Citation Nr: 21063840 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 12-11 391A DATE: October 18, 2021 ORDER Entitlement to an increased rating of 30 percent, but no higher, for a left leg and knee condition is granted. Entitlement to a separate rating of 10 percent, but no higher, for left leg and knee instability is granted. Entitlement to a separate rating of 20 percent, but no higher, for a left leg and knee meniscal condition is granted. Entitlement to an initial compensable rating for a left leg scar is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran's left leg and knee condition consists of symptoms approximating malunion of the tibia and fibula, with marked symptoms. 2. The Veteran's left leg and knee condition has presented with slight instability. 3. The Veteran's left leg and knee condition has presented with a meniscal condition with frequent episodes of locking, pain, and effusion in the joint. 4. The Veteran's left leg scar is not painful or unstable, has not resulted in functional impairment, and does not affect an area of at least 6 square inches (39 square centimeters). CONCLUSIONS OF LAW 1. The criteria for an increased rating of 30 percent, but no higher, for a left leg and knee condition have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5262. 2. The criteria for a separate rating of 10 percent, but no higher, for left knee instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5257. 3. The criteria for a separate rating of 20 percent, but not higher, for a left leg and knee meniscal condition have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5258. 4. The criteria for an initial compensable rating for a left leg scar have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.3, 4.7, 4.118, Diagnostic Code 7805. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1975 to March 1979. The Veteran appealed a June 2009 rating decision by the Agency of Original Jurisdiction (AOJ). A Board of Veterans' Appeals (Board) hearing was held in October 2015. A transcript is of record. In February 2016, August 2018, and December 2020, the Board remanded the Veteran's claims to the AOJ for further action consistent with the Board's remand directives. The claims are back before the Board for further appellate proceedings. The Board finds there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). A July 2021 rating decision granted service connection for a scar on the left knee at noncompensable levels and service connection for a left knee condition, which was still evaluated at 10 percent disabling in conjunction with the left leg condition. As this does not constitute a total grant of benefits sought, the Board finds the claims still remain before the Board. When a Veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35, 38 (1993). 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. Where the question to consider is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a "staged" rating are required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Importantly, the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998); 38 C.F.R. § 3.102. The Board notes that during this appeal, VA promulgated new regulations for the evaluation of musculoskeletal disabilities effective February 2, 2021. See 85 Fed. Reg. 76,453-76,469 (November 30, 2020). Because the amendments have a specified effective date without provision for retroactive application, they may not be applied before the effective date. As of that effective date, the Board must apply whichever version of the rating criteria is more favorable to the Veteran. 38 U.S.C. § 5110(g); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Here, the Board finds the previous rating criteria more advantageous to the Veteran's current claims. Specifically, Diagnostic Code 5257 regarding instability under the new criteria requires a formal diagnosis and prescription of an assistive device. Such a diagnosis and prescription is not evident in the medical evidence of record. Furthermore, Diagnostic Code 5262 regarding tibia and fibula impairment under the new criteria now evaluate the condition under the limitation of motion Diagnostic Codes. However, as noted below, rating under the old criteria for Diagnostic Code 5262 allows for a higher rating. The Board also notes that the new criteria under Diagnostic Code 5262 added a section regarding medial tibial stress syndrome (MTSS) or shin splints, but the Veteran is not diagnosed with and has not been treated in consecutive months for such conditions. 1. Leg and Knee Condition Degenerative joint disease of the knee is rated under Diagnostic Code 5010. Diagnostic Code 5010 directs that arthritis due to trauma, substantiated by X-ray findings, should be rated as degenerative arthritis under Diagnostic Code 5003. 38 C.F.R. § 4.71a. Diagnostic Code 5003 directs that arthritis be evaluated on the basis of limitation of motion under the appropriate Diagnostic Code(s) for the specific joint(s) involved. When limitation of motion is noncompensable under the appropriate diagnostic code(s), a 10 percent rating is for application for each major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). In the absence of limitation of motion, X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations warrants a 20 percent evaluation. X-ray evidence of involvement of two or more major joints or two or more minor joints warrants a 10 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5003. For the purpose of rating disability from arthritis, the knee is considered a major joint. 38 C.F.R. § 4.45. Diagnostic Code 5262 pertains to impairments of the tibia and fibula. Under Diagnostic Code 5262, malunion of the tibia and fibula with slight knee or ankle disability warrants a 10 percent rating. Malunion of the tibia and fibula with moderate knee or ankle disability warrants a 20 percent rating. Malunion of the tibia and fibula with marked knee or ankle disability warrants a 30 percent rating. Nonunion of the tibia and fibula with loose motion requiring a brace warrants a 40 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5262. The words "slight," "moderate," and "marked" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are equitable and just. It should also be noted that use of terminology such as "slight" and "moderate" by physicians, although an element of evidence to be considered by the Board, is not dispositive of an issue. Rather, all evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Disabilities of the knee joint, generally, are rated under Diagnostic Codes 5256 through 5263. See 38 C.F.R. § 4.71a. Separate evaluations under Diagnostic Code 5260 (limitation of flexion) and Diagnostic Code 5261 (limitation of extension), may be assigned for disability of the same joint. VAOGCPREC 9-2004, 69 Fed. Reg. 59990. Further, a claimant who has both arthritis and instability of a knee may be granted separate evaluations under Diagnostic Codes 5003 and 5257, respectively, without violating the rule against pyramiding in 38 C.F.R. § 4.14. However, any such separate rating must be based on additional disabling symptomatology. Limitation of flexion of the leg is rated under Diagnostic Code 5260. A noncompensable rating will be assigned for limitation of flexion of the leg to 60 degrees; a 10 percent rating will be assigned for limitation of flexion of the leg to 45 degrees; a 20 percent rating will be assigned for limitation of flexion of the leg to 30 degrees; and a 30 percent rating will be assigned for limitation of flexion of the leg to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Limitation of extension of the leg is rated under Diagnostic Code 5261. A noncompensable rating will be assigned for limitation of extension of the leg to 5 degrees; a 10 percent rating will be assigned for limitation of extension of the leg to 10 degrees; a 20 percent rating will be assigned for limitation of extension of the leg to 15 degrees; a 30 percent rating will be assigned for limitation of extension of the leg to 20 degrees; a 40 percent rating will be assigned for limitation of extension of the leg to 30 degrees; and a 50 percent rating will be assigned for limitation of extension of the leg to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Normal range of motion of the knee is from zero degrees extension to 140 degrees flexion. See 38 C.F.R. § 4.71a, Plate II. Dr. M.H.'s July 2008 letter noted the Veteran went through an ORIF with a rod put in place, that he has pain in the knee, shin splints type pain when running, degenerative changes in the medial compartment of the left knee, a medial meniscus tear, spurring and scarring, and slight malunion. In March 2009, the Veteran stated his meniscus was torn at the time of the injury, that he had chronic pain, and that his condition limits his ability to stand long periods, work, squat, or run. The June 2009 examination report noted the Veteran cannot walk for more than a half mile, flare-ups with pain of 7 or 8, flexion to 100 degrees, normal extension, and no pain on range of motion (ROM) movements. The Veteran stated in his June 2010 notice of disagreement (NOD) that he wanted a separate rating for his knee condition associated with his leg condition, that his leg improved over the years, but his knee got worse. The December 2012 informal hearing presentation (IHP) noted instability. The Veteran stated the actual in-service fractures were four inches above the ankle, but that he also had knee problems, to include meniscus damage, at the time of the incident. See October 2015 Board Hearing Tr. at 4-6. The Veteran also stated that his knee gives out every 3 to 6 weeks and that when walking he has to grab furniture for stability. Id at 13. The December 2015 examination report noted a left knee meniscal tear and degenerative arthritis, flexion to 130 degrees, normal extension, and no pain noted on the examination. The August 2017 examination report noted flexion to 130 degrees, extension to 5 degrees, and no pain noted on the examination. The August 2019 examination report noted no evidence of nonunion of the tibia and fibula or malunion with respects to the knee and ankle, and normal ROM. The June 2021 examination report noted a left knee meniscal tear since 1978, a left tibia and/or fibula fracture, left knee degenerative arthritis, daily left knee flare-ups that are moderate to severe, that the Veteran can no longer play sports or stand or walk on hard surfaces, normal ROM, pain on both flexion and extension, but flexion of 120 degrees during flare-ups, a meniscal tear with frequent episodes of locking, pain, and effusion. The September 2021 IHP noted incapacitating attacks of pain. Upon review of the record, the Board finds that a 30 percent rating for the Veteran's service-connected left leg and knee condition under Diagnostic Code 5262 is warranted for the entire period on appeal. The Veteran's left leg and knee condition is manifested by severe pain that creates functional limitations with physical activities, malunion, and marked knee symptoms, which more nearly approximates a 30 percent disability rating. A disability rating in excess of 30 percent is not warranted for the Veteran's left leg and knee condition. A higher rating under Diagnostic Code 5262 requires nonunion of the tibia and fibula, with loose motion, and requires a brace. The Veteran is only noted to have malunion of the tibia and fibula, not nonunion. Furthermore, the Veteran does not consistently wear a brace and has not been prescribed a brace. Consequently, a rating in excess of 30 percent is not warranted for the Veteran's left leg and knee condition. 38 C.F.R. § 4.71a, Diagnostic Code 5262. Accordingly, a 30 percent disability rating, but no higher, under Diagnostic Code 5262 for the Veteran's left leg and knee condition is warranted. The Board has also considered whether separate evaluations under other potentially applicable Diagnostic Codes would result in a higher award. However, even considering the Veteran's complaints of pain which the Veteran is being compensated for and other symptoms described, neither flexion limited to 15 degrees or less, nor extension limited to 20 degrees, has been shown such that a higher rating would be warranted under either Diagnostic Code 5260 or 5261. Rather, throughout the appeal period, even when considering findings of functional loss due to pain and flare-ups, ROM in the Veteran's left knee is noncompensable. Overall, the Veteran's complaints of pain and limitation in motion are contemplated under the Veteran's 30 percent rating under Diagnostic Code 5262. Similarly, the evidence does not demonstrate symptoms that amount to ankylosis or genu recurvatum as contemplated under Diagnostic Codes 5256 and 5263. 2. Instability Diagnostic Code 5257 provides ratings for other knee impairments with the following ratings assigned: 10 percent for slight, 20 percent for moderate, and 30 percent for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Code 5257. The words "slight," "moderate," and "severe" as used in the various Codes are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The Board finds that a separate 10 percent rating for the left leg and knee should be assigned under Diagnostic Code 5257. As noted above, the Veteran suffers from instability and stated that his knee gives out every 3 to 6 weeks and he has to hold on to furniture periodically for stability. As such, the Board finds that the Veteran demonstrates slight instability of the left knee. However, apart from the Veteran's statements, examiners have not found the Veteran to have instability and the Veteran did not note any such falls during his examinations. The Veteran also does not suffer from frequent falls that may occur weekly or daily. The Veteran also does not require regular use of assistive devices, to include a knee brace. Therefore, a higher rating is not warranted. 3. Meniscus Tear Under Diagnostic Code 5258, dislocation of the meniscal cartilage with frequent episodes of locking, pain, and effusion into the joint warrants a 20 percent rating, and under Diagnostic Code 5259, removal of meniscal cartilage with symptoms warrants a 10 percent rating. 38 C.F.R. § 4.71a, Diagnostic Codes 5258, 5259. The Board finds that a separate 20 percent evaluation is warranted for the Veteran's left leg and knee condition throughout the claims period under Diagnostic Code 5258. The Veteran was noted to have a left knee meniscal tear since 1978 and a history of frequent episodes of locking, pain, and effusion of the joint. See June 2021 examination report. Under Diagnostic Code 5258, a maximum 20 percent evaluation is possible for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. 38 C.F.R. § 4.71a, Diagnostic Code 5258. The Board notes that, in Lyles v. Shulkin, 29 Vet. App. 107 (2017), the Court of Appeals for Veterans Claims (Court) held that separate ratings are not precluded for limitation of motion (Diagnostic Codes 5003, 5260 and 5261), meniscal disability (Diagnostic Codes 5258 and 5259), and instability (Diagnostic Code 5257). 4. Left Leg Scar Under Diagnostic Code 7800, a 10 percent rating is warranted for burn scars of the head, face, or neck; or scars of the head, face, or neck due to other causes; or other disfigurement of the head, face, or neck - when the skin disability has one characteristic of disfigurement. See 38 C.F.R. § 4.118, Diagnostic Code 7800. Under Diagnostic Code 7801, a 10 percent rating is warranted for burn scars or scars due to other causes, not of the head, face, or neck, that are associated with underlying soft tissue damage that affect an area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.). Id. Higher ratings are available for scars that affect a larger area. Under Diagnostic Code 7802, a maximum 10 percent rating is warranted for burn scars or scars due to other causes, not of the head, face, or neck, that are not associated with soft tissue damage, that affect an area or areas of 144 square inches (929 sq. cm.) or greater. Id. Under Diagnostic Code 7804, one or two scars that are unstable or painful warrant a 10 percent disability rating. 38 C.F.R. § 4.118, Diagnostic Code 7804. A 20 percent disability rating is applicable when there are three or four scars that are unstable or painful. Id. A maximum 30 percent rating is warranted when there are five or more scars that are unstable or painful. Id. Under Diagnostic Code 7805, scars and other effects of scars are evaluated under Diagnostic Codes 7800, 7801, 7802, or 7804. 38 C.F.R. § 4.118, Diagnostic Code 7805. The Board initially notes that Diagnostic Code 7800 is not for application as the scars do not affect the head, face or neck. Further, Diagnostic Codes 7801 and 7802 are not applicable because the evidence does not demonstrate, nor does the Veteran contend that the scars affect an area of at least 6 square inches (39 square centimeters). Therefore, to warrant a rating under Diagnostic Code 7804, the evidence must demonstrate unstable or painful scars. Diagnostic Code 7804, Note 1, indicates that an unstable scar is one where for any reason, there is frequent loss of covering of skin over the scar. The June 2021 examination report regarding scars noted a single scar on the left knee that is 9 x 0.2 cm with a total area of 1.8 cm squared. The Veteran's scar was not noted to be painful or unstable. The Veteran stated his scar was 6 inches long from the top of the knee to below the knee cap. See October 2015 Board Hearing Tr. at 11. Overall, the competent medical evidence does not note a painful or unstable scar and the total surface area does not amount to compensable levels. The Veteran's statement does not indicate the width of the scar. Therefore, the Board finds the examiner's measurements more probative. Furthermore, the Veteran has not argued that his scar is painful or unstable. Accordingly, entitlement to a compensable level for the Veteran's left leg scar is denied. REASONS FOR REMAND The June 2009 examination report noted the Veteran was a guest-service representative at a medical center. The May 2012 VA Form 9 noted the Veteran was recently laid off from his customer service position and that he was having difficulty finding a job due to his inability to lift objects and stand for extended periods of time. The Veteran was also previously doing shoe sales. See October 2015 Board Hearing Tr. at 7. Medical evidence suggests the Veteran's service-connected conditions prevent prolonged and intense physical labor. However, the record is unclear as to the periods the Veteran worked, whether such employment during the period on appeal amounts to gainful employment, and what experience and education the Veteran has. Therefore, remand is required to obtain clarification from the Veteran of his previous work and education history. The matter is REMANDED for the following action: 1. Obtain a complete post service employment and education history of the Veteran. The employment history should indicate the type of position, whether any position held was full time or part time (including hours per week worked if part time) and the wages earned. Any employment accommodations should be described in detail. 2. After the above development has been completed to the extent possible, readjudicate the claim. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board, if otherwise in order. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Zheng, Associate 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.