Citation Nr: 21014375 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 15-28 464 DATE: March 12, 2021 ORDER Entitlement to a noninitial disability rating in excess of 20 percent prior to April 9, 2019 for status post right knee medial meniscectomy, excepting periods wherein a temporary total evaluation has been assigned, is denied. Entitlement to a noninitial disability rating in excess of 30 percent for right knee limitation of extension prior to April 9, 2019 is denied. Entitlement to a noninitial disability rating in excess of 10 percent for right knee limitation of flexion prior to April 9, 2019 is denied. REMANDED Entitlement to a disability evaluation in excess of 30 percent for status post right knee total arthroplasty from June 1, 2020 is remanded. FINDINGS OF FACT 1. Prior to April 9, 2019, the Veteran’s right knee disability was manifested by pain associated with meniscus injury. He underwent a medial meniscectomy in April 2016, with residual symptoms including pain and stiffness that remained present until April 9, 2019, at which time the Veteran underwent total right knee replacement. There is no evidence of severe instability or subluxation, or frequent episodes of locking or effusion for this period. 2. Prior to April 9, 2019, the Veteran’s right knee disability was manifested by painful motion in extension, with range of motion in extension limited no further than to 15 degrees, even when considering additional limitation due to flareups or repeated use of the joint over time, with no ankylosis, impairment of the tibia or fibula or genu recurvatum. 3. Prior to April 9, 2019, the Veteran’s right knee disability was manifested by painful motion in extension, with range of motion in flexion limited to no less than 80 degrees, even when considering additional limitation due to flareups or repeated use of the joint over time, with no ankylosis, impairment of the tibia or fibula or genu recurvatum. CONCLUSIONS OF LAW 1. The criteria for entitlement to a noninitial disability rating in excess of 20 percent prior to April 9, 2019 for status post right knee medial meniscectomy, excepting periods wherein a temporary total evaluation has been assigned have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.7, 4.130, Diagnostic Code (DC) 5256, 5257, 5258, 5259. 2. The criteria for entitlement to a noninitial disability rating in excess of 30 percent for right knee limitation of extension prior to April 9, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.7, 4.130, DC 5261. 3. The criteria for entitlement to a noninitial disability rating in excess of 10 percent for right knee limitation of flexion prior to April 9, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.7, 4.130, DC 5260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1977 to January 1980. These matters come before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the Board on several occasions, most recently in April 2020, at which time they were remanded for development. They have been returned to the Board for appellate review. The claimant has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Rating Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.  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. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Any reasonable doubt regarding a degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3.  When an evaluation of a disability is based upon limitation of motion, the Board must also consider, in conjunction with the otherwise applicable Diagnostic Code, any additional functional loss the Veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy from disuse. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the Veteran. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Moreover, with respect to musculoskeletal disabilities, the law recognizes that “[p]ainful motion is an important factor of disability, and 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.” See 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). The Board notes that the regulations governing evaluation of knee disabilities were amended effective February 11, 2021. Since the periods addressed herein all involve timeframes prior to this date, the new regulations are not applicable. 1. Entitlement to a noninitial disability rating in excess of 20 percent prior to April 9, 2019 for status post right knee medial meniscectomy, excepting periods wherein a temporary total evaluation has been assigned The Veteran asserts that his right knee disability, characterized as status post medial meniscectomy with degenerative joint disease and evaluated as 20 percent disabling prior to April 9, 2019, warrants a higher rating for that period. The Veteran’s 20 percent evaluation during the period at issue was assigned pursuant to DC 5257, which contemplates recurrent subluxation and lateral instability of the knee, and provides for ratings of 10, 20, or 30 percent based on slight, moderate, or severe impairment, respectively. Disability of the meniscus can also be evaluated separately under DC 5258 and 5259. The former provides for a 20 percent evaluation where dislocated semilunar cartilage is manifested by frequent episodes of locking, pain, and effusion into the joint. The latter provides for a 10 percent evaluation for residual symptoms in the wake of removal of semilunar cartilage. However, as detailed below, the Board does not find assignment of a separate evaluation under either of these codes warranted, because the Veteran’s meniscal issues have been assigned a 20 percent evaluation in contemplation of instability, and the Veteran’s knee pain is contemplated in those evaluations for limitation of motion of the knee in flexion and extension, discussed below. Thus, assignment of a separate evaluation under either DC 5258 or 5259 would constitute impermissible pyramiding. Accordingly, the Board will focus its analysis with respect to the Veteran’s meniscal symptoms and status post medial meniscectomy on the severity of his instability. Notes associated with a September 2010 VA examination of the Veteran’s right knee show that he complained of instability. However, examination findings indicate that no instability was present on testing. Moreover, medical treatment records from the earlier portion of the appeal period do not reflect objective findings of instability on testing, although July 2012 VA treatment records show complaints of knee buckling. The Veteran is noted to have used a cane on at least an intermittent basis, with more frequent use later in the period at issue. At a May 2014 VA examination, the Veteran was noted to have no history of recurrent subluxation, and there is no indication that lateral instability of the knee was observed. In April 2016, the Veteran underwent a medial meniscectomy of the right knee, and a temporary total evaluation has been assigned for his recovery period. Finally, at a July 2019 VA knee examination, all stability testing was normal, and the examiner explicitly indicated that the Veteran did not have any degree of current right knee instability. Moreover, the examiner indicated no history of right knee instability based on his review of the record. The only ongoing residual associated with the Veteran’s 2016 medial meniscectomy noted on the examination report was pain. The Board observes that this examination falls outside the period herein on appeal, but its findings, particularly with respect to the history of the Veteran’s meniscal condition and symptomatology is relevant to the period herein at issue. In sum, a review of the record provides no basis for an increased rating for the Veteran’s right knee status post meniscectomy, or for knee instability for any portion of the appeal period. None of the Veteran’s numerous treating providers or VA examiners have ever noted objective findings reflective of instability of the knee in any degree. The only indication in the record of lateral instability of the knee is the Veteran’s own reporting. The Board acknowledges the CAVC decision in English v. Wilkie in which the CAVC found that nothing in 38 C.F.R. § 4.71a Diagnostic Code 5257 “provides that objective medical evidence is required or is to be favored over lay evidence” and that lay evidence is not “categorically less probative than medical evidence” on the question of knee instability. 30 Vet. App. 347, 352-53 (2018). The Veteran has competently reported symptoms of lateral instability; however, the Board finds that absent any objective showing of recurrent subluxation or lateral instability in any degree, assignment of a 30 percent evaluation for “severe” recurrent subluxation or lateral instability is not warranted. Accordingly, the appeal for increase based on instability of the knee for the period prior to April 9, 2019, is denied. 2. Entitlement to noninitial disability ratings in excess of 30 percent for right knee limitation of extension and 10 percent for right knee limitation of flexion prior to April 9, 2019 DCs 5260 and 5261 deal with limitation of range of motion of the knee. Under DC 5260, flexion of the leg limited to 60 degrees warrants a 0 percent rating, flexion limited to 45 degrees warrants a 10 percent rating, flexion limited to 30 degrees warrants a 20 percent rating, and flexion limited to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a, DC 5260.  Under DC 5261, extension limited to 5 degrees warrants a 0 percent rating, extension limited to 10 degrees warrants a 10 percent rating, extension limited to 15 degrees warrants a 20 percent rating, extension limited to 20 degrees warrants a 30 percent rating, extension limited to 30 degrees warrants a 40 percent rating, and extension limited to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a, DC 5261. Separate ratings are available for limitation of flexion and limitation of extension under Diagnostic Codes 5260 and 5261, and as noted above, the Veteran is indeed in receipt of separate evaluations for limitation to extension and flexion. Range of motion testing of the Veteran’s knee has been conducted on numerous occasions during the period at issue, but has failed to reveal limitation of flexion to a compensable degree, or limitation of flexion beyond 15 degrees, which limitation warrants a 20 percent evaluation under DC 5261. The evaluations of 30 and 10 percent for limitation of extension and flexion, respectively, has been assigned in consideration of additional functional limitation due to pain, stiffness, and fatigue with use of the joint. At a September 2010 VA examination, range of motion testing of the Veteran’s right knee revealed flexion to 90 degrees and extension to 15, with pain on active motion of the right knee. The Veteran was able to perform multiple bouts of testing without further loss of range of motion. However, the Veteran complained of severe and limiting symptoms including pain, weakness, and loss of mobility, leading the examiner to indicate that the qualitative descriptions of symptoms on the examination report were based on the Veteran’s description, rather than testing or observation, and that the Veteran’s assertions with respect to limitations to his capacity for “[g]rooming, feeding, and a few other activities [due to knee problems] seem exaggerated.” Medical records during the period at issue indicate complaints of pain on use; for instance, September 2012 private treatment records show complaints of difficulty walking due to knee pain. At a May 2014 VA examination, range of motion testing revealed right knee flexion to 95 degrees, with pain at 80, and extension to 15 degrees, with no pain reported, and no loss of range of motion with repeated bouts of testing. No painful motion was noted, but there was evidence of functional loss due to lost movement, incoordination, and pain on movement. The Veteran was noted to walk with an antalgic gait, and he complained of sensitivity to even the lightest touch, which the examiner noted made testing difficulty. With respect to flareups, the examiner indicated the Veteran reported constant pain with no flareups of the condition. Private treatment records from mid-2015 show knee flexion to 90 degrees, but ongoing complaints of hypersensitivity. Records following the Veteran’s mid-2016 medial meniscectomy show ongoing complaints of knee pain, but the record does not contain additional range of motion testing. However, range of motion testing conducted after the period on appeal, in February 2020, shows flexion to 100 degrees and extension to 0, with some pain on testing but not to such a level as to cause functional loss, which findings suggest that the Veteran did not experience a degree of lost range of motion in excess of what is represented in earlier findings during the latter part of the period herein on appeal. A review of the evidence of record shows no basis for an increase for either limitation to extension or flexion for any portion of the appeal period. With respect to flexion, the Veteran has never demonstrated compensable loss of right knee flexion, even on repeated bouts of testing, and with respect to extension, limitation has never been shown to go beyond 15 degrees, even with repeat bouts of testing. The Board acknowledges that the Veteran experienced pain on motion during the appeal period, but he is already assigned 10 and 30 percent ratings for limitation of flexion and extension, respectively, in contemplation of functional loss of motion due to knee pain. Additionally, with regard to additional compensation for functional loss, the Board finds that the evidence does not show that he has functional loss greater than the levels of compensation he is receiving for limitation of flexion, extension and instability. The assigned 10, 20 and 30 percent ratings compensate him for his pain, stiffness and giving way, including after repetitive use or during flare-ups. Thus, the Board finds that no additional compensation is appropriate under 38 C.F.R. §§ 4.40, 4,45, 4.59. Finally, the Board notes that the evidence does not contain any indication of ankylosis, impairment of the tibia or fibula, or genu recurvatum warranting ratings under Diagnostic Codes 5256, 5262 or 5263, respectively. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5262 or 5263. In sum, ratings greater than 10 percent for limitation of flexion and 30 percent for limitation of extension for the Veteran’s right knee disability for the period prior to April 9, 2019, are denied. REASONS FOR REMAND 1. Entitlement to a disability evaluation in excess of 30 percent for status post right knee total arthroplasty from June 1, 2020 is remanded. For the period from April 9, 2019 to June 20, 2020, the Veteran was in receipt of a total rating. Thus, a higher rating is not possible for this period. However, the Board finds it necessary to remand the Veteran’s claim for increase for his right knee condition from June 1, 2020. At an October 2020 VA examination, the Veteran did not permit the examiner to handle his right knee due to “reported hypersensitivity to even light touch.” The examiner added that the Veteran’s “functional ability was limited due to reported nerve pain.” It appears the examiner had a degree of skepticism with respect to the Veteran’s pain complaints, indicating that “complaints of hypersensitivity…are inconsistent with physical therapy reports, which had no mention of his symptom. [The Veteran] also had a vascular ultrasound which if he had this degree of hypersensitivity would be impossible.” Moreover, the record does not explicitly suggest a provenance for the Veteran’s reported hypersensitivity or complaints of nerve pain. On remand, a VA examination should be conducted which explores the presence of additional and heretofore unexplored symptomatology, including nerve pain or another provenance for the Veteran’s claimed hypersensitivity to light touch of the right knee. The matters are REMANDED for the following action: 1. After obtaining the necessary authorization, update the medical file with any outstanding and relevant VA and private medical records. 2. Then, schedule the Veteran for a VA knee examination to ascertain the current severity and manifestations of the Veteran’s service-connected right knee disability. The claims file should be made available to the examiner for review in connection with the examination. The examination reports should include a statement as to the effect of the service-connected right knee disability on the Veteran’s occupational functioning and daily activities. In particular, the VA examination must include the following: a. Range of motion testing for the right and left knees in the following areas: i. Active motion ii. Passive motion iii. Weight-bearing iv. Nonweight-bearing If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she must clearly explain why that is so. The examiner should provide a complete rationale for any opinions rendered. b. The examiner should specifically state whether the Veteran is beset by chronic residuals of total knee arthroplasty consisting of severe painful motion or weakness of the right knee. c. Finally, the examiner should comment on the presence of the Veteran’s claimed nerve pain and hypersensitivity to touch, and if these symptoms are found to be present, the examiner should explain whether they are components of the Veteran’s service-connected right knee disability, or of another disorder. 3. Readjudicate the claim. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Z. Sahraie, 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.