Citation Nr: 21061857 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 17-26 672 DATE: October 5, 2021 ORDER Entitlement to a rating higher than 10 percent for right knee degenerative joint disease (DJD) with painful motion (right knee disability) is denied. Entitlement to a separate evaluation for right knee symptomatic residuals of semilunar cartilage removal is granted. Entitlement to a separate evaluation for right knee instability is granted. FINDINGS OF FACT 1. The Veteran's right knee disability is manifested by painful limited extension but is not limited to 15 degrees even considering additional functional loss. 2. The Veteran's right knee disability is manifested by swelling and effusion due to semilunar cartilage removal. 3. The Veteran's right knee disability is manifested by lay evidence of instability with the use of a VA-issued brace. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for service-connected right knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5003-5261. 2. The criteria for a separate rating for service-connected right knee disability manifested by symptomatic residuals of semilunar cartilage removal have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5259. 3. The criteria for a separate rating for service-connected right knee disability manifested by instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257; Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1960 to July 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. This appeal was remanded by the Board in May 2019, August 2020, and June 2021. The Board is obligated by law to ensure that the RO complies with its directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). RO compliance with remand directives is not optional or discretionary and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall, 11 Vet. App. at 271. In May 2019, the Board remanded for a current right knee evaluation that addressed flare-ups. See BVA Decision (May 2019). In August 2020, the Board remanded for opinions that addressed current and prior flare-ups. See BVA Decision (August 2020). In June 2021, the Board again requested addendum opinions for each of the prior examinations, as had been previously requested. See BVA Decision (June 2021). In July 2021, addendum opinions were obtained that addressed flare-ups at each of the relevant VA examinations. See C&P Exam (July 2021). Accordingly, the Board finds that there has been substantial compliance with remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998); Dyment v. West, 13 Vet. App. 141 (1999). 1. Entitlement to a rating higher than 10 percent for right knee disability is denied. The Veteran contends that he is entitled to a higher rating because his pain is at an 8/10 most days. See Hearing Transcript (November 2018). He also reported that steps were challenging, walking was slow and painful, and that he used a brace and a cane daily. See Hearing Transcript (November 2018). The Veteran also asserted that he has instability of the knee. See NOD (July 2015). He stated that he uses braces and canes to avoid canes. See Form 9 (May 2017). The Veteran has refused a total knee replacement. See CAPRI (May 2019). The Board finds that the preponderance of the evidence does not demonstrate extension limited to 15 degrees or flexion limited to 30 degrees even considering functional loss, and thus an increased evaluation is not warranted. See 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5260, 5261. Additionally, however, the Board finds that the right knee disability manifested in knee instability and a meniscectomy with symptomatic residuals; accordingly, two separate evaluations are for assignment. See 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5257, 5258. In February 2014, the RO granted service connection for right knee degenerative joint disease, and assigned a 10 percent evaluation under DC 5003-5260, effective February 18, 2010. See Rating Decision (February 2014). The RO evaluated the disability under limitation of flexion. The Veteran filed a claim for increase in December 2014. See Correspondence (December 2014). Thereafter, the RO continued the 10 percent evaluation. See Rating Decision (April 2015). The Veteran appealed and the issue was remanded by the Board in May 2019, August 2020, and June 2021. See BVA Decision (May 2019); BVA Decision (August 2020); BVA Decision (June 2021). In April 2021, the RO assessed the disability under limitation of extension and changed the assigned Diagnostic Code to 5261. See Rating Decision (April 2021). The Board has considered increased and separate evaluations under both Diagnostic Codes. Preliminarily, the Board notes that the Veteran is separately service-connected for right knee scar status-post surgical repair, effective in 2010. See Rating Decision (April 2021). The issue of whether a separate evaluation for a right knee scar is thus not for consideration herein. The Veteran is also service-connected for right knee degenerative joint disease manifested by semilunar cartilage removal, evaluated as 10 percent disabling, effective April 20, 2021. See Rating Decision (April 2021). The possibility of a separate evaluation for that manifestation will be assessed prior to that date. The Veteran's right knee disability is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5003-5261. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. The additional code is shown after the hyphen. 38 C.F.R. § 4.27. Here, arthritis of the knee (DC 5003) is rated as limitation of extension (DC 5261). Under Diagnostic Code 5261, a 10 percent rating is warranted for extension limited to 10 degrees. A 20 percent rating is warranted for extension limited to 15 degrees. A 30 percent rating is warranted for extension limited to 20 degrees. A 40 percent rating is warranted for extension limited to 30 degrees. A 50 percent rating is warranted for extension limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Effective February 7, 2021, VA amended the rating criteria for disabilities of the knee and leg; however, DC 5261 was unchanged. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453 (Nov. 30, 2020). 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."). Under 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). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." Here, the left knee is not undamaged, as the Veteran is service-connected for left knee degenerative joint disease and meniscal tear. See Rating Decision (April 2021). In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent. The 10 percent evaluation is based on painful extension, as the limitation of extension demonstrated by the right knee does not support a compensable evaluation on its own. Even considering the Veteran's lay reports of symptoms and functional loss, the degree of additional limitation would not result in limitation of motion more nearly approximating extension limited to 15 degrees. Here, relevant VA examinations were conducted in February 2015, August 2016, November 2019, and April 2021. In addition, addendum retrospective opinions were obtained in July 2021 that addressed the impact of flareups, in particular, upon functional loss and range of motion at each of the prior examinations. See C&P Exam (July 2021). In the 2015 examination report, extension was to zero degrees. Repetitive use testing could not be performed due to guarding due to pain. See C&P Exam (February 2015). Flareups did not affect extension. See C&P Exam (July 2021). In the August 2016 VA examination report, there was extension to zero degrees, and repetitive use testing did not produce additional functional loss or range of motion. See C&P Exam (August 2016). Flareups did not affect extension. See C&P Exam (July 2021). In the November 2019 VA examination, extension was to zero degrees, and repetitive use testing did not produce additional functional loss or range of motion. See C&P Exam (December 2019). With repeated use over time, pain, weakness, fatigability or incoordination did not significantly limit functional ability. See C&P Exam (December 2019). Flareups did not affect extension. See C&P Exam (July 2021). The April 2021 VA examiner determined extension was to five degrees, or 10 degrees with repetitive use or flare-ups that caused pain, fatigability, weakness, and lack of endurance. See C&P Exam (April 2021). The Board acknowledges the Veteran's lay reports of symptoms and functional loss. At the February 2015 VA examination, the Veteran reported his knee bothers him with walking after about 10 minutes. Pain increased to 9/10 with twisting and moving laterally. He reported limits with walking and standing with flare-ups. See C&P Exam (February 2015). At the August 2016 VA examination, the Veteran reported constant severe bilateral pain with swelling and give way with falling. He can walk up to 100 yards. He wears a soft knee brace, and walker or cane due to his bilateral knee disabilities. He reported flareups prior to bad weather with pain lasting 4 to 5 hours. He also reported great difficulty walking due to the bilateral knee condition. See C&P Exam (August 2016). At the November 2019 VA examination, the Veteran reported pain, however, that examination was conducted regarding the left knee, so only incidental reports regarding the right knee were made. See C&P Exam (December 2019). At the April 2021 VA examination, the Veteran reported worsening knee pain with fluid being drained from his knees every 3 months. He reported constant pain, intermittent but frequent swelling of the knee, and intermittent bilateral instability with weight bearing. The Veteran reported flare-ups, noting that he stood or walked too long, his knee swells and gives out. See C&P Exam (April 2021). But at each of those examinations, flareups and repetitive use did not cause additional functional loss that more nearly approximated extension limited to 15 degrees. Additionally, throughout the appeal period, strength was either 4/5 or 5/5. See C&P Exam (February 2015); C&P Exam (August 2016); C&P Exam (December 2019). Accordingly, these findings do not support an increased evaluation. The Board has also considered other Diagnostic Codes pertaining to the knee and leg. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). First, the Board finds that a separate evaluation is warranted for symptomatic removal of the semilunar cartilage. 38 C.F.R. § 4.71a, Diagnostic Code 5259. The RO assigned a separate evaluation under this Diagnostic Code, effective in April 2021. See Rating Decision (April 2021). However, the evidence of record supports this evaluation for the entire appeal period. The Veteran consistently reported a prior right knee meniscectomy. See C&P Exam (April 2021); C&P Exam (November 2019); C&P Exam (August 2016); VA Examination (September 2011). The 2021 VA examination noted a scar from the surgical repair of the knee. See C&P Exam (April 2021). Throughout the appeal period, the Veteran reported, and the objective evidence confirmed, mild swelling and/or effusion. See C&P Exam (February 2015); C&P Exam (August 2016); CAPRI (April 2017); CAPRI (December 2018); CAPRI (October 2019); C&P Exam (December 2019); CAPRI (August 2020); CAPRI (April 2021). Thus, the lay and medical evidence shows that there are residuals. The assignment of a separate evaluation does not result in pyramiding, as the 10 percent evaluation for right knee degenerative joint disease contemplates painful extension only; this evaluation is based in symptoms of effusion and swelling. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003-5260, 5259. Accordingly, a separate evaluation is warranted. The Board also finds that a separate evaluation is warranted for instability. The Board notes that testing at VA examinations and in VA medical records, indicated there was no anterior, posterior, lateral, or medial instability. See C&P Exam (February 2015); C&P Exam (August 2016); C&P Exam (November 2019); CAPRI (June 2021). The Veteran, however, consistently reported give-way. See C&P Exam (February 2015); C&P Exam (August 2016). He also reported falls due to instability and feeling unsteady on his feet. See Medical Treatment Record Government Facility (July 2015); NOD (July 2015); CAPRI (December 2018); CAPRI (April 2017); C&P Exam (April 2021). It was noted that the Veteran wore braces and used canes for support or stability. See CAPRI (December 2018). Prior to the appeal period, in 2007, a brace was prescribed by VA medical personnel to prevent hyperextension and provide stability. See CAPRI (April 2017). In 2011, a cane and brace were provided. See CAPRI (April 2017). In December 2016, the Veteran was provided with knee braces for instability. See CAPRI (December 2018). A new brace was provided in 2021. See CAPRI (June 2021). The Veteran's reports of feelings of instability are competent as they are capable of lay observation. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (noting that a lay witness is competent to report to factual matters of which he or she has first-hand knowledge). Objective medical evidence is not required to establish lateral knee instability under DC 5257, so objective medical evidence cannot be categorically found more probative than lay evidence. See English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). VA medical providers since at least 2007 have deemed the Veteran's lay reports of instability sufficient to provide a brace. Accordingly, the Board finds that a separate evaluation for instability under Diagnostic Code 5257 is warranted. No other higher or other separate evaluation is for assignment. Here, the 2015, 2016, 2019, and 2021 VA examinations showed there was no right knee ankylosis. 38 C.F.R. § 4.71a, Diagnostic Code 5256; C&P Exam (February 2015); C&P Exam (August 2016); C&P Exam (December 2019); C&P Exam (April 2021). Additionally, flexion was noted to be to 70 degrees at its worst doing the appeal period, which considered additional functional loss due to flare-ups or repetitive use. See C&P Exam (April 2021). This does not warrant the assignment of a higher or separate evaluation, as flexion must be limited to 60 degrees for a noncompensable evaluation. See 38 C.F.R. § 4.71a, Diagnostic Code 5260. Furthermore, although VA treatment records document a prior meniscectomy, pain is considered within the 10 percent evaluation for painful extension, so an evaluation for dislocated semilunar cartilage would be impermissible pyramiding. See 38 C.F.R. § 4.71a, Diagnostic Code 5258; Lyles, 29 Vet. App. 107. Moreover, although the Veteran consistently reported a tibial osteotomy, the records did not indicate any malunion or nonunion of the tibia or fibula. 38 C.F.R. § 4.71a, Diagnostic Code 5262. Finally, the evidence does not demonstrate any genu recurvatum. See 38 C.F.R. § 4.71a, Diagnostic Code 5263. Thus, these diagnostic codes do not provide for higher or separate evaluations for the service-connected right knee disability. As noted above, during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. As of February 7, 2021, under the amended criteria, the following diagnostic codes did not change: 5256, 5258, 5259, 5261, 5263. Thus, the analysis above applies. The diagnostic codes, however, for instability and for impairment of the tibia and fibula are altered. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453. For tibia and fibula impairment, on and after February 7, 2021, the evidence does not show nonunion or malunion of the tibia and fibula or shin splints. For instability, on and after February 7, 2021, the Board finds a separate or higher evaluation is warranted. The evidence does not show unrepaired or failed repair of complete ligament tear, an incomplete ligament tear, or a diagnosed patellar instability condition. The evidence does, however, show at a ligament tear with persistent instability and a brace or an assistive device for ambulation. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453. Thus, a separate evaluation on and after February 7, 2021 for instability is warranted. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for a rating in excess of 10 percent for right knee disability. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. The Board also finds, however, that the evidence supports separate evaluations for symptomatic removal of the semilunar cartilage and for instabilitythe specific disability rating and effective date of these awards will be assigned in the first instance by the originating agency to ensure due process of law. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.M., 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.