Citation Nr: 21063719
Decision Date: 10/15/21	Archive Date: 10/15/21

DOCKET NO. 15-06 553
DATE: October 15, 2021

ORDER

A separate rating of 10 percent for left knee meniscal symptoms, post-surgery, effective from August 11, 2011, through September 9, 2014, is granted.

An increased rating for a left knee disability in excess of 10 percent for arthritis or other symptoms prior to September 10, 2014, and in excess of 30 percent since November 1, 2015, status post total knee replacement, is denied. 

A separate rating of 10 percent for right knee meniscal symptoms, post-surgery, effective from August 11, 2011, through December 2, 2015, is granted.

An increased rating for a right knee disability in excess of 10 percent for arthritis or other symptoms prior to December 3, 2015, and in excess of 30 percent since February 1, 2017, status post total knee replacement, is denied. 

FINDINGS OF FACT

1. Effective from August 11, 2011, through September 9, 2014, the Veteran's left knee disability had post-surgical meniscal impairment with non-overlapping symptoms of frequent pain without motion, locking, and effusion into the joint. 

2. Prior to September 10, 2014, the Veteran's left knee disability resulted in painful or limited motion at times due to pain and other factors, but with flexion to greater than 45 degrees and extension to greater than 10 degrees; and a sensation of instability or giving way due to pain but no lateral instability or subluxation.

3. Effective since November 1, 2015, the Veteran's left knee disability has had no more than mild impairment status-post total knee replacement.

4. Effective from August 11, 2011, through December 2, 2015, the Veteran's right knee disability had meniscal impairment with non-overlapping symptoms of frequent pain without motion, locking, and effusion into the joint. 

5. Prior to December 3, 2015, the Veteran's right knee disability resulted in painful or limited motion at times due to pain and other factors, but with flexion to greater than 45 degrees and extension to greater than 10 degrees; and a sensation of instability or giving way due to pain but no lateral instability or subluxation.

6. Effective since February 1, 2017, the Veteran's right knee disability has had no more than mild impairment status-post total knee replacement.

CONCLUSIONS OF LAW

1. The criteria for a separate rating of 10 percent for left knee meniscal symptoms, post-surgery, effective from August 11, 2011, through September 9, 2014, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5259.

2. The criteria for an increased rating for a left knee disability in excess of 10 percent for arthritis or other symptoms prior to September 10, 2014, and in excess of 30 percent since November 1, 2015, status post total knee replacement, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5055, 5257, 5260, 5261, 5262.

3. The criteria for a separate rating of 10 percent for right meniscal symptoms, post-surgery, effective from August 11, 2011, through December 2, 2015, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5259.

4. The criteria for an increased rating for a right knee disability in excess of 10 percent for arthritis or other symptoms prior to December 3, 2015, and in excess of 30 percent since February 1, 2017, status post total knee replacement, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5055, 5257, 5260, 5261, 5262.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from November 1988 to August 1999.

This matter is before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in May 2013, which denied a higher rating, and in December 2014 and February 2016, which granted a one-year temporary total rating based on a total knee replacement, along with special monthly compensation (SMC) under the statutory housebound rate, followed by a 30 percent rating for each knee. 

Although the Veteran's representative initially indicated that she had withdrawn her appeal based on a May 2019 statement, upon further review, that statement only indicated her intent to withdraw a new claim for the knees, not the appeal. Therefore, the representative submitted appellate arguments in June 2021. Additionally, the Veteran and her representative waived initial review by the agency of original jurisdiction (AOJ) of additional VA-generated evidence added to the claims file, in responses received in August 2021 and September 2021. 

Increased Ratings

VA's percentage ratings are based on the average impairment of earning capacity as a result of service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. All reasonable doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3.

If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 

A separate or higher rating may be assigned based on non-overlapping conditions and symptoms, if the compensable criteria under applicable diagnostic codes are met, including with consideration of additional functional loss after repetitive use or flareups for musculoskeletal conditions based on range of motion. See 38 C.F.R. §§ 4.14, 4.40, 4.45, 4.59, 4.71a; Amberman v. Shinseki, 570 F.3d 1377 (Fed. Cir. 2009); Thompson v. McDonald, 815 F.3d 781 (Fed. Cir. 2016). Pain itself does not constitute functional loss, and painful motion must result in functional loss to constitute limited motion for a rating under diagnostic codes based on limitation of motion. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011).

Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). A staged rating may be awarded if there are decreases or increases in symptomatology that meet the criteria for a different rating for a distinct period during the appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007).

Knee disabilities are unique in the rating code, as they are one of a few orthopedic disabilities in which a Veteran may receive multiple ratings based on separate symptoms in the same joint. Although the law generally prevents considering the same symptoms under various diagnoses to support separate ratings, some of the relevant DCs for the knee have been interpreted to apply to different functions of the knee, therefore warranting separate consideration. Specifically, the evidence may warrant separate ratings for limitation of flexion of the knee, limitation of extension of the knee, and recurrent subluxation or instability of the knee. A rating may also be assigned for meniscal impairment if there are non-overlapping symptoms. The Board will explore all possibilities in this case.

The Veteran has had similar complaints and findings for both knees throughout the appeal period, although the left or right knee was worse at times. She filed a claim for increase for both knees on August 11, 2011, due to painful and limited motion, swelling, and the need for a brace on both knees. In support of her claim, she has also reported a sensation of instability such as stumbling or giving way of both knees that cause her to fall at times, as well as popping of her meniscus at times. See, e.g., August 2011 claim, 2013 notice of disagreement, February 2015 correspondence, June 2021 appellate brief from representative. 

To avoid unnecessary repetition, the potentially applicable legal criteria are set forth below, followed by application to the facts for the bilateral knee ratings.

VA amended the regulations for rating knee disabilities, namely, DC 5257 (subluxation and instability), DC 5262 (tibia and fibula impairment), and DC 5055 (total knee replacement), effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76462 (Nov. 30, 2020). The criteria that are most favorable to the Veteran's pending claim will apply; however, an award based on the amended regulations may not be made effective before the effective date of the change. See 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114; Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). 

Under either version of the rating criteria, under DC 5010, traumatic arthritis is rated as degenerative arthritis. Under DC 5003 for degenerative arthritis, when limitation of motion of the specific joint is noncompensable under the appropriate diagnostic code, a rating of 10 percent will be assigned for each major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. If there is no limitation of motion, ratings of 10 or 20 percent are available if there is x-ray evidence of two or more major joints or two or more minor joint groups, requiring occasional incapacitating exacerbations for a 20 percent rating. 38 C.F.R. § 4.71a.

Similarly, where limitation of motion is not compensable under the specific code for a joint, 38 C.F.R. § 4.59 provides for a minimum compensable rating for actually painful joints in conjunction with a diagnostic code based on limitation of motion. Sowers v. McDonald, 27 Vet. App. 472, 479 (2016); Southall-Norman v. McDonald, 28 Vet. App. 346, 354 (2016).

Normal knee range of motion is from 0 degrees of flexion to 140 degrees of extension. 38 C.F.R. § 4.71, Plate I.

Under DC 5260, a 10 percent rating is assigned for limitation of flexion of the leg to 45 degrees. A 20 percent rating is assigned for flexion limited to 30 degrees. A 30 percent rating is assigned for flexion limited to 15 degrees. Id.

Under DC 5261, a 10 percent rating is assigned for limitation of extension of the leg to 10 degrees. A 20 percent rating is assigned for extension limited to 15 degrees. A 30 percent rating is assigned for extension limited to 20 degrees. A 40 percent rating is assigned for extension limited to 30 degrees. A 50 percent rating is assigned for extension limited to 45 degrees. Id.

Where there is painful or limited motion with both flexion and extension, but the compensable criteria are not met for either flexion (DC 5260) or extension (DC 5261), only one minimum rating of 10 percent should be assigned. Separate ratings may not be assigned for painful or noncompensable limitation of motion using DC 5003 or section 4.59 in connection with 5260, and compensable limitation of extension under DC 5261. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011).

DC 5258 addresses a dislocated (torn) semilunar cartilage (meniscus), and assigns a 20 percent rating if there are frequent episodes of "locking," pain, and effusion into the joint. Under DC 5259, symptomatic removal of the meniscus is rated at 10 percent. 38 C.F.R. § 4.71a.

Effective prior to February 7, 2021, under DC 5257, recurrent subluxation or lateral instability of the knee will be assigned a rating of 10 percent if it is mild, 20 percent if it is moderate, or 30 percent if it is severe. Id. (2020).

Under the criteria effective since February 7, 2021, DC 5257 provides that recurrent subluxation or instability will be assigned 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 will be assigned if there is 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 for ambulation; or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device or bracing for ambulation. A 30 percent rating requires an unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device and bracing for ambulation. Id. 

There are also new criteria for patellar instability under DC 5257. A 10 percent rating is assigned 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. The patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Id. at 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. at Note (2).

Under both versions of the rating criteria, DC 5055 provides for a 100 percent temporary total rating period from the date surgery until a specified date after the surgery, followed by ratings from 30 to 60 percent. The minimum rating is 30 percent; and a 60 percent maximum rating will be assigned if there are chronic residuals of severe painful motion or weakness in the affected extremity. If there are intermediate degrees of residual weakness, pain, or limitation of motion, the disability will be rated by analogy to DCs 5256 (ankylosis of the knee), 5261 (limitation of extension of the knee), or 5262 (impairment of the tibia or fibula). 38 C.F.R. § 4.71a (2020 & 2021). The rating replaces any prior separate ratings.

Ankylosis under DC 5256 requires fixation of the joint, or impairment approaching fixation, which is not argued or shown and need not be further addressed.

Effective prior to February 7, 2021, under DC 5262, nonunion of the tibia or fibula, with loose motion, requiring a brace was assigned a 40 percent rating. Malunion was assigned a 30 percent rating. 38 C.F.R. § 4.71a (2020).

Effective since February 7, 2021, under DC 5262, nonunion of the tibia or fibula, with loose motion, requiring a brace is still assigned a 40 percent rating. However, malunion is to be evaluated under DCs 5256 (ankylosis), 5257 (subluxation or instability), 5260 (limitation of flexion), or 5261 (limitation of extension) for the knee, whichever results in the highest evaluation. 38 C.F.R. § 4.71a (2021).

The new version of DC 5262 also adds criteria for medial tibial stress syndrome (MTSS) or shin splints, which is not raised and need not be further addressed. 

1. , 2., 3., and 4. Left knee ratings, including arthritis and meniscal impairment and post-total knee replacement; right knee ratings, including arthritis and meniscal impairment and post-total knee replacement 

The Veteran seeks higher compensation for her left and right knee disabilities based on pain and other symptoms with functional impairment since her August 11, 2011, claim. As explained below, a separate rating is warranted for meniscal impairment for each knee, but another separate or higher rating is not appropriate.

The Veteran is currently assigned a 10 percent rating for each knee under DC 5010-5260, for degenerative joint disease or arthritis (5010) with painful or limited flexion of the leg (5260), effective from 1999 until prior to her total knee replacement surgery for each knee. 38 C.F.R. § 4.71a. She is assigned a temporary 100 percent rating for each knee for one year from the date of the respective surgeries, followed by a minimum 30 percent rating under DC 5055. Id. 

Although the Veteran had symptoms or manifestations to differing degrees in each knee, and which varied over time as explained in further detail below, her reported and measured manifestations were overall similar and were generally consistent in lay and medical evidence. See, e.g., Veteran statements in August 2011 claim, September 2013 notice of disagreement, and February 2015 with substantive appeal; VA treatment records in December 2010, August 2011, October 2011, December 2011, January 2012, July 2012, June 2015, July 2015, September 2015, November 2016, April 2018, and November 2019; VA examination in March 2013.

The evidence reflects service-connected right knee diagnoses of degenerative joint disease or arthritis. The Veteran had several arthroscopic surgeries for meniscectomies and removal of loose bodies for each knee prior to the appeal period, as well as an arthroscopic surgery with debridement of the right knee in July 2015. Although treating providers noted that the Veteran was a candidate for a partial (unilateral) right knee replacement and a total left knee replacement as early as 2011, the providers noted that she should wait if possible due to her young age, and she also delayed the procedures due to personal matters. The left knee was replaced in September 2014, and the right knee was replaced in December 2015.

Throughout the appeal period, the Veteran has described frequent bilateral knee pain to varying degrees. She had tenderness to palpation around the patella, joint line tenderness, painful and limited motion, crepitus or a grinding sensation, and swelling or effusions at times. She described stiffness in the morning or after sitting and which worsens throughout the day, limiting her mobility. The Veteran also described bilateral knee flareups of increased pain or difficulty with activities or repeated use over time, including both flexion (bending) and extension (straightening) activities. She reported difficulty due to pain with prolonged walking, sitting, or standing, exercising or doing high-impact activities, bending, squatting, walking up steps or stairs, and sleeping supine. The Veteran described bilateral sensations of clicking, locking, catching, and popping. She also described  bilateral instability, weakness or decreased strength, giving way, buckling, or stumbling and falling at times. Although her gait was noted as non-antalgic and that she ambulated "quite well," she has used a weight off-loader brace for each knee when walking or doing exercise throughout the appeal period. The Veteran takes oral anti-inflammatory medications for knee pain, she received steroid injections prior to the appeal period, she underwent physical therapy for the knees at times, and she was encouraged to work on weight reduction. 

After her respective total knee replacements in September 2014 and December 2015, treatment records noted that the Veteran was doing well with some pain or weakness, and she was pleased with the outcomes. She requested a new VA examination in August 2015, asserting that her February 2015 statement indicated more severe symptoms. Treatment records were obtained that cover this period. However, she declined another VA examination for her knees in June 2019. There is no argument or suggestion that the severity of the Veteran's bilateral knee disabilities increased after the last available medical evidence to warrant a remand.

Arthritis and Limitation of Motion 

The Veteran has bilateral knee arthritis with painful and limited motion, which have been rated 10 percent disabling each effective since 1999. Because she does not meet the compensable criteria for limitation of flexion or extension for either knee, a higher or separate rating is not warranted on this basis.

The Veteran does not meet the compensable criteria under either DC 5260 or DC 5261, as she retained flexion to well over 45 degrees and extension to more than 10 degrees even during periods of increased pain or other contributing factors. 

Instead, the Veteran had left knee full extension or was noted to be lacking 1 degree or a "few" degrees of extension; and flexion from 110 to 121 degrees during testing despite pain or increased pain at times and crepitus or grinding prior to her September 2014 replacement. See, e.g., VA treatment records in December 2010, October 2011, December 2011 (including with pain of 5 to 7 out of 10); VA examination in March 2013. Records without specific measurements noted that range of motion was painful and involved crepitus (such as in August 2011), or that the Veteran lacked a "few degrees" of extension and flexion for the left knee (such as in October 2011). 

Similarly, the Veteran had right knee full extension, extension to 3 degrees, or near full extension; and flexion ranging from 110 to 123 degrees during testing despite pain or increased pain at times and crepitus or grinding prior to her December 2015 replacement. See, e.g., VA treatment records in October 2011, December 2011 (including with pain of 5 to 7 out of 10), July 2015 (noting flexion to greater than 110 degrees with pain at extreme flexion), September 2015 (again noting pain at the end of flexion); VA examination in March 2013. Records without specific measurements noted that range of motion was painful (such as in August 2011).

The Veteran reported limitation of motion, primarily bending or flexion, due to increased pain or swelling with various activities, as summarized above. However, she did not identify a specific degree of limitation, and the evidence does not establish an impact on range of motion during periods of increased symptoms due to flareups or repeated use over time to below 45 degrees. To the extent the Veteran identified locking with an inability to bend or straighten her knee (such as in October 2011), or an inability to bend her knee at times (such as in July 2012), that limitation is contemplated by the separate 10 percent rating for each knee assigned herein for meniscal symptoms including locking, post-arthroscopic surgery.

Concerning additional loss, the guidance on how to evaluate flareups is not particularly clear. The Board finds that flareups must be quantifiable and result in limitation of motion of function beyond that contemplated by the already provided evaluation to warrant a higher rating. As to stabilization, flareups must be of such length as to establish that the overall impairment is more severe than currently rated. The degrees of disability specified by the ratings in diagnostic codes are considered adequate to compensate for considerable loss of working time from exacerbations or illness proportionate to the severity of the grades of disability. 

In this case, the statements do not show that flareups or repeated use over time additionally limited function in a quantifiable way, or that they are of such length or duration that a higher or staged rating would not violate the rule regarding stabilization of ratings. The 2013 VA examiner attempted to elicit this information, and the Veteran primarily reported increased pain with activities. In her September 2013 notice of disagreement, the Veteran stated that her range of motion without pain was extremely limited due to swelling. Similarly, she reported in February 2015 with regard to her pre-replacement left knee severity and current right knee severity that she had extreme knee pain when going from a straight leg (extension) to a bent leg (flexion), she is only pain-free when heavily medicated, and bending becomes "unbearable" due to swelling after prolonged standing or walking. The Veteran also asserted that during the 2013 VA examination her knees must have been painful during range of motion, despite the examiner's notation of no objective pain on range of motion, with no change after repetitive testing, and that after the examination she required pain relief. However, these reports do not suggest a quantifiable additional loss of range of motion due to pain for either knee, and a remand to obtain an opinion to estimate any additional degree of limitation during flare-ups or repeated use would have no reasonable possibility of assisting in substantiating the claims. Therefore, the lack of any such opinion is not prejudicial to the Veteran's claims. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). 

As noted above, pain alone is not sufficient to constitute limitation of motion without resulting additional functional loss, and painful motion alone does not constitute limited motion for the purposes of rating under the codes pertaining to limitation of motion for a particular disability, as opposed to assigning a minimum rating under DC 5003 or section 4.59. Therefore, the Veteran's reports of exacerbation after repeated use or during flareups are not quantifiable and not of sufficient duration to warrant a change in evaluation without violating the spirit of Mitchell, 38 C.F.R. § 4.1, and the rule regarding stabilization of ratings. As the evidence reflects significant flexion and extension despite increased pain or other contributing factors, these factors did not result in a greater degree of functional loss or limitation than noted above for either knee to warrant a higher rating. 

Additionally, although the evidence reflects that the Veteran has frequently taken anti-inflammatory medications for knee pain, there is no suggestion that they reduce her symptoms to an extent to warrant a higher or separate rating when discounting their ameliorative effects. In particular, there is no suggestion that her flexion would decrease to 45 degrees or below or that her extension would decrease to 10 degrees or more without these medications. For example, a January 2012 record noted that the Veteran was not responding well to ibuprofen, and she was started on tramadol. This suggests that the Veteran still had significant pain despite medications. Similarly, she reported in February 2015 that she is only pain-free when heavily medicated. However, again, pain alone does not constitute limited motion. The Veteran described being unable to do certain activities, primarily involving bending or flexion, without pain. Therefore, this does not show any additional loss of range of motion due to pain, with or without medications.

Accordingly, a single 10 percent rating is appropriate for each knee under DC 5003/5010 or under section 4.59 in combination with DC 5260 for painful or limited motion because the Veteran primarily complained of pain with flexion or bending. To the extent she also has pain or noncompensable limitation with extension (DC 5261) or straightening activities, only a single rating may be applied for her painful motion without meeting the compensable criteria under DC 5260 or 5261. Thus, a higher or separate rating is not warranted on this basis.

Meniscal Impairment

Resolving reasonable doubt in the Veteran's favor, the evidence warrants a separate rating of 10 percent for each knee under DC 5259 based on non-overlapping meniscal symptoms after her prior surgeries for a torn meniscus, effective since her August 11, 2011, claim. This separate rating continues until September 9, 2014, for her left knee, prior to her left total knee replacement; and until December 2, 2015, for her right knee, prior to her right total knee replacement. 

The medical evidence shows recurring left and right knee meniscal symptoms despite her meniscectomies prior to the appeal period. A December 2010 treatment record noted that she had three left knee prior arthroscopies for meniscus problems and loose bodies, and an August 2011 record noted a history of three prior arthroscopies on each knee. Similarly, the March 2013 VA examiner noted a history of three arthroscopic procedures on both knees related to meniscal tears.

Records in August 2011 noted that the Veteran was having right knee pain that was different than her normal symptoms, which felt like a "crunching" and possibly a torn meniscus. There was some swelling below the knee. She reported twisting her knee a couple of weeks ago and now having sharp right knee pain, as well as locking, catching, and feeling that there is a loose body. She was familiar with the sensation of meniscal tearing and loose bodies due to her prior arthroscopies on the right knee. Examination showed a positive McMurray's click, but no significant effusion. X-rays showed osteoarthritis. The assessment was right knee pain likely secondary to a chondral flap, meniscal tear, or loose body. An MRI was ordered. 

An October 2011 orthopedic surgery consult noted left greater than right knee pain, the history of prior surgeries, complaints including left medial knee pain and inability sleep supine, and a positive McMurray sign due to the left medial pain on examination. The Veteran also reported having a right torn medial meniscus and loose bodies, pain and swelling medially, and locking and inability to bend or straighten the knee. Examination of the right knee showed a trace effusion and tenderness at the medial and lateral joint lines. X-rays show primarily medial compartment degenerative disease of both knees, greater on the right, and some lateral compartment osteophytes. The provider stated that an MRI of the right knee shows a degenerative medial meniscus with no large flaps and some very small loose bodies which were probably encased in a cyst in the posterior knee.

The Veteran is not competent to identify whether she has a torn meniscus or the underlying basis for her observable sensations because the knee is very complex and requires medical expertise to interpret the evidence and tests. Additionally, to the extent her report in the October 2011 record was based what her provider told her, an MRI had not been interpreted, and the provider noted only degeneration.

A December 2011 orthopedic consult noted that the Veteran suffered from very early onset degenerative joint disease and that her right knee was hurting more than her left. She felt loose bodies in her right knee that were clicking, catching, and locking, and causing a significant amount of pain. After examination, the assessment was bilateral knee arthritis and loose bodies and catching on the right, which was actually more symptomatic for her at that time. A December 2011 physical therapy record noted a positive Appley compression sign (for meniscal symptoms) on the right side only, and tenderness to palpation at the medial joint line and both patellas. The assessment stated that the Veteran was complaining of bilateral knee pain, with signs and symptoms consistent with Patellofemoral Stress Syndrome (PFSS), meniscus injury, and degenerative joint disease (arthritis).

During the March 2013 VA examination, the Veteran reported clicking and popping in both knees, which she had been told was due to loose bodies. The examiner diagnosed bilateral meniscal tears, status-post meniscectomy, with residuals of frequent pain, popping, clicking, and locking, that was more severe in the left knee. X-rays also showed a left knee joint effusion. This notation reflects with no current meniscal tears, only status post surgeries for prior meniscal tears.

In a February 2015 correspondence, the Veteran reported right knee popping due to her meniscus at times, with and without weightbearing, and swelling after use. 

A June 2015 VA treatment record noted that the Veteran reported that her right knee locked up at times and felt less secure. The provider noted a history of three scopes (arthroscopies) on the right side, most recently in the mid-1990s when she had loose body removal and a partial medial meniscectomy (PMM). The provider noted that an MRI from three years ago had shown loose bodies and that the medial meniscus was primarily intact, and she had moderate degenerative changes of the medial condyle and mild patellofemoral disease. Examinations of the right knee showed a moderate effusion, some irritability but no true locking on range of motion, crepitus consistent with patellofemoral arthritis, tender to palpation along the medial joint line directly over the body of the meniscus, and McMurray testing was painful on the posteromedial side. The impression noted worsening right knee pain with mechanical symptoms and a history of loose bodies and medial meniscus degeneration, and that she may benefit from another arthroscopy with loose body removal and possible medial meniscectomy. These symptoms had been present for several years and were resistant to conservative treatment, and they had worsened over the past few months with more meniscal symptoms. An MRI was obtained, which found no meniscal tear and a small joint effusion, along with moderately severe degenerative osteoarthritis that had progressed compared to 2011.

A July 9, 2015, record noted right knee pain with mechanical symptoms and medial sided joint line pain, and impression was a right knee pain due to a complex medial meniscus tear in the setting of degenerative joint disease in the medial compartment. The Veteran consented to an arthroscopy for a partial medial meniscectomy, and she was informed that this would only affect her acute symptoms, and her chronic knee pain would not improve. 

A July 24, 2015, followup after the July 9, 2015, right knee surgical procedure noted that the procedure performed was arthroscopic debridement, and the post-operative diagnosis was right knee pain due to degenerative joint disease, particularly in the medial compartment. Thus, despite the notation of a meniscal tear in the July 9 pre-surgical record, the MRIs in 2011 and 2015 did not show a meniscus tear, and the surgery report also did not reflect a meniscectomy. These records based on actual observation through MRIs and inside the knee during surgery rare more probative than the contrary notation in the July 9th record. Therefore, the weight of the evidence shows no meniscus tear in the appeal period.

The July 24th record also noted that the Veteran continued to experience catching and popping in the right knee that did not seem better than prior to surgery.

For both knees, the Veteran's pain with movement is already contemplated by her rating based on limited or painful motion, and a separate rating on this basis would constitute impermissible pyramiding. However, her pain without movement, including medial pain and being unable to sleep spine (such as in October 2011) as well as other symptoms noted above as related to her meniscus, are not otherwise contemplated by her rating for arthritis or painful and limited motion prior to her left and right total knee replacements, respectively. Accordingly, the Veteran has frequent non-overlapping left and right knee symptoms due to post-surgical meniscal impairment to warrant a 10 percent rating under DC 5259. The evidence does not show a torn meniscus during the appeal period to apply DC 5258.

There is no factually ascertainable increase to this level within the one year prior to the Veteran's August 2011 claim. Instead, the Veteran's statements for treatment since at least 2010 reflect longstanding symptoms, and she reported in a February 2015 statement with her substantive appeal that her increased pain and other symptoms had been present for about six years, or since approximately 2009. Thus, an effective date prior to August 11, 2011 is not warranted. 38 C.F.R. § 3.400(o).

Instability

The Veteran's representative asserts that a separate rating is warranted for instability under DC 5257 based on her use of bilateral knee braces. There is no suggestion of recurrent subluxation or dislocation. However, as noted above, the Veteran has given competent and credible descriptions of a frequent feeling or sensation of instability, weakness or decreased strength, giving way, buckling, or stumbling and falling at times, particularly when bending her knees. During the March 2013 VA examination, she reported wearing her brace occasionally and that it was helpful, but she did not regularly wear it at work home because it was uncomfortable. She has reported wearing a brace for walking and exercising, including in her August 2011 claim and September 2013 notice of disagreement. In a February 2015 correspondence, she reported that she stumbles and falls at times because her left knee dose not bend properly and because her right knee gives out from pain. She asserted that she has had two unstable knees for the last six years.

The Veteran is not competent to identify the underlying basis for such sensations or whether they are due to lateral instability because the knee is very complex and requires medical expertise to interpret the evidence and tests. 

Objective tests for instability in both knees were negative, or showed a stable knee, including or varus and valgus stress, anterior and posterior drawer, and Lachman's test, as well as intact anterior and posterior cruciate ligaments (ACL and PCL), and normal ligaments with no laxity. Additionally, the medical evidence consistently reflects that the Veteran wears weight off-loader braces due to her degenerative joint disease or arthritis in both knees. See, e.g., VA treatment records in December 2010, October 2011, December 2011 (orthopedic and physical therapy records), July 2012; VA examination in March 2013. 

As noted above, the criteria under DC 5257 in effect prior to February 7, 2021, address recurrent lateral instability. The medical evidence is the most probative as to the underlying basis for the Veteran's sensations of instability, and it outweighs the Veteran's noncompetent assertions in this regard. The Veteran's sensations of instability or weakness, as well as occasionally decreased muscle strength to 4+ out of 5 (as noted in December 2011) were attributed to her pain and deconditioning from severe left knee arthritis. Thus, the weight of the evidence does not establish recurrent lateral instability as required for a separate rating under this code. 

Post-Total Knee Replacement

The Veteran and her representative have primarily focused on her bilateral knee ratings prior to her total knee replacements in 2014 (left) and 2015 (right). 

As noted above, the criteria for rating the knee under DC 5055, as well as DC 5262 as referenced for determining intermediate degrees of impairment, were amended, effective February 7, 2021. However, both versions of the rating criteria assign a minimum 30 percent rating and require intermediate degrees of impairment to warrant rating between that degree and the 60 percent rating for severe residuals.

In this case, the evidence reflects no more than minimum post-replacement residuals for both knees. The Veteran consistently stated for treatment that she was happy, pleased, or doing "great" post-total knee replacement, and providers noted that she was doing well. See, e.g., VA treatment records in June 2015 (for the left knee), November 2016 (both knees), November 2019 (both knees). 

In November 2016, the Veteran specified that her knee pain had been fairly manageable, although she had occasional soreness to her lateral left knee, and she reported increased "noise" in her knees when standing up. There was no effusion, and the Veteran had a non-antalgic gait. Her range of motion on testing was similar to prior to the surgeries, with the left knee at approximately 5 degrees short of full extension to 120 degrees of flexion, which does not meet the criteria for a compensable rating under DC 5260 and 5261. She was still in the one-year regulatory recovery period for a temporary total rating for her right knee. The provider noted that the Veteran did have some mechanical-type noise with transitioning positions or articulation of the patellofemoral component with range of motion, but it was "essentially nonirritable" for her. The Veteran had essentially normal positioning of her knee components, with no signs of fracture or hardware failure. Both knees also remained stable to varus and valgus testing. 

An April 2018 record noted that the Veteran had acute onset right knee pain after slipping on the ice yesterday, which caused her to "extremely" bend her knee further than she is usually able to do. Otherwise, she had no difficulties with her total knee replacement. She had minimal swelling and tenderness over the medial knee, and flexion to about 80 degrees of flexion. The impression was a right knee strain with pain after a hyperflexion injury from slipping on the ice, with a likely associated musculoskeletal injury or stretching of scar tissue, muscle, and ligaments. She was advised to treat conservatively with rest, ice, compression, and elevation; continue using ibuprofen, and fitted for a neoprene brace.

As noted above, the Veteran declined a repeat VA examination for her knees in June 2019. In November 2019, she called in response to a two-year orthopedic follow-up letter and stated that her knees were "doing great." Therefore, the notation of acute or temporary right knee pain in April 2018 resolved.

Accordingly, there is no suggestion of anything more than mild residuals after the left or right knee replacements, and further discussion of DCs 5256, 5261, or 5262 (including the reference to 5257 in the post-2021 version) is unnecessary. A rating higher than 30 percent is not warranted under DC 5055, effective since November 1, 2015, for the left knee, and effective February 1, 2017, for the right knee. 

Other Rating Considerations

Throughout the appeal period, there is no argument or indication of bilateral knee ankylosis (DC 5256), tibia or fibula impairment (DC 5262), or genu recurvatum (DC 5263) to warrant a separate rating or discussion of those diagnostic codes.

Finally, the Veteran's left and right knee surgical scars from the 2014 or 2015 total knee replacement, or from earlier arthroscopic surgeries (as reflected in the March 2013 VA examination), do not warrant a separate rating. Although the rating criteria for scars were amended effective August 13, 2018, during the course of this appeal, they are essentially the same as relevant to this Veteran's case, and neither version is more favorable. The Veteran has not complained about her left or right knee scars, and the medical evidence consistently shows that the knee scars were well healed. There is no suggestion that the scars are painful or unstable, that scars are "deep" or associated with underlying soft tissue damage, or that they measure at least 144 square inches (929 square cm). There is also no suggestion of disabling effects due to the scarring itself. Therefore, a separate compensable rating is not warranted on this basis. See 38 C.F.R. § 4.118, DCs 7801 to 7805 (2017 & 2020).

Conclusion

In summary, the Veteran's bilateral knee disabilities warrant staged ratings, with separate ratings as discussed above, as a partial grant of the appeal. 

Otherwise, the Veteran's right and left knee manifestations were relatively stable during the staged periods on appeal, and any increases in severity were not sufficient to meet the criteria for a higher or separate rating. The preponderance of the evidence is against a higher or separate rating under any reasonably raised theory, and there is no reasonable doubt to be resolved in her favor. The appeals are otherwise denied.

 

Bethany L. Buck

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	C. Wheatley

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.