Citation Nr: 20007232 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 15-30 400 DATE: January 28, 2020 ORDER Entitlement to a 20 percent rating, but no higher, for a right knee instability under Diagnostic Code 5257, effective May 21, 2012, is granted. Entitlement to a 20 percent rating for recurrent locking, joint pain and effusion under Diagnostic Code 5258, effective May 21, 2012, is granted. Entitlement to an increased rating other than the 20 percent ratings assigned under Diagnostic Codes 5257 and 5258, effective May 21, 2012, is denied. FINDINGS OF FACT 1. There is no evidence that makes it factually ascertainable that the Veteran had a definitive increase in right knee disability in the one-year period prior to her May 21, 2012 increased rating claim. 2. The evidence establishes the Veteran has at least as likely as not had recurrent locking, joint pain, and effusion in the right knee since May 21, 2012. 3. The evidence establishes the Veteran has at least as likely as not had moderate lateral instability in the right knee since May 21, 2012, but the preponderance of evidence is against a finding that she has had severe subluxation or instability since that date. 4. The evidence establishes the Veteran’s right knee extension is at least as likely as not is limited to 10 degrees since May 21, 2012, but the preponderance of evidence is against a finding that she has had otherwise compensable range of motion loss in the her right knee since that date, even after consideration of additional impairment produced by pain, weakness, fatigue, or incoordination following repetitive movement and/or during flare-ups. 5. There is no evidence the Veteran has had ankylosis, impairment of the tibia and fibula, or genu recurvatum at any point in the appeal period. CONCLUSIONS OF LAW 1. The criteria for a 20 percent rating, but no higher, for right knee instability, effective December 21, 2016, have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5257. 2. The criteria for a 20 percent rating for recurrent locking, joint pain and effusion of the right knee, effective May 21, 2012, have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5258. 3. The criteria for an increased rating for the Veteran’s service-connected right knee disability other than the 20 percent ratings assigned under Diagnostic Codes 5257 and 5258, effective May 21, 2012, have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5256, 5257, 5258, 5259, 5260, 5261, 5262, 5263. REASONS AND BASES FOR FINDINGS AND CONCLUSION This matter comes before the Board of Veterans’ Appeals (Board) on direct appeal from a September 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah, that reduced the rating assigned for the Veteran’s service-connected right knee disability from 10 percent to noncompensable, effective November 1, 2013. Yet, the Veteran’s appeal actually relates back to a May 2012 increased rating claim for her right knee disability, which was denied by an August 2013 rating decision that also proposed the reduction effectuated by the September 2014 rating decision. Since the Veteran filed new and material evidence in the appeal period of the initial August 2013 rating decision, it was not final at the time of her January 2015 notice of disagreement. See Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). As a result, the Board finds the requisite rating period for this appeal is based on the Veteran’s May 2012 increased rating claim. This matter was previously before the Board in August 2018 when it was remanded for additional development due to deficiencies in previous examination reports. The above-referenced development has been completed, and the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). The Board notes an August 2019 rating decision restored the 10 percent rating previously assigned for the Veteran’s right knee disability throughout the appeal period. Thus, discussion of the previous reduction is unnecessary with the Board’s analysis being focused on whether a rating in excess of 10 percent is warranted for the disability. The Board further notes it adjudicated the rating assigned for the Veteran’s service-connected right knee scar in its August 2018 decision; therefore, that disability will not be considered in this decision. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a total disability rating based on individual unemployability (TDIU) is part and parcel of an increased rating claim when such claim is raised by the record. Here, a TDIU claim has not been raised by the record. Increased Ratings Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. § Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1 (2017). In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as staged ratings, and here staged ratings are warranted as to the Veteran's right knee disability. Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When evaluating disabilities of the musculoskeletal system, functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements must be considered. See 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202 (1995). Consideration must also be given to weakened movement, excess fatigability and incoordination. 38 C.F.R. § 4.45. However, concerning disabilities of the knee, Diagnostic Code 5010 directs that traumatic arthritis should be rated as degenerative arthritis under Diagnostic Code 5003. That code, in turn, instructs that ratings should be based on limitation of motion under the appropriate diagnostic codes for the specific joint involved. 38 C.F.R. § 4.71a. Diagnostic Code 5259 provides for a 10 percent rating for symptomatic residuals of removal of a semilunar cartilage. Ratings under Diagnostic Code 5259 require consideration of 38 C.F.R. §§ 4.40 and 4.45 because removal of a semilunar cartilage may result in complications producing loss of motion. VAOGCPREC 9-98. Limitation of motion of the knees is rated under Diagnostic Codes 5260 and 5261. Under Diagnostic Code 5260, a noncompensable rating is assigned when flexion of the leg is limited to 60 degrees; a 10 percent rating is assigned when flexion is limited to 45 degrees; a 20 percent rating is assigned when flexion is limited to 30 degrees; and a 30 percent rating is assigned when flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5261, a noncompensable rating is assigned when extension of the leg is limited to 5 degrees; a 10 percent rating is assigned when extension is limited to 10 degrees; a 20 percent rating is assigned when extension is limited to 15 degrees; a 30 percent rating is assigned when extension is limited to 20 degrees; a 40 percent rating is warranted for extension limited to 30 degrees; and a 50 percent rating is assigned when extension is limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Additionally, a knee disability may simultaneously be rated under Diagnostic Code 5257. Diagnostic Code 5257 evaluates recurrent subluxation or lateral instability of a knee and assigns a 10 percent disability rating for a slight impairment, 20 percent disability rating for a moderate impairment, and 30 percent disability rating for a severe impairment. Descriptive words such as "slight," "moderate," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The use of descriptive terminology by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision. 38 U.S.C. § 7104 (a); 38 C.F.R. §§ 4.2, 4.6. In cases involving the knee, such as the immediate appeal, the Board also considers whether one or more separate evaluations may be warranted for instability in addition to limitation of extension and limitation of flexion. See VAOPGCPREC 23-97 (1997); (interpreting that arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257, provided that any separate rating is based upon additional disability); VAOPGCPREC 9-98 (1998); (interpreting that if a veteran has a disability rating under Diagnostic Codes 5257 for instability of the knee, and there is X-ray evidence of arthritis, a separate rating for arthritis could also be based on painful motion under 38 C.F.R. § 4.59); VAOPGCPREC 9-04 (2004) ((interpreting that separate ratings may be granted based on compensable limitation of flexion (Diagnostic Code 5260) and compensable limitation of extension (Diagnostic Code 5261) of the same knee joint)). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45. VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4. 40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). 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); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Pursuant to 38 C.F.R. §§ 4. 40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. § 4. 40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Id. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Therefore, in rating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. Finally, in recent decisions, the Court held that the final sentence of 38 C.F.R. § 4.59 required that VA examination reports include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). The Court later explained that case law and VA guidelines anticipate that examiners will offer opinions as to additional functional loss during flare-ups of musculoskeletal disabilities based on estimates derived from information procured from relevant sources, including lay statements of veterans. It was noted that an examiner must do all that reasonably should be done to become informed before concluding that a requested opinion cannot be provided without resorting to speculation. Sharp v. Shulkin, 29 Vet. App. 26 (2017). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In August 2018, the Board remanded the Veteran’s appeal of the rating assigned for her service-connected right knee disability because her previous examination reports were not adequate for rating purposes. See Sharp, Correia, supra. The Veteran was provided a new examination in August 2019. The August 2019 VA examination report complies with the holdings in Sharp and Correia and is therefore adequate for rating purposes. The findings of the August 2019 VA examiner are also more consistent with the Veteran’s lay reports regarding instability, grinding, and locking in her knee throughout the appeal period. Thus, the Board resolves reasonable doubt in the Veteran’s favor and finds the August 2019 VA examiner’s report to be the most probative evidence regarding the level of impairment of her service-connected right knee disability throughout the appeal period. The August 2019 VA examiner noted moderate lateral instability, warranting a 20 percent rating under Diagnostic Code 5257. The August 2019 VA examiner also noted a history of recurrent locking, joint pain and effusion, warranting a 20 percent rating under Diagnostic Code 5258. Previous examinations had shown symptomatic residuals of semilunar cartilage removal, warranting a 10 percent rating under Diagnostic Code 5259, but the assignment of a separate rating under this code would result in pyramiding when combined with the impairment used to establish entitlement to the 20 percent rating under Diagnostic Code 5258. Thus, it is more beneficial for the Veteran’s symptoms to be considered under Diagnostic Code 5258. The Veteran’s actual or functional limitation of flexion was 10 to 120 degrees with extension from 120 to 10 degrees. According to the August 2019 VA examination report, the Veteran’s range of motion is further limited during flare-ups. Based on the examiner’s calculation and with consideration of the Veteran’s lay statements, the examiner opined that the Veteran’s flexion was limited to 90 degrees and extension was limited to 10 degrees during flare-ups. Although a separate rating under Diagnostic Code 5260 is not warranted for flexion, a 10 percent rating is warranted under Diagnostic Code 5261 as extension is limited to 10 degrees; however, the record establishes the 10 percent rating currently assigned for the Veteran’s service-connected right knee disability is assigned under Diagnostic Code 5261. As a compensable rating is assigned for limitation of motion, 38 C.F.R. § 4.59 is not applicable and a separate rating under Diagnostic Code 5003 or Diagnostic Code 5010 is not warranted. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Further, the August 2019 VA examination report reveals there is no impairment of the tibia and fibula or genu recurvatum in the Veteran’s case; therefore, a separate rating under Diagnostic Code 5262 or Diagnostic Code 5263 is not applicable. In sum, the Board finds separate 20 percent ratings are warranted for moderate instability (Diagnostic Code 5257) and a history of recurrent locking, joint pain and effusion (Diagnostic Code 5258) from the date of the Veteran’s increased rating claim, May 21, 2012, in addition the 10 percent rating currently assigned under Diagnostic Code 5261 for limitation of extension. A rating in excess of 20 percent under Diagnostic Code 5257 is not warranted because there is no evidence indicating the Veteran has severe subluxation or instability in her right knee. The preponderance of evidence is also against a finding of compensable limitation of flexion, as this has never been shown on VA examination, to include the August 2019 examination. A separate rating cannot be assigned under Diagnostic Code 5259 because the Veteran’s symptoms of recurrent locking, joint pain and effusion have been used to support a 20 percent rating under Diagnostic Code 5258. There is no evidence the Veteran has had ankylosis, impairment of the tibia and fibula, or genu recurvatum at any point in the appeal period; therefore, ratings under other diagnostic codes applicable to the knee are not warranted. Finally, the Board finds there is no evidence that makes it factually ascertainable that the Veteran had a definitive increase in right knee disability in the one-year period prior to her May 21, 2012 increased rating claim. In fact, it appears from the record the increase in disability may have occurred after the date of her claim as recorded in examination reports later in the appeal period; however, as previously noted, the Board has resolved reasonable doubt in the Veteran’s favor in this regard, supporting a finding that the later shown impairment was present at the time of the Veteran’s increased rating claim because her initial VA examination reports were inadequate for rating purposes. Thus, the effective date for the new 20 percent ratings under Diagnostic Codes 5257 and 5258 will coincide with the Veteran’s May 21, 2012 increased rating claim, and, to that extent, her appeal of the rating assigned for her service-connected right knee disability is granted. L. S. KYLE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Khan, 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.