Citation Nr: 21031608 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 19-06 052A DATE: May 24, 2021 ORDER Entitlement to a rating in excess of 10 percent for right knee osteoarthritis and patellofemoral syndrome with degenerative joint disease is denied. Entitlement to a rating in excess of 30 percent for left knee osteoarthritis and patellofemoral syndrome with degenerative joint disease is denied. Entitlement to a separate 20 percent rating for right knee dislocated semilunar (meniscal) cartilage with pain, locking and effusion is granted. Entitlement to a separate 20 percent rating for left knee dislocated semilunar (meniscal) cartilage with pain, locking and effusion is granted. FINDINGS OF FACT 1. Right knee osteoarthritis and patellofemoral syndrome with degenerative joint disease manifests by painful motion with flare ups and range of motion of flexion to 100 degrees and extension to 0 degrees, without ankylosis, subluxation or lateral instability, recurrent patellar dislocation, and/or impairment of the tibia or fibula. 2. Left knee osteoarthritis and patellofemoral syndrome with degenerative joint disease manifests by painful motion with flare ups and range of motion of flexion to 90 degrees and extension to 0 degrees, without ankylosis, subluxation or lateral instability, recurrent patellar dislocation, and/or impairment of the tibia or fibula. 3. For the entire period on appeal, the Veteran's right knee disability also is manifested by dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion in the joint. 4. For the entire period on appeal, the Veteran's left knee disability also is manifested by dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion in the joint. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 10 percent for right knee osteoarthritis and patellofemoral syndrome with degenerative joint disease have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.59, 4.7, 4.71a, Diagnostic Code 5003-5260 (2020). 2. The criteria for an evaluation in excess of 30 percent for left knee osteoarthritis and patellofemoral syndrome with degenerative joint disease have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.59, 4.7, 4.71a, Diagnostic Code 5003-5260 (2020). 3. For the entire period on appeal, the criteria for a separate disability rating of 20 percent, but no more, for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion in the joint of the right knee have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.71a, DC 5258 (2020). 4. For the entire period on appeal, the criteria for a separate disability rating of 20 percent, but no more, for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion in the joint of the left knee have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.71a, DC 5258 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from July 1960 to May 1986 with service in the Republic of Vietnam. These matters come before the Board of Veterans' Appeals (Board) from an April 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge by videoconference in December 2020; a transcript has been associated with the claims file. In January 2021, the Board remanded these issues to the RO for additional development. There has been substantial compliance with the remand instructions. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). Increased Rating Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C. § 1155. Percentage evaluations are determined by comparing the manifestations of a particular disorder with the requirements contained in the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1. VA must consider whether the Veteran is entitled to "staged" ratings to compensate when his or her disability may have been more severe than at other times during the course of his or her appeal. The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various DCs is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In general, evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the Veteran undertaking the motion. See 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. See 38 C.F.R. § 4.45. Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021). VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021, and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. The Board observes that former regulation 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction. In Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9(b)(2) (now as noted renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. As such, pursuant to 38 C.F.R. § 20.904(d)(2), the Board will proceed to adjudicate the Veteran's claim. The Veteran's right knee osteoarthritis and patellofemoral syndrome with degenerative joint disease (herein: right knee arthritis) and left knee osteoarthritis and patellofemoral syndrome with degenerative joint disease (herein: left knee arthritis) are evaluated as 10 percent disabling and 30 percent disabling respectively under 38 C.F.R. § 4.71a, Diagnostic Code 5003-5260. Normal range of motion of the knee is to 0 degrees extension and to 140 degrees flexion. 38 C.F.R. § 4.71a, Plate II. While the Veteran's right knee arthritis has been rated under Diagnostic Code 5003-5260, limitation of flexion, the Board will consider all applicable rating criteria. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating assigned; the additional code is shown after the hyphen. Under Diagnostic Code 5003, degenerative arthritis established by x-ray findings is rated on the basis of limitation of motion under the appropriate Diagnostic Codes for the specific joint involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Under Diagnostic Code 5260, leg limitation of flexion, provides for the assignment of a noncompensable rating when flexion is limited to 60 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. A 10 percent rating is warranted when flexion of the leg is limited to 45 degrees. A rating of 20 percent is appropriate when leg flexion is limited to 30 degrees, and a rating of 30 percent is warranted when flexion is limited to 15 degrees, which warrants the maximum, 30 percent rating. Under Diagnostic Code 5261, the knee is rated based on limitation of extension. That code provides that when extension is limited to 5 degrees, a noncompensable rating is assigned. Extension limited to 10 degrees warrants a 10 percent rating. When limitation of extension is at 15 degrees, a 20 percent rating is warranted. Extension limited to 20 degrees warrants a 30 percent rating. Extension limited to 30 degrees warrants a 40 percent rating. Lastly, extension limited to 45 degrees warrants the maximum, 50 percent rating. Under Diagnostic Code 5257, the criteria for impairment of the knee other than ankylosis, 10, 20, and 30 percent evaluations are assigned for slight, moderate, and severe recurrent subluxation or instability, respectively. C.F.R. § 4.71a, Diagnostic Code 5257. The terms "slight," "moderate," and "severe" are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of terminology such as "slight" or "moderate" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding a higher rating. 38 C.F.R. §§ 4.2, 4.6. The diagnostic criteria applicable to semilunar cartilage are found at 38 C.F.R. § 4.71a, Diagnostic Code 5258. Under that code, a maximum 20 percent rating is warranted for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. Symptoms due to the removal of the semilunar cartilage of either knee warrant a 10 percent rating, which is the maximum rating under the diagnostic code. 38 C.F.R. § 4.71a, Diagnostic Code 5259. Previously, VA General Counsel has held that a rating under Diagnostic Code 5259, cartilage, semilunar, removal (see also Diagnostic Code 5258, dislocated semilunar cartilage) already contemplates limitation of motion, such that separate ratings for limitation of motion (e.g., Diagnostic Codes 5003, 5260, or 5261) would violate the regulatory prohibition against pyramiding under 38 C.F.R. § 4.14. See VAOPGCPREC 9-98 (August 14, 1998). However, the Court has held that evaluation of a knee disability under Diagnostic Code 5257 or 5261 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 v. Shulkin, 29 Vet. App. 107 (2017). Rather, a separate evaluation in a given case depends on whether manifestations for which a separate evaluation is being sought have already been compensated by an assigned evaluation under a different diagnostic code; and that, in evaluations of musculoskeletal disabilities based on limitation of motion, a manifestation has not been compensated, for separate evaluation and pyramiding purposes, if that manifestation did not result in an elevation of the evaluation under 38 C.F.R. §§ 4.40 and 4.45, pursuant to principles set forth in DeLuca. Id. at 118-119. VA regulations set forth at 38 C.F.R. §§ 4.40, 4.45, and 4.59 provide for consideration of functional impairment due to pain on motion when evaluating the severity of a musculoskeletal disability. If feasible, these determinations are to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59. Moreover, joint testing is to be conducted on both active and passive motion, 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, 170 (2016). Relevant Evidence January 2015 VA treatment records reflect that the Veteran requested an evaluation of his knees in order to get a cane. The Veteran filed a claim for increased ratings for his right and left knees in January 2016. The Veteran attended a VA examination in March 2016. He reported that his knee symptoms had increased and become more debilitating. He reported right and left knee flare-ups. Functional loss was described as not being able to use the knees without assistive devices. Range of motion testing revealed right knee flexion to 100 degrees and extension to 0 degrees, left knee flexion was to 90 degrees and extension was to 0 degrees. Pain was noted upon examination but did not result in functional loss. There was no additional loss of motion following repetitive use testing. The examiner determined that pain and weakness would significantly limit functional ability with repeated use over time and during flare-ups, but he was not able to estimate range of motion. Muscle strength was normal bilaterally and there was no history of recurrent subluxation or lateral instability. Joint stability testing was performed and there was no indication of right or left knee instability. The Veteran had asymptomatic bilateral shin splints. He had right and left meniscal tears with frequent episodes of joint locking and pain. The examiner concluded that the Veteran's right and left knee disabilities would cause partial impairment of physical activities of employment such as running, jumping, climbing, and walking long distances. March 2016 VA diagnostic testing of the Veteran's right and left knees revealed worsening degenerative changes bilaterally. The Veteran reported that his right and left knee disabilities had progressed in severity on his May 2016 notice of disagreement. September 2016 VA treatment records reflect that the Veteran's gait appeared essentially normal and there were no concerns of falling. In December 2016 correspondence, the Veteran's VA doctor stated that the Veteran had bilateral knee osteoarthritis, a left knee partial ACL tear and left medial meniscus tear, and right knee medial and lateral meniscus tears. He explained that the Veteran was treated with Meloxicam to help with inflammation. June 2018 VA treatment records reflect that the Veteran's knee range of motion was poor and unsteady. The Veteran attended a VA examination in December 2018. He reported that his knee symptoms had increased and become more debilitating. He experienced right knee pain, swelling, and the sensation of giving way, and left knee flare-ups of pain after walking or sitting. The Veteran reported using a cane regularly because of his knees. He reported right and left knee flare-ups. Functional loss was described as not being able to stand or walk for long periods. Range of motion testing revealed right knee flexion to 120 degrees and extension to 0 degrees, left knee flexion was to 110 degrees and extension was to 0 degrees. Pain was noted upon examination and caused functional loss. There was no additional loss of motion following repetitive use testing. There was objective evidence of pain on passive range of motion testing bilaterally and on non-weight bearing testing. The examiner determined that pain would significantly limit functional ability with repeated use over time and during a flare-up, but he was not able to estimate range of motion. Muscle strength was normal bilaterally and there was no history of recurrent subluxation, lateral instability, or shin splints. Joint stability testing was performed and there was no indication of right or left knee instability. The Veteran had right and left meniscal tears with frequent episodes of joint locking and pain. The examiner concluded that the Veteran's right and left knee disabilities would cause partial impairment of physical activities of employment such as running, jumping, climbing, and walking long distances. December 2018 VA treatment records reflect that the Veteran's knee flexion was restricted. He denied any recent falls or worries about falling. January 2019 VA treatment records reflect that the Veteran's knee range of motion was poor. He received a left knee injection in January 2019 and a right knee injection in February 2019. The Veteran received bilateral knee injections in July 2019 and November 2019. November 2019 VA treatment records reflect that the Veteran had mild right knee effusion and synovitis and moderate effusion and mild synovitis in the left knee. During November 2020 VA treatment, the Veteran reported variable pain improvement following knee injections. He stated that knee pain occasionally woke him at knight but that he generally slept okay. He denied wearing knee braces but did use a cane. The Veteran had mild right and left knee effusion and severe right and left knee synovitis. During the Veteran's December 2020 Board hearing, he testified that his knee disabilities had gotten significantly worse since his last examination in April 2019. He stated that he was unable to walk long distances and had pain on and off. He also reported receiving regular steroid injections in both knees. The Veteran testified that he had been prescribed a cane and used it to walk. The Veteran stated that he was able to drive but not for long distances. February 2021 VA treatment records reflect that the Veteran had normal strength in his lower extremities but there was "slight soreness" noted around the knees and restricted motion. The Veteran attended a VA examination in March 2021. He reported that his knee symptoms had increased and become more debilitating. He reported bilateral flare-ups 3-4 times weekly. During a flare-up, functional impairment was described as not being able to stand for long periods of time. The examiner determined that the Veteran's flare-ups were mild. The Veteran reported using a cane regularly because of his knees but the examiner noted that the cane was not prescribed because of instability. Range of motion testing revealed right and left knee flexion to 120 degrees and extension to 0 degrees without pain. There was no additional loss of motion following repetitive use testing. The examiner determined that pain would significantly limit functional ability with repeated use over time and during a flare-up but determined there would be no additional loss of motion. Muscle strength was normal bilaterally and there was no history of recurrent subluxation, lateral instability, or shin splints. Joint stability testing was performed and there was no indication of right or left knee instability. The examiner concluded that the Veteran's right and left knee disabilities would impact the Veteran's ability to stand, kneel or walk for prolonged periods. An addendum opinion was obtained in March 2021. The examiner reiterated that the Veteran did not have a history of recurrent subluxation, recurrent patella dislocation, lateral instability, and that joint stability testing was all normal. During the period on appeal, VA treatment records reflect regular treatment for bilateral knee pain. The records indicate that the Veteran had right and left meniscus tears in 2011. 1. Entitlement to a rating in excess of 10 percent for right knee osteoarthritis and patellofemoral syndrome with degenerative joint disease The Board finds that based on the evidence of record, the weight of competent and credible evidence is against finding that a rating in excess of 10 percent is warranted for the Veteran's right knee arthritis. The Veteran contends that he has ongoing right knee pain which has increased and worsens with movement and standing. The Board has considered the Veteran's general contentions that an increased rating is warranted, however, the Board finds these contentions are not supported by the probative evidence of record. The benefit of the doubt rule is for application when the evidence is in equipoise, which occurs only when there is an approximate balance between the positive and negative evidence. 38 C.F.R. § 3.102 (2019). That evidence must be both competent and credible. Here, there is no such balance of evidence. Based on the lay and medical evidence of record the Board finds that the Veteran's right knee arthritis does not more nearly approximate the level of severity contemplated by an increased 20 percent rating. The Board notes the Veteran's and associated lay contentions regarding his ongoing knee pain which increases with prolonged movement and physical activities, prolonged sitting, standing and driving. The Veteran and the associated lay statements are competent to testify to such lay observable symptomatology. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, such lay evidence in this case even when accepted as accurate, does not establish a level of disability contemplated by a higher evaluation. The evidence of record supports that the Veteran's right knee arthritis was characterized by ongoing pain and painful moment warranting no higher than a 10 percent rating under Diagnostic Code 5260. An increased 20 percent rating is warranted under Diagnostic Code 5260 when leg flexion is limited to 30 degrees. The Veteran's bilateral knee does not manifest flexion limited to 30 degrees. Viewing the evidence in the light most favorable to the Veteran, the evidence demonstrates that flexion at worst was 100 degrees in the right knee. The Board acknowledges that the March 2016 and January 2019 VA examiners did not quantify the effect of repeated use over time and flares on functional ability, however the March 2021 VA examiner determined that although the Veteran experienced more pain in these situations, he did not experience additional loss of motion. In sum, the Board finds the Veteran's range of motion does not approximate the limitation of flexion to 30 degrees needed for a higher rating, even after consideration of repeated use over time and flares. As such the Board finds that the Veteran is not entitled to an increased rating in excess of 10 percent for his right knee arthritis. Although the Veteran had additional functional loss due to pain, the evidence does not demonstrate that the Veteran's right knee arthritis symptoms were equivalent to a 20 percent evaluation for limitation of flexion. See Deluca v. Brown, 8 Vet. App. 202, 206 (1995); see also 38 C.F.R. §§ 4.40, 4.45. Therefore, there is no basis upon which to award the Veteran a higher 20 percent evaluation for arthritis of the right knee under Diagnostic Code 5260 or on the basis of Deluca. As the weight of the evidence is against a rating in excess of 10 percent for right knee arthritis, the benefit-of-the-doubt doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b). Accordingly, the claim is denied. 2. Entitlement to a rating in excess of 30 percent for left knee osteoarthritis and patellofemoral syndrome with degenerative joint disease The Board finds that based on the evidence of record, the weight of competent and credible evidence is against finding that a rating in excess of 30 percent is warranted for the Veteran's left knee arthritis. As stated above, the Veteran is assigned a 30 percent rating under 38 C.F.R. § 4.71a, 5260 for his left knee osteoarthritis and patellofemoral syndrome with degenerative joint disease. In this case, there is no question that the Veteran's left knee causes pain which has restricted overall motion resulting in limitation of walking, standing, and driving; however, the Veteran is already in receipt of the highest schedular evaluation for limitations on flexion. Additionally, range of motion testing does not show that the Veteran has a compensable limitation of extension. The Veteran has consistently reported chronic knee pain and difficulty with standing and walking, however, the probative evidence shows a higher rating is unwarranted under the other relevant diagnostic codes and the Veteran is already in receipt of a maximum rating under DC 5260. As such, entitlement to a disability rating in excess of 30 percent for the limitation of motion for the Veteran's left knee arthritis is denied. 3. Entitlement to a separate 20 percent rating for right knee dislocated semilunar (meniscal) cartilage with pain, locking and effusion 4. Entitlement to a separate 20 percent rating for left knee dislocated semilunar (meniscal) cartilage with pain, locking and effusion The evidence reflects the Veteran has meniscal tears in both knees. Both the March 2016 and December 2018 VA examination reports reflect bilateral meniscal tears causing frequent episodes of locking. Mild effusion bilaterally is also noted during November 2020 VA treatment. The Board concludes that separate 20 percent ratings are warranted for the entire period on appeal for the Veteran's right and left knee under DC 5258 based on dislocated semilunar cartilage with frequent locking, pain, and effusion in the joint. All these symptoms are not contemplated by the ratings assigned for the left and right knee under DCs 5003-5260 and, as such, separate ratings are appropriate. Twenty percent is the maximum rating allowed under DC 5258. Additional Considerations Additional diagnostic codes have been considered. However, with the exception of locking (addressed above), the evidence does not reflect, and the Veteran does not allege, that he has tibia or fibula impairment, instability, genu recurvatum, a compensable limitation of extension or ankylosis of either knee. 38 C.F.R. § 4.71a, Diagnostic Codes 5256-5263. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Fitzgerald, 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.