Citation Nr: 18159280 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 15-28 065 DATE: December 18, 2018 ORDER Entitlement to a rating of 30 percent for left knee recurrent severe lateral instability is granted prior to February 16, 2017. Entitlement to a separate rating of 10 percent for left knee painful motion is granted, prior to February 16, 2017. REMANDED Entitlement to a rating in excess of 30 percent for left total knee replacement after April 1, 2018, is remanded. FINDINGS OF FACT 1. The Veteran’s left knee disability resulted in recurrent severe lateral instability. 2. The Veteran left knee disability is manifested by pain and corresponding functional impairment; even considering the Veteran’s functional loss during flare-ups her left knee disability is not productive of compensable limitation of flexion or extension. CONCLUSIONS OF LAW 1. The criteria for the maximum rating for left knee recurrent lateral instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5257. 2. The criteria for a separate compensable rating of 10 percent for left knee painful motion have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DC 5261. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1987 to November 1987 and from December 1990 to May 1991. This matter comes before the Board of Veterans Appeals (Board) on appeal from a March 2014 rating decision from the Department of Veterans Affairs Regional Office (RO). The Veteran presented sworn testimony before the undersigned Veterans Law Judge (VLJ) in April 2018. Entitlement to a rating in excess of 20 percent for a left knee disability Prior to April 2018, excluding periods of convalescence, the Veteran received a 20 percent rating for moderate lateral instability under DC 5257. In April 2018, her rating was changed to reflect a 30 percent rating for left knee replacement under DC 5055. Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Separate diagnostic codes identify the various disabilities. 38 U.S.C. §1155. 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. However, pyramiding, or evaluating the same manifestation of a disability under different diagnostic codes, is to be avoided. See 38 C.F.R. § 4.14. Thus, separate ratings under different diagnostic codes are only permitted if, those separate ratings are assigned based on manifestations of the Veteran's disability that are separate and apart from manifestations for which the Veteran has already been rated. See Esteban v. Brown, 6 Vet. App. 259, 261 (1994). Separate ratings may be awarded under DCs 5260, 5261, 5257, 5258, 5255 so long as assignments of separate ratings would not result in compensating the Veteran twice for the same knee symptom. Lyles v. Shulkin, 29 Vet. App. 107 (2017). When evaluating musculoskeletal disabilities based on limitation of motion, the Veteran is entitled to at least the minimum compensable evaluation if motion is accompanied by pain. See 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). DC 5257 The Board finds that a 30 percent rating is warranted under 5257 because the Veteran’s lateral instability is severe. Under 38 C.F.R. §4.17a, DC 5257, slight recurrent subluxation or lateral instability will be rated as 10 percent disabling, moderate recurrent subluxation or lateral instability will be rated as 20 percent disabling, and severe recurrent subluxation or lateral instability warrants a 30 percent rating. June to August 2012 VA treatment records show the Veteran had a probable tear of the ACL, complex medial meniscal tear, osteoarthritis of the medial compartment, small joint effusion with tiny Baker’s cyst, left knee instability, and popping. The March 2014 VA examiner was unable to test for stability. However, the June 2015 VA examination show the Veteran had a positive Lachman’s instability test. The August 2015 VA examination show medial and lateral instability. January 2017 private treatment records also indicate left knee instability. As such, the Veteran’s disability picture reflects severe recurrent lateral instability and she is entitled to a 30 percent rating under 5257. Limitation of Motion (DC 5260 & 5261) The Board finds that a 10 percent rating under 5261 is warranted because of the Veteran’s painful motion. Under 38 C.F.R. § 4.71a, 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. Id. March 2014 VA examination does not show left knee flexion limited to 60 degrees or less or extension limited to 45 degrees or more. The June 2015 VA examination show the Veteran’s flexion was 0 to 120 degrees and extension was 120 to 0 degrees. However, because the Veteran’s motion has been productive of pain throughout the appeal period, she is entitled to a compensable 10 percent rating under 5261. Burton v. Shinseki, 25 Vet. App. 1 (2011). In sum, because the Board finds that the evidence supports entitlement to 30 percent for severe lateral instability and 10 percent for painful motion, this represents a complete grant of the benefit sought on appeal for the period prior to the Veteran’s knee replacement surgery. See April 2018 Board hearing transcript; AB v. Brown, 6 Vet. App. 35, 38 (1993). REASONS FOR REMAND At the April 2018 hearing, the Veteran reported that her left knee worsened to include knee buckling and giving way daily. The Veteran has not received a VA examination since her left total knee replacement. As a result, VA is required to afford a contemporaneous VA examination to assess the current nature, extent, and severity of her left knee disability. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The matter is remanded for the following action: 1. Obtain all outstanding VA treatment records. 2. Schedule the Veteran for a VA examination to determine the current nature and severity of her left knee disability. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. 3. After completing the above development, including any additional development that may be warranted, readjudicate the appeal. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K.Ijitimehin, Associate Counsel