Citation Nr: 21066412
Decision Date: 10/29/21	Archive Date: 10/29/21

DOCKET NO. 10-47 860
DATE: October 29, 2021

ORDER

Prior to December 3, 2020, an initial disability rating in excess of 10 percent for left knee limited flexion is denied.

From December 3, 2020, an increased disability rating in excess of 30 percent for left knee limited extension is denied.

An initial disability rating of 30 percent for left knee instability is granted.

From January 8, 2016, an initial disability rating of 10 percent for removal of semilunar cartilage with symptomatic residuals is granted.

REMANDED

Entitlement to a total disability rating based on individual unemployability is remanded. 

FINDINGS OF FACT

1. Prior to December 3, 2020, the Veteran's left knee disability did not exhibit limited flexion of 30 degrees or less, nor did it exhibit limited extension of 15 degrees or more.

2. From December 3, 2020, the Veteran's left knee disability did not exhibit limited flexion of 45 degrees or less, nor did it exhibit limited extension of 30 degrees or more. 

3. The Veteran's left knee exhibited severe instability during the entire appeal period. 

4. From January 8, 2016, the Veteran experienced removal of semilunar cartilage from his left knee with symptomatic residuals.

CONCLUSIONS OF LAW

1. Prior to December 3, 2020, the criteria for a rating in excess of 10 percent for left knee disability on the basis of limited flexion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5024-5260, 5204-5261.

2. From December 3, 2020, the criteria for a rating in excess of 30 percent for left knee disability on the basis of limited extension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5024-5260, 5204-5261

3. The criteria for an initial disability rating of 30 percent for left knee disability on the basis of instability have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257.

4. From January 8, 2016, the criteria for an initial rating of 10 percent for removal of semilunar cartilage from the left knee with symptomatic residuals have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5259.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Marine Corps from June 1979 until his honorable discharge in September 1979.

This appeal is being treated expeditiously on the Board of Veterans' Appeals' (Board) docket pursuant to 38 U.S.C. §§ 5109B, 7112 and 38 C.F.R. § 20.902(d).

This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision by a Regional Office of the United States Department of Veterans Affairs (VA).

In February 2016, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. 

By way of background, a VA Regional Office granted service connection for left anterior cruciate ligament (ACL) tear and assigned a 10 percent initial disability rating effective July 20, 2009, which the VA Regional Office rated under 38 C.F.R. § 4.71a, Diagnostic Code 5024-5260 (limitation of flexion). In an August 6, 2015, rating decision, a VA Regional Office assigned a separate initial disability rating for left knee instability with an effective date of July 20, 2009, which the VA Regional Office rated under 38 C.F.R. § 4.71a, Diagnostic Code 5257 (recurrent subluxation or lateral instability). On January 8, 2016, the Veteran underwent a left knee arthroscopy with partial lateral meniscectomy and lateral release. The VA Regional Office assigned him a temporary 100 percent disability from January 1, 2016, to February 29, 2016, for his ACL tear (limited flexion) and returned him to his 10 percent disability rating as of March 1, 2016. 

In an August 2017 decision, the Board denied increased ratings for ACL tear (limited flexion) and ACL tear (instability). The Veteran appealed the decision denying an increased rating for ACL tear (limited flexion) to the United States Court of Appeals for Veterans Claims (Court). The parties submitted a Joint Motion for Partial Remand stipulating that the Board relied on an inadequate August 2016 VA examination and provided inadequate reasons for denying disability ratings under either Diagnostic Codes 5258 or 5259. On remand from the Court, the Board remanded the case to the VA Regional Office on three separate occasions: August 2018, May 2020, and most recently July 2021. In a January 2021, rating decision, a VA Regional Office assigned the Veteran a 30 percent disability rating for ACL tear (limited extension) effective December 3, 2020, and reduced his rating for ACL tear (limited flexion) to 0 percent. The Board finds that substantial compliance has occurred with the Board's remand directives. 

	Evidentiary Standards	

In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. VA is required to give due consideration to all pertinent medical and lay evidence when rating disabilities. 

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 C.F.R. § 4.3. To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996).

An initial rating is one assigned at the time service-connection is granted. Generally, the effective date of an initial rating is the date of receipt of the claim or request or the date entitlement arose, whichever is later. 38 U.S.C.§ 5110(a); 38 C.F.R. § 3.400(o)(1); see Sutton v. Nicholson, 20 Vet. App. 419, 422 (2006). When an initial rating decision is on appeal, evidence contemporaneous with the claim and with the initial rating decision granting service connection would be most probative of the degree of disability existing at those times and should be the evidence used to decide whether an original rating was erroneous. Fenderson v. West, 12 Vet. App. 119, 126 (1999).

Separate ratings can be assigned for separate periods of time based on the facts founda practice known as "staged" ratings. Id. at 126. A staged rating is a rating that looks backwards and retroactively assigns specific ratings to discrete periods. See Reizenstein v. Shinseki, 583 F.3d 1331, 1337 (Fed. Cir. 2009). This practice accounts "for the possible dynamic nature of a disability while the claim works its way through the adjudication process." O'Connell v. Nicholson, 21 Vet. App. 89, 93 (2007); see also 38 C.F.R. § 4.1. The effective date for a staged rating is when it is factually ascertainable that a particular rating is warranted. Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). In cases where staged ratings are appropriate, it is necessary to consider all "the evidence of record from the time of the veteran's application." Fenderson, 12 Vet. App. at 127.

The law requires the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 12829 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claims.

Increased Ratings 

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 

Diagnostic codes are assigned to individual disabilities. Diagnostic codes provide rating criteria specific to a particular disability. If two diagnostic codes are applicable to the same disability, the diagnostic code that allows for the higher disability rating applies. 38 C.F.R. § 4.7. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Id.

Rating the Knee

Separate ratings can be assigned for knee disabilities when none of the symptomatology overlaps and the separate rating is based on additional disabling symptomatology. See VAOPGCPREC 23-97, 62 Fed. Reg. 63,603 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,703 (1998); VAOPGCPREC 9-2004; 69 Fed. Reg. 59,988 (2004); Lyles v. Shulkin, 29 Vet. App. 107 (2017).VAOPGCPREC 9-2004. VA General Counsel precedential opinions are binding on the Board. 38 U.S.C. § 7104(c); 38 C.F.R. § 14.507. 

1. Prior to December 3, 2020, an initial disability rating in excess of 10 percent for left knee limited flexion is denied.

2. From December 3, 2020, an increased disability rating in excess of 30 percent for left knee limited extension is denied.

The Board addresses the claims for increased ratings related to left knee limited flexion and extension together as the facts and legal analyses are intertwined. The Veteran's left ACL tear has been continuously rated under 38 C.F.R. § 4.71a, Diagnostic Code 5024 (tenosynovitis), which instructs adjudicators to rate on the basis of limitation of motion, as generative arthritis. Degenerative arthritis is rated under 38 C.F.R. § 4.71a, DC 5003, which provides:

	Rating (%)

Arthritis, degenerative (hypertrophic or osteoarthritis):	

Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (DC 5200 etc.). When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 [percent] is for application for each such 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. In the absence of limitation of motion, rate as below:	

With X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations	20

With X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups	10

Note (1): The 20 [percent] and 10 [percent] ratings based on X-ray findings, above, will not be combined with ratings based on limitation of motion.	

Note (2): The 20 [percent] and 10 [percent] ratings based on X-ray findings, above, will not be utilized in rating conditions listed under diagnostic codes 5013 to 5024, inclusive.	

For the purpose of rating disability from arthritis, "major joints" include the shoulder, elbow, wrist, hip, knee, and ankle. 38 C.F.R. § 4.45(f). "Minor joints" include "multiple involvements of the interphalangeal, metacarpal and carpal joints of the upper extremities, the interphalangeal, metatarsal and tarsal joints of the lower extremities, the cervical vertebrae, the dorsal vertebrae, and the lumbar vertebrae." Id.

Two diagnostic codes relate to the knee's ability to bend (flex and extend): 38 C.F.R. § 4.71a, Diagnostic Codes 5260 (limited flexion) and DC 5261 (limited extension). Diagnostic Code 5260 provides:

	Rating (%)

Leg, limitation of flexion of:	

Flexion limited to 15°	30

Flexion limited to 30°	20

Flexion limited to 45°	10

Flexion limited to 60°	0

Diagnostic Code 5261 provides:

	Rating (%)

Leg, limitation of extension of:	

Extension limited to 45°	50

Extension limited to 30°	40

Extension limited to 20°	30

Extension limited to 15°	20

Extension limited to 10°	10

Extension limited to 5°	0

The normal range of motion of the knee is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II.

In addition, when VA evaluates musculoskeletal disabilities under the Rating Schedule, it must determine whether or not the factors listed in 38 C.F.R. §§ 4.40, 4.45, and 4.59 are properly accounted for within the applicable diagnostic criteria. 

Under section 4.40, VA must consider whether there is evidence of functional loss due to pain on movement and diminished excursion, strength, speed, coordination, and endurance, to include during flare-ups or after repetitive use. 38 C.F.R. § 4.40; Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2001). Pain on movement, standing alone, is not sufficient to warrant a higher rating under section 4.40. Id. (reaffirming that pain must affect some aspect of "the normal working movements of the body . . . in order to constitute functional loss"). 

Section 4.45 expands upon the concept of functional loss, noting six factors that  VA must consider when evaluating a disability, namely: (1) less or (2) more movement than is normal; (3) weakened movement; (4) excess fatigability; (5) incoordination; and (6) pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing, to include during flare-ups or after repetitive use. 38 C.F.R. § 4.45. Noticeably, the aspects of functional loss listed in section 4.40 closely parallel the factors listed in section 4.45. Section 4.45 applies to muscles, nerves, as well as the entire musculoskeletal system. DeLuca v. Brown, 8 Vet. App. 202, 207 (1995).

Under section 4.59, a veteran may be awarded the minimum compensable evaluation available under a given musculoskeletal diagnostic code, even if application of that code would not support a compensable evaluation, where there is evidence of "actually painful, unstable, or malaligned joints." 38 C.F.R. § 4.59; Petitti v. McDonald, 27 Vet. App. 415, 427 (2015). Section 4.59 does not require medical evidence; it may be satisfied with lay and other non-medical evidence. Id. at 428. Thus, pain alone is compensable under section 4.59 for joint disabilities in general. Burton v. Shinseki, 25 Vet. App. 1, 5 (2011).

Prior to December 3, 2020

Prior to December 3, 2020, the Veteran's left knee ACL tear was rated under 38 C.F.R. § Diagnostic Code 5024-5260. A hyphenated diagnostic code is used when a rating under one code requires use of an additional code to identify the basis for the rating assigned. The additional code is shown after the hyphen. The hyphenated code in this case indicates that tenosynovitis, Diagnostic Code 5024, is the service-connected disability, and the residual condition to which it rated by analogy is limitation of flexion of the left knee, 38 C.F.R. § 4.71a, Diagnostic Code 5260. It is important to note, due Diagnostic Code 5024's instruction to rate based on limited motion, in the absence of compensable limitation as to either flexion or extension, an adjudicator must determine whether the Veteran is nonetheless entitled to compensable disability rating under 38 C.F.R. § 4.59. 

Prior to December 3, 2020, the Veteran's left knee did not display flexion limited to 30 degrees or less. Nor did his left knee exhibit extension limited to 15 degrees or more. There are multiple relevant medical records within the Veteran's claims file. During a January 2010 VA examination, the examiner documented left knee limited flexion to "about" 100 degrees. The Veteran exhibited limited extension of 5 degrees. Yet, the examiner also documented left knee flexion of 130 degrees and no limited extension. It is unclear to the Board how the testing was completed, such as active or passive testing. In addition, the examiner stated it would be speculative to offer additional estimations of loss of range of motion based on repetitive use or during flare-ups. The Board recognizes this examination is in adequate to rely on solely. But it still has some probative value in relation to the range-of-motion results provided. Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) ("[E]ven if a medical opinion is inadequate to decide a claim, it does not necessarily follow that the opinion is entitled to absolutely no probative weight."). Even if the Board affords the Veteran the benefit of the doubt, the most favorable range-of-motion test results do not meet the 20 percent rating criteria for flexion or extension. See 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261.

He received another VA examination in December 2011. At that time, the examiner documented flexion limited to 90 degrees and no limitation of extension. Following repetitive-use testing, there was no further limitation in flexion or extension. During the examination, the Veteran reported flare-ups, but the examiner did not offer an estimation as to additional loss of range of motion. Again, the Board recognizes this examination is in adequate to rely on solely. But it still has some probative value in relation to the range-of-motion results provided. Monzingo, 26 Vet. App. at 107. These examination results did not meet the 20 percent rating criteria for either flexion or extension. See 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261.

The Veteran's VA medical records document that his left knee displayed flexion to 110 degrees in May 2015 and no limitation of extension. May 2015 VA Physical Therapy Consult. According to his 2016 VA medical records, during 2016, his left knee flexion was limited between 100 and 120 degrees, and there was no limitation of extension. See, e.g., January 2016 VA Surgery H & P Note; April 2016 VA Physical Therapy Initial Evaluation Note; June 2016 VA Physical Therapy Outpatient Note; July 2016 VA Addendum Note. The Board finds these documentations of the Veteran's left knee ranges of motion credible and probative. None of the results met the criteria for a 20 percent disability rating under limitation of flexion or extension. See 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261.

The Veteran received a VA examination in August 2016. At that time, the examiner documented flexion limited to 120 degrees and no limitation of extension. There was no additional loss of range of motion after three repetitions. The examiner was unable to state without mere speculation whether the Veteran would suffer additional loss of range of motion after repetitive use over time because there was "no objective evidence." This explanation was inadequate as objective evidence is not a requirement to offer such an opinion. Again, the Board recognizes this examination is in adequate to rely on solely. But it still has some probative value in relation to the range-of-motion results provided. Monzingo, 26 Vet. App. at 107. These examination results did not meet the 20 percent rating criteria for either flexion or extension. See 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261.

As part of the Board's July 2021 remand order, it requested the VA Regional Office obtain a retrospective opinion of the Veteran's left knee disability due to the inadequacies of the January 2010, December 2011, and August 2016 examinations as well as an August 2019 VA examiner's opinion that he was unable to test the Veteran's left knee range of motion out of safety to the Veteran. An August 2021 VA-contracted examiner opined, 

Based on a review of the veteran's testimony/lay statements, the medical records, available medical knowledge and expertise, and all procurable information taken into consideration, a reply would be based on mere speculation. The medical community at large is unable to quantify for there are too many contributing factors that need to be taken into consideration. The loss in [range of motion] will depend on the activity and severity of pain experienced at the time. Additional loss in [range of motion] could be expected during repeated use over time and during flare-ups.

Even though the examiner opined that additional loss "could be expected" and did not offer estimated range-of-motion results, the Board finds that the examiner was unable to offer such an opinion based on the knowledge among the medical community at large rather than the examiner's own limitations. The opinion is not speculative; it simply is a statement that an opinion as to the limitation of the Veteran's left knee range of motion extending back to 2009 or earlier would be speculative based on the current record and medical knowledge held by the community at large about the numerous factors, which are not available, that must be considered when rendering such an opinion. The opinion is not based on the examiner's lack of knowledge. The Board finds the opinion is adequate. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010) (noting that a speculative medical opinion is not per se inadequate, but the examiner must provide a basis for that determination and the phrase "without resort to speculation" should reflect the limitations of the medical community at large and not those of a particular examiner/reviewer). Such a finding "is a medical conclusion just as much as a firm diagnosis or a conclusive opinion," and an examiner is not required "to render an opinion beyond what may reasonably be concluded from the procurable medical evidence." Id. at 39091.

Based on the foregoing evidence, and resolving reasonable doubt in the Veteran's favor, the Board finds that prior to December 3, 2020, the Veteran's left knee was limited in flexion to at most 90 degrees, and his left knee was limited in extension to at most 5 degrees. The Board emphasizes that these conclusions are not based on any single range-of-motion measurement. Rather, the Board has considered the evidence as a whole and finds that the provided range-of-motion measurements, which are all credible and probative, demonstrate relatively consistent results. No one measurement is an outlier compared to any other measurement respective of flexion and extension, which lends credibility to the test results as a whole. Consequently, prior to December 3, 2020, the Veteran's left knee did not exhibit flexion limited to 30 degrees or extension limited to 15 degrees. Therefore, an increased disability rating of 20 percent or higher is not warranted prior to December 3, 2020. 38 C.F.R. § 4.71a, Diagnostic Codes 5024-5260, 5024-5261.

The Board notes that prior to December 3, 2020, the Veteran's left knee did not exhibit limited flexion or extension consistent with a 10 percent disability rating under Diagnostic Codes 5260 or 5261, respectively. He was assigned a 10 percent disability rating under 38 C.F.R. § 4.59 for his pain that resulted in functional loss of his left knee, under limitation of flexion, Diagnostic Code 5260. He is not entitled to an additional 10 percent rating under Diagnostic Code 5261 for pain associated with functional loss in extension because to do so would constitute pyramiding. VA regulation 38 C.F.R. § 4.14 prohibits duplicate compensation for the same manifestation (i.e., symptom) of disability under different diagnoses, known as "pyramiding." See generally Boggs v. Peake, 520 F.3d 1330, 1337 (Fed. Cir. 2008) ("[A] veteran cannot be compensated more than once for the same disability."). "[T]he key consideration in determining whether rating under more than one [diagnostic code] is in order is whether the ratings under different [diagnostic codes] would be based on the same manifestation of disability or whether none of the symptomatology upon which the separate ratings would be based is duplicative or overlapping." VAOPGCPREC 9-2004. Here, the Veteran's left knee pain resulting in functional limitation is not discretely attributable to both limitation of flexion and extension. Therefore, compensating him for the same symptom twice under two different codes would be pyramiding. 

From December 3, 2020

On December 3, 2020, the Veteran received a VA-contracted examination. The examiner documented that the Veteran's left knee flexion was limited to 80 degrees and his extension was limited to 20 degrees. Following repetitive use, his flexion was limited to 70 degrees and his extension remained at 20 degrees. The examiner endorsed that this testing was consistent with the Veteran's statements as to repetitive use of his left knee over time and during flare-ups. Absent evidence to the contrary, the Board finds the examiner was competent to exam and diagnose the Veteran and to provide medical judgments related to the Veteran's left knee. Cox v. Nicholson, 20 Vet. App. 563, 569 (2007) (the competency of medical professionals is presumed absent evidence to the contrary). The Board finds the medical findings and medical opinions are credible and probative. The medical professional conducted a thorough examination, relied on accurate facts, considered the Veteran's relevant medical records, medical history, and lay statements, and provided well-reasoned medical judgments.

Based on this examination, the VA Regional Office assigned the Veteran an increased disability rating of 30 percent under Diagnostic Code 5621 as the Veteran's left knee extension was limited to 20 degrees. In doing so, the VA Regional Office reduced the Veteran's left knee flexion disability rating to 0 percent because had it kept the 10 percent rating that would have constituted pyramiding. 38 C.F.R. § 4.14. The Veteran's left knee pain and functional loss manifested as compensable limited extension, rather than limited flexion, as of December 3, 2020. 

The Board finds no evidence that the Veteran's left knee exhibited limited extension of 30 degrees or more. 38 C.F.R. § 4.71a, Diagnostic Code 5261 (40 and 50 percent rating criteria). In addition, the Board finds no evidence that the Veteran's left knee exhibited limited flexion of at least 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260 (10 percent rating criteria). In order to receive a separate compensable disability rating under Diagnostic Code 5260 (limited flexion), the Veteran's left knee must exhibit limited flexion of at least 45 degrees, and it has not. Diagnostic Code 5260 does not provide for a rating higher than 30 percent. Accordingly, a disability rating in excess of 30 percent from December 3, 2020, for left knee ACL tear marked by limited extension is not warranted. Moreover, a separate disability rating for limited flexion of the left knee is not warranted due to the rule against pyramiding.  

3. An initial disability rating of 30 percent for left knee instability is granted.

Although the Veteran did not appeal the Board's January 2020 decision denying an increased disability rating of 10 percent for left knee instability to the Court, the Board finds the issue is part of the Veteran's claim for increased ratings for his left knee and, thus, is part of his appeal. Morgan v. Wilkie, 31 Vet. App. 162 (2019) (VA has a duty to maximize benefits and is required to address the reasonably raised issues). 

The Veteran received a 10 percent disability rating for left knee instability under 38 C.F.R. § 4.71a, Diagnostic Code 5257. Prior to February 7, 2021, Diagnostic Code 5257 provided as follows:

	Rating (%)

Knee, other impairment of:	

Recurrent subluxation or lateral instability:	

Severe	30

Moderate	20

Slight	10

VA regulations did not define the terms "slight," "moderate," or "severe."  Absent an express definition, it is presumed that VA regulations employ words using their ordinary dictionary meanings at the time the regulations were promulgated. See Nielson v. Shinseki, 607 F.3d 802, 80506 (Fed. Cir. 2010).

"Slight," as an adjective, is defined as "small of its kind or in amount." Slight, Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/slight, Definition 2, (last visited Oct. 16, 2021).

"Moderate," as an adjective, is defined as "not violent, severe, or intense"; "limited in scope or effect." Moderate, Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/moderate, Definitions 3 and 5 (last visited Oct. 16, 2021).

"Severe," as an adjective, is defined as "causing discomfort or hardship"; "very painful or harmful"; "of a great degree." Severe, Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/severe, Definitions 6a, 6b, and 8 (last visited Oct. 16, 2021).

Using the above definitions as guidance, the Board must arrive at an equitable and just decision based on an evaluation of all relevant evidence. 38 C.F.R. §§ 4.2, 4.6.

It should also be noted that use of terminology such as "slight," "moderate," and "severe" by VA examiners or other physicians, although an element of evidence to be considered by the Board, is not dispositive of an issue. In addition, objective evidence is not required to assign a disability rating under Diagnostic Code 5257. See English v. Wilkie, 30 Vet. App. 347, 353 (2018) ("[N]othing in Diagnostic Code 5257 provides that objective medical evidence is required or is to be favored over lay evidence . . . . '[I]t certainly does not, by its terms, restrict evidence to "objective" evidence.'" (quoting Petitti, 27 Vet. App. at 427 )).

VA amended numerous diagnostic codes, including 5257, as of February 7, 2021. Because the Veteran's appeal was pending prior to these amendments, the Board is required to analyze his claim under both versions of 38 C.F.R. § 4.71a, Diagnostic Code 5257, and whichever criteria is more favorable to the Veteran will be applied. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (discussing the effect of changes in law or regulation during the pendency of an appeal).

Diagnostic Code 5257, effective February 7, 2021, now provides:

	Rating (%)

Knee, other impairment of:	

Recurrent subluxation or lateral instability:	

Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. 	30

One of the following:	20

(a)	Sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation.	

(b)	Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation.	

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.	10

Patellar instability:	 	

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.	30

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.	20

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.	10

Note (1): For patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon.

Note (2): 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).

On review of the evidence, the Board finds that the Veteran's left knee instability manifested as "severe" as of July 20, 2009. First, May 2009 VA medical records documented that the Veteran reported not being able to bend, squat, kneel, or climb due to his left knee. The Veteran used a mobile scooter for primary mobility. During his January 2010 VA examination, he reported that his knee gave out on him. He reported that he needed a brace to ambulate, otherwise his knee would likely give out. During his December 2011 examination, the examiner documented instability of station. In March 2015, he reported he suffered frequent falls due to his left knee giving out. In a May 2015 VA Orthopedic Surgery Outpatient Consult, an attending physician documented patellar subluxation of 50 percent. The Veteran reported feeling his patella slip sometimes and get "stuck out of place." He reported the knee gave out occasionally. He needed to wear a brace constantly, use a cane to walk short distances, and use a mobilized scooter for long distances. In a May 2015 VA Physical Therapy Note, the therapist documented that the Veteran could not walk more than five feet on his own and was very unstable. Similar instability symptoms were also documented in July 2015, January 2016, June 2016, and July 2016 VA Physical Therapy Notes. In a December 2020 VA-contracted examination, the examiner documented the Veteran's report of chronic moderately severe left knee instability, which caused the Veteran's knee to give out randomly. 

Viewing the evidence as a whole, the Board concludes the Veteran's left knee instability manifested as severe as of July 20, 2009. Of significance to the Board is the fact that the Veteran needed a mobilized scooter to go long distances, a cane to walk short distances, and regularly required use of a brace to stabilize his left knee. He credibly testified at his February 2016 Board hearing that he has fallen multiple times due to his knee giving out. The Board finds the pain associated with his instability and subluxation of his left knee is severe. The frequency at which this occurs is random, which means the Veteran must be careful not overexert himself for fear of having his knee give out at any moment.

Accordingly, the Board finds the Veteran is entitled to a 30 percent initial disability rating for left knee instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (effective prior to February 7, 2021). As a 30 percent disability rating is the highest rating available under the rating criteria in effect prior to February 7, 2021, and as of February 7, 2021, the Board finds it is unnecessary to evaluate whether the Veteran would benefit from application of the new rating criteria.  

4. From January 8, 2016, an initial disability rating of 10 percent for removal of semilunar cartilage with symptomatic residuals is granted.

At his February 2016 Board hearing, the Veteran's representative requested the Board evaluate whether the Veteran was entitled to a disability rating under 38 C.F.R. § 4.71a, Diagnostic Codes 5258 and 5259. The parties also stipulated the Board should consider such ratings within their Joint Motion for Partial Remand filed at the Court. 38 C.F.R. § 4.71a does not prohibit a separate evaluation under Diagnostic Codes 5257, 5260, 5261, or a meniscal diagnostic code (5258 and 5259). Lyles, 29 Vet. App. 107. 

The criteria for a 20 percent disability rating for semilunar dislocated cartilage under Diagnostic Code 5258 requires "frequent episodes of 'locking,' pain, and effusion into the joint." 38 C.F.R. § 4.71a, Diagnostic Code 5258 (emphasis added). A 20 percent disability rating is the only rating available under Diagnostic Code 5258. See id. When criteria are enumerated within a disability rating and are connected by the word "and," all of the requirements for that particular rating must be demonstrated. See Heuer v. Brown, 7 Vet. App. 379, 385 (1995) (holding that criteria expressed in the conjunctive are connected by "and"). Thus, the use of the word "and" in Diagnostic Code 5258 signifies that frequent episodes of locking, pain, and effusion must be present to establish entitlement of a 20 percent disability rating for semilunar dislocated cartilage. 

The Board has searched the record and finds no evidence that indicates, or reasonably suggests, that the Veteran experienced "locking" of his left knee. And to the extent that any reasonable person could conclude the Veteran experienced symptoms similar to locking, the Board finds such symptoms were not "frequent" as there is no evidence indicating such. Thus, while pain and effusion were present during the claim period at various points, frequent episodes of "locking" were not and the criteria for a compensable rating under Diagnostic Code 5258 are not met.

Diagnostic Code 5259 provides only a 10 percent disability rating for removal of semilunar cartilage from the knee with symptomatic residuals. 38 C.F.R. § 4.71a, Diagnostic Code 5259. The Veteran underwent surgical meniscectomy on January 8, 2016. That surgery involved removal of semilunar cartilage. See Meniscectomy for a Meniscus Tear, University of Michigan Health, https://www.uofmhealth.org/health-library/uh2055 (last visited Oct. 16, 2021). The Board finds the evidence clearly establishes entitlement to a 10 percent disability rating under Diagnostic Code 5259 as of January 8, 2016. The Board notes that Diagnostic Code 5259 does not share any symptoms already accounted for by another diagnostic code under which the Veteran is currently rated. Instead, it merely requires that residuals be "symptomatic." The Board finds that the Veteran's symptom of reduced left knee strength and altered gait is not accounted for by other diagnostic codes under which his left knee disability is rated. Therefore, pyramiding is avoided. 38 C.F.R. § 4.14. 

REASONS FOR REMAND

5. Entitlement to a total disability rating based on individual unemployability.

A request for total disability evaluation based on individual unemployability (TDIU) is "part and parcel" of a claim for an increased disability rating and is not a separate freestanding claim itself but rather an alternate way to obtain a total disability rating without being rated 100 percent disabled under the Rating Schedule. Rice v. Shinseki, 22 Vet. App. 447, 45355 (2009) (TDIU is implicitly raised whenever a veteran, who presents cogent evidence of unemployability, seeks to obtain a higher disability rating).

In this case, the Veteran sought an increased initial disability rating for his service-connected left knee disability and has presented evidence of unemployability. During his December 2020 VA-contracted examination, the Veteran reported that he was unemployed, which is in part due to his bilateral knee disabilities. There is also evidence that his left knee disability prevented employment since 2009. Therefore, whether the Veteran is entitled to an award of TDIU is properly considered part of his pending claims. See Rice, 22 Vet. App. at 45455. 

TDIU may be awarded on a schedular basis under 38 C.F.R. § 4.16(a) or an extraschedular basis under 38 C.F.R. § 4.16(b). When a "rating board" determines that a veteran is unemployable due to his or her service-connected disabilities, but the veteran fails to meet the schedular rating criteria listed in 38 C.F.R. § 4.16(a), the rating board is required to refer the matter to the Director of Compensation and Pension Services for extraschedular consideration. 38 C.F.R. § 4.16(b). The "rating board" includes the Board of Veterans' Appeals. Wages v. McDonald, 27 Vet. App. 233, 236 (2015) (citation omitted). 

"[T]he initial extraschedular referral decision under [section] 4.16(b) addresses whether there is sufficient evidence to substantiate a reasonable possibility that a veteran is [unable to secure and follow a substantially gainful occupation] by reason of his or her service-connected disabilities." Ray v. Wilkie, 31 Vet. App. 58, 66 (2019); see Wages, Vet. App. at 236. Whether "the evidence nevertheless shows that a veteran is [unable to secure and follow a substantially gainful occupation] by reason of his or her service-connected disabilities" is the question to answer in the adjudication stage of assigning an extraschedular disability rating. Ray, 31 Vet. App. at 66. 

In this case, the Board finds the severity of the Veteran's left knee disability reasonably raised the possibility that he was unemployable due to the disability, particularly his instability. The examinations he received addressing the severity of his left knee disability during the claim period have routinely documented significant effects on the Veteran's ability to secure and maintain employment. Therefore, the Board remands the claim for entitlement to TDIU for referral to the Director of Compensation Service for extraschedular consideration, as well as schedular consideration as appropriate, and then adjudication under 38 C.F.R. § 4.16(a), (b).

Accordingly, the matter is REMANDED for the following actions:

1. Obtain any of the Veteran's outstanding VA medical records and associate them with the claims file.

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2. Provide the Veteran with a notice regarding what is necessary to substantiate a claim for entitlement to a total disability rating based on individual unemployability (TDIU) and request that he complete and return a formal application for entitlement to TDIU and an authorization to obtain information from his previous employers. If the Veteran returns any form which is incomplete or contains insufficient information, he must be informed of such and be given the opportunity to provide a complete one. The VA Regional Office should take any additional, reasonable, and necessary developmental action.

3. Refer the claim of TDIU to the Director, Compensation Service, for extraschedular consideration per 38 C.F.R. § 4.16(b) as to whether his service-connected disabilities preclude him from securing and maintaining substantially gainful employment as of July 20, 2009.

 

 

M. Tenner

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J. F. Sawka, 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.