Citation Nr: 21015459 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 13-22 570 DATE: March 17, 2021 ORDER Entitlement to a rating in excess 10 percent under DC 5260 for degenerative changes of the right knee is denied. Entitlement to a rating in excess of 10 percent under DC 5260 for degenerative changes of the left knee is denied. Entitlement to a separate rating of 20 percent under DC 5258 for degenerative changes of the right knee effective June 30, 2011 is granted. Entitlement to a separate rating of 20 percent under DC 5258 for degenerative changes of the left knee effective June 30, 2011 is granted. FINDINGS OF FACT 1. The Veteran’s right knee is manifested by painful limitation of motion. 2. The Veteran’s left knee is manifested by painful limitation of motion. 3. The Veteran underwent a meniscectomy, arthroscopic surgery of the right knee during the pendency of this claim and continues to experience residual symptoms from such. 4. The Veteran underwent a meniscectomy, arthroscopic surgery of the left knee during the pendency of this claim and continues to experience residual symptoms from such. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent under DC 5260 for degenerative changes of the right knee have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.40, 4.45, 4.59, 4.71(a), Diagnostic Code (DC) 5260 (2019). 2. The criteria for a rating in excess of 10 percent under DC 5260 for degenerative changes of the left knee have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.40, 4.45, 4.59, 4.71(a), Diagnostic Code (DC) 5260 (2019). 3. The criteria for a separate rating of 20 percent under DC 5258 for degenerative changes of the right knee effective June 30, 2011 have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.40, 4.45, 4.59, 4.71(a), Diagnostic Code (DC) 5258 (2019). 4. The criteria for a separate rating of 20 percent under DC 5258 for degenerative changes of the left knee effective June 30, 2011 have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.40, 4.45, 4.59, 4.71(a), Diagnostic Code (DC) 5258 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1981 to September 1989. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a September 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in March 2015. A transcript of the hearing is associated with the electronic claims file. The Board has issued three prior remands on these claims in June 2015, November 2017, and April 2020. Increased Rating Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1.  Pertinent regulations also provide that it is not necessary for all of the individual criteria to be present as set forth in the Rating Schedule, but that findings sufficient to identify the disability and level of impairment be considered. 38 C.F.R. § 4.21. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3.  When rating disabilities of the knee, separate ratings may be assigned for limited knee motion in flexion (under Diagnostic Code 5260) and in extension (under Diagnostic Code 5261), as well as for instability (under Diagnostic Code 5257). VA Gen. Counsel. Prec 23-97 (July 1, 1997). A separate compensable rating may also be assigned for meniscal pathology under Diagnostic Code 5258 or 5259. Lyles v. Shulkin, 29 Vet. App. 107 (2017). Under Diagnostic Code 5258 a rating of 20 percent is assigned for cartilage, semilunar, dislocated, with frequent episodes of “locking,” pain, and effusion into the joint. Under Diagnostic Code 5259 a rating of 10 percent is given for cartilage, semilunar, removal of, symptomatic. Under Diagnostic Code 5260, a 0 percent (noncompensable) rating is assigned for leg flexion limited to 60 degrees. A 10 percent rating is assigned for leg flexion limited to 45 degrees. A 20 percent rating is assigned for leg flexion limited to 30 degrees. A maximum 30 percent rating is assigned for leg flexion limited to 15 degrees. Diagnostic Code 5261 provides a 0 percent rating for leg extension limited to 5 degrees. A 10 percent rating is warranted where extension is limited to 10 degrees. A 20 percent rating is warranted where extension is limited to 15 degrees. A 30 percent rating is warranted where extension is limited to 20 degrees. A 40 percent rating is warranted where extension is limited to 30 degrees. A 50 percent rating is warranted where extension is limited to 45 degrees. Under Diagnostic Code 5257, a rating of 10 percent is warranted when there is slight recurrent subluxation or lateral instability; a 20 percent rating is warranted when there is moderate recurrent subluxation or lateral instability; and a 30 percent rating is warranted when there is severe recurrent subluxation or lateral instability. Words such as “slight,” “moderate,” and “severe” are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. 1. Entitlement to a rating in excess of 10 percent for degenerative changes of the right knee. 2. Entitlement to a rating in excess of 10 percent for degenerative changes of the left knee. The Veteran was initially granted service connection for degenerative changes of the bilateral knees in a February 2009 rating decision, evaluated at 10 percent each, effective August 13, 2004. In June 2011, the Veteran requested an increased rating for his bilateral knees explaining that his condition had worsened causing increased pain, decreased range of motion, frequent locking of both knees, and some swelling. The Veteran was given a VA examination for his knees in August 2011. Here, the examiner noted pain with sitting and standing for long periods of time rated at an 8/10. He found the Veteran’s left knee flexion to be to 80 degrees with spasm noted on moderate repetitive activity, but no instability or weakness was found. With regard to his right knee, the examiner found forward flexion to 90 degrees with mild spasms noted on repetitive activity, with no weakness. Based on this examination the RO issued a September 2011 rating decision continuing to rate the Veteran’s bilateral knees at 10 percent each due to painful motion. The Veteran appealed this issue up to the Board, contending that his August 2011 VA examination was inadequate because no physical examination or range of motion testing was completed. In June 2015, the Board remanded the claims instructing the RO to provide the Veteran with a new VA examination with appropriate range of motion testing and a description of functional loss due to pain and flare-ups to determine the current severity of the Veteran’s bilateral knee degenerative changes. The Veteran was given another VA examination for his knees in August 2015. Here, the examiner noted that the Veteran did not complain of any flare-ups but described his functional loss as “The Veteran reports pain with multiple activities, worse with weight-bearing, going up/downstairs, squatting/bending of knees. Veteran reports his knee pain is always there, even at rest. Also reports increased pain/stiffness of knees after sitting down and resting knees – states initial steps knees are more stiff and harder to move which improves after moving the knees a little. Does not report worsening pain, loss of additional ROM with prolonged use/repetitive motions.” With regard to range of motion, the examiner found the Veteran to have a right knee flexion to 90 degrees, extension to 10 degrees with pain noted on exam that causes functional loss, however the degree at which pain began was not noted. Evidence of pain on weight bearing was noted as well as crepitus, diffuse joint tenderness to include medial/lateral joint lines, fibular head, and peripatellar. With regard to the left knee, the examiner found the Veteran to have flexion to 85 degrees and extension to 10 degrees, also with pain noted on exam that causes functional loss, but no notation of which degree pain begins. Evidence of pain on weight bearing was noted as well as crepitus, diffuse joint tenderness to include medial/lateral joint lines, fibular head, and peripatellar. Following repeated use over time the Veteran was found to have bilateral flexion limited to 80 degrees and extension limited to 10 degrees. No joint instability was found, but the examiner noted a left sided meniscal tear causing frequent episodes of joint pain. Following this examination, the RO continued to rate the Veteran’s bilateral knees at 10 percent each. In November 2017, the Board again remanded the claim instructing the RO to update the record to obtain outstanding VA treatment records and to provide the Veteran with another VA examination consistent with recent caselaw. The Veteran was given another VA examination for his bilateral knees in January 2018. Here, under medical history the examiner noted that the Veteran’s condition has progressed and the Veteran experiences bilateral knee pain, stiffness, clicking, and locking up. The examiner also noted that the Veteran underwent surgery of the left knee in 2013 and the right knee in 2016. With regard to flare-ups the examiner noted severe knee pain, range of motion limited, and that the Veteran was unable to straighten his leg out all the way. The examiner found the Veteran’s range of motion of the right knee to be flexion to 140 degrees and extension to 0 degrees, no pain was noted on exam. No evidence of localized tenderness or pain on palpation was found, nor was pain on evidence of weight bearing or objective evidence of crepitus found. Range of motion of the left knee was found to be flexion limited to 50 degrees and extension to 0 degrees, pain was noted on exam that caused functional loss, but the degree at which pain began was not noted. Range of motion was found to contribute to functional loss causing no deep or repetitive knee bending motions. Pain on weight-bearing was also noted. No additional range of motion loss for either knee was noted, nor was any joint instability found. The examiner noted bilateral meniscal tears causing frequent episodes of joint locking and joint pain, described as “bilateral knee pain, clicking/catching/locking of joint.” The Veteran was given another VA examination for his knees in October 2019. Here, the examiner noted “Over the last 5-6 yrs discovered having torn meniscus in bilateral knees with the left knee in 2011 and rt knee in 2016. Meniscus tears found on MRIs. Pain progressed over the years with knee stiffness, locking, and grinding. Had bilateral arthroscopy – rt knee 2016, left knee 2011. Had some relief after surgery now back to having pain. Had PT after surgeries.” Current symptoms were found to be “Daily pain, sharp and cracking of knees and feels cracking. 8/10 moderate pain, knee stiffness. Reports buckling of the knees at times.” Range of motion of the right knee was found to be flexion limited to 85 degrees, extension to 0 degrees with pain noted on exam that causes functional loss, but no indication of the degree at which pain began. Range of motion of the left knee was found to be flexion limited to 75 degrees with extension to 0 degrees and pain noted on exam that causes functional loss, but no indication of the degree at which pain began. Evidence of pain on weight bearing and evidence of crepitus was noted bilaterally. No additional loss of motion was noted for either knee and no joint instability was found. The examiner noted a bilateral meniscal tear causing frequent episodes of joint pain and joint effusion. Finally, the examiner noted objective evidence of pain on passive range of motion testing and when the joint is used in non-weight bearing bilaterally. Following this examination, the RO issued a November 2019 rating decision granting service connection for scars of the bilateral knees associated with the Veteran’s meniscal surgeries. Most recently, the Board remanded the claim back to the RO in April 2020 to provide the Veteran with an updated VA examination compliant with additional caselaw. The Board specifically instructed the examiner to complete range of motion testing and identify any objective evidence of pain and the degree at which pain began. Moreover, the Board instructed the examiner to provide his or her best estimate based on examination findings and the Veteran’s statements regarding range of motion limitations during a flare-up. The Veteran was given another VA examination for his bilateral knees in October 2020. Here, the examiner diagnosed bilateral meniscal tear and bilateral degenerative changes of the knees. He indicated that the Veteran’s bilateral knee condition had progressed/worsened since its onset. With regard to flare-ups the examiner noted that the Veteran gets sharp pens and needles in both knees and with regard to functional loss noted that the Veteran has problems going up and down steps and standing for long periods of time. With regard to range of motion testing the examiner wrote “Veteran experiencing severe pain and limited ROM. Veteran attempted to perform ROM testing and was [sic] symptoms became worse. Current pain management is ineffective and has minimal effect on symptoms.” The examiner listed the Veteran’s right knee pain to be a 9/10 and his left knee pain to be a 10/10, noting pain on exam on rest/non-movement. The examiner noted intermittent swelling on both knees, but instability testing was not performed “due to severe pain and limited ROM joint stability likely to worsen symptoms.” The examiner only noted a bilateral meniscal tear requiring surgery, but no additional symptoms resulting from such. The examiner noted objective evidence of pain of the bilateral knees when used in non-weight bearing. With regard to additional diagnoses the examiner provided that the Veteran’s service-connected degenerative joint disease impaired natural range of motion leading to the Veteran’s bilateral meniscus tears. Finally, with regard to the requested estimation for functional loss during flare-ups or on repeated use the examiner wrote “The Veteran experiencing pain and stiffness on exam. Reported 10/10 by the Veteran. It would be extremely difficulty [sic] to estimate functional loss when Veteran is reporting severe pain and have objective loss of function.” Given the Veteran’s documented bilateral knee limitations associated with meniscal tears, the Board finds that he is entitled to separate ratings of 20 percent for each knee under DC 5258 and should retain the ratings under DC 5258 despite the surgical repairs due to the severity of the symptomatic residuals. Additionally, the Veteran’s locking is a form of limitation of motion and he experiences joint pain from the meniscal tears so the Veteran is not entitled to ratings in excess of 10 percent under DC 5260 as to do so would constitute impermissible pyramiding. See 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Indeed, as the result of the Board’s decision, the Veteran will be in receipt of a combined rating of 30 percent for each knee (see 38 C.F.R. § 4.25), which is in excess of a rating under DC 5258, equivalent to a minimum rating for a knee replacement, and the maximum rating for limitation of motion under DC 5260. Thus, the Board finds that the manifestations of the disability are fully compensated. Lyles v. Shulkin, 29 Vet. App. 107 (2017). Lastly, prior VA examination findings do not support a rating under DC 5261 because the Veteran’s leg extension has consistently been found to be to 0 degrees, or not at all limited except for the outlier noted in August 2015. In any event, an award of a separate rating would constitute impermissible pyramiding. Finally, the Veteran has been found to have no joint instability in the bilateral knees, indicating a rating under DC 5257 is not warranted. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Ruiz, 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.