Citation Nr: 21065418
Decision Date: 10/26/21	Archive Date: 10/26/21

DOCKET NO. 16-06 483
DATE: October 26, 2021

ORDER

A rating in excess of 20 percent for left knee instability is denied.

A rating in excess of 20 percent for the period prior to May 19, 2021, and a rating in excess of 30 percent for the period thereafter for status post left knee surgery with osteoarthritis with limited extension is denied.

A rating of 10 percent for left knee meniscal tear with anterior cruciate ligament tear, throughout the entire period on appeal, is granted.

A rating in excess of 10 percent for left knee meniscal tear with anterior cruciate ligament tear is denied.

A compensable rating for scars associated with the Veteran's left knee disability is denied.

FINDINGS OF FACT

1. Throughout the period on appeal, the Veteran's left knee disability has been productive of slight instability and characterized as giving out and requiring the regular use of a knee brace and cane.

2. For the period prior to May 19, 2021, the Veteran's left knee disability has been characterized by extension limited to 15 degrees. 

3. For the period since May 19, 2021, the Veteran's left knee disability has been characterized by extension limited to 25 degrees.

4. Throughout the entire period on appeal, the Veteran's meniscus condition of the left knee has been characterized as symptomatic with frequent episodes of pain, effusion, and locking. 

5. Throughout the period on appeal the scars associated with the Veteran's left knee disability have been characterized as scars that are pain free, stable, and total an area less than 39 sq. cm. (6 sq. in.).

CONCLUSIONS OF LAW

1. The criteria for a rating in excess of 20 percent for left knee instability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.59, 4.71, 4.71a, Diagnostic Code (DC) 5257.

2. The criteria for a rating in excess of 20 percent prior to May 19, 2021, and a rating in excess of 30 percent for the period thereafter for status post left knee surgery with osteoarthritis with limited extension have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.59, 4.71, 4.71a, DCs 5256-5263.

3. The criteria for a rating of 10 percent for left knee meniscal tear with anterior cruciate ligament tear, throughout the period on appeal, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, DC 5259.

4. The criteria for a rating in excess of 10 percent for left knee meniscal tear with anterior cruciate ligament tear have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, DC 5259.

5. The criteria for a compensable rating for left knee scars have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.118 DCs 7800-7804.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the Air Force from March 1973 to March 1977 and from July 1979 to July 1982. These matters come before the Board of Veterans' Appeals (Board) from an October 2014 rating decision.

In September 2018 and March 2021 decisions, the Board remanded the Veteran's claims to afford him a new VA examination as to the severity of his left knee disability. The claims have since been returned to the Board for review. For the reasons indicated in the discussion below, the development conducted pursuant to the Board's remand instructions was adequate and the agency of original jurisdiction (AOJ) therefore complied with the Board's remand instructions. Stegall v. West, 11 Vet. App. 268 (1998).

Increased Ratings

Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Although the Board typically considers only those factors contained wholly in the rating criteria, it is appropriate to consider factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436 (2002).

Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3.

Where evidence indicates that the degree of disability increased or decreased during the appeal period, "staged" ratings may be assigned for separate periods of time based on facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999), Hart v. Mansfield, 21 Vet. App. 505 (2007).

For musculoskeletal disabilities, a higher rating is based on greater limitation of motion due to pain on use, including during flare-ups. 38 C.F.R. §§ 4.10, 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability, and therefore, actually painful, unstable, or malaligned joints, due to healed injury, are as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. 

Left Knee Disability

In this case, the Veteran is seeking an increased rating for his left knee disability. For the period prior to May 19, 2021, he was assigned 20 percent, and for the period thereafter he is assigned a 30 percent rating for status post left knee surgery with osteoarthritis with limited extension; throughout the period on appeal he is assigned a 20 percent rating for left knee instability; for the period from May 19, 2021, he is assigned a 10 percent rating for left knee meniscal tear with anterior cruciate ligament tear; and, for the period from September 30, 2010, he is assigned a noncompensable rating for scars associated with his left knee disability.

Initially, the Board notes that there is nothing in the evidence suggesting the left knee disability involves ankylosis, tibia or fibula impairment, or genu recurvatum, so as to warrant ratings under DCs 5256, 5262, or 5263. See 38 C.F.R. § 4.71a. Accordingly, those DCs will not be addressed further.

A 20 percent rating is assigned for a knee disability with limitation of motion when the evidence demonstrates:

	Limitation of flexion to 30 degrees (20 percent under DC 5260);

	Limitation of extension to 15 degrees (20 percent under DC 5261); or,

	Limitation of flexion to 45 degrees and limitation of extension to 10 degrees (two separate 10 percent ratings under DCs 5260 and 5261, respectively). 38 C.F.R. § 4.71a.

A 30 percent rating is assigned for a knee disability with limitation of motion when the evidence demonstrates:

	Limitation of flexion to 15 degrees (30 percent maximum under DC 5260); or,

	Limitation of extension to 20 degrees (30 percent under DC 5261). 38 C.F.R. § 4.71a.

In order to warrant a rating in excess of 30 percent for a knee disability with limitation of motion, the evidence must demonstrate: 

	Limitation of extension to 30 degrees (40 percent under DC 5261). 38 C.F.R. § 4.71a.

A separate rating may be assigned for instability when the evidence demonstrates:

	Recurrent subluxation or lateral instability with slight symptoms (10 percent under DC 5257); 

	Recurrent subluxation or lateral instability with moderate symptoms (20 percent under DC 5257); or,

	Recurrent subluxation or lateral instability with severe symptoms (30 percent maximum under DC 5257). 38 C.F.R. § 4.71a.

If not contemplated by the rating under any other diagnostic code, a separate rating may be assigned for a meniscus condition when the evidence demonstrates:

	Cartilage, semilunar, removal of, symptomatic (10 percent maximum under DC 5259); or,

	Cartilage, semilunar, dislocated, with frequent episodes of "locking," pain, and effusion into the joint (20 percent maximum under 5258). 38 C.F.R. § 4.71a.

Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). 

VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. 

Under the revised rating criteria for Diagnostic Code 5257, a 10 percent disability rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. 

A 10 percent rating is also warranted under DC 5257 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. 38 C.F.R. § 4.71a.

Under the revised rating criteria, a 20 percent disability rating is warranted under DC 5257 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, cane, or walker. 

A 20 percent disability rating is also warranted under DC 5257 for one of the following: a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribed a brace and/or assistive devise (e.g. cane(s), crutch(es), walker for ambulation; or 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. Id.

The Board has reviewed the evidence of record and finds that a rating in excess of 20 percent for the period prior to May 19, 2021 and a rating in excess of 30 percent for the period thereafter for status post left knee surgery with osteoarthritis with limited extension is not warranted; a rating in excess of 20 percent for left knee instability is not warranted; a 10 percent rating for left knee meniscal tear with anterior cruciate ligament tear throughout the entire period on appeal is warranted; and, a rating in excess of a 10 percent for left knee meniscal tear with anterior cruciate ligament tear is not warranted.

In August 2014, the Veteran underwent an in-person VA examination regarding his left knee disability. The Veteran reported that he experienced knee pain all day long, that changes in the weather affected his knee pain, and that his knee gave out, especially when climbing stairs. He reported experiencing flare-ups that required him to rest and elevate his leg. The examiner diagnosed osteoarthritis status post left knee surgery with damaged medial meniscus. Upon examination, the Veteran's range of motion of the left knee was flexion to 90 degrees and extension to 15 degrees. The examiner determined that the Veteran did not experience decreased range of motion with observed repetitive use but that with continued repetitive use additional functional loss would be caused by pain on movement, swelling, and less movement than normal. The examiner determined that the Veteran did not have any patellar subluxation or dislocation, noted that he had a history of left knee instability, and noted that joint stability testing could not be performed. Further, the examiner noted that the Veteran required the regular use of a knee brace and cane. The examiner determined that the residual symptoms of the Veteran's meniscectomy included frequent episodes of joint effusion. The examiner also determined that the Veteran did not have any left knee ankylosis. The examiner noted that the Veteran had scars associated with his left knee disability and determined that none of the scars were painful, unstable, or total an area greater than 39 sq. cm. (6 sq. in.). Lastly, the examiner noted that the physical limitations of the Veteran's left knee impacted his ability to perform employment duties, including regular travel. 

In July 2019, the Veteran underwent an in-person VA examination regarding his left knee disability. The Veteran reported that he could not climb stairs, avoided walking up inclines, could not walk long distances, and could no longer coach youth sports. He reported experiencing flare-ups with unbearable pain that required him to take pain medication and avoid weight-bearing activities. The examiner diagnosed left knee degenerative joint disease with instability. Upon examination, the Veteran's range of motion of the left knee was flexion to 90 degrees and extension to 0 degrees. The examiner determined that the Veteran did not experience decreased range of motion with observed repetitive use. The examiner determined that the Veteran did not have any patellar dislocation, and regarding instability noted that he had a history of slight recurrent subluxation of the left knee. Upon joint stability testing, the examiner determined that the left knee did not indicate any objective findings of instability. Further, the examiner noted that the Veteran required the regular use of a knee brace. The examiner determined that the residual symptoms of the Veteran's meniscectomy included frequent episodes of joint pain. The examiner also determined that the Veteran did not have any left knee ankylosis. The examiner noted that the Veteran had three scars associated with his left knee disability and determined that scars were not painful, not unstable, and do not total an area greater than 39 sq. cm. (6 sq. in.). Lastly, the examiner noted that the physical limitations of the Veteran's left knee impacted his ability to perform employment duties, including regular travel and walking.

In May 2021, the Veteran underwent an in-person VA examination regarding his left knee disability. The Veteran reported experiencing flare-ups that occurred every two weeks, that last two to three days, that were precipitated by walking, and that were alleviated by pain medication. The examiner diagnosed left knee osteoarthritis with instability, a meniscal tear, and an anterior cruciate ligament tear. Upon examination, the Veteran's range of motion of the left knee was flexion to 90 degrees and extension to 20 degrees. The examiner determined that the Veteran did not experience decreased range of motion with observed repetitive use. The examiner estimated that with repeated use over time and during a flare-up the Veteran would experience additional limited flexion to 85 degrees and limited extension to 25 degrees. The examiner determined that the Veteran did not have any recurrent patellar instability, any recurrent subluxation or persistent instability, or a ligament tear. The examiner noted that regarding instability the Veteran had a history of slight lateral instability of the knee. Upon joint stability testing, the examiner determined that the left knee did not indicate any objective findings of instability. Further, the examiner noted that the Veteran did not require the regular use of any assistive devices. The examiner determined that the residual symptoms of the Veteran's meniscectomy included frequent episodes of joint locking and frequent episodes of joint pain. The examiner also determined that the Veteran did not have any left knee ankylosis. Lastly, regarding the Veteran's functional impairment, the examiner determined that the Veteran had difficulty climbing stairs as well as standing and walking for prolonged periods.

Additionally, the Board notes that the Veteran's VA treatment records indicate complaints and treatment for chronic left knee pain. Further, the VA treatment records demonstrate continued use of a left knee brace, including in August 2019, February 2020, and March 2020. However, the VA treatment records do not indicate any further findings or testing necessary to assign a disability rating.

Regarding the assigned rating for limited motion for the period prior to May 19, 2021, the Board notes that medical evidence indicates that the Veteran's flexion was not limited to 60 degrees or less as required to warrant a compensable rating under DC 5260. The medical evidence also indicates that the Veteran's extension was limited to 15 degrees as required to warrant a 20 percent rating, but no higher, under DC 5261. Therefore, the Board finds that for the period prior to May 19, 2021 a rating in excess of 20 percent for limitation of motion is not warranted. 

For the period since May 19, 2021, the May 2021 VA examination findings indicate that the Veteran's flexion was limited to 90 degrees and extension limited to 20 degrees. Further, the examiner determined that the Veteran would experience additional functional loss during a flare-up or with repeated use over time, which was estimated to be flexion limited to 85 degrees and extension limited to 25 degrees. Therefore, the Board finds that for the period since May 19, 2021, the medical evidence satisfies the criteria for a 30 percent rating, and no higher, under DC 5261. Further, the medical evidence does not demonstrate that a compensable rating under DC 5260 is warranted since flexion is not shown to be limited to 45 degrees or less.

Regarding a rating for instability, the Board finds that the evidence does not indicate that a rating in excess of 20 percent is warranted for instability. The joint stability testing conducted during the July 2019 VA examination and May 2021 VA examination did not indicate any objective evidence of instability; however, all of the VA examiners noted that the Veteran had a history of left knee instability, and the July 2019 and May 2021 VA examiners characterized the history of left knee instability as slight. Although the May 2021 VA examiner noted that the Veteran did not require the use of an assistive device and the evidence does not indicate that such an assistive device has been prescribed, the July 2019 and August 2014 VA examiners noted the regular use of a brace or cane and the VA treatment records also demonstrate the regular use of a knee brace during routine medical care. Moreover, during the August 2014 VA examination, the Veteran complained of his knee giving out, including when climbing stairs. The Board notes that the holding in English v. Wilke, 30 Vet. App. 347 (2018), suggests that lay evidence of knee instability is generally competent. The Board finds that the Veteran's history of left knee instability is well documented in the medical evidence, and his continued left knee instability is supported by the regular use of a knee brace and cane as well as complaints of the knee giving out. The Board finds that the Veteran's complaints of instability do not warrant a rating in excess of 20 percent as the evidence does not demonstrate that the instability has been characterized by the objective medical findings as severe, as required under the code prior to February 7, 2021. Further, the evidence also does not demonstrate an unrepaired or failed repair of complete ligament tear causing persistent instability, and that a medical provider has also prescribed both an assistive device and bracing for ambulation, as required under the revised code. Thus, the Board finds that the Veteran's left knee instability is adequately contemplated by a 20 percent rating, and no higher, and a higher rating is therefore not warranted. 

Regarding a rating related to a meniscus condition, the Board notes that assigning separate ratings under DCs 5259 and 5260 or 5261 would not constitute pyramiding in the present case. 38 C.F.R. § 4.14. The Board notes that Veteran is presently assigned a 10 percent rating under DC 5259 for the period from May 19, 2021; however, the Board finds that the objective medical evidence demonstrates that a rating under DC 5259 is warranted throughout the period on appeal. Under governing case law and GC opinion, separate ratings when appropriate may be assigned for arthritis with compensable limitations of flexion and extension (or with painful, but less than compensable limited motion), subluxation or instability, and dislocated or symptomatic post-removal semilunar cartilage. See Lyles v. Shulkin, 29 Vet. App. 107 (2017); VAOPGCPREC 23-97; VAOPGCPREC 9-98; VAOPGCPREC 9-04. Further, DC 5258 provides that symptoms of a semilunar cartilage disability include frequent episodes of locking, pain, and effusion into the joint. The August 2014 VA examiner identified the Veteran's symptoms due to his meniscectomy as frequent episodes of effusion, and the May 2021 VA examiner identified the symptoms due to the meniscectomy as frequent episodes of joint pain and locking. As this locking, pain, and effusion did not result in an elevation of the evaluation under 38 C.F.R. §§ 4.40 and 4.45 pursuant to the principles set forth in DeLuca v. Brown, 8 Vet. App. 202 (1995), the Board finds that a 10 percent rating for removal of semilunar cartilage, symptomatic with frequent episodes of effusion, pain, and locking of the left knee is warranted throughout the entire period on appeal. In reaching this conclusion, the Board does not consider an evaluation under DC 5258 is appropriate, since that code contemplates the presence of dislocated cartilage, which is not shown here. 

Accordingly, resolving any remaining reasonable doubt in the Veteran's favor, the Board finds that the requirements for establishing a 10 percent rating for left knee meniscal tear with anterior cruciate ligament tear throughout the entire period on appeal are met, and that such a rating is warranted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, to this extent, the appeal is granted.

Accordingly, the Board finds that the preponderance of the evidence is against the claim of a rating in excess of 20 percent for the period prior to May 19, 2021, and a rating in excess of 30 percent for the period thereafter for status post left knee surgery with osteoarthritis with limited extension; a rating in excess of 20 percent for left knee instability; and, a rating in excess of a 10 percent for left knee meniscal tear with anterior cruciate ligament tear. Therefore, these appeals are denied.

Left Knee Scars

The Veteran is also seeking a compensable rating for scars associated with his left knee disability.

Disability ratings for scars are assigned under 38 C.F.R. § 4.118, DCs 7800-7804. As an initial matter, DC 7800 is not applicable, as the Veteran's scars are not to the head, face, or neck. Therefore, in order to warrant a compensable rating for scars not to the head, face or neck, the evidence must show:

	deep, nonlinear, and an area or areas of at least 6 sq. in. (39 sq. cm.) but less than 12 sq. in. (77 sq. cm.) (10 percent under DC 7801);

	superficial, linear, and an area of 144 sq. in. (929 sq. cm.) (10 percent under DC 7802);

	one or two scars in number that are unstable or painful (10 percent under DC 7804); or,

	if one or two scars are both unstable and painful, then a 20 percent rating is warranted under DC 7804, Note (2). 38 C.F.R. § 4.118.

The Board notes that 38 C.F.R. § 4.118 provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar.

Additionally, 38 C.F.R. § 4.118 was amended in August 2018, and the code prior to this amendment, which was in effect during part of the period on appeal, must also be considered. In order to warrant a rating or 10 percent or greater for scars not to the head, face or neck, under the prior codification of 38 C.F.R. § 4.118, the evidence must show a scar that is:

	deep, causes limited motion, and area or areas exceeding 6 sq. in. (39 sq. cm.) (10 percent under DC 7801);

	superficial, nonlinear, and area or areas of 144 sq. in. (929 sq. cm.) or greater (10 percent under DC 7802);

	superficial and unstable (10 percent under DC 7803);

	superficial and painful on examination (10 percent under DC 7804); or,

	three or four scars that are unstable or painful (20 percent under DC 7804). 38 C.F.R. § 4.118, DCs 7801-7804 (2008).

Based on the evidence of record, a compensable rating is not warranted for the Veteran's scars associated with his left knee disability. As discussed above, the results of the August 2014 and July 2019 VA examinations demonstrate that the Veteran does not have scars that are painful or unstable as required under DC 7803-4, nor do the Veteran's scars total an area greater than 6 sq. in. (39 sq. cm.) as required under DCs 7801-2. 

Thus, the Board finds that a compensable rating is not warranted under any diagnostic code for the Veteran's scars. 

 

 

L. Chu

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. Page-Nelson, 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.