Citation Nr: 21029100 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 16-25 047 DATE: May 12, 2021 ORDER Entitlement to a rating in excess of 10 percent for residuals of meniscal tear, right knee, post-operative makoplasty of medial compartment (right knee disability), is denied. Entitlement to a rating in excess of 10 percent for residuals of meniscal tear, left knee, post-operative (left knee disability), is denied. FINDINGS OF FACT 1. The Veteran served on active duty in the United States Marine Corps from March 1984 to June 2004. 2. The Veteran's service-connected right knee disability has been manifested by subjective complaints of pain, swelling, difficulty ambulating, and an inability to stand for long periods of time; objective findings include flexion limited to no fewer than 60 degrees, and no less than full extension, to include during a flare-up of symptoms, on repetitive motion testing, on active and passive motion, and in weight-bearing and non-weight-bearing positions. 3. A left knee disability has been manifested by subjective complaints of pain, swelling, difficulty ambulating, and an inability to stand for long periods of time; objective findings include flexion limited to no fewer than 60 degrees, and no less than full extension, to include during a flare-up of symptoms, on repetitive motion testing, on active and passive motion, and in weight-bearing and non-weight-bearing positions.. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for right knee disability are not demonstrated at any time during the appeal period. 38 U.S.C. §§ 1155, 5107(a), 5107A; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5003-5260; 85 Fed. Reg. 76,453, 76,463 (November 30, 2020). 2. The criteria for a rating in excess of 10 percent for left knee disability are not demonstrated at any time during the appeal period. 38 U.S.C. §§ 1155, 5107(a), 5107A; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DCs 5003-5260; 85 Fed. Reg. 76,453, 76,463 (November 30, 2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Veteran asserts that he is entitled to a higher rating for his bilateral knee disability. His bilateral knee disability is currently rated under DC 5003-5260. Hyphenated Diagnostic Codes are used when a rating under one Diagnostic Code requires use of an additional Diagnostic Code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27 (2017). Here, the first hyphenated code indicates the disability is rated under Diagnostic Code 5003, for degenerative arthritis. Diagnostic Code 5260 evaluates limitation of flexion of the leg. While this appeal was pending, the rating criteria for musculoskeletal disabilities was amended effective February 7, 2021. See 85 Fed. Reg. 230 (Nov. 30, 2020). If the amended criteria are more favorable, the implementation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of the change. If the pre-amended criteria are more favorable, VA can apply the pre-amended criteria for the period prior to and from the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran's appeals under the pre-amended criteria prior to February 7, 2021, and both the pre-amended and amended criteria since February 7, 2021. The criteria that is more favorable will be applied. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Under both the earlier and revised rating criteria, degenerative arthritis is rated under Diagnostic Code 5003. Under this code, arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate Diagnostic Codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined and not added, under Diagnostic Code 5003. For purpose of rating disability from arthritis, the knee is considered a major joint. 38 C.F.R. § 4.45 (f). The diagnostic codes that focus on limitation of motion of the knee are Diagnostic Codes 5260 (limitation of flexion) and 5261 (limitation of extension). Under the pre-amended regulations, a 20 percent rating is warranted when the objective medical evidence shows: moderate recurrent subluxation or lateral instability; dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint; flexion of the leg limited to 30 degrees; extension of the leg limited to 15 degrees; or malunion of the tibia or fibula with moderate knee or ankle disability. Under the revised criteria, a 20 percent rating is warranted when the objective medical evidence shows: a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: a brace, cane, or walker dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint; one of the following: - sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation; or - unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation flexion of the leg limited to 30 degrees; extension of the leg limited to 15 degrees; or Medial Tibial Stress Syndrome (MTSS), or shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, one lower extremity. Turning to the evidence, the Veteran has not claimed nor does the medical evidence show that he has ankylosis (defined as a fixation of the joint) in the right or left knee. VA examiners in August 2014, June 2015, June 2017, and June 2019 all found that the knees were not ankylosed. As such, the medical evidence does not support a higher rating due to ankylosis. Next, the objective evidence shows that there is no recurrent subluxation or lateral instability, as all joint stability tests were normal throughout the appeal period. In addition, all four of the medical examiners found no evidence of malunion of the tibia or fibula with a marked knee disability. Accordingly, a higher rating is not warranted on this basis. Further, the objective evidence shows that there are no shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, one lower extremity. Treatment records have also been reviewed which span the rating period on appeal. These records are silent for reports of ankylosis, recurrent subluxation or lateral instability or tibia/fibula impairment or shin splints. Next, the evidence does not support higher ratings based on limitation of flexion or extension. To that end, a July 2014 treatment record noted right knee flexion to 110 degrees and normal extension. Range of motion testing of the left knee showed flexion to 110 degrees and normal extension. Further, the August 2014 VA examiner measured right knee extension/flexion as 0 to 115 degrees and left knee extension/flexion as 0 to 115 degrees, including with pain on both. Normal range of motion ranges from 0 to 140 degrees. After repetitive use testing, ranges of motion were the same and functional loss resulting in less movement than normal, pain on movement, disturbance of locomotion, and interference with sitting, standing and/or weight bearing for both knees. The June 2015 examiner measured right and left knee flexion to 115 degrees and extension to 0 degrees, with pain. Next, the June 2017 VA examination reflected flexion to 100 degrees and extension to 0 degrees in both knees. Pain upon flexion in both knees was noted on examination but was noted not to contribute to any functional loss. Repetitive use testing was performed with no additional loss of range of motion or functional loss. The examiner noted that the Veteran was not being examined after repetitive use but the examiner determined that the examination neither supported nor contradicted the Veteran's statements describing functional loss with repetitive use over time. Further, although the Veteran was not being examined during a flare-up, the examiner opined that the examination of the Veteran neither supported nor contradicted his statements describing functional loss during flare-ups. The examiner stated that an opinion could not be provided without resort to speculation. Most recently, the June 2019 VA examiner measured flexion to 80 degrees and extension to 0 degrees in both the left and right knee. For both knees, the examiner stated that the examination neither supported nor contradicted the Veteran's statements describing functional loss with repetitive use over time. The examiner indicated that he was unable to say without mere speculation whether pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over time as the examination was not being conducted immediately after repetitive use over time. For flare-ups, the examiner did not estimate additional motion loss during flare-ups. The examiner stated that an opinion could not be provided without resort to speculation. In addition, on an October 2020 VA addendum opinion, the examiner found that, after repetitive use testing, the range of motion testing of both knees was measured, with flexion to 60 degrees and extension from 60-0 degrees. Further, the range of motion testing of both knees during a flare-up was measured, with flexion to 60 degrees and extension from 60-0 degrees. The medical evidence, including the VA examinations and clinical treatment records, does not show flexion limited to 30 degrees or extension limited to 15 degrees. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain, less movement than normal, pain on movement, disturbance of locomotion, and interference with sitting, standing and/or weight bearing for both knees. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements would not result in limitation of motion more nearly approximating flexion limited to 30 degrees or less or extension limited to 15 degrees or more. As such, the medical evidence does not support higher ratings under DCs 5260-5261 for limitation of motion. Next, VA examiners in August 2014, June 2015, June 2017, and June 2019 did not find any impairment of the tibia or fibula in the right or left leg with a moderate knee disability. Further, private and VA medical records did not show a left or right tibia or fibula impairment. Therefore, a higher rating is not warranted under these criteria. However, the record establishes that the Veteran presented with a meniscal (semilunar cartilage) condition of the right and left knee during the rating period on appeal. The August 2014 VA examiner noted a prior history of right knee meniscectomy in 1996 and left knee meniscectomy in 2000 and identified symptoms of meniscal tear (left knee), and frequent episodes of joint "locking", joint pain and joint effusion of both knees. Next, the June 2015 VA examiner noted a prior history of right knee arthroscopic meniscectomy in 1995 and left knee arthroscopic meniscectomy in 2000 and total knee replacement in 2015 in both knees. The examiner noted that the meniscus condition was marked by frequent episodes of joint "locking," pain, and effusion in both knees. However, although the June 2017 VA examiner noted the meniscal (semilunar cartilage) condition of the right and left knee, there were no current symptoms. The examiner explained that the symptoms of joint pain and effusion had resolved regarding the prior bilateral medial meniscal degenerative tears. Most recently, the June 2019 VA examiner noted that the Veteran underwent a prior right knee medial meniscus debridement in 1999 and a left knee medial meniscus debridement in 1996 and bilateral medial joint replacement in 2017. While the June 2019 examiner did find a bilateral meniscal condition, specifically, a meniscal tear, there was no episodes of frequent joint pain or effusion noted in the right knee. In this regard, the examiner only found frequent episodes of joint "locking" in the right knee. Further, he did not find any episodes of joint "locking", joint pain, or joint effusion in the left knee. Based on the Veteran's account that his knees have frequent episodes of "locking", pain, and effusion, the Board has considered whether a higher rating is warranted under DC 5258. However, records do not indicate that there is dislocated semilunar cartilage; which is required for a rating under DC 5258. Therefore, a higher rating under DC 5258 is not warranted. The Veteran's medical records were also reviewed. While treatment for his right and left knee disabilities was noted intermittently, the medical evidence does not reflect symptoms more severe than were outlined in the VA examinations. The Board has also considered the Veteran's lay statements that his disabilities are worse. Specifically, the Veteran has reported bilateral knee pain and difficulty with walking or standing. He has also noted pain while standing, walking or sitting for longer than 5 minutes, inability to kneel, squat, or climb a ladder, difficulty doing anything physical, constant stiffness, and pain with any movement. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of these disorders according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran's knee disabilities has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which the disabilities are evaluated. Moreover, as the examiners have the requisite medical expertise to render medical opinions regarding the degree of impairment caused by the disabilities and had sufficient facts and data on which to base the conclusions, the Board affords the medical opinions great probative value. (Continued on the next page) As such, these records are more probative than the Veteran's subjective complaints of increased symptomatology. In sum, after a careful review of the evidence of record, the benefit of the doubt rule is not applicable. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). SCOTT W. DALE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Grzeczkowicz 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.