Citation Nr: 21074559 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 16-29 785 DATE: December 15, 2021 ORDER An initial rating in excess of 10 percent disabling for a left knee condition is denied. A separate 20 percent rating for a left meniscus tear with frequent episodes of locking and pain is granted. FINDINGS OF FACT 1. The Veteran's left knee condition is manifested by painful motion with flexion limited to no worse than 85 degrees throughout the appeal period. 2. The Veteran has a meniscal tear of the left knee associated with his service-connected left knee condition. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent disabling for a left knee condition have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5260. 2. The criteria for a separate 20 percent rating, but no higher, for a left knee meniscus tear have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.14, 4.71a, DC 5258. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1976 to August 1979. This case is on appeal from an April 2015 rating decision. In May 2019, the Veteran testified at a Board videoconference hearing. The claim was last before the Board in June 2019. At that time, the Board dismissed an appeal for an effective date earlier than August 29, 2014, for the award of service connection of a left knee condition, including due to clear and unmistakable error (CUE), and remanded the claim currently before the Board for further development. In October 2020, additional relevant medical evidence was added to the Veteran's file. In October 2021, the Veteran waived initial RO consideration of the additional evidence. See 38 C.F.R. § 20.1305(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). Increased Rating Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. The United States Court of Appeals for Veterans Claims (Court) has held that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Separate evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. 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."). As of February 7, 2021, changes have been implemented to the musculoskeletal rating criteria. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the revised version of the regulation is more favorable, the implementation of that regulation can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. Prior to the regulatory change, under DC 5260, a noncompensable rating is warranted if flexion is limited to 60 degrees; a 10 percent rating is warranted if flexion is limited to 45 degrees; a 20 percent rating is warranted if flexion is limited to 30 degrees; and a 30 percent rating is warranted if flexion is limited to 15 degrees. 38 C.F.R. § 4.71a. A limitation of motion rating may also be warranted for limitation of extension under DC 5261. The criteria applicable to musculoskeletal knee disorders were unchanged by the revised regulations effective February 7, 2021. 1. An initial rating in excess of 10 percent disabling for a left knee condition. A VA knee and leg examination was afforded the Veteran in November 2014. The examiner found the Veteran had a diagnosis for a left knee meniscal tear in October 1976 and a March 2013 diagnosis for left knee joint osteoarthritis. At the time of the examination, the Veteran did not report having any functional loss or impairment of the joint or extremity. The examiner found the following ranges of motion for the left knee: flexion from 0 to 120 degrees and extension from 20 to zero degrees. The Veteran was able to perform repetitive use testing with no additional functional loss or range of motion and no pain, weakness, fatigability, or incoordination significantly limiting his functional ability. There also was no reduction in muscle strength, recurrent subluxation, or joint instability. The Veteran did, however, report monthly flare-ups resulting in moderate swelling for about a week. Another VA examination was provided in April 2015. The examiner reported the following ranges of motion for the left knee: flexion from zero to 130 degrees and extension from 130 to 0 degrees; however, though abnormal, the range of motion itself was not found to contribute to functional loss. Further, while pain was noted on examination upon flexion, it did not result in or cause functional loss. There was no reduction in muscle strength or presence of crepitus, ankylosis, recurrent subluxation, or instability. In November 2017, another VA knee and lower leg examination was performed. The Veteran reported experiencing pain when he climbs stairs and that he cannot hunt or fish anymore. The Veteran complained of pain of his entire knee, even with light palpation. The examiner reported the following ranges of motion for the left knee: flexion from zero to 130 degrees and extension from 130 to zero degrees. While pain was noted on examination, it did not cause any functional loss or evidence of pain on weight bearing. There was no reduction in muscle strength or presence of crepitus, ankylosis, recurrent subluxation, or joint instability. Pursuant to the Board's remand, another VA knee and lower leg examination was performed in October 2019. The Veteran did not report flare-ups; however, he did note difficulty walking for long periods and with lifting heavy objects. The examiner reported the following ranges of motion: flexion from zero to 85 degrees and extension from 85 to zero degrees. Pain was noted on examination with both flexion and extension and as causing functional loss. The Veteran did report occasional use of a brace. While the examiner did find evidence of crepitus of the left knee, there was no ankylosis, joint instability, or recurrent subluxation. Medical records from August 2014 include an urgent care triage note in which the Veteran stated he was experiencing left knee pain 8 out of 10. His left knee was also tender to the touch at the time. An August 2018 note provided his left knee swells at times and that pain in his knee alters his gait and causes low back pain. Records from February 2019, the Veteran described his pain as a 4 or greater and experiencing sharp, shooting pain that lasts less than a week. Records from May 2020 provide that in February 2019, his left knee gave out on him and he fell, fracturing his left foot. Additionally, medical records from August 2020 provided the Veteran is in long-term opioid therapy due left knee pain. The Board finds that a rating in excess of 10 percent is not warranted for the Veteran's left knee condition. While there is some reduction in left knee range of motion and crepitus, the evidence of record does not demonstrate instability or recurrent subluxation. Moreover, the Veteran has not reported, and the evidence does not how, the presence of ankylosis. While the VA examinations show the Veteran experiences pain on flexion and extension and the Veteran reports difficulty doing normal daily activities, there is no evidence of record that shows the Veteran has knee flexion limited to 30 degrees or less due to such symptoms. With regard to whether an increased rating based on additional functional loss creating further limitation of flexion triggered by repetitive use or during one of the Veteran's reported flare-ups of his knee disability, the Board acknowledges the Veteran's competent, credible reports. However, during the November 2014 VA examination during which he reported flare-ups, they were not found to cause additional functional loss or further limitation. Accordingly, the Board concludes that as this clinical evidence fails to suggest that upon prolonged use of his knee or during a flare-up of his left knee condition, that his flexion is limited to 30 degrees or less, evidence of record fails to suggest a basis for awarding an increased rating based on functional loss. In consideration of the evidence, the Board finds that since August 2014, the Veteran's left knee condition is manifested by flexion limited to no worse than 85 degrees. This is with consideration of painful motion, flare-ups, and other factors. This level of limited flexion equates to a noncompensable rating. However, painful motion results in the minimum rating; thus, the 10 percent rating for his left knee condition is appropriate. See 38 C.F.R. § 4.59. Based on the above, the Board finds that the preponderance of the evidence is against the Veteran's claim for a rating in excess of 10 percent for his left knee condition. In denying such a rating, the Board finds that the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Thus, a higher rating is not warranted. 2. A separate left meniscus rating. Separate ratings may be warranted for knee conditions beyond limitation of motion when not already compensated by that rating. See 38 C.F.R. § 4.14; see also Lyles v. Shulkin, 29 Vet. App. 107 (2017). Evidence of record includes VA examinations noting the Veteran had a left knee meniscal tear in October 1976, during service. The most recent October 2019 VA examiner noted the Veteran described pain, swelling, and popping of the knee. Further, the examiner reported the Veteran has frequent episodes of joint "locking" and pain. The Board finds a separate 20 percent rating is warranted under DC 5258 for a left meniscal tear. The evidence of records indicates that the Veteran experiences pain, tenderness, and "locking" of his left knee due to his diagnosed left meniscal tear. This is supported by the October 2019 VA examiner which expressly indicated the Veteran's meniscal condition causes frequent episodes of joint locking accompanied by pain. These symptoms ar separate and distinct from the Veteran's painful motion due to his left knee condition, forming the basis of his other knee rating. Therefore, an additional 20 percent rating under DC 5258 for the period on appeal is allowable without pyramiding. Lyles, 29 Vet. App. at 119. This is the maximum rating for DC 5258. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Becton, 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.