Citation Nr: 19152002 Decision Date: 07/03/19 Archive Date: 07/03/19 DOCKET NO. 15-35 433 DATE: July 3, 2019 ORDER For the period prior to August 19, 2015, a separate 10 percent rating for limitation of flexion with painful motion of the right knee is granted. A separate rating of 10 percent for right knee instability is granted throughout the claim period is granted. REMANDED The issue of entitlement to service connection for a left knee disability as secondary to a right knee disability is remanded. The issue of entitlement to an increased rating for a right knee disability, currently rated as 10 percent disabling based on instability, 10 percent disabling based on painful motion, and 20 disabling based on frequent episodes of locking, pain, and swelling, is remanded. FINDINGS OF FACT 1. For the period prior to August 19, 2015, the Veteran’s right knee was manifested by flexion limited to at least 90 degrees and painful motion. 2. Throughout the appeal period, the Veteran’s right knee disability has been manifested by slight instability. CONCLUSIONS OF LAW 1. For the period prior to August 19, 2015, the criteria for a separate 10 percent rating for limitation of flexion with painful motion of the right knee are met. U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5260. 2. Throughout the claim period, the criteria for a rating of 10 percent for instability of the right knee are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5258. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1989 to March 1990, July 1991 to November 1991, and February 1994 to October 1995. This matter is before the Board on appeal from a May 2013 rating decision. In an August 2015 rating decision, the RO awarded a separate 10 percent rating for painful motion of the right knee, effective August 19, 2015. The Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge (VLJ) in November 2018 and a transcript of the hearing has been associated with the claims file. Increased Rating The Veteran is seeking higher ratings for his service-connected right knee disability. Following a review of the record, the Board finds that separate ratings are warranted as discussed below. The issue of entitlement to even higher ratings is discussed in the Remand below. Initially, as noted in the introduction, the Veteran’s right knee has been assigned a 10 percent rating under Diagnostic Code 5260 for limitation of right knee flexion with pain, effective August 19, 2015. 38 C.F.R. § 4.71a. Here, evidence dated prior to August 19, 2015, also showed limited right knee motion and painful motion. For example, a June 2011 VA examination report documents right knee flexion limited to 90 degrees with objective evidence of pain with repetitive motion, and the Veteran’s report of pain that was exacerbated by range of motion, walking, and standing. Based on the foregoing evidence of painful and limited motion as early as June 2011, and as the Veteran’s current claim on appeal was received in March 2011, the Board finds that a 10 percent rating is warranted for limitation of flexion with painful motion throughout the entire period on appeal and, in particular, during the period prior to August 19, 2015. 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5260. Next, the Board finds that a separate 10 percent rating is also warranted throughout the claim period for instability of the right knee under Diagnostic Code 5257. 38 C.F.R. § 4.71a. In this regard, in an August 2013 written statement, the Veteran complained that his right knee was not stable, and slight right knee anterior and medial instability was objectively noted on examinations in January 2013 and August 2015. The August 2015 examiner also noted a history of moderate recurrent subluxation. As the evidence shows right knee instability that is not otherwise accounted for by any of the other currently assigned diagnostic codes, the Board finds that a separate 10 percent rating is under Diagnostic Code 5257 is also appropriate. In granting the above ratings, the Board recognizes that, according to August 2015 and May 2016 Rating Decision codesheets of record, the Veteran’s right knee is currently rated as 20 percent disabling under Diagnostic Code 5257, which contemplates instability. However, past rating decisions dated in September 2004, June 2006 and May 2013, as well as the August 2015 rating decision, clearly indicate that the 20 percent rating was assigned for frequent episodes of locking, pain, and swelling, which is provided for by Diagnostic Code 5258. Thus, the codesheet should reflect assignment of a 20 percent rating under Diagnostic Code 5258 and not Diagnostic Code 5257. And, as Diagnostic Code 5258 does not expressly contemplate instability, and the criteria for a rating under that code are otherwise entirely met, the Board finds that a separate rating for instability may be assigned in this case without concern for pyramiding. 38 C.F.R. § 4.14. Similarly, while the Veteran is already in receipt of a compensable rating for pain associated with locking and swelling in the right knee, the Board finds that such pain is distinct from the pain associated with range of motion of the knee, such that separate ratings under Diagnostic Code 5260 and 5258 does not amount to pyramiding. Id. In sum, the Board finds that, in addition to the currently assigned 20 percent rating for right knee episodes of locking, pain, and swelling, separate 10 percent ratings are warranted for limitation of flexion with painful motion and instability for the entire period since the filing of the Veteran’s March 2011 claim for an increased rating for his right knee disability. REASONS FOR REMAND 1. The issue of entitlement to service connection for a left knee disability as secondary to a right knee disability is remanded. The Veteran asserts that his current left knee disability is due to or aggravated by his service-connected right knee disability. Although a January 2013 VA examiner found that the Veteran’s left knee disability was directly the result of an injury sustained during a period of service for which the Veteran is barred from obtaining VA benefits, the examiner did not adequately address whether the Veteran’s right knee disability had any impact on the left knee, as claimed. That the Veteran injured his left knee in service does not preclude a finding that his left knee disability since that time has been adversely impacted or aggravated by the right knee disability. Given the foregoing, the Board finds that an additional VA opinion is required. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided). 2. The issue of entitlement to an increased rating for a right knee disability is remanded. The record shows that the Veteran was last afforded a VA examination for his right knee disability in August 2015. Since that time, he underwent additional right knee surgery in April 2018, which suggests a worsening of his right knee disability since August 2015. In light of evidence that the Veteran’s level of disability in his right knee may have worsened, the Board finds that another VA examination must be provided on remand to assess the severity of his right knee disability. Additionally, the Veteran reported in August 2015 that he has been in receipt of Social Security disability benefits due to his right knee disability. Thus, efforts should be made to obtain those records. The Veteran’s updated medical records should also be obtained on remand. The matters are REMANDED for the following action: 1. Request that the Veteran provide or authorize VA to obtain records of his relevant treatment that have not yet been associated with the claims file, and associate with the claims file any outstanding VA treatment records. 2. Request from the SSA copies of the records pertinent to the Veteran’s claim for Social Security disability benefits as well as the medical records relied upon concerning that claim. If the requested records are unavailable, the claims file should be annotated as such and the Veteran and his representative notified of such. 3. Schedule the Veteran for a VA examination to assess the current nature and severity of his service-connected right knee disability and the etiology of his left knee disability. Range of motion should be reported, including whether and the extent to which such motion is affected by pain, weakness, fatigue, lack of endurance, incoordination or other symptoms resulting in functional loss. (a) State whether it is at least as likely as not (50 percent probability or more) that the Veteran’s left knee disability was (1) caused by, or (2) aggravated by his service-connected right knee disability. Please explain why or why not, discussing evidence (including a June 2011 VA examination report) supporting that the Veteran walked with an antalgic gait due to his right knee disability. (b) Based upon a review of the medical records, lay statements submitted in support of the claim, and/or statements elicited from the Veteran during the examination, state whether the Veteran experiences flare ups of his service-connected right knee disability, and how he or she characterizes the additional functional loss during a flare. (c) If the Veteran describes experiencing flare ups, identify the (1) frequency; (2) duration; (3) precipitating factors; and (4) alleviating factors. (d) Based upon the information elicited as a result of the foregoing, state whether it is at least as likely as not (50 percent probability or greater) that during a right knee flare up range of motion is additionally limited to 30 degrees (the measurement required for the next higher rating). Please explain why or why not. (e) Based upon the information elicited as a result of the foregoing, state whether it is at least as likely as not (50 percent probability or greater) that repetitive use of the right knee over time additionally limits flexion to 30 degrees or less, or extension to 10 degrees or more. Please explain why or why not. If the examiner cannot provide the requested opinions without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence in this case, or a lack of knowledge among the medical community at large, and not the insufficient knowledge of the individual examiner). If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner’s lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. S. C. KREMBS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Department of Veterans Affairs 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.