Citation Nr: 21009756 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 16-21 000 DATE: February 23, 2021 ORDER A rating higher than 20 percent for left knee degenerative arthritis, status post-surgery for aneurysmal bone cyst of the left fibula, is denied. A separate 10 percent rating for left leg hypesthesia is granted. FINDINGS OF FACT 1. The Veteran’s left knee degenerative arthritis, status post-surgery for aneurysmal bone cyst of the left fibula, is manifested by full knee extension, at least 100 degrees of knee flexion, and normal ankle motion. 2. The Veteran’s left knee degenerative arthritis, status post-surgery for aneurysmal bone cyst of the left fibula, results in hypesthesia manifested by mild incomplete paralysis of the common peroneal nerve. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 20 percent for left knee degenerative arthritis, status post-surgery for aneurysmal bone cyst of the left fibula, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5262 (2020), DC 5262 (2021). 2. The criteria for a separate 10 percent disability rating for left leg hypesthesia associated with left knee degenerative arthritis, status post-surgery for aneurysmal bone cyst of the left fibula, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8521. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the U.S. Army from June 1986 to May 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2012 rating decision. The Veteran testified before the undersigned at a Board hearing in June 2019. The matter was remanded that same month for additional development. Notably, in June 2019, the Board also granted service connection for left knee degenerative arthritis. That disability was subsequently incorporated into the Veteran’s existing rating for his left fibula disability. The rating assigned for this combined disability remains on appeal. Increased Ratings 1. Left knee degenerative arthritis, status post-surgery for aneurysmal bone cyst of the left fibula The Veteran is currently assigned a 20 percent rating for this disability under 38 C.F.R. § 4.71a, DC 5003-5262. 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 evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Effective February 7, 2021, the rating criteria for musculoskeletal disabilities were amended. See 85 Fed. Reg. 76,453 (November 30, 2020). Prior to that date, under DC 5262, a 10 percent rating is warranted for malunion of tibia and fibula with slight knee or ankle disability. A 20 percent rating is warranted for malunion of the tibia and fibula with moderate knee or ankle disability. A 30 percent rating is warranted for malunion of the tibia and fibula with marked knee or ankle disability. A 40 percent rating is warranted for nonunion of the tibia and fibula with loose motion requiring a brace. 38 C.F.R. § 4.71a, DC 5262. According to MERRIAM WEBSTER’S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), “slight” means small in amount. “Moderate” means limited in scope or effect. “Marked” means having a distinctive or emphasized character. 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). 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). The Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for the Veteran’s left fibular disability. Regarding knee symptomatology, the Veteran had VA examinations in May 2012, December 2019 and August 2020. At worst, knee flexion was 100 degrees and extension was 0 degrees (i.e., full extension), even when accounting for painful motion, repetitive testing, and flareups. Normal range of motion of the knee is 0 degrees extension to 140 degrees of flexion. See 38 C.F.R. § 4.71a, Plate II. A compensable rating for limited flexion under DC 5260 applies when flexion is 45 degrees or less. A compensable rating for limited extension under DC 5261 applies when extension is 10 degrees or less. The examinations also documented normal stability in the knee, with no history of recurrent subluxation or recurrent instability. A compensable rating for instability under DC 5257 requires at least “slight” level of impairment. The Veteran had an ankle examination in May 2012. He had full range of motion (45 degrees of plantar flexion and 20 degrees of dorsiflexion) with no pain. Strength was normal and no laxity was present. The examiner stated that there was no objective evidence of a left ankle abnormality. A compensable rating under DC 5271 for limitation of motion of the ankle requires at least a “moderate” level of limitation. Collectively, this evidence does not show that the Veteran’s left fibula disability results in a “marked” knee or ankle disability, based on the manifestations of the condition, specifically range of motion and stability, as when viewed against the comparative DCs for the knee and ankle. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to symptoms such as pain. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by his statements would not result in symptoms more nearly approximating malunion of the tibia or fibula with marked knee or ankle disability. That is, his reports of pain are adequately contemplated by the assigned 20 percent rating. The Board has also considered the other DCs 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). However, the Veteran has not been diagnosed with any ankylosis, genu recurvatum or a disability related to the semilunar cartilage of the knee. Therefore, ratings under DCs 5258, 5259, 5263, and 5271 are not warranted. As noted above, effective February 7, 2021, the rating criteria for knee disabilities were amended. The criteria for DC 5262 now include ratings specific to diagnoses of medial tibial stress syndrome (MTSS) or shin splints, which the Veteran does not have. Otherwise malunion of the tibia and fibula are evaluated under DCs 5256, 5257, 5260, or 5261 for the knee, or 5270 and 5271 for the ankle, whichever results in the highest evaluation. DC 5256 and 5270 address ankylosis of the knee and ankle, respectively. Neither condition has been shown in this case. DC 5257 was amended to address instability due to knee sprains, ligament tears, or diagnoses involving the patellofemoral complex (the quadriceps tendon, patella, and patellar tendon). This is also not applicable to the Veteran’s case, as his diagnoses are limited to degenerative joint disease of the knee and the residuals of his left fibula bone cyst. DC 5271 was amended to define moderate limitation of motion as less than 15 degrees of dorsiflexion or less than 30 degrees of plantar flexion. For the reasons outlined above, a higher rating under this code, or DCs 5260 or 5261, are not warranted. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 20 percent for left knee degenerative arthritis, status post-surgery for aneurysmal bone cyst of the left fibula. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Left leg hypesthesia The Veteran also contends that his service-connected left knee and fibula disability includes neurological manifestations, described over the course of the appeal period as numbness, tingling, twitching and burning. Notably, the Veteran’s treating VA orthopedic surgeon diagnosed left leg hypesthesia in the peroneal nerve distribution in March 2013, and specifically stated that these symptoms were all sequelae of his aneurysmal bone cyst. In additional VA records from January 2020, a nurse practitioner also stated that these symptoms were associated with the Veteran’s left fibular head cyst. Therefore, the Board finds that a separate rating is warranted to address these symptoms. As part of a follow-up to his December 2019 VA examination, the Veteran underwent an electromyography (EMG) study in March 2020. The examiner stated that the peroneal nerve was the pertinent nerve given the location of the Veteran’s prior fibular surgeries. Although the EMG was negative for any damage to the peroneal nerve, the Board nonetheless finds that a separate rating is warranted in light of the above-listed opinions. Paralysis of the common peroneal nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, DC 8521. Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Severe incomplete paralysis is rated as 30 percent disabling. Complete paralysis of the nerve, rated as 40 percent disabling, involves foot drop and a slight droop of all the first phalanges of all the toes; an inability to dorsiflex the foot, lost foot abduction, and other factors. 38 C.F.R. § 4.124a. The words “mild,” “moderate,” and “severe” as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. Regarding impairment of motor functions, motor strength in the leg was measured at 5/5 (normal) during the Veteran’s various VA examinations, as well as in March 2013 when his hypesthesia was diagnosed. Regarding atrophy, the March 2013 orthopedic surgeon stated that there was a 1.25 cm. difference between the left calf and the right calf. A March 2020 VA examiner noted a 0.25 inch difference and stated that this was not clinically significant. Regarding sensory disturbance, the Veteran reported symptoms of numbness and tingling throughout the appeal period. However, the December 2019 VA examiner stated that there was no loss of sensation in the left leg, and the March 2020 EMG was essentially negative. Regarding loss of reflexes, the March 2013 orthopedic surgeon noted a normal Achilles reflex, and additional records in March 2014 documented normal patellar reflexes. Based on the above, the Board finds that the Veteran’s hypesthesia is primarily manifested by subjective but credible symptoms of pain, numbness and tingling. The Board also finds that the most probative evidence of record is against a finding that the disability is manifest by documented motor impairment, objective loss of sensation, diminished reflexes or trophic changes. The Board thus finds that the level of impairment is most analogous to mild incomplete paralysis, which warrants a 10 percent rating. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Shamil Patel, 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.