Citation Nr: 20005231 Decision Date: 01/22/20 Archive Date: 01/22/20 DOCKET NO. 13-12 081 DATE: January 22, 2020 ORDER From February 5, 2019, a rating in excess of 30 percent for a meniscus tear with limitation of motion of the right knee, is denied. From February 5, 2019, a rating in excess of 30 percent for arthritis, strain, and a history of patellofemoral syndrome with limitation of motion of the left knee, is denied. Prior to February 5, 2019, a separate 10 percent rating for instability of the right knee is granted, subject to the laws and regulations governing the payment of monetary benefits. Prior to February 5, 2019, a separate 10 percent rating for instability of the left knee is granted, subject to the laws and regulations governing the payment of monetary benefits. A rating in excess of 10 percent for instability of the right knee, is denied. A rating in excess of 10 percent for instability of the left knee, is denied. A separate 20 percent rating for dislocated cartilage with frequent episodes of locking, pain, and effusion of the right knee, is granted, subject to the laws and regulations governing the payment of monetary benefits. REMANDED A rating in excess of 10 percent for a meniscus tear with limitation of motion of the right knee, prior to February 5, 2019. A rating in excess of 10 percent for arthritis, strain and a history of patellofemoral syndrome with limitation of motion of the left knee, prior to February 5, 2019. A total disability rating based on individual unemployability (TDIU). FINDINGS OF FACT 1. From February 5, 2019, the Veteran’s service-connected meniscus tear of the right knee is manifested by painful motion with flexion greater than 60 degrees and extension to 20 degrees. 2. From February 5, 2019, the Veteran’s service-connected arthritis, strain, and history of patellofemoral syndrome of the left knee is manifested by painful motion with flexion greater than 60 degrees and extension to 20 degrees. 3. For the entire rating period on appeal, instability of the right knee is, at most, slight. 4. For the entire rating period on appeal, instability of the left knee is, at most, slight. 5. The Veteran’s service-connected right knee disability is consistent with dislocated cartilage with frequent episodes of locking, pain, and effusion. CONCLUSIONS OF LAW 1. From February 5, 2009, the criteria for a rating in excess of 30 percent for a meniscus tear with limitation of motion of the right knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5003, 5260, 5261. 2. From February 5, 2009, the criteria for a rating in excess of 30 percent for arthritis, strain, and history of patellofemoral syndrome with limitation of motion of the left knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.40, 4.45, 4.59, 4.71a, DCs 5003, 5260, 5261. 3. Prior to February 5, 2009, the criteria for a 10 percent rating for instability of the right knee, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.71a, DC 5257. 4. Prior to February 5, 2009, the criteria for a 10 percent rating, for instability of the left knee, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.71a, DC 5257. 5. The criteria for a rating in excess of 10 percent for instability of the right knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.71a, DC 5257. 6. The criteria for a rating in excess of 10 percent for instability of the left knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.71a, DC 5257. 7. The criteria for a separate 20 percent rating for dislocated cartilage with frequent episodes of pain, locking, and effusion in the right knee, from February 5, 2019, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.71a, DC 5258. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1998 to May 2005. The case is on appeal from an October 2011 rating decision. In January 2015, the Veteran testified at a Board hearing. In April 2015 and June 2018, the Board remanded the case for additional development. By rating decision in June 2019, separate 10 percent ratings for instability of the right knee and left knee were granted, from February 5, 2019. Although the Veteran has not filed an appeal with respect to the propriety of the assigned rating or effective date for the separate instability ratings, instability of the right and left knee is a part of the appeal for higher knee ratings. In such cases, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. Thus, the Board will consider such on appeal. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Although the Board is remanding some issues for additional development, remand is not necessary for the issues decided herein, as there is no reasonable possibility that further assistance would further substantiate the claims. See 38 C.F.R. § 3.159(d). I. Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). The evaluation of the same disability under several DCs, known as pyramiding, must be avoided; separate ratings may be assigned for distinct disabilities resulting from the same injury only where the symptomatology for one condition is not duplicative or overlapping with the symptomatology of the other condition. See 38 C.F.R. § 4.14; see also Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Staged ratings are appropriate whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Under DC 5257, a 10 percent rating is warranted for either slight recurrent subluxation or slight lateral instability. A 20 percent rating is warranted for moderate recurrent subluxation or moderate lateral instability. A 30 percent rating is warranted for severe recurrent subluxation or severe lateral instability. 38 C.F.R. § 4.71a, DC 5257. Under DC 5258, dislocation of the meniscal cartilage with frequent episodes of locking, pain and effusion into the joint warrants a 20 percent rating, and under DC 5259, removal of meniscal cartilage with symptoms warrants a 10 percent rating. 38 C.F.R. § 4.71a, DCs 5258, 5259. Under DC 5260, flexion limited to 60 degrees warrants a noncompensable rating. Flexion limited to 45 degrees warrants a 10 percent rating. Flexion limited to 30 degrees warrants a 20 percent rating. Flexion limited to 15 degrees warrants a 30 percent rating. Under DC 5261, a noncompensable rating is warranted for extension limited to 5 degrees. A 10 percent rating is warranted for extension limited to 10 degrees. A 20 percent rating is warranted for extension limited to 15 degrees. A 30 percent rating is warranted for extension limited to 20 degrees. A 40 percent rating is warranted for extension limited to 30 degrees. A 50 percent rating is warranted for extension limited to 45 degrees. 38 C.F.R. § 4.71a, DC 5261. Normal range of motion of the knee is zero degrees of extension to 140 degrees of flexion. See 38 C.F.R. § 4.71, Plate II. II. Discussion 1. A rating in excess of 30 percent for a meniscus tear with limitation of motion of the right knee from February 5, 2019. 2. A rating in excess of 30 percent for arthritis, strain, and a history of patellofemoral syndrome with limitation of motion of the left knee from February 5, 2019. A February 2019 VA examination was conducted pursuant to the Board’s remand, including in compliance with Correia v. McDonald, 28 Vet. App. 158 (2016); Sharp v. Shulkin, 29 Vet. App. 26 (2017). The February 2019 VA examiner measured flexion of both the right and left knee to 100 degrees and extension to zero degrees. It was noted that the examination was conducted during a flare up with additional functional loss during the flare up resulting in flexion to 90 degrees and extension to 20 degrees in each knee. As such, even in consideration of the additional functional loss during flare up, neither the right knee nor the left knee meets the criteria for a rating in excess of 30 percent under DC 5261, from February 5, 2019. The Veteran’s occasional use of knee braces, along with difficulty with walking, standing, and ascending stairs, as well as use of a cane, are contemplated by the 30 percent ratings assigned under DC 5261. Specifically, 38 C.F.R. § 4.45, which directs VA to consider disturbance of locomotion, instability of station, and interference with weight-bearing, contemplates difficulty with walking/use of assistive device for ambulation. See Spellers v. Wilkie, 30 Vet. App. 211, 218 (2018). In sum, the preponderance of the evidence is against a rating in excess of 30 percent for the meniscus tear with limitation of motion of the right knee, from February 5, 2019, and against a rating in excess of 30 percent for arthritis, strain, and a history or patellofemoral syndrome with limitation of motion of the left knee, from February 5, 2019. Thus, the benefit-of-the-doubt doctrine is not applicable and ratings in excess of 30 percent for the right and left knee disabilities based on limitation of motion are not warranted from February 5, 2019. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 3. A compensable rating for instability of the right knee prior to February 5, 2019, and in excess of 10 percent thereafter. 4. A compensable rating for instability of the left knee prior to February 5, 2019, and in excess of 10 percent thereafter. The Veteran’s instability of the right knee and of the left knee is separately rated under DC 5257. As noted above, instability of the right and left knee is a part of the appeal for higher ratings for the knee disabilities. At the Board hearing in January 2015, the Veteran stated that she had instability in her knees. She added that, although the 2011 VA examination report noted no instability, her knees gave way approximately two to three times per month at which time she had to grab on to something to prevent herself from falling. The Board notes that medical evidence of knee instability is not categorically more probative than lay evidence. See English v. Wilkie, 30 Vet. App. 347 (2018). Lending further credibility to her assertions are VA physical therapy records in May 2016 referencing knee braces due to knee instability. Moreover, findings on MRI of the knees in March 2016 was suggestive of right mild patellar tracking abnormality, and left lateral patellar tilting and borderline lateralized insertion of the patellar tendon at the tibial tubercle was noted. See VA treatment records in January 2019. In addition, and although the RO assigned separate ratings for instability of the knees from the date of the VA examination in February 2019, the effective date for an increased rating is based on when it is factually ascertainable that the disability worsened and not on the date of the examination that documented the worsening. See Swain v. McDonald, 27 Vet. App. 219, 224 (2015). Accordingly, resolving reasonable doubt in favor of the Veteran, the Board finds that a separate 10 percent rating for instability of the right knee and a separate 10 percent rating for the left knee is supported prior to February 5, 2009 as well. See 8 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. However, ratings in excess of 10 percent ratings are not warranted throughout the appeal period. In that respect, the February 2019 VA examiner noted only a history of slight lateral instability of the knees. No instability on testing was reported, and no recurrent subluxation was noted. Thus, a rating is excess of 10 percent for instability of either the right knee or the left knee is not warranted at any time during the appeal as no more than slight instability has been shown. 38 C.F.R. § 4.71a, DC 5271. The evidence is in favor of separate 10 percent ratings for instability of the right knee and left knee prior to February 5, 2019. However, the preponderance of the evidence is against ratings higher than 10 percent for instability of the right or left knee at any time during the appeal. Thus, ratings in excess of 10 percent for instability of the right and left knee are not warranted. 5. Separate right knee meniscus rating. The Board has also considered the other DCs pertaining to the knee. 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, 6 Vet. App. at 261-62; 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). With respect to the right knee, the Board finds that a separate rating under DC 5258 is warranted. The February 2019 VA examination report notes a meniscus tear with frequent episodes of pain and locking in the right knee. Although no significant effusion was noted, effusion has been reported during the appeal period, see private treatment records in April 2015 and VA treatment records in May 2016, and the VA examiner reported that swelling interfered with locomotion and standing. The Board finds that these symptoms are separate and distinct from the pain, limitation of motion, and instability that form the basis for the Veteran’s other right knee ratings. Thus, the 20 percent rating under DC 5258 may be assigned based on the symptomatology that is closely analogous to the symptomatology associated with dislocated semilunar cartilage. See 38 C.F.R. § 4.20; see also Lyles, 29 Vet. App. at 107. This is the maximum rating under this DC. Additionally, the symptoms are shown throughout the appeal period. This type of meniscus history and symptomatology is not shown for the left knee; thus, a separate rating is solely warranted for the right knee under DC 5258. REASONS FOR REMAND 1. A rating in excess of 10 percent for a meniscus tear of the right knee with limitation of motion prior to February 5, 2019. 2. A rating in excess of 10 percent for arthritis, strain, and a history of patellofemoral syndrome with limitation of motion of the left knee prior to February 5, 2019. For the period prior to February 5, 2019, the Veteran seeks higher ratings for her right and left knee disabilities. She maintains that she regularly experiences flare ups of right and left knee symptoms, which resulted in time off from work. See January 2015 Board hearing testimony. September 2011 and August 2015 VA examination reports do not include findings regarding functional loss per Sharp (outlining VA examiners’ obligation to elicit information regarding flare-ups of a musculoskeletal disability if the examination is not conducted during such a flare-up, and to use this information to characterize additional functional loss during flare-ups). Therefore, a retrospective opinion is warranted to ascertain the historical functional loss to the extent reasonable in accordance with Sharp for the appeal period prior to February 5, 2019. See Chotta v. Peake, 22 Vet. App. 80, 85 (2008) (holding that the duty to assist may include obtaining a retrospective medical opinion to fill in gaps in the medical evidence of record). 3. A TDIU. The issue with respect to a TDIU is part and parcel of the knee rating claims. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, the Board will also remand the TDIU claim. On remand, the Veteran should be afforded an opportunity to complete and return a VA FORM 21-8940 with respect to a TDIU. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, in order to provide the information needed to substantiate the TDIU claim. 2. Forward the claims file to an appropriate clinician to retrospectively determine the functional loss in terms of limitation of motion of her service-connected right and left knee disabilities, prior to February 5, 2019. An examination should be scheduled if found necessary by the examiner. To the extent reasonably possible the functional impact of flare-ups in terms of degrees of range of motion should be estimated, prior to February 5, 2019, to include consideration of the results of the September 2011 and August 2015 VA examination reports. If it is not possible to provide an opinion regarding flare-ups, symptoms, or functional impairment, including on repeated use, for the period prior to February 5, 2019 without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). Rationale for all opinions expressed should be provided. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Taylor 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.