Citation Nr: 20045080 Decision Date: 07/07/20 Archive Date: 07/07/20 DOCKET NO. 18-17 248 DATE: July 7, 2020 ORDER Entitlement to a separate disability rating under 38 C.F.R. § 4.71a, Diagnostic Code 5261 for left knee collateral ligament strain, with limitation in extension, with a disability rating of 10 percent, is granted. Entitlement to a separate disability rating under 38 C.F.R. § 4.71a, Diagnostic Code 5257 for left knee collateral ligament strain, instability, with a disability rating of 10 percent, is granted. REMANDED Entitlement to a disability rating in excess of 10 percent for a left knee collateral ligament strain, limited in flexion, is remanded. Entitlement to a disability rating in excess of 10 percent for a left knee collateral ligament strain, limited in extension, is remanded. Entitlement to a disability rating in excess of 10 percent for a left knee instability due to a collateral ligament strain is remanded. Entitlement to a total disability rating based on individual unemployment (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. The Veteran’s left knee presents with limitation of motion in extension to at least 10 degrees. 2. The Veteran’s left knee presents with at least slight instability. CONCLUSIONS OF LAW 1. The criteria for a separate compensable rating of 10 percent for left knee collateral ligament strain, with limitation of extension have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, DC 5261 (2019). 2. The criteria for a separate compensable rating of 10 percent for left knee collateral ligament strain, with slight instability, have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, DC 5257 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service with the United States Army from April 1990 to November 1992; the Veteran was discharged under honorable conditions. The Veteran is a Gulf War Era Veteran. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a February 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in December 2019. A transcript of the hearing is associated with the claims file. Increased Rating 1. Entitlement to a separate disability rating under 38 C.F.R. § 4.71a, Diagnostic Code 5261 for left knee collateral ligament strain, with limitation in extension 2. Entitlement to a separate disability rating under 38 C.F.R. § 4.71a, Diagnostic Code 5257 for left knee collateral ligament strain, with instability The Veteran is seeking entitlement to an increased disability rating for his left knee collateral ligament strain, currently evaluated as 10 percent disabling. The Veteran’s left knee is currently rated under Diagnostic Code 5260, which governs limitation in knee flexion. 38 C.F.R. § 4.71a, Diagnostic Code 5260. The Veteran’s left knee limitation in flexion is the subject of the remand, below, however, and will not be further addressed in this decision. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 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. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran. 38 C.F.R. § 4.3. While a veteran’s entire history is reviewed when assigning a rating, where service connection has already been established and an increase in the rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the standard working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With particular respect to the joints, the disability factors reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45 shall be considered in determining the degree of limitation of motion. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The intent of the schedule is to recognize painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. When the evaluation of a disability is based on limitation of motion, the Board must also consider, in conjunction with the otherwise applicable diagnostic code, any additional functional loss the veteran may have by virtue of other factors as described in 38 C.F.R. §§ 4.40, 4.45. DeLuca, 8 Vet. App. at 206. The Board finds that separately compensable ratings for left knee instability and limitations in extension are warranted in this case. See Mittleider v. West, 11 Vet. App. 181, 182 (1998); Estaban v. Brown, 6 Vet. App. 259 (1994) (in cases where separate and distinct manifestations have arisen from the same injury, separate ratings may be assigned where none of the symptomatology of the conditions overlaps). During this rating period, the Veteran’s disability manifested by chronic left knee pain as accompanied by instability, fall risk, and limitations in extension. Thus, per the provisions of Diagnostic Codes 5257 and 5261, separate 10 percent ratings are warranted for instability of the knee and lack of knee extension, and the appeals are granted to this extent. Based upon the evidence of record, however, the Veteran may be awarded a rating in excess of 10 percent upon evidence of the following: • Slight recurrent subluxation or lateral instability (10 percent under DC 5257); • Knee extension limited to 10 degrees (10 percent under DC 5261). During the August 2013 VA examination, the Veteran described instability insomuch as he reported that his knee “goes out.” This is consistent with the Veteran’s need for a left knee brace and a cane, due to increased risk of falls, which he continued to use at the time of his April 2018 VA examination. See VA Treatment Records, dated September 2017. The Veteran testified in his hearing before the undersigned that his left knee had caused him to fall; his credible testimony is evidence in support of his claim. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-1377 (Fed. Cir. 2007); see also Hearing Transcript, dated December 2019. As such, the Board finds that the Veteran demonstrates at least slight instability of the left knee. 38 C.F.R. § 4.71a, Diagnostic Code 5257. With regard to limitation of extension, the April 2018 VA examiner measured the end range of left knee extension to be 10 degrees. As such, the Board finds that the Veteran demonstrates left knee extension limitations sufficient to be awarded a separate 10 percent disability rating for limitation of knee extension. 38 C.F.R. § 4.71a, Diagnostic Code 5261. The Board notes that the awards of separately compensable 10 percent disability ratings for knee instability and knee extension do not preclude the awarding of a higher rating, should the Agency of Original Jurisdiction (AOJ) find that later received evidence in conjunction with the Veteran’s claim for an increased disability rating for his left knee deem it appropriate. As such, the Board finds it appropriate to remand, as below, for ratings for knee instability and knee extension, in excess of the 10 percent awarded in this decision. REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 10 percent for a left knee collateral ligament strain, limited in flexion, is remanded. 2. Entitlement to a disability rating in excess of 10 percent for a left knee collateral ligament strain, limited in extension, is remanded. 3. Entitlement to a disability rating in excess of 10 percent for a left knee collateral ligament strain, instability, is remanded. The Veteran underwent VA examinations to determine the nature and severity of his left knee disability in August 2013 and April 2018. In both examinations, the Veteran endorsed flare-ups of the left knee that limited his function. The August 2013 examiner did not opine as to specific range of motion changes associated with either flare-ups or repetitive use. The April 2018 examiner stated that such an opinion would be merely speculative as “there is no conceptual or empirical basis for making such a determination without directly observing function” under such a condition. Pursuant to 38 C.F.R. § 4.40, functional loss must be considered in the rating of an orthopedic disability, and the Board may not substitute their judgment on a limitation for that of a medical professional. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Moreover, while neither VA examiner found objective instability findings, the Veteran has consistently reported instability of the left knee, to include being sufficient to cause a fall. See Hearing Transcript, dated December 2019; VA Treatment Records, dated September 2017. The examiner, however, did not consider and address the Veteran’s statements in determining the presence or severity of the instability of the left knee. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In light of the above, the Veteran should receive a new VA examination upon remand to determine the nature and severity of his left knee disability, to include specific opinions as to limitations of range of motion during flare-ups and with repetitive motion and consideration of function and stability considering all of the evidence of record. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017); Nieves-Rodriguez, 22 Vet. App. at 295. 4. Entitlement to a TDIU due to service-connected disabilities is remanded. The issue of the Veteran’s entitlement to a TDIU is inextricably intertwined with the issue of entitlement to an increased disability rating for his left knee, which is being remanded for further adjudication. Therefore, a final decision on the issue of entitlement to issue cannot be rendered at this time. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that the final decision on one issue cannot be rendered until a decision on the other issues has been rendered). The matters are REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for the disabilities on appeal. After acquiring this information and obtaining any necessary authorizations, the AOJ should obtain and associate these records with the claims file. The AOJ should also obtain any outstanding VA treatment records. 2. The Veteran should be scheduled for a VA examination before an appropriate examiner to determine the current severity of his service-connected left knee disabilities. The Veteran’s claims file and a copy of this remand should be provided to the examiner and the examination report should reflect that these items were reviewed. The examiner is asked to perform all indicated tests and studies and to provide an opinion as to the following: The examiner should make specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, or incoordination associated with the use of the right and left knee. If pain on motion is observed, the examiner should indicate the point at which pain begins. In addition, the examiner should indicate whether, and to what extent, the Veteran experiences functional loss of the right and left knee due to pain or any of the other symptoms listed above during flare-ups or with repeated use. To the extent possible, the examiner should express any additional functional loss in terms of additional degrees of limited motion. Additionally, the examiner must test the range of motion in active motion, passive motion, and in weight-bearing and nonweight-bearing settings for both knees. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she must clearly explain why that is so. Stability of the left knee, to include assessments in both weight bearing and non-weightbearing, should be addressed in the evaluation. All evidence of record, to include subjective statements and external treatises referenced by the Veteran or his representative should be addressed in this assessment. If the Veteran’s left knee function demonstrated significant periods of improvement or regression, these dates should be clearly addressed and supported by the evidence of record. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). A full rationale must be provided for any opinion offered and a thorough explanation would be helpful to the Board. 3. After the aforementioned development, readjudicate the issue of a TDIU. ANTHONY C. SCIRÉ, JR. Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. E. Trotter, 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.