Citation Nr: 21076899 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 16-32 193 DATE: December 28, 2021 ORDER The claim of entitlement to a rating higher than 10 percent for right knee status post medial meniscectomy is denied. The claim of entitlement to a rating higher than 10 percent for left knee status post arthroscopic surgery prior to July 28, 2021, is denied. The claim of entitlement to a rating higher than 30 percent for left knee status post arthroscopic surgery since July 28, 2021, is denied. A 10 percent rating for symptomatic residuals of meniscectomy of the right knee under Diagnostic Code 5259 is granted. REMANDED The claim of entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Right knee status post medial meniscectomy is not manifested by extension that is limited to 15 degrees. 2. Prior to July 28, 2021, left knee status post arthroscopic surgery was not manifested by extension that was limited to 15 degrees. 3. Since July 28, 2021, left knee status post arthroscopic surgery is not manifested by extension that is limited to 30 degrees. 4. The Veteran manifests right knee symptomatic residuals of a meniscal condition which include symptoms of swelling and weakness. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 10 percent for right knee status post medial meniscectomy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5299-5261. 2. Prior to July 28, 2021, the criteria for a rating higher than 10 percent for left knee status post arthroscopic surgery have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5299-5261. 3. Since July 28, 2021, the criteria for a rating higher than 30 percent for left knee status post arthroscopic surgery have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5299-5261. 4. The criteria for a 10 percent rating for symptomatic residuals of right knee meniscal surgery have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.321, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5259. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Air Force from September 1979 to September 2005. INCREASED RATING Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In Fenderson v. West, 12 Vet. App. 119 (1999), the United States Court of Appeals for Veterans Claims (Court) held that evidence to be considered in the appeal concerning an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. The Court also discussed the concept of the 'staging' of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126-127; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in 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. With respect to joints the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. 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. The Veteran appeals the denial of a rating higher than 10 percent for right knee status post medial meniscectomy, a rating higher than 10 percent for left knee status post arthroscopic surgery prior to July 28, 2021, and a rating higher than 30 percent thereafter. The Veteran's right and left knee disability is rated under DC Codes 5299-5261. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. Diagnostic Code 5299 does not itself provide disability ratings, while 5261 addresses limitation of extension. Under DC 5261, a noncompensable rating is assigned when extension of the leg is limited to 5 degrees; a 10 percent rating is assigned when extension is limited to 10 degrees; a 20 percent rating is assigned when extension is limited to 15 degrees; a 30 percent rating is assigned when extension is limited to 20 degrees; a 40 percent rating is warranted for extension limited to 30 degrees; and a 50 percent rating is assigned when extension is limited to 45 degrees. Under DC 5260, a noncompensable rating is assigned when flexion of the leg is limited to 60 degrees; a 10 percent rating is assigned when flexion is limited to 45 degrees; a 20 percent rating is assigned when flexion is limited to 30 degrees; and a 30 percent rating is assigned when flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. Separate ratings under DCs 5260 and 5261 may be assigned for disability of the same knee joint. See VAOPGCPREC 9-2004. Additionally, for a knee disability already rated under DCs 5260 and/or 5261, a claimant would have additional disability justifying a separate rating if there is instability and/or subluxation of the knee joint under DC 5257. See generally VAOPGCPREC 23-97. Furthermore, the rating criteria do not preclude separate ratings for meniscal injury under DCs 5258 and 5259 where there are separate ratings for limitation of motion under DCs 5260 and/or 5261, or instability under DCs 5257. Lyles v. Shulkin, 29 Vet. App. 107 (2017). The normal range of knee motion is 140 degrees of flexion and zero degrees of extension. 38 C.F.R. § 4.71, Plate II. For the musculoskeletal system and muscle injuries, the applicable rating criteria, found at 38 C.F.R. § 4.71a, were amended effective February 7, 2021. The old rating criteria applies to rating periods prior to February 7, 2021; however, whichever set of criteria is more favorable applies to periods after February 7, 2021, if the claim was pending prior to this date. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). As the Veteran's claim was pending prior to this date, the more favorable criteria will apply. Under the new rating criteria, however, no changes were made to DCs 5260-5261. In June 2012, the Veteran expressed that his left and right knee disabilities had increased in severity. In relation to his claim, the Veteran was afforded a VA examination in April 2016. During the examination, it was noted that the Veteran had a right partial medial meniscectomy and left knee arthroscopy. The Veteran reported that he could not run any longer, and that he had knee discomfort if he walked more than two miles. The Veteran denied flare-ups of the knee and/or lower leg. Examination revealed flexion was to 140 degrees and extension was to 0 degrees for the right and left knee. No pain was noted on examination. The Veteran able to perform repetitive use testing with at least three repetitions without additional functional loss or range of motion after three repetitions. The examiner was unable to say without speculation whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over a period of time. During the November 2019 VA examination, right knee status post partial medial meniscectomy and left knee status post arthroscopic surgery were diagnosed. The Veteran reported progressive worsening of his bilateral knee condition since surgery on bilateral knees (right in 2002) and (left in 2001). The Veteran described increased stiffness and weakness of the right knee compared to left knee, and he reported walking to far or jogging at all increased pain. He further described left knee intermittent aching pain and a grinding feeling with activity such as walking. The Veteran reported flare ups with walking and trying to complete daily activities. He expressed that he could not walk more than one mile and if he tried to jog it aggravated his condition. He also expressed that he could not stand for a prolonged time, that he had pain with going up or down stairs, difficulty with squatting and that he could not lift heavy things. Examination revealed right knee flexion was to 90 degrees and extension was to 0 degrees, and there was flexion to 110 degrees and extension to 0 degrees for the left knee. Pain was noted on examination which caused functional loss. The Veteran able to perform repetitive use testing with at least three repetitions without additional functional loss or range of motion after three repetitions. While it was noted that pain and weakness significantly limited functional ability with repeated use over a period of time and during flare ups, there was no additional loss of range of motion. It was also noted that there was swelling after walking about a mile. The Veteran was afforded another VA examination in July 2021. The Veteran reported chronic achy pain in both knees and swelling in both knees about once a month. He also reported chronic popping, clicking noises in both knees, and pain with climbing stairs, squatting, and walking more than a mile. The Veteran denied flare ups of the knees. The Veteran reported pain with climbing stairs, squatting to pick up objects and walking over a mile. Examination revealed flexion was to 130 degrees and extension was to 10 degrees for the right knee, and there was flexion to 120 degrees and extension to 20 degrees for the left knee. The Veteran was able to perform repetitive use testing with at least three repetitions but there was no additional functional loss or range of motion after three repetitions. While it was noted that pain and weakness significantly limited functional ability with repeated use over a period of time and during flare ups, there was no additional loss of range of motion. The Veteran denied flares up. Also, procured evidence (statements from the Veteran) did not suggest pain, fatigability, weakness, lack of endurance, or incoordination significantly limited functional ability with repeated use over time. With respect to right knee, the Veteran has demonstrated at most extension that is limited to 10 degrees. While there is objective evidence of pain with active motion, there is no evidence that extension in the right knee has been limited to 15 degrees or more during this appeal. The Board also notes that prior to July 28, 2021, left knee extension was full and after July 28, 2021, extension has been limited to at most 20 degrees. Hence, there is no basis to assign a higher rating for the left and/or right knee under Diagnostic Code 5261 for any period during this appeal. The Board acknowledges the Veteran's assertions that his disability is more severe than evaluated to include his reports of pain and functional limitations. The Veteran is competent to report his symptoms and has presented credible testimony. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board finds, however, that neither the lay nor medical evidence demonstrates that the criteria for a higher rating have been met under DC 5261. The more probative evidence is that prepared by neutral skilled professionals, and such evidence demonstrates that the currently assigned ratings are warranted and no more. Accordingly, the claims are denied. The Board also notes that the VA examinations disclose there is right and left knee scarring. To the extent there is scarring, the Veteran has been assigned separate non compensable ratings. The Veteran has not expressed disagreement with the ratings assigned. The Board also notes, however, that no scar has been found to be painful and/or unstable or greater than 39 square centimeters. At no time during this appeal has the scars been of the severity and/or of size to warrant a compensable rating under the rating criteria pertaining to scars. See 38 C.F.R. § 4.118, Diagnostic Codes 7801-7805. Accordingly, a separate compensable rating for scarring is not warranted. The Board next observes that the Veteran has not described subluxation or instability. The VA examinations also found no clinical evidence of recurrent subluxation or instability, or patellar instability. In this regard, joint stability test was normal, and it was noted that there was no history of lateral instability during the April 2016 and November 2019 VA examinations. It was also noted that the Veteran did not have nor has he ever had recurrent patellar dislocation, "shin splints" (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment. During the November 2019 VA examination, however, a history of recurrent effusion with swelling after walking about a mile was noted. The July 2021 VA examination disclosed there was no showing of recurrent subluxation or persistent instability, ligament tear, and/or recurrent patellar instability. As the objective and lay evidence is devoid of any showing of instability, a separate rating under DC 5257 is not warranted. The Board further notes that the Veteran does not contend, and the objective evidence does not show there is ankylosis of the right and/or left knee joint and/or the functional equivalent of ankylosis. As such, consideration of DC 5256 is not warranted. Furthermore, flexion of the left and/or right knee has not been shown to be limited to 45 degrees or less as to warrant a separate rating under DC 5260. The Board, however, notes that the Veteran has a history of meniscal surgery and, thus, the criteria of Diagnostic Codes 5258 and 5259 do apply. The evidence shows that the Veteran had a right medial partial meniscectomy in 2002. During the April 2016 VA examination, it was noted that the Veteran's meniscectomy residuals caused increased stiffness, and weakness compared to left knee, and walking too far or jogging at all increased pain. During the November 2019 VA examination, a history of recurrent effusion with swelling after walking about a mile was noted. In the July 2021 VA examination, the Veteran denied having, or having a history of frequent effusion of the knee, but frequent episodes of joint pain was noted. The Board notes that there is evidence of stiffness as well as symptoms of swelling and weakness, which are not specifically contemplated by the rating assigned under Diagnostic Code 5261. There is also a showing of occasional effusion. Under Diagnostic Code 5258, a maximum 20 percent rating is warranted for semilunar cartilage, dislocated, with frequent episodes of "locking", pain, and effusion into the joint. Under Diagnostic Code 5259, a maximum 10 percent rating is warranted for removal of semilunar cartilage that is symptomatic. While there is no showing of frequent episodes of "locking", pain, and effusion into the joint, there is evidence of semilunar cartilage removal on the right. As such, the Board finds that the Veteran is entitled to a separate 10 percent rating under DC 5259 for the removal of symptomatic semilunar cartilage. In so finding, the Board notes that while the Veteran is shown to have had a medial meniscal posterior horn tear in 2002 and that such was repaired with medial partial meniscectomy that same year, there is no showing of such for the left. At most, the evidence shows that the Veteran underwent left knee arthroscopic surgery in 2001. The Board notes, however, that there is no objective showing of a left knee meniscectomy to warrant consideration under DCs 5258 and/or 5259. REASONS FOR REMAND The Veteran appeals the denial of TDIU. The Veteran claims that his service-connected disabilities render him unable to obtain and retain employment. While the record contains opinions regarding the impact that the Veteran's individual service-connected disabilities have on his ability to obtain and maintain employment, an opinion has not been obtained addressing the cumulative impact that his service-connected disabilities have on his ability to obtain and maintain employment. On remand, such an opinion should be obtained and associated with the record. The matters are REMANDED for the following action: (Continued on the next page) 1. Associate with the claims folder updated VA treatment records. 2. Obtain a VA opinion to determine the cumulative impact the Veteran's service-connected disabilities have on his ability to obtain or retain employment. All findings should be reported in detail and all functional impairment caused by the service-connected disorders should be detailed. A complete rationale for all opinions should be provided. A. MARSH II Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T.S. Willie 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.