Citation Nr: 21066838 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 17-19 429 DATE: November 2, 2021 ORDER Entitlement to an effective date earlier than October 9, 2012, for the award of a separate rating for instability, residuals of right anterior cruciate ligament (ACL) repair is denied. Entitlement to a compensable rating from March 1, 2013, and in excess of 10 percent from May 1, 2015 to January 6, 2020, for instability as due to right knee arthritis and/or residuals of right anterior cruciate ligament repair is denied. Entitlement to separate simultaneous ratings for limitation of flexion and locking pain of the right knee is denied. Entitlement to a separate rating for right knee locking under Diagnostic Code 5258 is granted from December 11, 2018. FINDINGS OF FACT 1. Evidence shows the earliest date that it was factually ascertainable that the Veteran's right knee exhibited instability was October 9, 2012. 2. From March 1, 2013, the Veteran's right knee did not exhibit even slight instability. From May 1, 2015, the Veteran's right knee exhibited slight instability, but not moderate instability. 3. An award of separate simultaneous ratings for limitation of flexion and locking pain of the right knee would result in pyramiding. 4. Evidence shows that from December 11, 2018, the Veteran reported consistent locking pain in his right knee. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to October 9, 2012, for the award of a separate compensable rating for right knee instability have not been met. 38 U.S.C. §§ 1155, 5110, 7105; 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.157, 3.321, 3.400, 4.71a, Diagnostic Code 5257. 2. The criteria for a compensable rating from March 1, 2013, and in excess of 10 percent from May 1, 2015 to January 6, 2020, for instability due to right knee arthritis and/or residuals of right anterior cruciate ligament repair have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.6, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257. 3. The criteria for separate simultaneous ratings for limitation of flexion and locking pain of the right knee have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.6, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5258, 5260. 4. The criteria for an initial 20 percent rating under Diagnostic Code 5258 for a left knee meniscus tear (semilunar cartilage), with effusion and frequent episodes of joint pain have been met from December 11, 2018. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.6, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5258. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from May 1989 to November 2001. These matters were previously addressed by the Board of Veterans' Appeals (Board) in a September 2020 decision, in which the Board outlined the complex procedural history leading to the adjudication in September 2020 for the issues of: entitlement to a rating in excess of 10 percent prior to January 6, 2020 for right knee degenerative arthritis and painful limitation of motion; a separate 10 percent rating for symptomatic residuals of right ACL reconstruction prior to January 6, 2020; a rating higher than 20 percent for right knee pain from January 6, 2020; a separate rating for knee degenerative arthritis and painful limitation of motion from January 6, 2020; and a compensable evaluation for a right knee scar prior to January 6, 2020. The September 2020 Board decision is incorporated herein by reference. The September 2020 decision remanded the remaining issues on appeal: entitlement to increased ratings for instability, residuals of right anterior cruciate ligament repair; entitlement to an effective date earlier than October 9, 2012 for the award of a separate rating for instability, residuals of right anterior cruciate ligament repair, and consideration of total disability based on individual unemployability (TDIU). In a June 2021 rating decision, the Regional Office (RO) granted entitlement to TDIU effective May 11, 2019. The Board notes that this rating was considered a full grant of benefits because the Veteran was gainfully employed until May 10, 2019, therefore, his service-connected disabilities precluded gainful employment beginning on May 11, 2019. In a June 2021 Order, the Court of Appeals for Veterans Claims (CAVC/Court) granted a Joint Motion for Partial Remand of the Board's September 2020 decision. In the Joint Motion, the parties agreed that the Board's September 2020 reasons and bases for the denial of additional compensation under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5258, or DC 5260 was inadequate and failed to address the Veteran's reports of locking pain. Further, the parties agreed the Board failed to include whether an increased rating for the period after January 6, 2020 for instability was warranted. In accordance with the June 2021 CAVC Order, the Board shall provide an adequate statement of reasons or bases for its determination as to whether the Veteran is entitled to a separate rating under DC 5258 for the period prior to January 6, 2020, to include addressing evidence of right knee "locking" and discussion as to the specific DCs under which the evaluations for the distinct manifestations of his knee disability are being assigned. Further, the Board shall adequately address entitlement to a higher rating for instability of the right knee under DC 5257 for the period following January 6, 2020. 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 rating 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. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where the question for consideration is the propriety of the initial rating assigned, evaluation of the evidence since the effective date of the grant of service connection is required. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson, 12 Vet. App. at 126-27. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. The Board notes that the rating criteria for knee subluxation and instability were amended effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257). Prior to February 7, 2021, the Board will consider the pre-amended version of the diagnostic code; however, for the period beginning February 7, 2021, the Board will apply whichever set of criteria is more favorable to the Veteran. Under the pre-amended version of Diagnostic Code (DC) 5257 for recurrent subluxation or lateral instability, a 10 percent evaluation is warranted for slight impairment, a 20 percent evaluation is warranted for moderate impairment, and a 30 percent evaluation is warranted for severe impairment. 38 C.F.R. § 4.71a, DC 5257 (2020). Under the amended criteria for DC 5257, a 10 percent evaluation is warranted for recurrent subluxation or instability with 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. A 20 percent evaluation is warranted for recurrent subluxation or instability with one of the following: (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. A 30 percent evaluation is warranted for recurrent subluxation or 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. With respect to patellar instability, a 10 percent evaluation is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. A 20 percent evaluation is warranted for 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 30 percent evaluation is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. Dislocation of the semilunar cartilage of the knee with frequent episodes of "locking," pain and effusion into the joint warrants a 20 percent evaluation. See 38 C.F.R. § 4.71a, DC 5258. This DC has not changed with the February 2021 update. Limitation of motion of the knees is rated under Diagnostic Codes 5260, and 5261. Normal range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II Under 38 C.F.R. § 4.71a, DC 5260, for limitation of flexion of the leg, a noncompensable rating is warranted for flexion limited to 60 degrees. A 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. A 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. Under DC 5261, a noncompensable rating is assigned when extension of the leg is limited to 5 degrees; a 10 percent rating is assigned when extension is limited to 10 degrees; a 20 percent rating is assigned when extension is limited to 15 degrees; a 30 percent rating is assigned when extension is limited to 20 degrees; a 40 percent rating is warranted for extension limited to 30 degrees; and a 50 percent rating is assigned when extension is limited to 45 degrees. 38 C.F.R. § 4.71a, DC 5261. Evidence According to private treatment records from Commonwealth Orthopedics, the Veteran aggravated a previous right knee injury when he took a misstep and twisted his knee in October 2012. In November 2012, he underwent right knee arthroscopic surgery. In January 2013, he submitted a claim for increased rating of his right knee disability, for which a rating decision was issued in November 2013. The Veteran submitted a timely Notice of Disagreement with that decision in November 2014. In January 2017, he was awarded a separate rating for right knee instability with an effective date of October 9, 2012. In an examination report provided by the Veteran in February 2013, he reported frequent episodes of joint locking and joint pain in his right knee, however, he denied flare ups. His treating physician indicated regular use of a knee brace during sports, and remarked that the Veteran experienced anterior instability. On VA examination in March 2013, the Veteran reported that following a meniscectomy in 2012, he experienced chronic pain, inability to bend knees, swelling, and instability. Right leg range of flexion exhibited pain at 110 degrees, with pain shown on 5 degrees of extension. The examiner noted that X-rays were negative for evidence of subluxation, there was no history of recurrent patellar subluxation, and joint stability was normal. Private medical reports from May and June 2015 show the Veteran reported persistent knee pain, and range of motion was normal, but exhibited slight tightness and pain. In May 2015, his condition was improving, but was still experiencing pain on palpation, swelling, stiffness, and pain. Additional private treatment records from May 2015 indicate there were no post-operative changing involving the patellar tendon, including tilting or subluxation. In August 2015, the Veteran underwent an arthroscopic partial medial and lateral meniscectomy, removal of a large cyclops lesion and osteochondral body, and chondroplasty of the lateral compartment and patellofemoral joint of the right knee at a private facility. On VA examination in January 2017, the Veteran reported pain, stiffness, and buckling of the right knee, but denied flare ups. The examiner noted deformity of the right knee, but stated that no pain was noted on examination of the right knee, and range of motion was normal. The examiner indicated there was no history of right knee instability or subluxation, however, the Veteran occasionally used a knee brace for stability. A report from Commonwealth Orthopaedics in January 2017 states that an MRI showed subpatellar joint effusion. Private records from May 2017 indicate that while the Veteran's right knee range of motion was limited, he was able to walk without obvious limitations beyond a minimal right gluteal lurch. Records from 2017 show the Veteran consistently reported knee pain, inability to run, and swelling; and in August 2018, he reported episodes of feeling like the right knee was giving way and slipping, as if he might have re-torn his ACL. In an August 2018 radiology report, the Veteran's right knee exhibited stable moderate to severe lateral and mild to moderate patellofemoral and medial compartment degenerative changes and moderate suprapatellar joint effusion. In a statement received on December 11, 2018, the Veteran described right knee pain, instability, and "occasionally a feeling of locking." In January 2019, the Veteran complained of locking pain in his right knee, and his private provider noted mild effusion. In July 2019, the Veteran reported 5 to 6 episodes of his knee locking up or giving out on associated with severe pain. On VA examination in January 2020, the Veteran reported persistent pain with locking and swelling, and that he could not walk long distances or stand for long periods of time, he also indicated he had difficulty going up and down stairs, causing him to stop working. Right knee flexion was measured to 100 degrees with extension to 0. Evidence of pain was noted on examination with both flexion and extension, with additional evidence of pain on palpation of the knee joint with severity of 8 out of 10. There was no indication of instability and the examiner specifically found no subluxation in the right knee, post-operatively, however, there were frequent episodes of joint locking/pain/effusion and the Veteran used a brace for walking longer distances. Later in January 2020, VA treatment notes show the Veteran reported multiple episodes a month of his knee locking up or giving out on him with associated severe pain. 1. Entitlement to an effective date earlier than October 9, 2012 for the award of a separate rating for instability, residuals of right ACL repair The Veteran contends that his separate rating for right knee instability warrants an effective date earlier than October 9, 2012. The Board finds that a rating for right knee instability prior to October 2012 is not warranted. The Board notes that for the claim for increased rating, the appeal period before the Board begins on January 30, 2012, one year prior to the date VA received the claim for an increased rating. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). In this case, the earliest medical evidence of a worsening of the Veteran's knee condition, to include evidence of instability is the record from Commonwealth Orthopedics dated October 9, 2012. As such, there is no evidence to support a separate rating for instability prior to October 9, 2012, and the appeal must be denied. 2. Entitlement to a compensable rating from March 1, 2013, and in excess of 10 percent from May 1, 2015 to January 6, 2020, for instability as due to right knee arthritis and/or residuals of right anterior cruciate ligament repair The Veteran contends that his right knee instability warrants higher ratings. The Board notes that prior to January 24, 2013, the Veteran received a 30 percent rating for instability, which is the highest available rating under DC 5257. From January 24 to March 1, 2013, the Veteran received a 100 percent convalescence rating. From March 1, 2013, to May 1, 2015, the Veteran had a noncompensable rating for right knee instability. In order to warrant a higher rating of at least 10 percent, the right knee must exhibit at least slight impairment from instability. Here, the Board recognizes the February 2013 examination report indicating instability, however, there was no other complaint or medical evidence of abnormal stability, despite additional examinations, treatment reports, and surgical procedures, prior to the January 2017 examination. As such, the Board finds that from March 1, 2013, to May 1, 2015, a compensable rating is not warranted. Under the amended criteria for Diagnostic Code 5257, a 10 percent evaluation requires recurrent subluxation or instability with 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. Again, the Board notes that there was insufficient evidence of abnormal stability from March 1, 2013 to May 1, 2015 and the Veteran's symptoms did not meet criteria for a 10 percent rating under the amended criteria. From May 1, 2015 to January 6, 2020, the Veteran received a 10 percent rating for right knee instability under DC 5257. In order to warrant a higher rating of 20 percent, under DC 5257 the Veteran's right knee instability must have been "moderate." Under the amended criteria, a 20 percent rating requires recurrent subluxation or instability with one of the following: (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. Here, there is no evidence of recurrent or consistent subluxation or instability throughout the appeal period, and while the Veteran reported using a brace occasionally, and experiencing a slipping sensation in one report, there is no indication that he was prescribed an assistive device for ambulation. In consideration of the evidence under both the prior criteria and the recently amended criteria for a higher rating of 20 percent under DC 5257, the Board finds the Veteran's right knee condition did not warrant a higher rating, and the appeal is denied. In consideration of an ongoing and higher evaluation after January 6, 2020, the Board notes that the January 2020 examiner specifically noted that there was no joint instability or subluxation that would warrant a rating under DC 5257. 3. Entitlement to separate ratings for limitation of flexion and locking pain of the right knee. In accordance with the Joint Motion, the Board must adequately provide reasoning as to why the Veteran's locking pain does not warrant an additional rating under DC 5260. The Board notes that none of the treatment providers or examiners indicated that the Veteran's right knee locking resulted in a certain loss of movement that is quantifiable under DC 5260. In this case, the 20 percent rating under DC 5258 replaced the 10-percent rating under DC 5260 based on painful motion of the right knee. See, e.g., 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). Under DC 5258, a 20-percent rating is warranted for symptoms that include locking and pain, which are symptoms that limit motion and therefore likewise fall within the category of limitation of motion. Thus, if a rating under DC 5258 were awarded along with a 10-percent rating under DC 5260, the Veteran would be compensated twice for symptoms creating pain and limitation of range of motion in the knee. Such double-payment, which is referred to as "pyramiding," is prohibited by the regulations, and therefore VA cannot award both ratings simultaneously. 38 C.F.R. § 4.14. Because the rating under DC 5258 results in the highest rating for the Veteran, it is the rating that the Board will assign. See, e.g., Bradley v. Peake, 22 Vet. App. 280, 294 (2008). 4. Entitlement to a separate rating for right knee locking under DC 5258 prior to January 6, 2020. The Veteran contends that his separate rating under DC 5258 for right knee locking warrants an earlier effective date. The Board finds that a rating for right knee locking under DC 5258 is warranted from December 11, 2018. Evidence shows the Veteran reported "locking" in correspondence, and consistently in treatment records beginning on December 11, 2018. Prior to December 11, 2018, there is no sufficient evidence of consistent locking of the Veteran's right knee. For these reasons, the Board finds that a 20 percent rating under DC 5258 is warranted for the Veteran's right knee disability from December 11, 2018. The Board notes, however, that this award may result in a replacement of the previous ratings of 10 percent under DC 5260, and/or DC 5257 as such a simultaneous awards would result in pyramiding, as discussed above. R. Costello Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.E. Lee 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.