Citation Nr: 21031181 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 11-20 663 DATE: May 20, 2021 ORDER Entitlement to an evaluation in excess of 30 percent for residuals of left knee injury, status post medial meniscectomy, with degenerative joint disease is denied. FINDING OF FACT Throughout the appeal period, the evidence demonstrates that the Veteran's left knee injury, status post medial meniscectomy, with degenerative joint disease, is manifested by extension limited to no more than 22 degrees, flexion limited to no less than 50 degrees, painful motion, and symptomatic removal of cartilage. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent for residuals of left knee injury, status post medial meniscectomy, with degenerative joint disease, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes (DCs) 5259, 5260, 5261. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1972 to May 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) during a September 2017 videoconference hearing; a transcript is of record. The issue was previously remanded by the Board in January 2018 and April 2020; it has been returned to the Board for appellate review. The matter of principle concern herein is the rating for limitation of extension. A separate rating for meniscectomy residuals, rated 10 percent and a separate noncompensable rating for limitation of flexion have been assigned. They are discussed below, but those issues are not on appeal at this time, other than as considered with the concern with extension, discussed below. Increased Ratings VA assigns disability ratings by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.10. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. § 4.2. If two disability ratings are potentially applicable, 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. The United States Court of Appeals for Veterans Claims (Court) has held that, at the time of the assignment of an initial rating for a disability following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as staged ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Court also has held that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the claim for an increased rating was filed until a final decision is made. See Hart. v. Mansfield, 21 Vet. App. 505 (2007). The Court has indicated that the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. When evaluation of a musculoskeletal disability is based on limitation of motion, that evaluation must include consideration of impairment of function due to such factors as pain on motion, weakened motion, excess fatigability, diminished endurance, or incoordination. 38 C.F.R. §§ 4.40, 4.45, 4.59; see DeLuca v. Brown, 8 Vet. App. 202 (1995). In Correia v McDonald, 28 Vet. App. 158 (2016), the Court held that 38 C.F.R. § 4.59 indicates that evaluation of joints that have painful motion also should include consideration of whether there is pain on both active and passive motion, consideration of whether there is pain with and without weightbearing, and comparison of the range of motion to that of any opposite undamaged joint. The rating criteria for musculoskeletal disorders changed effective February 7, 2021. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 38 C.F.R. §§ 4.71a, 4.73. Where the rating criteria affecting a disability have changed, VA will apply the earlier version before February 7, 2021, the effective date for the change. From February 7, 2021, VA will apply either the earlier version or the revised version, whichever is more favorable to the claimant. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Knee Disabilities, Generally The February 2021 rating criteria revisions do not change the criteria for rating degenerative arthritis, under 38 C.F.R. § 4.71a, Diagnostic Code 5003. Under that code, degenerative arthritis is rated based on the limitation of motion of the affected joint. If the limitation of motion is noncompensable, a 10 percent rating is assigned for each major joint. The RO evaluated the Veteran's left knee degenerative arthritis under 38 C.F.R. § 4.71a, Diagnostic Code 5261, for limitation of extension. The February 2021 rating criteria revisions do not change those criteria, which provide ratings of 50 percent if extension is limited to 45 degrees, 40 percent if limited to 30 degrees, 30 percent if limited to 20 degrees, 20 percent if limited to 15 degrees, 10 percent if limited to 10 degrees, and 0 percent if limited to 5 degrees. Id. Under 38 C.F.R. § 4.71a, Diagnostic Code 5260, limitation of flexion of the knee is rated at 30 percent if flexion is limited to 15 degrees, 20 percent if limited to 30 degrees, 10 percent if limited to 45 degrees, and 0 percent if limited to 60 degrees. The February 2021 rating criteria revisions do not change those criteria. The normal range of knee motion is 140 degrees of flexion and zero degrees of extension. 38 C.F.R. § 4.71, Plate II. The VA General Counsel has held that separate ratings can be provided for limitation of knee extension and flexion under Diagnostic Codes 5260 and 5261, if both ranges of motion meet the criteria for a compensable rating. VAOPGCPREC 9-2004; 69 Fed. Reg. 59990 (2004). Finally, under 38 C.F.R. § 4.71a, Diagnostic Code 5259, removal of cartilage, symptomatic, is rated at 10 percent. This is the maximum allowed evaluation and the February 2021 rating criteria revisions do not change those criteria. Factual Background At the outset, the Board notes that the Veteran was evaluated at 10 percent for residuals of left knee injury, status post medial meniscectomy, with degenerative joint disease effective May 18, 1974 under Diagnostic Code (DC) 5261 for limitation of extension. In March 2010, the Veteran filed a claim for an increased rating and a July 2010 rating decision increased the rating to 30 percent effective March 25, 2010. The Veteran filed a Notice of Disagreement (NOD) with this rating decision and perfected his appeal, asserting that he was entitled to a rating in excess of 30 percent. During the pendency of the appeal, an October 2019 rating decision granted a separate 10 percent evaluation for residuals left knee, status post meniscectomy effective July 6, 2018 under DC 5259 for removal of cartilage, symptomatic. In an August 2020 rating decision, the Veteran was granted another separate noncompensable evaluation for limitation of flexion under DC 5260 effective July 6, 2018. Subsequently, the effective date for the separate 10 percent rating under DC 5259 was made effective March 2010. There has been no disagreement with these actions. Turning to the record, ongoing VA treatment records indicate complaints of knee pain and stiffness. There is no documentation of edema, but continued complaints of pain with range of motion testing and the use of a knee brace. A treatment note in October 2009 notes crepitus and a treatment note from November 2009 indicates a denial of any catching, locking, or falling. Range of motion (ROM) testing at that time was 0 to 120 degrees and muscle tone and strength testing was normal. The Veteran was afforded a VA examination in May 2010 whereby he reported having pain, stiffness, heat, locking, lack of endurance, weakness, swelling, and giving way of the left knee. He reported having flare-ups three times per week, lasing approximately four hours to two days caused by prolonged walking. The examiner noted an antalgic slow gait that favored the left knee. There was no evidence of ankylosis, dislocation, subluxation, or instability. ROM testing indicated extension and flexion from 18 to 84 degrees on initial testing and 22 to 84 degrees after repeat testing. Ligament and meniscus testing were normal. The examiner noted pain, weakness, abnormal movement, and guarding on examination. There was no evidence of lack of endurance, incoordination, edema, effusion, instability, tenderness, or abnormal weight-bearing. The Veteran reported using a cane to help with walking. Based on this examination, the Veteran was granted an increased evaluation to 30 percent under DC 5261for limitation of extension to 20 degrees. The Veteran was afforded another VA examination in August 2016 whereby the examiner indicated diagnoses of left knee meniscal tear, patellofemoral pain syndrome of the left knee, and degenerative arthritis of the left knee. ROM testing indicated left knee flexion was limited to 85 degrees and extension was limited to 10 degrees. With repetitive testing, flexion was reduced to 80 degrees and extension remained 10 degrees. The examiner stated that he could not say without resorting to speculation whether range of motion would be further reduced during a flare-up because the Veteran was not examined during a flare-up. The examiner noted pain on weightbearing, localized tenderness, and crepitus. There was no evidence of ankylosis, instability, recurrent effusion, or subluxation. The Veteran reported regular use of a brace. Although the August 2016 VA examination indicated ROM testing results suggesting some improvement, the RO continued the Veteran's 30 percent rating. During the September 2017 hearing, the Veteran testified that his left knee pain had worsened since the August 2016 VA examination. Therefore, the Board remanded the issue for a new examination in its January 2018 decision. A November 2017 VA treatment note indicated ROM testing of flexion limited to 60 degrees and extension to 5 degrees. However, the clinician noted that the flexion was observed at 90 degrees while the Veteran was seated. The Veteran was afforded another VA examination in July 2018 whereby the examiner indicated a diagnosis of residuals of left knee injury, status post medial meniscectomy with degenerative joint disease. ROM testing indicated left knee flexion was limited to 50 degrees and extension to 0 degrees. There was evidence of pain with weightbearing, localized tenderness, and crepitus. The Veteran was not able to perform repetitive use testing due to pain, and thus ROM measurements were not available. The examiner indicated that the examination was being conducted during a flare-up. There was no ankylosis, no recurrent subluxation, and no instability noted. The Veteran indicated use of a cane and a brace to assist with walking. In an October 2019 rating decision, the Veteran was granted a separate 10 percent evaluation under DC 5259 for symptomatic residuals of semilunar cartilage removal effective July 6, 2018. This is the highest rating available under this Diagnostic Code. Pursuant to the April 2020 Board remand, the Veteran was afforded a new VA examination in August 2020. The Veteran reported continued left knee pain with swelling, which makes it hard to walk, stand or sit for long periods of time. ROM testing indicated flexion to 65 degrees and extension to 0 degrees with pain on both flexion and extension. There was evidence of localized tenderness to palpation, pain with weightbearing, and crepitus. The examiner indicated that the Veteran's range of motion after repeated use over time would be 0 to 50 degrees and 0 to 65 degrees during flare-ups. Muscle strength in the left knee was reduced to 4 out of 5 for extension and full for flexion. There was no ankylosis, atrophy, or instability noted upon examination. Entitlement to an evaluation in excess of 30 percent for residuals of left knee injury, status post medial meniscectomy, with degenerative joint disease After careful review, the Board finds that the record does not demonstrate the requisite manifestations for a rating in excess of 30 percent for residuals of left knee injury, status post medial meniscectomy, with degenerative joint disease. For a 40 percent rating or higher under DC 5261, there must be evidence that extension is limited to 30 degrees or more. At its worst, the Veteran had limited extension to 22 degrees during the appeal period. There is no evidence of record indicating extension being limited to 30 degrees or more at any time to warrant an evaluation in excess of 30 percent under DC 5261. Further, the Veteran has received separate ratings of 0 percent under DC 5260 and 10 percent under DC 5259 during the appeal period. For a compensable rating under DC 5260, there must be evidence that flexion is limited to 45 degrees or less. At its worst, the Veteran had limited flexion to 50 degrees after repetitive use. There is no evidence of record indicating flexion limited to 45 degrees or less at any time during the appeal period to warrant a compensable rating under DC 5260. Finally, the Veteran is in receipt of the maximum 10 percent rating under 5259 for symptomatic residuals of semilunar cartilage, and thus cannot receive a higher evaluation under this Diagnostic Code. The Board has also considered whether any separate ratings are warranted under other Diagnostic Codes. Based on the evidence, the only applicable Diagnostic Codes are 5003-5010, for arthritis, 5259 for residuals of semilunar cartilage, 5260 for limitation of flexion, and 5261 for limitation of extension. Throughout the entire appeal period, the Veteran's left knee disability exhibited no objective evidence of ankylosis, subluxation, other tibia or fibula bony impairment, traumatic genu recurvatum, or instability. 38 C.F.R. § 4.71a. The Board also acknowledges the Veteran's complaints of left knee pain. However, the Board notes the objective evidence of record indicates such pain does not limit the Veteran's functional range of motion of the left knee to a level warranting evaluations in excess of those assigned. See Mitchell v. Shinseki, 25 Vet. App. 32 ("pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system."). Thus, the Board finds that the Veteran's reported pain has been appropriately contemplated in the ratings assigned throughout the appeals process. In summation, the Board finds that a rating in excess of 30 percent under DC 5261 for residuals of left knee injury, status post medial meniscectomy, with degenerative joint disease, is not warranted at any time during the appeal period. Further, the Veteran is in receipt of separate ratings under DC 5259 and 5260 and the Board finds that higher evaluations under those Diagnostic Codes are not warranted, nor are any other separate evaluations under other Diagnostic Codes applicable. The Board has considered the doctrine of reasonable doubt, but as the evidence preponderates against the claim, a higher rating is not warranted. 38 U.S.C. § 5107. MICHAEL D. LYON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Sneeringer, Associate 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.