Citation Nr: 21006593 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 10-30 091 DATE: February 4, 2021 ORDER Entitlement to a 30 percent combined (10 percent for arthritis with limitation of motion, and 20 percent for dislocated semilunar cartilage) rating prior to September 9, 2020, and a 40 percent combined (20 percent for arthritis with limitation of motion, and 20 percent for dislocated semilunar cartilage) rating from September 9, 2020 is granted for the Veteran’s left knee disability. FINDINGS OF FACT 1. Throughout prior to September 9, 2020, the Veteran’s left knee disability is shown to have been manifested by dislocated semilunar cartilage; a distinct period when the knee was unstable or there was subluxation is not shown; at no time were both compensable limitation of flexion and compensable limitation of extension; when shown, limitation of flexion was not to less than 45 degrees and limitation of extension to limited at greater than 10 degrees. 2. From September 9, 2020 the left knee is reasonably shown to be manifested by dislocated semilunar cartilage and flexion limited to 30 degrees (due to factors such as pain and use); compensable limitation of extension, lateral instability, and recurrent subluxation are not shown. CONCLUSION OF LAW The Veteran’s service-connected left knee disability warrants staged combined ratings of 30 percent (but no higher) prior to September 9, 2020 and 40 percent, (but no higher) from that date. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Codes (Codes) 5003, 5257, 5258, 5259, 5260, 5261. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from November 1966 to November 1968. This matter is before the Board on appeal from a February 2015 Department of Veterans Affairs (VA) rating decision, which continued a 10 percent rating for left knee internal derangement. In January 2018, a videoconference Board hearing was held before the undersigned; a transcript is in the record. In February 2018 and December 2019, the matter was remanded for additional development. An interim [October 2020] rating decision increased the rating to 20 percent, based on limitation of left knee flexion, effective September 9, 2020. Entitlement to staged increased ratings for a left knee disability is granted (as explained below). On January 2015 VA examination, the diagnoses included, in pertinent part, left knee ostearthritis with internal derangement. The Veteran reported that the knee bothered him a lot, on and off, with ambulation. On physical examination, left knee flexion was to 100 degrees with objective evidence of painful motion at 100 degrees, and extension was to 0 degrees with objective evidence of painful motion at 0 degrees. On repetitive use testing, flexion was to 90 degrees and extension was to 0 degrees with increased pain. Functional impairment after repetitive use included less movement than normal, weakened movement, pain on movement, and moderate varus deformity. There was pain on palpation of the left knee. Muscle strength testing for the left knee was 4/5 for flexion and extension. Joint stability testing was normal. There was no evidence or history of recurrent patellar subluxation/dislocation. The examiner noted a left meniscal tear, with no meniscectomy. The Veteran reported occasional use of neoprene knee braces and a cane if either knee became too painful. The examiner noted June 2013 MRI findings of osteoarthritis with complex medial meniscal tear, mild medial collateral ligament sprain and small cystic lesion postero-medially consistent with ganglion cyst, and opined that the knee disability did not impact his ability to work, noting that he has been retired from his job as a police officer since 1993. On August 2015 VA examination, the diagnoses included left knee arthritis and meniscal injury. The Veteran reported that the left knee was achy and painful, with cracking when he took steps, and increased pain and swelling with walking and with cold and damp weather. He took pain medication. He reported increased pain with walking. On physical examination, left knee flexion was to 90 degrees and extension was to 0 degrees. The range of motion itself contributed to functional loss with pain on movement during flexion. There was evidence of pain with weight bearing. There was tenderness on palpation at the medial knee. There was objective evidence of crepitus. On repetitive use testing, left knee flexion was to 80 degrees and extension was to 0 degrees, with additional functional loss due to pain. Muscle strength testing was 5/5 with no reduction in muscle strength and no atrophy. There was no ankylosis. There was no history of recurrent subluxation or lateral instability. The Veteran reported recurrent swelling of the knee. Joint stability testing was normal. A left knee meniscus condition with frequent episodes of joint pain was noted. He reported occasional use of knee braces and a cane. The examiner opined that the knee disability impacted on the Veteran’s ability to perform occupational tasks due to difficulty walking, noting that he retired from being a police officer in 1993 and was doing mostly desk duty. On March 2016 treatment, active range of motion of the left knee was from -10 degrees to 100 degrees with palpable crepitus. There was medial joint line and medial condyle pain, and pain over the medial and odd facet of the patella. Moderate effusion was noted. Lachman’s was negative and there was no pivotal shift. The Veteran reported that his knee buckles and gives out on uneven surfaces. At the January 2018 Board hearing, the Veteran testified that that he has arthritic pain daily, and increased pain in damp weather. He testified that he took [pain] medication and received physical therapy for his knee problems. On July 2019 VA examination, the diagnosis was left knee internal derangement. The Veteran reported daily severe flare-ups, which last all day, and are precipitated by standing, walking, bending, climbing stairs, sitting, and cold weather. He reported that his doctor suggested consideration of a knee replacement. On physical examination, left knee flexion was to 70 degrees and extension to 0 degrees. The abnormal range of motion itself contributed to a functional loss of the patellar/femoral region of the knee. Pain was noted on extension and caused functional loss. There was objective evidence of pain on passive range of motion testing. There was evidence of pain with weight bearing and in non-weight bearing and objective evidence of crepitus. There was moderate pain to palpation at the patellar/femoral region. On repetitive use testing, flexion was to 50 degrees and extension was to 0 degrees; functional loss was due to pain, fatigue, and lack of endurance. Additional factors contributing to disability included swelling and interference with sitting and standing due to fatigue, decreased range of motion, and pain. Muscle strength was 4/5 for flexion and extension. There was no muscle atrophy and no ankylosis. There was no history of recurrent subluxation or lateral instability. There was a history of recurrent effusion in the left knee, which was slightly swollen and tender to palpation. There was no meniscal condition. Joint stability testing was not performed. The Veteran reported regular use of knee braces for pain, support, instability, and swelling. The examiner opined that the knee disability impacted the Veteran’s s ability to perform occupational tasks based on his report that he could not stand or sit for prolonged periods due to knee pain, and was unable to walk for extended periods. In a January 2020 VA medical opinion based on review of the record, the consulting provider noted that the Veteran had complained of left knee pain, swelling and warmth, and MRI found a complex tear of the posterior horn of the medial meniscus with extension to the tibial and femoral articular surfaces. The provider stated that this is a positive objective evidence of a left knee meniscal condition. The provider noted that on January 2015 and August 2015 VA examinations a left knee meniscal condition was consistently diagnosed. The provider observed that while a July 2019 VA examination did not note a meniscal injury, that provider based the diagnosis only on X-ray study reports which note only degenerative changes, and explained that X-rays do not detect soft tissue tears such as meniscal tears, and MRI is the most ideal diagnostic modality to determine and validate a meniscal tear. The consulting provider opined that, left untreated, a meniscus tear hastens the onset of osteoarthritis, as found on recent X-rays of the Veteran’s left knee. The consulting provider opined that, considering the Veteran’s left knee symptoms, age, and MRI findings, it is at least as likely as not (50 percent or greater probability) that he currently has a left knee meniscal condition. On September 9, 2020 VA examination, the diagnoses included internal debridement of the left knee, osteoarthritis, medial meniscal tear, and mild medial collateral ligament sprain. The Veteran reported daily pain, which increased in the morning or with cold or rainy weather and with walking and climbing stairs. He reported that the pain was much worse during winter and in snowy weather. He reported inability to walk longer than 15 minutes or to run. On physical examination, left knee flexion was to 45 degrees and extension to 0 degrees. The range of motion itself contributed to a functional loss. Pain was noted on flexion. Moderate sharp pain was noted on palpation of the medial side of the knee. There was evidence of pain with weight bearing. but not in non-weight bearing. There was no additional loss of function or range of motion after repetitive use testing. Pain, fatigue, and weakness significantly limited functional ability with repeated use over time or flare-ups, with flexion limited to 30 degrees and extension to 0 degrees. Additional contributing factors of disability included disturbance of locomotion and interference with standing, walking, and climbing. Muscle strength testing was 5/5; there was no muscle atrophy or ankylosis. There was no history of recurrent subluxation, lateral instability, or recurrent effusion. Joint stability testing was indicated, but not performed because the Veteran was unable to get the knee to 90 degrees. A meniscal (semilunar cartilage) tear was noted. The Veteran reported regular use of a knee brace. The examiner opined that the left knee disability impacts the Veteran’s ability to perform occupational tasks, with difficulty walking and limited to 15 minutes, difficulty climbing stairs, and inability to run. Additional VA and other treatment records show symptoms similar to those noted on the examinations described above. The Veteran has also submitted lay statements attesting to the severity of his knee problems. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where there is a question as to which of two evaluations shall be applied, the higher rating 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. Reasonable doubt as to the degree of disability will be resolved in the veteran’s favor. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate (“staged”) ratings may be assigned for separate periods of time based on the facts found. Hart v. Mansfield, 21 Vet. App. 505 (2007). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from one year before the claim was filed until VA makes a final decision on the claim. When evaluating a service-connected disability based on limitation of motion, the Board must take into consideration functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see Johnson v. Brown, 9 Vet. App. 7 (1996). In DeLuca, the Court held that a diagnostic code based on limitation of motion does not subsume 38 C.F.R. §§ 4.40 and 4.45 and that the rule against pyramiding set forth in 38 C.F.R. § 3.14 does not forbid consideration of a higher rating based on a greater limitation of motion due to pain on use, including use during flare-ups. Id. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the veteran. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Knee disabilities are rated under Codes 5256 to 5263. Under Code 5260, limitation of knee flexion warrants a 30 percent rating when limited to 15 degrees, a 20 percent rating when limited to 30 degrees, a 10 percent rating when limited to 45 degrees, and a 0 percent rating when limited to 60 degrees (or lesser limitation). Under Code 5261, limitation of knee extension warrants a 30 percent rating when limited at 20 degrees, a 20 percent rating when at 15 degrees, a 10 percent rating when at 10 degrees, and a 0 percent rating when at 5 degrees (or less). Under Code 5257, a 10 percent rating is warranted for slight recurrent subluxation or lateral instability; a 20 percent rating is warranted for moderate recurrent subluxation or lateral instability; and a 30 percent rating is warranted for severe recurrent subluxation or lateral instability. Under Code 5258, a 20 percent rating is warranted for cartilage, semilunar, dislocated, with frequent episodes of “locking”, pain, and effusion into the joint. A Rating under Codes 5256, 5259, 5262, or 5263 is inappropriate in this case as the Veteran’s left knee disability does not include the pathology required in the criteria for those Codes (ankylosis, symptomatic removal of semilunar cartilage, malunion or nonunion of tibia or fibula, or genu recurvatum). 38 C.F.R. § 4.71a. On the examinations and treatment reports of record, tests for left knee instability were all normal, and subluxation was not found. Therefore, a separate rating under Code 5257 is not warranted at any time. The evidence of record clearly shows that throughout the period for consideration the Veteran is shown to have had a left knee meniscal condition (dislocated semilunar cartilage), as shown on MRI and noted on nearly every VA examination, as well as by the January 2020 VA consulting provider. He has not undergone meniscus surgery. Although frequent episodes of “locking” are not reported, pain and effusion into the joint are shown throughout on treatment, examinations, and in the Veteran’s self-reports. Therefore, a 20 percent (maximum) rating under Code 5258 is warranted throughout, to be combined with the ratings based on limitation of motion as follows. Prior to September 9, 2020, while the Veteran reported chronic knee pain and stiffness, at no time is there objective evidence of limitation of knee flexion to 30 degrees or less, so as to warrant a 20 percent rating under Code 5260 for the left knee. Likewise, at no time prior to September 9, 2020 is there evidence of knee extension limited at 15 degrees, so as to warrant a 20 percent rating under Code 5261. Furthermore, at no time prior to September 9, 2020 is it shown that flexion and extension were concurrently shown, so as to warrant an increased rating based on a combination of ratings under Codes 5260 and 5261, even with factors such as pain and use (repetitive motion) considered. The 10 percent rating assigned prior to September 9, 2020 accounts for all left knee motion limitations shown at an point in time during that period. Therefore, prior to September 9, 2020, a 30 percent combined (based on a formulation of 10 percent for arthritis with limitation of motion under Codes 5260 or 5261, and 20 percent for dislocated semilunar cartilage under Code 5258) rating is warranted. 38 C.F.R. § 4.25. Continuing the analysis, at no time from September 9. 2020 is there objective evidence of limitation of left knee flexion to 15 degrees, so as to warrant a 30 percent rating under Code 5260. From that date separately compensable limitation of extension (at 10 degrees or more) is not shown. The limitation of flexion to 30 degrees reasonably shown by examination on that date accounts for all compensable left knee motion limitations shown from that date, and warrants the assignment of a 20 percent rating under Code 5260 from that date. Therefore, from September 9, 2020, a 40 percent (but no higher), combined (20 percent under Code 5258 and 20 percent under Code 5260) rating is warranted. 38 C.F.R. § 4.25. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Schechner, 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the “Order.” If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board’s decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: • Appeal to the United States Court of Appeals for Veterans Claims (Court) • File with the Board a motion for reconsideration of this decision • File with the Board a motion to vacate this decision • File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: • Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. § 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. § 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. § 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court’s website at: http://www.uscourts.cavc.gov. The Court’s website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court’s website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. § 5904; 38 C.F.R. § 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board’s decision. See 38 C.F.R. § 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. § 5904; 38 C.F.R. § 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. § 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. § 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. § 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED