Citation Nr: 21009924 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 18-05 434 DATE: February 23, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for residuals, status post left knee medial meniscectomy is denied. FINDING OF FACT Throughout the increased rating period on appeal, the Veteran’s left knee disability has been productive of, at worst, flexion limited to 35 degrees with pain, during flare-ups, and following repetitive use, but is not productive of flexion limited to 30 degrees or extension of the leg limited to 15 degrees, even taking pain or additional limitation during flare-ups or following repetitive use into consideration; there is no subluxation or lateral instability. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for a service-connected left knee disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § §§ 3.159, Part 4, §§ 4.1, 4.2, 4.3, 4.7, 4.45, 4.59, 4.71a, Diagnostic Codes 5260, 5261. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from June 1980 to June 1983 and from February 2003 to September 2004. This matter comes before the Board of Veterans’ Appeals (BVA or Board) from an July 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony at a February 2020 hearing before the undersigned Acting Veterans Law Judge. A transcript of the hearing is associated with the claims folder. In July 2020, the Board remanded the issue on appeal to the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). As the actions specified in the remand have been completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). Increased Rating Disability ratings are determined by the application of rating criteria as set forth in VA’s Schedule for Rating Disabilities (38 C.F.R. Part 4) and based on the average impairment of earning capacity, with separate diagnostic codes (DCs) identifying the various disabilities. 38 U.S.C. § 1155. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7; see also 38 C.F.R. § 4.21. See 38 C.F.R. §§ 4.1, 4.2, 4.10. Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not “duplicative of or overlapping with the symptomatology” of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Staged ratings are appropriate for an initial or increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that warrant different ratings. Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Evaluating musculoskeletal disabilities based on limitation of motion, requires consideration of functional loss caused by pain or other factors listed in 38 C.F.R. § 4.40 that can occur during flare-ups or after repeated use, and so, may not be reflected on range-of-motion testing. Nonetheless, even when the factors listed in §§ 4.40 or 4.45 are relevant, 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 section 4.40 or section 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016). 38 C.F.R. § 4.45 requires consideration also be given to motion that is less or more than normal, weakened, and painful as well as excess fatigability and incoordination. 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). Also, section 4.59 requires consideration of 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.” Correia v. McDonald, 28 Vet. App. 158 (2016). Consideration should also be given to the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flare-ups, including based on information from the veteran when a flare-up is not observable on examination. Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Veteran’s left knee disability has been rated under the provisions of Diagnostic Code 5260. 38 C.F.R. § 4.71a. Diagnostic Code 5010 concerns post-traumatic arthritis; it requires establishment by x-ray evidence. Diagnostic Code 5010 is to be rated the same as Diagnostic Code 5003. Under Diagnostic Code 5003, degenerative or traumatic arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. However, in the absence of limitation of motion, the disability is to be rated as 10 percent disabling with x-ray evidence of involvement of two or more major joints or two or more minor joint groups; and as 20 percent disabling with x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a. Normal range of knee motion is extension to 0 degrees and flexion to 140 degrees. 38 C.F.R. § 4.71, Plate II. Under Diagnostic Code 5260, pertaining to limitation of leg flexion, a noncompensable evaluation is assigned where flexion is limited to 60 degrees. A 10 percent rating is warranted where flexion is limited to 45 degrees. A 20 percent evaluation is for application where flexion is limited to 30 degrees. Finally, a 30 percent rating applies where flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5261, pertaining to limitation of leg extension, a noncompensable evaluation is assigned where extension is limited to 5 degrees. A 10 percent rating is warranted where extension is limited to 10 degrees. A 20 percent evaluation is for application where extension is limited to 15 degrees. A 30 percent rating applies where extension is limited to 20 degrees. A 40 percent rating is warranted where extension is limited to 30 degrees. Finally, a 50 percent evaluation is warranted where extension is limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Under Diagnostic Code 5257, a 10 percent rating is warranted for a sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation, or a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. A 20 percent rating is warranted for an unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation, or a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: A brace, cane, or walker. Lastly, a 30 percent rating is warranted for an unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation, or a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. 38 C.F.R. § 4.71a, Diagnostic Code 5257, effective February 7, 2021. The Veteran did not exhibit instability of his bilateral knees and although he has reported subluxation, it has not been objectively demonstrated. Therefore, this diagnostic code is not relevant for the appeal. Under Diagnostic Code 5258, dislocated semilunar cartilage, with frequent episodes of locking, pain, and effusion into the knee joint, warrants a 20 percent rating. Diagnostic Code 5259 warrants a 10 percent rating for cartilage, semilunar, removal of, symptomatic. Id. In June 2016, the Veteran underwent a VA examination. The Veteran was diagnosed with degenerative arthritis of his left knee and residuals, status post medial meniscectomy. He reported constant left knee pain located at the superior, lateral, and medial aspects of the left knee with intermittent flares manifested by “strong pain.” He had difficulty moving his left knee. He had difficulty standing for more than 30 minutes without sitting down and extending his left leg. Left knee range of motion testing measured 0 degrees to 100 degrees. Pain was noted on the examination, which caused functional loss. There was objective evidence of pain with weight bearing. There was objective evidence of palpable tenderness of the lateral, medial, and anterior left knee. He was able to perform repetitive testing; however, there was additional loss of range of motion that measured 0 degrees to 90 degrees. The examination was not being conducted during a flare-up. Muscle strength was normal. He did not have muscle atrophy, ankylosis, or joint instability. A history of slight left lateral instability was noted: however, all joint stability tests were normal. He did not have a history of recurrent effusions. He had a left knee meniscal tear that caused intermittent joint pain, weakness of the left knee, and decreased range of motion. The Veteran underwent surgery to repair the meniscal tear in 1997. Although scars were noted, they were not measurable as they were well healed, very faint, and barely perceptible. There was no pain to the scar area. The Veteran regularly used a brace and constantly used a cane. A May 2014 image study showed mild degenerative arthritic changes throughout the left knee patella. A January 2016 image study noted mild tricompartmental chondromalacia and no meniscal tear. The VA examiner noted that the functional impact included difficulty kneeling, squatting, climbing, or with prolonged standing or walking. A June 2019 private treatment note indicated that the Veteran had bilateral knee pain, right greater than left. During his February 2020 hearing, the Veteran reported that his service-connected residuals, status post left knee medial meniscectomy worsened in severity since he was last examined by the VA in 2016. He described using a knee brace and cane and symptoms of problems with his balance and bending his knee, falling, his knee giving way, and problems with walking up stairs. In September 2020, the Veteran was afforded a VA examination. The Veteran was diagnosed with degenerative arthritis of his left knee, status post medial meniscectomy and residuals, status post medial meniscectomy. He reported intermittent left knee pain, tightness, and stiffness. The Veteran stated that bending and twisting his left knee increased left knee pain. He reported a swelling sensation, although his left knee did not actually become swollen. His pain was intense, sharp, and achy, but did not radiate. The Veteran noted that his gait and balance were disturbed. He used a cane to ambulate. He reported occasional episodes of his left knee giving out. He treated his left knee with ice, prescription medications for back pain, and topical cream. He reported left knee pain flare-ups when climbing stairs or getting out of his car. He noted that extension of the left knee was negatively impacted with flares. Left knee range of motion testing measured 0 degrees to 130 degrees. Pain was noted on the examination, which caused functional loss. There was no objective evidence of crepitus or pain with weight bearing. There was objective evidence of palpable tenderness of the lateral, medial, and anterior left patella. He was able to perform repetitive testing; however, there was additional loss of range of motion that measured 0 degrees to 110 degrees. The examination was not being conducted during a flare-up; however, the examiner was able to describe range of motion during a flare-up which measured 0 degrees to 100 degrees. Muscle strength measured 4/5. A 4/5 rating indicates that the Veteran experiences active movement against some resistance. He did not have muscle atrophy, ankylosis, or joint instability. Notably, all joint stability tests were normal. He did not have recurrent patellar dislocation. He had a left knee meniscal tear that caused intermittent joint pain, weakness of the left knee, and decreased range of motion. The Veteran underwent surgery to repair the meniscal tear in 1997. There were no visible scars. The Veteran regularly used a brace. A May 2014 image study showed mild degenerative arthritic changes throughout the left knee patella. A January 2016 image study noted mild tricompartmental chondromalacia and no meniscal tear. The VA examiner noted that the functional impact included decreased left knee flexion and muscle weakness. Sitting for prolonged periods increased left knee pain and caused impaired gait. The examiner noted that the Veteran’s diagnoses had changed and was now degenerative arthritis of the left knee. The new diagnosis is a progression of the previous diagnosis. A September 2020 image study revealed no evidence for fracture or other significant bone or soft tissue abnormality. There was no significant radiographic evidence of arthritis. The impression was a negative for the left knee. Also, there was definitive evidence of medial meniscectomy. A December 2020 VA treatment note indicated that the Veteran was complaining of chronic bilateral knee pain. In December 2020, the Veteran was afforded another VA examination. The Veteran was diagnosed with degenerative arthritis of his bilateral knees and residuals, status post medial meniscectomy. He reported intermittent, throbbing bilateral pain. He attributed his right knee pain to his left knee condition. The Veteran stated that he was unable to stand, sit, or walk for prolonged periods of time. Also, he was unable to bend or lift heavy objects. He reported episodes of his left knee giving out and that he fell. He treated his left knee with an ice compress, prescription medications, and with a knee brace. He did not report flare-ups. Left knee range of motion testing measured 5 degrees to 40 degrees. Pain was noted on the examination, which caused functional loss. There was no objective evidence of crepitus, yet there was pain with weight bearing. He was able to perform repetitive testing with no additional functional loss or decrease in range of motion. The examiner was able to describe repetitive use over time in terms of range of motion that measured 5 degrees to 35 degrees. Muscle strength measured 4/5. He did not have muscle atrophy, ankylosis, or joint instability. Notably, all joint stability tests were normal. He did not have recurrent patellar dislocation. He had a left knee meniscal tear and underwent arthroscopic meniscal repair in September 1997. There was no incisional scar to measure as the surgery was arthroscopic. The incisional areas were no longer visible. The Veteran regularly used a brace and cane. A May 2014 image study showed mild degenerative arthritic changes throughout the left knee patella. The VA examiner noted that the functional impact included his left knee giving out, an inability to bend and lift heavy objects, and an inability to stand, sit, or walk for prolonged periods of time. A February 2021 image study revealed no evidence for fracture or other significant bone or soft tissue abnormality. There was no significant radiographic evidence of arthritis. The impression was a negative for the left knee. In this case, the objective evidence shows, at worse and considering Mitchell, DeLuca, and all relevant factors, flexion was limited to 35 degrees with painful motion and extension was limited to 5 degrees with pain. The Board notes that a February 2021 rating decision granted service-connection for left knee limitation of extension at a noncompensable (0 percent) rating, effective May 19, 2020. However, a rating higher than 10 percent for painful motion of the left knee is not warranted based on loss of flexion and extension even with consideration of the Veteran’s report of increased pain and decreased ability to stand or walk for longer periods of time with flares. The evidence does not show that, even with flares, the Veteran’s disability is manifested by symptoms as shown in the next higher ratings for limitation of motion. Additionally, the evidence of record does not show that the Veteran’s left knee disability was manifested by dislocated semilunar cartilage. Notably, no current meniscus abnormality was noted as the image studies have shown that the meniscus was intact and normal. To the extent that the VA examiners have assessed pain and limited motion resulting from the prior left knee meniscectomy, the current 10 percent rating already contemplates these symptoms, and to assign a separate rating under DC 5259 would constitute impermissible pyramiding, and the highest rating available under DC 5259 is 10 percent. Therefore, additional higher ratings under Diagnostic Codes 5258 and 5259 are not warranted. As for any separate compensable rating for left knee instability, there is no objective evidence of lateral instability or recurrent subluxation of the left knee. Although the Veteran reported that his knees gave out during the September 2020 and December 2020 VA examinations, VA examiners have not found joint instability in his left knee. Joint stability testing was normal during the June 2016, September 2020, and December 2020 VA examinations. There was no evidence or history of recurrent patellar subluxation/dislocation. Accordingly, while the Veteran is competent to provide statements concerning physical manifestations of his left knee, the Board finds that the consistent objective findings are more probative. Therefore, the Board finds that the Veteran’s service-connected left knee disorder is not entitled to a separate evaluation for instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Finally, the December 2020 VA examination determined that the Veteran did not have a scar associated with his 1997 left knee arthroscopic surgery. Also, the June 2016 VA examiner noted that the insertion areas for the 1997 arthroscopic surgery were well-healed and not able to be measured. Thus, consideration of a separate evaluation for scars is not applicable. The Board has considered the Veteran’s statements that his knee disability is worse, as well as his reports of pain and functional loss. While he is competent to provide evidence regarding matters that can be perceived by the senses, he is not shown to be competent to render medical opinions regarding whether his symptoms meet the next higher rating criteria under VA regulations. Such competent evidence concerning the nature and extent of the Veteran’s knee disability has been provided by the medical personnel who examined him during the current appeal. The medical findings (as provided in the examination reports and clinical records) directly address the criteria under which the knee disability is evaluated. The specific clinical measures of ranges of motion, including examiners’ findings and opinions regarding additional limitations of motion due to such factors, have been weighed and considered by the Board. Such specific measures and findings are of more probative value in determining specific ranges of motion than are general histories or general descriptions of symptoms of pain or limitations, such as this Veteran’s report of pain and functional loss. Thus, the overall evidence does not show that pain or other factors resulted in additional functional limitation or limitation of motion such as to enable a finding that the disability picture more nearly approximates a disability rating in excess of 10 percent for the left knee disability under the rating criteria for knee disabilities at any time during the increased rating period. Despite the Veteran’s contention of a debilitating knee disability, the current disability rating indicates a significant impact on his functional ability. Such a disability evaluation assigned by VA recognizes his pain, indicating very generally a 10 percent reduction in his ability to function due to his knee disability. The critical question in this case, however, is whether the problems he has cited meet the next highest level under the rating criteria. For reasons cited above, the Board finds they do not. [CONTINUED ON NEXT PAGE] In determining whether a higher rating is warranted for service-connected disability, VA must determine whether the evidence supports the Veteran’s claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, the preponderance of the evidence is against a rating in excess of 10 percent. T. SHERRARD Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Costello, 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.