Citation Nr: 21005636 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 09-03 844 DATE: February 2, 2021 ORDER Entitlement to a disability rating in excess of 20 percent for status post arthroscopy of the left knee medial meniscal tear with chondromalacia (left knee, status post arthroscopy) is denied. Entitlement to a disability rating in excess of 10 percent for degenerative arthritis and chondromalacia, right knee (right knee disability) is denied. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran’s left knee, status post arthroscopy has manifested with residuals of a medial meniscal tear with symptoms that include frequent episodes of locking, effusion, and joint pain. 2. Throughout the period on appeal, the Veteran’s left knee, status post arthroscopy has not manifested with limitation of flexion to 15 degrees or less or limitation of extension to 20 degrees or less, including due to painful motion, with repetitive use, and during flare-ups. 3. Throughout the period on appeal, the Veteran’s right knee disability manifested with degenerative changes that resulted in functional limitation that includes: flexion to 70 degrees or greater, and extension to 0 degrees, including due to painful motion, repetitive use, and during flare-ups; and does not result in lateral instability or subluxation. CONCLUSIONS OF LAW 1. Throughout the period on appeal, the criteria for entitlement to a disability rating in excess of 20 percent for left knee, status post arthroscopy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.14, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5258, 5010, 5260, 5261. 2. Throughout the period on appeal, the criteria for entitlement to a disability rating in excess of 10 percent for degenerative arthritis and chondromalacia, right knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.14, 4.27, 4.40, 4.45, 4.59, 4.71a, DCs 5260, 5010, 5257-5263. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1984 to March 1990. This case comes to the Board of Veterans’ Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida in January 2008 and December 2015. In November 2015, the Veteran testified during a Board hearing before the undersigned. A transcript of that hearing is of record. In October 2012, the Board issued a decision granting an increased rating of 20 percent for status post arthroscopy, left knee medial meniscal tear with chondromalacia, chondrocalcinosis and arthritis. The Board also denied entitlement to a disability rating in excess of 20 percent for status post arthroscopy, left knee medial meniscal tear; and denied entitlement to a separate rating in excess of 10 percent for left knee instability. The Veteran appealed the denial of entitlement to a disability rating in excess of 20 percent for status post arthroscopy, left knee medial meniscal tear to the United States Court of Appeals for Veterans Claims (Court). In October 2016, the Court issued an Order granting a Joint Motion for Partial Remand, vacating the portion of the Board decision that denied entitlement to a rating in excess of 20 percent for status post arthroscopy of the left knee medial meniscal tear with chondromalacia. The remaining issues, including entitlement to a separate rating in excess of 10 percent for left knee instability, were dismissed. The Veteran’s claim was subsequently remanded for additional development by the Board of Veterans’ Appeals in February 2017, August 2018, and October 2019. Review of the completed development reveals that, at the very least, substantial compliance with the remand directives was obtained. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Increased Ratings, Generally 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 evaluation will be assigned. 38 C.F.R. § 4.7. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 38 C.F.R. §§ 4.1, 4.2, 4.10. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). When evaluating a musculoskeletal disability based upon a range of motion, consideration is given to the degree of any additional limitation upon motion due to functional loss. DeLuca v. Brown, 8 Vet. App. 202, 204 -07 (1995). This includes the analysis of additional functional impairment above and beyond the limitation of motion objectively demonstrated involving such factors as painful motion, weakness, incoordination, and fatigability, etc., particularly during times when these symptoms “flare-up,” such as during prolonged use, and assuming these factors are not already contemplated in the governing rating criteria. Id. See also 38 C.F.R. §§ 4.40, 4.45 and 4.59. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings can be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. See Hart v. Mansfield, 21 Vet. App. 505. Entitlement to a disability rating in excess of 20 percent for status post arthroscopy of the left knee medial meniscal tear with chondromalacia In October 2007, the Veteran filed a claim for an increased rating for his left knee disability. The Board notes that entitlement to a rating in excess of 20 percent for left knee, status post arthroscopy is before the Board. As discussed above, entitlement to a higher rating for left knee instability was not appealed to the Court and is not currently on appeal. In November 2015, the Veteran provided testimony at a Board hearing regarding his symptoms of his left knee disability and why he believes a higher rating was warranted. The Veteran reported symptoms of pain, inflammation, and swelling. See Hearing Transcript, pp. 4-6. He stated that he’s had his left knee “lock up” on him at work. He stated that he has flare-ups every day that cause pain and swelling. He indicated that he sometimes struggles to get his knee brace off due to the swelling. See Hearing Transcript, pp. 5-6. The Veteran also reported limitation of range of motion that he felt was not being documented during his 2014 VA examination. He stated he is unable to do things he once enjoyed due to his knee such as playing racquetball, soccer, and tennis. See Hearing Transcript, pp. 7-10. The Veteran’s left knee, status post arthroscopy is rated 20 percent disabling under DC 5258. Unfortunately, the Board finds that the evidence of record does not support a rating in excess of 20 percent throughout the appeal period. Under DC 5258, a 20 percent evaluation is assigned for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. 38 C.F.R. § 4.71a. A rating in excess of 20 percent is not available under DC 5258. Additional diagnostic codes have also been considered. DC 5260 provides for the assignment of a noncompensable rating when flexion is limited to 60 degrees. 38 C.F.R. § 4.71a, DC 5260. A 10 percent rating is warranted when flexion of the leg is limited to 45 degrees. Id. A rating of 20 percent is appropriate when leg flexion is limited to 30 degrees, and a rating of 30 percent is warranted when flexion is limited to 15 degrees. Id. Limitation of extension of the leg to 5 degrees warrants a noncompensable rating; 10 degrees is rated as 10 percent disabling; extension limited to 15 degrees is rated as 20 percent disabling; extension limited to 20 degrees is rated as 30 percent disabling; extension limited to 30 degrees is rated as 40 percent disabling; and extension limited to 45 degrees is rated as 50 percent disabling. 38 C.F.R. § 4.71a, DC 5261. Normal range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. Upon review of the evidence of record, the Board finds that the competent, credible evidence of record does not demonstrate limitation of left knee flexion or extension that would warrant a rating in excess of 20 percent. The Board notes that the evidence of record does not report limitation of left knee flexion to 15 degrees or less or left knee extension to 20 degrees or less. Moreover, the evidence does not demonstrate limitation of left knee flexion to less than 60 degrees or any degree of limitation of left knee extension, including considering additional limitations due to pain on motion, repetitive use, and during flare-ups. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran underwent examinations that tested range of motion of the left knee in November 2007, June 2014, December 2015, March 2017, August 2017, and February 2020. None of the examinations during the appeal period reported limitation of flexion of the left knee to less than 60 degrees or reported limitation of left knee extension. Particularly, the Board finds probative the February 2020 examination that reported left knee flexion to 60 degrees, while considering additional limitations due to pain on motion, repetitive use, and during flare-ups. The 2020 examiner noted the Veteran’s reports of limited bending of the knee that interferes with quality of life and causes him to be unable to squat, kneel, or bend the knee normally. The 2020 examiner also noted that the Veteran’s left knee was suffering from a flare-up at the time of the February 2020 examination but did not report that limitation of left knee flexion to less than 60 degrees. The Board has considered the Veteran’s lay reports of limitation of range of motion due to pain and locking, including his reports during his 2015 hearing; however, the Board notes that the Veteran did not provide information where the painful motion began or ends. As such, this evidence does not support a rating in excess of 20 percent under DC 5260 or DC 5261. As no other competent evidence of record, including the private and VA treatment records associated with the claims file, demonstrate limitation of flexion to less than 15 degrees or limitation of extension to 20 degrees or less, the Board finds that a rating in excess of 20 percent is not warranted based upon left knee limitation of flexion or extension during the period on appeal. See 38 C.F.R. §§ 4.7, 4.45, 4.59, 4.71a, DCs 5260, 5261. The Board also finds that separate ratings are not warranted for limitation of left knee flexion or extension during the period on appeal. First, as discussed above, the Board finds that the probative evidence does not demonstrate compensable limitation of left knee extension during the appeal period. None of the evaluations of record have demonstrated limitation of left knee extension beyond 0 degrees. Further, the Veteran has not reported limitation of left knee extension to 10 degrees or more; as such, a separate compensable rating for left knee extension is not warranted. See 38 C.F.R. §§ 4.7, 4.45, 4.59, 4.71a, DCs 5261, 5258. The Board also finds that a separate rating for left knee flexion is not warranted from the Veteran’s rating assigned under DC 5258 as it would result in impermissible pyramiding. During the Veteran’s 2015 hearing, he reported symptoms of locking and swelling of the left knee that restricts his range of motion of the left knee. The Veteran’s currently assigned rating under DC 5258 contemplates episodes of pain, locking, and effusion of the joint, which result in limitation of range of motion described by the Veteran. The Board finds that a separate rating based upon the Veteran’s limitation of flexion, due in part to limitation by pain on motion, would result in these symptoms of pain and locking being contemplated under both diagnostic codes, DC 5258 and DC 5260. As such, the Board finds that separate ratings under DC 5258 and DC 5260 are not warranted. See 38 C.F.R. §§ 4.14, 4.59, 4.71a, DCs 5261, 5258. The Board has also considered higher and separate ratings under DCs 5003 and 5259; however, the Board finds that such higher or separate ratings as not warranted based upon the evidence of record. Under DC 5003, degenerative arthritis is rated on the basis of limitation of motion of the specific joint involved. When limitation of motion is non-compensable (as in the present case), a 10 percent rating is assigned if there is pain in the joint and a noncompensable rating is warranted under the DC for limitation of motion. Additionally, DC 5003 provides for a 10 percent rating for application for each major joint or minor joint group. 38 C.F.R. § 4.71a, DC 5003. Arthritis must be objectively confirmed by x-ray. Id. However, such ratings based on X-ray findings will not be combined with ratings based on limitation of motion. Here, a separate rating under DC 5003 is not warranted as 10 percent rating for arthritis would contemplate limitation of range of motion. As discussed above with regard to DC 5260, the Veteran’s rating under DC 5258 contemplates symptoms that include locking and pain, which are symptoms that the Veteran has reported restricts the motion of his left knee. Accordingly, separate ratings under DC 5003 and 5258 are not warranted as they would result in the Veteran’s symptoms of pain and locking of the left knee being contemplated under both diagnostic codes. See 38 C.F.R. §§ 4.14, 4.71a, DCs 5003, 5258. Under DC 5259, removal of semilunar cartilage that is symptomatic will be assigned a 10 percent disability rating. 38 C.F.R. § 4.71a, DC 5259. The Veteran is already in receipt of a 20 percent rating under DC 5258 for symptoms relating to dislocated semilunar cartilage (i.e., locking, pain, and effusion). There is no evidence of separate knee symptoms related to removal of semilunar cartilage. Therefore, to compensate him for the above referenced symptoms, as well as removal of symptomatic semilunar cartilage under DC 5259, would constitute prohibited pyramiding. 38 C.F.R. § 4.14. Therefore, a separate rating under DC 5259 for removal of semilunar cartilage is not warranted during the appeal period. See 38 C.F.R. §§ 4.14, 4.71a, DCs 5259, 5258. In sum, the Board finds that the weight of the evidence does not support a rating in excess of 20 percent for left knee, status post arthroscopy during the period on appeal. Additionally, the weight of the evidence does not support the assignment of separate compensable ratings under DC 5260, 5261, 5003, and 5259. As the preponderance of the evidence is against higher (or separate) disability ratings, the Veteran’s claim must be denied. See 38 C.F.R. §§ 4.3; 4.71a, DCs 5258, 5003, 5259-5263. Entitlement to a disability rating in excess of 10 percent for degenerative arthritis and chondromalacia, right knee In October 2015, the Veteran filed a claim for an increase of his 10 percent rating for a right knee disability. The Veteran’s degenerative arthritis and chondromalacia, right knee is rated 10 percent disabling under hyphenated diagnostic code DC 5003-5260. 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 assigned rating; the additional code is shown after the hyphen. Here, the hyphenated diagnostic code indicates that degenerative arthritis of the right knee (DC 5003) has been rated under the criteria for limitation of knee flexion (DC 5260). See 38 C.F.R. § 4.27. Unfortunately, upon review of the evidence of record, the Board does not find that a rating in excess of 10 percent is warranted for the Veteran’s right knee disability. With regard to right knee flexion, the competent, credible evidence of record does not demonstrate limitation of right knee flexion that would warrant a rating in excess of 10 percent. The Board notes that the evidence of record does not report limitation of right knee flexion to 30 degrees or less. Moreover, the evidence does not demonstrate limitation of right knee flexion to less than 70 degrees during the appeal period, including considering additional limitations due to pain on motion, repetitive use, and during flare-ups. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran underwent examinations that tested range of motion of the right knee in December 2015, March 2017, August 2017, and February 2020. None of the examinations during the appeal period reported limitation of flexion to less than 70 degrees. Particularly, the Board finds probative the February 2020 examination that reported limitation of right knee flexion to 80 degrees after repetitive use; however, the examiner opined that additional limitation to 70 degrees would be present during flare-ups reported by the Veteran. The 2020 examiner noted the Veteran’s reports of limited bending of the knee that interferes with quality of life and causes him to be unable to squat, kneel, or bend the knee normally. The Board has considered the Veteran’s lay reports of limitation of range of motion and increased pain, as reported on his October 2016 VA Form 9. The Board also notes the Veteran’s reports of limited kneeling, bending, and walking that limits his ability to do daily activities such as dressing and playing sports; however, the Board does not find that these reports demonstrate limitation of right knee flexion to 30 degrees or less. The Veteran has not provided statements indicating where the painful motion of the right knee begins or ends. As no other competent evidence of record, including the private and VA treatment records associated with the claims file, demonstrate limitation of right knee flexion to less than 70 degrees, the Board finds that a rating in excess of 10 percent is not warranted based upon right knee limitation of flexion during the period on appeal. See 38 C.F.R. §§ 4.7, 4.45, 4.59, 4.71a, DC 5260. The Board also finds that a separate or higher rating is not warranted based upon limitation of extension of the right knee. The probative evidence does not demonstrate compensable limitation of right knee extension during the appeal period. None of the evaluations of record have demonstrated limitation of right knee extension beyond 0 degrees. Further, the Veteran has not reported limitation of right knee extension to 10 degrees or more. As discussed above, while the Veteran has reported limitation of motion of the right knee, the Veteran has not provided statements indicating where the painful motion of the right knee begins or ends. Accordingly, the Board finds that the weight of the evidence of record does not warrant a higher or separate compensable rating for limitation of extension of the right knee. See 38 C.F.R. §§ 4.7, 4.45, 4.59, 4.71a, DCs 5261. The Board has also considered higher and separate ratings under DCs 5003, DC 5258, and DC 5259; however, the Board finds that such higher or separate ratings as not warranted based upon the evidence of record. Here, a separate rating under DC 5003 is not warranted as 10 percent rating for arthritis would contemplate limitation of range of motion already contemplated by the Veteran’s rating under DC 5260; therefore, a separate rating under DC 5003 cannot be assigned without violating the rule against pyramiding. See 38 C.F.R. §§ 4.14, 4.71a, DCs 5003, 5260. Additionally, a higher rating of 20 percent is not warranted without the involvement of 2 major joint groups that results that results in incapacitating episodes. As such, a rating in excess of 10 percent is not warranted under DC 5003. Diagnostic Codes 5258 and 5259 provide for disability ratings when semilunar cartilage is dislocated and/or removed. 38 C.F.R. § 4.71a. The Board finds probative the finding of the 2020 VA examiner that the Veteran’s right knee has not resulted in surgery to the right knee or dislocation of the semilunar cartilage; as such, a higher or separate rating under DCs 5258 and 5259 is not warranted. Finally, the Board finds that a separate rating for right knee instability or recurrent subluxation is not warranted under DC 5257 during the appeal period. Recurrent subluxation and lateral instability of the knee warrants a 10, 20, or 30 percent rating if slight, moderate, or severe, respectively. 38 C.F.R. § 4.71a, DC 5257. While the Veteran has reported use of a brace for the right knee, the Board finds that the evidence of record does not support evidence of “slight” recurrent subluxation and lateral instability of the right knee. Notably, there are specific medical tests that are designed to reveal instability and laxity of the joints. These tests were administered by medical professionals in case during evaluations in December 2015, March 2017, August 2017, and February 2020. During each evaluation, the testing revealed no instability or laxity. Specifically, objective joint stability testing regarding the presence of anterior instability (Lachman test), posterior instability (posterior drawer test), medial instability, and lateral instability were all normal. Given the tests performed are generally recognized in the medical community as diagnostic for instability, the results are afforded high probative value. In addition, the testing results are given more probative weight than the Veteran’s lay statements. While the Veteran may experience a feeling that his knee may give way or is unstable, if subluxation or lateral instability were present to a slight degree, as required for a separate compensable rating, the Board would expect that this would have been identified at least once during the multiple tests that were performed. See 38 C.F.R. §§ 4.31, 4.71a, DC 5257. Instead, each examiner has stated that that the Veteran does not have instability in the right knee. The Veteran’s treatment records associated with the claims file do not report recurrent falls related to the Veteran’s right knee. Given the above, the Board ultimately finds that the preponderance of the evidence of record, lay and medical, is against a finding that the Veteran’s service-connected right knee disability manifested with recurrent subluxation or lateral instability that was at least slight in severity during this period of time. As such, a separate or higher rating under DC 5257 is not warranted for the Veteran’s right knee disability during the appeal period. See 38 C.F.R. §§ 4.3, 4.71a, DC 5257. (Continued on the next page)   In sum, the Board finds that the weight of the evidence does not support a rating in excess of 10 percent for the Veteran’s right knee disability during the period on appeal. Additionally, the weight of the evidence does not support the assignment of separate compensable ratings under DCs 5003, 5257, 5261, 5258, and 5259. As the preponderance of the evidence is against higher (or separate) disability ratings, the Veteran’s claim must be denied. See 38 C.F.R. §§ 4.3; 4.71a, DCs 5260, 5003, 5257-5263. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P.M. Johnson, 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.