Citation Nr: 21013402 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 13-21 691 DATE: March 9, 2021 ORDER Subject to the law and regulations governing the payment of monetary benefits, a 20 percent rating under Diagnostic Code 5258 is granted. Subject to the law and regulations governing the payment of monetary benefits, a 10 percent rating under Diagnostic Code 5261 is granted. Subject to the law and regulations governing the payment of monetary benefits, a separate 10 percent rating under Diagnostic Code 5257 is granted. FINDING OF FACT Throughout the pendency of this claim, the Veteran’s service-connected left knee disability has been manifested by a meniscus tear, painful motion and locking, extension limited to 10 degrees; and slight instability, but not by ankylosis, tibia and fibula impairment, or genu recurvatum. CONCLUSIONS OF LAW 1. The criteria for a rating of 20 percent for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion of the joint have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5258. 2. The criteria for a rating of 10 percent for limitation of extension of the left knee have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5261. 3. The criteria for a rating of 10 percent for slight left knee instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1986 to May 1990. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The Veteran testified before the undersigned Veterans Law Judge in an August 2017 video conference hearing. A transcript of that hearing has been associated with the file. The Board remanded the issue on appeal for further development in January 2018 and again in September 2019. The requested development having now been completed; the case has since been returned to the Board. The Veteran is seeking a rating in excess of 10 percent for his service-connected left knee disability, currently rated under Diagnostic Code 5260. He was initially awarded service connection for his left knee condition effective June 1990 and assigned a 0 percent rating. His evaluation was increased to 10 percent effective July 2011. The Veteran has a separate 10 percent rating under 5259, granted after the January 2018 remand, that has not been appealed. 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). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, 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 § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). 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). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for 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.” In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. Knee impairment with recurrent subluxation or lateral instability warrants a 10 percent evaluation if it is slight; a 20 percent evaluation if it is moderate; or a 30 percent evaluation if it is severe. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Under Diagnostic Code 5258, a 20 percent rating is warranted for dislocation of semilunar cartilage with frequent episodes of “locking, pain,” and effusion into the joint. 38 C.F.R. § 4.71a, Diagnostic Code 5258. Removal of semilunar cartilage warrants a 10 percent evaluation if it is symptomatic. 38 C.F.R. § 4.71a, Diagnostic Code 5259. Under Diagnostic Code 5260, a noncompensable rating is warranted for flexion limited to 60 degrees. A 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. A 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5261, a noncompensable rating is warranted for extension limited to 5 degrees. A 10 percent rating is warranted for extension limited to 10 degrees. A 20 percent rating is warranted for extension limited to 15 degrees. A 30 percent rating is warranted for extension limited to 20 degrees. A 40 percent rating is warranted for extension limited to 30 degrees. A 50 percent rating is warranted for extension limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. The Veteran is currently assigned ratings under Diagnostic Codes 5260 and 5259. Diagnostic Code 5260 is to be assigned for compensable limitation of flexion; however, the Veteran did not experience compensable limitations of flexion of the leg, but rather met the requirements of Diagnostic Code 5261 for limitation of extension of the leg, limited at 10 degrees. Thus, the Board is changing the Diagnostic Code from 5260 to 5261 to better reflect the limitation of motion that is present. Additionally, the record reflects that the Veteran should be rated at 20 percent under Diagnostic Code 5258 due to dislocation of semilunar cartilage with frequent episode of locking, pain, and effusion into the joint, rather than Diagnostic Code 5259, which contemplates symptomatic removal of semilunar cartilage. 38 C.F.R. § 4.71a. Lastly, a 10 percent evaluation for slight instability is warranted under Diagnostic Code 5257. The Veteran filed a claim in July 2011. He was afforded a VA examination in August 2011. The examiner noted the Veteran’s left knee flexion ended at 120 degrees, with no objective evidence of painful motion. He did not have a limitation of extension of the left knee. The Veteran was able to perform repetitive use testing with his flexion unchanged. There was also no limitation of extension after repetitive use testing. In a September 2011 Rating Decision, the Veteran was assigned a 10 percent evaluation under Diagnostic Code 5260 for the left knee based on painful or limited motion of a major joint. VA treatment notes in June 2012 noted progressive knee pain, while July 2012 treatment notes indicated that the Veteran experienced snapping, popping, and pain of the left knee. The Veteran was again afforded a VA examination in October 2012. The Veteran complained of locking and pain. His left knee flexion ended at 90 degrees and there was no limitation of extension. He had less movement than normal after repetitive use testing, but no additional limitation in his range of motion. The Veteran did experience pain on movement. Strength, anterior instability, posterior instability, and medial-lateral instability were all normal. The Veteran reported locking of the knee. Imaging results also noted a tear of the meniscus. Records were obtained from the Veteran’s private provider for visits throughout 2013-2014. In May 2013 the Veteran’s private provider noted the Veteran’s previous MRI documented a meniscal tear. The provider also noted pain with range of motion, snapping and catching, as well as decreased strength. The provider performed left knee surgery on the Veteran in June 2013 for his meniscus tear. In a July follow up the provider noted that the Veteran had significant osteoarthritis of the patellofemoral joint and medial space, and recommended cortisone and lubricating injections. The Veteran was afforded a VA examination in August 2014. He reported chronic knee pain with stiffness, weakness, popping, giving way, and locking. His flexion was noted to end at 100 degrees, with evidence of painful motion at 85 degrees. His extension ended at five degrees, with evidence of painful motion at 10 degrees. The examiner noted that the Veteran did not have additional range of motion limitations after repetitive use testing. The Veteran did have functional loss and impairment, including less movement than normal, pain on movement and swelling. His muscle strength was normal, and he had no joint instability. The examiner noted that the Veteran had a meniscectomy in February 1990 and June 2013, and that the Veteran experience residuals of the surgery including swelling and decreased range of motion. He also used a brace constantly for his left knee. VA medical records in 2016 note continued care for his left knee requiring injections. In a March 2016 note the Veteran was experiencing intense pain in his knee. The Veteran was using a cane and his balance was unsteady. In May 2015, the Veteran was continuing injections, with his provider recommending a potential surgical procedure. The Veteran again sought care from his private provider in 2016. He was seen in February for knee pain, at which time the Veteran reported snapping, catching, popping, and clicking. The provider recommended an arthroscopy. In March 2016 the Veteran had an arthroscopy on his right knee; the provider noted meniscus tearing and a significant amount of chondromalacia of the patellofemoral joint. That procedure was followed by injections in June for his knee. His provider noted that he had pain with flexion past 90 degrees and recommended a total knee replacement when the Veteran was ready. In October 2017 his provider noted that the Veteran had continued pain with a range of motion of 5 to 110 degrees in his left knee. At that time his provider also noted bone-on-bone degenerative joint disease in both knees. VA treatment records from January 2018 indicate that the Veteran received bilateral knee x-rays. As compared to the June 2015 x-rays, the provider indicated unchanged mild osteoarthritis of the left knee. A November 2018 VA examination noted the Veteran’s left knee to have evidence of painful motion on flexion and extension, with his flexion from 0 to 70 degrees, and extension from 70 to 0 degrees. After repetitive use testing his range of motion was 0 to 65 degrees on flexion and 65 to 0 degrees on extension. In February 2019, the Veteran was a provided an MRI due to his continued right knee pain. The MRI showed an oblique tear of the body of the lateral meniscus, as well as fat pad impingement, high-grade patellofemoral chondromalacia, and later compartment high-grade chondromalacia. The Veteran was afforded a VA examination in November 2019 for his left knee condition. Flexion of the left knee was noted to be 10 to 110 degrees, and extension was noted to be 110 to 10 degrees. The examiner noted no pain on examining the Veteran for range of motion. There was no pain with weight bearing. There was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue, which was noted to include tenderness in the lateral and medial area with palpation. The Veteran was able to perform repetitive use testing with at least three repetitions with no functional loss or range of motion after three repetitions. The examiner could not say if pain, weakness, fatigability or incoordination significantly limited his functional ability with repeated use over a period of time without speculation. Although the examination was not conducted during a flare-up, the examiner did not find that pain, weakness, fatigability or incoordination significantly limited functional ability with flare-ups. The examiner found no basis upon which to offer additional losses of function or motion due to repetitive use or flare-ups. No additional factors that contributed to the knee disability were found. The Veteran was found to have a slight reduction on extension with his left knee, which was attributed to his left knee condition. The examiner did not find muscle atrophy or ankylosis. Joint stability testing showed no instability in either knee joint. The Veteran did use a brace to support his knees and reduce pain. Passive range of motion testing was not performed, as the examiner noted that it was not without potential for harm, but the examiner found that the Veteran experienced no pain with non-weight bearing or weight bearing. The Veteran did have pain present during active ROM testing for the left knee, but he did not have functional loss. The Veteran reported flare-ups of the knee and lower leg in rainy and cold weather. He additionally reported pain with prolonged standing and prolonged sitting. The Veteran testified that his left knee will lock up and he will have to pop it loose or pop it back into place. He noted pain, that the knee requires shots for pain treatment to cushion the knee, and that his doctors have informed him he may need a knee replacement. The record most recently shows that the Veteran’s left knee extension is limited to 10 degrees; as such, the Veteran meets the rating criteria for a 10 percent rating under Diagnostic Code 5261. Further, due to dislocated semilunar cartilage with frequent episodes of locking and pain, captured throughout the record and confirmed by February 2019 MRI results, his left knee most closely approximates the rating criteria under Diagnostic Code 5258 at a 20 percent rating. The Board can change the Diagnostic Code being used, if appropriate, to give the Veteran an increased rating. See Butts v. Brown, 5 Vet. App. 532, 529 (1993) (change to diagnostic code is appropriate as long as not arbitrary, capricious, or an abuse of discretion; also see Read v. Shinseki, 651 F.3d 1296, 1301 (Fed. Cir. 2011) (change in diagnostic code does not violate protective statutes).” The Board has also considered the other Diagnostic Codes 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). In this regard, the Veteran has reported using a brace for pain and instability, and although no joint instability was noted when examined, the Veteran is competent to report this symptom, which appears to present as a buckling of the knee. Without evidence of instability on examination, this symptom appears to most closely approximate a slight impairment as to warrant a 10 percent evaluation under Diagnostic Code 5257. Since this manner of instability does not appear to be contemplated under Diagnostic Code 5258, the award of a separate 10 percent rating under Diagnostic Code 5257 is permitted. Additionally, the medical evidence has not demonstrated any ankylosis (Diagnostic Code 5256), impairment of the tibia and fibula (Diagnostic Code 5262), or genu recurvatum (Diagnostic Code 5263). Therefore, these diagnostic codes are inapplicable in this case. In conclusion, the Board finds that the Veteran’s left knee condition most closely approximates the criteria contemplated by Diagnostic Code 5258 at 20 percent; Diagnostic Code 5261 at 10 percent; and Diagnostic Code 5257 at 10 percent. The Board notes the Schedule of Ratings for the Musculoskeletal System was changed effective February 7, 2021. 38 C.F.R. § 4.71a. Applying the medical evidence of the case to the new Schedule of Ratings shows that there would not be a rating available to the Veteran in excess of what has been assigned. He does not appear to have been medically prescribed an assistive device for ambulation. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); M. E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board V. Geer, 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.