KNEE IMPAIRMENT OF

Summary

The veteran, who served in the United States Air Force from October 2002 to October 2007, appeals the denial of an increased rating for his left knee disability. The veteran sought a rating in excess of 10 percent for internal derangement of his left knee, which currently carries a 10 percent rating for limitation of motion under Diagnostic Code (DC) 5261. Throughout the appeal period, the veteran reported left knee pain, instability, giving way, crepitus, and occasional locking, impacting his ability to perform various daily activities. The Board reviewed evidence including multiple VA examinations and a private medical treatment record. The Board found that while the veteran experienced episodes of instability and pain, objective medical evidence did not consistently support a higher rating for limitation of motion. However, the Board determined that the veteran was entitled to separate ratings for instability and for symptoms associated with a meniscal tear. Specifically, the Board granted an additional 10 percent rating for instability under DC 5257 and a 20 percent rating for symptoms like locking, pain, and crepitus due to a meniscal tear under DC 5258. The Board found that the veteran's symptoms did not warrant a rating higher than 10 percent for limitation of motion under DC 5261, as objective findings did not consistently support greater functional loss. The Board also denied additional ratings under other diagnostic codes related to knee and leg impairments.

Rationale

No objective evidence of limitation of extension or flexion to warrant higher rating.; Functional loss did not more nearly approximate criteria for higher ratings.; Painful motion considered but did not warrant higher rating.

Full Decision Text

Citation Nr: 22060880
Decision Date: 10/31/22	Archive Date: 10/31/22

DOCKET NO. 17-48 313A
DATE: October 31, 2022

ORDER

Entitlement to a rating in excess of 10 percent for left knee internal derangement is denied.

Subject to the law and regulations governing payment of monetary benefits, an initial separate disability rating of no more than 20 percent for left knee locking, with pain, is granted throughout the appeal period. 

Subject to the law and regulations governing payment of monetary benefits, an initial separate disability rating of no more than 10 percent for left knee recurrent lateral instability is granted throughout the appeal period.

FINDINGS OF FACT

1. The evidence of record shows that the Veteran's left knee internal derangement continues to cause limitation of extension with pain.

2. The evidence of record shows that the Veteran had dislocation of the semilunar cartilage of his left knee with frequent episodes of locking, pain, and effusion into the joint throughout the appeal period.

3. The evidence of record shows that the Veteran has had episodes of instability, due to a meniscal tear in his left knee, throughout the appeal period,.

CONCLUSIONS OF LAW

1. The criteria for a disability rating in excess of 10 percent for left knee limitation of extension have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.49, 4.71a, Diagnostic Code (DC) 5261.

2. The criteria for a rating of 20 percent for dislocation of semilunar cartilage of the knee have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.49, 4.71a, DC 5258.

3. The criteria for a rating of 10 percent for recurrent instability of the knee have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.49, 4.71a, DC 5257.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Air Force from October 2002 to October 2007. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2016 Rating Decision from the Department of Veterans Affairs (VA) Regional Office (RO). In July 2016, the Veteran filed a Notice of Disagreement (NOD), challenging the denial of an increased rating for his left knee disability and the RO issued a Statement of the Case (SOC) in July 2017. The Veteran submitted a VA Form 9 in September 2017, appealing his claim to the Board, and an additional NOD in August 2018, saying that his previously submitted appeal had been cancelled. The RO then issued a Supplemental Statement of the Case in July 2022. The period on appeal begins in October 2015, as there is no objective medical evidence that the Veteran's symptoms began prior to that time. 

Entitlement to a rating in excess of 10 percent for left knee internal derangement

The Veteran seeks a rating in excess of 10 percent for internal derangement of his left knee. The Veteran is currently receiving a 10 percent rating for limitation of motion of his left knee under Diagnostic Code (DC) 5261.

Throughout the appeal period, the Veteran has complained of left knee pain, instability, giving way, incoordination, crepitus, frequent popping and grinding, and occasional locking. The Veteran states that his functional loss includes difficulty squatting, kneeling, entering and exiting cars, getting up from low seats, pivoting, walking downstairs more so than upstairs, sitting for more than one hour, walking for more than 45 minutes, and driving for two to three hours before he must stop. 

The Board finds that in addition to the 10 percent rating the Veteran is also entitled, under DC 5261, due to painful motion of the knee causing limitation of extension of 10 to 14 degrees, the Veteran is entitled to an additional 10 percent for instability caused by his left knee, and is also entitled to an additional 20 percent rating for his left knee under DC 5258 to compensate him for episodes of locking, pain, and crepitus, due to a meniscal
 entering and exiting cars, getting up from low seats, pivoting, walking downstairs more so than upstairs, sitting for more than one hour, walking for more than 45 minutes, and driving for two to three hours before he must stop. 

The Board finds that in addition to the 10 percent rating the Veteran is also entitled, under DC 5261, due to painful motion of the knee causing limitation of extension of 10 to 14 degrees, the Veteran is entitled to an additional 10 percent for instability caused by his left knee, and is also entitled to an additional 20 percent rating for his left knee under DC 5258 to compensate him for episodes of locking, pain, and crepitus, due to a meniscal tear.

Disability evaluations are determined by the application of a schedule of ratings that 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. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran's entire history is reviewed when making disability evaluations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3.

In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of his symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge).

Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In this case, the Board finds that although the Veteran complained of increased pain and limitation of motion, his symptoms have been relatively stable throughout the appeal period. As such, staged ratings are not warranted.

Where the increase in disability occurs more than one year prior to the date of claim, the effective date for an award of increased compensation will be the date of receipt of claim or the date entitlement arose, whichever is later.  See 38 U.S.C. § 5110(a); see also 38 C.F.R. § 3.400(o)(1); see also Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010); see also Swain v. McDonald, 27 Vet. App. 219 (U.S. 2015) (holding that the effective date for an increased rating is predicated on when the increase in the disability can be ascertained). Here, as previously stated, the period on appeal begins in October 2015, during the Veteran's VA review examination.

Based on the evidence of record, throughout the period on appeal there is no objective evidence, and the Veteran has made no statements of the occurrence of flare-ups of his symptoms. Therefore, there is no need to address the effects that flare-ups could have on knee, as required by Sharp v. Shulkin, 29 Vet. App. 26 (U.S. 2017).

Diagnostic Code 5257

As to the Veteran's instability of his knees, the Board finds that he is entitled to a separate 10 percent evaluation under DC 5257 throughout the period on appeal. Under 38 C.F.R. § 4.71a, DC 5257, 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 assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation, will be rated as 10 percent disabling. Entitlement to any higher rating under DC 5257 requires a prescription from a medical provider for a brace or assistive device. 

The Veteran has complained of his knee giving away or giving out, causing him to fall throughout the appeal period. See September 2017 VA Form 9; see also May 2019
.F.R. § 4.71a, DC 5257, 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 assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation, will be rated as 10 percent disabling. Entitlement to any higher rating under DC 5257 requires a prescription from a medical provider for a brace or assistive device. 

The Veteran has complained of his knee giving away or giving out, causing him to fall throughout the appeal period. See September 2017 VA Form 9; see also May 2019 CAPRI; see also June 2022 Compensation & Pension Examination Report. However, the Veteran has not exhibited any objective evidence of instability or subluxation during physical examination. See October 2015 Compensation & Pension Examination Report; see also May 2017 Compensation & Pension Examination Report; see also August 2018 Private Medical Treatment Record; see also March 2019 Compensation & Pension Examination Report; see also June 2022 Compensation & Pension Examination Report. Additionally, joint stability testing was normal during the May 2017 and June 2022 VA Examinations and also during the August 2018 private medical examination. The Board notes that the Veteran is competent to speak to episodes of his knee giving way or giving out and falling and finds his statements concerning knee instability or giving away to be credible. See Layno v. Brown, 6 Vet. App. 465 (1994). 

Diagnostic Code 5258

The Board further finds that a separate 20 percent rating is warranted under DC 5258 for the Veteran's left knee to account for the popping, grinding, pain, and occasional locking the Veteran experiences, throughout the period on appeal. According to the rating schedule, a claimant is entitled to a 20 percent rating for dislocated semilunar cartilage with frequent episodes of "locking", pain, and effusion into the joint. The evidence of record does show that the Veteran has a meniscal tear and further shows that the Veteran has experienced episodes of locking of his left knee during the appeal period. See August 2018 Compensation & Pension Examination Report; see also March 2019 Compensation & Pension Examination Report. Additionally, the Board notes that the Veteran has exhibited crepitus (including popping and grinding) in his left knee during the appeal period. See May 2017 Compensation & Pension Examination Report; see also August 2018 Private Medical Treatment Record; see also June 2022 Compensation & Pension Examination Report. Therefore, the Board finds that a separate 20 percent rating is warranted under DC 5258 to compensate him for these symptoms. See 38 C.F.R. § 4.20; see also Lyles v. Shulkin, 2017 U.S. App. Vet. Claims LEXIS 1704 at * 10 (No. 16-0994, November 29, 2017) (holding that the evaluation of a knee disability under DC 5257 and DC 5260 or 5261 do not preclude, as a matter of law, a separate evaluation under DC 5258).

Diagnostic Codes 5260 and 5261  

With regard to limitation of motion, the Board finds that the Veteran is not entitled to a rating in excess of 10 percent for his left knee limitation of motion because he has not shown a compensable limitation of flexion or extension at any point during the appeal period, even when accounting for functional loss with repeated use over time.

Under DC 5260, limitation of flexion of the leg is rated 0 percent when limited to 60 degrees, 10 percent when limited to 45 degrees, 20 percent when limited to 30 degrees, and 30 percent when limited to 15 degrees. 38 C.F.R. § 4.71a.

Under DC 5261, limitation of extension of the leg is rated 0 percent when limited to 5 degrees, 10 percent when limited to 10 degrees, 20 percent when limited to 15 degrees, 30 percent when limited to 20 degrees, 40 percent when limited to 30 degrees, and 50 percent when limited to 45 degrees. 38 C.F.R. § 4.71a.

Additionally, where a veteran has a noncompensable rating and complains of pain on motion, he or she is entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited
 to 10 degrees, 20 percent when limited to 15 degrees, 30 percent when limited to 20 degrees, 40 percent when limited to 30 degrees, and 50 percent when limited to 45 degrees. 38 C.F.R. § 4.71a.

Additionally, where a veteran has a noncompensable rating and complains of pain on motion, he or she is entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. See id.

In evaluating joint disabilities, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202 (1995). The United States Court of Appeals for Veterans Claims (Court) clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 

25 Vet. App. 32 (2011); see also cf. Powell v. West, 13 Vet. App. 31, 34 (1999); see also Hicks v. Brown, 8 Vet. App. 417, 421 (1995); see also Schafrath, 1 Vet. App. at 592. 

Here, the Veteran is not entitled to a rating in excess of 10 percent for limitation of motion in his left knee, because he did not exhibit any limitation of extension or a limitation of flexion to less than 90 degrees. During both his October 2015 and May 2017 VA examinations, range of motion testing showed no limitation for either extension or flexion.  At the March 2019 VA examination, range of motion testing showed a limitation of extension from 90 to 25 degrees a limitation of flexion from 25 to 90 degrees with pain during both extension and flexion, and pain was noted during weight-bearing testing. However, at his June 2022 VA examination, during both active and passive range of motion tests, he exhibited full extension and an initial limitation of flexion to 135 degrees, with flexion limited to 105 degrees with pain after repeated use. The examiner noted that the Veteran's functional loss includes difficulty squatting, kneeling, getting into and out of cars, getting up from low seats, pivoting, using stairs, prolonged sitting, and walking for more than 45 minutes. In consideration of the Veteran's other range of motion test results found in the evidence of record, his level of disability more nearly approximates the current 10 percent rating already awarded for internal derangement of the left knee. 

In light of the above, the Board finds that the Veteran is not entitled to a rating in excess of 10 percent for left knee limitation of motion at any point during the appeal period. In making this determination the Board has considered the Veteran's reports of experiencing increased functional impairment in his ability to squat, kneel, get into and out of cars, get up from low seats, pivot, use stairs, sit or walk for extended periods of time, or perform activities of daily living. Given that he has exhibited no limitation of extension in his left knee and at best a noncompensable limitation of flexion to 90 degrees in the left knee, the Board finds that his left knee symptoms have more nearly approximated the criteria for a 10 percent rating throughout the appeal period. His overall disability picture for his knee does not more nearly approximate limitation of extension to 15 degrees or more or limitation of flexion to 45 degrees or more. Thus, the Board finds that the criteria for a 20 percent rating for limitation of motion of the left knee have not been met, and that the functional loss described by the Veteran does not warrant elevation to a 20 percent rating under DC 5261.

Other Diagnostic Codes

Finally, the Board finds that the Veteran is not entitled to additional or higher ratings under DCs 5256, 5259, 5262, and 5263. These diagnostic codes concern disabilities that involve ankylosis of the knee, symptomatic removal of semilunar cartilage, impairment of the tibia and fibula, and/or genu recurvatum. As noted above,
 more or limitation of flexion to 45 degrees or more. Thus, the Board finds that the criteria for a 20 percent rating for limitation of motion of the left knee have not been met, and that the functional loss described by the Veteran does not warrant elevation to a 20 percent rating under DC 5261.

Other Diagnostic Codes

Finally, the Board finds that the Veteran is not entitled to additional or higher ratings under DCs 5256, 5259, 5262, and 5263. These diagnostic codes concern disabilities that involve ankylosis of the knee, symptomatic removal of semilunar cartilage, impairment of the tibia and fibula, and/or genu recurvatum. As noted above, the Veteran has not had surgical removal of his meniscus. Further, there is no objective evidence in the record that he suffers from ankylosis, has any impairment of the tibia or fibula, or has genu recurvatum. Thus, he is not entitled to an additional or higher rating under any of these diagnostic codes. 

 

 

Z. Sahraie

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Dozier, Charles P.

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.