Citation Nr: 22016846 Decision Date: 03/23/22 Archive Date: 03/23/22 DOCKET NO. 15-14 229A DATE: March 23, 2022 ORDER A continued separate rating under Diagnostic Code 5258 from October 3, 2012, for a right knee disability to include dislocation of semilunar cartilage is denied. FINDING OF FACT The Veteran's right knee disability includes symptoms manifested by "locking," and "pain," which causes limited range of motion in flexion and extension. CONCLUSION OF LAW The criteria for a continued separate rating under Diagnostic Code 5258 from October 3, 2012, for a right knee disability to include dislocation of semilunar cartilage have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5258, 5260, 5261. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant in this case, had service from December 1995 to September 2005. In April 2020, the Board awarded the Veteran the following: (1) increased 10 percent rating for the right knee disability to include painful motion under DC 5260 from January 15, 2008 until April 29, 2010; (2) a separate initial evaluation of 10 percent for the right knee disability instability under DC 5257 from January 15, 2008 to April 29, 2010; (3) an increased 20 percent rating for right knee disability to include semilunar cartilage, dislocation under DC 5258 from April 30, 2010 to October 2, 2012; (4) increased 20 percent rating for right knee disability to include moderate instability under DC 5257 from April 30, 2010 to February 22, 2018; (5) increased 30 percent for right knee instability to include limitation of extension under DC 5261 from October 3, 2012; (6) increased 30 percent for right knee disability to include severe instability under DC 5257 from February 23, 2018. The Board also decided several ratings for the low back disability. The Veteran appealed the Board's April 2020 decision to the Court of Appeals for Veterans Claims (the Court), contending that the Board's declination to award simultaneous ratings under Diagnostic Codes 5258 and 5261 was in error. The Court agreed, and in February 2021, granted the parties Joint Motion for Partial Remand (JMPR)(the Court's February 2021 JMPR), setting aside and remanding only that portion of the Board's April 2020 decision that discontinued a 20 percent rating for the right knee under Diagnostic Code 5258 from October 3, 2012. 1. A continued separate rating under Diagnostic Code 5258 from October 3, 2012, for a right knee disability to include dislocation of semilunar cartilage. The Veteran contends that he is entitled to a continued separate rating under DC 5258 for the period from October 3, 2012. The Board's April 2020 decision found that, for the period on appeal from October 3, 2012, the Veteran's service-connected right knee disability was not entitled to dual disability ratings under both Diagnostic Code 5258 and Diagnostic Code 5261. As grounds, the Board's April 2020 decision states in pertinent part as follows: In addition, the Board finds that the Veteran is not entitled to separate ratings under both Diagnostic Code 5258 and Diagnostic Code 5261, as the assignment of ratings under both of these codes would constitute impermissible pyramiding. As set forth above, the symptomatology for an assigned rating under one diagnostic code may not duplicate or overlap with the symptomatology for a separate assigned rating under another diagnostic code. See Esteban, 6 Vet. App. at 261-62. Diagnostic Codes 5258 and 5261 each evaluate a service-connected knee disability on the basis of limitation of motion, as well as the pain causing that limitation of motion. As stated above, Diagnostic Code 5258 evaluates limitation of motion reflected by the symptoms or findings of pain, locking, and effusion into the joint; "locking" involves the sudden loss of ability to extend the knee, is usually painful, and may be associated with an audible noise, such as a click or pop. See Firestein, Kelley's Textbook of Rheumatology 571 (9th ed. 2012). In the case of Diagnostic Code 5261, such limitation of motion is encompassed by the limitation of extension, including limitation of motion due to pain. Because Diagnostic Codes 5258 and 5261 overlap in their inclusion of locking as a form of limitation of motion that is usually accompanied by pain, the Board therefore finds that both codes evaluate knee pain and limitation of motion due to pain, and further, that the assignment of separate ratings under each code would result in the award of compensation under two different codes for the same manifestations of pain and limitation of motion, thereby constituting impermissible pyramiding. See 38 C.F.R. §§ 4.14, 4.40, 4.45, 4.59; see also DeLuca, 8 Vet. App. at 205-07. Moreover, because the Board hereby grants the higher 30 percent rating under Diagnostic Code 5261, and separate ratings under both Diagnostic Codes 5258 and 5261 would violate the prohibition against pyramiding, the 20 percent rating under Diagnostic Code 5258 is hereby discontinued. See Butts, 5 Vet. App. at 538-39. In so finding, the Board also finds that the Veteran's service connection for his right knee disability has not been effectively severed, as this change in Diagnostic Code more accurately reflects the benefits to which the Veteran is entitled and results in a more advantageous benefit to the Veteran by increasing his compensation rating from 20 percent to 30 percent. See Read, 651 F.3d at 1302. The Court's February 2021 JMPR responded to these April 2020 Board findings as follows: The Board's finding regarding pyramiding violates this Court's precedent. Specifically, in Lyles v. Shulkin, the Court held that "evaluation of a knee disability under DCs 5257 or 5261 or both does not, as a matter of law, preclude separate evaluation of a meniscal disability of the same knee under DC 5258 or 5259, and vice versa." 29 Vet. App. 107, 109 (2017). The Court further held that "entitlement to a separate evaluation in a given case depends on whether the manifestations of disability for which a separate evaluation is being sought have already been compensated by an assigned evaluation under a different DC." Id. at 109. Here, the Board's interpretation of the pyramiding rule, finding that continuing [the Veteran's 20 percent] rating under DC 5258 would constitute pyramiding because DCs 5258 and 5261 "overlap in their inclusion of locking as a form of limitation of motion that is usually accompanied by pain," is "contrary to the plain meaning of § 4.71a." Lyles, 29 Vet. App. at 113. Section "4.71a does not expressly prohibit separate evaluation under DC 5257 or 5261 and a meniscal DC." Id. at 114. In addition, contrary to the Board's finding that DC 5258 and 5261 overlap in their inclusion of locking as a form of limitation of motion that is usually accompanied by pain, there is no indication that the VA medical evidence the Board relied on to grant a rating under DC 5261 demonstrated that "locking" caused Appellant's limited extension. See [May 2019 VA examination; October 2012 VA treatment note; March 2016 VA treatment note]. Nor do the private treatment records documenting [the Veteran]'s symptoms and limited extension [sic]. The evidence seems to suggest that [the Veteran]'s limited extension was due to pain and lack of endurance. [May 2019 VA examination]. The Lyles Court held, "[s]ignificantly, § 4.71a does not expressly prohibit separate evaluation under DC 5257 or 5261 and a meniscal DC." Lyles, 29 Vet. App. at 114, citing Esteban v. Brown, 6 Vet. App. 259, 261 (1994). Further, the Lyles Court explained, "[a]s outlined above, § 4.25(b) directs adjudicators to evaluate each disability separately, '[e]xcept as otherwise provided in [the rating] schedule,' and § 4.14 recognizes that '[d]isability from injuries to the muscles, nerves, and joints of an extremity may overlap to a great extent, so that special rules are included in the appropriate bodily system for their evaluation.'" Id. Accordingly, and as applied to the right knee in the instant matter, the Court concluded that the Board must assess whether the Veteran's "pain, swelling, popping, locking, and grinding associated with his left knee meniscal disability have been compensated by his current left knee evaluations under DC 5261," and that remand of the veteran's meniscal disability claim was therefore warranted to determine whether separate evaluation of a meniscal disability under either DC 5258 or 5259 was warranted on the facts of the case or whether such evaluation would constitute impermissible pyramiding. The Board notes that a September 2017 VA orthopedic note reflects that the Veteran reported the following: chronic right knee pain, popping, and locking, but no heat, redness, or swelling; sitting for extended periods longer than 30 minutes causes pain, stiffness, and difficulty standing. The Board further notes that the Veteran testified before the undersigned in February 2018. He endorsed the following right knee symptoms: (1) after sitting for five to ten minutes his right knee locks up and he must pop it back into place; (2) his right knee now requires him to constantly use his knee brace; (3) he has fallen twice in the past year due to his right knee instability, incurring scrapes and scratches as a result; and (4) his right knee continues to manifest cracking and crookedness when moving the knee joint. In May 2019, the Veteran underwent a VA knee examination, which culminated in a report finding that the Veteran's service-connected right knee disability, to include residuals of his in-service ACL repair and degenerative joint disease (DJD) diagnosed in 2012, manifested the following symptoms: constant pain; difficulty with knee extension; locking which causes him to fall; swelling three times per week; painful motion with flexion limited to 90 degrees after repetitions; painful motion with extension limited to 20 degrees after repetitions; inability to stoop or to squat; evidence of pain with weight-bearing; objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue, to include moderate pain on palpation inferiorly; consistent with DJD; objective evidence of crepitus; muscle atrophy of the right lower extremity; a history of recurrent effusion, including frequent swelling for no apparent reason; and the use of a knee brace to improve stability. The May 2019 VA examination report further indicates that pain and lack of endurance significantly limit the Veteran' right knee functional ability with repeated use over a period of time. However, the May 2019 VA examination report does not indicate whether the Veteran's limitation of motion to 20 degrees of extension was caused by his right knee locking. On VA examination in November 2021, initial active and passive range of motion exhibited pain with flexion to 120 degrees and extension to 20 degrees. The abnormal range of motion itself did not contribute to functional loss. There was pain with weight-bearing, active motion, and passive motion, but it did not result in or cause functional loss. There was objective evidence of crepitus, but no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. There was no additional loss in range of motion with repetitive-use testing. The VA examiner indicated that the procured evidence (statements from the Veteran) did not suggest pain, fatigability, weakness, lack of endurance, or incoordination significantly limits functional ability with repeated use over time or with flare-ups. An additional contributing factor of the right knee disabilities included less movement than normal due to the ACL tear residuals. There is recurrent subluxation or persistent instability in the right knee. The VA examiner noted that the surgical repair for the complete ligament tear of the right knee had failed. There is recurrent patellar instability, and surgical repair did not help. The VA examiner indicated the residual signs or symptoms due to the right knee arthroscopic ligament repair surgeries in 1998, 2001, and 2003 included limited range of motion. The Veteran regularly uses a brace and cane due to the right knee instability. There were no other pertinent physical findings, complications, conditions, signs, or symptoms. The November 2021 VA examiner opined that the Veteran's right knee "meniscal and ACL injuries led to the limited [range of motion,] including flexion and extension...they are one in the same." The rationale was, "These are common sequelae of these injuries and surgeries." The Board finds that this medical opinion adequately addressed the JMPR directive that the Board must assess whether the Veteran's pain, swelling, popping, locking, and grinding associated with his right knee meniscal disability have been compensated by his current right knee evaluation under DC 5261. (Continued on the next page) In conclusion, the Board finds that the evidence of record persuasively weighs against the Veteran's claim for a continued separate rating under Diagnostic Code 5258 from October 3, 2012, for a right knee disability to include dislocation of semilunar cartilage. The 2021 VA examiner reviewed the records and concluded the conditions were one and the same. While the Veteran is competent to describe symptoms he is not competent to attribute these symptoms to specific diagnoses or opine as to whether the symptoms result in separate types of functional impairment. As the examiner has clearly indicated the symptoms are one and the same in this particular case it would constitute pyramiding to assign separate ratings. As the evidence of record persuasively weighs against a separate compensable rating, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Connally, 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.