ongoing symptoms consistent with a 20 percent rating under DC 5258. Despite this separate rating being warranted, a separate rating under any other potentially pertinent DC is not warranted. Under DC 5256, the evidence shows that there was no ankylosis or functional ankylosis. DC 5259 is moot as she is assigned a rating under DC 5258 based on a meniscus condition, so a separate rating would be pyramiding. Even were that not the case, there is a showing of semilunar cartilage repair, but not removal. Under DC 5262, the evidence shows that the disability does not involve a tibia and fibula impairment involving nonunion or malunion. Under DC 5263, regarding genu recurvatum, a December 2009 VA consultation found mild genu valgum. A June 2010 VA physical therapy consultation found genu valgus. There are then private consultation, such as in November 2013 and December 2014, indicating positive genu varum of the right knee. This was not diagnosed as acquired, traumatic genu recurvatum. The next VA examination, conducted in May 2017, did not mark the box to indicate acquired, traumatic genu recurvatum. In the context of this examination report, which appears to be the type regularly kept for this purpose, the examiner was asked to check a box next to any symptoms present. Thus, it must be assumed that any positive findings would have been recorded if present. Because the examiner did not mark any boxes indicating genu recurvatum, it is assumed that the condition was not found. Therefore, the Board has no evidentiary foundation to find that this disability was manifested by this condition. See Delrio v. Wilkie, 32 Vet. App. 232, 241 (2019); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). A separate rating under DC 5257 is also not warranted. The Veteran has intermittently complained of instability, but all testing for this condition was negative. At the May 2009 VA examination, she reported giving way symptoms since March 2009; stability testing was negative. In June 2011, she complained of right knee instability, although there was "[n]o obvious cause elicited on exam[ination]." She was issued a brace. In May 2015, she reported using a cane, but due to fatigue and pain. In May 2018, she again complained of instability and needing to use a rollator walker. Later in May 2018, she was issued new braces for bilateral knee instability "secondary to osteoarthritis." A VA examiner in November 2019 found that there was no history of recurrent subluxation or lateral instability. Based on this record, it is not factually ascertainable that she had recurrent subluxation or lateral instability. Rather, the evidence shows that she had stability, but not lateral instability, as it was due to her osteoarthritis. Likewise, under the new criteria since February 2021, this evidence shows that she did not have sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability. There were some symptoms not expressly listed in the rating schedule. As indicated, she reported a sleep impairment associated with the pain. Also VA medical records, most recently in June and July 2021, show some muscle atrophy of disuse in the right leg. She has also used a knee brace, cane, and rollator walker. Consideration of an extraschedular rating requires a three-step inquiry. The first question is whether the schedular rating criteria adequately contemplate the veteran's disability picture. If the schedular evaluation does not contemplate the level of disability and symptomatology shown and is found inadequate, then the second inquiry is whether the exceptional disability picture exhibits other related factors, such as marked interference with employment or frequent periods of hospitalization. See Thun v. Peake, 22 Vet. App. 111 (2008). The first Thun element compares a claimant's symptoms to the rating criteria, while the second addresses the resulting effects of those symptoms. Thus, the first and second Thun elements, although interrelated, involve separate and distinct analyses. Yancy v. McDonald, 27 Vet. App. 484, 495 (2016). If the veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Director of Compensation Services to determine whether an extraschedular rating is warranted. See Thun, 22 Vet. App. 111. In regard to the first element, comparison of the Veteran's symptoms and associated functional impairment does not show that the rating criteria are inadequate to describe her disability picture. For all musculoskeletal disabilities, the Rating Schedule contemplates functional loss, which may be manifested by, for example, atrophy of disuse. The Board also finds that her sleep impairment is a functional impairment associated with the condition. 38 C.F.R. § 4.40; Mitchell, 25 Vet. App. at 37. For disabilities of the joints in particular, the Rating Schedule specifically contemplates factors such as weakened movement; excess fatigability; pain on movement; disturbance of locomotion; and interference with sitting, standing, and weight bearing. 38 C.F.R. §§ 4.45, 4.59; Mitchell, 25 Vet. App. at 37. The use of assistive devices is also contemplated by the rating schedule. See, e.g., Spellers v. Wilkie, 30 Vet. App. 211, 218 (2018). Furthermore, a 30 percent rating has been in effect for a psychiatric condition, which contemplates sleep impairment. In summary, the schedular criteria for musculoskeletal disabilities contemplate a wide variety of manifestations of functional loss, and the Rating Schedule was purposely designed to compensate for such functional effects of the Veteran's disabilities in all spheres of her daily life, including at work and at home. Given the variety of ways in which the Rating Schedule contemplates functional loss for musculoskeletal disabilities, the Board concludes that the schedular rating criteria reasonably describe the Veteran's disability picture. The threshold issue under Thun is thus not met, and further consideration of an extraschedular rating is not warranted. (Continued on the next page) As a final matter, the Board finds that a claim for a total disability rating based on individual unemployability due to service-connected disability (TDIU) was not reasonably raised. A November 2019 VA examination notes that the Veteran had retired from her job. She explained that she had lost time from work in the prior 12 months due to not being able to walk or stand for long periods of time and not being able do job without being in pain/discomfort/swelling of knee. She did not, however, indicate that she had left this job due to her right knee disability. Hence, this does not raise the TDIU issue. She also did not file a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, indicating unemployability due to the right knee. As such, a TDIU claim is not reasonably raised. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In light of the foregoing, the Board finds that a higher rating is not assignable. A separate, 20 percent rating, under DC 5258, however, is warranted. To this extent, the claim is granted. Otherwise, as the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Bosely, 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.