Citation Nr: 21072149 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 15-10 015 DATE: December 2, 2021 ORDER Entitlement to an increased rating of 20 percent, but no higher, for residuals of a left knee meniscectomy with Baker's cyst from May 8, 2009 to September 30, 2010 is granted. Entitlement to a rating in excess of 20 percent for residuals of a left knee meniscectomy with Baker's cyst from February 1, 2011 to June 29, 2021 is denied. Entitlement to a separate rating of 50 percent, but no higher, for residuals of a left knee meniscectomy with Baker's cyst effective June 30, 2021 is granted. FINDINGS OF FACT 1. The Veteran's residuals of a left knee meniscectomy with Baker's cyst are rated as 20 percent disabling from May 8, 2009 to September 30, 2010, which is the maximum schedular rating for dislocation of semilunar cartilage 2. The Veteran's residuals of a left knee meniscectomy with Baker's cyst are rated as 20 percent disabling from February 1, 2011 to June 29, 2021, which is the maximum schedular rating permitted for dislocation of semilunar cartilage. 3. The Veteran's residuals of a left knee meniscectomy with Baker's cyst are rated as 50 percent disabling effective June 30, 2021, which is the maximum schedular rating permitted for limitation of extension of the leg. CONCLUSIONS OF LAW 1. The criteria for a 20 percent rating, but no higher, for residuals of a left knee meniscectomy with Baker's cyst from May 8, 2009 to September 30, 2010 are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5258-59. 2. The criteria for a rating in excess of 20 percent for residuals of a left knee meniscectomy with Baker's cyst from February 1, 2011 to June 29, 2021 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5258-59. 3. The criteria for a 50 percent rating, but no higher, for residuals of a left knee meniscectomy with Baker's cyst effective June 30, 2021 are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5261. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1997 to January 1998, from August 2005 to December 2005, and from January 2009 to May 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for a left knee meniscal tear and assigned the initial 10 percent rating under DC 5259, for symptomatic removal of the semilunar cartilage. Thereafter, in March 2011 and September 2011 rating decisions, the RO granted the Veteran a temporary total (100 percent) evaluation from October 1, 2010, to February 1, 2011, due to surgical convalescence following a left knee meniscectomy and continuing the 10 percent rating thereafter. In a January 2015 rating decision, his left knee disability was increased to 20 percent, effective February 1, 2011. The Board remanded the claim in July 2018 and July 2020 for additional development. Most recently, in May 2021 the Board remanded the Veteran's appeal with instruction to obtain an additional medical opinion. The RO complied and a VA opinion/examination was obtained in June 2021. The Board is therefore satisfied that the instructions in its remand of May 2021 have been satisfactorily complied with. See Stegall v. West, 11 Vet. App. 268 (1998). Increased rating Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. Staged ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). Disability of the musculoskeletal system is primarily the inability, due to damage or infection of parts of the musculoskeletal system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. The 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 innervation, 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. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). The Veteran's left knee disability, characterized as the residuals of a meniscectomy with Baker's cyst, has been rated under 38 C.F.R. § 4.71a, Diagnostic Codes (DCs) 5258 and 5259 for semilunar cartilage injuries (meniscus). DC 5258 provides a 20 percent rating for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. Diagnostic Code 5259 provides a 10 percent rating for removal of semilunar cartilage that is symptomatic. Under DC 5003, degenerative arthritis, established by X-ray, will be rated on the basis of limitation of motion under the appropriate DCs for the specific joint or joints involved. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate DC, an evaluation of 10 percent is applied for each major joint or group of minor joints affected by limitation of motion. In the absence of limitation of motion, a 20 percent rating is assigned for arthritis when there is X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. If there are no incapacitating exacerbations, a 10 percent rating is assigned. 38 C.F.R. § 4.71a, DC 5003. Painful motion of a major joint caused by arthritis is deemed to be limited motion and entitled to a minimum 10 percent rating, per joint, even though there is no actual limitation of motion. Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991); see also 38 C.F.R. § 4.59. DC 5260 provides ratings based on limitation of flexion of the leg. Flexion of the leg limited to 60 degrees is rated noncompensable (0 percent); flexion of the leg limited to 45 degrees is rated 10 percent; flexion of the leg limited to 30 degrees is rated 20 percent; and flexion of the leg limited to 15 degrees is rated 30 percent. 38 C.F.R. § 4.71a. DC 5261 provides ratings based on limitation of extension of the leg. Extension of the leg limited to 5 degrees is rated noncompensable (0 percent); extension of the leg limited to 10 degrees is rated 10 percent; extension of the leg limited to 15 degrees is rated 20 percent; extension of the leg limited to 20 degrees is rated 30 percent; extension of the leg limited to 30 degrees is rated 40 percent; and extension of the leg limited to 45 degrees is rated 50 percent. 38 C.F.R. § 4.71a; see VAOPGCPREC 9-04 (separate ratings may be granted based on limitation of flexion (DC 5260) and limitation of extension (DC 5261) of the same knee joint). Normal ranges of motion of the knee are to 0 degrees in extension, and to 140 degrees in flexion. 38 C.F.R. § 4.71, Plate II. Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as none of the symptomatology for one condition is "duplicative of or overlapping with the symptomatology" of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In VAOPGCPREC 9-98, General Counsel considered a hypothetical situation in which a knee disability was evaluated under DC 5259 that was productive of pain, tenderness, friction, and osteoarthritis established by x-rays. For the purposes of the hypothetical, it was assumed that the knee disability rated under DC 5259 did not involve limitation of motion. Given the findings of osteoarthritis, the General Counsel interpreted that, where a DC 5259 disability did not involve limitation of motion, a separate rating under DC 5003 in light of 38 C.F.R. §§ 4.40, 4.45, 4.59 may be warranted. See Lichtenfels, 1 Vet. App. at 488. Factual background The Veteran is seeking a higher rating for his service-connected left knee disability. See July 2010 Supplemental Claim. Turning to the evidence of record, on a December 2009 VA examination report, the Veteran reported pain on his left knee and wearing a knee brace all of the time. The examiner found no cracking, crepitus, or instability. Range of motion indicated 130 degrees of flexion and 0 degrees of extension. Movements are of normal speed and pain free. With three repetitions, there was no additional limitation in joint function or range of motion due to pain, fatigue, weakness, or lack of endurance. There was a diagnosis of left knee meniscus tear. The examiner remarked that the left leg condition interferes with the Veteran's ability to work as a truck driver. A July 2010 magnetic resonance imaging (MRI) of the lower left extremity revealed moderate lateral titling and subluxation of the patella without significant cartilage pathology; tiny radial tear of the body of the lateral meniscus; and a small Baker's cyst. On October 1, 2010, the Veteran underwent meniscectomy surgery. As previously mentioned, March 2011 and September 2011 rating decisions granted a temporary rating of 100 percent effective October 1, 2010 based on surgical or other treatment necessitating convalescence, and a rating of 10 percent for that disability began February 1, 2011. During the period of convalesce, December 2010 VA treatment records reflect that the Veteran had left knee pain, stiffness, and popping with his leg giving out on him. Passive range of motion revealed limitation of extension to 20 degrees and 92 degrees knee flexion. Additionally, January 2011 VA treatment records indicate the Veteran was in a motor vehicle accident and complained of soreness, pain, and limited mobility from also slipping on ice the prior month. Range of motion revealed limitation of extension to 15 degrees and 90 degrees knee flexion. Also during the period of convalescence, the Veteran underwent a January 2011 VA examination. The Veteran reported pain and worsening of symptoms since the 2010 meniscectomy. He reported flare-ups of pain with standing or walking and increased swelling. He can stand for 20 minutes and walk less than one-half mile. He wears an unloading brace and reports that without the brace, his knee feels unstable. He also uses a cane and has a limping gait. The examiner observed a swollen left knee with tenderness on the patella. Extension was limited to 10 degrees, and flexion was 105 degrees. There was pain throughout the range of motion and with three repetitions there was no further change in the range of motion secondary to pain, fatigue, weakness, or lack of endurance. On a March 2011 VA examination report, the Veteran reported constant left knee pain and swelling which worsened after walking. The Veteran reported knee locking. He denied incapacitating episodes or flare-ups. There was extension limited to 5 degrees and flexion to 95 degrees. There was pain throughout the range of motion. With three repetitions of flexion/extension, there was no further change in range of motion due to pain, fatigue, weakness, or lack of endurance. There was tenderness over the medial and lateral line. There was no ligament laxity and negative anterior drawer sign. The Veteran used a knee brace with a patellar cut out and ambulates with a cane. On a June 2019 VA examination report, the Veteran reported that his left knee is getting worse. He reported flare-ups and functional loss which decrease his ability to walk, stand, squat, kneel, and climb. It was estimated his range of motion during a flare-up would be 0 to 110 degrees due to pain and lack of endurance. His range of motion was 0 to 120 degrees on flexion and 120 to 0 degrees on extension with pain on both flexion and extension, pain on palpation, and pain on weight-bearing and non-weight bearing. There was crepitus. With three repetitions the flexion was 0 to 110 degrees and 110 to 0 degrees on extension, there was additional loss of function due to pain and lack of endurance. Muscle strength was normal. No atrophy and no ankylosis. Meniscal conditions indicated frequent episodes of joint pain. On the left anterior knee is a 1 cm x .5cm scar that is not painful or unstable or greater than 39 square cms. The Veteran occasionally used a knee brace. He reported functional impact to include decreased ability to walk or stand more than 20 minutes without a break; decreased ability to climb frequently or run at all; decreased ability to squat or kneel more than infrequently. No report of subluxation or lateral instability. The examiner noted a December 2009 x-ray showed "slight narrowing medial joint space" and endorsed documented arthritis. The Board points out that this finding is inconsistent with available imaging studies, which reveal no indication of an actual diagnosis or impression of arthritis, or degenerative joint disease. Accordingly, there is no basis for the examiner to have documented arthritis in the June 2019 VA examination. On a January 2021 VA examination report, the Veteran reported that his left knee symptoms had improved since his 2010 meniscal surgery, but that he experienced knee pain and swelling, as well as mild flare-ups that occur at the end of a workday and last one to two days. No estimations for range of motion in degrees for flare-ups was provided. He reported functional loss, to include not being able to squat, kneel, and climb stairs. Functional impact was reported, to include alternating between standing and sitting as well as avoiding uneven ground and inclines. No reports of instability or recurrent subluxation. Range of motion for both active and passive of left knee flexion was 0 to 140 degrees and 0 degrees for extension. Pain was exhibited on flexion, weight-bearing, active and passive motion. He reported pain causes functional loss and he avoids squatting and kneeling. There was evidence of crepitus and palpation (mild to moderate). With three repetitions, there was no change. Interference with standings, swelling, disturbance of locomotion, and pain with weighted flexion were additional contributing factors of his left knee disability. No muscle atrophy and no ankylosis. No assistive devices were reported. On a March 2021 VA examination report, the examiner determined that the Veteran would not have significant functional loss during flare-ups based on physical examination findings. The examiner did not find any left kneecap pathology, left kneecap pain, hypermobility, lateral subluxation, or tilting during the examination. On a June 30, 2021 VA examination report, the Veteran reported his condition has progressed/worsened, and that he experiences pain and stiffness. No flare-ups were reported. Regarding functional impact, the Veteran stated he had trouble going up and down stairs, standing or walking for more than 20 minutes, and squatting or kneeling. No report of instability or recurrent subluxation. The left knee range of motion revealed pain at 85 degrees flexion and 40 degrees extension. Passive and active range of motion exhibited pain, as well as pain with weight bearing and non-weight-bearing. Pain caused functional loss, reduced range of motion, and his ability to stand or walk for an extended period of time. No crepitus and no localized tenderness/pain on palpation of joint. With repeated use over time, range of motion was 70 degrees flexion and 50 degrees extension. Contributing factors to left knee disability included interference with standing; disturbance of locomotion; and inability to walk or stand for an extended period of time due to pain. No muscle atrophy and no ankylosis. No prescribed assistive devices for ambulation; however, the Veteran reported using crutches regularly. Lastly, the examiner was unable to provide an opinion regarding an accurate estimation of range of motion lost due to flare-ups experienced by the Veteran at the time of the January 2011 and January 2021 VA examinations because the 2011 examination did not document any range of motion and the 2021 examination shows that the Veteran did not have flare-ups. The examiner concluded that there does not seem to be range of motion lost due to flare-ups. 1. An increased rating of 20 percent, but no higher, for residuals of a left knee meniscectomy with Baker's cyst from May 8, 2009 to September 30, 2010 is granted. 2. A rating in excess of 20 percent for residuals of a left knee meniscectomy with Baker's cyst from February 1, 2011 to June 29, 2021 is denied. The Board has reviewed all of the lay and medical evidence of record in conjunction with the applicable laws and regulations and finds that from May 8, 2009 to September 30, 2010, an increased rating of 20 percent, but no higher, for residuals of a left knee meniscectomy with Baker's cyst is warranted. During that time period, the Veteran had symptoms of a tear of his left knee meniscus (semilunar cartilage) that resulted in pain and functional impairment. Specifically, in the December 2009 VA examination report, the Veteran reported left knee pain, wearing a knee brace all of the time, and was subsequently diagnosed with a left knee meniscus tear. Further, the examiner remarked that the left knee condition caused functional impact on the Veteran's ability to work as a truck driver. Additionally, the July 2010 MRI revealed moderate lateral tilting. Therefore, the Veteran's left knee meniscus disability has most closely approximated a rating of 20 percent under DC 5258 from May 8, 2009 to September 30, 2010. As previously mentioned, the Veteran was granted a temporary rating of 100 percent from October 1, 2010 to February 1, 2011 based on convalescence. Beginning February 1, 2011, following the Veteran's October 2010 meniscectomy, the record reflects episodes of locking, specifically noted on the March 2011 VA examination. The Veteran also had symptoms of pain and functional impairment as reported in the March 2011, June 2019, January 2021, and March 2021 VA examinations. Therefore, a rating of 20 percent during that time period under DC 5258 is warranted. The assigned 20 percent rating is the maximum rating available under DC 5258. The Board finds that a separate or higher rating is not warranted under other DCs related to the knee. Specifically, there is no x-ray evidence of arthritis under DCs 5003-10; and as such, separate ratings for noncompensable limitation of motion under DCs 5260-61 are not warranted. And as demonstrated in the medical evidence recounted above for this time period, it is not indicated that the Veteran suffers from ankylosis, recurrent subluxation or lateral instability, tibia and fibula impairment, or genu recurvatum; therefore, application of DCs 5256, 5257, 5262, 5263 are not warranted for separate or higher ratings. As range of motion of the knee was not limited to 15 degrees of flexion or 20 degrees of extension (each warranting a 30 percent rating), higher ratings under DCs 5260-61 are not for assignment. In coming to these conclusions, The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca. The Veteran's complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant a rating in excess of 20 percent for this appeal period. In sum, after granting all reasonable doubt to the Veteran, the Board finds the Veteran's left knee disability warrants a disability rating of 20 percent, but no higher, from May 8, 2009 to September 30, 2010. Hence, the benefit of the doubt rule applies. Gilbert, 1 Vet. App. 49; 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. As such, the Veteran's claim for a disability rating of 20 percent, but no higher, for a left knee disability from May 8, 2009 to September 30, 2010, is granted. From February 1, 2011 to June 29, 2021, the preponderance of the evidence is against finding the Veteran's left knee disability warrants a disability rating in excess of 20 percent. Hence the benefit of the doubt rule does not apply. Gilbert, 1 Vet. App. 49; 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. As such, the Veteran's claim for a disability rating in excess of 20 percent for a left knee disability from February 1, 2011 to June 29, 2021, is denied. 3. A rating of 50 percent, but no higher, for residuals of a left knee meniscectomy with Baker's cyst under DC 5261 effective June 30, 2021 is granted. The Board observes that to the extent the Veteran's service-connected left knee disability manifests symptoms of limitation of motion that warrants the assignment of a higher rating to displace the rating assigned under DC 5258, such higher rating may be assigned, To review, under Diagnostic Code 5261, a noncompensable rating is warranted when extension of the leg is limited to 5 degrees. A 10 percent disability rating is assigned when extension is limited to 10 degrees. A 20 percent disability rating is warranted when extension is limited to 15 degrees. A 30 percent disability rating is assigned when the evidence shows extension limited to 20 degrees. A 40 percent disability rating is warranted when extension is limited to 30 degrees. A 50 percent disability rating is assigned when extension is limited to 45 degrees. 38 C.F.R. § 4.71a. During the June 30, 2021 VA examination, the Veteran demonstrated extension limited to 40 degrees. The Board points out this measurement falls within the 40 percent disability rating. Notably, with repeated use over time, range of motion was limited to 50 degrees extension, which equates to a 50 percent rating under DC 5261. The report also shows he exhibited pain during passive and active range of motion, as well as pain with weight-bearing and non-weight-bearing. DeLuca, 8 Vet. App. at 206-07. Pain caused functional loss, reduced range of motion, and his ability to stand or walk for an extended period of time. Moreover, the Veteran reported using crutches regularly. Given that the record indicates pain, weakness, fatiguability, or incoordination would significantly limit functional ability during a flare-up or with repeated use over time, the Board finds that extension in the Veteran's left knee has been effectively reduced to 50 degrees. Id. As such, he is entitled to a higher disability rating of 50 percent under DC 5261. Because both DC 5258 and 5261 overlap in symptoms or findings of pain and limitation of motion (of which "locking" is a form), including limitation of motion due to pain, the Board finds that an assignment of a 50 percent rating under DC 5261, rather than 20 percent under DC 5258, effective June 30, 2021 is warranted. In sum, after granting all reasonable doubt to the Veteran, the Board finds the Veteran's left knee disability warrants a disability rating of 50 percent, but no higher, from June 30, 2021. Hence the benefit of the doubt rule applies. Gilbert, 1 Vet. App. 49; 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. As such, the Veteran's claim for a disability rating of 50 percent, but no higher, for a left knee disability effective June 30, 2021, is granted. Additional considerations The Board reiterates that it has considered 38 C.F.R. § 4.71a, DC 5257, but finds it is inapplicable, as the Veteran's left knee has consistently been noted to be without instability or subluxation. Specifically, with the exception of periods during which a temporary total rating is currently assigned, there were no findings of subluxation or instability in the December 2009, March 2011, June 2019, January 2021, March 2021, and June 2021 VA examinations. Although the July 2010 MRI revealed moderate lateral titling and subluxation of the patella without significant cartilage pathology, there was no evidence of "recurrent" subluxation or instability within the record. The Board notes that the prior version of DC 5257 and revisions to the code effective from February 7, 2021 both require recurrent subluxation or instability. As such, application of DC 5257 is not warranted. The Board has also considered 38 C.F.R. § 4.71a, DC 5260 which contemplate flexion limitation of the knee. To warrant a compensable rating on the basis of limited flexion under DC 5260, the evidence must demonstrate, or approximate, flexion limited to 45 degrees. Here, with the exception of periods during which a temporary total rating is currently assigned, the Veteran's range of flexion has always exceeded 70 degrees on examination. As such, a compensable rating under DC 5260 is not warranted. The Board considered degenerative and traumatic arthritis under 38 C.F.R. § 4.71a, DC 5003 and DC 5010. Arthritis established by x-ray findings will be rated on the basis of limitation of motion of the specific joint involved. As previously mentioned, there are no x-rays findings showing arthritis of the knee. Separate ratings are therefore not warranted under such diagnostic codes. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003 and 5010. Furthermore, there is no evidence of ankylosis, genu recurvatum, or a tibia or fibula impairment. Separate or higher ratings are therefore not warranted under such diagnostic codes. See 38 C.F.R. § 4.71a , Diagnostic Codes 5256, 5262, and 5263. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.M. Edwards, Associate 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.