Citation Nr: 21066553 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 06-37 226 DATE: November 1, 2021 ORDER A rating in excess of 20 percent for right knee degenerative joint disease (right knee disability) is denied. A separate 10 percent rating, but no higher, for right knee limitation of flexion, is granted. A separate 20 percent rating, but no higher, for right knee instability, is granted. REMANDED A rating higher than 10 percent for residuals of compound fracture, midshaft of the right tibia and fibula (right tibia and fibula disability) is remanded. A rating higher than 20 percent for residuals of comminuted fracture of the left tibia and fibula (left tibia and fibula disability) is remanded. FINDINGS OF FACT 1. The Veteran's right knee disability is assigned the maximum schedular rating for right knee cartilage dislocation with locking, pain, and effusion. 2. The Veteran experienced right knee limitation of flexion with painful motion, at most, to 45 degrees even when considering flare ups, pain, and functional impairments; right knee extension was normal (0 degrees) even when considering flare-ups, pain, and functional impairments. 3. The Veteran experiences, at most, moderate right knee instability; he uses a knee brace, but has not been prescribed an assistive device for ambulation for his right knee disability. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for a right knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.20, 4.21, 4.71a, Diagnostic Code (DC) 5258. 2. The criteria for a separate 10 percent rating, but no higher, for limitation of flexion of the right knee, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.20, 4.21, 4.40, 4.45, 4.59, 4.71a, DCs 5260-5261. 3. The criteria for a separate 20 percent rating, but no higher, for right knee instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.20, 4.21, 4.71a, DC 5257 (in effect prior to and since February 7, 2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1968 to November 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In October 2020, the Board, in pertinent part, denied a rating higher than 20 percent for a left tibia and fibula disability, a rating higher than 10 percent for a right tibia and fibula disability, and a rating higher than 20 percent for a right knee disability. The Veteran appealed the October 2020 Board denial to the United States Court of Appeals for Veterans Claims (Court). In a July 2021 Order, the Court granted a Joint Motion for Partial Remand (Joint Motion), vacating the portion of the October 2020 Board decision that denied a rating higher than 20 percent for a left tibia and fibula disability, a rating higher than 10 percent for a right tibia and fibula disability, and a rating higher than 20 percent for a right knee disability and remanding it for action consistent with the terms of the Joint Motion. The parties to the July 2021 Joint Motion, found that in October 2020, the Board erred when it denied higher ratings for the right and left tibia and fibula disabilities, as it did not provide an adequate statement of reasons or bases to support its decision. Specifically, the parties to the July 2021 Joint Motion explained that when the Board denied higher ratings the right and left tibia and fibula disabilities it merely stated that the evidence was indicative of only a particular level of disability without actual explanation. As to a higher rating for the right knee disability, the parties to the July 2021 Joint Motion, found that in October 2020, the Board erred when it denied a higher or separate rating for the right knee disability, as it did not provide a statement of reasons or bases consistent with the Veteran's reports of right knee instability. Notably, the appeal has a lengthy procedural history, which included previous Board remands to obtain adequate VA examinations to determine the current severity of the Veteran's right knee disability that complied with the findings in Correia v. McDonald, 28 Vet. App. 158 (2016), Sharp v. Shulkin, 29 Vet. App. 26 (2017), and a March 2017 memorandum decision, where the Court vacated and remanded the portion of the Board's August 2015 decision that denied a rating higher than 10 percent the right knee disability. As to the post-March 2017 memorandum decision and Remand development, the Board finds that there has been substantial compliance. Specifically, the October 2019 VA examination provides necessary information to rate the Veteran's right knee under the applicable rating criteria including range of motion studies that considered his complaints of pain with and without weight bearing and resistance in passive and active range of motion as well as during flare-ups. See 38U.S.C. §5103A(d); Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall v. West,11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order); also see Correia, 28 Vet. App. at 158; Sharp, 29Vet. App. at 26. The Board also finds that while the appeal was in Remand status the RO obtained and associated with the record all available and identified VA and private treatment records. See 38 U.S.C. § 5103A(b). Increased Rating Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Rating Schedule. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, as here, entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). Musculoskeletal Disabilities Disabilities evaluated on the basis of limitation of motion require VA to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The United States Court of Appeals for Veterans Claims (Court) has instructed that in applying these regulations VA should obtain examinations in which the examiner determines whether the disability is manifested by weakened movement, excess fatigability, incoordination, pain, or flare-ups. Such inquiry is not to be limited to muscles or nerves. These determinations, if feasible, are to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. The examiner should also determine the point at which such factors cause functional impairment. Moreover, the joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016); DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.59. Further, in claims for higher ratings for musculoskeletal disabilities, where a veteran has a noncompensable rating and complaints of pain on motion, the veteran may be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). In Petitti v. McDonald, 27 Vet. App. 415 (2015), the Court held that under 38 C.F.R. § 4.59, "the trigger for a minimum disability rating is an actually painful, unstable, or malaligned joint," and it explained that 38 C.F.R. § 4.59 speaks to both painful motion of joints and actually painful joints. Id. at 425. Moreover, the Court held that 38 C.F.R. § 4.59 does not require "objective" evidence but can be satisfied with lay and other nonmedical evidence. Id. at 429. The provisions of 38 C.F.R. § 4.59 are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Id. Moreover, the plain language of § 4.59 indicates that it is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable, or malaligned joints or periarticular regions, regardless of whether the DC under which the disability is being evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346, 354 (2016). Right Knee Disability The Veteran's claim for an increased rating for his service-connected right knee disability was received in November 2005. In January 2006, December 2010, October 2015, December 2017, and October 2019, the Veteran was afforded VA examinations to assess the current severity of his right knee disability. The evidence shows that during VA examinations and VA treatment visits, the Veteran reported right knee pain, pain upon range of motion of the right knee, decreased range of motion of the right knee, pain with weight bearing, stiffness, flare ups, locking, instability, giving way, and swelling. See VA examination reports (December 2010; October 2015; December 2017; October 2019); VA treatment record (March 2016). He also reported that he had difficulty with standing, walking, sitting for prolonged periods of time, and that he was unable to bend or squat due to right knee pain. See VA examination report (October 2019). He reported that he required a right knee brace, as his knee would give away and caused balancing issues if he did not wear a knee brace. See VA examination report (October 2015). Specifically, with respect to flare ups, the Veteran reported that he had daily, severe, right knee flare ups due to "strenuous use" of his right knee. See VA examination report (October 2019). He denied flare-ups at the October 2015 VA examination. The Veteran underwent right knee surgery, in August 1989 and 2016, to repair a meniscal tear. See VA examination reports (December 2010; October 2015; December 2017; October 2019). Upon physical examination of the Veteran's right knee, range of motion for flexion, including upon repetitive-use testing, was recorded as 110 degrees with pain (at the December 2010, October 2015, and October 2019 VA examinations) and 105 degrees with pain (at the December 2017 VA examination). The October 2019 VA examiner estimated that during period of flare-ups, pain, fatigue, weakness, and other symptoms, the Veteran's right knee flexion would be limited to 105 degrees. Range of motion for extension of the right knee was recorded as 0 degrees (at the December 2010, October 2015, December 2017, and October 2019 VA examinations). The October 2019 VA examiner estimated that during period of flare-ups, pain, fatigue, weakness, and other symptoms, the Veteran's right knee extension would be limited to 0 degrees. The VA examiners indicated that the Veteran had a meniscus condition, namely a right meniscal tear with frequent episodes of joint locking, pain, and effusion. See VA examination reports (December 2017; October 2019). With respect to subluxation or lateral instability, the October 2015 and December 2017 VA examiners indicated that there was a history of slight recurrent subluxation of the right knee. The October 2019 VA examiner indicated that there was no history of recurrent subluxation or lateral instability. Joint stability testing was normal. See VA examination reports (October 2015; December 2017; October 2019). The January 2006, December 2010, October 2015, December 2017, and October 2019 VA examiners indicated that there was no right knee ankylosis. 1. A rating higher than 20 percent for a right knee disability. The Veteran's right knee is rated as 20 percent disabling under 38 C.F.R. § 4.71a, DC 5258. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Under DC 5258, a maximum 20 percent rating is warranted for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. 38 C.F.R. § 4.71A, DC 5258. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, as explained above, DC 5258 was not revised. The above evidence reflects that the Veteran underwent right knee surgery to repair a meniscal tear and that he had frequent episodes of right knee locking, pain, and effusion into the joint. See VA examination reports (December 2010; October 2015; December 2017; October 2019). The Veteran's 20 percent rating for his right knee disability under DC 5258 is appropriate and his right knee disability is assigned the maximum schedular rating for cartilage dislocation with frequent episodes of locking, pain, and effusion into the joint under DC 5258 during the entire appeal period. Therefore, a rating in excess of 20 percent for a right knee disability under DC 5258 is not warranted. The Board has considered whether the Veteran would be entitled to a higher or separate rating under other applicable diagnostic codes. To this extent, under DC 5259, a maximum 10 percent rating is warranted for symptomatic semilunar cartilage removal. As the Veteran is in receipt of a 20 percent rating under DC 5258 for symptoms relating to dislocated semilunar cartilage, to compensate him for this as well as removal of symptomatic semilunar cartilage under DC 5259 would constitute pyramiding. 38 C.F.R. § 4.14. Therefore, a separate rating under DC 5259 for cartilage injury is not warranted. 2. Limitation of motion of the right knee. Under DC 5260, limitation of knee flexion is rated as follows: a 10 percent rating is warranted when it is limited to 45 degrees; a 20 percent rating is warranted when it is limited to 30 degrees; and a 30 percent rating is warranted when it is limited to 15 degrees. 38 C.F.R. § 4.71A, DC 5260. VA's General Counsel has held that separate ratings can be provided for limitation of knee extension and flexion. VAOPGCPREC 9-2004; 69 Fed. Reg. 59,990 (2004). Under DC 5261, limitation of knee extension is rated as follows: a 10 percent rating is warranted when it is limited to 10 degrees; a 20 percent rating is warranted when it is limited to 15 degrees; a 30 percent rating is warranted when it is limited to 20 degrees; a 40 percent rating is warranted when it is limited to 30 degrees; and a 50 percent rating is warranted when it is limited to 45 degrees. 38 C.F.R. § 4.71A, DC 5261. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, these diagnostic codes were not changed. For rating purposes, normal range of motion in a knee joint is from 0 to 140 degrees. 38 C.F.R. § 4.71, Plate II. For the following reasons, the Board finds that throughout the appeal period, the Veteran's right knee disability more nearly approximates limitation of flexion to 45 degrees, when considering flare-ups and functional impairments, with the 10 percent rating criteria under DC 5260. The above evidence reflects that during the appeal period, the Veteran reported right knee pain, pain upon range of motion, decreased range of motion, flare-ups of the right knee, and functional impairment. The Veteran's right knee flexion was limited to at most 105 degrees. There was no limitation of knee extension and no additional loss of function or range of motion after repetitive-use testing. The Veteran is competent to report the symptoms associated with his service connected right knee disability and the extent of his impairment during flare ups of symptoms and following repetitive use, and the Board has no reason to challenge the credibility of his contentions. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). In light of the evidence of right knee pain, painful motion, flare-ups, and functional impairment, the Court's holding in Petitti, and with resolution of all reasonable doubt in the Veteran's favor, a separate minimum, compensable rating under DC 5260 (i.e.,10 percent) is warranted for painful right knee flexion. This contemplates limitation of knee flexion to 45 degrees. See Petitti, 27 Vet. App. at 424-30; Burton, 25 Vet. App. at 3-5; 38 C.F.R. § 4.71a, DC 5260. The Board also finds that a rating higher than 10 percent for right knee with limitation of motion is not warranted at any time during the appeal period. As indicated above, during the appeal period, the Veteran reported right knee pain, flare-ups, and functional impairments. To this extent, the October 2019 VA examiner estimated that the Veteran's limitation of flexion of the right knee would be limited to 105 degrees and extension would be limited to 0 degrees (normal) during periods of pain, weakness, fatigability, flare-ups and other symptoms. Although the Veteran did not have right knee flare-ups during the VA examination, the October 2019 examiner provided estimated limitation of flexion and extension considering the Veteran's reports of flare ups and other symptoms Regardless of the competent and credible reports of flare-ups, pain, and other functional impairments, and despite the fact that painful motion was documented, the preponderance of the evidence nonetheless supports the conclusion that the Veteran's right knee with limitation of flexion symptoms more nearly approximate the criteria for at most a single 10 percent rating for painful limitation of knee flexion under DC 5260 during the entire claim period. Specifically, the above evidence reflects that the flare-ups and other functional impairments were not so severe, frequent and/or prolonged to warrant the next higher percent ratings at any time during the claim period. A preponderance of the evidence shows that even considering pain, flare-ups, and other functional factors, the Veteran's right knee symptoms were not shown to have been so disabling to actually or effectively result in limitation of knee flexion more nearly approximating 30 degrees or limitation of knee extension more nearly approximating 10 degrees, which are the requirements for a 20 percent rating for limitation of knee flexion under DC 5260 and a compensable (10 percent) rating for limitation of knee extension under DC 5261, respectively. Overall, a separate 10 percent rating, but no higher, for right knee with limitation of flexion under DC 5260, for the entire appeal period is warranted. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.71A, DCs 5260-5261. 3. Right knee instability. The rating criteria for knee instability was amended, effective February 7, 2021. Prior to the regulatory change, a 10 percent rating is warranted if the condition is slight; a 20 percent rating is warranted if the condition is moderate; and a 30 percent rating is warranted if the condition is severe. 38 C.F.R. § 4.71A, DC 5257 (in effect prior to February 7, 2021). DC 5257 does not define "slight," "moderate," or "severe," or generally associate those terms with specific symptoms. One possible source for such definitions would be the dictionary. According to MERRIAM WEBSTER'S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), "slight" means small in amount. "Moderate" means limited in scope or effect. "Severe" means very painful or harmful or of a great degree. As of February 7, 2021, under the amended criteria, a 20 percent rating is warranted for recurrent subluxation or lateral instability with either (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; 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. A maximum 30 percent rating is warranted for 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. 38 C.F.R. § 4.71A, DC 5257 (in effect from February 7, 2021). Under the amended criteria, a 20 percent rating is also warranted for patellar instability if there is a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: a brace, cane, or walker. A maximum 30 percent rating is also warranted for patellar instability if there is a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. Id. For the following reasons, the Board finds that the Veteran has manifested right knee symptoms of the type and extent, frequency, and/or severity, as appropriate, to warrant no more than a 20 percent rating for knee instability during the entire appeal period under either the old or revised version of DC 5257. The above evidence reflects that the Veteran has reported right knee instability and a giving way during the entire appeal period; he also reported that he required a right knee brace, as his knee would give away and caused balancing issues if he did not wear a knee brace. See VA examination report (October 2015). Additionally, during the appeal period, VA treatment providers noted "mild" instability. The October 2015 and December 2017 VA examiners indicated that there was a history of slight recurrent subluxation of the right knee. Despite the fact that stability testing of the right knee was normal during the VA examinations, DC 5257 does not require medical evidence of lateral instability for a rating to be assigned. Instead, the Board must address any relevant lay evidence and compare it to the medical evidence to determine which is more probative, keeping in mind that objective medical evidence is not automatically more probative than lay evidence. English v. Wilkie, 30 Vet. App. 347, 349 (2018). For the following reasons a rating higher than 20 percent for right knee instability is not warranted. Although the Veteran reported right knee instability, stability testing of the right knee has been consistently normal throughout the entire claim period. The Board finds that any knee instability has not been so painful, harmful or frequent as to more nearly approximate severe instability under the pre-amended version of DC 5257. Moreover, although the Veteran has reported use of a knee brace, the evidence does not show that he has ever been prescribed any assistive device for ambulation other than a brace. Therefore, a rating in excess of 20 percent is also not warranted under the revised version of DC 5257 from February 7, 2021. Overall, the Veteran's right knee disability with instability more nearly approximates the criteria for a 20 percent rating for knee instability under DC 5257 during the entire appeal period (indicative of moderate knee instability) as his impairments have been more than small in amount but not severe. Accordingly, a rating higher than 20 percent for right knee instability is not warranted at any time during the appeal period. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.71a, DC 5257 (in effect both prior to and since February 7, 2021). 4. Additional Considerations The Veteran is in receipt of a 20 percent rating under DC 5258 for symptoms relating to dislocated semilunar cartilage during the entire appeal period. Also, separate ratings have been awarded for knee limitation of flexion under DC 5260 and right knee instability under DC 5257. There is no evidence of any knee ankylosis, or genu recurvatum at any time during the claim period. Therefore, separate/higher ratings are not warranted under DCs 5256 or 5263 at any time during the claim period. The Veteran is in receipt of a separate for impairment of the tibia or fibula of the right and left knee, which is remanded below. REASONS FOR REMAND 1. A rating higher than 10 percent for a right tibia and fibula disability is remanded. 2. A rating higher than 20 percent for a left tibia and fibula disability is remanded. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). The Veteran's right and left tibia and fibula disabilities are currently rated under DC 5262, impairment of the tibia and fibula. Effective February 7, 2021, DC 5262 continues to rate impairment of the tibia fibula and provides new criteria for medial tibial stress syndrome (MTSS) or shin splints. A 40 percent is assigned for nonunion of tibia and fibula with loose motion requiring brace. A 30 percent rating is assigned for MTSS or shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, both lower extremities. A 20 percent rating is assigned for MTSS or shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, one lower extremity. A 10 percent rating is assigned for MTSS or shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to either shoe orthotics or other conservative treatment, one or both lower extremities. A noncompensable rating is assigned for MTSS or shin splints with treatment less than 12 consecutive months, one or both lower extremities. Additionally, the new criteria provides that "malunion of" the tibia and fibula is now rated under appropriate knee or ankle diagnostic codes, whichever results in the highest evaluation. Although the Veteran denied shin splints at the most recent VA examination in October 2019 that evaluated his tibia and fibula disabilities, during a December 2017 VA examination, the examiner indicated that the Veteran had shin splints (medical tibial stress syndrome). Therefore, the record does not contain sufficient evidence to rate the Veteran's right and left tibia and fibula disabilities under the new rating criteria, a new examination is warranted. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records from June 22, 2020 to the present. 2. Schedule the Veteran for a VA examination to determine the current severity of his service-connected right and left tibia and fibula disabilities. All necessary tests should be conducted. The claims file must be sent to the examiner for review. The examiner should examine the Veteran and provide findings in accordance with the currently applicable disability benefits questionnaire, including the new rating criteria relevant to medial tibial stress syndrome (MTSS) or shin splints. All opinions must be supported by a detailed rationale. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Castillo, 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.