Citation Nr: 21073468
Decision Date: 12/08/21	Archive Date: 12/08/21

DOCKET NO. 15-45 829
DATE: December 8, 2021

ORDER

A rating in excess of 10 percent for right knee chondromalacia patella with residuals of meniscal tear due to limitation of motion is denied.

From July 16, 2020, a separate 10 percent rating right knee chondromalacia patella with residuals of meniscal tear due to instability is granted, subject to the payment of monetary awards.

FINDINGS OF FACT

1.  For the entire period of the appeal, the Veteran's right knee disability has been manifested by flexion that was at most restricted to 90 degrees and extension to 0 degrees.

2.  From July 16, 2020, the Veteran's right knee has been manifested by slight anterior instability.

CONCLUSIONS OF LAW

1.  The criteria for a rating in excess of 10 percent for chondromalacia patella with residuals of meniscal tear due to limitation of motion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5260, 5261.

2.  From July 16, 2020, the criteria for a separate 10 percent rating, but no higher, for right knee chondromalacia patella with residuals of meniscal tear due to instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active service from September 1979 to September 2005. 

In July 2018, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. In July 2018, July 2020, and May 2021 the Board remanded this case for further development.

In a July 2021 rating decision, the agency of original jurisdiction (AOJ) awarded service connection for residuals of right knee meniscal tear, effective December 28, 2011. The Veteran's service-connected right knee disability was then recharacterized as right knee chondromalacia patella with residuals of meniscal tear, as noted above.

Increased Rating

Disability evaluations are determined by application of the VA Schedule for Rating Disabilities, which 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 there must be emphasis upon the limitation of activity imposed by the disabling condition. 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 appellant working or seeking work. 38 C.F.R. § 4.2. 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.

Where entitlement to compensation has been established and a higher initial disability rating is at issue, the level of disability at the time entitlement arose is of primary concern. Consideration must also be given to a longitudinal picture of the veteran's disability to determine if the assignment of separate ratings for separate periods of time, a practice known as "staged" ratings, is warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007).

Full range of motion of the knee is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II.

Under 38 C.F.R. § 4.71a, Diagnostic Code 5010, ratings for traumatic arthritis are assigned under Diagnostic Code 5003, consistent with the criteria for degenerative arthritis. The criteria under Diagnostic Code 5003 allow for a 10 percent rating for arthritis with X-ray evidence of 2 or more major joints or 2 or more minor joint groups; or a 20 percent rating for arthritis with X-ray evidence of 2 or more major joints or 2 or more minor joint groups with occasional incapacitating episodes. Id.

Diagnostic Code 5260 provides a 10 percent rating when flexion of the leg is limited to 45 degrees. A 20 percent rating is warranted when flexion of the leg is limited to 30 degrees. A 30 percent rating is warranted when flexion of the leg is limited to 15 degrees. 38 C.F.R. § 4.71a.

Diagnostic Code 5261 provides a 10 percent rating when extension of the leg is limited to 10 degrees. A 20 percent rating is warranted when extension is limited to 15 degrees. A 30 percent rating is warranted when extension is limited to 20 degrees. Id.

Diagnostic Code 5257 provides for a 10 percent rating for slight recurrent subluxation or lateral instability. A 20 percent rating is warranted for moderate recurrent subluxation or lateral instability. A 30 percent rating is warranted for severe recurrent subluxation or lateral instability. Id.

Diagnostic Codes 5258 and 5259 evaluate impairment of the semilunar cartilage (synonymous with the meniscus). A 10 percent rating is assigned for removal of the meniscus that is symptomatic. A 20 percent rating is assigned for dislocated meniscus with frequent episodes of locking, pain, and effusion into the joint. Id.

Ratings under Diagnostic Code 5259 require consideration of 38 C.F.R. §§ 4.40 and 4.45 because removal of a semilunar cartilage may result in complications producing loss of motion. VAOGCPREC 9-98. Thus, if there are symptoms as a residual of a meniscectomy (partial removal of semilunar cartilage in the knee) which are subluxation or instability, or limitation of motion, separate ratings for such manifestation may be assigned. However, 38 C.F.R. § 4.71a, Diagnostic Code 5258 provides for a 20 percent rating for a dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. A locked knee is "a condition in which the knee lacks full extension and flexion because of internal derangement, usually the result of a torn meniscus." http://medical-dictionary.thefreedictionary.com/locked+knee. Thus, locking encompasses limitation of motion such that assigning additional and separate rating for limited knee flexion or extension under, respectively, Diagnostic Codes 5260 or 5261 would constitute pyramiding under 38 C.F.R. § 4.14 and, as such, is prohibited. See VAOPGCPRECs 23-99 and 9-93.

Effective February 7, 2021, during the pendency of this appeal, VA's Schedule, 38 C.F.R. Part 4, was amended with regard to rating musculoskeletal disabilities. 85 Fed. Reg. 76453 (Nov. 30, 2020).

VA's General Counsel, in a precedent opinion, has held that when a new regulation is issued while a claim is pending before VA, unless clearly specified otherwise, VA must apply the new provision to the claim from the effective date of the change as long as the application would not produce retroactive effects. VAOPGCPREC 7-03; 69 Fed. Reg. 25179 (2003). The amended versions may only be applied as of their effective date. Before that time, only the former version of the regulation may be applied. VAOPGCPREC 3-00; 65 Fed. Reg. 33422 (2000). Importantly, the former version remains for consideration throughout the rating period on appeal, both prior to and after the effective date of the change. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The periods relevant to this decision are prior to and after the February 7, 2021, amendments.

The revisions to the regulations have a limited impact in that they have only been in effect since February 7, 2021. Diagnostic Codes 5258, 5259, 5260 and 5261 were not changed by the February 7, 2021, amendments. Effective February 7, 2021, Diagnostic Code 5003 was revised only insofar as it was renamed to make clear that this diagnostic code only applies to degenerative arthritis. Additionally, Diagnostic Code 5010 was revised rate post-traumatic arthritis 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. See 85 Fed. Reg. 76453, 76460 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010). The revisions to the regulations do change how instability and subluxation of the knee are rated. That is, the descriptor terms of slight, moderate, and severe have been removed, and replaced with detailed descriptions of levels of impairment resulting from recurrent subluxation or instability, or from patellar instability.

Regarding recurrent subluxation or lateral instability, a 10 percent rating is assigned 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 assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 20 percent rating is assigned with 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 assigned 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.

Regarding patellar instability, a 10 percent rating is assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. A 20 percent rating is assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: a brace, cane, or walker. 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. Note 1 provides that for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note 2 provides 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). 85 Fed. Reg. 76453, 76463.

A claimant who has limitation of motion and instability of a knee, may be rated separately under Diagnostic Codes 5260 and 5257. Any separate rating must be based on additional disabling symptomatology that meets the criteria for a compensable rating. VAOPGCPREC 23-97 (1997); VAOPGCPREC 9-98 (1998). Separate ratings under Diagnostic Code 5260 for limitation of flexion and Diagnostic Code 5261 for limitation of extension, may be assigned for disability of the same knee; however, any separate rating must be based on additional disabling symptomatology that meets the criteria for a compensable rating. VAOGCPREC 9-2004 (2004).

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 section 4.40 or section 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).

In Correia v. McDonald, 28 Vet. App. 158 (2016), the United States Court of Appeals for Veterans Claims (Court) held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint."

In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination.

The Veteran's claim for an increased rating was received in December 2011. His service-connected right knee disability is currently rated 10 percent disabling due to limitation of motion.

A March 2012 VA Knee and Lower Leg Conditions Disability Benefits Questionnaire (DBQ) notes the Veteran's history of right knee degenerative arthritis, status post arthroscopic repair in 2011. The Veteran complained of knee pain; he denied flare-ups. On examination, range of motion of the right knee was from 0 degrees extension to 130 degrees flexion with pain at 120 degrees flexion. The Veteran was able to complete repetitive use testing; no additional functional loss was shown. Strength was 5/5 and there was no muscle atrophy on the right. Joint stability tests were normal; there was no evidence of recurrent subluxation or dislocation. The Veteran used no assistive devices.

A January 2014 VA Knee and Lower Leg Conditions DBQ notes the Veteran's complaints of chronic knee pain and catching of the joint, especially when climbing and descending stairs. He reported rare effusion. He also reported flare-ups which limited knee flexion to 120 degrees. On examination, range of motion of the right knee was from 0 degrees extension to 140 degrees flexion with pain at 130 degrees flexion. The Veteran was able to complete repetitive use testing; no additional functional loss was shown. Strength was 5/5; joint stability tests were normal and there was no evidence of recurrent subluxation or dislocation. McMurray test was positive. The Veteran used no assistive devices.

An April 2015 VA treatment record notes the Veteran was not using or prescribed any ambulatory aids. His gait was unassisted in January 2016. He used no gait aid in April 2016.

An April 2016 VA Knee and Lower Leg Conditions DBQ notes the Veteran's complaints of right knee aching. He reported problems standing or walking for long periods, taking the stairs, squatting, bending, running, and jumping. He also reported flare-ups which resulting in swelling and slipping. On examination, range of motion of the right knee was from 0 degrees extension to 110 degrees flexion with pain. There was no redness or swelling. Crepitus was noted. There was pain with weight bearing. The Veteran was able to complete repetitive use testing; no additional functional loss was shown. The examiner opined that pain, weakness, fatigability, or incoordination would not significantly limit functional ability with repeated use over time or during flare-ups. Strength was 5/5; there was no muscle atrophy. Ankylosis was not shown. Joint stability tests were normal. There was no evidence or history of recurrent subluxation, dislocation, or effusion. The Veteran used no assistive devices. The examiner stated a February 2016 MRI study showed degenerative arthritis of the right knee, mild to moderate.

A November 2016 VA treatment record notes the Veteran was ambulatory with a steady gait.

A September 2018 VA Knee and Lower Leg Conditions DBQ notes the Veteran's complaints of right knee aching and pain. He reported flare-ups of pain and swelling, as well as bone rubbing on bone. He complained of problems walking, standing, running, climbing stairs and bearing full weight on his knee. On examination, range of motion of the right knee was from 0 degrees extension to 130 degrees flexion with pain. Crepitus was noted. There was pain with weight bearing and nonweight bearing. The Veteran was able to complete repetitive use testing; no additional functional loss was shown. The examiner opined that pain, weakness, fatigability, or incoordination would not significantly limit functional ability with repeated use over time or during flare-ups. Strength was 4/5; there was no muscle atrophy. Ankylosis was not shown. Joint stability tests were normal. There was no evidence or history of recurrent subluxation, dislocation, or effusion. The Veteran used a cane occasionally for bilateral knee pain. X-ray studies of the right knee revealed no fracture, subluxation or other significant bone, joint or soft tissue abnormality. No radiographic findings for arthritis were seen. No evidence for ACL tear or post-surgical changes was seen. 

An October 2018 VA treatment record notes the Veteran's gait was steady. He ambulated without assistance.

A July 16, 2020, VA Knee and Lower Leg Conditions DBQ notes the Veteran's complaints of burning pain and swelling in the right knee. He reported problems walking or running for long periods due to pain. He also reported flare-ups with movement and exertion. On examination, passive range of motion was full. Active range of motion of the right knee was from 0 degrees extension to 110 degrees flexion with pain. There was no crepitus. There was pain with weight bearing. The Veteran was able to complete repetitive use testing; no additional functional loss was shown. The examiner opined that pain would limit functional ability with repeated use over time and during flare-ups to 0 degrees extension and 90 degrees flexion. Strength was 5/5; there was no muscle atrophy. Ankylosis was not shown. There was no evidence or history of recurrent subluxation, dislocation, or effusion. Joint stability tests were normal laterally, medially, and posteriorly. Joint testing showed 1+ anterior instability. The Veteran regularly used a cane because of both knees. 

A July 2020 VA outpatient treatment record shows the Veteran was ambulatory with a steady gait.

Outpatient treatment records for the period note the Veteran's ongoing complaints of right knee pain but do not reflect symptomatology worse than noted on examination or that assistive devices had been prescribed for ambulation.

After reviewing the foregoing evidence, the Board finds that a rating in excess of 10 percent would not be warranted under Diagnostic Code 5260 for the right knee because while the Veteran has repeatedly complained of chronic knee pain, the limitation of motion findings for flexion recorded in the VA examinations (at worst, 90 degrees with pain) and treatment records do not meet the requirements for the next higher rating under Diagnostic Code 5260, even considering related functional impairment. A preponderance of the evidence is against the assignment of any higher rating for limitation of flexion for the right knee; hence, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7.

In addition, the Board has considered whether a separate rating is warranted for limitation of extension under Diagnostic Code 5261. As noted above, however, the preponderance of the evidence does not warrant a separate compensable rating for limitation of extension. In this regard, the medical evidence has consistently shown full extension of the right knee throughout the period of the appeal.

Additionally, for the entire period at issue, because there is no medical evidence of ankylosis, or malunion of the tibia and fibula or genu recurvatum, a higher evaluation is not warranted under another diagnostic code for the right knee. See 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5262, 5263.

Beginning July 16, 2020 (but not prior), the medical evidence shows the presence of 1+ anterior instability in the right knee. See July 2020 VA DBQ. As such, the Board finds that a separate disability rating of 10 percent under Diagnostic Code 5257 is warranted for mild recurrent subluxation or lateral instability. A higher rating of 20 percent is not warranted without evidence showing moderate subluxation or lateral instability was severe. 

A in excess of 10 percent for instability is also not available under the revised rating criteria beginning February 7, 2020. In this regard, a 20 percent evaluation requires (in part) that a medical provider has prescribed a brace and cane for ambulation. Even though the Veteran has reportedly used a cane at the most recent VA examinations, there is no evidence it was prescribed for his use. In fact, outpatient treatment records show no problems with ambulation. 

In conclusion, the Board finds a disability rating in excess of 10 percent based on limitation of motion is not warranted. However, a separate 10 percent based on instability is warranted beginning on July 16, 2020, but not earlier. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3.

 

A. ISHIZAWAR

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Fletcher, Kathleen

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.