Citation Nr: 21011228 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 11-02 425 DATE: March 1, 2021 ORDER A disability rating for the left knee disability of 20 percent from January 22, 2010 to August 22, 2015 is granted. A disability rating for the right knee disability of 20 percent from January 22, 2010 to October 1, 2014 (excluding convalescence periods) is granted. FINDINGS OF FACT 1. For the rating period on appeal from January 22, 2010 to August 22, 2015, the left knee arthritis disability has been manifested by pain, stiffness, and effusion of the joint. 2. For the rating period on appeal from August 22, 2015, the left knee arthritis disability has been manifested by dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion of the joint. 3. For the rating period on appeal from January 22, 2010 to October 1, 2014, the right knee arthritis disability has been manifested by pain, stiffness, and effusion of the joint. 4. For the rating period on appeal from October 1, 2014, the right knee arthritis disability has been manifested by dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion of the joint. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran’s favor, for the rating period on appeal from January 22, 2010 to August 22, 2015, the criteria for a disability rating of 20 percent for the left knee disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5258. 2. For the entire rating period on appeal, the criteria for a disability rating in excess of 20 percent for the left knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5258. 3. Resolving reasonable doubt in the Veteran’s favor, for the rating period on appeal from January 22, 2010 to October 1, 2014, the criteria for a disability rating of 20 percent for the right knee disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5258. 4. For the entire rating period on appeal, the criteria for a disability rating in excess of 20 percent for the right knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5258. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Marine Corps during the Persian Gulf War Era from February 1991 to April 1991, July 1992 to May 1993, and from May 1995 to February 1998. The Veteran initially applied to VA for service connection for knee disabilities on January 22, 2010. Service connection was granted with an initial rating of 10 percent assigned for each knee disability. See May 2010 Rating Decision. The Veteran appealed the initial rating of 10 percent. See June 2010 Statement in Support of Claim. During the appeal in November 2017, VA granted a staged rating of 20 percent for each knee disability (with the 20 percent rating for the left knee disability staged from August 22, 2015 and the right knee staged from October 1, 2014). See November 2017 Supplemental Statement of the Case. The Veteran underwent three right knee surgeries and one left knee surgery during the initial rating period on appeal. VA granted a 100 percent temporary total disability rating for each of the convalescence periods. As a total rating is the maximum schedular rating for these periods, these convalescence periods are excluded from this decision because there is no potentially higher rating for the convalescent periods. Disability Rating Criteria A disability of the musculoskeletal system is primarily the inability to perform the normal working movements of the body. The inability to perform normal movements is shown by the anatomical damage and the functional loss. The 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 innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40. A joint disability can be determined by examining whether there is (a) less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); (b) more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); (c) weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); (d) excess fatigability; (e) incoordination (impaired ability to execute skilled movements smoothly); or (f) pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. For the purpose of rating disability from arthritis, the shoulder, elbow, wrist, hip, knee, and ankle are considered major joints; multiple involvements of the interphalangeal, metacarpal and carpal joints of the upper extremities, the interphalangeal, metatarsal and tarsal joints of the lower extremities, the cervical vertebrae, the dorsal vertebrae, and the lumbar vertebrae, are considered groups of minor joints, ratable on a parity with major joints. The lumbosacral articulation and both sacroiliac joints are considered to be a group of minor joints, ratable on disturbance of lumbar spine functions. 38 C.F.R. § 4.45. With any form of arthritis, painful motion is an important factor of disability: the intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. VA must consider whether a higher rating is necessary based on a greater limitation of motion due to pain on use or during flare-ups. Deluca v. Brown, 8 Vet. App. 202 (1995). Functional limitations are applied to the schedular rating criteria to ascertain whether a higher schedular rating can be assigned based on limitation of motion due to pain and during flare-ups, and should be expressed in schedular rating terms of degree of range-of-motion loss. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011); Deluca v. Brown, 8 Vet. App. 202 (1995). The VA regulations do not require every disability to perfectly match the picture in the rating schedule. Findings sufficiently characteristic to identify the disease and the disability therefrom, and coordination of rating with impairment of function can result in a higher schedular rating, even where not every item of the rating criteria is met. 38 C.F.R. § 4.21. 1. Rating Left Knee Arthritis Disability For the rating period on appeal from January 22, 2010, the Veteran is in receipt of a 10 percent rating for the service-connected left knee disability from January 22, 2010 to August 22, 2015, and is in receipt of a 20 percent rating for the service-connected left knee disability from August 22, 2015 (excluding convalescence period) under DC 5258 for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint. The 10 percent rating from January 22, 2010 was granted under the rating criteria of 38 C.F.R. § 4.59 and DC 5003, which provides for a 10 percent (maximum) rating for noncompensable limitation due to arthritis pain of a major joint. After a review of all the evidence, the Board finds that the weight of the evidence, lay and medical, shows that the disability picture of the left knee from January 22, 2010 to August 22, 2015 (excluding convalescence period) most closely approximates a 20 percent rating under Diagnostic Code 5258, as the evidence shows pain, stiffness, and effusion of the left knee joint. At a VA examination in February 2010, the examiner noted bilateral pain, stiffness, and limited motion of the joint. The VA examiner found no bilateral instability, weakness, incoordination, subluxation or dislocation, and no symptoms of arthritis. Range of motion was normal in extension, but limited in flexion to 135 degrees (noncompensable) in the left knee. The VA examiner noted no additional limitation with repetitive motion. The examiner noted repeated effusions in both knees. A rating of 10 percent under either DC 5260 (limitation of flexion) or DC 5261 (limitation of extension) is not warranted because the limitation of motion in flexion and extension of the left knee were noncompensable. It is important to note that the appeal was remanded by the Board in February 2017 for the AOJ to procure medical examinations that complied with the holding in Correia v. McDonald, 28 Vet. App. 158 (2016) (requiring that knee examinations test for pain on both active and passive motion, and in weight bearing and nonweight bearing, pursuant to 38 C.F.R. § 4.59). See February 2017 BVA Decision. However, the Correia-compliant medical examination performed in May 2017 showed that, even after repetitive use, examining active and passive motion, and examining weight bearing and nonweight bearing, there was no additional compensable limitation of motion of either knee. Resolving reasonable doubt in the Veteran’s favor, for the rating period on appeal from January 22, 2010 to August 22, 2015, the criteria for an initial disability rating of 20 percent for the left knee disability, with joint pain with stiffness and effusion, are met. 38 C.F.R. §§ 4.3, 4.7, 4.71a. VA has granted a 20 percent rating under DC 5258 for dislocation of the semilunar cartilage with frequent episodes of “locking,” pain, and effusion of the joint for the rating period from August 22, 2015. A 20 percent rating is the maximum rating under DC 5258. The first imaging studies to show arthritis were performed by the VA on August 24, 2015. The imaging of the left knee showed possible meniscal tears, a tiny effusion, minimal osteoarthritis, popliteus tendinopathy, patella alta, and mild subluxation of the patella. Dislocated cartilage means a tear in the meniscus (medial or lateral). Semilunar cartilage of the knee joint is defined as "meniscus lateralis articulationis genus" if it is external and "meniscus medialis articulationis genus" if it is internal. Dorland's Illustrated Medical Dictionary 304 (31st ed. 2007). Symptoms associated with acute meniscus tears include pain located medially or laterally at the joint line and mechanical symptoms such as clicking, catching, or locking. DeLee and Drez, Orthopaedic Sports Medicine 1601 (3rd ed. 2009). True locking of the knee is defined as a "mechanical block to full extension due to a displaced bucket handle meniscal tear with incarceration" that is either episodic, with reduction of the fragment by manipulation or motion of the knee, or persistent. Id. Degenerative meniscal tears present with vague joint line pain, mild swelling, and occasional mechanical symptoms. Id. "Locking" is the sudden loss of ability to extend the knee and is usually painful and may be associated with an audible noise, such as a click or pop. Firestein, Kelley's Textbook of Rheumatology 571 (9th ed. 2012). Symptoms suggesting a meniscal tear include locking during joint extension, clicking or popping during motion, and localized tenderness along the medial or lateral joint line. Id. at 573. The Veteran received X-ray studies that showed osteoarthritis in both knees on August 24, 2015. The Veteran was examined in October 2015 by VA. The examiner found flexion of the left knee to 125 and normal extension. The examiner noted evidence of pain with weight bearing, as well as in the flexion. The Veteran was able to perform repetitive use testing. The examiner noted that pain with repetitive use did not decrease the range of motion. The examiner found no evidence of ankylosis in either knee, no instability, and no bone conditions. The examiner noted bilateral meniscal tears (as evidenced by the August 2015 X-rays). A VA examination in May 2017 found flexion of the left knee limited to 115 degrees, with no additional loss of motion after weightbearing, repetitive use, and active and passive motion testing. The examiner found no ankylosis, subluxation, instability, or bone disorders in either knee. The examiner noted bilateral meniscal tears. Separate compensable rating under either DC 5260 or 5261 is not warranted for any period because the limitation of motion in flexion and extension of the left knee were still noncompensable; therefore, the 20 percent rating under DC 5258 for this period is the more favorable rating. These diagnostic codes overlap in pain and locking as forms of limitation of motion. See 38 C.F.R. § 4.14. The Board finds that the criteria for separate left knee disability ratings are not met. A separate rating of 10 percent under DC 5257 is not warranted for any period because the evidence does not show a sprain or ligament tear of the left knee or instability. Accordingly, the Board finds that, for the entire rating period on appeal, the criteria for higher or separate initial disability ratings are not met. 38 C.F.R. §§ 4.3, 4.7, 4.71a. 2. Rating Right Knee Disability For the rating period on appeal from January 22, 2010, the Veteran is in receipt of a 10 percent rating for the service-connected right knee disability from January 22, 2010 to October 1, 2014 (excluding convalescence periods), and is in receipt of a 20 percent rating for the service-connected right knee disability from October 1, 2014 (excluding convalescence period). The 10 percent rating was granted for pain under 38 C.F.R. § 4.59 and Deluca. The 20 percent rating was granted under DC 5258 for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint. After a review of all the evidence, the Board finds that the weight of the evidence, lay and medical, shows that the disability picture of the right knee from January 22, 2010 to October 1, 2014 most closely approximates a 20 percent rating under DC 5258 based on pain, stiffness, and effusion of the joint. At a VA examination in February 2010, the examiner noted bilateral pain, stiffness, and limited motion of the joint, with repeated effusion into both knees. The examiner found no bilateral instability, weakness, incoordination, subluxation or dislocation, and no symptoms of arthritis. Range of motion was normal in extension, but limited in flexion to 120 degrees (noncompensable) in the right knee. The examiner noted no additional limitation with repetitive motion and no ankylosis. X-rays of both knees showed no evidence of fracture or dislocation, no focal osseous lesions, no joint effusion, and no degenerative joint disease in the right knee. The Veteran received bilateral knee X-rays in December 2012 at VA. The radiologist found no acute fracture, subluxation, nor arthritic changes in either knee. A rating of 10 percent under either DC 5260 (limitation of flexion) or DC 5261 (limitation of extension) is not warranted because the limitation of motion in flexion and extension of the right knee were noncompensable. It is important to note that the appeal was remanded by the Board in February 2017 for the AOJ to procure medical examinations that complied with the holding in Correia v. McDonald, 28 Vet. App. 158 (2016) (requiring that knee examinations test for pain on both active and passive motion, and in weight bearing and nonweight bearing, pursuant to 38 C.F.R. § 4.59). See February 2017 BVA Decision. However, the Correia-compliant medical examination performed in May 2017 showed that, even after repetitive use, examining active and passive motion, and examining weight bearing and nonweight bearing, there was no additional limitation of motion of either knee. Accordingly, resolving reasonable doubt in the Veteran’s favor, the Board finds that, for the rating period on appeal from January 22, 2010 to October 1, 2014, the criteria for an initial disability rating of 20 percent for the right knee joint pain with stiffness and effusion are met. 38 C.F.R. §§ 4.3, 4.7, 4.71a. VA has granted a 20 percent rating under DC 5258 for dislocation of the semilunar cartilage with frequent episodes of “locking,” pain, and effusion of the joint for the rating period from October 1, 2014. A 20 percent rating is the maximum rating under DC 5258. The first imaging studies to show arthritis were performed by the VA on August 24, 2015. The imaging of the left knee showed possible meniscal tears, a tiny effusion, minimal osteoarthritis, popliteus tendinopathy, patella alta, and mild subluxation of the patella. The Veteran was examined by the VA in May 2017. The examination found flexion of the left knee limited to 115 degrees (noncompensable), with no additional loss of motion after weightbearing, repetitive use, and active and passive motion testing. The examiner found no ankylosis, subluxation, instability, or bone disorders in either knee. The examiner noted bilateral meniscal tears. (Continued on the next page)   Separate compensable ratings under either DC 5260 or 5261 are not warranted for any period because the limitation of motion in flexion and extension of the left knee were still noncompensable throughout the entire rating period; therefore, the 20 percent rating under DC 5258 for this period is the more favorable rating. These diagnostic codes overlap in pain and locking as forms of limitation of motion. See 38 C.F.R. § 4.14. A separate rating of 10 percent under DC 5257 is not warranted for any period because the evidence does not show a sprain or ligament tear of the left knee or instability. The Board finds that the criteria for separate left knee disability ratings, are not met. Accordingly, the Board finds that, for the entire rating period on appeal, the criteria for higher ratings than 20 percent or separate initial disability ratings are not met. 38 C.F.R. §§ 4.3, 4.7, 4.71a. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Charles Plambeck 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.