Citation Nr: 21066232 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 09-14 012 DATE: October 29, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for right knee instability is denied. Entitlement to an initial rating in excess of 10 percent for right knee sprain status post arthroscopy is denied. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to April 6, 2017, is remanded. FINDINGS OF FACT 1. Prior to February 7, 2021, the Veteran's right knee was not manifested by instability. 2. Since February 7, 2021, the Veteran's incomplete ligament tear caused persistent instability, and a medical provider prescribed a brace and cane for ambulation. 3. The Veteran's right knee sprain status post arthroscopy is manifested by flexion limited to, at worst, 40 degrees and pain, and extension limited to, at worst, 0 degrees with pain. CONCLUSIONS OF LAW 1. Prior to February 7, 2021, the criteria for an initial rating in excess of 10 percent for right knee instability have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5257 (2020). 2. Since February 7, 2021, the criteria for an initial rating of 20 percent for right knee instability have been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5257 (2020). 3. The criteria for an initial rating in excess of 10 percent for right knee sprain status post arthroscopy have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.7, 4.14, 4.71a, Diagnostic Codes 5256, 5258-5263 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active air service from July 2005 to October 2006. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). In June 2011, the Veteran testified at a hearing before Veterans Law Judge (VLJ) Halsey, who is no longer employed at the Board. The Veteran opted for an additional hearing, which was conducted by the undersigned VLJ in November 2017. Transcripts of both hearings have been associated with the record. In September 2011, January 2018, March 2020, and March 2021, the Board remanded the claims for additional development. Increased Rating Right Knee The Veteran argues that the symptoms of his right knee disabilities are worse than contemplated by the currently assigned ratings. VA outpatient treatment reports reflect treatment for right knee complaints but no relevant clinical findings pertinent to rating the knee. During a VA examination in July 2007, the Veteran reported constant pain around the lateral aspect of the right patella and weakness and stiffness. The Veteran reported increased pain with standing or walking and fatigability and lack of endurance. The Veteran denied flare-ups of the right knee. He reported the use of a knee brace and cane for ambulation. There were no episodes of dislocation or recurrent subluxation. Range of motion testing of the right knee revealed flexion to 45 degrees and extension to 0 degrees. The examiner was unsure whether the Veteran put in maximum effort and noted that the Veteran was sitting on the chair with the knee flexed at 90 degrees. Range of motion was unchanged with repetitive motion. There was no objective evidence of painful motion, edema, effusion, instability, weakness, tenderness, redness, heat, abnormal movement, or guarding of movement. There was no ankylosis of the knee. The examiner assessed the Veteran with right knee strain. During a June 2009 VA examination, the Veteran reported pain and stiffness with occasional swelling, particularly in the morning. The Veteran reported flare-ups of the right knee with increasing movement and walking on uneven surfaces. The Veteran ambulated with a cane and a knee brace. The Veteran underwent arthroscopic surgery of the right knee in December 2005 for a lateral meniscal tear. He noted that the pain persisted despite the surgery. Clinical evaluation revealed that the Veteran kept his right knee straight and avoided bending his knee. There was no swelling or deformity of the knee. Range of motion testing revealed flexion to 40 degrees and extension to 0. Range of motion was unchanged with three repetitions. The Veteran reported pain with motion. There was no edema, effusion, or instability of the right knee. There was guarding of movement for flexion and extension. Joint stability testing was normal. The examiner assessed the Veteran with right knee injury status post laparoscopic lateral meniscus surgery and right knee sprain. During a July 2015 VA examination, the Veteran reported some degree of knee pain daily worse with cold weather and prolonged standing or sitting. He denied right knee flare-ups. The Veteran reported that he was unable to do a lot of squatting and climbing. Range of motion testing revealed that the Veteran self-limited knee flexion at 100 degrees of flexion due to pain in the knee and back. There was no change in range of motion with three repetitions. There was no objective evidence of pain with weight bearing, objective evidence of localized tenderness or pain on palpation of the knee, and no objective evidence of crepitus. There was no ankylosis of the right knee. There was no history of recurrent subluxation and no history of lateral instability. Joint stability testing was normal. The examiner noted that the Veteran had a meniscal tear. The examiner indicated that the Veteran ambulated with a cane for his back per Veteran's report. He displayed a slow, stiff legged gait with the right knee while leaning heavily on the cane. The examiner noted that X-rays obtained in 2014 and two magnetic resonance imaging (MRI) reports revealed a normal right knee. The examiner noted that the Veteran had excellent musculature of the right thigh and his muscular guarding and pain behaviors were out of line with the objective findings. The examiner indicated that recent clinical notes revealed that his gait was steady. The examiner indicated that there was very little objectively wrong with the knee. During a September 2019 VA examination, the Veteran reported sharp shooting pain under the kneecap and daily swelling. The Veteran described flare-ups of jabbing/sawing pain in the kneecap every other month lasting a week. The examiner indicated that he was unable to stand, run, work out, lift, or walk distances. Range of motion testing revealed flexion to 105 degrees and extension to 0 degrees. Pain was noted with flexion and there was no localized tenderness of pain of the right knee joint. There was evidence of pain with weightbearing and no objective evidence of crepitus. The Veteran was unable to perform three repetitions of motion due to fear of pain. The Veteran indicated that pain, weakness, and lack of endurance resulted from repeated use. The examiner did not specify any resulting loss of motion with repeated use. The examiner indicated that pain, weakness, and lack of endurance resulted in limited functional ability with flare-ups but there was no change in range of motion as the examination was being conducted during a flare-up. There was no history of recurrent subluxation or lateral instability but there was a history of recurrent effusion (daily swelling). Joint stability testing of the right knee was normal. The Veteran did not have recurrent patellar dislocation. The Veteran had a meniscal tear with frequent episodes of joint pain and frequent episodes of joint effusion. The Veteran underwent a partial right medial meniscectomy in November 2005 resulting in pain, stiffness, and limited mobility. The Veteran ambulated with the occasional use of a knee brace and constant use of a cane. X-rays and MRIs of the right knee were normal. There was objective evidence of pain on passive range of motion testing and when the joint was used in non-weight bearing. During a June 2021 VA examination, the Veteran reported pain in his right knee like someone is stabbing him behind the knee cap. He denied current treatment for the knee. He reported that his knee gives way when he stands without his cane or knee brace. The examiner noted that she was unable to conduct passive range of motion testing of the right knee due to discomfort if the knee was touched. The Veteran reported flare-ups with weather, sitting or standing for longer than five minutes, and walking further than 100 yards. The Veteran indicated that daily use caused his knee to flare up. He indicated that he was unable to tie his shoes, kneel, run or walk further than 100 yards after repeated use. He denied a history of frequent effusions. Range of motion testing revealed flexion to 45 degrees and extension to 0 degrees with pain. The examiner noted pain in active motion with no additional functional loss. There was no objective evidence of crepitus and mild tenderness to palpation of the right knee. The Veteran was able to perform three repetitions of motion with no additional loss of motion or function. The examiner estimated that flexion would be limited to 40 degrees with repeated use over time due to pain, fatigability, and weakness and flexion would be limited to 40 degrees during flare-ups due to pain and fatigability. The examiner indicated that there was no history of recurrent subluxation or persistent instability. The examiner reported that the Veteran had an incomplete/partial ligament tear, and the ligament tear was repaired and failed. He required a prescription for a knee brace. There was no recurrent patellar instability, and he has not undergone a surgical repair of the knee for patellar instability and has not been prescribed any assistive devices for patellar instability. The Veteran did not have any symptoms of a meniscal condition. The Veteran ambulated with the constant use of a brace and cane. As an initial matter, the Board notes that with respect to the 10 percent rating criteria under Diagnostic Code 5257 pertinent to rating recurrent subluxation or lateral instability, the Board observes that, effective February 7, 2021, such was amended. See 85 Fed. Reg. 76464 (November 30, 2020). 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. The Board must apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim pursuant to the former and revised regulations during the course of this appeal. See VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). The Board finds that the right knee instability does not warrant a higher rating pursuant to Diagnostic Code 5257 in effect prior to February 7, 2021. The Veteran has reported right knee instability when he does not use his knee brace. However, joint stability testing has been normal at all examinations of record. There was no evidence of recurrent subluxation of the right knee at any examination. Consequently, a higher rating is not warranted for instability of the right knee. Diagnostic Code 5257. 38 C.F.R. § 4.71a (2020). From February 7, 2021, the Board finds that the revised version of Diagnostic Code 5257 would allow for a 20 percent rating for the right knee. Although the Veteran did not undergo any procedures of the patellofemoral complex to allow for an increased rating for patellar instability under the revised regulations, he underwent a surgical repair for an incomplete/partial ligament tear, and the surgical repair failed. Additionally, he required a prescription for a knee brace. See 85 Fed. Reg. 76464 (November 30, 2020). In sum, the Board finds that a rating in excess of 10 percent is not warranted for instability of the right knee prior to February 7, 2021, and a 20 percent rating is warranted since that date. The Veteran has also been awarded a 10 percent rating for his right knee disability for limitation of flexion pursuant to Diagnostic Code 5260. 38 C.F.R. § 4.71a (2020). However, there is no evidence of record showing the Veteran to have flexion limited to 30 degrees or less at any time. In fact, flexion is limited to, at worst, 40 degrees. Diagnostic Code 5260. 38 C.F.R. § 4.71a (2020). With regard to extension, there is no evidence of record showing the Veteran to have extension limited to 15 degrees or more at any time to allow for separate compensable rating for limitation of extension of the right knee. Extension has been full at 0 degrees at all examinations of record. Diagnostic Code 5261. 38 C.F.R. § 4.71a (2020). In terms of functional loss, although the Veteran has reported knee pain, such pain is not productive of symptoms that meet or are analogous to the criteria for higher ratings for limitation of motion. Therefore, a rating in excess of 10 percent for the right knee disability is not warranted. 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261 (2020). Furthermore, the additional limitation that the Veteran experiences due to pain, weakness, fatigability, lack of endurance, or incoordination on repetition was accounted for by the VA examiners when determining the Veteran's range of motion and was further considered by the Board. 38 C.F.R. § 4.40, 4.45 (2020). Thus, the preponderance of the evidence is against a finding that the Veteran had more limitation of motion in right knee than that found at his VA examinations. With consideration of all pertinent disability factors, there remains no appropriate basis for assigning schedular ratings in excess of 10 percent for functional impairment of the right knee disability. Consideration has also been given to assigning separate ratings for the right knee based on cartilage dislocation or removal. Although he underwent a partial meniscectomy of the right knee in 2005, there is no indication from the record that the Veteran has frequent episodes of locking, pain, and effusion into his right knee. Further, there is no indication that the Veteran has symptoms of the meniscus injury other than painful motion. The Board notes that the Veteran is already in receipt of a 10 percent rating for his right knee based on limited flexion with painful motion, so using pain to support an additional rating for the right knee under another diagnostic code would be in violation of 38 C.F.R. § 4.14 (2020). As such, a separate rating is not warranted for a disability involving the meniscus of the right knee at this time. 38 C.F.R. § 4.71a, Diagnostic Codes 5258, 5259 (2020). Consideration has also been given to assigning higher ratings under other diagnostic codes that pertain to the knees. However, there is no evidence of record showing the Veteran to have ankylosis of the right knee; tibia or fibula impairment in the right leg; or genu recurvatum of the right knee. As such, higher ratings are not warranted for the right knee under another diagnostic code and the Veteran is appropriately rated based on painful motion. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5262, 5263 (2020). Accordingly, the Board finds that a preponderance of the evidence is against the claim and entitlement to a rating in excess of 10 percent for right knee sprain status post arthroscopy is not warranted. 38 U.S.C. § 5107(b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND A review of the claims file reveals that a remand is unfortunately once again necessary before a decision on the merits of the remaining claim can be reached. Regarding the claim of entitlement to a TDIU, in March 2020 and March 2021, the Board remanded the issue, in part, to obtain information regarding the Veteran's employment and income. The Board directed the Agency of Original Jurisdiction (AOJ) to obtain income from the Social Security Administration (SSA) or appropriate agency from 2006 to 2017. Review of the record indicates that the AOJ requested medical records from SSA but has thus far still not requested any wage data. Therefore, a remand is necessary to ensure compliance with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Of note, in an April 2020 rating decision, the AOJ discontinued the Veteran's TDIU benefits. The Veteran has not disagreed with that decision; however, the period prior to April 6, 2017, remains on appeal. The matter is REMANDED for the following action: 1. Make all necessary attempts to obtain the Veteran's income information from the SSA or other appropriate agency from 2006 to 2017. Document all attempts and any SSA responses. 2. Then, readjudicate the issue remaining on appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Cryan, 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.