Citation Nr: 21000240 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 14-03 910 DATE: January 4, 2021 ORDER 1. Entitlement to a combined 20 percent rating prior to November 1, 2017, and to a combined 30 percent from November 1, 2017 rating for the Veteran’s service-connected right knee disability is granted; entitlement to further increases in the staged ratings is denied. 2. Entitlement to a combined 30 percent rating prior to April 25, 2011, a combined 20 percent rating from April 25, 2011 to November 1, 2017, a combined 40 percent rating from November 1, October 28, 2019, and to a combined 30 percent from October 28, 2019 for the Veteran’s service-connected left knee disability is granted; entitlement to further increases in the staged ratings is denied. FINDINGS OF FACT 1. Prior to November 1, 2017, the Veteran’s right knee disability is shown to have been manifested by subjective reports of mild instability, and symptomatic post-removal semilunar cartilage; from November 1, 2017, the right knee disability is reasonably shown to have been manifested by subjective reports of mild instability, and dislocated post-removal semilunar cartilage with frequent episodes of locking. 2. Prior to April 25, 2011, the Veteran’s left knee disability is shown to have been manifested by subjective reports of mild instability, and limitation of flexion; from April 25, 2011 to November 1, 2017, the left knee disability was manifested by subjective reported of mild instability and symptomatic post-removal semilunar cartilage; from November 1, 2017 to October 28, 2018, the left knee disability was manifested by subjective reports of mild instability, and dislocated post-removal semilunar cartilage with frequent episodes of locking, and limitation of extension; from October 28, 2019, the left knee disability has been manifested by subjective reports of mild instability, and dislocated post-removal semilunar cartilage with frequent episodes of locking. CONCLUSIONS OF LAW 1. The Veteran’s right knee disability warrants combined staged ratings of 20 percent (but no higher) prior to November 1, 2017, and 30 percent (but no higher) from November 1, 2017. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.21, 4.40, 4.59, 4.71a, Diagnostic Codes (Codes) 5003, 5256-5263. 2. The Veteran’s left knee disability warrants combined staged ratings of 30 percent (but no higher) prior to April 25, 2011; 20 percent (but no higher) from April 25, 2011 to November 1, 2017; 40 percent (but no higher) from November 1, 2017 to October 28, 2019; and 30 percent (but no higher) from October 28, 2019. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.21, 4.40, 4.59, 4.71a, Codes 5003, 5256-5263. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from June 1974 to May 1982. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a June 2011 rating decision. A June 2011 notification letter informed him that a 20 percent rating was granted for the left knee disability effective June 4, 2010, with reduction to 0 percent April 25, 2011. A November 2013 rating decision assigned a 10 percent rating for the Veteran’s right knee disability (effective June 4, 2010) and a 10 percent rating for the left knee disability, effective April 25, 2011. In December 2016, a videoconference hearing was held before a Veterans Law Judge (VLJ) who is no longer with the Board; a transcript is in the record. [In June 2018, the Veteran was notified that the VLJ who conducted that hearing is no longer with the Board, and was offered opportunity for another hearing (but did not accept).] The matters were remanded in October 2017 for additional development. A November 2017 rating decision granted 20 percent for post arthroscopic meniscal repair for each knee effective November 1, 2017. In August 2018, the matters were again remanded for additional development. Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule). The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Under 38 C.F.R. § 4.40, consideration must be given to functional loss due to pain and weakness causing additional disability beyond that reflected by range of motion measurements. Under 38 C.F.R. § 4.45, consideration must be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are related considerations. Painful, unstable, or misaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. 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). Osteoarthritis established by X-ray findings is rated based on limitation of motion under the appropriate diagnosis codes for the specific joint involved. When, the limitation of motion of a specific joint with arthritis is noncompensable under the appropriate diagnostic code(s), a maximum rating of 10 percent is may be assigned for painful motion. Full range of knee motion is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71a, Code 5003 and Plate II. Ankylosis of a knee is rated under Code 5256. Recurrent subluxation or lateral instability of a knee is rated 10, 20 or 30 percent based on whether such impairment is slight, moderate, or severe, respectively. Code 5257. Knee disability may also be rated under Code 5258 (20 percent for dislocated semilunar cartilage), or Code 5259 (10 percent for symptomatic removal of semilunar cartilage). 38 C.F.R. § 4.71a. Under Code 5260, limitation of knee flexion is rated 0 percent when to 60 degrees; 10 percent when to 45 degrees; 20 percent when to 30 degrees; and 30 percent when to 15 degrees. Under Code 5261, knee extension limitation at 5 degrees is rated 0 percent; 10 degrees 10 percent; 15 degrees 20 percent; 20 degrees 30 percent; 30 degrees 40 percent; and 45 degrees 50 percent. 38 C.F.R. § 4.71a. Separate ratings may be assigned for arthritis of a knee with compensable limitations of flexion and extension (or with painful, but less than compensably limited motion, recurrent subluxation or lateral instability, and dislocated or postoperative symptomatic semilunar cartilage. See VAOPGCPREC 23-97 and VAOPGCREC 9-98. When the appeal is from the initial rating assigned with an award of service connection, the entire period from the initial assignment of the disability rating to the present is to be considered, and “staged” ratings may be assigned based on facts found. See Fenderson v. West, 12 Vet. App. at 125-26 (1999). Reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. 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). On August 2010 examination, the Veteran reported giving way, instability, stiffness, and weakness in both knees. Range of motion of the right knee was abnormal with flexion to 75 degrees and extension to 0 degrees. Range of motion of the left knee was abnormal with flexion to 35 degrees and extension to 0 degrees. Ankylosis was not shown. An August 2010 bilateral knee X-Ray showed symmetric knees without evidence of arthritis or bone injuries. On April 25, 2011 examination, the Veteran had a self-designed stick which he used as a cane. Range of motion of the right knee was abnormal with flexion to 130 degrees, and extension to 0 degrees. No increased loss of function with repetitive use was shown. No anterior, posterior, or mediolateral instability was shown. Range of motion of the left knee was normal with flexion to 140 degrees, and extension to 0. No increased loss of function with repetitive use was shown. No anterior, posterior, or mediolateral instability was shown. X-Rays of both knees showed normal joint spaces and contour. The examiner opined that the Veteran was experiencing a mild to moderate disability in each knee. A May 2016 bilateral knee X-Ray showed mild bilateral medial compartment osteoarthritis and left popliteal atherosclerosis. At the December 2016 videoconference hearing, the Veteran testified that he had constant pain in his knees, and was unable to walk more than 50 feet; he stated his knees felt like they would give way and buckle. He testified that he used knee braces for both knees. On November 1, 2017 knee conditions examination, the diagnosis was bilateral arthroscopic knee surgeries with residual pain and loss of motion (right knee 2000, left knee 1989). Range of motion of the right knee was abnormal with flexion to 95 degrees and extension to 5 degrees. Range of motion was not found to contribute to [added] functional loss. There was pain on flexion, and pain with weight- bearing and crepitus. Range of motion of the left knee was abnormal with flexion to 70 degrees and extension to 10 degrees. Range of motion did not contribute to functional loss. There was pain on flexion, and pain with weight bearing and crepitus. There was no ankylosis or atrophy. Joint stability tests were normal. Recurrent patellar dislocation and shin splints were not noted. Meniscal conditions of each knee were noted as “frequent episodes of joint locking.” On October 28, 2019 knee conditions examination, the diagnosis was bilateral arthroscopic meniscus repair. Range of motion of the right knee was abnormal with flexion to 105 degrees and extension to 0 degrees. There was pain on flexion and extension. Range of motion during a flare-up was estimated to be flexion to 70 degrees, and extension to 0 degrees. Range of motion of the left knee was abnormal with flexion to 100 degrees and extension to 0 degrees. There was pain on flexion and extension. Range of motion during a flare-up was estimated to be flexion to 70 degrees, and extension to 0 degrees. Muscle atrophy and ankylosis were not noted. Joint stability tests were normal. The Veteran reported constant use of bilateral knee braces. 1. Entitlement to a combined 20 percent rating prior to November 1, 2017, and a combined 30 percent rating from November 1, 2017 rating is granted for the Veteran's right knee disability; entitlement to further increases in the staged ratings is denied. The Veteran’s right knee disability has been assigned separate ratings of 10 percent for symptomatic semilunar cartilage removal prior to November 1, 2017, and 20 percent for semilunar dislocated cartilage with frequent episodes of locking, pain, and effusion in the joint from November 1, 2017. Consequently, the questions before the Board are whether the right knee warrants a rating higher than 10 percent prior to November 1, 2017 and whether it warrants a rating higher than 20 percent from that date. At the outset, it is noted that a right knee scar has not been found to be painful or unstable at any time during the evaluation period (and that the Veteran has not expressed disagreement with the separate 0 percent rating assigned for the scar). Therefore, further discussion of the rating for the scar is not necessary. Prior to November 1, 2017 Prior to November 1, 2017, the Veteran’s right knee was not ankylosed, and was not manifested by impairment of tibia and/or fibular, or genu recurvatum. Accordingly, Codes 5256, 5262, and 5263 do not apply. A 10 percent rating has been assigned for symptomatic post-removal semilunar cartilage. Examinations did not find dislocated semilunar cartilage with frequent episodes of locking. Therefore, a higher (20 percent) rating under Code 5258 is not warranted. Compensable limitations of flexion and/or extension was not noted. Therefore, separate ratings under Code 5260 and/or Code 5261 were not warranted. However, the Veteran was consistent in his subjective reports of instability (and notably has consistently worn bilateral knee braces). Considering the reasoning by the U.S. Court of Appeals for Veterans Claims (CAVC) in English v. Wilkie, 30 Vet. App. 347, 353 (2018), the Board finds that mild instability is reasonably show, and that a separate 10-percent rating under Code 5257 is warranted. Accordingly, a 20 percent combined (10 percent under Code 5257, and 10 percent under Code 5259) rating is warranted for the right knee disability prior to November 1, 2017. From November 1, 2017 From November 1, 2017, the Veteran’s right knee has not been ankylosed, and is not manifested by impairment of tibia and/or fibular, or genu recurvatum. Accordingly, Codes 5256, 5262, and 5263 do not apply. Compensable limitations of flexion and/or extension have not been shown. Accordingly, separate ratings under Code 5260 and/or Code 5261 are not warranted. However, the Veteran has been consistent in his subjective reports of instability (and notably has consistently worn bilateral knee braces). Considering the reasoning in English v. Wilkie, 30 Vet. App. 347, 353 (2018), the Board finds that mild instability is reasonably show, and that a separate 10-percent rating under Code 5257 is warranted. Accordingly, a 30 percent combined (10 percent under Code 5257, and 20 percent (previously assigned and noted above) under Code 5258) rating for the right knee disability is warranted from November 1, 2017. 2. Entitlement to a combined 30 percent rating prior to April 25, 2011, a combined 20 percent rating from April 25, 2011 to November 1, 2017, a combined 40 percent rating from November 1, October 28, 2019, and a combined 30 percent rating from October 28, 2019 is granted for the Veteran’s left knee disability; entitlement to further increases in the staged ratings is denied. The Veteran’s left knee disability has been assigned staged ratings of 20 percent (for limitation of flexion) prior to April 25, 2011; 10 percent for symptomatic post-removal semilunar cartilage from April 25, 2011 to November 1, 2017; and 20 percent for semilunar dislocated cartilage with frequent episodes of locking, pain, and effusion in the joint from that date. Consequently, the questions before the Board are whether the left knee warrants ratings higher than 20 percent prior to April 25, 2011, 10 percent from April 25, 2011 to November 1, 2017 and higher than 20 percent from that date. The Veteran’s left knee scar has not been found to be painful or unstable at any time during the evaluation period (and he has not expressed disagreement with the separate 0 percent rating assigned for the scar). Therefore, further discussion of the rating for the scar is not necessary. Prior to April 25, 2011 Prior to April 25, 2011, the Veteran’s left knee was not ankylosed, and was not manifested by impairment of tibia and/or fibular, or genu recurvatum. Therefore, Codes 5256, 5262, and 5263 do not apply. A 20 percent rating for limitation of flexion was assigned from an August 2010 examination date. That examination did not find symptomatic post-removal semilunar cartilage or a dislocated semilunar cartilage with frequent episodes of locking. Therefore, a 10 percent rating under Code 5259 or a 20 percent rating under Code 5258 was not warranted. As compensable limitation of extension , a separate rating under Code 5261 was not warranted. However, the Veteran was consistent in his subjective reports of instability (and notably has consistently worn bilateral knee braces). Considering the reasoning in English v. Wilkie, 30 Vet. App. 347, 353 (2018), the Board finds that mild instability is reasonably show, and that a separate 10-percent rating under Code 5257 is warranted. Accordingly, a 30 percent combined (10 percent under Code 5257, and 20 percent under Code 5260) rating is warranted for the left knee disability prior to April 25, 2011. From April 25, 2011 to November 1, 2017 From April 25, 2011 to November 1, ,2017, the Veteran’s left knee was not ankylosed and was not manifested by impairment of tibia and/or fibular, or genu recurvatum. Accordingly, Codes 5256, 5262, and 5263 do not apply. A 10 percent rating was assigned for symptomatic post-removal semilunar cartilage. Examinations did not find a dislocated semilunar cartilage with frequent episodes of locking. Therefore, a 20 percent rating under Code 5258 was not warranted. Furthermore, compensable limitations of flexion and/or extension were not shown, and separate ratings under Code 5260 and/or Code 5261 were not warranted. The Veteran has been consistent with his subjective reports of instability (and notably has consistently worn bilateral knee braces). Considering the reasoning in English v. Wilkie, 30 Vet. App. 347, 353 (2018), the Board finds that mild instability is reasonably shown, and that a separate 10-percent rating under Code 5257 is warranted. Accordingly, a 20 percent combined (10 percent under Code 5257, and 10 percent under Code 5259) rating is warranted for the left knee from April 25, 2011 to November 1, 2017. From November 1, 2017 to October 28, 2019 From November 1, 2017 to October 28, 2019, the Veteran’s left knee is not shown to have been ankylosed, and was not manifested by impairment of tibia and/or fibula, or genu recurvatum. Accordingly, Codes 5256, 5262, and 5263 do not apply. Compensable limitation of flexion was not shown; therefore, a separate rating under Code 5260 was not warranted. However, on November 1, 2017 examination the left knee extension was limited to 10 degrees. Accordingly, a 10 percent rating under Code 5261 is warranted from the examination date. Again, the Veteran has been consistent in his subjective reports of instability (and notably has consistently worn bilateral knee braces). Considering the reasoning in English v. Wilkie, 30 Vet. App. 347, 353 (2018), the Board finds that mild instability is reasonably shown, and that a separate 10-percent rating under Code 5257 is warranted. Accordingly, a 40 percent combined (10 percent under Code 5257, 20 percent (previously assigned and noted above) under Code 5258, and 10 percent under Code 5261) rating is warranted for the left knee disability from November 1, 2017 to October 28, 2019. From October 28, 2019 From October 28, 2019, the Veteran’s left knee is not shown to have been ankylosed, and has not been manifested by impairment of tibia and/or fibular, or genu recurvatum. Accordingly, Codes 5256, 5262, do not apply. On October 28, 2019 examination, compensable limitations of flexion and/or extension were not found. Accordingly, separate ratings under Code 5260 and/or Code 5261 are not warranted. However, the Veteran has been consistent with his subjective reports of instability (and notably has consistently worn bilateral knee braces). Considering the reasoning in English v. Wilkie, 30 Vet. App. 347, 353 (2018), the Board finds that mild instability is reasonably show, and that a separate 10-percent rating under Code 5257 is warranted. Accordingly, a 30 percent combined (10 percent under Code 5257, and 20 percent (previously assigned and noted above) under Code 5258) rating is warranted for the left knee disability from October 28, 2019. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Staskowski, 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.