Citation Nr: 21008393 Decision Date: 02/16/21 Archive Date: 02/16/21 DOCKET NO. 15-25 990 DATE: February 16, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for status post left knee arthroscopic surgery (“left knee surgical residuals”) is denied. FINDING OF FACT The Veteran’s left knee surgical residuals do not manifest as left knee flexion limited to 30 degrees or less. CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent for left knee surgical residuals is denied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5260. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty in the United States Army from March 1999 to December 2001. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from September 2012 rating decision issued by the Department of Veterans Affairs Regional Office. In May 2020, the Board remanded the issue of entitlement to a total disability rating based upon unemployability due to service-connected disabilities (TDIU). In a September 2020 rating decision, the RO granted entitlement to TDIU effective from June 27, 2012. As this grant covers the entire appeal period stemming from the Veteran’s claim for a higher rating for left knee surgical residuals, this issue is no longer before the Board. In May 2020, the Board also remanded the issue of entitlement to a higher rating for left knee surgical residuals for additional development. The Veteran was provided a development letter in accord with the May 2020 remand and was provided an adequate VA examination in September 2020 that responded to the Board’s remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Increased Rating— Left Knee Surgical Residuals Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. Deluca v. Brown, 8 Vet. App. 202 (1995). Functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant 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. §§ 4.10, 4.40, 4.45. The Court has held that VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss under 38 C.F.R. § 4.40, which requires VA to regard as “seriously disabled” any part of the musculoskeletal system that becomes painful on use. See DeLuca v. Brown, 8 Vet. App. 202, 206-8 (1995). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Painful motion is an important factor of joint disability, which is entitled to at least the minimum compensable rating for the joint.  38 C.F.R. § 4.59. However, the evaluation of painful motion as limited motion only applies when the limitation of motion is noncompensable under the applicable Diagnostic Code. Where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. However, subjective pain and numbness in and of itself will not establish a current disability. Consideration should be given to the impact, or lack thereof, from pain, focusing on evidence of functional limitation caused by pain. See Saunders v. Wilkie, 886 F. 3d 1356 (Fed. Cir. 2018). Musculoskeletal VA examinations, to be adequate, must address particular issues when are where that are practicable and medically possible to include active and passive motion; weight bearing and non-weight bearing; range of motion of an opposing joint; and findings as to loss of motion during flare-ups. See Correia v. McDonald, 28 Vet. App. (2016); Sharp v. Shulkin, 29 Vet. App. 26 (2017). Under Diagnostic Code 5257, a 10 percent disability rating is warranted for slight recurrent subluxation or lateral instability of the knee; a 20 percent disability rating is warranted for medical evidence showing that the recurrent subluxation or lateral instability can be characterized as moderate; and a 30 percent disability rating is warranted for recurrent subluxation or lateral instability which medical evidence discloses can be characterized as severe.  38 C.F.R. § 4.71a, Diagnostic Code 5757. Under 38 C.F.R. § 4.71a, Diagnostic Code 5258, [d]islocated semilunar cartilage, with frequent episodes of “locking,” pain, and effusion into the joint, is rated as 20 percent disabling; the 20 percent rating is the maximum rating under this Diagnostic Code. See id. Under 38 C.F.R. § 4.71a, Diagnostic Code 5259, a 10 percent rating is warranted for symptomatic removal of the semilunar cartilage. Id. Under 38 C.F.R. § 4.71a, Diagnostic Code 5260, 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. Id. Under 38 C.F.R. § 4.71a, Diagnostic Code 5261, a 10 percent rating is assigned when extension of the leg is limited to 10 degrees; a 20 percent rating is assigned when extension is limited to 15 degrees. Id. Under 38 C.F.R. § 4.71a, Diagnostic Code 5262, a malunion of the tibia and fibula of either lower extremity warrants a 20 percent rating if there is a marked knee or ankle disability. Id. In Lyles v. Shulkin, 29 Vet. App. 107 (2017), the U.S. Court of Appeals for Veterans Claims held that under 38 C.F.R. § 4.71, a separate rating may be assigned for meniscal problems under Diagnostic Codes 5258 or 5259, even when ratings are in effect under Diagnostic Codes 5257 and 5261. The normal range of motion of the knee is from zero degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. Evidence and Analysis Here, the Veteran has been assigned a 10 percent disability rating under Diagnostic Codes 5299-5260. 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 the hyphen. Unlisted disabilities requiring rating by analogy will be coded first with the numbers of the most closely related body part and 99. 38 C.F.R. § 4.27. The Veteran was assigned a 10 percent rating based on painful motion of the left knee under Diagnostic Code 5260. In September 2012, the Veteran was afforded a VA examination. A VA examiner reviewed the claims file. The Veteran reported flare-ups, curtailing her ability to traverse stairs and her ability to get out of bed. Left flexion was 110 degrees and left extension was zero degrees. There was objective evidence of pain at 50 degrees upon left flexion. There was no objective evidence of pain upon left extension. The Veteran was able to perform repetitive-use testing of at least three repetitions. Post-test left flexion was to 115 degrees and post-test extension was to zero degrees. The examiner reported functional loss or impairment of the left knee, characterized as pain on movement. Additionally, there was pain to palpation for joint line or soft tissues of the left knee. Muscle-strength testing and joint stability testing were normal at all indices. There was no evidence or history of recurrent left knee patellar subluxation or dislocation. The Veteran did not have a left meniscal condition or surgical procedure for a meniscal condition. There was evidence of scars, which were not painful, unstable, not greater than 39 square centimeters. The Board notes that the September 2012 VA examination report is not adequate in terms of range of motion findings because the examiner did not address pain on passive, active, weight-bearing and non weight-bearing. Accordingly, the range of motion findings are not adequate for evaluation purposes. In a September 2012 VA consultation, a nurse noted that the Veteran reported left knee pain without swelling. In September 2014, the Veteran was afforded a VA examination. The claims file was not available for review, but the Board finds that the physical examination findings, aside from the range of motion findings, are adequate for evaluation purposes. The Veteran endorsed flare-ups of left knee pain with prolonged walking or standing. Left flexion was to 130 degrees or greater and extension was to zero degrees. There was objective evidence of pain upon left flexion at 130 degrees; however, there was no objective evidence of pain upon left extension. The Veteran was able to perform repetitive-use testing of at least three repetitions, with no additional losses in ranges of motion. The examiner reported functional loss or impairment of the left knee, characterized as pain on movement. Muscle-strength testing and joint stability testing were normal at all indices. There was no evidence or history of recurrent left knee patellar subluxation/dislocation. The Veteran did not have a left meniscal condition or surgical procedure for a meniscal condition. There were residuals of a 2001 left knee arthroscopy, subjectively reported as chronic pain. And, there was evidence of scars, which were not painful, unstable, not greater than 39 square centimeters. Here, the examiner indicated that the Veteran’s disability impacted her ability to work. The Veteran conveyed that it was difficult to perform the duties of a personal care assistant with chronic left knee pain. The Veteran also endorsed that she had problems with mobility that impacted her ability to work. Again, the Board notes that the examiner could not provide an opinion as to additional range of motion loss during flare-ups or repeated use noting that the comments are not possible as there was no objective medical evidence to warrant such statements. Such reasoning is considered inadequate and, therefore, the range of motion findings made on examination are not adequate for evaluation purposes. 2014 VA progress notes disclose that the Veteran complained of chronic left knee pain on a multitude of occasions. Clinicians also took note of the Veteran’s left knee orthoscopy cartilage removal. In August 2019, the Veteran was afforded a VA examination. The examiner reviewed the Veteran’s electronic claims file. The examiner provided a diagnosis of status-post left knee arthroscopic surgery. The Veteran reported flare-ups which occurred every day or other day. The Veteran reported that nothing alleviated her flare-ups. Flare-ups were precipitated by walking and keeping the left knee in one position. The Veteran endorsed functional loss here, namely that she was not able to stay in one position during a flare-up. Left flexion was to 140 degrees and left extension was to zero degrees. The examiner noted that this was completely normal. While there was no objective evidence of pain or localized tenderness, there was objective evidence of crepitus. The Veteran was able to perform repetitive-use testing of at least three repetitions, with neither additional loss in ranges of motion nor any factor that causes functional loss. Thus, weakness, pain, fatigue, lack of endurance, and incoordination did not cause functional loss. Muscle-strength testing and joint stability testing were normal at all indices. There was no evidence of ankylosis. There was no evidence or history of recurrent left knee patellar subluxation/dislocation. And, there was evidence of scars, which were not painful, unstable, not greater than 39 square centimeters. As to this disability’s impact of the Veteran’s ability to perform any occupational task, the clinician noted increased pain with bending, prolonged sitting, or walking. The examiner did note that the Veteran had surgery in 2001 but did not indicate any residuals of such surgery. There was no pain on passive range of motion of the left knee. There was no evidence of pain on non-weight-bearing testing of the left knee. There was no evidence of pain on passive range of motion of the right knee. And, there was no evidence of pain on non-weight-bearing testing of the right knee. Here, the Board notes that the August 2019 VA examiner determined that there was no pain on examination and did not check the corresponding box as to whether or not there was pain on weight-bearing. Because it is unclear whether the examiner tested the knee joint on weight-bearing, the Board finds the range of motion findings inadequate for evaluation purposes. In February 2020, the Veteran was afforded an adequate VA examination. The examiner reviewed the electronic claims file and noted a diagnosis of status-post left knee arthroscopic surgery. The Veteran did not report flare-ups. As to functional impairment or loss, the Veteran endorsed that she had difficulty driving for more than 50-to-60 minutes; difficulty standing for more than 15-to-20 minutes; difficulty sitting for more than 45 minutes; difficulty getting up and down for more than 5-to-6 steps; difficulty walking for more than 20 yards; difficulty lifting more than 10 pounds; and difficulty (to the degree of avoidance) bending, squatting, and kneeling. Left flexion was to 140 degrees and extension was to zero degrees. The examiner noted that this was completely normal. There was objective evidence pain on flexion and objective evidence of crepitus. There was no objective evidence of pain with weight-bearing and no objective evidence of tenderness or pain on palpation. The Veteran was able to perform repetitive-use testing of at least three repetitions, with no additional loss in ranges of motion. The Veteran conveyed that pain caused functional loss here. Muscle-strength testing and joint stability testing were normal at all indices. There was no evidence of muscle atrophy or ankylosis. There was also no history of joint effusion. There was no history of meniscal conditions. The examiner did note the 2001 left knee arthroscopic surgical procedure. And, there was evidence of scars, which were not painful, unstable, not greater than 39 square centimeters. As to this disability’s impact of the Veteran’s ability to perform any occupational task, the examiner repeated the Veteran’s subjective endorsements of difficulty driving for more than 50-to-60 minutes; difficulty standing for more than 15-to-20 minutes; difficulty sitting for more than 45 minutes; difficulty getting up and down for more than 5-to-6 steps; difficulty walking for more than 20 yards; difficulty lifting more than 10 pounds; and difficulty (to the degree of avoidance) bending, squatting, and kneeling. Additionally, the Veteran conveyed than she missed one day every week because of left knee pain. There was evidence of pain on passive range-of-motion testing. There was no evidence of pain when the left knee is used in non-weight-bearing. The examiner could not opine whether repeated use over time limited the Veteran’s functional ability in terms of degrees. The examiner explained that the Veteran reported that her left knee pain limited functional ability – not loss of motion. Thus, the examiner stated that there was no subjective evidence of functional loss in terms of loss of motion during periods of repeated use. Based on the physical examination, review of the objective evidence, and the Veteran’s reported history and subjective complaints, the examiner reported no basis to offer additional losses of function in degrees of lost motion during periods of repeated use. The examiner did not provide an opinion regarding flare-ups as the Veteran denied them on examination. Though the examiner could not provide an opinion in terms of degrees lost during periods of repeated use, the Board finds the examination and opinion adequate as the examiner specifically explained that, in this Veteran’s case, her functional impairment during repeated use did not result in loss of range of motion. The Board notes that the case was remanded in May 2020 for an adequate VA examination, but the Board only commented as to the adequacy of the August 2019 VA examination report – not the February 2020 VA examination report. The Board finds the February 2020 VA examination adequate. In September 2020, the Veteran was provided another adequate VA examination. The examiner noted current treatment consisted of over-the-counter analgesics and topical muscle unguents. The Veteran reported flare-ups described as pain, when it rained or was cold outside. The examiner explained that the Veteran did not report functional loss or functional impairment of the left knee. Flexion was to 135 degrees and extension was to zero degrees. Pain was elicited upon flexion and upon extension; however, such pain did not cause functional loss. There was neither localized tenderness nor pain on palpation of the left knee joint line. There was no evidence of pain with weight-bearing and there was no evidence of crepitus. The Veteran was able to perform repetitive-use testing of at least three repetitions, with neither additional loss in ranges of motion nor functional losses. Muscle-strength testing and joint stability testing were normal at all indices. There was no evidence of ankylosis or recurrent subluxation. There was no history of any meniscal conditions. And, there was evidence of scars, which were not painful, unstable, not greater than 39 square centimeters. The examiner opined that the Veteran’s disability did not impact her ability to perform any type of occupational task. There was no objective evidence of pain on passive range-of-motion testing in either the left knee or the right knee. And, there was no objective evidence of pain on non-weight-bearing in either the left knee or the right knee. Concerning flare-ups, the Board notes that the Veteran reported pain. However, when the Veteran was asked whether she had any functional loss or impairment regardless of repetitive use, she responded no. Given that there was no reported accompanying functional loss or impairment, the examiner did not provide an opinion as to additional functional impairment or loss during flare-ups or periods of repeated use. The Board finds that the examination is adequate. Here, the Veteran’s left knee is rated as 10 percent disabling under Diagnostic Code 5260. To warrant a higher rating under that code, left knee flexion must be limited to 30 degrees or less. The adequate range of motion findings of record do not reflect findings of flexion limited to 30 degrees or less and a higher rating is not warranted. The evidence also does not reflect left knee extension limited to 10 degrees to warrant a separate compensable rating under Diagnostic Code 5261. Though the Board recognizes the Veteran’s reports of functional impairment, the evidence does not reflect that she would experience an additional loss of range of motion during flare-ups or periods of repeated use that would limit her flexion to 30 degrees or her extension to 10 degrees. The February 2020 VA examiner explained that while the Veteran’s functional abilities were limited during periods of repeated use, such did not result in a loss of degrees of motion. In addition, the September 2020 VA examiner noted that the Veteran did not report functional loss or impairment associated with her left knee and the Board notes that, on physical examination, the Veteran exhibited flexion to 135 degrees, just shy of normal flexion, and extension to zero degrees which is normal. Repetitive-use testing did not result in any additional loss in range of motion. Accordingly, a higher rating for flexion is not warranted and a separate compensable rating for extension is not warranted on the basis of any additional functional impairment or loss. The Veteran believes that her left knee surgical residuals are more severe than that contemplated by a 10 percent disability rating. Indeed, the Veteran is competent to report that which is discernable, such as left knee pain. However, the Veteran lacks the medical knowledge and orthopedic expertise to assess the clinical severity of left knee surgical residuals. See 38 C.F.R. § 3.159(a)(1). The Board assigns greater probative value to the adequate objective physical examination findings of record. In addition, a separate rating is not warrant for subluxation or instability under Diagnostic Code 5257. The VA examination reports show normal stability testing and no reports of subluxation. In addition, the evidence does not show dislocated semilunar cartilage of the left knee, symptomatic removal of semilunar cartilage, or malunion of the tibia and fibula. Therefore, Diagnostic Codes 5258, 5259, and 5262 are not for application. See 38 C.F.R. § 4.71a. Finally, there is no evidence that the manifestations of the Veteran’s scar would warrant a separate compensable rating under the applicable diagnostic codes. 38 C.F.R. § 4.118. Therefore, the Board finds that the weight of evidence is against granting a disability rating in excess of 10 percent for the Veteran’s left knee surgical residuals. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. JESSICA SEAY Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. J. Komins, 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.