Citation Nr: 22014332 Decision Date: 03/12/22 Archive Date: 03/12/22 DOCKET NO. 18-06 914 DATE: March 12, 2022 ORDER An initial rating greater than 10 percent based on limited flexion of the right knee is denied. A separate 20 percent rating for a right knee disability based on frequent episodes of locking, pain, and effusion is granted, effective April 23, 2013. REMANDED The issue of entitlement to a total disability evaluation based on individual unemployability (TDIU) is remanded. FINDING OF FACT Since April 23, 2013, the Veteran's right knee disability manifested with painful motion and residual meniscal symptoms of frequent episodes of locking, pain, and effusion into the joint; but did not manifest with flexion limited to 45 degrees. CONCLUSIONS OF LAW 1. Since April 23, 2013, the criteria for a rating greater than 10 percent for right knee disability based on limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326 (a), 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5260. 2. Since April 23, 2013, the criteria for a 20 percent rating based on frequent locking and effusion of the right knee have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326 (a), 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, DC 5258. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran had active service from October 1979 to February 1980. In October 2021, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). During the hearing, the VLJ engaged in a discussion with the Veteran towards substantiating the claims. Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). The transcript is in the record. 1. Entitlement to an initial rating greater than 10 percent since April 23, 2013 for a right knee disability VA assigns disability ratings by applying criteria in its Schedule for Rating Disabilities ("the Rating Schedule"). Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes ("DCs"). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question of which two evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In disability rating cases, VA assesses the level of disability from the initial grant of service connection or a year prior to the date of application for an increased rating and determines whether the level of disability warrants the assignment of different disability ratings at different times over the course of the claim, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007) (holding that staged ratings may be warranted in increased rating claims). VA will assign a higher disability rating when the evidence supports the claim, or when the evidence for and against the claim is approximately balanced. When the evidence is approximately balanced, VA will resolve any reasonable doubt in favor of the Veteran. When the evidence is not approximately balanced, there is no reasonable doubt to resolve, and the claim will be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough, 999 F.3rd 1391 (2021). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59. Provision 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. Under 38 C.F.R. § 4.45, functional loss due to weakened movement, excess fatigability, and incoordination must also be considered. See DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995) (holding that the criteria discussed in sections 4.40 and 4.45 are not subsumed by the DCs applicable to the affected joint). The provisions of 38 C.F.R. § 4.59 recognize that painful motion is an important factor of disability. Joints that are painful, unstable, misaligned, or due to healed injury are entitled to at least the minimum compensable rating for the joint. Id. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. Id.; see Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that § 4.59 applies to all forms of painful motion of joints, and not just to arthritis). Pain that does not result in additional functional loss does not warrant a higher rating. See Mitchell v. Shinseki, 25 Vet. App. 32, 42-43 (2011) (holding that pain alone does not constitute functional loss and is just one fact to be considered when evaluating functional impairment). Since April 23, 2013, the Veteran's right knee degenerative arthritis status post (s/p) meniscectomy ("right knee disability") has been rated 10 percent disabling based on painful motion. See 38 C.F.R. § 4.59; DeLuca (a minimum 10 percent rating may be awarded without compensable limitation of ROM if there is evidence of painful motion). The Board considers multiple DCs when evaluating knee disabilities. DC 5260 provides ratings based on limitation of flexion of the leg. Limitation of flexion to 60 degrees warrants a noncompensable rating. Limitation of flexion to 45 degrees warrants a 10 percent rating. Flexion limited to 30 degrees warrants a 20 percent rating. Flexion limited to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a, DC 5260. DC 5261 provides ratings based on limitation of the extension of the leg. Limitation of extension to 5 degrees warrants a noncompensable rating. Extension limited to 10 degrees warrants a 10 percent rating. Extension limited to 15 degrees warrants a 20 percent rating. Extension limited to 20 degrees warrants a 30 percent rating. Extension limited to 30 degrees warrants a 40 percent rating. Extension limited to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a, DC 5261. The average normal range of motion of the knee is flexion from 0 to 140 degrees and extension from 140 to 0 degrees. 38 C.F.R. § 4.71, Plate II. In every instance where the schedule does not provide a 0 percent rating for a diagnostic code, a 0 percent rating shall be assigned when the requirements for a compensable rating are not met. See 38 C.F.R. § 4.31. Where there is painful or limited motion with both flexion and extension, but the compensable criteria are not met for either flexion (DC 5260) or extension (DC 5261), only one minimum rating of 10 percent should be assigned. Separate ratings may not be assigned for painful or noncompensable limitation of motion using DC 5003 or section 4.59 in connection with DC 5260, and compensable limitation of extension under DC 5261. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Before February 7, 2021, under DC 5257, slight recurrent subluxation or lateral instability warranted a 10 percent rating. A 20 percent rating was warranted for moderate recurrent subluxation or lateral instability. Severe recurrent subluxation or lateral instability warranted a 30 percent rating. The words "slight," "moderate" and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all the evidence to the end that its decisions are "equitable and just," under 38 C.F.R. § 4.6. DC 5257 was amended, effective February 7, 2021, but these changes cannot be applied retroactively. In other words, before February 7, 2021, the old diagnostic code applies. As amended, DC 5257 provides ratings for "recurrent subluxation or instability" or "patellar instability." Regarding recurrent subluxation or lateral instability under the amended Diagnostic Code 5257, a 10 percent rating is warranted for a sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistance device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 20 percent rating is assigned for one of the following: (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation, or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 30 percent rating is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. With respect to patellar instability, DC 5257 provides a 30 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. A 20 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: A brace, cane, or walker. A 10 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. See 38 C.F.R. § 4.71a, DC 5257. Note 1 to DC 5257 provides that, for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note 2 to DC 5257 provides that a surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). DC 5258 provides a single 20 percent rating for "cartilage, semilunar, dislocated, with frequent episodes of "locking," pain, and effusion into the joint." 38 C.F.R. § 4.71a, DC 5258. During an October 2014 VA examination, the Veteran reported "clicking" during stress of the right knee. He denied flare-ups. The examiner diagnosed a right torn meniscus with meniscectomy with residual scar. On range of motion (ROM) testing, the Veteran had normal ROM with painful motion beginning at 130 degrees. The Veteran performed repetitive use testing without any loss of ROM or additional pain. The examiner described the Veteran's functional loss as pain on movement; disturbance of locomotion; and interference with sitting, standing, and weight-bearing. The examiner opined that pain would significantly limit functional ability during flare-ups but did not estimate reduced ROM during flare-ups. Additional testing revealed normal muscle strength and joint stability in the right leg. The examiner indicated there was no evidence of patellar subluxation, shin splints, or chronic exertional compartment syndrome. The examiner noted the Veteran's prior meniscal tear and meniscectomy and that the Veteran's residual symptoms were a "clunk in knee." The Veteran reported being told by a doctor that he had "bone on bone medial compartment of the right knee." The examiner noted the Veteran had a positive McMurray test. The October 2014 VA examiner opined that the Veteran could not squat or lift more than 35 pounds and could only walk one mile at a time for no more than four miles in an eight-hour day. The examiner opined the Veteran could only sit or stand for 30 to 60 minutes at a time during an eight-hour day. The examiner indicated the Veteran used a cane for a "knee condition," however earlier in the report the examiner noted the Veteran used a cane because of "back surgery issues." The examiner noted the Veteran was disabled because of a failed lumbar fusion. In November 2014, the Veteran reported his right knee began swelling more than usual and caused difficulty walking. In January 2015, the Veteran reported that he fell on his right knee and "reaggravated it." In a June 2015 medical record (Dr. Thomas Synek, M.D.), the Veteran demonstrated normal ROM in both knees, although the examiner noted crepitus and tenderness over the medial aspect of the right knee. Additional testing revealed normal reflexes, sensation, and strength of the lower extremities. The examiner noted the Veteran could not walk "heel to toe" due to pain. During a December 2015 examination, a private physician (Dr. Robert H. Fain, Jr., M.D.) diagnosed the Veteran with a right knee meniscal tear, degenerative joint disease (DJD) chondromalacia of the medial compartment, and quadriceps weakness. The Veteran continued to report right knee pain, swelling, "locking up," stiffness, "popping," and a "gravel sound." Dr. Fain described the Veteran's functional loss as "limp, pain, swelling, clicking, locking." On ROM testing, the Veteran had flexion to 136 degrees and extension to 6 degrees. Dr. Fain noted the Veteran's limited extension was caused by chondromalacia. Dr. Fain noted the Veteran had pain with weight bearing and non-weight bearing and pain on palpation. He noted additional functional losses including less movement than normal, weakened movement, incoordination, painful movement, swelling, atrophy or disuse, disturbance of locomotion, and interference with sitting/standing. Dr. Fain opined that the Veteran would be additionally limited by pain, swelling, fatigue, and stiffness during flare-ups and after repeated use over time. Although muscle strength testing was normal for the right lower extremity, Dr. Fain noted muscle atrophy in the Veteran's right quadriceps. He noted there was no history of patellar subluxation or lateral instability, however the Veteran reported recurrent effusion. Joint stability testing was normal and the Veteran did not have ankylosis. Dr. Fain noted the Veteran's prior meniscal tear continued to cause frequent episodes of joint pain and effusion. He opined the Veteran's right knee disability would cause difficulty with stooping, kneeling, walking, twisting, pivoting, weight-bearing, and rising from a chair. Dr. Fain opined the Veteran's right knee disability impacted his ability to work due to swelling and inflammation after prolonged periods of walking or climbing steps. In private treatment records from November to December 2015, the Veteran reported persistent medial pain while using a cane, twisting, pivoting, bending, kneeling, and rising from a seated position. The Veteran also reported right knee pain at night that caused him to wake from sleep. Dr. Fain noted the Veteran did not have palpable movable mass, sensation of "moving out of place," locking, or difficulty with weather changes. Dr. Fain recommended arthroscopic surgery to relieve the Veteran's chondromalacia symptoms. In June 2018, the Veteran reported "loud popping" when bending or extending his right knee. He reported pain radiated from his right knee "up and down" his leg. He also reported he was unable to kneel due to these symptoms. Right knee X-rays taken in June 2018 revealed mild narrowing of the medial and patellofemoral compartments, but no joint effusion or abnormal soft tissue calcifications. The attending physician's impression was mild degenerative changes. A September 2018 private treatment record (Fondren Orthopedic Group) noted the Veteran had lumbar radiculopathy in his left leg but not his right. The Veteran denied radicular symptoms in his right leg. He reported he walked for exercise. In April 2019, the Veteran reported "moderate" right knee pain at "6/10." He continued to report a popping sensation and that his knee occasionally gave way. He denied instability or recent injury. A VA clinician noted the Veteran used a cane because of lumbar/cervical fusion and chronic lower extremity radiculopathy. On physical examination, the Veteran had flexion to 130 degrees (140 degrees is normal) and normal stability in his right knee. The examiner noted crepitus but no effusion. In May 2019, the Veteran reported his right kneecap "locked" and "popped" with every step. He reported a recent corticosteroid injection helped with pain, but his knee brace was aggravating his knee. The Veteran also reported right knee swelling that resolved. Later in May 2019, the Veteran reported less popping after removing his knee brace but felt like an "ice pick was driven through [his] kneecap" while weightbearing. The attending clinician prescribed an unloader brace and the Veteran was fitted for a brace in August 2019. In a July 2021 record, a private physician (Dr. Khanh K. Nguyen, M.D.) noted the Veteran continued to have radicular pain in his bilateral hips and legs. However, the Veteran denied any falls or leg weakness. At the October 2021 Board hearing, the Veteran testified that he could not squat without his right knee "letting loose." He reported his right knee "locked up" when bending it approximately 30 percent. The Veteran asserted that he regularly used a cane and a brace and was no longer able to perform yard work because of his knee condition. During a December 2021 VA examination, the Veteran reported right knee pain, popping, locking that worsened in the past eighteen months. He reported flare-ups while climbing, squatting, sitting, standing or walking for prolonged periods. He reported flare-ups occurred daily, lasted for "hours," and described them as "mild-moderate." The Veteran denied a history of instability, recurrent subluxation, or frequent effusion of the knees. ROM testing revealed right knee flexion to 110 degrees and normal extension, and the Veteran reported pain during both flexion and extension. However, the VA examiner noted pain on active motion did not cause functional loss. The examiner indicated that passive ROM testing was not performed because of risk of injury. The examiner opined that pain would additionally limit functional ability during flare-ups and after repeated use over time. The examiner estimated the Veteran's right knee flexion would be further limited to 100 degrees during these circumstances. The Veteran did not have muscle atrophy or ankylosis. The VA examiner noted the Veteran did not have recurrent subluxation, persistent instability, chronic exertional compartment syndrome, patellar dislocation, or a ligament tear. Joint stability testing was normal bilaterally. The examiner indicated the Veteran used a brace on his right leg because of his right knee osteoarthritis and meniscal condition. The Veteran was afforded an additional VA examination in February 2022. He continued to report "stabbing" pain, aching, popping, and locking of the right knee. The Veteran denied frequent effusion, instability, or recurrent subluxation. ROM testing revealed flexion to 110 degrees and normal extension. The examiner noted pain with weight-bearing and active and passive motion. The examiner opined that pain prevented the Veteran from sitting or standing for more than five minutes. Joint stability testing was again performed and continued to show normal joint stability in both knees. The VA examiner further noted there was no history of medial or lateral instability or chronic exertional compartment syndrome. A rating greater than 10 percent based on right knee flexion (DC 5260) is denied because the record does not show that the Veteran had flexion limited to 45 degrees (or less). See 38 C.F.R. § 4.71a; DC 5260 (the minimum 10 percent rating requires flexion of 45 degrees; a noncompensable rating is assigned for flexion of 60 degrees or higher). Given the Veteran's painful motion, the existing 10 percent rating is appropriate for the entire appeal period (April 23, 2013 to the present). See 38 C.F.R. § 4.59; DeLuca, above. A separate rating based on limited extension is not warranted because the Veteran has not had extension limited to 10 degrees. 38 C.F.R. § 4.71a, DC 5261 (the minimum 10 percent rating requires extension limited to 10 degrees; a noncompensable rating is assigned for extension of 5 degrees or less). Although he reports pain with flexion and extension, the Veteran's painful motion is already compensated by the 10 percent rating under DC 5260. However, the Veteran's right knee locking, swelling, popping, clicking, and pain into the joint warrant an additional, separate 20 percent rating under DC 5258. The Veteran has consistently reported frequent episodes of pain and locking and several VA examiners noted these are residual symptoms from the Veteran's meniscal tear. The Board will resolve any doubt in the Veteran's favor and award a separate 20 percent rating under DC 5258, effective April 23, 2013. 20 percent is the maximum possible evaluation under DC 5258. See 38 C.F.R. § 4.71a, DC 5258. With respect to a separate rating for instability under DC 5257 before February 7, 2021, the Veteran consistently reported a sensation of instability and "giving way" in his right knee throughout the appeal period. DC 5257 does not require objective medical evidence of lateral instability for a rating to be assigned. English v. Wilkie, 30 Vet. App. 347 (2018). However, while the Veteran is competent to describe his knee "giving way," as a layperson, he is not competent to diagnose lateral instability or recurrent subluxation. These conditions require administration and interpretation of specialized testing of the ligaments and patella. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). These tests were performed during the Veteran's VA examinations and consistently revealed normal joint stability without X-ray evidence of patellar dislocation or subluxation. In December 2015, Dr. Fain also noted the Veteran did not have lateral instability or recurrent subluxation, and joint stability testing was normal. In the December 2021 and February 2022 VA examinations, the Veteran denied instability or recurrent subluxation. A separate rating is not warranted under the revised version of DC 5257. After February 7, 2021, a 20 percent rating under DC 5257 requires "surgical repair of a condition involving the patellofemoral complex," or a "sprain, incomplete ligament tear, or repaired complete ligament tear, or an unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation." See 38 C.F.R. § 4.71a, DC 5257. The Board notes that the Veteran was diagnosed with a meniscus tear that required surgery and that he has been prescribed a brace for his right knee conditions. However, the record does not show that the Veteran's right knee disabilities caused "persistent instability" during the appeal period. Except on one occasion in January 2015, the Veteran denied falling. As noted above, the Veteran denied instability during VA examinations and clinical testing revealed normal joint stability. The remaining DCs applicable to the knee do not warrant any additional separate ratings. A separate rating under DC 5256 is not warranted because no medical provider has found evidence of ankylosis, and the Veteran has consistently demonstrated a range of motion in the right knee. 38 C.F.R. § 4.71a, DC 5256. Additionally, his reports of knee "locking" are compensated as outlined above. A separate rating under DC 5259 for removal of semilunar cartilage is also not warranted. The Veteran's meniscus-related symptoms include locking, effusion, and painall of which have been compensated by the rating assigned under DC 5258, above. There is no basis to award an additional rating for a meniscal surgery or similar symptoms as provided in DC 5259. A separate rating under DC 5262 for tibia or fibula impairment is not warranted as there was no evidence of nonunion or malunion of the tibia or fibula in the record. A separate rating under DC 5263 is not warranted because the Veteran has never had genu recurvatum (a deformity of the knee joint resulting in the knee being bent backwards). 38 C.F.R. § 4.71a, DCs 5262, 5263. For the reasons above, the Board will assign a separate 20 percent rating under DC 5258, effective April 23, 2013. With respect to a rating greater than 10 percent under DC 5260 and separate ratings under the other DCs discussed above, the evidence is not approximately balanced. There is no reasonable doubt to resolve and those ratings are denied. Lynch, above. REASONS FOR REMAND 2. The issue of entitlement to a TDIU is remanded. The matter is REMANDED for the following action: The Social Security Administration (SSA) found the Veteran disabled and unable to work because of his low back and neck disabilities, and radiculopathy. Adjudication of separate claims of service connection are pending for these disabilities. In these circumstances, adjudication of the TDIU claim would be inextricably intertwined with the pending claims. Further, the Veteran should file an updated application for TDIU with complete information as to employment status. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Hiaasen The Board's decision is only binding on this case. This action is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.