Citation Nr: 21062190 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 13-26 779 DATE: October 6, 2021 ORDER Entitlement to a separate rating for left knee instability is denied. REMANDED Entitlement to special monthly compensation based on aid and attendance/housebound is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. Entitlement to service connection for right knee osteoarthritis is remanded. FINDINGS OF FACT 1. The Veteran's service-connected left knee disabilities were not manifested by recurrent subluxation or instability during the period on appeal. 2. The Notice of Disagreement that the Veteran filed in August 2017 conferred jurisdiction over the Veteran's right knee claim to the Board of Veterans Appeals. CONCLUSIONS OF LAW 1. The criteria for a separate rating for recurrent left knee subluxation or instability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.40, 4.45, 4.59, 4.71a Diagnostic Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in active duty from July 1943 to March 1946. The Veteran died in September 2017. The Appellant claims as the surviving spouse and has been substituted as the claimant in this matter. In February 2020, the Board denied the appeal for entitlement to a separate rating for left knee instability. The Veteran's surviving spouse appealed the Board's denial of entitlement to a separate rating for left knee instability to the United States Court of Appeals for Veterans Claims (Court). In December 2020, counsel for the appellant and the Secretary of VA filed a Corrected Joint Motion for Remand (JMR). The parties agreed that the Board erred by providing an inadequate statement of reasons or bases for denial of the appellant's claim. Second, the parties agreed that the Board erred in failing to adjudicate the issue of entitlement to a TDIU. Third, the parties agreed that the Regional Office (RO) had failed to take any action as to a part of the Veteran's Notice of Disagreement (NOD) which raised the issue of entitlement to special monthly compensation. The Court ruled that remand was warranted for the Board to remand this claim to the RO for issuance of an SOC. Finally, the parties agree that the Board should consider and explain if a NOD the Veteran filed conferred jurisdiction over a right knee claim to the Board. 1. Separate Rating Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2017). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 4.3 (2017). The Veteran's entire history is reviewed when making disability evaluations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. Where the question for consideration is propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). When a disability has undergone varying and distinct levels of severity during the appeal, it is appropriate to apply staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). VA regulations set forth at 38 C.F.R. §§ 4.40, 4.45, and 4.59 provide for consideration of functional impairment due to pain on motion when evaluating the severity of a musculoskeletal disability. If feasible, these determinations are to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2017). Moreover, joint testing is to be conducted on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158, 170 (2016). Additionally, the anti-pyramiding provision of 38 C.F.R. § 4.14 directs that the evaluation of the 'same disability' or, more appropriately in this case, the 'same manifestation' under various diagnoses is to be avoided. Indeed, in Esteban v. Brown, 6 Vet. App. 259 (1994), the Court held that, for purposes of determining whether a Veteran is entitled to separate ratings for different problems or residuals of an injury, without violating the prohibition against pyramiding, the critical element is that none of the symptomatology for any one of the conditions is duplicative of, or overlapping with the symptomatology of the other conditions. Effective February 7, 2021, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended, including Diagnostic Code 5257. If a law or regulation changes during a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by the amendment's effective date. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the amended version is more favorable, the implementation of that regulation can be no earlier than the amendment's effective date. See 38 U.S.C. § 5110(g). If the former version is more favorable, VA can apply the earlier version of the regulation for the period before and from the change's effective date assuming the criteria were met prior to the change. Before the regulatory change, Diagnostic Code 2557 provided a 10, 20, or 30 percent ratings for slight, moderate, or severe recurrent subluxation or lateral instability of the knee. See 38 C.F.R. § 4.71a, Diagnostic Code 5257. The terms mild, moderate, and severe are not defined in the 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. § 4.6. It should also be noted that use of terminology such as mild or moderate by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Effective February 7, 2021, the new version of Diagnostic Code 5257 provides, in pertinent part, that for recurrent subluxation or instability of the knee, a 10 percent rating 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 rating is assigned for one of the following: (a) 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; (b) 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 assigned for recurrent subluxation or instability when there is an 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. See 85 Fed. Reg. at 76463. Alternatively, the new version of Diagnostic Code 5257 provides, that for patellar instability, a 10 percent rating 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 assigned 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 assigned 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. Id. For patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Id., Note (1). 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). Id., Note (2). The anti-pyramiding provision of 38 C.F.R. § 4.14 directs that the evaluation of the 'same disability' or, more appropriately in this case, the 'same manifestation' under various diagnoses is to be avoided. Indeed, in Esteban v. Brown, 6 Vet. App. 259 (1994), the Court held that, for purposes of determining whether a Veteran is entitled to separate ratings for different problems or residuals of an injury, without violating the prohibition against pyramiding, the critical element is that none of the symptomatology for any one of the conditions is duplicative of, or overlapping with the symptomatology of the other conditions. Here, we have considered any theory regarding the presence of instability or subluxation. The change in the regulation is at best instructive in regard to the presence of instability in the first instance, rather than assessing the severity of instability. The Veteran sent a self-recorded statement in November 2011. See Correspondence dated November 2011. The Veteran stated that after service, the Veteran experienced his knee popping out of place. The Veteran reported that after he experienced that pop that he had taken multiple falls due to the knee coming out of its sockets with only a small amount of sideways pressure. The Veteran reported to having left knee instability causing occasional falls during a 2012 VA examination. See VA examination dated May 2012. The Veteran was noted as having a meniscal tear condition and had a meniscectomy in June 1946. The Veteran was noted to having degenerative or traumatic arthritis and was subsequently diagnosed with degenerative joint disease (DJD). The examiner indicated that the x-rays showed no evidence of patellar subluxation. The examination noted that the Veteran had regular use of knee braces. The Veteran provided a statement of him experiencing his left leg buckling. See Correspondence dated October 2012. The Veteran reported that his left leg buckled which resulted in him falling. The Veteran stated that a week later a different incident caused his knees to buckle again which resulted in another fall. The Veteran was provided an April 2013 primary care medical note. See CAPRI dated November 2016. The medical note stated that the Veteran's DJD was worse in his left knee and that he wore a brace due to an old service injury. The Veteran was provided an orthopedic surgery consult in March 2014. The examiner noted that there was chronic left knee pain and that the Veteran sustained injury to the knee many years ago. The examiner stated that the Veteran was not receiving treatment by bracing or injection on the left knee. The examiner further ordered a left medial unloader hinged knee brace to correct genu varum. The examination noted that the Veteran's knee was stable and a left knee joint corticosteroid injection was provided to the Veteran. The Veteran was provided a VA examination for housebound status in November 2014. See VA 21-2680 dated December 2014. The examiner noted that the Veteran was getting weaker and needed assistance bathing and with other activities of daily living. The examiner noted that the Veteran had osteoarthritis in both knees during which the Veteran wore knee braces for. The examiner noted that the knee braces helped, but the Veteran had some limited ambulation. The examiner noted that aids such as canes, braces, crutches, or the assistance of another person was required for locomotion for 1 or 2 blocks of travel for the Veteran. Another primary care medical note was provided to the Veteran in November 2014. See CAPRI dated November 2016. The note stated that the Veteran was wearing knee braces that helped him with his knee pain from his DJD and osteoarthritis. In December 2014, the Veteran's wife stated that the Veteran was using both a walker or a cane and knee braces for ambulation during a primary care telephone encounter note. The Veteran was provided a long-term care medical note on August 12, 2016. Under the review of systems section the doctor noted that there was left leg instability due to a war injury. It was further noted that the Veteran was wearing a left knee brace. The doctor stated that there was no history of chronic falling. On the same day, a long-term initial evaluation note was provided to the Veteran. The Veteran's spouse stated that the Veteran wore the left knee brace to prevent the joint from going out. The Veteran denied a history of falls, but his wife stated that he wore a brace on his left lower leg to prevent it from buckling. The Veteran was noted as ambulatory and did not have an assistive device. During a November 2016 hearing before the Board, the Veteran alleged that he wore knee braces every day. See Hearing Transcript dated November 2016. Further the Veteran stated that he was regularly using his walker. The Veteran reported experiencing falls as a result of his knee and having problems going up stairs and curbs. The Veteran was provided a long-term care medical note in December 2015. See CAPRI dated July 2017. Under the review of systems, the doctor noted that the Veteran had left leg instability was due to a war injury. The Veteran denied any history of falling and a full range of motion for the Veteran's extremities was noted. The Veteran was provided a compensation and pension examination in December 2016. The examiner stated that there was no history of recurrent subluxation or lateral instability in the Veteran's knee. Joint stability testing was performed which resulted in normal stability for the Veteran's knee. The examiner further noted that the Veteran was constantly using a walker as an assistive device. A primary care note was provided to the Veteran on May 8, 2017. The note stated that the Veteran's DJD was stable and that there were no recent issues. The examiner stated that there was continued safe ambulation and that the Veteran was with a walker at all times. The Veteran was provided a long-term health care note on May 26, 2017. The note stated that the Veteran was wearing bilateral knee braces for osteoarthritis and joint weakness. The note also indicated a change in the type of walker the Veteran was using. The Veteran was provided a physical therapy consult note on May 31, 2017. The Veteran's knees were noted to be within functional limits. In August 2017, the Veteran was provided an additional examination for housebound status. See VA 21-2680 dated August 2017. The Veteran was noted as using his cane or walker especially for long walking distances. The examination noted that the Veteran needed assistance from a walk aid or another person most of the time. The Veteran's wife submitted an additional statement in May 2019. See Correspondence dated May 2019. The Veteran's wife stated that the Veteran had to wear both leg braces and use a walker due to his knees. The Veteran's wife further stated that the Veteran eventually had to use a wheelchair due to his knees. She reported that home health care workers were hired to assist the Veteran showing and dressing due to the Veteran prone to falling due to his weak knees. The Board notes that the Veteran had reported a long history of knee instability that consisted of lay statements. The Board notes that the Veteran's spouse, the appellant, also attested to the Veteran suffering from knee instability. However, the preponderance of the evidence is against the claim. The Board notes that the Veteran was noted as having left leg instability due to a war injury in the medical records. However, during both times that this was noted, no joint stability testing was done. This statement was only listed under the examiners review of systems without any testing. Additional rationale was noted to be the statement from the Veteran's spouse that the Veteran wore a left knee brace to prevent the joint from going out. In each of these instances, the Board notes that it does not appear that joint stability testing was done. During the March 2014 evaluation the Veteran's knee was noted as being stable. The Board notes that any joint stability testing that has been done has also shown that there was no instability or subluxation. While there is lay evidence in support of concluding there was knee instability, the objective test results weigh more heavily in probative value to the Board. The Board notes that during a hospital admission for an unrelated problem, the examiner stated that the Veteran's knee brace was worn to correct gene varum as well as for osteoarthritis and joint weakness. This was again under the review of systems section of the note and did not indicate any joint stability testing was done. The Board notes again this statement is against any objective joint testing that has been conducted. The Board finds that the results of the examinations are more probative than these unsupported statements made under the review of systems. The VA treatment records do not show subluxation or instability of the Veteran's left knee. Any statements in favor of a finding appear to be unsupported statements or statements based on the Veteran and his spouse's lay statements. The Board acknowledges that nothing in Diagnostic Code 5257 requires objective medical evidence of subluxation or lateral instability, or tat medical evidence is to be favored over lay evidence. See English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). However, the preponderance of the evidence is against finding that the Veteran experienced recurrent subluxation or instability in his left knee during the period on appeal. While there are statements that point to potential instability, they are refuted by the objective findings. These statements do not contain any evidence of joint stability testing when they state that the Veteran has knee instability due to a war injury. These statements appear influenced by the lay evidence rather than any objective testing. While the Veteran did wear a knee brace on his left knee, it was not for recurrent joint instability or subluxation. Further the note indicated it was for genu varum, osteoarthritis and joint weakness. These reasons are not classified as sprains, incomplete ligament tears or complete ligament tears which is applicable to the currently applied diagnostic code. The Board finds that the objective results of the examinations that conducted joint stability testing have more probative value than the statements made in favor of the Veteran having joint instability. Both the lay statements and the statements made in support of there being any joint instability lack detail and are less credible. We have compared the lay evidence with the objective medical evidence and finds that the objective medical evidence is far more credible and probative as to the existence of subluxation or instability. Based on the foregoing, the Board finds that a separate rating is not warranted under Diagnostic Code 5257 for recurrent subluxation or instability. The preponderance of the evidence is against the claim and the benefits of the doubt rule does not apply. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). 2. Service connection for right knee osteoarthritis The Board has jurisdiction over appeals of questions of law and fact that involve entitlement to VA benefits, as well as to resolve questions of its own jurisdiction. 38 U.S.C. § 7104; 38 C.F.R. §§ 19.4, 20.101. The decision as to the timeliness and adequacy of an NOD will be made by the Board. 38 U.S.C. § 7108; 38 C.F.R. § 20.104 (c), (d). The RO provided a decision on the Veteran's claim for entitlement to service connection for right knee condition as secondary to the service-connected disability of degenerative joint disease left knee with limited extension in a January 2017 rating decision. See Rating Decision Narrative dated January 2017. The Veteran timely filed a Notice of Disagreement referencing the same claim and the January 2017 rating decision. See NOD dated August 2017. Therefore, the Board has limited jurisdiction over an appeal of the denial of the right knee claim and will assess it below. REASONS FOR REMAND 1. Entitlement to service connection for right knee disability. 2. Special monthly compensation based on aid and attendance/housebound is remanded. In a July 2017 rating decision, the RO denied the Veteran's claim for entitlement to special monthly compensation based on aid and attendance. The Appellant submitted a timely August 2017 Notice of Disagreement specific to that rating decision's assignment. The RO has not issued a Statement of Case (SOC) specific to this claim. There is no indication that the RO is continuing to work on this issue. Therefore, a remand is necessary to issue the Veteran a SOC regarding this issue. See Manlicon v. West, 12 Vet. App. 238 (1999). 3. Entitlement to an extraschedular TDIU pursuant to 38 C.F.R. § 4.16 (b) is remanded. The Veteran does not meet the minimum requirements for TDIU as his service-connected disabilities are for degenerative joint disease left knee with limited extension, rated at 30 percent disabling and status post meniscotomy, rated at 10 percent disabling. A combined schedular rating of 40 percent. If the Veteran fails to meet the threshold minimum percentage criteria in 38 C.F.R. § 4.16 (a), rating boards should refer to the Director of Compensation Service for extraschedular consideration all cases where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16 (b). The Board cannot assign an extraschedular evaluation in the first instance under § 4.16(b). Nevertheless, the Board may adjudicate whether a referral to the Director of Compensation Service is warranted when the issue is either raised by the claimant or is reasonably raised by the evidence of record. See Thun v. Peake, 22 Vet. App. 111, 115 (2008); Barringer v. Peake, 22 Vet. App. 242 (2008). In such case, the Board's analysis is limited to merely granting or denying the referral for TDIU on an extraschedular basis under § 4.16(b). Anderson v. Shinseki, 22 Vet. App. 423, 428-29 (2009). That is, where there is plausible evidence that a claimant is unable to secure and follow a substantially gainful occupation and where there is not any affirmative evidence to the contrary, the claimant's case is eligible for consideration under 38 C.F.R. § 4.16 (b) by referral to the Director of Compensation Service. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). This has been the subject of a JMR. Here, the appellant has raised the issue of TDIU and asserts that the Veteran had repeatedly asserted that his knees made him unable to maintain gainful employment. The record, to include the JMR, is sufficient to warrant referral to the Director of Compensation Service for consideration under 38 C.F.R. § 4.16 (b). The matters are REMANDED for the following action: 1. The issue of service connection for a right knee disability is subject to a Manlicon Remand. The AOJ must issue a SOC in regard to this issue. 2. Issue a statement of the case with respect to the issue of entitlement to special monthly compensation based on aid and attendance/housebound. 3. Refer the issue of TDIU on an extraschedular basis to the Director of the Compensation Service for action in accordance with 38 C.F.R. § 4.16 (b). H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Konieczny, Adam 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.