Citation Nr: 21011632 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 16-53 190 DATE: March 2, 2021 ORDER Entitlement to a rating in excess of 10 percent for degenerative arthritis, right knee with chondromalacia patella is denied. Entitlement to a rating in excess of 10 percent for left knee medical meniscus tear with osteoarthritis is denied. Entitlement to a rating in excess of 10 percent for left knee instability is denied. FINDINGS OF FACT 1. The Veteran’s degenerative arthritis, right knee with chondromalacia patella has been manifested by painful motion with flare ups and range of motion of flexion to 85 degrees and extension to 0 degrees, without ankylosis, subluxation or lateral instability, recurrent patellar dislocation, and/or impairment of the tibia or fibula. 2. The Veteran’s left knee medical meniscus tear with osteoarthritis has been manifested by painful motion with flare ups and range of motion of flexion to 75 degrees and extension to 0 degrees, without ankylosis, subluxation or lateral instability, recurrent patellar dislocation, and/or impairment of the tibia or fibula. 3. The Veteran’s left knee instability does not cause moderate recurrent subluxation or lateral instability or frequent episodes of joint locking. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 10 percent for degenerative arthritis, right knee with chondromalacia patella have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.59, 4.7, 4.71a, Diagnostic Code 5003-5260 (2019). 2. The criteria for an evaluation in excess of 10 percent for left knee medical meniscus tear with osteoarthritis have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.59, 4.7, 4.71a, Diagnostic Code 5003-5260 (2019). 3. The criteria for an evaluation in excess of 10 percent for left knee instability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.59, 4.7, 4.71a, Diagnostic Code 5257, 5258 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from May 1992 to April 1996. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in January 2020. A transcript of that hearing has been associated with the record. An August 2016 rating decision granted the Veteran a total disability rating due to individual unemployability, effective May 21, 2013. In May 2020, the Board remanded these issues to the RO for additional development. There has been substantial compliance with the remand instructions. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). Following the Board remand, in May 2020 correspondence the AOJ attempted to obtain the Veteran’s private treatment records and associate them with the claims file. The Veteran failed to respond. As seen below, the medical record is incomplete. However, the duty to assist is not a one-way street; a claimant cannot stand idle and fail to cooperate. Wood v. Derwinski, 1 Vet. App. 190 (1991). Accordingly, the Board will proceed with adjudication with the evidence of record. Increased Rating Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C. § 1155. Percentage evaluations are determined by comparing the manifestations of a particular disorder with the requirements contained in the VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. The Veteran’s entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1. VA must consider whether the Veteran is entitled to “staged” ratings to compensate when his or her disability may have been more severe than at other times during the course of his or her appeal. The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various DCs is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). If there is a question as to which evaluation to apply to the Veteran’s disability, 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. In general, evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the Veteran undertaking the motion. See 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. See 38 C.F.R. § 4.45. Relevant Evidence The Veteran filed a claim for increased ratings for his knees in April 2014. The Veteran attended a VA examination in March 2015. He reported flare-ups manifested by increased pain twice daily associated with certain activities. He had difficulty using the stairs, squatting, kneeling, and prolonged standing and walking. The Veteran reported regular use of a brace and cane. Range of motion testing revealed right and left knee flexion to 120 degrees and extension to 0 degrees. The examiner determined that the abnormal range of motion itself did not contribute to functional loss. The Veteran experienced pain with flexion, but pain did not result in functional loss. There was no additional loss of range of motion following repetitive use testing. Following repeated use, or during a flare-up, the examiner determined that pain and lack of endurance significantly limited functional ability, but that his range of motion would not decrease. The Veteran had normal muscle strength and no ankylosis. Joint stability testing was all normal. The Veteran had meniscal tears in both knees with episodes of locking in his left knee. The examiner concluded that the Veteran’s knee disabilities would impair his ability to perform work related duties such as prolonged standing or walking, squatting, or kneeling. The Veteran attended another VA examination in May 2016. He reported daily pain described as “an ache.” He also reported bilateral knee swelling and instability. He reported flare-ups of increased pain that was activity driven. He stated that his knee disabilities limited his mobility with stairs, prolonged walking, and driving a car. The Veteran reported occasionally using a knee brace and regularly using a cane. Range of motion testing revealed right and left knee flexion to 120 degrees and extension to 0 degrees. The examiner determined that the abnormal range of motion itself did not contribute to functional loss. The Veteran experienced pain with flexion, but pain did not result in functional loss. There was no additional loss of range of motion following repetitive use testing. Following repeated use, or during a flare-up, the examiner determined that pain and lack of endurance significantly limited functional ability, but that his range of motion would not decrease. The Veteran had normal muscle strength and no ankylosis. Joint stability testing was all normal. While right and left knee meniscal tears were found, the examiner did not determine that there were frequent episodes of locking. The examiner concluded that the Veteran’s knee disabilities would impair his ability to use the stairs, perform prolonged standing or walking, or drive a car. The Veteran attended a Board hearing in January 2020. He testified that he received private care for his knees. He stated that he was unable to drive. The Veteran stated that he believed his knee conditions had progressed because he was falling regularly because his knees were unable to support his weight. The Veteran attended an additional VA examination in October 2020. He reported daily pain, left worse than the right knee. He reported flare-ups manifested by more pain. The Veteran told the examiner that he avoided stairs and did not walk unless he had to because of his knee disabilities. Range of motion testing revealed right knee flexion to 90 degrees and extension to 0 degrees with pain, and left knee flexion to 80 degrees and extension to 0 degrees with pain only on flexion. The abnormal range of motion prevented the Veteran was squatting. There was no additional loss of range of motion following repetitive use testing. During a flare- up or following repetitive use, the examiner concluded that the Veteran’s flexion would decrease in each knee by 5 degrees. The Veteran had normal muscle strength and no ankylosis. Joint stability testing was all normal. While right and left knee meniscal tears were found, the examiner did not determine that there were frequent episodes of locking. The examiner concluded that the Veteran’s knee disabilities would prevent him from climbing kneeling, running, walking more than half a block, and sitting for more than 15 minutes. There was no objective evidence of pain when the knee was used in non-weight bearing, and his active and passive range of motion were the same. As mentioned above, the Veteran receives all of his medical treatment for his knees outside of VA. VA attempted to obtain the outstanding records and the Veteran failed to respond. There is no other relevant medical evidence of record. 1. Entitlement to a rating in excess of 10 percent for degenerative arthritis, right knee with chondromalacia patella 2. Entitlement to a rating in excess of 10 percent for left knee medical meniscus tear with osteoarthritis The Veteran’s degenerative arthritis, right knee with chondromalacia patella (herein: right knee arthritis) and his left knee medical meniscus tear with osteoarthritis (herein: left knee arthritis) are each evaluated as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5003-5260. Normal range of motion of the knee is to 0 degrees extension and to 140 degrees flexion. 38 C.F.R. § 4.71a, Plate II. While the Veteran’s right knee arthritis has been rated under Diagnostic Code 5003-5260, limitation of flexion, the Board will consider all applicable rating criteria. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating assigned; the additional code is shown after the hyphen. Under Diagnostic Code 5003, degenerative arthritis established by x-ray findings is rated on the basis of limitation of motion under the appropriate Diagnostic Codes for the specific joint involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Under Diagnostic Code 5260, leg limitation of flexion, provides for the assignment of a noncompensable rating when flexion is limited to 60 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. A 10 percent rating is warranted when flexion of the leg is limited to 45 degrees. A rating of 20 percent is appropriate when leg flexion is limited to 30 degrees, and a rating of 30 percent is warranted when flexion is limited to 15 degrees, which warrants the maximum, 30 percent rating. Under Diagnostic Code 5261, the knee is rated based on limitation of extension. That code provides that when extension is limited to 5 degrees, a noncompensable rating is assigned. Extension limited to 10 degrees warrants a 10 percent rating. When limitation of extension is at 15 degrees, a 20 percent rating is warranted. Extension limited to 20 degrees warrants a 30 percent rating. Extension limited to 30 degrees warrants a 40 percent rating. Lastly, extension limited to 45 degrees warrants the maximum, 50 percent rating. Under Diagnostic Code 5257, the criteria for impairment of the knee other than ankylosis, 10, 20, and 30 percent evaluations are assigned for slight, moderate, and severe recurrent subluxation or instability, respectively. C.F.R. § 4.71a, Diagnostic Code 5257. The terms “slight,” “moderate,” and “severe” are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. It should also be noted that use of terminology such as “slight” or “moderate” by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding a higher rating. 38 C.F.R. §§ 4.2, 4.6. The diagnostic criteria applicable to semilunar cartilage are found at 38 C.F.R. § 4.71a, Diagnostic Code 5258. Under that code, a maximum 20 percent rating is warranted for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. Symptoms due to the removal of the semilunar cartilage of either knee warrant a 10 percent rating, which is the maximum rating under the diagnostic code. 38 C.F.R. § 4.71a, Diagnostic Code 5259. Previously, VA General Counsel has held that a rating under Diagnostic Code 5259, cartilage, semilunar, removal (see also Diagnostic Code 5258, dislocated semilunar cartilage) already contemplates limitation of motion, such that separate ratings for limitation of motion (e.g., Diagnostic Codes 5003, 5260, or 5261) would violate the regulatory prohibition against pyramiding under 38 C.F.R. § 4.14. See VAOPGCPREC 9-98 (August 14, 1998). However, the Court has held that evaluation of a knee disability under Diagnostic Code 5257 or 5261 or both does not, as a matter of law, preclude separate evaluation of a meniscal disability of the same knee under Diagnostic Code 5258 or 5259, and vice versa. Lyles v. Shulkin, 29 Vet. App. 107 (2017). Rather, a separate evaluation in a given case depends on whether manifestations for which a separate evaluation is being sought have already been compensated by an assigned evaluation under a different diagnostic code; and that, in evaluations of musculoskeletal disabilities based on limitation of motion, a manifestation has not been compensated, for separate evaluation and pyramiding purposes, if that manifestation did not result in an elevation of the evaluation under 38 C.F.R. §§ 4.40 and 4.45, pursuant to principles set forth in DeLuca. Id. at 118-119. VA regulations set forth at 38 C.F.R. §§ 4.40, 4.45, and 4.59 provide for consideration of functional impairment due to pain on motion when evaluating the severity of a musculoskeletal disability. If feasible, these determinations are to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59. Moreover, joint testing is to be conducted on both active and passive motion, 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, 170 (2016). The Board finds that based on the evidence of record, the preponderance of the evidence is against finding that a rating in excess of 10 percent is warranted for the Veteran’s right or left knee arthritis. The Veteran contends that he has ongoing bilateral knee pain which has increased and worsens with movement. The Board has considered the Veteran’s general contentions that an increased rating is warranted for the Veteran’s bilateral knee arthritis. However, the Board finds these contentions are not supported by the probative evidence of record. The benefit of the doubt rule is for application when the evidence is in equipoise, which occurs only when there is an approximate balance between the positive and negative evidence. 38 C.F.R. § 3.102 (2019). That evidence must be both competent and credible. Here, there is no such balance of evidence. Based on the lay and medical evidence of record the Board finds that the Veteran’s bilateral knee arthritis does not more nearly approximate the level of severity contemplated by an increased 20 percent rating. The Board notes the Veteran’s and associated lay contentions regarding his ongoing knee pain which increases with prolonged movement and physical activities, prolonged sitting, standing and driving. The Veteran and the associated lay statements are competent to testify to such lay observable symptomatology. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, such lay evidence in this case even when accepted as accurate, does not establish a level of disability contemplated by a higher evaluation. The evidence of record supports that the Veteran’s bilateral knee arthritis was characterized by ongoing pain and painful moment warranting no higher than a 10 percent rating under Diagnostic Code 5260. An increased 20 percent rating is warranted under Diagnostic Code 5260 when leg flexion is limited to 30 degrees. The Veteran’s bilateral knee does not manifest flexion limited to 30 degrees. Viewing the evidence in the light most favorable to the Veteran, the evidence demonstrates that flexion at worst was 85 degrees in the right knee and 75 degrees in the left knee. At the VA examination in October 2020, the Veteran’s estimated right flexion was to 85 degrees and right extension was to 0 degrees, and left flexion was to 75 degrees and left extension to 0 degrees during a flare-up or following repetitive use. As such the Board finds that the Veteran is not entitled to an increased rating in excess of 10 percent for his bilateral knee arthritis. Although the Veteran had additional functional loss due to flare-ups, the evidence does not demonstrate that the Veteran’s knee arthritis symptoms were equivalent to a 20 percent evaluation for limitation of flexion. See Deluca v. Brown, 8 Vet. App. 202, 206 (1995); see also 38 C.F.R. §§ 4.40, 4.45. Therefore, there is no basis upon which to award the Veteran a higher 20 percent evaluation for arthritis of the right or left knee under Diagnostic Code 5260 or on the basis of Deluca. The Board recognizes that the Veteran has meniscal tears in both knees. In this case, the evidence does not support episodes of locking in either knee. While the Board notes the March 2015 VA examination which reported left knee locking, this is not supported by the two more recent examinations. Furthermore, as explained below, the Veteran has a separate disability rating un Diagnostic Code 5257 for slight recurrent subluxation or lateral instability. To the extent that the Veteran is experiencing pain that affects his range of motion, the current ratings for the right and left knee under DC 5003-5260 compensate such symptoms. There is no lay or medical evidence to suggest that the Veteran is experiencing symptoms unique to the meniscal tears that are not compensated for in the current rating. As such, higher or separate ratings under DCs 5258 or 5259 are not warranted. As a preponderance of the evidence is against a rating in excess of 10 percent for either right or left knee arthritis, the benefit-of-the-doubt doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b). Accordingly, the claims are denied. 3. Entitlement to a rating in excess of 10 percent for left knee instability The Veteran’s left knee instability is evaluated as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5257. As explained above, in order to warrant a higher disability rating for knee instability, the evidence needs to reflect that the Veteran’s left knee instability causes moderate recurrent subluxation or lateral instability. At no time during the appellate time period has the Veteran’s left knee instability resulted in greater than mild impairment. Testing results have not shown evidence of lateral instability on multiple tests. During his January 2020 Board hearing, the Veteran was asked if he felt like his knee joint was loose, or if his knees were unable to support his weight, and he clarified that his knees were unable to support his weight. There does not appear to be any probative evidence of record during the period on appeal that the Veteran has knee instability associated with ligament deficits. As a preponderance of the evidence is against a rating in excess of 10 percent for left knee instability, the benefit-of-the-doubt doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b). Accordingly, the claim is denied. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Fitzgerald, 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.