Citation Nr: 21009156 Decision Date: 02/19/21 Archive Date: 02/19/21 DOCKET NO. 18-48 651 DATE: February 19, 2021 ORDER A higher rating in excess of 10 percent for osteoarthritis of the right knee is denied. A higher rating in excess of 30 percent for osteoarthritis of the left knee is denied. A separate 20 percent for right knee meniscal tear is granted. A separate 20 percent for left knee meniscal tear is granted.   FINDINGS OF FACT 1. The Veteran’s right knee osteoarthritis has been manifested by no worse than painful motion of the knee which causes functional loss, with flexion to no worse than 100 degrees, and extension to no worse than 100 degrees, to include during flares. 2. The Veteran’s left knee osteoarthritis has been manifested by no worse than favorable ankylosis in slight flexion between zero to 10 degrees. 3. The Veteran has a meniscal tear of the right knee associated with his service-connected right knee disability. 4. The Veteran has a meniscal tear of the left knee associated with his service-connected left knee disability. CONCLUSIONS OF LAW 1. The criteria for a higher rating in excess of 10 percent for osteoarthritis of the right knee are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3., 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5010, 5260. 2. The criteria for a higher rating in excess of 30 percent for osteoarthritis of the left knee are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3., 4.7, DCs 5010, 5256. 3. The criteria for a separate 20 percent rating, but no higher, for left knee meniscal tear have been met. 38 C.F.R. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.14, 4.71a, DC 5258. 4. The criteria for a separate 20 percent rating, but no higher, for right knee meniscal tear have been met. 38 C.F.R. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.14, 4.71a, DC 5258. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1975 to June 1979, from March 2003 to July 2003, from June 2007 to July 2007, and from August 2010 to September 2011. The case is on appeal from a July 2017 rating decision. In March 2020, the Veteran testified at a Board hearing. In a May 2020 decision, the Board dismissed the issue of service connection for hearing loss per the Veteran’s withdrawal request. The Board also remanded the claims for increased ratings for bilateral knee disabilities for additional development. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Increased Ratings Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Rating factors for a disability of the musculoskeletal system include functional loss due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion, weakness, excess fatigability, incoordination, pain on movement, swelling, or atrophy. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). In evaluating musculoskeletal disabilities, VA must determine whether pain could significantly limit functional ability during flare-ups, or when the joints are used repeatedly over a period of time. Id. at 206. 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). A higher rating can be based on “greater limitation of motion due to pain on use.” See DeLuca, 8 Vet. App. at 206. Any such functional loss must be “supported by adequate pathology and evidenced by the visible behavior of the claimant.” 38 C.F.R. § 4.40. Pain itself does not constitute functional loss, and painful motion does not constitute limited motion for the purposes of rating under diagnostic codes pertaining to limitation of motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Pain must affect the ability to perform normal working movements with normal excursion, strength, speed, coordination, or endurance to constitute functional loss. Id. Arthritis established by x-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, DCs 5003, 5010. Normal range of motion for the knee is to zero degrees in extension and to 140 degrees in flexion. 38 C.F.R. § 4.71, Plate II. Under DC 5256, a 30 percent disability rating is assigned for favorable ankylosis of the knee with an angle in full extension, or in slight flexion between zero to 10 degrees. A 40 percent is assigned for ankylosis in flexion between 10 and 20 degrees. A 50 percent is assigned for ankylosis in flexion between 20 and 45 degrees. A maximum 60 percent disability rating is assigned for extremely unfavorable ankylosis in flexion at an angle of 45 degrees or more. Under DC 5258, a maximum 20 percent rating is warranted for dislocation of semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint. Under DC 5260, limitation of flexion of the leg to 45 degrees warrants a 10 percent rating; limitation to 30 degrees warrants a 20 percent rating; a rating higher than 20 percent requires still more limitation of flexion. 38 C.F.R. § 4.71a. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran’s favor. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Analysis 1. A higher rating in excess of 10 percent for osteoarthritis of the right knee. The Veteran contends that a higher rating in excess of 10 percent for his right knee arthritis is warranted as the currently assigned rating does not compensate for the severity of his disability. This aspect of the Veteran’s right knee disability is evaluated under limitation of motion as set forth in DC 5260. Over the course of the appeal, the evidence shows a diagnosis of arthritis accompanied by pain on weight bearing or twisting motions the causes functional loss such as limiting the Veteran’s ability to push, pull, or going up and downstairs. See VA treatment records dated from October 2016 to September 2019; see also private treatment records from Michigan Orthopaedic & Spine Surgeons dated from August to September 2016. During a May 2017 VA examination, the VA examiner indicated that the Veteran’s range of motion (ROM) was normal. Flexion in the right knee was to 140 degrees, and extension was to zero degrees, with no pain noted during the exam. The Veteran was able to perform repetitive range of motion (ROM) testing without any additional loss of motion. The Veteran reported flare-ups described as “if the knee is going to give out,” accompanied by pain which limits his ability to ambulate, to include “doing stairs.” ROM testing was not conducted during flare-ups. However, the VA examiner acknowledged that the examination was medically consistent with the Veteran’s statements describing functional loss during flare-ups. The examiner did not find ankylosis, subluxation, or instability during the examination. As to the functional loss caused by his disability, the VA examiner noted that the Veteran has difficulty doing stairs as well as anything that requires him to back step with his right leg, and especially if he is carrying weight. Despite the fact that the Veteran’s limitation of motion did not meet the requirements for a compensable evaluation under DC 5260 (flexion limited to at least 60 degrees), in a July 2017 rating decision, the RO confirmed and continued the currently assigned 10 percent evaluation in accordance with 38 C.F.R. §§ 4.40 and 4.59 which allow at least the minimum compensable rating for the joint based on functional loss due to painful motion. Pursuant to the Board’s May 2020 remand, the Veteran was afforded another VA examination in August 2020. the examination report reflects that the Veteran’s flexion in the right knee was to 110 degrees, and extension was to zero degrees, with pain noted during the exam that causes functional loss. The examiner added that the right knee condition, which he described as pain, stiffness and weakness, causes the Veteran decreased strength and decreased active ROM which does not allow him a 100 percent use of his leg, which in turn is considered functional loss. The Veteran was able to perform repetitive ROM testing without any additional loss of motion. The Veteran reported flare-ups described as pain, stiffness and weakness precipitated by stepping backwards, using stairs and bearing weight. ROM testing was not conducted during flare-ups. However, the VA examiner again acknowledged that the examination was medically consistent with the Veteran’s statements describing functional loss during flare-ups and provided an estimate of the loss of motion during flares as follows: flexion in the right knee to 100 degrees and extension to zero degrees. As to the additional factors contributing to his disability, the VA examiner noted less movement than normal, weakened movement due to muscle injury, instability of station, disturbance of locomotion and interference with standing. The examination report does not reflect ankylosis of the right knee, subluxation, or instability during the exam. In fact, all right knee joint stability tests performed during the examination resulted normal. The Board finds the most recent August 2020 VA examination in compliance with the May 2020 Board remand directives, and sufficient for rating purposes and deciding the claims. See Sharp v. Shulkin, 29 Vet. App. 26 (2017); Correia v. McDonald, 28 Vet. App. 158 (2016). The ROM measurements in all VA examination reports do not show a compensable level of limitation of motion for the right knee. However, based on the effects of painful motion and other factors, and upon consideration of the functional loss due to painful motion as set forth in De Luca, 8 Vet. App. at 206; Burton, 25 Vet. App. at 1; and Mitchell, 25 Vet. App. at 32, at least the minimum compensable rating is warranted for the right knee. See 38 C.F.R. §§ 4.40, 4.45, 4.59. The currently assigned 10 percent ratings already compensate for this level of impairment. The August 2020 VA examiner acknowledged additional contributing factors such as less movement than normal, weakened movement due to muscle injury, instability of station, disturbance of locomotion and interference with standing. These are all considered under the currently assigned 10 percent rating pursuant to 38 C.F.R. § 4.59(f). Based on the VA examiners’ assessments of functional loss, flare-ups, and similar impairment aspects, even higher ratings are not warranted for limitation of motion as the next level measurements are not approximated even with these considerations. Notably, the report reflects that all joint stability tests for the right knee were normal, that there is no subluxation nor ankylosis. Therefore, the preponderance of the evidence is against a rating in excess of 10 percent for service-connected knee osteoarthritis based on limitation of motion. Thus, the benefit-of-the-doubt doctrine is not applicable, and a higher rating is not warranted under this aspect of the claim. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 2. A higher rating in excess of 30 percent for osteoarthritis of the left knee. While on remand status, in a September 2020 rating decision the RO increased the Veteran’s left knee disability evaluation from 10 percent to 30 percent for the entire period on appeal. The Veteran asserts that the severity of his left knee disability still warrants a higher rating in excess of the assigned 30 percent. Prior to the September 2020 rating decision, the Veteran’s left knee disability was rated under DC 5260 based on limitation of motion. Nonetheless, the Veteran’s osteoarthritis of the left knee in now evaluated under ankylosis of the knee as set forth in DC 5256. As previously noted, under that DC ratings go from 30 percent for ankylosis with favorable angle in full extension, or in slight flexion between zero to 10 degrees, to a maximum 60 percent for extremely unfavorable ankylosis, in flexion at an angle of 45 degrees or more. Accordingly, the question for the Board now is whether the Veteran’s ankylosis of the left knee warrants a higher rating in excess of 30 percent. During a June 2017 VA examination, the VA examiner noted no ankylosis of the left knee. Pursuant to the Board’s May 2020 remand, the Veteran was afforded a VA examination in August 2020. This time, the Veteran reported very similar symptoms as those reported during the June 2017 VA examination. In conclusion, the VA examiner determined that there was ankylosis of the left knee in slight flexion at 8 degrees. VA treatment records dated from October 2016 to September 2019, and private treatment records dated from August 2016 to September 2016 do not show left knee ankylosis or left knee osteoarthritis manifested by favorable ankylosis in flexion higher than 10 degrees, the required criteria for the next 40 percent rating, at any time during the pendency of the appeal. Therefore, the Board finds that the Veteran’s left knee osteoarthritis has manifested by no worse than ankylosis with favorable angle in full extension, or in flexion between zero to 10 degrees. This level of impairment corresponds to the currently assigned 30 percent under DC 5256. The Board finds the most recent August 2020 VA examination in compliance with the May 2020 Board remand directives, and sufficient for rating purposes and deciding the claims pursuant to Sharp, 29 Vet. App. at 26; and Correia, 28 Vet. App. at 158. The Board finds that the August 2020 is the most competent and credible medical evidence in regard to the severity of the Veteran’s ankylosis of the left knee. In finding the current level of severity, the examiner conducted an in person examination and interview, medical measurements and testing, considered the Veteran’s statements and symptomatology reported, his medical history and reviewed the medical evidence of record corresponding to the entire period on appeal. The foregoing represents an informed and adequate examination based on the significant facts of the case. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-03 (2008). In sum, the Board finds that the preponderance of the evidence is against the claim for a higher rating in excess of 30 percent. Accordingly, the benefit-of-the-doubt doctrine is not applicable to this aspect of the claim and a higher rating in excess of 30 percent osteoarthritis of the left knee is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 3. A separate rating for right knee meniscal tear. 4. A separate rating for left knee meniscal tear. Separate ratings may be warranted for knee conditions beyond limitation of motion when not already compensated by that rating. See 38 C.F.R. § 4.14; see also Lyles v. Shulkin, 29 Vet. App. 107 (2017). Private treatment records from Michigan Orthopaedic & Spine Surgeons reflect that the Veteran underwent an MRI in September 2016. The results revealed a right knee medial meniscus tear with a medial meniscal cyst. The Veteran reported mechanical symptoms such as clicking, popping and buckling. See September 9, 2016 and September 15, 2016 entries. VA treatment records reflect the Veteran’s complaints of knee buckling that causes additional posterior right knee pain associated to a meniscus tear. See September 24, 2019 progress notes. A September 2019 MRI of the right knee revealed high‐grade chondrosis in the femoral cartilage with increased linear signal in the posterior horn of the lateral meniscus suggestive of a vertical tear. As for the left knee, a May 2019 x-ray report revealed that the Veteran has advanced medial compartment narrowing and that the Veteran has been suggested to undergo a total left knee replacement. See September 11, 2019 orthopedic notes. During the June 2017 VA examination, the VA examiner noted a right knee meniscal tear. Further details were not included to that effect. However, during the August 2020 VA examination while on remand status, the VA examiner indicated that upon review of the Veteran’s September 2016 MRI from Beaumont Hospital, and the VA May 2019 x-rays of bilateral knees, the Veteran has bilateral knee meniscal tears which manifest by popping and frequent episodes of joint locking accompanied by pain bilaterally, and which cause interference with walking, standing, lifting, kneeling, squatting and using stairs. The VA examiner further indicated that the Veteran constantly requires assistive devices such as a wheelchair, brace and a cane. The Board finds a separate 20 percent rating is warranted under DC 5258 for medial meniscal tear bilaterally. The evidence of record indicates that the Veteran experiences pain, tenderness, “popping,” and locking of his right and left knee due to his diagnosed meniscal tears. This is supported by the August 2020 VA examiner which expressly indicated that the Veteran’s bilateral knee meniscal conditions cause frequent episodes of bilateral joint locking accompanied by pain. These symptoms are separate and distinct from the Veteran’s painful motion due to arthritis for the right knee, and left knee arthritis manifested by favorable ankylosis forming the basis of his other knee ratings. Therefore, additional 20 percent ratings under DC 5258 for the period on appeal are allowable without pyramiding. See Lyles, 29 Vet. App. at 119. This is the maximum rating for DC 5258. Other Considerations (Continued on the next page)   The Board has also considered the other DCs pertaining to the knee and leg. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles, 29 Vet. App. at 119. However, there is no indication of bilateral knee instability, impairment of the tibia or fibula, or bilateral knee genu recurvatum. Hence, DCs 5257, 5262, and 5263 are not applicable for the bilateral knee disabilities. Finally, some portions of 38 C.F.R. § 4.71a were recently amended, effective February 7, 2021. See 85 Fed. Reg. 76453 (Nov. 30, 2020 with subsequent corrections). The DCs addressed in the decision were not affected. The Board finds that the regulation change does not otherwise alter the Veteran’s case. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board William Pagan, 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.