Citation Nr: 20004858 Decision Date: 01/23/20 Archive Date: 01/21/20 DOCKET NO. 12-26 547 DATE: January 23, 2020 ORDER Entitlement to a disability rating in excess of 10 percent for arthritis of the right knee prior to September 16, 2013, and in excess of 30 percent for right total knee arthroplasty effective November 1, 2014 is dismissed. Entitlement to a disability rating in excess of 10 percent for arthritis of the left knee, status post surgery with residual scars prior to June 18, 2013, and in excess of 30 percent for left total knee arthroplasty effective August 1, 2014 is dismissed. Entitlement to a 10 percent rating for a left knee condition with post-surgical subluxation from November 15, 2010, through June 18, 2013, is granted. FINDINGS OF FACT 1. On July 1, 2019, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran’s attorney requesting withdrawal of his appeals for entitlement to increased ratings for bilateral knee arthritis and total knee arthroplasties. 2. Granting the Veteran the benefit of reasonable doubt, the Veteran’s left knee condition with post-surgical subluxation was manifest by slight subluxation and lateral instability during the period on appeal. CONCLUSIONS OF LAW 1. The criteria for withdrawal of entitlement to a disability rating in excess of 10 percent for arthritis of the right knee prior to September 16, 2013, and in excess of 30 percent for right total knee arthroplasty effective November 1, 2014 by the Veteran’s authorized representative have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 2. The criteria for withdrawal of entitlement to a disability rating in excess of 10 percent for arthritis of the left knee, status post surgery with residual scars prior to June 18, 2013, and in excess of 30 percent for left total knee arthroplasty effective August 1, 2014 by the Veteran’s authorized representative have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 3. The criteria for a rating of 10 percent, but no higher, from November 15, 2010, through June 18, 2013, for left knee condition with post-surgical subluxation have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1979 to June 1981 and from January 2004 to January 2006 with additional periods of service in the Army Reserves. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a May 2011 rating decision. The Veteran testified before the undersigned during a June 2013 hearing. This matter was previously before the Board in January 2015, October 2016, and January 2018, when it was remanded for additional development. The Veteran previously requested a local hearing before the Board, which was scheduled for July 2019. Prior to that date, the Veteran’s authorized representative submitted a July 2019 statement withdrawing his hearing request. See 38 C.F.R. § 20.704(e). The Board may dismiss any appeal that fails to allege a specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55(a). Withdrawal may be made by the appellant or by his or her authorized representative and must include the name of the appellant, the file number, and a statement that the appeal is withdrawn. 38 C.F.R. § 19.55(b). In this case, the Veteran’s authorized representative has properly withdrawn the issues of entitlement to increased ratings for bilateral knee arthritis and residuals of total knee arthroplasties in a statement submitted July 2019. Therefore, there remain no allegations of errors of fact or law for appellate consideration with regard to these issues. Accordingly, the Board does not have jurisdiction to review these appeals and they are dismissed. Entitlement to a compensable disability rating for a left knee condition with post-surgical subluxation from November 15, 2010, through June 18, 2013 The Veteran contends that he is entitled to a compensable rating for a left knee condition with post-surgical subluxation between November 15, 2010, the date of the Veteran’s claim, and June 18, 2013, the date of his left knee total knee replacement surgery. After this date his knee subluxation and instability symptoms are included in the 30 percent rating under Diagnostic Code 5055, the appeal of which has been withdrawn, as previously discussed. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. Where service connection has been granted and the assignment of an initial evaluation is disputed, separate evaluations may be assigned for different periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. In a May 2011 rating decision, the agency of original jurisdiction (AOJ) reduced the 10 percent rating for the Veteran’s service-connected left knee condition with post-surgical subluxation to a noncompensable rating, effective November 15, 2010. Because the reduction for this condition did not reduce the Veteran’s overall disability rating due to additional ratings for other service-connected disabilities, the due process protections of 38 C.F.R. § 3.105(e) do not apply. VAOPGCPREC 71-91; Stelzel v. Mansfield, 508 F.3d 1345, 1347-49 (Fed. Cir. 2007). Though these due process requirements do not apply, prior to reducing a Veteran’s disability rating, VA is required to comply with the regulations applicable to all evaluations, regardless of the rating level or the length of time that the rating has been in effect. See 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13; see Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991) (there is a clear requirement that VA rating reductions be based upon review of the entire history of a Veteran’s disability). VA must review whether the evidence reflects an actual improvement in the disability such that the Veteran’s ability to function under the ordinary conditions of life and work have improved as well. See Faust v. West, 13 Vet. App. 342, 350 (2000). The Veteran’s left knee condition with post-surgical subluxation was rated under 38 C.F.R. § 4.71a, Diagnostic Code 5257, for other impairment of the knee. Under Diagnostic Code 5257, a 10 percent rating is warranted for slight recurrent subluxation or lateral instability. A 20 percent rating is warranted for moderate recurrent subluxation or lateral instability. A 30 percent rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. According to MERRIAM WEBSTER’S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), “slight” means small in amount. “Moderate” means limited in scope or effect. “Severe” means very painful or harmful or of a great degree. Objective medical evidence is not required to establish lateral knee instability under Diagnostic Code 5257, so objective medical evidence cannot be categorically found more probative than lay evidence with respect to this Diagnostic Code. See English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). The Veteran’s treatment records show his left knee condition began with an injury while playing sports during active service, but the subluxation at issue in this case first arose after an initial July 2006 left knee orthoscopic surgery resulted in an infection that required a series of additional operations over the course of the following months. After this infection resolved, the Veteran was examined by a VA examiner in February 2008 who reported left knee tenderness and slight subluxation, as well as pain, weakness, lack of endurance and fatiguability. Based on this, a 10 percent rating for a left knee condition with post-surgical subluxation, effective January 14, 2008, was assigned in a March 2008 rating decision. The Veteran subsequently submitted a claim for an increased rating for his left knee condition on November 15, 2010. A December 2010 VA examination addressed the Veteran’s knee condition at the time and notes the Veteran reported symptoms of weakness, stiffness, swelling, giving way, lack of endurance, fatigability, tenderness, and pain, with additional lack of stability during flares. The Veteran did not report dislocation or subluxation, and objective testing performed during the examination found abnormal movement and guarding related to pain without subluxation, weakness, malalignment, or instability. VA treatment records from the period on appeal show the Veteran was receiving regular treatment for his knees, primarily through regular injections of Hyalgan and steroids to reduce pain, swelling, and related impairment. These treatment notes generally do not address subluxation or stability aside from a June 2010 negative finding of pain or instability on varus and valgus stress testing. Symptoms of pain, abnormal range of motion, tenderness, and crepitus are noted regularly. These records also indicate the Veteran continued intermittent use of an unloader knee brace throughout this period. A May 2013 independent medical examination from a private physician, J.W.E., described the history of the Veteran’s knee injury in detail, indicating the service-connected injury resulted in ligament and tendon tears and associated traumatic arthritis. J.W.E. asserts this resulted in medial and lateral collateral ligament instability. On examination, he found decreased range of motion with pain and crepitus, as well as moderate lateral collateral ligament, medial collateral ligament, and ACL laxity in the left knee. J.W.E. indicates he believes the Veteran should receive a 20 percent rating for moderate lateral instability of the left knee; however, the report is unclear regarding the testing, methodology, or basis for the conclusion this conclusion. While the Board acknowledges this assessment shows the Veteran experienced symptoms of instability as recently as the month before his total knee replacement, the report’s lack of detail limits the ability of the Board to assess the findings as they related to the relevant rating criteria. These findings are therefore of limited probative value regarding the severity of the Veteran’s knee instability symptoms. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (“It is the factually accurate, fully articulated, sound reasoning for the conclusion... that contributes probative value to a medical opinion.”). Based on this evidence, the Board finds that the preponderance of the evidence supports a rating of 10 percent, but no higher, for the Veteran’s left knee condition with post-surgical subluxation and lateral instability from November 15, 2010 through June 18, 2013. The Board has carefully considered the Veteran’s reports about relevant symptoms of subluxation and instability. English, 30 Vet. App. 347, 352-53. Overall, the lay and medical evidence fails to show the Veteran’s condition had clearly and consistently improved prior to the reduction in rating effective November 15, 2010. Though subluxation was not shown in any evaluation during the period on appeal, the evidence shows the Veteran reported some instability during flare-ups at the time of his December 2010 examination. The Veteran testified at his June 2013 hearing that he continued to use a knee brace until it was no longer effective, then he began using a cane. Lateral instability was later reported by J.W.E. in the May 2013 independent medical examination, further showing the Veteran’s condition had not improved in the time leading up to his June 2013 total knee replacement surgery. The evidence also fails to show the instability symptoms experienced by the Veteran during the period on appeal suggested the presence of symptoms more nearly approximating moderate severity. The December 2010 VA examination indicated instability during flares, though the severity and frequency of these symptoms is not described. As use of the Veteran’s knee brace was described as intermittent during this period and assessments noted in treatment records from the period on appeal are silent regarding the severity of the Veteran’s instability symptoms, there is no indication these symptoms were moderate or severe in nature. The only indication of moderately severe instability is noted in the May 2013 independent medical examination from J.W.E. approximately one month before his total knee replacement surgery, but this assessment is of limited probative value, as discussed above. The Board has also considered the other Diagnostic Codes pertaining to the knee and leg. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment, a practice known as pyramiding). The Board notes the Veteran was also assigned a 10 percent rating for left knee arthritis, status post-surgery with residual scars under Diagnostic Code 5010-5260 during the period on appeal; therefore, the symptoms included in that rating, specifically limitation of flexion and pain due to arthritis, are not considered here to avoid pyramiding. Diagnostic Code 5256 is not applicable, as the medical evidence of record does not indicate the Veteran has ever experienced ankylosis of the left knee. Diagnostic Codes 5258 and 5259 are not appropriate in this case because there is no evidence of any dislocation or removal of the semilunar cartilage of the left knee. There is no evidence from the period on appeal showing a limitation of extension of the left leg, so Diagnostic Code 5261 does not apply. There is no evidence of malunion or nonunion of the tibia and fibula that would support a rating under Diagnostic Code 5262. Finally, Diagnostic Code 5263 is not applicable as there is no evidence of genu recurvatum at any time during the period on appeal. In conclusion, granting the Veteran the benefit of reasonable doubt, the Board finds the reduction of the Veteran’s rating was inappropriate and the preponderance of the evidence supports the Veteran’s claim for a compensable rating of 10 percent, but not higher, for a left knee condition with post-surgical subluxation and lateral instability from November 15, 2010, through June 18, 2013. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Pitman, Associate 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.