Citation Nr: 21067390 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 16-63 361 DATE: November 4, 2021 ORDER Entitlement to an increased rating for limitation of extension due to status post traumatic arthritis of the left knee with a postoperative period of proximal tibial osteotomy of 10 percent, but no higher, for the period from September 16, 2015 to present is granted. Entitlement to a compensable rating for limitation of extension due to status post traumatic arthritis of the left knee with a postoperative period of proximal tibial osteotomy for the period from October 27, 2014 to September 15, 2015 is denied. Entitlement to an increased rating for limitation of flexion due to status post traumatic arthritis of the left knee with a postoperative period of proximal tibial osteotomy in excess of 10 percent from October 27, 2014 to March 7, 2017 and in excess of 30 percent from March 8, 2017 to present is denied. Entitlement to an increased rating for other impairment of the knee, recurrent subluxation or instability, due to status post traumatic arthritis of the left knee with a postoperative period of proximal tibial osteotomy in excess of 20 percent from November 11, 2015 to present is denied. FINDINGS OF FACT 1. From September 16, 2015 to present, the Veteran's status post traumatic arthritis of the left knee with a postoperative period of proximal tibial osteotomy was manifested by limitation of extension to 14 degrees. 2. From October 27, 2014 to September 15, 2015, the Veteran's status post traumatic arthritis of the left knee with a postoperative period of proximal tibial osteotomy was manifested by full and adequate extension. 3. From October 27, 2014 to March 7, 2017, the Veteran's status post traumatic arthritis of the left knee with a postoperative period of proximal tibial osteotomy was manifested by limitation of flexion of 40 degrees. 4. From March 8, 2017, the Veteran's status post traumatic arthritis of the left knee with a postoperative period of proximal tibial osteotomy is rated as 30 percent disabling, which is the maximum schedular rating permitted for limitation of flexion of the leg. 5. From November 11, 2015, the Veteran's status post traumatic arthritis of the left knee with a postoperative period of proximal tibial osteotomy was manifested by moderate recurrent lateral instability. CONCLUSIONS OF LAW 1. The criteria have been met for an increased rating of 10 percent, but no higher, for limitation of extension due to status post traumatic arthritis of the left knee with a postoperative period of proximal tibial osteotomy from September 16, 2015 to present. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5261. 2. The criteria have not been met for a compensable rating for limitation of extension due to status post traumatic arthritis of the left knee with a postoperative period of proximal tibial osteotomy from October 27, 2014 to September 15, 2015. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5261. 3. The criteria have not been met for an increased rating for limitation of flexion due to status post traumatic arthritis of the left knee with a postoperative period of proximal tibial osteotomy in excess of 10 percent from October 27, 2014 to March 7, 2017 and in excess of 30 percent from March 8, 2017 to present. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5260. 4. The criteria have not been met for an increased rating for other impairment of the knee, recurrent subluxation or instability, due to status post traumatic arthritis of the left knee with a postoperative period of proximal tibial osteotomy in excess of 20 percent from November 11, 2015 to present. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board notes that during the pendency of the appeal, a November 2020 rating decision finalized a rating reduction of the Veteran's rating for limitation of extension of the left knee under Diagnostic Code 5261. By way of history, service connection for the left knee was previously granted in a September 2010 rating decision, and a 10 percent rating was assigned based on crepitus and painful motion on flexion under 38 C.F.R. § 4.59. Subsequently, the Veteran filed a claim for an increased rating for the left knee in October 2014. A January 2015 rating decision (the decision on appeal) changed the Diagnostic Code from Diagnostic Code 5260 to 5261 to reflect that the 10 percent rating was assigned for limitation of extension. Additionally, the decision simultaneously granted a separate, but noncompensable rating for limitation of flexion. After a December 2018 Board remand, the AOJ reviewed the cumulative record and issued a June 2020 rating decision proposing to decrease the Veteran's rating for limitation of extension to a noncompensable rating on the basis of clear and unmistakable error (CUE) while simultaneously increasing the rating for limitation of flexion to 10 percent effective from May 12, 2010. A November 2020 rating decision finalized the reduction of the rating for limitation of extension from 10 percent to noncompensable, effective May 12, 2010. The Board finds that the AOJ has mischaracterized the reassignment of Diagnostic Codes as a rating reduction. By simultaneously reducing and increasing the ratings for limitation of extension and flexion, respectively, the AOJ essentially reassigned Diagnostic Codes to more accurately reflect the Veteran's symptoms. The reassignment of the Diagnostic Code does not result in a de facto reduction or severance of service connection. Cf. Read v. Shinseki, 651 F.3d 1296 (Fed. Cir. 2011); Murray v. Shinseki, 24 Vet. App. 420 (2011). It is permissible to switch Diagnostic Codes to reflect more accurately a claimant's current symptoms. See Read v. Shinseki, 651 F. 3d 1296, 1302 (Fed. Cir. 2011) (holding that service connection for a disability is not severed when the Diagnostic Code associated with it is changed to determine more accurately the benefit to which a veteran may be entitled). Additionally, the Board notes that the AOJ may revise a rating decision even in appellate status on the basis of CUE pursuant to 38 C.F.R. § 3.105(a) because such a rating decision is "final and binding" under 38 C.F.R. §§ 3.104 and 3.105, and because 38 C.F.R. § 3.2600(e) expressly allows for such revision. Young v. Wilkie, 31 Vet. App. 51, 54-55 (2019). The phrase "final and binding" as used in 38 C.F.R. §§ 3.104 and 3.105 refers to the binding nature of an AOJ's rating decision on all other regional offices and is different than a "finally adjudicated claim" within the meaning of § 3.160(d). Id. The provisions of 38 C.F.R. § 3.105(e) do not apply to the revision of a rating decision on the basis of CUE. Id. at 56-57. This action is not a "reduction" based on later evidence showing a change in the Veteran's condition, but a revision based on the evidence of record at the time the original decision was made. For these reasons, the Board finds that the AOJ mischaracterized the reassignment of the Diagnostic Codes as a rating reduction, and that the action was actually a revision of a rating decision to more accurately reflect the Veteran's symptoms under the appropriate Diagnostic Code. Accordingly, the Board will not engage in an analysis of the rating reduction, to include the procedural provisions governing reductions set forth in 38 C.F.R. § 3.105(e). The Board notes that there is no prejudice to the Veteran in doing so because the grant of a compensable rating for limitation of flexion effective from May 12, 2010 (the date of original claim for service connection) ensures that the Veteran's overall disability rating and payment remained unchanged. Thus, the Board will proceed to the merits of the claim for an increased rating for status post traumatic arthritis of the left knee with a postoperative period of proximal tibial osteotomy. Increased Disability Rating for Left Knee The Veteran contends that he is entitled to a higher rating for his status post traumatic arthritis of the left knee with a postoperative period of proximal tibial osteotomy (hereinafter shortened to "left knee disability"). Specifically, he seeks an increased rating for his left knee disability in excess of 10 percent prior to March 8, 2017 and 30 percent thereafter for limitation of flexion; in excess of 20 percent for subluxation; and a compensable rating for limitation of extension. Preliminarily, the Board notes that the case was previously remanded in June 2021 for an examination that complies with the requirements of Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). While on remand, the Veteran was afforded an examination in October 2019. The Board notes that the October 2019 examiner did not estimate additional functional loss due to flare-ups in terms of range of motion. However, the examiner stated that this was because the Veteran denied flare-ups at the time of the examination. Accordingly, and in light of the Veteran's denial, the Board finds that there has been substantial compliance with the Board's previous remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). To the extent he complained of flare-ups in the past, based on the recent denial, the Board cannot find that the duration and frequency of such flare-ups are sufficient to warrant a higher evaluation on that basis. Thus, a retrospective opinion is not necessary. Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). Accordingly, the case is ripe for ajudication and the Board will proceed to the merits of the claim. Legal Criteria The criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Diagnostic Code 5260 assigns ratings based on limitation of flexion and provides a noncompensable rating where flexion is limited to 60 degrees; a 10 percent rating where flexion is limited to 45 degrees; a 20 percent rating where flexion is limited to 30 degrees; and a 30 percent rating where flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. Normal ranges of motion of the knee are to 0 degrees in extension, and to 140 degrees in flexion. 38 C.F.R. § 4.71, Plate II. Diagnostic Code 5003 provides that degenerative arthritis, when 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. When 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. Under DC 5003, X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups warrants a 10 percent rating; involvement of 2 or more major joints or 2 or more minor joint groups with occasional incapacitating exacerbations warrants a 20 percent rating. 38 C.F.R. § 4.71a, DC 5003. The 20 percent and 10 percent ratings based on X-ray findings will not be combined with ratings based on limitation of motion. 38 C.F.R. § 4.71a, DC 5003, Note (1). Diagnostic Code 5258 assigns a rating of 20 percent based on dislocation of semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. 38 C.F.R. § 4.71a, DC 5258. Diagnostic Code 5259 assigns a rating of 10 percent based on symptomatic removal of semilunar cartilage. 38 C.F.R. § 4.71a, DC 5259. Diagnostic Code 5261 assigns ratings based on limitation of extension of the leg and provides a noncompensable rating where extension is limited to 5 degrees; a 10 percent rating where extension is limited to 10 degrees; a 20 percent rating where extension is limited to 15 degrees; a 30 percent rating where extension is limited to 20 degrees; a 40 percent rating where extension is limited to 30 degrees; and a 50 percent rating where extension is limited to 45 degrees. During the pendency of the appeal, Diagnostic Code 5257, which assigns ratings based on other impairment of knee, was amended effective February 7, 2021. 85 Fed. Reg. 76453 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257). 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). Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021. Both the old and new rating criteria under Diagnostic Code 5257 will be considered for the period from February 7, 2021, and the criteria that is more favorable to the Veteran will be applied. Prior to the regulatory change, Diagnostic Code 5257 for other impairment of knee provides a 10 percent rating for slight recurrent subluxation or lateral instability; a 20 percent rating for moderate recurrent subluxation or lateral instability; and a 30 percent rating for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. As of February 7, 2021, under the amended criteria, Diagnostic Code 5257 provides the following for recurrent subluxation or instability. A 10 percent rating is warranted for 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 rating is warranted for 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 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 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. Additionally, the amended criteria under Diagnostic Code 5257 provides the following for patellar instability. A 10 percent rating 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 rating 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 rating 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. For patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note (1). 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). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Analysis The Veteran's left knee disability is currently rated for limitation of flexion as 10 percent disabling from October 27, 2014 to March 7, 2017 and 30 percent disabling from March 8, 2017; subluxation as 20 percent disabling from November 11, 2015; and limitation of extension as noncompensable. The Veteran's left knee disability is rated under Diagnostic Code 5260 for limitation of flexion of the leg. With respect to the period from October 27, 2014 (the date of claim) to March 7, 2017, the Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for limitation of flexion for the left knee disability under Diagnostic Code 5260. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain, pain and swelling during flare-ups, and pain during repetitive use over time. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that pain and swelling would not result in limitation of motion more nearly approximating flexion limited to 30 degrees. A January 2015 VA examination revealed limitation of flexion of 60 degrees, at most. This finding is consistent with findings in VA and private treatment records. A November 2015 letter from Dr. P.Y. indicates flexion was performed to 40 degrees. A September 2015 VA treatment record indicated flexion was limited to 92 degrees. In sum, from October 27, 2014 to March 7, 2017, the Veteran's limitation of flexion was limited to, at most, 40 degrees. There is no evidence of flexion limited to 30 degrees during this period. The Veteran denied flare-ups in 2019. Thus, to the extent he complained of flare-ups in the past, the Board cannot find that the duration and frequency of such flare-ups are sufficient to warrant a higher evaluation. Accordingly, a rating higher than 10 percent is not warranted during the period from October 27, 2014 to March 7, 2017. From March 8, 2017, the Veteran is in receipt of the highest schedular rating for limitation of flexion of the leg, 30 percent, and consequently there is no basis to award a higher evaluation under Diagnostic Code 5260. For these reasons, an increased rating for limitation of flexion under Diagnostic Code 5260 in excess of 10 percent from October 27, 2014 to March 7, 2017 and in excess of 30 percent from March 8, 2017 to present is not warranted. The Veteran's left knee disability is additionally rated under Diagnostic Code 5257 for subluxation, rated as 20 percent disabling from November 11, 2015. With respect to the period from October 27, 2014 to November 10, 2015, the Board finds that the preponderance of the evidence is against finding slight recurrent subluxation or lateral instability under Diagnostic Code 5257. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain, pain and swelling during flare-ups, and pain during repetitive use over time. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements of pain and swelling would not result in slight recurrent subluxation or lateral instability. A January 2015 VA examination did not reveal instability. Additionally, joint stability testing was normal, to include lateral instability. Further, VA treatment records do not show any complaints or treatment for subluxation or instability of the knees. Accordingly, a separate, compensable rating is not warranted for subluxation or instability of the left knee for the period from October 27, 2014 to November 10, 2015. With respect to the period from November 11, 2015 to present, the Board finds that the preponderance of the evidence is against finding severe recurrent subluxation or lateral instability under Diagnostic Code 5257. Even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements of pain and swelling would not result in severe recurrent subluxation or lateral instability. A November 2015 letter from Dr. P.Y. indicates that examination of the left knee revealed moderate lateral instability and crepitus. He additionally described the nature of the Veteran's instability as giving out and stumbling. An October 2019 VA examination revealed moderate lateral instability despite the Veteran's refusal to perform joint stability testing. Further, VA treatment records do not show any complaints or treatment for subluxation or instability of the knees, to include any reported falls or giving away of the knee. In sum, the Veteran's subluxation was manifested by moderate recurrent lateral instability. Accordingly, a rating in excess of 20 percent is not warranted from November 11, 2015 to present. Additionally, the Board has considered the amended criteria for Diagnostic Code 5257 for the period from February 7, 2021 to present. However, the evidence does not reveal an 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. Additionally, the evidence does not reveal 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. Accordingly, a rating in excess of 20 percent is not warranted under the amended criteria for other impairment of the knee under Diagnostic Code 5257 for the period from February 7, 2021 to present. For these reasons, an increased rating for other impairment of the knee, recurrent subluxation, or instability, in excess of 20 percent from November 11, 2015 is not warranted. The Veteran's left knee disability is additionally rated as noncompensable under Diagnostic Code 5261 for limitation of extension. The Board finds that the preponderance of the evidence is against a compensable rating for limitation of extension for the left knee disability under Diagnostic Code 5261 for the period from October 27, 2014 to September 15, 2015. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain, pain and swelling during flare-ups, and pain during repetitive use over time. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that pain and swelling would not result in extension limited to 10 degrees. A January 2015 VA examination revealed no limitation of extension. This finding is consistent with findings in VA and private treatment records. A November 2015 letter from Dr. P.Y. indicates extension was adequate. In sum, there is no evidence of extension limited to 10 degrees during this period. Accordingly, a compensable rating for limitation of extension is not warranted during this period. However, for the period from September 16, 2015 to present, a rating of 10 percent, but no higher, is warranted for limitation of extension. VA treatment records noted extension was limited to 14 degrees in September 2015 and 10 degrees in March 2017. Though an October 2019 VA examination revealed normal and full extension, the Board will resolve doubt in the Veteran's favor and find that extension was limited between 10 to 14 degrees during the period from September 16, 2015 to present. Accordingly, a rating of 10 percent, but no higher, is warranted for limitation of extension under Diagnostic Code 5261 from September 16, 2015 to present. The Board has also considered the other Diagnostic Codes pertaining to the knee and leg. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). Separate compensable ratings are not warranted under Diagnostic Code 5256 (ankylosis), Diagnostic Code 5259 (cartilage, semilunar, removal of, symptomatic), Diagnostic Code 5262 (impairment of tibia and fibula or medial tibial stress syndrome), or Diagnostic Code 5263 (genu recurvatum). There is no evidence of ankylosis, symptomatic removal of semilunar cartilage, impairment of tibia and fibula or medial tibial stress syndrome, or genu recurvatum. Additionally, a separate compensable rating is not warranted under Diagnostic Code 5258 (cartilage, semilunar, dislocated, with frequent episodes of "locking," pain, and effusion into the joint). There is evidence of dislocated semilunar cartilage with frequent episodes of joint pain, as noted in the January 2015 and October 2019 VA examinations. However, the only symptom associated with dislocated semilunar cartilage is frequent joint pain, which is already contemplated and compensated by the assigned ratings for limitation of flexion and extension. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. 38 C.F.R. § 4.14. Separate ratings may be assigned for distinct disabilities resulting from the same injury only where the symptomatology for one condition is not duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Accordingly, a separate rating is not warranted for dislocated semilunar cartilage with frequent joint pain as it would violate the rule against pyramiding. In conclusion, the Board finds that an increased rating for limitation of extension of 10 percent, but no higher, for the period from September 16, 2015 to present is warranted. However, the preponderance of the evidence is against increased ratings for limitation of flexion in excess of 10 percent from October 27, 2014 to March 7, 2017 and in excess of 30 percent from March 8, 2017 to present; and an increased rating for other impairment of the knee, recurrent subluxation, or instability in excess of 20 percent from November 11, 2015 to present. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Vang, 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.