Citation Nr: 21021072 Decision Date: 04/09/21 Archive Date: 04/09/21 DOCKET NO. 15-42 313 DATE: April 9, 2021 ORDER An initial disability rating greater than 10 percent prior to November 30, 2020, and greater than 20 percent on and thereafter, for the service-connected residuals of a medial meniscus tear of the left knee is denied. An initial disability rating greater than 10 percent prior to November 30, 2020, and greater than 20 percent on and thereafter, for the service-connected residuals of a medial meniscus tear of the right knee is denied. FINDINGS OF FACT 1. Prior to November 30, 2020, the Veteran’s left knee disability had been manifested by flexion to 120 degrees and extension to 0 degrees at worst. 2. From November 30, 2020, the Veteran’s left knee disability has been manifested by flexion to 50 degrees and extension to 0 degrees at worst. 3. Prior to November 30, 2020, the Veteran’s right knee disability had been manifested by flexion to 120 degrees and extension to 0 degrees at worst. 4. From November 30, 2020, the Veteran’s right knee disability has been manifested by flexion to 50 degrees and extension to 0 degrees at worst. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating greater than 10 percent prior to November 30, 2020 and greater than 20 percent on and thereafter for the service-connected residuals of a medial meniscus tear of the left knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5260. 2. The criteria for an initial disability rating greater than 10 percent prior to November 30, 2020 and greater than 20 percent on and thereafter for the service-connected residuals of a medial meniscus tear of the right knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In August 2018, the Board remanded the appeal for additional development. In a June 2020 decision, the Board denied another issue then on appeal and remanded these remaining issues for compliance with the prior remand. The record reflects substantial compliance with the remand requests. Dyment v. West, 13 Vet. App. 141 (1999). Increased Ratings – Left & Right Knees Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture 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. Service connection for left and right knee disabilities, characterized as meniscal tears, has been in effect since November 1, 2011. The disabilities have been rated under Diagnostic Code 5260. 38 C.F.R. § 4.71a. Pursuant to this Diagnostic Code, 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 maximum 30 percent rating. 38 C.F.R. § 4.71a. Under Diagnostic Code 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 maximum 50 percent rating. 38 C.F.R. § 4.71a. Normal knee joint motion is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. Separate ratings may also be assigned for limitation of flexion and limitation of extension of the same knee. Where a Veteran has both compensable limitation of flexion and compensable limitation of extension of the same leg, the limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg. VAOGCPREC 9-2004 (2004); 69 Fed. Reg. 59990 (2004). Effective February 7, 2021, VA amended the regulations pertaining to the evaluation of disabilities of the musculoskeletal system, including those of the knee. 85 Fed. Reg. 76460 (Nov. 30, 2020). However, Diagnostic Codes 5260 and 5261 remain unchanged. While changes were made to Diagnostic Code 5257 for other impairment of the knee and Diagnostic Code 5262 for impairment of the tibia and fibula, as will be seen below, there is no evidence that the Veteran has recurrent subluxation or instability, or patellar instability, or malunion or nonunion of the tibia and fibula. Thus, neither the former nor revised versions of these codes are applicable in this case. Prior to November 30, 2020, the Veteran’s left and right knee disabilities have been rated 10 percent each under Diagnostic Code 5260. At an August 2011 VA examination, the Veteran reported bilateral knee pain with daily flare-ups brought on by physical activity and lasting up to three hours, during which time he cannot stand or walk for prolonged periods. Range of motion testing revealed flexion to 140 degrees and extension to 0 degrees in both knees. Repetitive use testing revealed no additional limitation of motion. Tests for stability were normal. There were no other abnormal findings. The examiner provided a diagnosis of bilateral meniscal tears. At a January 2014 VA examination, the Veteran reported bilateral knee pain and that he cannot stand for more than 10 minutes without resting or walk for more than 5 minutes without resting. Range of motion testing revealed flexion to 120 degrees and extension to 0 degrees in both knees. Repetitive use testing revealed no additional limitation of motion. The examiner indicated that the Veteran has less movement than normal, pain on movement, and interference with sitting, standing, and weight-bearing. Tests for stability were normal. The examiner indicated that the Veteran has bilateral meniscal tears with frequent episodes of joint “locking,” pain, and effusion. There were no other abnormal findings. The examiner indicated that the Veteran’s knee disabilities impact his ability to work due to the limitations on standing an walking. At a June 2015 VA examination, the Veteran reported bilateral knee pain but denied flare-ups. Range of motion testing revealed flexion to 120 degrees and extension to 0 degrees in both knees. Repetitive use testing revealed no additional limitation of motion. The examiner indicated that with no history of recurrent subluxation or lateral instability, tests for stability were not indicated. The examiner indicated that the Veteran has bilateral meniscal tears but has not undergone surgery for them. There were no other abnormal findings. The examiner indicated that the Veteran’s knee disabilities do not impact his ability to work. At an August 2019 VA examination, the Veteran reported bilateral knee pain on prolonged walking or standing. Range of motion testing revealed flexion to 140 degrees and extension to 0 degrees in both knees. Repetitive use testing revealed no additional functional loss or limitation of motion. The examiner indicated that pain, weakness, fatigability, or incoordination would not significantly limit functional ability with repeated use over a period of time. Tests for stability were normal. There were no other abnormal findings. The examiner indicated that the Veteran never had a meniscus condition. The examiner indicated that a 2012 MRI did not show meniscal tears but only mild arthritis, and current radiographs were unremarkable, and so the Veteran should be service-connected for bilateral knee arthritis. The examiner indicated that the Veteran’s knee disabilities do not impact his ability to work. VA medical records show complaints of bilateral knee pain but do not contain complete range of motion findings. Initially, while the AOJ has characterized the Veteran’s knee disabilities as medial meniscal tears—as reflected in the August 2011 VA examination report, the Board observes that the objective evidence of record does not show that he has a meniscal tear of either knee. A November 2012 VA MRI revealed intact medial and lateral menisci with no discrete meniscal tears or significant degeneration, and only mild degenerative arthritis. The August 2019 examiner confirmed that the November 2012 VA MRI showed no meniscal tear in either knee. A September 2020 private MRI also fails to show any tears as it reportedly showed only bilateral grade 1 chondromalacia. The diagnosis of meniscal tears was made by the August 2011 examiner and simply carried forward. However, the objective evidence of record clearly shows that the Veteran does not have a meniscus condition in either knee. Thus, the Board will recharacterize the Veteran’s knee disabilities as degenerative arthritis. However, the Board observes that the AOJ’s evaluation of the Veteran’s disabilities under Diagnostic Code 5260 is still appropriate. However, with no meniscus condition, Diagnostic Codes 5258 and 5259 pertaining to semilunar cartilage are not applicable. Turning to the evaluation of the Veteran’s knee disabilities, even considering functional loss due to pain and other factors, his left and right knee disabilities have been manifested by flexion to at worst 120 degrees and extension to 0 degrees, even upon repetitive use testing. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Those findings do not warrant even a 0 percent rating under Diagnostic Code 5260. While the Veteran is competent to report on his pain and resultant limitation of motion, the objective evidence fails to show that he has the necessary limitation of range of motion to warrant a rating greater than 10 percent under Diagnostic Code 5260 for either knee. Layno v. Brown, 6 Vet. App. 465 (1994). A separate compensable rating is not warranted under Diagnostic Code 5261 for either knee because the findings for extension do not warrant even a compensable rating. Indeed, extension was normal at each examination. Thus, an initial disability rating greater than 10 percent prior to November 30, 2020 is not warranted for either left or right knee disability. From November 30, 2020, the Veteran’s left and right knee disabilities have been rated 20 percent each under Diagnostic Code 5260. At a VA examination conducted on November 30, 2020, the Veteran reported bilateral knee pain with daily flare-ups from prolonged walking or standing. Range of motion testing revealed flexion to 60 degrees and extension to 0 degrees in both knees. Repetitive use testing revealed flexion to 50 degrees and extension to 0 degrees in both knees. The examiner indicated that pain and lack of endurance would significantly limit functional ability with repeated use over a period of time and estimated range of motion during such times as flexion to 40 degrees and extension to 0 degrees in both knees. The examiner further indicated that pain and lack of endurance would also significantly limit functional ability during flare-ups and estimated range of motion during those times as flexion to 30 degrees and extension to 0 degrees in both knees. Tests for stability were normal. There were no other abnormal findings. The examiner indicated that the Veteran’s knee disabilities result in difficulty standing for more than 15 minutes and walking for more than 200 yards. VA medical records show complaints of bilateral knee pain but do not contain complete range of motion findings. Even considering functional loss due to pain and other factors, the Veteran’s left and right knee disabilities have been manifested by flexion to at worst 50 degrees and extension to 0 degrees, and that was upon repetitive use testing. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. 202. Those findings do not warrant even a 10 percent rating under Diagnostic Code 5260. While the examiner estimated the Veteran’s flexion with repeated use over a period of time as 40 degrees and further reduced to 30 degrees during flare-ups, even those estimated figures do not warrant a higher 30 percent rating under Diagnostic Code 5260, which requires flexion limited to 15 degrees. While the Veteran is competent to report on his pain and resultant limitation of motion, the objective evidence fails to show that he has the necessary limitation of range of motion to warrant a rating greater than 20 percent under Diagnostic Code 5260 for either knee. Layno, 6 Vet. App. 465. With normal extension, a separate compensable rating is again not warranted under Diagnostic Code 5261 for either knee. Thus, a rating greater than 20 percent from November 30, 2020 is not warranted for either left or right knee disability. Accordingly, the Board concludes that an initial disability rating greater than 10 percent prior to November 30, 2020 and greater than 20 percent thereafter for left and right knee disabilities are not warranted. As the preponderance of the evidence is against the claims, the claims must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. W. Kim, 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.