Citation Nr: 21030508 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 13-16 825 DATE: May 19, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for right knee degenerative joint disease prior to May 15, 2015 and in excess of 40 percent for a right knee degenerative joint disease, from May 15, 2015, is denied. From May 15, 2015, the criteria for a separate 20 percent disability evaluation, but not higher, for degenerative joint disease of the right knee manifested by semilunar cartilage dysfunction is granted subject to the laws and regulations governing the payment of monetary benefits. From July 1, 2014, the criteria for a separate 10 percent disability evaluation, but not higher, for instability of the right knee is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. Prior to May 15, 2015, the Veteran's right knee disability was productive of, at worst, flexion limited to 105 degrees with pain, during flare-ups and following repetitive use, but not productive of flexion limited to 30 degrees or extension of the leg limited to 15 degrees including due to pain or during flare-ups or following repetitive use; or subluxation. 2. From May 15, 2015, the Veteran's right knee disability is productive of, at worst, extension limited to 10 degrees with pain, and favorable ankylosis in flexion between 10 and 20 degrees during flare-ups and following repetitive use, but is not productive of extension limited to 45 degrees; ankylosis in flexion between 20 and 45; or subluxation. 3. From May 15, 2015, the Veteran's right knee disability characterized as degenerative joint disease of the right knee is manifested by dislocated semilunar cartilage, with severe and near constant episodes of locking of the right knee joint. 4. From July 1, 2014, the Veteran's left knee disability is manifested by slight lateral instability CONCLUSIONS OF LAW 1. Prior to May 15, 2015, the criteria for a rating in excess of 10 percent for service-connected right knee disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.45, 4.59, 4.71a, Diagnostic Codes 5010-5261. 2. From May 15, 2015, the criteria for a rating in excess of 40 percent for service-connected right knee disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.45, 4.59, 4.71a, Diagnostic Codes 5010-5256. 3. From May 15, 2015, the criteria for a separate 20 percent disability evaluation, but not higher, for degenerative joint disease of the right knee manifested by semilunar cartilage dysfunction are met. 38 U.S.C. §§ 1155, 5107(a); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5258. 4. From July 1, 2014, the criteria for a separate 10 percent rating for lateral instability of the left knee are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from February 1994 to February 1998. In November 2019, the Board of Veterans' Appeals (Board) remanded the issue on appeal to the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). As the actions specified in the remand have been completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). On remand and in a July 2020 rating decision, the AOJ granted a 40 percent rating effective May 15, 2015, pursuant to Diagnostic Codes 5010-5256 for the Veteran's right knee disability recharacterizing the disability as right knee degenerative joint disease and meniscus tear. Increased Rating Disability ratings are determined by the application of rating criteria as set forth in VA's Schedule for Rating Disabilities (38 C.F.R. Part 4) and based on the average impairment of earning capacity, with separate diagnostic codes (DCs) identifying the various disabilities. 38 U.S.C. § 1155. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7; see also 38 C.F.R. § 4.21. See 38 C.F.R. §§ 4.1, 4.2, 4.10. Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not "duplicative of or overlapping with the symptomatology" of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Staged ratings are appropriate for an initial or increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that warrant different ratings. Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Evaluating musculoskeletal disabilities based on limitation of motion, requires consideration of functional loss caused by pain or other factors listed in 38 C.F.R. § 4.40 that can occur during flare-ups or after repeated use, and so, may not be reflected on range-of-motion testing. Nonetheless, even when the 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; a separate or higher rating under section 4.40 or section 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016). 38 C.F.R. § 4.45 requires consideration also be given to motion that is less or more than normal, weakened, and painful as well as excess fatigability and incoordination. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Also, section 4.59 requires consideration of 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." Correia v. McDonald, 28 Vet. App. 158 (2016). Consideration should also be given to the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flare-ups, including based on information from the veteran when a flare-up is not observable on examination. Sharp v. Shulkin, 29 Vet. App. 26 (2017). 1. Entitlement to a higher rating for a service-connected right knee disability The Veteran's right knee disability has been rated under the provisions of Diagnostic Code 5010-5261 from July 1, 2008 to May 15, 2015, and under 5010-5256 thereafter. 38 C.F.R. § 4.71a. The Board observes that the schedular criteria for evaluating disabilities of the musculoskeletal system, including the knee joint, have undergone revision during the pendency of this appeal. Specifically, and as relevant to this case, revisions to Diagnostic Code 5003, 5010, and 5257 were made, effective February 7, 2021. See 85 Fed. Reg. 76460, 76457 (Feb 7, 2021). Prior to February 7, 2021, Diagnostic Code 5010 instructed the rater to rate traumatic arthritis as degenerative arthritis under Diagnostic Code 5003. 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). Normal range of knee motion is extension to 0 degrees and flexion to 140 degrees. 38 C.F.R. § 4.71, Plate II. Under Diagnostic Code 5260, pertaining to limitation of leg flexion, a noncompensable evaluation is assigned where flexion is limited to 60 degrees. A 10 percent rating is warranted where flexion is limited to 45 degrees. A 20 percent evaluation is for application where flexion is limited to 30 degrees. Finally, a 30 percent rating applies where flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5261, pertaining to limitation of leg extension, a noncompensable evaluation is assigned where extension is limited to 5 degrees. A 10 percent rating is warranted where extension is limited to 10 degrees. A 20 percent evaluation is for application where extension is limited to 15 degrees. A 30 percent rating applies where extension is limited to 20 degrees. A 40 percent rating is warranted where extension is limited to 30 degrees. Finally, a 50 percent evaluation is warranted where extension is limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Under Diagnostic Code 5256, a 30 percent rating is assigned for favorable ankylosis of the knee in full extension or in slight flexion between 0 and 10 degrees; a 40 percent rating is assigned for ankylosis of the knee between 10 and 20 degrees of flexion; a 50 percent rating is assigned for ankylosis of the knee between 20 and 45 degrees of flexion; and a 60 percent rating is assigned for extremely unfavorable ankylosis of the knee in flexion at an angle of 45 degrees of more. 38 C.F.R. § 4.71a, Diagnostic Code 5256. Under Diagnostic Code 5258, dislocated semilunar cartilage, with frequent episodes of locking, pain, and effusion into the knee joint, warrants a 20 percent rating. Diagnostic Code 5259 warrants a 10 percent rating for cartilage, semilunar, removal of, symptomatic. Id. During a December 2010 VA general medical examination, the Veteran noted bilateral knee pain that he treated with Motrin. Upon examination, his right knee range of motion testing measured 0 degrees to 130 degrees. There was no objective evidence of pain on active motion. There was no pain on motion after three repetitions, nor were there additional limitations of motion after three repetitions. In February 2012, the Veteran underwent a VA examination. The Veteran was diagnosed with severe degenerative joint disease of his right knee. He reported an increase in his right knee pain. He reported weekly flare-ups of pain that usually lasted 2 days. He treated his flares with ibuprofen. Right knee range of motion testing measured 0 degrees to 105 degrees, 0 degrees to 90 degrees with pain. He was able to perform repetitive testing with no additional functional loss or decrease in range of motion. Muscle strength was normal. He did not have muscle atrophy, ankylosis, or joint instability. Notably, all joint stability tests yielded normal findings. There was evidence or history of recurrent patellar subluxation/dislocation. He did not have any meniscal conditions. He had crepitus, as well as bony enlargement and tenderness of medial and posterior knees. He did not use assistive devices. A February 2012 image study showed severe advanced arthritic changes of the right knee. The VA examiner noted that the functional impact included difficulty with prolonged walking. In February 2014, the Veteran underwent another VA examination. The Veteran was diagnosed with degenerative joint disease of his right knee. He reported an increase in his right knee pain over the medial and posterior aspects of his knee. Also, he reported a decrease in right knee flexion. He reported flare-ups with prolonged walking standing, and stair use. Right knee range of motion testing measured 0 degrees to 105 degrees. Pain was noted on the examination; however, it did not cause functional loss. He was able to perform repetitive testing with no additional functional loss or decrease in range of motion. He did not have tenderness or pain on palpitation for joint line or soft tissue of the right knee. Muscle strength was normal. He did not have muscle atrophy, ankylosis, or joint instability. There was no evidence or history of recurrent patellar subluxation/dislocation. He did not have any meniscal conditions. The Veteran regularly used a brace. An October 1996 image study showed mild arthritic changes of the right knee. The VA examiner noted that the functional impact included difficulty with prolonged walking. During his July 2014 Board hearing the Veteran stated that he had right knee instability and that it had given out on several occasions. He used a right knee brace to help with stability. The Veteran reported swelling, pain, crepitus, and difficulty reaching full range of motion. A May 2015 right knee image study revealed moderate to advanced tricompartmental osteoarthritis most severe in the medial meniscus with near full-thickness posterior horn medial meniscal tear. There were no significant ligamentous abnormalities. In December 2015, the Veteran underwent a VA examination. The Veteran was diagnosed with a right knee meniscal tear and degenerative arthritis of his right knee. He reported right knee swelling, sudden weakness when descending stairs, and sharp right knee pain after descending stairs. He reported right knee crepitus. He treated his symptoms with Synvisc injections. He was issued a right knee brace by VA. He did not report flare-ups. He noted trouble with swelling and pain upon standing and sitting for prolonged periods. Right knee range of motion testing measured 10 degrees to 85 degrees. Pain was noted on the examination, which caused functional loss. There was objective evidence of pain with weight bearing. There was objective evidence of palpable tenderness of the lateral and medial condyle. Muscle strength was normal. He did not have muscle atrophy or ankylosis. Upon testing, posterior right knee stability testing was 1+. Anterior, medial, and later stability was normal. He had a right knee meniscal tear that caused frequent episodes of joint pain and joint effusions. The Veteran regularly used a brace. A May 2015 image study showed moderate to advanced degenerative arthritic changes of the right knee. The VA examiner noted that the functional impact included difficulty kneeling or with prolonged standing and sitting. During a July 2018 VA follow-up, the Veteran stated that his right knee pain was worse and that medications were not helping alleviate the pain. An August 2018 right knee image study revealed advanced tricompartmental degenerative changes throughout the knee. A very small right knee joint effusion was present. In December 2019, the Veteran was afforded a VA examination. The Veteran was diagnosed with degenerative arthritis of his right knee and a right knee meniscal tear. He reported constant right knee pain, swelling, and limited range of motion. He treated his symptoms with pain medication, ointments, and a knee brace. He reported right knee pain flare-ups precipitated by sitting, standing, or walking. Pain relievers and elevation alleviated his flare-ups. Right knee range of motion testing measured 0 degrees to 50 degrees. Pain was noted on the examination, which caused functional loss. There was no objective evidence of crepitus; however, there was objective evidence of pain with weight bearing, pain without weight bearing, and pain on passive range of motion. There was objective evidence of palpable tenderness and pain over the right knee. He was able to perform repetitive testing with no additional functional loss or decrease in range of motion. The examiner was able to describe repetitive use over time in terms of range of motion that measured 10 degrees to 40 degrees. The examination was not being conducted during a flare-up; however, the examiner was able to describe range of motion during a flare-up which measured 10 degrees to 40 degrees. Muscle strength measured 4/5. A 4/5 rating indicates that the Veteran experiences active movement against some resistance. He did not have muscle atrophy. The Veteran had favorable ankylosis in flexion between 10 and 20 degrees. The right-side angle of ankylosis was 10 degrees. Notably, all joint stability tests were normal. He did not have recurrent patellar dislocation. He had a right knee meniscal tear that caused frequent and severe episodes of joint pain and locking. The Veteran regularly used a brace. A December 2019 image study showed degenerative arthritic changes throughout the right knee, greater than expected for the Veteran's age. The VA examiner noted that the functional impact included difficulty walking and standing for prolonged periods of time. He would have difficulty kneeling, bending, or squatting. He also had right knee locking that would make it difficult with prolonged sitting. In this case, the objective evidence shows, at worse and considering Mitchell, DeLuca, and all relevant factors, prior to May 15, 2015 flexion was limited to 90 degrees with painful motion and extension was limited to 0 degrees with pain. Prior to May 15, 2015, a rating higher than 10 percent for painful motion of the right knee is not warranted based on loss of flexion and extension even with consideration of the Veteran's report of increased pain and decreased ability to stand or walk for longer periods of time with flares. The evidence does not show that, even with flares, the Veteran's disability is manifested by symptoms as shown in the next higher ratings for limitation of motion. Additionally, the evidence of record does not show that the Veteran's right knee disability was manifested by dislocated semilunar cartilage. Notably, no meniscus abnormality was noted prior to May 2015 as the image studies showed that the meniscus was intact and normal. Therefore, additional higher ratings under Diagnostic Codes 5258 and 5259 are not warranted. In recognition of the Veteran's contention of a debilitating knee disability, the current disability rating does indicate a significant impact on his functional ability. Such a disability evaluation assigned by VA recognizes his pain, indicating generally a corresponding reduction in his ability to function due to his knee disability. The critical question in this case, however, is whether the problems he has cited meet the next highest level under the rating criteria. For reasons cited above, the Board finds they do not. In this case, the objective evidence shows, at worse and considering Mitchell, DeLuca, and all relevant factors, from May 15, 2015, flexion was limited to 40 degrees with painful motion and extension was limited to 10 degrees with pain. From May 15, 2015, a rating higher than 40 percent for painful motion of the right knee is not warranted based on loss of flexion and extension even with consideration of the Veteran's report of increased pain and decreased ability to stand or walk for longer periods of time with flares. Diagnostic Code 5260 does not allow for a rating in excess of 30 percent and the Veteran's right knee extension was not limited to 45 degrees. The Board notes that a July 2020 rating decision granted an increased rating of 40 percent for right knee degenerative joint disease and meniscus tear, effective May 15, 2015 as the December 2019 VA examiner found that the Veteran had favorable ankylosis in flexion between 10 and 20 degrees. The right-side angle of ankylosis was 10 degrees. As the Veteran has not exhibited ankylosis of the knee between 20 and 45 degrees of flexion, a disability rating in excess of 40 percent is not warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5256. The current disability rating indicates a significant impact on his functional ability. Such a disability evaluation assigned by VA recognizes his pain, indicating generally a corresponding reduction in his ability to function due to his knee disability. The critical question in this case, however, is whether the problems he has cited meet the next highest level under the rating criteria. For reasons cited above, the Board finds they do not. The Board has considered the Veteran's statements that his knee disability is worse, as well as his reports of pain and functional loss. While he is competent to provide evidence regarding matters that can be perceived by the senses, he is not shown to be competent to render medical opinions or to provide objective clinical data regarding whether his symptoms meet the next higher rating criteria under VA regulations. However, the Board finds that a separate 20 percent disability rating is warranted as the Veteran's right knee disability was manifested by dislocated semilunar cartilage. The December 2019 VA examiner noted that the Veteran had a right knee meniscal tear that caused frequent and severe episodes of joint pain and locking. As these symptoms do not necessarily overlap with limitation of motion (or ankylosis), a separate rating under Diagnostic Code 5258 does not violate the rule against pyramiding. See 38 C.F.R. § 4.14. The Board finds that the Veteran is entitled to a separate 20 percent rating, but no higher, for his right knee dislocated semilunar cartilage under 38 C.F.R. § 4.71a, Diagnostic Code 5258, and the Board finds that this rating should be effective from May 15, 2015, the date of the image study that revealed a near full-thickness posterior horn medial meniscal tear. This is the sole schedular rating under this diagnostic code. See 38 C.F.R. § 4.71a, Diagnostic Code 5258. The evidence during this period reflects a finding of dislocated semilunar cartilage, with frequent episodes of effusion, locking and pain into the knee joint. Such competent evidence concerning the nature and extent of the Veteran's knee disability has been provided by the medical personnel who examined him during the current appeal. The medical findings (as provided in the examination reports and clinical records) directly address the criteria under which the knee disability is evaluated. The specific clinical measures of ranges of motion, including examiners' findings and opinions regarding additional limitations of motion due to such factors, have been weighed and considered by the Board. Such specific measures and findings are of more probative value in determining specific ranges of motion than are general histories or general descriptions of symptoms of pain or limitations, such as this Veteran's report of pain and functional loss. Thus, the overall evidence does not show that pain or other factors resulted in additional functional limitation or limitation of motion such as to enable a finding that the disability picture more nearly approximates a disability rating in excess of 10 percent for the right knee disability prior to May 15, 2015 or in excess of a 40 percent rating thereafter under the rating criteria for knee disabilities at any time during the increased rating period. In determining whether a higher rating is warranted for service-connected disability, VA must determine whether the evidence supports the Veteran's claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, the preponderance of the evidence is against a rating in excess of 10 percent prior to May 15, 2015, and a rating in excess of 40 percent thereafter. However, the Veteran the Board finds that a separate 20 percent disability rating is warranted as the Veteran's right knee disability from May 15, 2015. 2. Entitlement to a separate disability rating for instability of the right knee The evidence currently of record indicates that the Veteran's symptoms include instability of the right knee. Prior to February 7, 2021, lateral instability of the knee is rated under DC 5257. In accordance with DC 5257, a 10 percent rating is warranted for slight recurrent subluxation or lateral instability. A 20 percent rating is warranted for moderate recurrent subluxation or lateral instability. A 30 percent rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, DC 5257. From February 7, 2021, under Diagnostic Code 5257, a 10 percent rating is warranted for a sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation, or a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. A 20 percent rating is warranted for an 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, or 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. Lastly, a 30 percent rating is warranted for an unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation, or a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. 38 C.F.R. § 4.71a, Diagnostic Code 5257, effective February 7, 2021. Objective medical evidence is not required to establish lateral knee instability under DC 5257, so objective medical evidence cannot be categorically found more probative than lay evidence with respect to this diagnostic code. English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). As noted above, the Veteran first noted right knee instability during his July 1, 2014 Board hearing. Also, the Veteran testified to using a right knee brace to keep his stability. There is no diagnosis of right knee instability in the Veteran's medical records; however, the December 2015 VA examination showed posterior right knee stability testing was 1+. Nevertheless, as noted above, per English the absence of objective medical evidence is not fatal to the finding of knee instability since credible lay evidence can be used to establish knee instability. As the December 2015 examiner noted a deficiency in the Veteran's right knee stability, the Veteran's Board hearing statements regarding his right knee "giving out" were supported. In sum, the Board finds that the Veteran is entitled to a separate rating under DC 5257 for instability of the right knee from July 1, 2014. The evidence of record establishes that the Veteran experienced at worse slight instability of his right knee. Therefore, a 10 percent rating under DC 5257 is warranted. A rating in excess of 10 percent under DC 5257 is not warranted as overall the lay and medical evidence does not show that the Veteran experiences moderate recurrent subluxation or lateral instability in his right knee, and due to the general absence of objective evidence of instability overall during the appeal period, the Board does not find that a higher 20 percent rating under the revised diagnostic criteria which requires persistent instability is warranted, as well. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Costello, 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.