Citation Nr: 21024113 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 12-13 187 DATE: April 22, 2021 ORDER Entitlement to an increased rating for left knee internal derangement, status post reconstruction for a torn anterior cruciate ligament and medial meniscus (left knee disorder), currently evaluated as 20 percent disabling is denied. Entitlement to a separate 10 percent rating, but no more, for symptomatic residuals of cartilage removal of the left knee is granted. FINDINGS OF FACT 1. The Veteran is service-connected for a left knee internal derangement, status post reconstruction for a torn anterior cruciate ligament and medial meniscus (left knee disorder), currently rated 20 percent disabling for moderate recurrent subluxation or lateral instability. 2. The Veteran’s left knee disorder is characterized by a normal, non-antalgic gait, and described as painful, but does not result in positive instability testing, or recurrent subluxation per medical evaluation, and is best characterized as no more than moderate. 3. The Veteran’s left knee disorder is also as likely as not manifested by symptomatic residuals of cartilage removal. CONCLUSIONS OF LAW 1. The criteria for entitlement to an increased rating for left knee internal derangement, status post reconstruction for a torn anterior cruciate ligament and medial meniscus, currently evaluated as 20 percent disabling have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257 (2019). 2. With resolution of reasonable doubt in the Veteran’s favor, the criteria for a separate 10 percent rating, but no more, for symptomatic residuals of cartilage removal of the left knee have been met. U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5259 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from August 1988 to November 1997. In March 2015, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In May 2015, the Board remanded the Veteran’s claims for additional development. In May 2017, the Board denied the Veteran’s appeal. An August 2018 Court of Appeals for Veterans Claims (Court) order vacated the Board’s decision with respect to this issue and adopted a Joint Motion for Partial Remand (JMPR) for reconsideration of the Veteran’s claim. The Court also noted that the Board’s denial of entitlement to a total disability rating based on individual unemployability (TDIU) was to remain undisturbed. In March 2019, the Board remanded the appeal for additional development. During development, a January 2021 rating decision granted a separate noncompensable evaluation for left knee scars, effective December 1, 1997, which is not currently on appeal. Service connection has also been granted for arthritis of the left knee with a 10 percent rating assigned for noncompensable painful motion. That matter is not before the Board. The remaining issues, as they have been characterized above, have since been returned to the Board for further consideration. Increased Ratings and Knee Disorders Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations 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. During an appeal of a disability rating, either from an initial rating assigned on granting of service connection or on appeal of a subsequent denial of an increased rating, it may be found that there are varying and distinct levels of disability during an appeal. Staged ratings (different disability ratings during various time periods) are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). 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. 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. DeLuca v. Brown, 8 Vet. App. 202 (1995). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or § 4.45 itself is not appropriate. Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016). In addition, painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Diagnostic Code 5003 provides that degenerative arthritis will be rated based on limitation of motion under the appropriate diagnostic codes for the specific joint involved. Diagnostic Code 5003 also provides for a 20 percent rating for arthritis where X-ray evidence shows involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. Diagnostic Code 5260 addresses limitation of flexion of the leg. Flexion limited to 60 degrees warrants a noncompensable rating. Flexion limited to 45 degrees warrants a 10 percent rating. Flexion limited to 30 degrees warrants a 20 percent rating. Flexion limited to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Diagnostic Code 5261 addresses limitation of extension of the leg. Extension limited to 5 degrees warrants a noncompensable 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. Extension limited to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Normal range of motion of the knee is to zero degrees extension and to 140 degrees flexion. See 38 C.F.R. § 4.71, Plate II. Separate ratings may be assigned under Diagnostic Code 5260 (limitation of flexion of the leg) and Diagnostic Code 5261 (limitation of extension of the leg) where there is compensable limitation of motion under each code. VAOPGCPREC 9-2004. Diagnostic Code 5256 provides for a 30 percent rating (and even higher ratings) for ankylosis of a knee in a favorable angle in full extension, or in slight flexion between 0 degrees and 10 degrees. A 40 percent rating is called for with flexion between 10 and 20 degrees, a 50 percent rating for flexion between 20 and 45 degrees. Extremely unfavorable ankylosis, with flexion at an angle of 45 degrees or more warrants a maximum 60 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5256. Ankylosis is immobility and consolidation of a joint due to disease, injury, surgical procedure. Nix v. Brown, 4 Vet. App. 462, 465 (1993); and Shipwash v. Brown, 8 Vet. App. 218, 221 (1995). Diagnostic Code 5257, which rates impairment resulting from other impairment of the knee, to include recurrent subluxation or lateral instability, a 10 percent rating is assigned with evidence of slight recurrent subluxation or lateral instability of a knee; 20 percent rating is assigned with evidence of moderate recurrent subluxation or lateral instability; and 30 percent rating is assigned with evidence of severe recurrent subluxation or lateral instability. The words “slight,” “moderate” and “severe” as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for “equitable and just decisions.” 38 C.F.R. § 4.6. Pursuant to 38 C.F.R. §§ 4.40 and 4.45, pain is inapplicable to ratings under Diagnostic Code 5257 because it is not predicated on loss of range of motion. See Johnson v. Brown, 9 Vet. App. 7, 11 (1996). Diagnostic Code 5258 provides for a 20 percent rating for a dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the knee joint. Diagnostic Code 5259 provides for a 10 percent rating for symptomatic residuals of removal of a semilunar cartilage. The United States Court of Appeals for Veterans Claims (Court) has expressly rejected the argument that Diagnostic Code 5257 includes manifestations of knee disability other than recurrent subluxation or lateral instability. Lyles v. Shinseki, 29 Vet. App. 107 (2017). In particular, the Court held that evaluation of a knee disability under Diagnostic Codes 5257 or 5260 or both does not, as a matter of law, preclude separate evaluation of a meniscal disability of the same knee under Diagnostic Code 5258 or 5259, and vice versa. Lyles, 29 Vet. App. at 112-113. The Court further held that entitlement to a separate evaluation depends on whether the manifestations of disability for which a separate evaluation is being sought have already been compensated by an assigned evaluation under a different Diagnostic Code. Id. Accordingly, as the evidence shows, the Board will evaluate the Veteran’s left knee disorder for meniscal tear and instability separately under an appropriate diagnostic code. See also VAOPGCPREC 23-97. The Board notes that the rating assignments as specified herein do not result in lesser rating than the assignments on appeal determined by the Agency of Original Jurisdiction (AOJ) prior to this decision. Diagnostic Codes 5262, and 5263 provide ratings for impairment of tibia and fibula and genu recurvatum, respectively. The medical evidence shows that such impairments are absent, and the Veteran does not contend otherwise. Therefore, a higher rating is not available under these Diagnostic Codes at any time during the appeal period. 1. Entitlement to an increased rating for left knee internal derangement, status post reconstruction for a torn anterior cruciate ligament and medial meniscus (left knee disorder), currently evaluated as 20 percent disabling 2. Entitlement to a separate 10 percent rating, but no more, for symptomatic residuals of cartilage removal of the left knee The Veteran’s service-connected left knee disorder has been rated as 20 percent disabling under Diagnostic Code 5257. 38 C.F.R. § 4.71a. Records for the immediate post-service period did show some instability, resulting in the currently assigned rating. The Veteran seeks entitlement to an increased rating for this symptomatology. The Board observes that a separate 10 percent rating has been assigned for arthritis of the left knee with slight limitation of motion, but that rating is not presently before the Board. The Board observes that the Veteran has received VA treatment for his left knee, including some therapy and orthotics. However, range of motion findings are mostly absent. The Veteran was afforded an examination in March 2010. The Veteran stated that he injured his left knee while playing football and that he had several arthroscopic surgeries for his left knee since the initial injury. He indicated that he also receives periodic Synvisc injections for his left knee pain. The examiner noted that the Veteran’s prior knee surgeries occurred in 1996, 2002, 2003, and 2005. The examiner reported that the Veteran’s left knee flexion was to 105 degrees with normal extension. The examiner noted that the Veteran had pain after repetitive use but there was no additional loss of motion. The examiner stated that there was crepitation, but no objective evidence of ankylosis, tenderness, mass behind the knee, clicks or snaps, grinding, instability, or patellar/meniscus abnormality. The Veteran was afforded another examination in April 2011. The Veteran reported persistent left knee pain when standing and walking, along with several Synvisc injections in October 2010. He also reported that he was prescribed pain medicine. On physical examination, the Veteran’s gait was antalgic. The examiner reported that the Veteran’s left knee flexion was to 85 degrees. Left knee extension was normal. The examiner noted that the Veteran had pain after repetitive use but there was no additional loss of motion. The examiner stated that there was tenderness at the lateral aspect of the joint line, but no swelling was noted. Crepitation and grinding were also indicated. There was no objective evidence of mass behind the knee, clicks, snaps, instability, patellar/meniscus abnormality, or abnormal tendons or bursae. In November 2012, the Veteran underwent another operation for his left knee. According to the treatment report, the procedure was a “left knee arthroscopy with resection tear medial meniscus, resection plica left knee.” Subsequent VA medical reports show that the Veteran received periodic orthotic treatment for his left knee, as well more Synvisc injections. In March 2015, the Veteran testified that he continues to receive Synvisc injections for his left knee pain. He stated that his condition is worsening and reported use of a left knee brace. He also described his employment history. Pursuant to the Board’s May 2015 remand, the Veteran was provided with an additional examination in September 2015. The Veteran reported that his knee hurts constantly and that it will also “pop” during the day. The examiner then provided a comprehensive summary of the Veteran’s treatment for his left knee injury from 2001 to the present. On examination, the examiner reported that the range of motion of the Veteran’s left knee shows flexion to 120 degrees and normal extension. The examiner reported that there was objective evidence of pain during the range of motion; however, there was no objective evidence of pain on weight bearing of localized tenderness or pain on palpation. Muscle strength was normal. There was no evidence of ankylosis or instability. The examiner also reported that there is no evidence of swelling, weakness, or muscle wasting. X-rays showed degenerative arthritis. Pursuant to the Board’s March 2019 remand, the Veteran received additional VA knee examinations in September 2019 and January 2021. At each examination, the Veteran denied flare-ups. The September 2019 examiner included the opinion that pain, weakness, fatigability, or incoordination would not significantly limit functional ability when the joint is used repeatedly over a period of time, and showed no pain with motion. Repetitive use testing performed at the exam did not result in additional limitation of motion. Painful flexion and extension was noted at the January 2021 examination, and the examiner included the opinion that pain could significantly limit functional ability when the joint is used repeatedly over a period of time, and expressed the additional limited function in terms of flexion being limited to 90 degrees. The examiner indicated extension would not be affected with repeated use over time. During both examinations, the examiner found no evidence of recurrent subluxation or persistent instability of the left knee and joint stability testing was normal. However, each of the examiners noted a history of left knee surgeries, and the January 2021 examiner reported that the left knee meniscal tear results in frequent episodes of joint pain, but no frequent episodes of joint locking or effusion. The Veteran is currently in receipt of a 20 percent rating under Diagnostic Code 5257 due to moderate recurrent subluxation or lateral instability of the left knee, and the Board finds that the preponderance of the evidence is against a finding of severe instability of the left knee to support a 30 percent rating. As discussed above, no medical professional has found lateral instability on recent testing. Medical evidence shows no anterior or posterior instability or evidence of recurrent patellar subluxation or dislocation. The clinical records reflect no specific assessments of recurrent subluxation or instability. There was no evidence of muscle atrophy. Moreover, the more recent examinations of record suggest that the Veteran’s condition has actually improved, but the rating is protected because it has been in effect for over 20 years. The Board finds that the Veteran is competent and credible in his descriptions of instability. However, to the extent that the Veteran describes instability that is greater than moderate in degree, the Board places greater probative weight on the clinical findings of medical examiners as here, they have greater training and expertise than the Veteran in clinically evaluating the extent of subluxation and instability using medically accepted testing maneuvers. The Board must also consider whether a higher rating still may be assigned under any other applicable Diagnostic Code. The Veteran has credibly reported left knee symptoms of pain, some swelling, and tenderness. He has been provided a 20 percent rating for moderate knee instability, under Diagnostic Code 5257. Furthermore, the examination reports of record reflect active left knee motion and indicate that there is no ankylosis. Thus, a higher rating is not warranted under Diagnostic Code 5256. Diagnostic Code 5258 does not provide a basis for an increase or separate rating because dislocated cartilage is not shown nor is recurrent locking. As noted above, the Court addressed whether separate ratings could be assigned under Diagnostic Code 5257, and Diagnostic Code 5258 (dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion in the joint) or Diagnostic Code 5259 (semilunar cartilage removal, symptomatic). The Court held that evaluation of a knee disability under Diagnostic Codes 5257 or 5260 or both does not, as a matter of law, preclude separate evaluation of a meniscal disability of the same knee under Diagnostic Code 5258 or 5259, and vice versa. Lyles, 29 Vet. App. at 112-113. The Court further held that entitlement to a separate evaluation depends on whether the manifestations of disability for which a separate evaluation is being sought have already been compensated by an assigned evaluation under a different Diagnostic Code. Id. Here, the record reveals that surgery for cartilage removal was accomplished. There are continued complaints of pain and the Board concludes this is consistent with symptomatic semilunar cartilage removal, warranting a separate and maximum 10 percent rating under Diagnostic Code 5259. As there is no history or lay evidence of malunion or nonunion of the tibia and fibula, or genu recurvatum, the criteria of Diagnostic Codes 5262 and 5263 also do not apply. In sum, the Board finds that the preponderance of the evidence is against a rating more than 20 percent for a left knee disorder based on instability. Also, in the decision herein, the Board has determined that a separate 10 percent rating, but no higher, for symptomatic residuals of cartilage removal of the left knee is warranted. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against assignment of higher ratings. See 38 U.S.C. § 5107. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Miller, 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.