Citation Nr: 21076259 Decision Date: 12/23/21 Archive Date: 12/22/21 DOCKET NO. 17-11 450 DATE: December 23, 2021 ORDER Entitlement to a rating in excess of 20 percent for left knee patellofemoral syndrome, meniscal tear, is denied. Entitlement to a rating in excess of 20 percent for right knee patellofemoral syndrome, postoperative meniscal tear, is denied. FINDING OF FACT 1. The Veteran's left and right knee disabilities manifested by subjective reports of pain, weakness, stiffness, swelling, locking, fatigability, and instability; objective findings did not demonstrate flexion limited to 45 degrees or extension limited to 10 degrees. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for the left knee disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.1-4.7, 4.14, 4.40, 4.71a, Diagnostic Code 5003-5258. 2. The criteria for a rating in excess of 20 percent for the right knee disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.1-4.7, 4.14, 4.40, 4.71a, Diagnostic Code 5003-5258. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from July 1989 to April 1996, with additional periods of reserve service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In January 2019, the Board remanded this matter for additional development which has been returned to the Board for further appellate review. 1. Left knee disability 2. Right knee disability The Veteran's left and right knee disabilities are rated 20 percent under 38 C.F.R. § 4.71a, Diagnostic Codes 5003-5258. Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; Mauerhan v. Principi, 16 Vet. App. 436. 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 C.F.R. § 4.3. Where there is a question as to which of two ratings shall be applied, the higher rating 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. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," in all claims for increased ratings. Fenderson v. West, 12 Vet. App. 119, 126-27. In rating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other 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. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity, or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing, and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1. However, painful motion alone is not a functional loss without some restriction of the normal working movements of the body. Mitchell v. Shinseki, 25 Vet. App. 32, 43. The intent of the Rating Schedule is to recognize painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Here, the Veteran seeks ratings greater than 20 percent for his left and right knee disabilities. He has been evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5003-5258, during the period on appeal. Hyphenated Diagnostic Codes are used when a rating under one Code requires use of an additional Diagnostic Code to identify the basis for the rating assigned. 38 C.F.R. § 4.27. The additional Code, shown after the hyphen, represents the basis for the rating, while the primary Code indicates the underlying source of the disability. Here, the Veteran has been rated by analogy for dislocated semilunar cartilage under Diagnostic Code 5258. Of note, portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021. At that time, Diagnostic Code 5003 was altered to apply to degenerative arthritis, other than post-traumatic. The rating criteria still direct that the relevant disability be rated on the basis of limitation of motion. Further, the criteria under Diagnostic Code 5258 did not change. In this respect, Diagnostic Code 5258 establishes a maximum 20 percent rating upon evidence of dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. As such, the Veteran is already in receipt of the maximum rating available under this Code for the entire period on appeal. However, the Board will consider all potentially relevant Diagnostic Codes in assessing the merits of this appeal. Thus, to warrant the assignment of an additional, compensable service-connected disability, the evidence must show flexion of the knee limited to 45 degrees (10 percent under Diagnostic Code 5260) and/or extension of the knee limited to 10 degrees (10 percent under Diagnostic Code 5261). Other Diagnostic Codes pertaining to the knee include Diagnostic Code 5256 (ankylosis), Diagnostic Code 5257 (recurrent subluxation or lateral instability, or patellar instability), Diagnostic Code 5262 (impairment of tibia and fibula), and Diagnostic Code 5263 (genu recurvatum). These disorders are not shown in the record for the period on appeal (regardless of whether the old or new regulations are considered), such that application of these Diagnostic Codes is not warranted. A rating under Diagnostic Code 5259 (removal of the semilunar cartilage) is also not warranted in the present case. Under Diagnostic Code 5259, a maximum 10 percent rating is assigned for removal of semilunar cartilage which is symptomatic. 38 C.F.R. § 4.71a, Diagnostic Code 5259. Looking to the plain meaning of the terms used in the rating criteria, "symptomatic" means indicative, relating to, or constituting the aggregate, of symptoms of disease. STEDMAN'S MEDICAL DICTIONARY, 1743 (27th ed. 2000). A symptom is any morbid phenomenon or departure from the normal in a structure, function, or sensation, experienced by a patient and indicative of disease. Id. at 1742. Thus, the second Diagnostic Code 5259 requirement being "symptomatic" is broad enough to encompass all symptoms, including pain, limitation of motion, and instability. The Board finds that any symptomatic residuals associated with the Veteran's knee surgeries, including a 2007 right knee meniscectomy and a 2011 left knee arthroscopic surgery, are already compensated in the assigned 20 percent rating under Diagnostic Code 5258, discussed below. The record shows that the Veteran's knee disabilities are manifested by findings and symptoms which include pain, instability, noncompensable limitation of motion, and functional loss due to pain, fatigue, weakness, and lack of endurance. These symptoms are already contemplated in ratings currently assigned under Diagnostic Code 5258. Turning to the merits, the Board initially notes that the Veteran's VA and private treatment records do not contain definitive range of motion results for consideration. Thus, this evidence does not provide a basis upon which to grant this appeal. Further, the award of a separate, compensable service-connected disability is not warranted under Diagnostic Code 5260. During the March 2016 VA examination, the Veteran demonstrated left and right knee flexion, at worst, to 120 degrees and 110 degrees, respectively, during repetitive use and repeated use over time. There was objective evidence of painful motion which did not result in/cause functional loss. Additional symptoms such as pain, weakness, and lack of endurance were reported. During the October 2019 VA examination, the Veteran demonstrated left and right knee flexion, at worst, to 50 degrees, each, during flare-ups. There was objective evidence of painful motion which caused functional loss. Additional symptoms such as pain, fatigue, and lack of endurance were reported. The Veteran was able to perform repetitive use testing without additional loss of motion. During the June 2021 VA examination, the Veteran demonstrated left and right knee flexion, at worst, to 85 degrees and 80 degrees, respectively, during flare-ups. There was objective evidence of painful motion which caused functional loss. Disturbance of locomotion also contributed to disability. The Veteran was able to perform repetitive use testing without additional loss of motion. Similarly, the award of a separate, compensable service-connected disability under Diagnostic Code 5261 is not supported by the evidence. In this respect, the Veteran demonstrated left and right knee extension ending at 0 degrees during his VA examinations in March 2016, October 2019, and June 2021. In offering the above conclusions, the Board has considered the Veteran's lay statements regarding the severity of his symptoms, to include pain, weakness, stiffness, swelling, locking, fatigability, and instability of the knees. While he is competent to report symptoms capable of lay observation, he is not competent to identify a specific level of disability according to the applicable Diagnostic Codes. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 470 (1994). Instead, greater probative value is offered to the medical evidence in assessing the severity of the Veteran's disabilities, as the examiners possess the requisite expertise to render opinions regarding the degree of impairment caused by the Veteran's disabilities and had sufficient facts and data on which to base the conclusions. In this respect, the Board finds that the medical evidence supports the determinations offered above, even with contemplation as to the Veteran's subjective symptomatology. For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim for ratings in excess of 20 percent for left and right knee disabilities. In denying such ratings, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Of final note, in the Veteran's February 2017 VA Form 9 (substantive appeal), the Veteran reported having several outpatient physical therapy treatments and several surgeries on both knees. VA sought to obtain these records in October 2017 by requesting the Veteran complete and return VA Form 21-4142 and Form 21-4142(a) which would provide a release and authorization for VA to obtain these records on the Veteran's behalf. However, the Veteran did not return the forms. In this regard, the Board finds that VA's duty to assist has been satisfied; therefore, the decision has been made based on the available evidence of record. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). K. R. Laffitte Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.N., 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.