Citation Nr: 21013863 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 11-32 952 DATE: March 10, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for traumatic arthritis of the right knee is denied. Entitlement to an initial rating in excess of 10 percent for traumatic arthritis of the left knee is denied. Entitlement to a separate disability rating of 10 percent for residuals of partial meniscectomy of the right knee is granted. FINDINGS OF FACT 1. The Veteran’s traumatic arthritis of the right knee is manifest by objective evidence of pain on motion and flexion limited to 130 degrees, at worst, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups; without recurrent subluxation or lateral instability or patellar instability, ankylosis, dislocation of semilunar cartilage with impairments such as joint locking, impairment of the tibia and fibula, or genu recurvatum. 2. The Veteran’s traumatic arthritis of the left knee is manifest by objective evidence of pain on motion and flexion limited to 130 degrees, at worst, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups; without recurrent subluxation or lateral instability or patellar instability, ankylosis, dislocation of semilunar cartilage with impairments such as joint locking, impairment of the tibia and fibula, or genu recurvatum. 3. The Veteran’s partial meniscectomy of the right knee is currently manifested by residual symptoms of pain. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for traumatic arthritis of the right knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.40, 4.59, 4.71a, Diagnostic Code 5260. 2. The criteria for a rating in excess of 10 percent for traumatic arthritis of the left knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.40, 4.59, 4.71a, Diagnostic Code 5260. 3. The criteria for a separate rating of 10 percent for residuals of partial meniscectomy of the right knee have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.14, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5259. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from June 1969 to February 1971, from November 1990 to May 1991, from December 1996 to September 1997, from May 2005 to November 2005 and from March 2006 to January 2007. These matters come before the Board of Veterans’ Appeals (Board) from a July 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In a July 2017 decision, the Board remanded these matters to the RO for further development. In August 2020, the RO issued a Supplemental Statement of the Case again denying both knee claims. The matter now returns to the Board. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered because of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. Separate ratings can be assigned for separate periods based on the facts found, a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). In this regard, 38 C.F.R. § 4.59 requires that “[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and non weight-bearing and, if possible, with the range of the opposite undamaged joint.” Correia v. McDonald, 28 Vet. App. 158 (2016). Further, 38 C.F.R. § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable or malaligned joints or periarticular regions, regardless of whether the Diagnostic Code under which the disability is evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Although the Board has an obligation to provide reasons and bases supporting its decision, there is no obligation to discuss, in detail, the extensive evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board’s analysis will focus specifically on what the evidence shows, or fails to show, as it relates to the Veteran’s claim. 1. Entitlement to an initial rating in excess of 10 percent for traumatic arthritis of the right knee is denied. 2. Entitlement to an initial rating in excess of 10 percent for traumatic arthritis of the left knee is denied. The Veteran generally contends that a rating in excess of 10 percent is warranted for traumatic arthritis of the right and left knee because it has increased in severity. Limitation of motion of the knee is contemplated in 38 C.F.R. § 4.71a, Diagnostic Codes 5260 and 5261. Diagnostic Code 5260 provides for a zero percent rating where flexion of the leg is limited to 60 degrees. For a 10 percent rating, flexion must be limited to 45 degrees. A 20 percent rating is warranted where flexion is limited to 30 degrees. A 30 percent rating may be assigned where flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Codes 5260. Diagnostic Code 5261 provides for a zero percent rating where extension of the leg is limited to five degrees. A 10 percent rating requires extension limited to 10 degrees. A 20 percent rating is warranted where extension is limited to 15 degrees. A 30 percent rating may be assigned where the evidence shows extension limited to 20 degrees. For a 40 percent rating, extension must be limited to 30 degrees. Finally, where extension is limited to 45 degrees, a 50 percent rating may be assigned. 38 C.F.R. § 4.71a, Diagnostic Codes 5261. VA's General Counsel has also stated that separate ratings under Diagnostic Code 5260 (limitation of flexion of the leg) and Diagnostic Code 5261 (limitation of extension of the leg) may be assigned for disability of the same joint. VAOPGCPREC 9-04 (September 17, 2004), published at 69 Fed. Reg. 59,990 (2004). Normal range of knee motion is 140 degrees of flexion and zero degrees of extension. 38 C.F.R. § 4.71, Plate II. Furthermore, VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare ups. The Board notes that the guidance provided by DeLuca must be followed in adjudicating claims where a rating under the diagnostic codes governing limitation of motion should be considered. However, pain that does not result in additional functional loss does not warrant a higher rating. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011) (holding that pain alone does not constitute function loss, but is just one fact to be considered when evaluating functional impairment). The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). In this regard, 38 C.F.R. § 4.59 requires that “[t]he 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.” Correia v. McDonald, Id. Further, 38 C.F.R. § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable or malaligned joints or periarticular regions, regardless of whether the Diagnostic Code under which the disability is evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, Id. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that before a VA examiner opines that he or she cannot offer an opinion as to additional functional loss during flare-ups without resorting to speculation based on the fact that the examination was not performed during a flare, the examiner must “elicit relevant information as to the veteran’s flares or ask her to describe the additional functional loss, if any, she suffered during flares and then estimate the veteran’s functional loss due to flares based on all the evidence of record, including the veteran’s lay information, or explain why she could not do so.” In light of the Court’s holdings in Correia and Sharp, the Board has considered the effects of repeated use over time and flare-ups along with the adequacy of the VA examinations. See Correia v. McDonald, supra, and Sharp v. Shulkin, supra. Here, the December 2009 VA examination tested range of motion in both knees, repetitive range of motion in the right knee extended to 25 degrees and decreased to 30 degrees flexion with pain after repetitive motion testing. The July 2010 examination noted the Veteran reported flare-ups that resulted in additional pain, but range of motion did not change on repetitive testing. The April 2015 C&P examination performed range of motion testing where there was pain with weight-bearing, but repetitive motion testing did not result in additional functional loss. However, only the December 2019 C&P examination is adequate for adjudication purposes as it reflects joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing. In the December 2019 C&P examination, the Veteran reported flare-ups in his right knee, daily, which prohibits him from walking and standing for long periods of time. The flareup in his left knee is moderate and alleviated with medication. The Veteran’s active range of motion testing resulted in pain with no additional functional loss and there was objective evidence of pain on passive range of motion testing for both knees. The examiner also noted that there was no pain on weight and non-weight bearing for both knees. The Veteran's right and left knee limitation of flexion, at worst, was 0-130 degrees and extension 130-0 degrees. Treatment records do not show greater limitation of motion than the examination findings. Post-service clinical records do not reflect range of motion measurements or symptoms that would support a higher rating. Therefore, the Veteran is not entitled to a rating in excess of 10 percent under Diagnostic Code 5260 and 5261 in the either the right or left knee. The Board has also considered whether repetitive motion and/or flare-ups resulted in additional functional loss due to symptoms such as pain, swelling, weakness, fatigue, or incoordination. The Veteran reported flare-ups as pain in both knees. However, the December 2019 VA examiner found that although there were contributing factors of pain, weakness, fatigability and/or incoordination, there was no additional limitation of functional ability of both knee joints during flare-ups or repeated use over time. Furthermore, in the December 2019 VA examination, the examiner noted that pain, weakness, fatigability and incoordination did not significantly limit functional ability with repeated use over a period of time for the both knees. See DeLuca, supra; Mitchell, supra. The Board acknowledges the Veteran’s competent and credible reports of relevant observable symptoms, including knee pain, that was worse when he walked up stairs or stood for long periods of time. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, the Veteran’s lay statements are consistent with the assigned rating. To the extent that the Veteran believes that a higher rating is warranted, this belief is outweighed by the remaining evidence of record, as summarized above. The Board has also considered whether a staged rating under Hart, supra is appropriate for the Veteran’s bilateral knee condition; however, the Board finds that his symptomatology has been stable throughout the period on appeal. Therefore, assigning a staged rating for such disability is not warranted. Furthermore, the Veteran has not raised any other claims, nor have any other claims been reasonably raised by the record, with regard to the rating claim adjudicated herein. Thus, the Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for the Veteran’s traumatic arthritis of the right and left knee. Therefore, the benefit of the doubt doctrine is not applicable, and the Veteran’s claim for a higher initial rating must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 38 C.F.R. § 3.102. 3. Entitlement to a separate disability rating of 10 percent for residuals of partial meniscectomy of the right knee is granted. Based on the evidence of record, the Board finds that a separate rating under Diagnostic Code 5259 is warranted for residuals of the Veteran’s partial meniscectomy of the right knee. The December 2009 VA examiner noted history of partial meniscectomy on the right, and the April 2015 VA examiner noted arthroscopic surgery in 2009 with residual symptoms of pain on range of motion. Thus, in resolving reasonable doubt in favor of the Veteran, the Board concludes that a separate maximum 10 percent rating under Diagnostic Code 5259 has been demonstrated during the appeal period. With that said, however, a separate rating under Diagnostic Code 5258 for semilunar cartilage dislocated is not warranted. In fact, as explained above, the Veteran’s semilunar cartilage has been surgically absent and is rated accordingly based on residuals of the partial meniscectomy under Diagnostic Code 5259. Further, the Veteran’s knee disability was not productive of semilunar cartilage dislocated, with frequent episodes of joint “locking,” pain, and effusion as required under Diagnostic Code 5258. Thus, the application of Diagnostic Code 5258 is not warranted. Additionally, a separate rating under Diagnostic Code 5257 is not warranted as there is no clinical evidence of lateral instability or recurrent subluxation or recurrent subluxation or instability. Joint testing performed in VA examinations of December 2009, July 2010, April 2015 and October 2019 consistently revealed no joint instability. Thus, a separate rating under Diagnostic Code 5257 is not warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Likewise, evaluating the Veteran’s knee disability under Diagnostic Codes 5256, 5262 or 5263 is not applicable as there is no clinical evidence of ankylosis, tibia and fibula impairment, specifically malunion or nonunion, or genu recurvatum at any point during the appeal period. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5262, 5263. SONJA S. AN Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Adeyemi 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.