Citation Nr: 21066835 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 19-03 313 DATE: November 2, 2021 ORDER From December 11, 2013, to September 3, 2014, a 30 percent rating for right knee limitation of motion under diagnostic code 5024 is granted. From December 11, 2013, to September 3, 2014, a 20 percent rating for right knee effusion under diagnostic code 5258 is granted. Since November 1, 2014, a rating of more than 10 percent for right knee limitation of motion under diagnostic code 5024 is denied. Since November 1, 2014, a 10 percent rating for right knee slight instability under diagnostic code 5257 is granted. Since November 1, 2014, a 20 percent rating for right knee "locking" and effusion under diagnostic code 5258 is granted. Since December 11, 2013, a 40 percent rating for left knee limitation of motion under diagnostic code 5024 is granted. Since December 11, 2013, a 10 percent rating for left knee slight instability under diagnostic code 5257 is granted. Since December 11, 2013, a 20 percent rating for left knee "locking" under diagnostic code 5258 is granted. REMANDED The issue of entitlement to a total rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. From December 11, 2013, to September 3, 2014, the Veteran's right knee had range of motion from 17 to 70 degrees with pain, effusion, decreased muscle strength, an altered gait, swelling, and pain. 2. Since November 1, 2014, the Veteran's right knee had range of motion from 5 degrees to 85 degrees with pain, meniscal tear, "locking," effusion, flare-ups, functional impairment, pain, feeling of giving way, swelling, and he had fallen multiple times. 3. Since December 11, 2013, the Veteran's left knee had range of motion from 25 to 90 degrees with pain, decreased muscle strength, an altered gait, swelling, pain, flare-ups, functional impairment, "locking,", a feeling of giving way, and he had fallen multiple times. CONCLUSIONS OF LAW 1. The criteria for a rating of 30 percent, from December 11, 2013, to September 3, 2014, for right knee limitation of motion have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5024, 5260, 5261. 2. The criteria for a rating of 20 percent, from December 11, 2013, to September 3, 2014, for right knee effusion have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5258, 5259. 3. The criteria for a rating of more than 10 percent, since November 1, 2014, for right knee limitation of motion have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5024, 5260, 5261. 4. The criteria for a rating of 10 percent since November 1, 2014, for right knee slight instability have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257. 5. The criteria for a rating of 20 percent since November 1, 2014, for right knee "locking" and effusion have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5258, 5259. 6. The criteria for a rating of 40 percent since December 11, 2013, for left knee limitation of motion have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5024, 5260, 5261. 7. The criteria for a rating of 10 percent since December 11, 2013, for left knee slight instability have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257. 8. The criteria for a rating of 20 percent since December 11, 2013, for left knee "locking" have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5258, 5259. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the U.S. Marine Corps from January 1999 to January 2007. 1. Entitlement to a rating of more than 10 percent for right knee chondromalacia patella, status-post meniscectomy. 2. Entitlement to a rating of more than 10 percent for left knee chondromalacia patella. The Veteran filed his claim for an increased rating on July 8, 2014. If the evidence supports that an increase in disability occurred within one year before that date, the Board may grant an increased rating back to the date it is factually ascertainable that an increase in disability occurred. See 38 C.F.R. § 3.400(o)(2). The Veteran is in receipt of a temporary 100 percent rating for the right knee from September 4, 2014, through October 31, 2014. Therefore, the Board need not consider the Veteran's symptoms during that time. In April 2019, the Board denied a compensable rating for a right knee scar status post meniscectomy. Therefore, the Board need not address whether the Veteran is entitled to an increased rating for the scar and need not consider the scar symptoms in this decision. Disability evaluations are determined by comparing the Veteran's current symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Some of the rating criteria for the knee were changed in February 2021. For those criteria that changed, the changes are semantic and do not affect the outcome or the criteria in effect prior to February 2021 are more beneficial to the Veteran. Therefore, the Board will rate the Veteran's knee disabilities according to the criteria in effect prior to February 2021. The Veteran's right and left knee disabilities are rated according to diagnostic code 5024, which is the rating code for tenosynovitis. That disability is to be rated based on limitation of motion of the affected parts as degenerative arthritis. Degenerative arthritis, established by X-ray, will be rated on the basis of limitation of motion under the appropriate diagnostic criteria for the specific joint or joints involved. 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, a 10 percent rating is warranted for X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups; a 20 percent rating is warranted if there are also occasional incapacitating exacerbations. Note (1) states: 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) states: 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. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Diagnostic Code 5257 provides ratings for recurrent subluxation or lateral instability. Slight disability warrants a 10 percent rating and a moderate disability warrants a 20 percent rating. Severe disability warrants a 30 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Diagnostic Code 5258 provides that a 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, Diagnostic Code 5258. Diagnostic Code 5259 provides that a 10 percent rating is warranted for symptomatic removal of semilunar cartilage. 38 C.F.R. § 4.71a, Diagnostic Code 5259. Diagnostic Code 5260 provides ratings based on limitation of flexion of the leg. Limitation of flexion to 60 degrees warrants a noncompensable rating. Limitation of flexion to 45 degrees warrants a 10 percent rating. Flexion limited to 30 degrees warrants a 20 percent rating. Flexion limited to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Diagnostic Code 5261 provides ratings based on limitation of the extension of the leg. Limitation of extension to 5 degrees warrants a noncompensable rating. Extension limited to 10 degrees warrants a 10 percent rating. Extension limited to 15 degrees warrants a 20 percent rating. Extension limited to 20 degrees warrants a 30 percent rating. Extension limited to 30 degrees warrants a 40 percent rating. Extension limited to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5261. The average normal range of motion of the knee is flexion from 0 to 140 degrees and extension from 140 to 0 degrees. 38 C.F.R. § 4.71, Plate II. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Treatment records obtained from the Social Security Administration (SSA) indicate that the Veteran injured his right knee on November 14, 2013. He felt a "pop" and had immediate pain. Imaging studies indicated a small effusion. A December 11, 2013, private treatment record states that the Veteran had right knee flexion from 17 to 70 degrees with pain and left knee flexion from 25 to 110 degrees with pain. He had decreased muscle strength, and an altered gait. On his July 2014 informal claim, the Veteran reported that he had been unable to work for the previous eight months due to knee symptoms. A July 2014 statement from the Veteran's treating orthopedic surgeon states that the Veteran injured his right knee in November 2013 and had surgery by an outside provider. He reported that he was awaiting further knee arthroscopic surgery and neurolysis of the peroneal nerve. The physician stated that the Veteran was unable to work and would not be able to return to work until at least three months after his next surgery. In August 2014, the Veteran was afforded a VA examination. The Veteran reported that in November 2013, his knee swelled. He reported then-present left knee swelling and constant pain. He reported no flare-ups. The examiner found right knee flexion to 120 degrees with pain, right knee extension to 0 degrees with no pain, left knee extension to 140 degrees with pain, and left knee extension to 0 degrees with no pain. He had no decreased range of motion on repetitive use testing. He had functional loss resulting in less movement than normal and disturbance of locomotion in the right knee, and pain on movement in both knees. However, the examiner stated that she could only speculate about any additional loss of range of motion due to pain, weakness, fatigability, or incoordination during flare-ups or following repeated use over a period. This portion of the examination does not comply with Sharp v. Shulkin, 29 Vet. App. 26 (2017), and is, therefore, inadequate. The Veteran otherwise displayed tenderness on palpation in both knees, no decreased muscle strength, no instability, no patellar subluxation or dislocation, and no additional knee disorders. The examiner stated that the Veteran had a meniscal tear for which he had surgery and that there were no residual signs or symptoms of a meniscectomy. The Veteran did not use any assistive device for locomotion, and imaging studies did not indicate arthritis or patellar subluxation. On his September 2014 notice of disagreement (NOD), the Veteran reported that the VA examiner forced him to move further than he was comfortable with at his examination resulting in pain and an unsteady gait. In January 2015, the Veteran underwent a functional capacity evaluation. He could sit and stand continuously, walk for frequent intervals, could bend the knees occasionally, could not squat, and could kneel with the left knee only. He could climb stairs and a ladder occasionally. He had range of motion of the right knee from 5 to 90 degrees on active range of motion, and from 0 to 90 degrees in the left knee. He had an antalgic gait, with post-test pain at 9 out of 10 on a pain scale. In December 2018, the Veteran was afforded another VA examination. The Veteran reported flare-ups, functional impairment, chronic daily pain in both knees, falling four to five times per month, locking, feeling unsteady, and a feeling that his knees would give way. The examiner found right knee range of motion from 0 to 85 degrees with pain on flexion and extension and left knee range of motion from 0 to 120 degrees with pain on flexion and extension. The ranges of motion of both knees contributed to functional loss resulting in an inability to kneel or stoop. There was pain on weightbearing, tenderness on palpation, and no evidence of crepitus. Repetitive use testing did not result in decreased range of motion. The examiner was unable to say without resort to speculation whether the Veteran had reduced range of motion during flare-ups or with repeated use over time. This portion of the examination is not sufficient under Sharp, 29 Vet. App. at 26, and is, therefore, inadequate. The Veteran had additional factors contributing to disability in both knees of disturbance of locomotion, interference with sitting, and interference with standing. Muscle strength was normal; there was no muscle atrophy; no ankylosis; and no history of recurrent subluxation, lateral instability, or recurrent effusion. He had a right meniscal tear, and frequent episodes of joint "locking," pain, and effusion. He reported having knee braces but was taking steroids for his lumbar spine disorder which caused weight gain and prevented him from using the braces. The examiner stated that the Veteran could do no prolonged standing, bending, stooping, lifting, carrying, walking, or driving. He had to change positions frequently, take rest breaks, and have his spouse assist him. In his January 2019 substantive appeal, (VA Form 9), the Veteran reported that sitting or standing for more than 15 to 20 minutes caused his knees to become numb, and that he had constant knee pain. In December 2019, the Veteran was afforded another VA examination. Symptoms were the same as previously reported. The examiner indicated that pain, weakness, fatigability, or incoordination did not limit functional ability with repeated use over time and indicated that the Veteran did not have flare-ups. In February 2021, the Veteran was afforded another VA examination. The Veteran reported near-daily flare-ups caused by walking. The examiner found symptoms like those previously reported. The examiner indicated that the Veteran had right and left knee pain on weightbearing, active motion, and passive motion, and pain which caused functional loss. He had right knee swelling which interfered with standing and walking. His right knee meniscus disorder caused frequent episodes of joint pain and joint "locking," and occasional swelling. VA treatment records from February 2015 to October 2020 indicate symptoms of knees "locking," pain, giving way resulting in falls, numbness in the right leg, and use of orthopedic braces. Records obtained from the SSA reflect similar symptoms as those indicated on VA examination reports and in VA treatment records. From December 11, 2013, to September 3, 2014, the Veteran's right knee had range of motion from 17 to 70 degrees with pain, effusion, decreased muscle strength, an altered gait, swelling, and pain. Affording the Veteran the benefit of the doubt, a 30 percent rating is warranted for limitation of extension. Because a rating under diagnostic code 5024 is based on limitation of motion, the increased rating is warranted under that diagnostic code. A separate compensable rating for limitation of flexion is not warranted because the Veteran's symptoms were not so severe as to be compensable. An additional 20 percent rating for effusion is warranted under diagnostic code 5258. A separate rating under diagnostic code 5259 is not warranted because that would constitute pyramiding as the Veteran's meniscus symptoms are already compensated under diagnostic code 5258. Since November 1, 2014, the Veteran's right knee had range of motion from 5 degrees to 85 degrees with pain, meniscal tear, "locking," effusion, flare-ups, functional impairment, pain, feeling of giving way, swelling, and he had fallen multiple times. A rating of more than 10 percent under diagnostic code 5024 for limitation of motion is not warranted because the Veteran's limitation of flexion and limitation of extension both indicate noncompensable impairment following his September 2014 surgery and period of convalescence. Although this results in a decreased rating from the 30 percent rating prior to his surgery, multiple VA examinations after the surgery have indicated a noncompensable rating for limitation of flexion and extension over several years. Therefore, the Board finds that there was sustained improvement because of the Veteran's September 4, 2014, surgery, and period of convalescence. An additional 10 percent rating is warranted for slight instability under diagnostic code 5257. A higher rating is not warranted as instability was not so severe as to be detectable on any VA examination. A 20 percent rating is warranted for symptoms of "locking" and effusion under diagnostic code 5258. A separate rating under diagnostic code 5259 is not warranted because that would constitute pyramiding as the Veteran's meniscus symptoms are already compensated under diagnostic code 5258. Since December 11, 2013, the Veteran's left knee had range of motion from 25 to 90 degrees with pain, decreased muscle strength, an altered gait, swelling, pain, flare-ups, functional impairment, "locking,", a feeling of giving way, and he had fallen multiple times. Affording the Veteran the benefit of the doubt, a 40 percent rating is warranted for limitation of extension. Because a rating under diagnostic code 5024 is based on limitation of motion, the increased rating is warranted under that diagnostic code. A separate compensable rating for limitation of flexion is not warranted because the Veteran's symptoms were not so severe as to be compensable. An additional 10 percent rating is warranted for slight instability under diagnostic code 5257. A higher rating is not warranted as instability was not so severe as to be detectable on any VA examination. A 20 percent rating is warranted for symptoms of "locking" under diagnostic code 5258. A separate rating under diagnostic code 5259 is not warranted because that would constitute pyramiding as the Veteran's meniscus symptoms are already compensated under diagnostic code 5258. REASONS FOR REMAND The issue of entitlement to TDIU is remanded. The matters are REMANDED for the following action: 1. BACKGROUND FOR THE RO ADJUDICATOR: On a December 2020 VA Form 21-8940 Application for Increased Compensation Based on Unemployability, the Veteran stated that he last worked full-time in October 2014. The form includes listed employment, however, through November 2016. An August 2021 VA treatment record indicates that the Veteran was working. Remand is necessary to clarify the Veteran's current work status. 2. Send the Veteran a letter asking whether he is currently working and asking him to provide any work history since November 2016. The Veteran is asked to respond to VA's request for this information. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. E. Miller, Counsel The Board's action is binding only in this case. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.