Citation Nr: 21041321 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 16-21 441 DATE: July 8, 2021 ORDER Entitlement to an increased rating greater than 10 percent disabling for bilateral knee arthritis with limitation of motion is denied. Entitlement to a separate 20 percent rating, but not higher, for right knee meniscal tear with locking and pain is granted. FINDINGS OF FACT 1. The Veteran's bilateral knee arthritis was manifested by range of motion with flexion limited to no less than 100 degrees. 2. The Veteran's right knee disability was manifested by a meniscus tear with frequent episodes of pain and locking and effusion. CONCLUSIONS OF LAW 1. The criteria for an increased rating greater than 10 percent for a bilateral knee disability with limitation of motion have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5260. 2. The criteria for a separate 20 percent, but not higher, for right knee meniscal tear with frequent episodes of locking, pain, and effusion have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5258. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from August 1982 to January 1983, and from October 2001 to October 2002. The Board has considered the Veteran's claims and decided entitlement based on the evidence of record. Neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to her claims. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Service connection for bilateral knee arthritis was awarded in a November 2009 rating decision with an initial 10 percent rating assigned effective September 2008 under 38 C.F.R. § 4.71a, Diagnostic Code 5010-5260. A November 2014 rating decision denied an increased rating greater than 10 percent for the Veteran's bilateral knee arthritis. The Veteran contends that a higher bilateral knee disability rating is warranted based upon her bilateral knee pain and loss of function. Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). The primary concern in a claim for an increased evaluation for service-connected disability is the present level of disability. Although the overall history of the disability is to be considered, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). VA has a duty to consider the possibility of assigning staged ratings in all claims for increase. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Under Diagnostic Code 5260, a 10 percent disability rating is warranted for limitation of leg flexion to 45 degrees; a 20 percent rating is applicable when flexion is limited to 30 degrees; and a maximum 30 percent rating is for application when flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. For disabilities evaluated based on limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. See also DeLuca v. Brown, 8 Vet. App. 202 (1995); Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59. The Board finds that an initial rating greater than 10 percent is not warranted for the Veteran's bilateral knee arthritis based upon limitation of motion under 38 C.F.R. § 4.59 and Diagnostic Code 5260; however, a separate 20 percent rating for impairment of the semilunar cartilage with a meniscal tear, frequent episodes of locking and pain, and evidence of effusion into the joint is appropriate under Diagnostic Code 5258. Analysis The 10 percent rating currently assigned for the service-connected bilateral knee arthritis is based on painful motion resulting in functional loss. As discussed below, the Veteran's bilateral knees are productive of noncompensable limited motion and a 10 percent rating is assigned in accordance with 38 C.F.R. § 4.59 which provides for a maximum 10 percent evaluation ("minimum compensable rating"). The evidence of record does not demonstrate limitation of the right or left knee flexion to 30 degrees or less. The Veteran's right and left knee flexion was most limited at the July 2019 VA examination when it measured 100 degrees. No more than a 10 percent disability rating is warranted for range of motion with flexion to 100 degrees or better under Diagnostic Codes 5260. Accordingly, an increased rating greater than 10 percent is not warranted for the Veteran's bilateral knee disability based upon limitation of motion. The Board has also considered whether higher ratings are warranted for the Veteran's bilateral knee disability based upon various functional factors. However, even with consideration of such factors, the Veteran's bilateral knee disability does not manifest limitation of motion that most nearly approximates higher ratings. While the Veteran noted moderate flare-ups during her July 2019 VA examination, the examination was not conducted during a flare-up. However, the VA examiner described the Veteran's functional loss during a flare-up in terms of range of motion with no additional loss of motion. The VA examiner noted the Veteran's bilateral knee function was additionally limited by pain after repetitive use; however, the range of motion did not decrease. The VA examination and VA treatment records document general complaints of chronic knee pain including knock knees, weakness, stiffness, difficulty with walking and standing, difficulty using stairs, bending, kneeling, and difficulty with household chores. The Board has considered the Veteran's statements and the medical evidence of record regarding functional impairment, and concludes that the functional limitations described by the Veteran are contemplated by the current 10 percent rating assigned under 38 C.F.R. § 4.59, which specifically accounts for his reports of pain in the joint and limited motion. Even with consideration of all relevant functional factors, based on the objective medical evidence of record, the Board finds that the Veteran's bilateral knee manifestations do not most nearly approximate limitation of motion that is contemplated by an increased rating. The Board has determined that the Veteran's bilateral knee disability warrants multiple ratings for various symptoms and impairment, to include a separate 20 percent rating for a right knee meniscal condition, discussed below. The Board therefore finds that the Veteran's right knee manifests flexion that is limited at most to 100 degrees. Although the evidence does not establish that increased ratings are warranted for the Veteran's bilateral knee based on limitation of motion or instability, the Board finds that a separate rating is appropriate for a tear of the right meniscus and frequent locking and pain under Diagnostic Code 5258. Under this diagnostic code, a maximum 20 percent evaluation is assigned for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. 38 C.F.R. § 4.71a, Diagnostic Code 5258. Although prior medical records report no effusion, the July 2019 VA examiner found frequent episodes of joint effusion on the Veteran's right knee. Additionally, the Veteran has consistently reported symptoms of right knee pain, locking, and give way. Based upon this evidence, the Board finds that a separate 20 percent rating is warranted under Diagnostic Code 5258 for the right knee throughout the entire appeal period. The Board has considered whether the assignment of a separate 20 percent rating under Diagnostic Code 5258 violates the rule against pyramiding as the Veteran is also in receipt of a 10 percent rating under Diagnostic Code 5260. In Lyles v. Shulkin, 29 Vet. App. 107 (Nov. 29, 2017), the Court of Appeals for Veterans Claims (Court) specifically held that the evaluation of a knee disability under Diagnostic Code 5257, 5260, or 5261 does not preclude a separate rating of the same knee under Diagnostic Code 5258. Therefore, the assignment of ratings under Diagnostic Codes 5260 and 5258 is not generally precluded as a matter of law. The Board also finds that the symptomatology contemplated by both diagnostic codes is separate and distinct in this case. Diagnostic Code 5258 contemplates impairment of the cartilage of the knee which can lead to dislocation, locking, or joint effusion (i.e. swelling). In contrast, Diagnostic Code 5260 and 38 C.F.R. § 4.59 pertain to painful limited motion of the knee. The Board finds that the symptomatology contemplated by both diagnostic codes is separate and distinct, and separate ratings do not violate VA's rule against pyramiding. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Finally, the Board has also considered whether separate or higher ratings for instability or subluxation of the knee may be appropriate. Diagnostic Code 5257, pertaining to recurrent subluxation or lateral instability, provides for a 10 percent rating for slight lateral instability or recurrent subluxation, a 20 percent rating for moderate lateral instability or recurrent subluxation, and a maximum 30 percent rating for severe lateral instability or recurrent subluxation. 38 C.F.R. § 4.71a. Although the Veteran has reported episodes of bilateral knee instability, joint stability testing was conducted during the July 2019 VA examination, which showed normal joint stability in the right knee. In light of the objective evidence documenting normal bilateral knee joint stability, a separate or higher rating is not warranted under Diagnostic Code 5257. Accordingly, an increased rating greater than 10 percent is not warranted for the Veteran's bilateral knee disability based upon limitation of motion. However, a separate 20 percent rating is warranted for the right knee disability based upon dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion of the joint. B. G. LeMoine Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Townsend, 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.