Citation Nr: 21003350 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 12-12 293 DATE: January 21, 2021 ORDER Entitlement to a rating higher than 20 percent for post-operative residuals of a right knee disability, status-post arthroscopic surgery, is denied. However, a separate 20 percent rating is granted for right knee locking and effusion suggestive of cartilage dislocation. FINDINGS OF FACT 1. For the entire period of this appeal, the Veteran’s right knee disability has been manifested by moderate instability. 2. But also, for the entire appeal period, he has had frequent episodes of pain, swelling, locking, and popping of his right knee.   CONCLUSIONS OF LAW 1. The criteria are not met for a rating higher than 20 percent for the post-operative residuals of the right knee disability, status-post arthroscopic surgery, to the extent this disability is rated based on recurrent subluxation or lateral instability. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. 2. However, the criteria are met for a separate 20 percent rating for right knee locking and effusion suggestive of cartilage dislocation for the entire appeal period. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5258. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1998 to October 2008. By way of relevant procedural history, an April 2009 rating decision granted service connection for residuals, status-post arthroscopic surgery, of a right knee disability and assigned a 10 percent rating pursuant to Diagnostic Code 5299-5024, effective February 1, 2009. But following a May 2009 VA examination, the local regional office (RO) increased the rating for the Veteran’s right knee disability to 20 percent as of the same retroactive effective date (i.e., from February 1, 2009). In August 2009, in response, he filed a Notice of Disagreement (NOD) requesting an even higher rating. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (it is presumed a Veteran is requesting the highest possible rating, so receipt of a higher rating, but less than maximum possible rating, does not abrogate a pending appeal unless the Veteran expressly indicates he is content with the new rating and for the entire review period at issue). After a May 2010 VA examination, the RO proposed to reduce the Veteran’s disability rating to 10 percent and eventually implemented that rating reduction in a September 2010 rating decision, prospectively effective December 1, 2010.   In response, the Veteran filed a NOD with the reduction in October 2010 and perfected an appeal to the Board in April 2012 by also filing a timely VA Form 9, Substantive Appeal to the Board. In July 2017, the Board remanded the claim to have the Veteran reexamined to reassess the severity of his right knee disability. After receiving the claim back from remand, a July 2018 Board decision reinstated (“restored”) the 20 percent rating for the right knee disability as of December 1, 2010, so as of the date it was reduced. The Board also remanded the issue of entitlement to a rating even higher than 20 percent for this right knee disability to obtain physical therapy records and to again have the Veteran undergo another VA examination reassessing the severity of this service-connected disability. Following a November 2019 VA examination, the Board again remanded the claim for an even higher rating for this right knee disability in July 2020, finding that the most recent November 2019 VA examination had failed to provide the exact point of pain during the range-of-motion testing of the Veteran’s right knee. He therefore was provided a still additional VA examination in September 2020 to better address the effect of his pain on his right knee range of motion since functional loss due to pain is rated at the same level as functional loss where motion is impeded. See Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). According to 38 C.F.R. § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in. See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995). That requested remand development since has been accomplished. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. All reasonable doubt material to the determination is resolved in the Veteran’s favor. 38 C.F.R. § 4.3. The Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Board will consider entitlement to “staged” ratings to compensate for times when the disability may have been more severe than at others. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 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.”). According to 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011).   Aside from scars from his arthroscopic surgery that are rated separately under Diagnostic Code 7805, the Veteran’s right knee disability is currently rated exclusively under 38 C.F.R. § 4.71a, Diagnostic Code 5257, which concerns “other” impairment of the knee, including owing to recurrent subluxation or lateral instability. If the consequent impairment is “slight”, then a 10 percent rating is assigned, whereas a 20 percent rating is assigned if it is “moderate” and a 30 percent rating (the maximum permissible under this code) when it is “severe”. 38 C.F.R. § 4.71a, Diagnostic Code 5257. These descriptive terms “slight”, “moderate”, and “severe” are not defined in the Rating Schedule; rather than applying a mechanical formula, the Board must evaluate all the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. §§ 4.2, 4.6. However, 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. The Veteran has undergone a total of four surgeries on his right knee, including most recently patellofemoral reconstruction in 2015, to try and alleviate his symptoms. But, also notably, each time he received a temporary 100 percent rating for his convalescence. See 38 C.F.R. § 4.30. So, he already has been compensated for that, and the Board finds that the preponderance of the evidence is against a rating higher than 20 percent for his right knee disability – at least to the extent his rating is predicated on instability under Diagnostic Code 5257. But the Board does find that a separate 20 percent rating also is warranted because he additionally has locking and effusion of this knee suggestive of cartilage dislocation. And this additional rating is warranted for the entire period of this appeal. Notably, all the VA examination reports show tests results within normal limits for anterior, posterior, medial and lateral stability. There have been no signs of recurrent subluxation throughout the period on appeal. However, 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). As such, the Board has carefully considered the Veteran’s reports about instability, but finds that, overall, even the lay evidence of record does not suggest the presence of symptoms more nearly approximating “severe” knee impairment to, in turn, warrant a higher 30 percent disability rating under Diagnostic Code 5257. The Veteran reported that there are times when he feels his knee buckles, and he experiences weakness after walking, exercising, or sitting for extended periods of time. See July 2018 Veteran Statement; September 2019 Veteran Statement. His kneecap instability causes a “bone-on-bone” painful sensation. Id. Even so, the Board finds that the existing 20 percent disability rating accounts for the extent of his symptomatology and consequent “moderate” functional impairment. A higher 30 percent rating for “severe” instability is not appropriate as his reports of his knee giving out are intermittent. It also is significant, even accepting that it is not entirely determinative, that his condition has not been severe enough to be observed on objective joint stability testing. Thus, a higher 30 percent disability rating is not warranted because the extent of his impairment is more akin to “moderate” than “severe” according to Diagnostic Code 5257. In making this determination, however, the Board also has considered the potential application of other Diagnostic Codes pertaining to the knee and leg. Other disability ratings may be assigned under another Diagnostic Codes only if the symptomatology for the disability is not duplicative or overlapping with the symptomatology used to rate the disability under the existing Diagnostic Code since this would contravene VA’s anti-pyramiding regulation – 38 C.F.R. § 4.14. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Under 38 C.F.R. § 4.71a, additional rating criteria are found in Diagnostic Codes 5256 (ankylosis of the knee), 5259 (removal of symptomatic semilunar cartilage), 5262 (impairment of the tibia and fibula), and 5263 (genu recurvatum acquired, traumatic, with weakness and insecurity in weight-bearing objectively). However, for the entire period on appeal, there have been no clinical findings during the several VA examinations suggesting the Veteran has ankylosis of this knee, or impairment of the tibia or fibula resulting in knee disability due to malunion or nonunion, and/or genu recurvatum. Consequently, Diagnostic Codes 5256, 5262 and 5263 are not applicable. Furthermore, arthritis of the right knee is not shown; therefore, a rating under Diagnostic Code 5003 is not warranted. Moreover, so in any event, range-of-motion testing has not shown compensable limitations of flexion and/or extension, so separate ratings under Diagnostic Codes 5260 and/or 5261 also are not warranted. See VAOPGCPREC 23-97 (July 1, 1997; revised July 24, 1997); VAOPGCPREC 9-98 (August 14, 1998); VAOPGCPREC 9-2004 (September 17, 2004). That notwithstanding, the Veterans Court (CAVC) also has clarified that ratings under Codes 5257 and 5260 and 5261 (the latter two on referral from Code 5003) do not necessarily preclude ratings under Codes 5258 and 5259, i.e., the meniscal codes – meaning it does not constitute impermissible pyramiding. See Lyles v. Shulkin, 29 Vet. App. 107 (2017). And, here, the evidence supports assigning a separate 20 percent rating under Diagnostic Code 5258 (the only available rating under this diagnostic code) for symptoms of locking, pain, and effusion suggestive of cartilage damage. The evidence of record shows the Veteran has been diagnosed with a meniscal condition, and he has consistently reported a history of his knee popping, swelling, and locking. See, e.g., May 2020 CAPRI Problem List (tear of medial cartilage or meniscus of knee, current); May 2010 VA Examination; July 2018 Veteran Statement; September 2019 Veteran Statement; November 2019 VA Examination. He is competent to report these symptoms since they are readily observable. Further, there is no evidence indicating his statements concerning this are not credible. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, a separate 20 percent rating is warranted under Diagnostic Code 5258, which contemplates dislocation of the semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. Lastly, as already alluded to, the Veteran also has three scars from the surgeries on his right knee. The rating criteria for skin disorders, so including scars, were amended effective August 13, 2018, therefore during the pendency of this appeal. The amendment permits claims filed prior to the effective date to be considered under either the old or new rating criteria. However, if the August 2018 amendments are applied, the award effective date cannot be prior to August 13, 2018. The amendments introduce a General Rating Formula for skin conditions, adds paragraph (a) and (b), and redefines the language for scars pursuant to Diagnostic Code 7801 and 7802. Prior to August 13, 2018, Diagnostic Code 7802 applies to burn scar(s) or scar(s) not of the head, face, or neck that are superficial and nonlinear. As of the August 13, 2018 amendment, Diagnostic Code 7802 applies to burn scar(s) or scar(s) not of the head, face, or neck that are not associated with underlying soft tissue damage. Both provisions require the area measure 144 square inches (929 sq. cm.) or greater for the maximum of 10 percent. 38 C.F.R. § 4.118. As the Veteran’s scars are not painful and/or unstable and the total area of them is not greater than 39 square cm. (6 square inches), a compensable rating for these scars is not warranted. See, e.g., September 2017 VA Examination; September 2020 VA Examination; 38 C.F.R. § 4.118, Diagnostic Code 7802. See also Diagnostic Code 7805 For these reasons and bases, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a rating higher than 20 percent for his right knee instability and for a compensable rating for his post-operative scars. But, giving him the benefit of the doubt, a separate 20 percent rating is warranted for his right knee disability under Diagnostic Code 5258. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Mukherjee 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.