Citation Nr: 21006889 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 14-43 721 DATE: February 5, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for internal derangement of the left knee with degenerative changes is denied. Entitlement to a separate disability rating of 10 percent for instability of the left knee is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. The Veteran’s flexion of his left knee is not limited to at least 30 degrees. 2. The Veteran’s left knee disability is manifested by slight lateral instability. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for internal derangement of the left knee with degenerative changes manifested by limitation of flexion are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5260. 2. The criteria for a separate 10 percent rating for lateral instability of the left knee are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from October 1959 to October 1962. This appeal comes to the Board of Veterans’ Appeals (Board) from a Department of Veterans Affairs (VA) August 2012 rating decision of the Agency of Original Jurisdiction (AOJ). The Veteran appeared before the undersigned Veterans Law Judge at a May 2019 Board hearing. A transcript of that hearing has been reviewed by the Board, and has been associated with the claims file. In February 2020, the Board remanded the case to the AOJ for additional development. A Board remand confers upon the appellant the right to compliance with that order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Substantial compliance, rather than strict compliance, is required. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). After a review of the evidence added to the record in the time since the February 2020 remand, the Board finds that the AOJ conducted additional development as directed, and that there has been substantial compliance with the Board’s remand directives. 1. Entitlement to a disability rating in excess of 10 percent for internal derangement of the left knee with degenerative changes The Veteran claims that his left knee service-connected condition, diagnosed as internal derangement with degenerative changes, has worsened and warrants an increased disability rating. The Veteran’s current left knee disability is currently rated under 38 C.F.R. § 4.71a, DCs 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 rating assigned. The additional code is shown after a hyphen. 38 C.F.R. § 4.27. Disability evaluations are determined by comparing a veteran’s present symptomatology with criteria set forth in the VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § § 4.3. The Veteran’s entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). In deciding the Veteran’s higher rating claims, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 22 Vet. App. 505 (2007), and whether the Veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § § 4.25. However, the evaluation of the same “disability” or the same “manifestations” under various diagnoses is not allowed. See 38 C.F.R. § § 4.14. A claimant may not be compensated twice for the same symptomatology as “such a result would overcompensate the claimant for the actual impairment of his earning capacity.” Brady v. Brown, 4 Vet. App. 203, 206 (1993) (interpreting 38 U.S.C. § 1155). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § § 4.14. However, if a veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes. See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The United States Court of Appeals for Veterans Claims (Court) clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). The Board notes that the intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually 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 Court previously indicated that the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, should only be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). However, the Court later suggested that the plain language of 38 C.F.R. § 4.59 indicates that it is potentially applicable to the evaluation of musculoskeletal disabilities involving joint or periarticular pathology that are painful, whether or not evaluated under a diagnostic code predicated on range of motion measurements. Correia v. McDonald, 28 Vet. App. 158 (2016); Southall-Norman v McDonald, 28 Vet. App. 346 (2016). In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court noted that the VA Clinician’s Guide instructs examiners when evaluating certain musculoskeletal conditions to obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from a veteran. The Board notes that the most recent VA examination was adequate per Correia and Sharp, both supra. The guidance set forth in these cases was considered on examinations. DC 5003 states that degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate DCs for the specific joint or joints involved. 38 C.F.R. § 4.71a, DC 5003. When, however, the limitation of motion is noncompensable under the appropriate DCs, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, x-ray evidence of arthritis involving two or more major joints or two or more minor joint groups, will warrant a rating of 10 percent; in the absence of limitation of motion, x-ray evidence of arthritis involving two or more major joint groups with occasional incapacitating exacerbations will warrant a 20 percent rating. The above ratings are to be combined, not added under DC 5003. 38 C.F.R. § 4.71a, DC 5003, Note 1. Under DC 5260: (a) a 10 percent rating is warranted for flexion of the leg limited to 45 degrees; (b) a 20 percent rating is warranted for flexion of the leg limited to 30 degrees; and (c) a 30 percent rating is warranted for flexion of the leg limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. Separate compensable ratings may also be awarded if the knee is ankylosed, has recurrent subluxation or lateral instability, has limitation of extension, has an impairment of the tibia and fibula, or has genu recurvatum. 38 C.F.R. § 4.71a, DCs 5256, 5257, 5261, 5262, 5263. DC 5261 assigns disability ratings for the limitation of extension of the leg. DCs 5258 and 5259 both relate to injuries, damage, or disease to cartilage of the knee. Under DC 5259, a 10 percent disability rating is warranted for symptomatic removal of the semilunar cartilage. Under DC 5258, a 20 percent disability rating is warranted when there is dislocation of the semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. In August 2012 the Veteran was seen for a VA examination to determine the severity of his left knee disability. At the time, the diagnosed condition was a left knee strain. The examiner found no limitation to the range of motion of either the right or left knee. After repetitive motion testing, there was still no limitation to the range of motion of the Veteran’s knees. However, the examiner did not that there was pain on palpation of the left knee. The Veteran did not report, nor did the examiner find, any meniscal conditions, evidence of instability, subluxation, or other conditions in either the Veteran’s left or right knee. The Board notes that in his September 2012 Notice of Disagreement the Veteran stated that he “felt” that the examiner did not evaluate the range of motion of his knee. The Veteran provided no additional evidence to corroborate his allegation. In July 2020, the Veteran was seen for a VA examination pursuant to the February 2020 Board remand directives. The examiner found no conditions or limitation of motion in the Veteran’s right knee, and diagnosed internal derangement with degenerative changes in the left knee. The Veteran reported to the examiner that his left knee pain was now “constant,” and he experienced “stiffness.” The Veteran denied flare-ups in his left knee, a statement that was corroborated by the examiner. However, the examiner did note that the Veteran experienced additional pain after prolonged use of his left knee, though he elaborated that it did not meet the definition of a flare-up. The Veteran’s left knee flexion was limited to 90 degrees, but after repetitive motion testing the flexion was limited to 45 degrees. Extension was to 0 degrees. There was objective evidence of pain on palpation. The examiner found that there was no instability, subluxation, or recurrent effusion. There was no evidence of meniscal conditions. Overall, the examiner found that the Veteran’s left knee made it difficult for the Veteran to “walk or stand for long periods.” Under DC 5260, a 10 percent rating when flexion is limited to 45 degrees. As the objective medical evidence shows that the flexion of the Veteran’s left knee is limited to 40 degrees, a 10 percent disability rating is warranted. A higher 20 percent rating is not warranted as the flexion of his left knee is not limited to 30 degrees. As there is no ankylosis of his left knee, a rating under DC 5256 is not warranted. Diagnostic codes 5258 and 5259 are not applicable as there are no meniscal conditions in the Veteran’s left knee. There is no limitation to the extension of the Veteran’s left knee, and therefore DC 5261 does not apply. As noted above, the most recent VA examination complies with both Correia and Sharp, as the Veteran’s right knee was examined and the effects of flare-ups, or the lack thereof, was addressed by the examiner. Based on the above, the Board finds that a rating in excess of 10 percent for the Veteran’s left knee disability, diagnosed as internal derangement with degenerative changes, is not warranted. The Veteran’s claim is denied. As the preponderance of the evidence is against the Veteran’s claim, the benefit of the doubt doctrine does not apply. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). 2. Entitlement to a separate disability rating of 10 percent for instability of the left knee The evidence currently of record indicates that the Veteran’s symptoms include instability of the left knee. Lateral instability of the knee is rated under DC 5257. In accordance with DC 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. A 30 percent rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, DC 5257. Objective medical evidence is not required to establish lateral knee instability under DC 5257, so objective medical evidence cannot be categorically found more probative than lay evidence with respect to this diagnostic code. English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). A December 2012 medical treatment note shows that the Veteran was using an assistive device, in this case a brace, for his left knee condition. At his May 2019 Board hearing, the Veteran alleged that the knee brace was “due to instability” in his left knee. There is no diagnosis of left knee instability in the Veteran’s medical records. At his July 2020 VA examination, the examiner noted that the Veteran’s claims of his knee “giving out” were “credible,” but that “obvious instability” was not found. However, as noted above, per English the absence of objective medical evidence is not fatal to the finding of knee instability since credible lay evidence can be used to establish knee instability. As the July 2020 examiner noted, the Veteran’s lay statements regarding his left knee “giving out” were “credible.” This is further supported by the Veteran’s own statements at his May 2019 Board hearing, and his regular use of a knee brace. In sum, the Board finds that the Veteran is entitled to a separate rating under DC 5257 for instability of the left knee. The evidence of record establishes that the Veteran experienced slight instability of his left knee. Therefore, a 10 percent rating under DC 5257 is warranted. A rating in excess of 10 percent under DC 5257 is not warranted as overall the lay and medical evidence does not show that the Veteran experiences moderate recurrent subluxation or lateral instability in his left knee. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Neville, 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.