Citation Nr: 22014045 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 17-36 464 DATE: March 11, 2022 ORDER Entitlement to an initial disability rating in excess of 10 percent prior to July 7, 2017, for arthritis of the left knee with Baker's cyst, internal derangement, and hamstring tendonitis is denied. Entitlement to a disability rating in excess of 40 percent from July 7, 2017, for arthritis of the left knee with Baker's cyst, internal derangement, and hamstring tendonitis is denied. Entitlement to an initial disability rating in excess of 10 percent prior to July 7, 2017, for arthritis of the right knee with internal derangement and hamstring tendonitis is denied. Entitlement to a disability rating in excess of 40 percent from July 7, 2017, for arthritis of the right knee with internal derangement and hamstring tendonitis is denied. For the period on appeal, a rating of 20 percent for a left knee disorder based on a meniscus tear is granted. FINDINGS OF FACT 1. Prior to July 7, 2017, the Veteran's arthritis, left knee was not manifested by extension limited to 15 degrees. 2. From July 7, 2017, the Veteran's arthritis, left knee was not manifested by extension limited to 45 degrees. 3. Prior to July 7, 2017, the Veteran's arthritis, right knee was not manifested by extension limited to 15 degrees. 4. From July 7, 2017, the Veteran's arthritis, right knee was not manifested by extension limited to 45 degrees. 5. For the period on appeal, the Veteran's left knee disorder is manifested by symptoms such as frequent episodes of locking, pain, and swelling. CONCLUSIONS OF LAW 1. Prior to July 7, 2017, the criteria for entitlement to an increased evaluation for arthritis, left knee with baker's cyst and internal derangement and hamstring tendonitis tear in excess of 10 percent are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.40, 4.59, 4.71a, DC 5010-5261. 2. From July 7, 2017, the criteria for entitlement to an increased evaluation for arthritis, left knee with baker's cyst and internal derangement and hamstring tendonitis in excess of 40 percent are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.40, 4.59, 4.71a, DC 5010-5261. 3. Prior to July 7, 2017, the criteria for entitlement to an increased evaluation for right knee with internal derangement and hamstring tendonitis in excess of 10 percent are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.40, 4.59, 4.71a, DC 5010-5261. 4. From July 7, 2017, the criteria for entitlement to an increased evaluation for right knee with internal derangement and hamstring tendonitis in excess of 40 percent are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.40, 4.59, 4.71a, DC 5010-5261. 5. For the period on appeal, the criteria for a rating of 20 percent for the left knee disorder (semilunar) are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5258. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from September 1977 to September 1981. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In his July 2017 VA Form 9 (Appeal to Board of Veterans' Appeals), the Veteran limited his appeal to the issues listed above. As such, the Board will likewise limit its consideration to those issues. In his VA Form 9, the Veteran also indicated that he wanted to have a Board hearing at the RO. However, he withdrew the request later that same month. 38 C.F.R. § 20.704(e). The Board notes that a claim for TDIU was raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). However, the Veteran has indicated his desire to withdraw that issue on appeal in December 2020 correspondence. While the Veteran's representative listed it as an issue on the January 2022 Appellate Brief, the substance of the argument portion of the brief did not include any argument beyond boiler plate for TDIU; but it included a discussion of the thoracic spine, which is not on appeal nor is the Veteran service-connected for this disorder. Accordingly, the Board finds the December 2020 correspondence as persuasive that the Veteran intended to limit his appeal to the claims discussed below, and a claim for TDIU will not be inferred. Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes (DCs). 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, 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. "Staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). When assessing the severity of a musculoskeletal disability that is rated based on limitation of motion, such as the neck and knee disabilities addressed here, VA must consider the extent that a veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when symptoms are most prevalent ("flare-ups") due to the extent of pain (and painful motion), weakness, premature or excess fatigability, and incoordination. See DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. When feasible, evaluation should consider range of motion while weight-bearing and non-weight-bearing, and in passive and active motion. See 38 C.F.R. § 4.59; see also Correia v. McDonald, 28 Vet. App. 158 (2016) and Mitchell v. Shinseki, 25 Vet. App. 32 (2011). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be granted to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In rating disabilities, VA is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence that does so. Mittleider v. West, 11 Vet. App. 181, 182 (1998). In such cases, the reasonable doubt doctrine dictates that all symptoms be attributed to the service-connected disability. Id. The applicable law and regulations concerning effective dates state in relevant part that, except as otherwise provided, the effective date of an evaluation and award of compensation based on a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. An exception to this rule exists under 38 C.F.R. § 3.400(o)(2). This provision allows VA to assign an effective date for increased rating up to one year prior to the date of claim. The Veteran filed a claim for service connection for "knee pain and arthritis" in March 2016. In a September 2016 rating decision, he was granted service connection for his bilateral knee disorder's arthritis, among other things. These appeals arise from disagreement with these initial ratings. While the claims were pending, the Veteran's ratings for his bilateral knees, based on extension, were increased to 40 percent in an August 2020 rating decision. The RO has rated the Veteran's knee disabilities under hyphenated code 5010-5261. Traumatic arthritis, substantiated by X-ray findings, is rated as degenerative arthritis. 38 C.F.R. § 4.71a , DC 5010. Degenerative arthritis established by X-ray findings will be rated based on limitation of motion under the appropriate DC for the specific joint or joints involved. However, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate DCs, 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, not added under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a , DC 5003. As the Veteran is already in receipt of a 10 percent rating prior to July 7, 2017, for the bilateral knees, further discussion as to a higher rating under this diagnostic code is not warranted. DC 5258 covers dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint; this warrants a 20 percent rating. DC 5259 covers removal of symptomatic semilunar cartilage, which warrants a 10 percent rating. Limitation of extension of the leg is evaluated as follows: extension limited to 45 degrees (50 percent); extension limited to 30 degrees (40 percent); extension limited to 20 degrees (30 percent); extension limited to 15 degrees (20 percent); extension limited to 10 degrees (10 percent); and extension limited to 5 degrees (0 percent). 38 C.F.R. § 4.71a , DC 5261. The Veteran underwent a VA examination for his knees in September 2016. The report stated that the Veteran had diagnoses of bilateral knee joint osteoarthritis and internal derangement with hamstring tendonitis for each knee. For the left knee, a diagnosis of backer's cysts was also noted. It was explained the Veteran had bilateral hamstring tenderness behind both knees and an additional large cystic soft mass posteriorly behind the left knee. The conditions were related to the knee due to its anatomy. The Veteran described flare-ups in the right knee with driving, siting, sleeping, and walking with throbbing pain. As for the flare-ups in the left-knee he experienced them with laying down and sitting. Moreover, it would lock-up and cramp. His knee would not unlock until he stood up. He experienced functional loss and could not walk until his knee unlocked by standing. As to his right knee, he had 0 degrees extension and 70 degrees flexion, including after three repetitions. Functional loss with flexion and extension was noted. There was evidence of pain with weight-bearing. Objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue in the medial collateral was observed. There was also objective evidence of crepitus. As for the left knee, he had 0 degrees extension and 80 degrees flexion, including after three repetitions. Pain caused functional loss on both flexion and extension. There was also evidence of pain with weight bearing, and objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue, medial joint line. Objective evidence of crepitus was also observed. As noted, additional loss of range of motion was not observed after repetitive use. While functional loss was noted, the examination report also stated that it was consistent with the Veteran's statements describing functional loss with repetitive use over time for the bilateral knees. The examination was not conducted during a flare-up, but both pain, weakness, and lack of endurance, reportedly caused functional loss. However, the examination report does not reflect a reduced range of motion during flare-ups for either knee. Additional factors contributing to disability in the bilateral knees included less movement than normal, deformity, disturbance of locomotion, and interference with standing. Interference with sitting was also noted in the left side. Reduced muscle strength of 4 out of 5 was noted in flexion and extension in the bilateral knees. Neither muscle atrophy nor ankylosis was indicated in the bilateral knees. VA medical records indicate the Veteran sought treatment for his chronic bilateral knee pain in July 2017. While symptoms of pain, sharp-aching, and swelling were noted during his visits from July 2017 to September 2017, range of motion measurements were not reported. In his July 2017 Form 9, the Veteran stated that his knee disorders had worsened since his last September 2016 VA examination. He also stated this in his January 2019 brief. Accordingly, the Veteran was examined for his knee disabilities in October 2019. His diagnoses remained the same, except a recent meniscus tear was also noted for the left knee. The Veteran reported current symptoms of pain, weakness, swelling, radiating pain, and sensation changes in the left knee. Flare-ups were reported in the bilateral legs. As to the right knee, the Veteran experienced flares three to four times a week at a level of 7 on the pain rated scale. He would have to stop activity. The flares lasted for two hours, on average. In his left leg, he experienced daily flares. They were to a pain level of 8 and lasted for over two hours. Range of motion in his right knee had 20 degrees extension with 100 degrees flexion. The examination report noted this loss of range of motion was due to an unrelated condition, but the abnormal range of motion also contributed to functional loss. It was explained that his joint was significantly stiff, and he must force some of the movement. Pain was observed at rest, on flexion, and extension. He felt a "sore: and "tender" like a bruising feeling in the lateral to patella. It was to a level of 6 on the pain scale. It was explained that his service-connected arthritis made his joints tender. Pain with weight bearing and crepitus were both observed. Range of motion in the left knee was 30 degrees extension with 90 degrees flexion. It was noted that he experienced loss of range of motion due to an unrelated condition. He experienced significant stiffness and pain with range of motion. Pain was observed at rest, on flexion, and extension. He experienced sharp pain at the medial joint line that was at an 8 on the pain scale. It was explained that arthritis can cause joint pain and tenderness. Pain with weight bearing and crepitus were both observed. Reduced range of motion after repetitive use was observed in both knees. After repetitive use-testing, 25 degrees extension was observed with flexion to 90 degrees in the right knee; and 25 degrees extension with 85 degrees flexion in the left knee was also observed. Pain, fatigue, weakness and lack of endurance caused this functional loss in the bilateral knees. Also, incoordination was a contributing factor to functional loss in the left knee. The examination report states that the examination is medically consistent with the Veteran's statement describing functional loss with repetitive use over time. In terms of range of motion, the right knee was 30 degrees extension with 90 degrees flexion; and the left knee was 30 degrees extension with 85 degrees flexion. The report also noted it was consistent with the Veteran's statements during a flare-up, but it was not performed during a flare-up. Functional loss from pain, weakness, and lack of endurance in the right knee caused reduced range of motion in the right knee; with 25 degrees extension and 90 degrees flexion. In the left knee, pain, fatigue, weakness, lack of endurance and incoordination also contributed to functional loss, with 30 degrees extension and 90 degrees flexion. Additional factors contributing to disability including disturbance of locomotion, interference with sitting and interference with standing in the bilateral knees. Swelling was also noted in the left knee. Muscle strength testing was 4 out 5 again, and neither muscle atrophy nor ankylosis was observed in either knee. In August 2020, the RO requested an opinion to explain the note on the October 2019 examination report where it was noted the Veteran's loss of range of motion was due to an unrelated condition because the report did not explain what the unrelated condition was. Yet, the same examiner did not respond to this inquiry. Instead, another VA medical practitioner reported that he was unable to determine the unrelated condition due to lack of information on the DBQ pertaining to the condition in the Veteran's claims file. He could not provide information related to range of motion without knowing what knee diagnosis was the "unrelated condition." A December 2020 addendum reported that the Veteran's range of motion was related to his diagnosed knee disorders. As such, the range of motion measurements in the October 2019 VA examination, including during flare-ups and after repetitive use, are used in the Board's analysis. As noted, the Veteran has limited his appeal to his ratings for limited range of motion. During the period on appeal, the Veteran's knee flexion in his bilateral knees has not been limited to 60 degrees. Accordingly, a higher rating based on flexion is not warranted. To warrant a higher rating before July 7, 2017, the evidence would need to show limitation of extension in either knee, at least to 15 degrees. Yet at the Veteran's September 2016 VA examination, extension was normal for the bilateral knees (to 0 degrees). Accordingly, a higher rating for extension of the bilateral knees, is not warranted prior to the July 7, 2017. To warrant a higher rating after July 7, 2017, the evidence would need to show limitation of extension in the bilateral knees to 45 degrees. At their worse, the Veteran is unable to extend his bilateral knee beyond 30 degrees even when considering flare-ups and repetitive use. Based on the Veteran's extension measurements his disability ratings are more closely described by the criteria for a 40 percent rating. The Board also finds that a rating in excess of 10 percent prior to July 7, 2017, is not warranted for the left or right knee under DeLuca. Although the Veteran reported functional loss, including his knee locking up at times, range of motion testing, after repetitive-use or when considering flares-ups did not indicate a higher rating was warranted. As for after July 7, 2017, while his range of motion was reduced with repetitive-use and flares, it was not to the extent that a higher rating is warranted. The Board notes that the Veteran has sent October 2020 correspondence as to the effective date of the 40 percent increase. While it is not clear as to whether this was a general inquiry or an appeal of the effective date, based on the foregoing, the Board does not find that evidence prior to July 7, 2017, indicated an increase to 40 percent. As discussed above, the September 2016 VA examination indicated his knee extension and flexion were not compensable. He was rated at 10 percent for his arthritis prior to July 7, 2017. Moreover, the earliest evidence of limited extension was at his October 2019 VA examination, two years after his current effective date. While VA medical records indicate the Veteran began to establish care with the VA in July 2017 for increased knee symptoms, the medical evidence does not indicate range of motion testing that is commensurate with a 40 percent rating prior to the current effective date of July 7, 2017. As noted, a higher rating prior to July 17, 2017, is not warranted, so an earlier effective date for the 40 percent rating is not warranted, either. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. For the foregoing reasons, a higher rating of 20 percent is not warranted prior to July 7, 2017, for the bilateral knees; nor is a 50 percent rating warranted for after July 7, 2017, for the bilateral knees. Accordingly, the evidence is slightly against the claim for a higher rating for either knee is not warranted, and the benefit of the doubt doctrine is not otherwise for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. A separate rating of 20 percent under DC 5258 is warranted for the Veteran's left knee for the period on appeal. The 2019 examiner reported that the Veteran had a meniscus tear in his left knee. Although the date was listed as 2017, the Board resolves reasonable doubt in favor of the Veteran and finds that this rating is warranted for the period on appeal as the evidence suggests it was early on during the period on appeal as the Veteran asserted his knee disability had worsened. Additionally, the evidence above shows locking, pain, and swelling as reported by the examination as well as the Veteran's lay statements. The competent evidence tends to show that the pain associated with the Veteran's meniscus tear is separate than the pain associated with his painful range of motion. As the Veteran receives a 20 percent rating under DC 5258, the Board finds that the Veteran's symptomatology, such as locking and effusion, do not warrant a separate rating under 5259 as this would constitute impermissible pyramiding. 38 C.F.R. § 4.14. The Board finds a separate rating under DC 5259 is not warranted without discontinuing the rating under DC 5258. Here, DC 5258 provides the greater benefit. As a result, a rating under DC 5259 is not warranted. Garrett Morales Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Wade 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.