Citation Nr: 21027953 Decision Date: 05/07/21 Archive Date: 05/07/21 DOCKET NO. 16-22 656 DATE: May 7, 2021 ORDER Entitlement to an initial rating higher than 10 percent for right knee meniscal tear, patellofemoral pain syndrome, and degenerative arthritis, status post arthroscopy (previously rated as status post right knee arthroscopy) is denied. Entitlement to a separate 20 percent rating for symptomatology analogous to dislocated semilunar cartilage of the right knee with locking, pain, and effusion into the joint is granted. FINDINGS OF FACT 1. For the entire period on appeal, the Veteran's right knee disability has been manifested by flexion limited to, at worst, 60 degrees, and pain. 2. The Veteran underwent a right knee meniscectomy in October 2012, and has symptoms of locking, pain, and effusion into the joint since March 1, 2021. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for the service-connected right knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5260, 5261. 2. Since March 1, 2021, the criteria for a separate 20 percent rating for symptoms analogous to dislocated semilunar cartilage of the right knee with locking, pain, and effusion into the joint have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5258. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty for training in the Army National Guard from July 1983 to October 1983 and on active duty in the United States Navy from January 1985 to January 2013. This appeal comes before the Board of Veterans' Appeals (Board) from a September 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), in Winston-Salem, North Carolina. In July 2019, the Board remanded the Veteran's higher rating claim on appeal to the Agency of Original Jurisdiction for additional development. Higher Initial Rating for Right Knee Disability The Veteran has asserted that he should have a higher initial rating for his right knee disability as his symptoms are worse than those contemplated by the currently assigned rating. He is currently assigned a 10 percent rating as a result of painful limitation of motion, under 38 C.F.R. § 4.59. Limitation of motion of the knee is rated under 38 C.F.R. § 4.71a, DCs 5260 and 5261. Under DC 5260, a zero percent (noncompensable) rating is assigned for flexion limited to 60 degrees. A rating of 10 percent requires limitation of flexion to 45 degrees. A rating of 20 percent requires limitation of flexion to 30 degrees, and a rating of 30 percent requires limitation of flexion to 15 degrees. 38 C.F.R. § 4.74a, DC 5260. Under DC 5261, a rating of 10 percent requires limitation of extension to 10 degrees. A rating of 20 percent requires limitation of extension to 15 degrees. A rating of 30 percent requires limitation of extension to 20 degrees. A rating of 40 percent requires limitation of extension to 30 degrees, and a rating of 50 percent requires limitation of extension to 45 degrees. 38 C.F.R. § 4.74a, DC 5261. VA's General Counsel has held that separate ratings may be assigned under Diagnostic Codes 5260 and 5261 for disability of the same joint. VAOPGCPREC 9-2004. Specifically, where a Veteran has both limitation of flexion and a limitation of extension of the same leg, the limitations must be rated separately to adequately compensate the Veteran for all functional impairment. 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 and, therefore, not be reflected on range-of-motion testing. 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. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, 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. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria."). Painful motion with joint or periarticular pathology and unstable joints due to healed injury are recognized as productive of disability entitled to at least a minimal compensable rating for the joint. 38 C.F.R. § 4.59. The application of 38 C.F.R. § 4.59 is not limited to arthritis-related claims. Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the United States Court of Appeals for Veterans Claims (Court) held that the final sentence of 38 C.F.R. § 4.59 requires that whenever possible, VA examiners record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. A review of the record shows that the Veteran receives treatment at a VA Medical Center for his knee disability. However, a review of the treatment notes of record does not show the Veteran to have symptoms worse than those reported in the various VA examination reports of record, to include additional limitation of motion, or additional limitation following repeated use over a period of time or during a flare-up. The Veteran's service treatment records reveal that he underwent right meniscus repair in 2002, and subsequent VA treatment records indicate that he further underwent a right knee meniscus repair and debridement in 2012, all prior to the appeal period. The Veteran was afforded an initial VA examination of his right knee in September 2012. Range of motion testing revealed normal right knee flexion and extension, to 140 degrees and 0 degrees, respectively. The same ranges of motion were present after repetitive use testing. The examination report equivocally indicated that the Veteran had not undergone any surgical procedures for a meniscal condition. The report indicated that the Veteran did not have arthritis present at that time, and no pain was noted during examination. During a June 2017 VA-contracted examination, range of motion testing was performed on the right knee and revealed flexion was normal to 140 degrees and extension to 0 degrees. No pain was noted on examination and there was no objective evidence of tenderness of the knee joint, pain with weight-bearing, or evidence of crepitus. The Veteran was able to perform repetitive motion with three repetitions of motion and no additional loss of function or motion. The examiner indicated that he was unable to provide any information regarding loss of motion with repetitive use or during flare-ups due to the Veteran's poor range of motion displayed on focused examination but near normal range of motion displayed with transitions and in the waiting room indicating intentional manipulation of the examination. Joint stability testing and muscle strength testing were normal. Passive range of motion could not be tested and there was no evidence of pain on non-weight bearing. The Veteran ambulated without the use of assistive devices. During an April 2018 VA-contracted examination, the Veteran apparently reported that he had a medial meniscal tear of the right knee and underwent a right knee arthroscopy in 2000. He stated that he had weakness, stiffness, and constant sharp pain behind the patella. He noted that physical activity aggravated the pain. Range of motion testing revealed normal flexion to 140 degrees and extension to 0 degrees. There was no pain noted on examination, no evidence of pain with weight bearing, and no objective evidence of crepitus. The examiner indicated that there was objective evidence of pain with palpation of the medial and lateral patella. The Veteran was able to perform repetitive use testing with at least three repetitions and no additional loss of function or range of motion. Muscle strength testing was normal and there was no ankylosis of the right knee. There was no history of recurrent subluxation, no history of lateral instability, and no history of recurrent effusion. Joint stability testing was normal. The examiner noted that the Veteran had a meniscal tear and he underwent a right knee arthroscopy and right knee partial medial meniscectomy in October 2012, but that he did not have any residual signs or symptoms due to meniscectomy or any arthroscopic or other surgery. The Veteran ambulated without the use of assistive devices. There was no objective evidence of pain on passive motion and no objective evidence of pain when the joint was used in non-weight bearing. The Veteran was assessed with a meniscal tear, patellofemoral pain syndrome, degenerative arthritis of the right knee, and status post right knee arthroscopy. The examiner indicated that it was not possible to determine whether pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over a period of time or during flare-ups without resorting to mere speculation, without direct observation of functioning in those conditions. In Sharp, the Court addressed the adequacy of such "mere speculation" opinions, and explained that case law and VA guidelines do not require direct observation of functional impairment after repetitive use or during a flare-up as a prerequisite to offering an opinion consistent with DeLuca, 8 Vet. App. 202. In light of these deficiencies, the Board sought further development through additional examination in the July 2019 remand. Following the Board's remand, the Veteran was afforded his most recent VA-contracted knee examination in March 2021. During examination, the Veteran reported pain with walking and crepitus. Range of motion testing in active and passive motion revealed flexion of the right knee to 60 degrees and extension to 0 degrees with pain. There was pain with weight bearing, in active motion, and in passive motion, and on rest, but not in non-weight bearing. There was objective evidence of crepitus but no objective evidence of tenderness or pain to palpation. The Veteran was able to perform three repetitions of motion with 50 degrees of flexion and 0 degrees of extension with pain, fatigability, weakness, and lack of endurance. The examiner estimated that the Veteran would have 50 degrees of flexion and 0 degrees of extension with repeated use over time and during flare-ups, due to pain, fatigability, weakness, and lack of endurance. There was no muscle atrophy, no ankylosis, and no recurrent subluxation or persistent instability. The examiner noted that the Veteran had a meniscus (semilunar) condition diagnosed as a meniscal tear with frequent episodes of joint "locking," frequent episodes of joint pain, and frequent episodes of joint effusion. The examiner indicated that the Veteran had daily pain with locking and intermittent swelling. The Veteran ambulated without the use of any assistive devices. Joint stability testing was normal. Based on careful review of the evidence, the Board finds that the Veteran is not entitled to a rating in excess of 10 percent for his service-connected right knee disability. In this regard, there is no indication from the record that the Veteran has right knee flexion limited to 45 degrees or worse at any point during the appeal period. In fact, the Veteran was noted to have right knee flexion limited to, at worst, 60 degrees during the appeal period, with an estimated limitation of, at most, 50 degrees during flare-ups and with repeated use over a period of time. Further, the March 2021 VA examiner specifically considered any additional limitation as a result of pain, weakness, fatigability, or incoordination following repetition, repeated use over a period of time, or during a flare-up when reporting the Veteran's range of motion testing results, consistent with Sharp. Further, the Veteran has not been shown to have any limitation of extension at any point during the appeal period. As such, even with consideration of all pertinent disability factors, there remains no reasonable basis for assignment of a rating in excess of 10 percent for the right knee disability based on limitation of motion. Therefore, the preponderance of the evidence is against finding that a higher rating based on limitation of motion is warranted at this time. 38 C.F.R. §§ 4.40, 4.45, 4.71a, DCs 5260, 5261. Separate Rating for Meniscus Impairment Based on the evidence, the Board finds that the Veteran is entitled to a separate 20 percent rating for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint beginning March 1, 2021, the date of the VA examination that first revealed the presence of this symptomatology. In this regard, review of the record reveals that the Veteran underwent a right knee meniscal procedure during service, and indicates that he underwent a right knee meniscectomy in October 2012. While the examiners that conducted the September 2012, June 2017, and April 2018 examinations specifically did not attribute any symptomatology to the Veteran's meniscal procedure, at the time of the March 2021 examination, the Veteran was noted to experience frequent episodes of locking, pain, and effusion as a result of his (repaired) meniscal tear. As such, the Board finds that the Veteran is entitled to a separate 20 percent rating for symptomatology analogous to dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint beginning March 1, 2021. 38 C.F.R. § 4.71a, Diagnostic Code 5258. The Board considered whether a separate rating for symptomatic removal of semilunar cartilage is warranted prior to March 1, 2021; however, as noted, none of the Veteran's right knee symptomatology was attributed to the prior surgical procedure at the examinations in September 2012, June 2017, and April 2018. Nor was there evidence of such symptomatology in the Veteran's treatment records prior to the March 2021 examination. Consequently, there is no basis to assign a separate rating for symptomatic removal of semilunar cartilage prior to March 1, 2021. In reaching the above findings, the Board has also considered whether higher or additional ratings are warranted for right knee impairment under another diagnostic code pertaining to the knee. However, there is no indication from the record that the Veteran has right knee ankylosis, recurrent subluxation or lateral instability, impairment of the tibia or fibular, or genu recurvatum. As such, there is no basis to assign a higher or separate rating for the right knee under any other diagnostic code pertaining to the knee at any time during the appeal period. See 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5257, 5262, 5263. Consideration has been given to assigning staged ratings; however, at no time during the period in question has a disability warranted a higher schedular rating than that assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). Michael L. Wilson Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Cryan, 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.