Citation Nr: 21007600 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 17-56 426 DATE: February 10, 2021 ORDER Entitlement to a rating in excess of 10 percent for limitation of extension for degenerative arthritis of the right knee is denied. Entitlement to a rating in excess of 10 percent for limitation of extension for degenerative disease, status post meniscectomy with arthrotomy, of the left knee is denied. Resolving reasonable doubt in the Veteran’s favor, a separate rating of 10 percent for slight right knee instability is granted. Resolving reasonable doubt in the Veteran’s favor, a separate rating of 10 percent for slight left knee instability is granted. A separate 10 percent rating for symptomatic removal of cartilage in the right knee is granted. A separate 10 percent rating for symptomatic removal of cartilage in the left knee is granted. FINDINGS OF FACT 1. The Veteran’s degenerative arthritis of the right knee is manifest by pain and limitation of extension to not greater than 10 degrees and subjective instability requiring use of a cane and/or brace. 2. The Veteran’s degenerative disease, status post meniscectomy with arthrotomy, of the left knee is manifest by pain and limitation of extension to not greater than 10 degrees and subjective instability requiring use of a cane and/or brace. 3. Residuals of the Veteran’s bilateral meniscectomies include frequent episodes of effusion; symptoms of locking, grinding, and popping also have been reported. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for degenerative arthritis of the right knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5003-5261. 2. The criteria for a rating in excess of 10 percent for degenerative disease, status post meniscectomy with arthrotomy, of the left knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5003-5261. 3. The criteria for a separate rating of 10 percent for slight right knee instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. 4. The criteria for a separate rating of 10 percent for slight left knee instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. 5. The criteria for a separate rating of 10 percent for symptomatic removal of cartilage in the right knee have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5259. 6. The criteria for a separate rating of 10 percent for symptomatic removal of cartilage in the left knee have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5259. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1982 to March 1988. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2019 and April 2020, the Board remanded the appeal for additional development. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900. 38 U.S.C. § 7107 (a)(2). Increased Rating 1. Entitlement to a rating in excess of 10 percent for limitation of extension for degenerative arthritis of the right knee 2. Entitlement to a rating in excess of 10 percent for limitation of extension for degenerative disease, status post meniscectomy with arthrotomy, of the left knee 3. Resolving reasonable doubt in the Veteran’s favor, a separate rating of 10 percent for slight right knee instability is granted 4. Resolving reasonable doubt in the Veteran’s favor, a separate rating of 10 percent for slight left knee instability is granted 5. A separate 10 percent rating for symptomatic removal of cartilage in the right knee is granted 6. A separate 10 percent rating for symptomatic removal of cartilage in the left knee is granted The Veteran seeks higher ratings for her left and right knee disabilities. She contends that she is entitled to a higher rating because her knee injuries include multiple conditions that are different and should be considered. She asserts that here knee arthritis has caused damaged tendons and instability in the knee joint. Alternatively, she contends that she experiences flare-ups, as shown by symptoms of knee pain, knee locking up, problems with balance, and swelling. In an October 2020 letter, the Veteran requested that her ‘appeal submitted and denied in 2009 be reopened and included in the current appeal.’ The Board observes that a November 2007 rating decision denied higher ratings for the left and right knees; however, the Veteran did not perfect an appeal following a statement of the case issued in August 2009. Hence, that rating decision became final. The current appeal stems from an August 2016 increased rating claim. The appeal period before the Board begins on August 11, 2016; the date VA received the increased rating claim, plus the one-year look-back period. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). The Veteran’s bilateral knee arthritis is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5261, for limitation of extension of the leg. Under Diagnostic Code 5261, a noncompensable rating is warranted for extension limited to 5 degrees. A 10 percent rating is warranted for extension limited to 10 degrees. A 20 percent rating is warranted for extension limited to 15 degrees. A 30 percent rating is warranted for extension limited to 20 degrees. A 40 percent rating is warranted for extension limited to 30 degrees. A 50 percent rating is warranted for extension limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. As a preliminary matter, the Board notes that although the Veteran presented for VA examinations in October 2016 and August 2019, these examinations were not fully compliant with the requirements set forth by Correia, 28 Vet. App. 158 and Sharp, 29 Vet. App. at 33. However, the reports do contain some relevant findings that are included herein. The Board notes a medical history of bilateral meniscus surgeries. In September 1985, the Veteran appeared for probable torn medial meniscus of the left knee. She underwent arthroscopic surgery with open partial medial meniscectomy. In May 2007, she appeared for a recheck of an MRI. Treatment providers noted the MRI demonstrated medial and lateral meniscus tear and an ACL insufficiency. The provider recommended knee arthroscopy and partial medial and lateral meniscectomy. In June 2007, she underwent a second arthroscope with partial medial and lateral meniscectomy. Private treatment notes dated July 2015 reflect that the Veteran sought treatment for a left knee injury. The Veteran reported that she fell down some steps. She stated that she had ongoing left ankle and knee pain. The provider assessed left knee sprain with an underlying degenerative joint disease. The Veteran underwent a VA examination in October 2016. The Veteran reported knee pain, which she described as a pulling sensation to the posterior and lateral aspects of the left knee. She reported occasional swelling and buckling, and a grinding sensation to the left knee. She reported flare ups with increased knee pain in cold temperatures. Physical examination revealed flexion to 120 degrees and extension to 0 degrees bilaterally. The examiner noted pain with flexion. There was no evidence of pain with weight bearing, or localized tenderness or pain on palpation of the joint. The Veteran was able to perform repetitive use testing with at least three repetitions without additional functional loss or range of motion. No ankylosis, recurrent subluxation, or lateral instability was noted. The examiner noted recurrent effusion. The examiner indicated no recurrent subluxation, effusion, lateral instability, shin splints, stress fractures, chronic exertional compartment syndrome or any other tibial or fibular impairment was present. Private treatment notes dated October 2017 reflect the Veteran sought treatment for bilateral knee pain. The Veteran reported bilateral knee pain. She had a mild antalgic gait, but no specific therapy towards either side was indicated. Crepitation with range of motion was noted. Physical examination revealed flexion to 120 degrees and extension limited to 10 degrees. Treatment providers assessed bilateral knee pain and bilateral knee osteoarthritis. The Veteran underwent a VA examination in August 2019. The Veteran reported worsening knee pain, popping in both knees, and grinding while squatting. She reported occasional that she could not stand for long periods of time. The Veteran denied flare-ups. Physical examination revealed flexion to 130 degrees and extension to 10 degrees bilaterally. The examiner noted pain on examination that caused functional loss. There was evidence of pain with weight bearing, and objective evidence of crepitus. The Veteran was able to perform repetitive use testing with at least three repetitions without additional functional loss or range of motion. No ankylosis, recurrent subluxation, or lateral instability was noted. The examiner noted recurrent effusion. The examiner indicated no recurrent subluxation, effusion, lateral instability, shin splints, stress fractures, chronic exertional compartment syndrome or any other tibial or fibular impairment was present. The examiner found that the Veteran had a history of a meniscus condition in both knees. She noted residual symptoms of frequent episodes of joint pain and frequent episodes of joint effusion in both knees. Frequent episodes of joint locking were not reported. The Veteran underwent a VA examination in July 2020. The Veteran reported worsening knee symptoms. She reported that could not bend down to the ground to tie shoes or pick up objects. She reported occasional intermittent swelling after prolonged standing or walking, and pain with prolonged standing. The Veteran denied flare-ups. Physical examination revealed flexion to 120 degrees and extension to 5 degrees bilaterally. The examiner noted pain, fatigue, and weakness on examination that caused functional loss. There was evidence of pain with weight bearing, and objective evidence of crepitus. The Veteran was able to perform repetitive use testing with at least three repetitions without additional functional loss or range of motion. No ankylosis, recurrent subluxation, or lateral instability was noted. The examiner noted recurrent effusion with prolonged standing. The examiner indicated no recurrent subluxation, lateral instability, shin splints, stress fractures, chronic exertional compartment syndrome or any other tibial or fibular impairment was present. The Veteran underwent a VA examination in October 2020. The Veteran reported symptoms of bilateral knee pain, locking up, problems with balance, and swelling. The Veteran denied flare-ups. Initial range of motion testing revealed flexion to 120 degrees and extension to 5 degrees bilaterally. Range of motion remained the same for passive range of motion and non-weight bearing range of motion. Range of motion on weight-bearing and repeated use over time decreased flexion to 110 degrees and extension to 10 degrees. The Veteran was able to perform repetitive use testing with at least three repetitions without additional functional loss or range of motion. No ankylosis, recurrent subluxation, or lateral instability was noted. The examiner noted recurrent effusion with prolonged standing. The examiner indicated no recurrent subluxation, effusion, lateral instability, shin splints, stress fractures, chronic exertional compartment syndrome or any other tibial or fibular impairment was present. The examiner found that the Veteran had a history of a meniscus condition in both knees. She noted residual symptoms of frequent episodes of joint pain and frequent episodes of joint effusion in both knees. Frequent episodes of joint locking were not reported. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for limitation of extension in the left and right knee. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain, weakened movement, swelling, and problems with balance. In her October 2020 letter, the Veteran contended that these symptoms constitute flare-ups. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of limitation reflected by the statements would not result in limitation of motion more nearly approximating extension limited to 15 degrees. Moreover, her assertion of flare-ups is not credible because of its inconsistency with other evidence of record. While the Veteran reported flare-ups at her October 2016 VA examination, she subsequently denied flare-ups at VA examinations in August 2019, July 2020, and October 2020. For a rating in excess of 10 percent under Diagnostic Code 5261, the Veteran must show extension is limited to 15 degrees or more. Neither private nor VA medical evidence indicates that the Veteran experiences limitation of extension sufficient to warrant a rating in excess of 10 percent. The Board has also considered the other Diagnostic Codes pertaining to the knee and leg. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). A higher or separate rating under Diagnostic Code 5260 is not warranted as the evidence of record does not reflect compensable limitation of flexion. The Veteran is in receipt of a compensable evaluation for limitation of extension; an evaluation under Diagnostic Codes 5003 or 5010 for noncompensable limitation of motion and satisfactory evidence of painful motion is not warranted. 38 C.F.R. § 4.59. A higher or separate rating is not available under Diagnostic Codes 5256, 5262, 5263 as the evidence of record indicates the Veteran does not have ankylosis of the knee, impairment of the tibia and fibula, or genu recurvatum. However, the Board finds a sufficient basis to award a 10 percent rating under Diagnostic Code 5257 for instability. This rating is assigned due to the Veteran’s subjective reports of instability related to her bilateral knee arthritis. See October 2017 treatment notes and October 2020 letter. This evidence supports the assignment of a compensable rating for instability. See English v. Wilkie, 30 Vet. App. 347 (2018). A higher rating is not warranted as objective medical evidence, which is probative, fails to establish clinical findings of recurrent subluxation or lateral instability on examination. See, e.g., July 2020 and October 2020 VA examination reports. When semilunar cartilage is dislocated with frequent episodes of locking, pain and effusion into the joint, a 20 percent rating is assigned. 38 C.F.R. § 4.71a, Diagnostic Code 5258. When semilunar cartilage has been removed but remains symptomatic, a 10 percent rating is assigned. 38 C.F.R. § 4.71a, Diagnostic Code 5259. The Court held that evaluation of a knee disability under Diagnostic Codes 5257 or 5261 or both does not, as a matter of law, preclude a separate evaluation of a meniscal disability of the same knee under diagnostic codes 5258 or 5259, and vice versa. Lyles v. Shulkin, 29 Vet. App. 107 (2017). The Court further held that entitlement to a separate evaluation in a given case depends on whether the manifestations of disability for which a separate evaluation is being sought have already been compensated by an assigned evaluation under a different diagnostic code. Id. The available record shows that the Veteran underwent bilateral orthopedic meniscal surgeries to repair meniscal tears in the left and right knees. Operative notes from September 1985 and June 2007 reveal partial medial lateral meniscectomy bilaterally. The August 2019 and October 2020 VA examination reports show the Veteran had residual joint pain and effusion status post meniscotomy for the left and right knees. The VA examiners noted a history of arthroscopic knee surgery bilaterally, which is confirmed by private surgical notes in the file. They found the Veteran continued to experience frequent episodes of joint pain and joint effusion, but not joint locking, related to residuals from her history of meniscus conditions bilaterally. A separate 10 percent rating under Diagnostic Code 5259 is warranted for each knee. There are only two requirements for a compensable rating under Diagnostic Code 5259. First, the semilunar cartilage or meniscus must have been removed. Second, it must be symptomatic. Both requirements are met in this case. Some of the residual meniscectomy symptoms- pain and limitation of motion - are contemplated in the ratings currently assigned under Diagnostic Code 5261. Indeed, the record shows that the Veteran’s degenerative arthritis disability is manifested by findings and symptoms which include pain and limitation of motion. As the pain and limited motion attributed to the arthroscopic procedure overlap with the symptomatology upon which the ratings under Diagnostic Code 5261 have been based, assigning a separate compensable rating under Diagnostic Code 5259 for these specific symptoms would constitute pyramiding prohibited by 38 C.F.R. § 4.14. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). However, the August 2019 and July 2020 examiners also noted some crepitus; and the August 2019 and October 2020 examiners indicated the meniscectomy residuals include frequent joint effusion. The Veteran has also reported some locking, popping, and grinding sensations. As such, there is evidence of symptomatic removal of semilunar cartilage with symptoms not already considered by the previously assigned rating due to pain and limitation of motion (extension). A separate 10 percent evaluation under Diagnostic Code 5259 is therefore warranted. A separate 20 percent rating under Diagnostic Code 5258 for semilunar cartilage is not warranted. The examiners have determined that the Veteran experienced frequent episodes of joint pain and joint effusion, but not frequent episodes joint locking, related to the bilateral meniscectomy residuals. The Veteran too has not reported episodes of frequent locking into her knee joints. In conclusion, the preponderance of the evidence is against assigning ratings in excess of 10 percent for limitation of extension in either the left or right knees. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. Separate 10 percent ratings for left and right knee instability under Diagnostic Code 5257 and under Diagnostic Code 5259 for symptomatic semilunar cartilage are warranted. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Lauritzen, 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.