Citation Nr: 21061622 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 12-22 922 DATE: October 4, 2021 ORDER From February 7, 2021, a 20 percent rating for left knee instability is granted. REMANDED Entitlement to a rating greater than 10 percent for a left knee disorder, status-post repair with osteoarthritis, is remanded. Prior to February 7, 2021, entitlement to a rating greater than 10 percent for instability of the left knee is remanded. From February 7, 2021, entitlement to a rating greater than 20 percent for instability of the left knee is remanded. Entitlement to a total disability based upon individual unemployability (TDIU) prior to November 18, 2017, is remanded. FINDING OF FACT From February 7, 2021, the Veteran had a complete ligament tear that was successfully repaired via surgery and for which a medical provider prescribed a brace. CONCLUSION OF LAW From February 7, 2021, the criteria for a 20 percent rating for left knee instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1978 to August 2004. This matter comes before the Board of Veterans' appeals (Board) on appeal from a June 2017 rating decision of an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). Issue 1: From February 7, 2021, entitlement to a rating greater than 10 percent rating for left knee instability Increased Ratings Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted considering the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, where the question for consideration is the propriety of the initial disability rating assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The law allows for an effective date up to one year prior to the date of receipt of a claim, sometimes informally called "the one-year lookback period." 38 C.F.R. § 3.400(o)(2). Specifically, if an increase in disability level was "factually ascertainable" within one year prior to receipt of the increased rating claim, then the effective date will be the date on which that increase is shown to have occurred. Musculoskeletal Disabilities 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 innervations, 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 that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45, see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The factors involved in evaluating, and rating, disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement. 38 C.F.R. § 4.45. As such, the Veteran's reports of pain have been considered in conjunction with the Board's review of the limitation of motion diagnostic codes. Instability Instability, as referred to in Diagnostic Code 5257, includes patellar instability due to recurrent patellar subluxation or patellar dislocation, and/or any other instability or laxity of the knee that involves other stabilizing structure of the knee such as the collateral or cruciate ligaments. Subluxation refers to partial or incomplete dislocation of the knee joint (tibiofemoral dislocation/subluxation) or tendency for the patella to dislocate from its track (patellar dislocation/subluxation). Prior to February 7, 2021, a 10 percent disability rating under Diagnostic Code 5257 was assigned for slight recurrent subluxation or lateral instability. A 20 percent disability rating was warranted when there is moderate recurrent subluxation or lateral instability, and a 30 percent disability rating required severe recurrent subluxation or lateral instability. Effective February 7, 2021, VA revised the portion of the Schedule for Rating Disabilities that addresses the musculoskeletal system. The amendments divided Diagnostic Code 5257 into two subsections recurrent subluxation or instability and patellar instability, each with its own criteria. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257). For recurrent subluxation or instability, three ratings are available. A 10 percent rating is warranted for a sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 20 percent is warranted under one of two scenarios sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation; or unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 30 percent rating is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. For patellar instability, three ratings are available. A 10 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. A 20 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: a brace, cane, or walker. A 30 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. Two Notes accompany the revised Diagnostic Code 5257. First, Note 1 states that for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Second, Note 2 states that a surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). The Board will address the Veteran's instability rating prior to February 7, 2021 in the Remand section below. However, a March 2021 VA examination permits interim relief. Therefore, the Board will bifurcate this issue to ensure VA processes the award as soon as practicable. At the March 2021 VA examination, the examiner diagnosed the Veteran with a complete ligament tear that was successfully repaired via surgery and for which a medical provider prescribed a brace. The surgery was in 2000, and the Veteran wore the brace prior to the effective date of the regulation change, so the Board finds he met the criteria for a 20 percent rating, at a minimum, as of February 7, 2021. Nothing prevents the Veteran, on remand, from submitting additional evidence which could result in an increased rating. REASONS FOR REMAND Remand is warranted for multiple reasons. Entitlement to a rating greater than 10 percent for left knee disorder, status-post repair with osteoarthritis The Veteran claimed an increased rating for his left knee disorder in April 2017. VA examined him in May 2017 and December 2017. The Veteran reported experiencing flareups, but the examiners said they could not determine the reduction in range of motion without resorting to speculation. The Board, in April 2020, determined that these exams did not comply with Sharp v. Shulkin, 29 Vet. App. 26 (2017) or Correia v. McDonald, 28 Vet. App. 158 (2016), so it ordered a new examination. For the Veteran's understanding, in Sharp, the United States Court of Appeals for Veterans Claims held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups or repeated use before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Also, in Correia, the United States Court of Appeals for Veterans Claims held that the final sentence of 38 C.F.R. § 4.59 requires that certain range of motion testing be conducted whenever possible in cases of joint disabilities. Specifically, examinations should report all ranges of motion in terms of the Veteran's active motion, passive motion, weight-bearing motion, and non-weight-bearing motion. VA, based on the Board's April 2020 Remand, examined the Veteran in November 2020. The Board, in March 2021, found the November 2020 examination was inadequate, so it ordered a new examination. VA, in turn, examined the Veteran in in March 2021. The four examinations are inconsistent. The Veteran reported that he experienced flareups at both 2017 examinations, while he did not report flareups at either the 2020 or 2021 examinations. Of particular importance, the May 2017 examination report says his knee flared "2-3x per week" and were "moderate to severe." Because a retrospective opinion is not in the claims file, remand is warranted to determine to what extent, if any, these flareups limited the Veteran's range of motion for his knee and to ensure Sharp compliance. Prior to February 7, 2021, entitlement to a rating greater than 10 percent for instability of the left knee From February 7, 2021, entitlement to a rating greater than 20 percent for instability of the left knee As discussed above, the Board is granting the Veteran a 20 percent rating for instability from February 7, 2021. However, the Board's grant does not resolve these issues for two reasons. First, Southall-Norman v. McDonald, 28 Vet. App. 346, 354 (2016), holds that the plain language of 38 C.F.R. § 4.59 indicates that 38 C.F.R. § 4.59 applies to the evaluation of musculoskeletal disabilities involving actually painful, unstable, or malaligned joints or periarticular regions, regardless of whether the Diagnostic Code under which the disability is being evaluated is predicated on range of motion measurements. As such, additional medical inquiry is required to determine if the Veteran's flareups impact his instability. Second, as noted above, the Veteran may submit additional evidence which could result in an increased rating under either the old or new regulatory criteria. Entitlement to a total disability rating based upon individual unemployability (TDIU) prior to November 18, 2017 On July 20, 2018, the Veteran submitted a VA Form 21-8940, "Veteran's Application for Increased Compensation Based on Unemployability." He stated that the TDIU was based on the collective impact of his service-connected disabilities. The AOJ, in October 2018, denied the TDIU as moot because VA rated the Veteran, as of November 18, 2017, 100 percent disabled. However, the Veteran claims his disabilities prevented him from gainful employment as of August 15, 2017 when he was 90 percent disabled. The Veteran did not appeal the TDIU denial. However, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), this issue is on appeal. Rice holds that a claim for a TDIU is part of any open rating issue (initial or increased) when unemployability is expressly raised by a veteran or reasonably raised by the record during the rating appeal, and it attaches for the entire rating period (from the date of the Veteran's claim for an increased rating for his left knee received April 2017). Accordingly, remand is warranted for an examination to determine the collective impact of the Veteran's disabilities on his activities of daily living. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and severity of his left knee disability. To comply with Sharp v. Shulkin, 29 Vet. App. 26, (2017), the examiner is asked to describe whether pain, weakness, fatigue, or incoordination significantly limits functional ability during flares or repetitive use, and if so, the examiner must estimate range of motion during flares or repetitive use. If the examination does not take place during a flare or repetitive testing cannot be performed, the examiner should have the Veteran describe or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees. If there is no pain or no limitation of function, note these in the report. The examiner should address if there is any medical reason to accept or reject the Veteran's description of reduced range of motion during flares or repetitive use. In addition to the customary examination and Sharp instructions, the examiner must also address the following: a) For the Sharp element of the examination, the examiner must attempt to estimate the loss in range of motion for the left knee disability from April 2017 to present. The Board recognizes that this is retrospective in nature, but that is what is required to adequately rate the Veteran's disability. b) For the Sharp element of the examination, the examiner must also attempt to estimate whether the Veteran's flareups increased the degree of instability the Veteran experienced in his left knee from April 2017 to present. In this regard, please answer the following: i) From April 2017 to present, did the Veteran's flareups increase the degree of instability the Veteran experienced in his left knee? If yes, why? If no, why not? ii) If the answer is yes, to what degree did the instability increase? VA has found that the Veteran's instability, without considering flareups, is "slight." When considering flareups, would it be appropriate to consider the instability "moderate" or "severe"? Explain your answer. The Board recognizes that this is retrospective in nature, but that is what is required to adequately rate the Veteran's disability. 2. Schedule the Veteran for a VA examination to determine the collective impact of his service-connected disabilities on his activities of daily living, particularly in the context of employment. 3. Readjudicate all appellate issues. For those issues not granted in full, issue a Supplemental Statement of the Case. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Sopko, 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.