Citation Nr: 21040728 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 18-13 653 DATE: July 6, 2021 ORDER Prior to March 10, 2018, a rating in excess of 10 percent for right knee arthritis status post partial meniscectomy is denied. From March 10, 2018 and thereafter, a rating of 20 percent for right knee arthritis status post partial meniscectomy is granted. FINDINGS OF FACT 1. Prior to March 10, 2018, the Veteran's service-connected right knee arthritis status post partial meniscectomy has been manifested by complaints of pain, limitation of flexion to no worse than 110 degrees, extension no worse than 0 degrees, and removal of cartilage; but no ankylosis, subluxation or lateral instability, dislocated cartilage, impairment of the tibia or fibula, or genu recurvatum has been shown. 2. From March 10, 2018, and thereafter, the Veteran's service-connected right knee arthritis status post partial meniscectomy has been manifested by complaints of pain, limitation of flexion to no worse than 30 degrees, extension no worse than 0 degrees, and removal of cartilage; but no ankylosis, subluxation or lateral instability, dislocated cartilage, impairment of the tibia or fibula, or genu recurvatum has been shown. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent prior to March 10, 2018, for right knee arthritis status post partial meniscectomy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5259. 2. The criteria for a rating of 20 percent from March 10, 2018 and thereafter, for right knee arthritis status post partial meniscectomy, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1998 to June 2000. The Veteran was granted service connection and assigned a noncompensable rating for a right knee meniscal tear in a June 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appealed the initial noncompensable rating assigned, and in a February 2018 rating decision, a decision review officer (DRO) granted an increased rating of 10 percent for the Veteran's service-connected right knee disability that was now characterized as right knee arthritis status post partial meniscectomy. A videoconference Board hearing was held in this matter in March 2020 before the undersigned Veterans Law Judge, and a transcript of the proceedings is associated with the claims file. Following the hearing, the Board remanded for additional development to include obtaining a VA examination since the Veteran testified at the Board hearing that his condition had worsened. The requested development has been completed and the matter returned to the Board for appellate review. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole recorded history is necessary so that a rating may accurately compensate the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31 (1999). 1. Entitlement to a rating in excess of 10 percent for right knee arthritis status post partial meniscectomy As noted above, the Veteran seeks a rating in excess of 10 percent for his service-connected right knee arthritis status post partial meniscectomy. A knee disability may be evaluated under Diagnostic Code 5256, governing ankylosis; Diagnostic Code 5257, governing recurrent subluxation or lateral instability; Diagnostic Code 5258, governing dislocated cartilage; Diagnostic Code 5259, governing removal of symptomatic cartilage; Diagnostic Code 5260, governing limitation of flexion; Diagnostic Code 5261, governing limitation of extension; Diagnostic Code 5262, governing tibia and fibula impairment; and Diagnostic Code 5263, governing genu recurvatum. A knee disability may also be evaluated under Diagnostic Code 5003, which provides that degenerative arthritis established by X-ray findings will be 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. A 20 percent rating is assigned for arthritis when there is X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In evaluating musculoskeletal disabilities, consideration must be given to additional functional limitation due to factors such as pain, weakness, fatigability, and incoordination. See 38 C.F.R. §§ 4.40 and 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). The Court has held that diagnostic codes predicated on limitation of motion do not prohibit consideration of a higher rating based on functional loss due to pain on use or due to flare-ups under 38 C.F.R. §§ 4.40, 4.45, and 4.59. See Johnson v. Brown, 9 Vet. App. 7 (1996); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). However, in Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court clarified that there is a difference between pain that may exist in joint motion as opposed to pain that actually places additional limitation of the particular range of motion. VA regulations require that a finding of dysfunction due to pain must be supported by, among other things, adequate pathology. 38 C.F.R. § 4.40 (functional loss due to pain is to be rated at the same level as the functional loss when flexion is impeded); see Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Here, the Veteran's right knee arthritis status post partial meniscectomy is currently rated under Diagnostic Code 5010-5260 (limitation of flexion). Under that code, a 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. A maximum 30 percent rating is warranted for flexion limited to 15 degrees. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, this diagnostic code (5260) was not changed. The Veteran's first VA examination of his right knee during the period on appeal occurred in November 2016. The examiner diagnosed the Veteran with right knee meniscal tear and degenerative arthritis. The Veteran reported worsening pain and daily swelling around knee cap. He also reported flare ups that he described as "achy, dull pain with swelling around the knee." He reported he tried physical therapy, needle therapy, water therapy and steroid injection. He also used a tens unit, a walking cane, and steroid injections in his knee every three months. He stated he had arthroscopic surgery for a right meniscus tear in 2013. Upon examination, range of motion for the right knee showed flexion to 120 degrees and extension to 0 degrees. The examiner noted the right knee showed no sign of crepitus, muscle atrophy, ankylosis, recurrent subluxation, lateral instability, recurrent effusion, and no joint instability. There was also no recurrent patellar dislocation, "shin splints" (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment. The examiner noted the Veteran had a meniscal tear for which he underwent a meniscectomy in 2013. The examiner noted the Veteran regularly uses a knee brace for ambulation. Finally, the examiner noted a January 2016 MRI showed degenerative changes of the medial meniscus. As for functional impact, the examiner stated the Veteran has difficulty walking long distances and needs to take frequent rests. The Veteran underwent another VA examination of his right knee in March 2018. The examiner noted diagnoses of right knee meniscal tear and right knee arthritis. The Veteran reported pain and swelling in the knee, and that it hurts to stand and walk. He did not report any flare ups but did report functional loss described as being unable to squat or kneel. Upon examination, range of motion for the right knee showed flexion to 30 degrees and extension to 0 degrees. Pain was noted on exam and caused functional loss. The examiner stated pain, weakness, fatigability, or incoordination do not significantly limit functional ability with repeated use over a period of time. The examiner noted the right knee showed no sign of muscle atrophy, ankylosis, recurrent subluxation, lateral instability, recurrent effusion, and no joint instability. There was also no recurrent patellar dislocation, "shin splints" (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment. The examiner noted the Veteran had a meniscus (semilunar cartilage) condition that the examiner described as a meniscal tear with frequent episodes of joint pain. The examiner noted the Veteran also has "very minimal range of motion of the right knee." The examiner noted the Veteran regularly uses a knee brace and cane for ambulation. As for functional impact, the examiner stated the Veteran is unable to bend or squat. The Veteran underwent a final VA examination in September 2020. The examiner noted a diagnosis of right knee arthritis status post partial meniscectomy. The Veteran reported that with any mobilization his right knee will swell. He reported knee injections and physical therapy in the past, and that knee replacement has been discussed, but they are waiting due to the Veteran's age. The Veteran reported flare ups are "excruciating pain any time he mobilizes or moves around, mobilizing makes it worse." He rates the pain as 10 out of 10, and stated flares occur daily with any type of physical activity. Finally, the Veteran reported he can barely bend his right knee. Upon examination, range of motion for the right knee showed flexion to 130 degrees and extension to 0 degrees. Pain was noted on exam and caused functional loss. The examiner stated pain, weakness, fatigability, or incoordination significantly limit functional ability with repeated use over a period of time. The examiner noted the right knee showed no ankylosis, recurrent subluxation, lateral instability, recurrent effusion, or joint instability. There was also no recurrent patellar dislocation, "shin splints" (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment. The examiner noted the Veteran had a right knee meniscectomy in 2013 and currently uses a brace and walker. Finally, the examiner specifically stated there is a worsening of the Veteran's symptoms, but no changes to the service connected diagnosis, and no additional diagnoses, have been rendered. VA treatment records from the Columbia VAMC are associated with the Veteran's case file. In summary, these records reflect the Veteran was seen for complaints of right knee pain; he underwent meniscectomy in 2013, and additional surgery has been discussed but will not be performed due to the Veteran's age. Lay evidence is also associated with the Veteran's file. At the March 2020 Board Hearing, the Veteran testified that his current symptoms include constant swelling and chronic pain. He stated that he finds it hard to be mobile and to stand, and it hinders his life. He also argued that his March 2018 VA examination showed limitation to flexion to 30 degrees, which would warrant at least a 20 percent rating for his right knee. Upon review of the relevant evidence, the Board finds that the Veteran is not entitled to a rating in excess of 10 percent for the period on appeal prior to March 10, 2018. However, from March 10, 2018 and thereafter, the Board finds that the Veteran is entitled to a rating of 20 percent under Diagnostic Code 5260, based on limitation of flexion, as the March 10, 2018 VA examiner found the Veteran's right knee flexion was limited to 30 degrees. In order to obtain a higher rating for limitation of flexion under DC 5260 for the period prior to March 10, 2018, flexion must be limited to 30 degrees to obtain a 20 percent rating. However, in the VA examination prior to that date as noted above (November 2016), the Veteran's right knee flexion was measured at 110 degrees, even when pain on motion and during flare-ups is considered. As such, a higher rating under DC 5260 is not warranted for the period prior to March 10, 2018. In order to obtain a higher rating for limitation of flexion under DC 5260 for the period from March 10, 2018, and thereafter, flexion must be limited to 15 degrees to obtain a maximum 30 percent rating. However, in the two VA examinations after that date as noted above (March 2018 and September 2020), flexion was measured at 30 degrees and 130 degrees, respectively, even when pain on motion and during flare-ups is considered. As such, a higher rating under DC 5260 is not warranted for the period from March 10, 2018, and thereafter. The Board has also reviewed the other diagnostic codes that pertain to evaluation of knee disabilities to determine if any other diagnostic code is applicable to the Veteran's right knee disability. Here, however, the Board concludes that no separate or higher ratings are warranted. A rating under Diagnostic Code 5256 is not warranted as the Veteran has not been shown to have ankylosis. The Board has also considered both the prior and current provisions of Diagnostic Code 5257, which governs instability. However, all clinical joint stability testing of record is negative. As the Veteran does not have any recurrent subluxation or instability that could be objectively elicited, or patellar instability, the Board does not find that the Veteran has any instability to warrant a separate evaluation under either prior or current Diagnostic Code 5257. A separate or higher rating under Diagnostic Code 5258 is also not warranted as the Veteran has not been shown to have dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. A separate or higher rating under Diagnostic Code 5259 is not warranted as, although the Veteran has been shown to have undergone a meniscectomy in 2013, any residual symptoms of pain are accounted for in the current 10 and 20 percent ratings assigned for his right knee disability; there are not additional symptoms that have not been contemplated by these ratings. The Board may not award a rating based on duplicative or overlapping symptomatology of this service-connected condition; to engage in such would be impermissible pyramiding. See 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). A separate or higher rating under Diagnostic Code 5261 is not warranted as the Veteran's extension in his right knee has been shown to be no worse than 0 degrees throughout the period on appeal. A separate or higher rating under Diagnostic Code 5262 is not warranted as the Veteran has not been shown to have impairment of the tibia or fibula or any medial tibial stress syndrome. A separate or higher rating under Diagnostic Code 5263 is not warranted as the Veteran has not been shown to have a diagnosis of genu recurvatum. Finally, the Board has also considered Diagnostic Code 5003, which governs arthritis, as the Board notes the Veteran's arthritis has been documented by x-ray findings. However, as there is no x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, the Board finds that a 20 percent rating is not warranted under Diagnostic Code 5003. The Board has also considered the Veteran's reported impairment of function and has considered additional limitation of motion due to pain. Even considering additional limitation of motion or function of the left knee due to pain or other symptoms such as weakness, fatigability, weakness, or incoordination (see 38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca), the evidence does not show that the right knee disability more nearly approximates the criteria for any higher rating for any period on appeal. Lastly, the Board has also considered the Veteran's lay statements, especially the Veteran's reports that his right knee condition has worsened. While lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), in this case, such an opinion falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). To the extent that the Veteran contends that his right knee disability is more severe than evaluated, while he is competent to describe that he has knee pain, he is not competent to report that his pain is of sufficient severity to warrant a certain evaluation under VA's rating criteria because such an opinion requires medical expertise which he does not possess. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In sum, the Board concludes that for the period on appeal prior to March 10, 2018, a rating in excess of 10 percent for the Veteran's right knee arthritis status post partial meniscectomy is not warranted. For the period from March 10, 2018 and thereafter, the Board finds a rating of 20 percent, but no higher, is warranted for the Veteran's right knee arthritis status post partial meniscectomy. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Jiggetts 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.