Citation Nr: 21067391 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 18-44 486 DATE: November 4, 2021 ORDER A rating higher than 10 percent prior to April 5, 2021, and higher than 30 percent thereafter for right knee meniscus tear status-post surgery is denied. A separate 10 percent rating prior to February 7, 2021, for right knee instability is granted. A rating higher than 20 percent as of February 7, 2021, for right knee residual of incomplete ligament tear is denied. REMANDED A total disability rating due to individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Prior to April 5, 2021, the Veteran's right knee disability manifested in painful motion with extension no worse than to 0 degrees and extension no worse than to 125 degrees. 2. As of April 5, 2021, the Veteran's right knee disability has manifested in extension limited to 20 degrees, with flexion no worse than 135 degrees. 3. Prior to February 7, 2021, the Veteran's right knee disability manifested in slight instability. 4. As of February 7, 2021, the Veteran's right knee disability manifested in recurrent instability after surgical repair and required a cane prescribed by a medical provider. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 10 percent prior to April 5, 2021, and higher than 30 percent thereafter for limitation of motion of the right knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5260, 5261. 2. The criteria for a separate 10 percent rating prior to February 7, 2021, for slight instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.10, 4.71a, DC 5257. 3. The criteria for a rating higher than 20 percent as of February 7, 2021, for right knee residual of incomplete ligament tear have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.10, 4.71a, DC 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from April 1994 to November 2000. These matters are on appeal from a March 2015 rating decision. In a June 2019 decision, the Board denied the Veteran's right knee claim. The Veteran timely appealed the Board's decision to the Court of Appeals for Veterans Claims (Court). In a Joint Motion for Remand (JMR), the parties agreed to vacate the Board's decision and remand the case to the Board for additional development because the Board did not provide an adequate statement of reasons or bases for its decision. The JMR was incorporated by reference in a Court order dated in June 2020. Increased Rating Disability ratings are determined by the application of VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4. The determination of whether an increased rating is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran contends that the severity of a current right knee disability warrants a higher rating. The Veteran's right knee disability has been assigned a 10 percent rating prior to April 5, 2021, and a 30 percent rating as of April 5, 2021, under DC 5261 for limitation of extension. Under DC 5261, a 10 percent rating is assigned for knee extension limited to 10 degrees. A 20 percent rating is assigned for knee extension limited to 15 degrees. A 30 percent rating is assigned for knee extension limited to 20 degrees. A 40 percent rating is assigned for knee extension limited to 30 degrees. A maximum 50 percent rating is assigned for knee extension limited to 45 degrees. Under DC 5260, a 10 percent rating is assigned for knee flexion limited to 45 degrees. A 20 percent rating is assigned for knee flexion limited to 30 degrees. A maximum 30 percent rating is assigned for knee flexion limited to 15 degrees. Normal range of extension of the knee is to 0 degrees and normal range of flexion of the knee is to 140 degrees. Separate ratings under DC 5260 for limitation of flexion of the leg and DC 5261 for limitation of extension of the leg may be assigned for disability of the same joint, but only where the criteria for a compensable rating are met under each DC. Prior to February 7, 2021, DC 5257 instructs to rate recurrent subluxation or lateral instability of the knee. A 10 percent rating is assigned for slight impairment, a 20 percent rating is assigned for impairment, and a 30 percent rating is assigned for severe impairment. The words slight, moderate, and severe are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. It also should be noted that use of descriptive terminology such as mild by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 U.S.C. § 7104(a); 38 C.F.R. §§ 4.2, 4.6. Under the revised version of DC 5257, for recurrent subluxation or lateral instability, a 30 percent rating is assigned 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. A 20 percent rating is assigned 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; (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 10 percent rating is assigned 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. 38 C.F.R. § 4.71a, DC 5257. In cases of patellar instability, a 30 percent rating is warranted for 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. 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 a brace, cane, or walker. 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. Under Note (1): For patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Per Note (2): A surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). 38 C.F.R. § 4.71a, DC 5257. A claimant who has arthritis or limitation of motion and instability of a knee may be rated separately under Diagnostic Codes 5003 and 5257. However, any separate rating must be based on additional disabling symptomatology. VAOPGCPREC 23-97 (1997), 62 Fed. Reg. 63,604 (1997); VAOPGCPREC 9-98 (1998), 63 Fed. Reg. 56,704 (1998). Other diagnostic codes relating to the knee are DC 5256 (ankylosis), DCs 5258 and 5259 (symptomatic dislocation and/or removal of semilunar cartilage), DC 5262 (impairment of tibia and fibula) and DC 5263 (genu recurvatum). These conditions are not shown on examination and the Board finds that application of those diagnostic codes is not warranted. 38 C.F.R. § 4.71a. At a December 2014 VA examination, the Veteran reported right knee swelling, giving way, and grinding. He described the right knee pain as intermittent, and reported it was aggravated by running with his kids, kneeling and squatting. On examination, flexion of the right knee was to 125 degrees and extension was to 0 degrees, with no pain noted on examination. The examiner also noted no evidence of pain on weightbearing or evidence of tenderness or pain on palpation of the joint. The Veteran was able to perform repetitive use testing with no additional loss of function or range of motion. The examiner noted that functional ability was not significantly limited with flareups or repeated use over time. Muscle strength was normal and there was no evidence of muscle atrophy. There was also no evidence of ankylosis. The examiner found no history of recurrent subluxation, lateral instability or recurrent effusion. Imaging found no evidence of arthritis. The examiner found no functional impact due to the right knee disability. At a February 2019 VA examination, the Veteran reported current knee pain, swelling and occasional "giving way," when climbing. The Veteran stated increased activity such as walking or climbing caused flareups of pain and swelling. On examination, flexion of the right knee was to 120 degrees and extension was to 0 degrees, with pain noted on flexion. There was objective evidence of pain or tenderness on palpation of the anterior knee. The Veteran was able to perform repetitive use testing with no additional loss of function or range of motion. The examiner noted that functional ability was not significantly limited with flareups or repeated use over time. Muscle strength was normal and there was no evidence of muscle atrophy. There was also no evidence of ankylosis. The examiner found no history of recurrent subluxation, lateral instability or recurrent effusion. The examiner found no functional impact due to the right knee disability. At an April 2021 VA examination, the Veteran reported knee pain, with flare ups of sharp pain, morning swelling and the knee giving way three to four times per week. Activity such as walking exacerbated the knee pain. The Veteran reported functional impairment in the form of not being able to walk normally, especially on stairs or on inclines. On examination, flexion was to 135 degrees and extension was limited to 20 degrees, with pain noted on both movements. The Veteran flinched on palpation of the joint. The Veteran was able to perform repetitive use testing without additional loss of function or range of motion. The examiner found that pain, weakness, fatigue, lack of endurance or incoordination did not cause functional loss after repeated use over time or with flareups and indicated that there was no additional loss of range of motion. Muscle strength was normal and there was no evidence of muscle atrophy. There was also no evidence of ankylosis. The examiner found a history of subluxation or persistent instability due to a ligament tear, requiring a prescription for a cane from a medical provider. The examiner found functional impact in the form of two to four weeks of lost work time in the prior 12 months due to bilateral knee meniscal tear and shin splints. Further, the examiner noted that the Veteran could not walk for long periods of time, run, jump, or bend due to knee pain, which affected his job as a builder. VA medical records are consistent with VA examination reports, indicating a history of chronic right knee pain with occasional flareups. Records do not show flexion limited to less than 120 degrees, or extension limited to more than 20 degrees. Records do show repeated complaints of the knee giving way or giving out throughout the appeal period. For example, a July 2014 MRI was specifically conducted for the right knee due to complaints of "giving way." A June 2015 orthopedic consult noted a history of knee instability and discomfort. In July 2019, the Veteran reported that stepping up caused the knee to buckle and give out, sometimes causing falls. Statements from the Veteran's wife and former employer also corroborate instances of the knee giving out. After review of the record, the Board finds that the preponderance of the evidence is against a finding that a rating higher than 10 percent is warranted prior to April 21, 2021, for limitation of motion due to the right knee disability. Prior to April 21, 2021, the record indicates that the Veteran's right knee disability caused pain on motion, however, does not show that flexion or extension was limited to a compensable degree. Indeed, the record shows the Veteran had range of motion from 0 to 120 degrees during this period. Both VA examinations and VA medical records during this time indicate motion within this range. Beginning April 5, 2021, the record shows that the Veteran's right knee disability manifested in extension to 20 degrees. However, no evidence of record prior to the April 2021 VA examination indicates this limitation of motion, nor does any evidence as of the April 2021 VA examination show that motion limited more than that reflected at the examination. Therefore, a rating higher than 30 percent is not warranted as of April 5, 2021. Regarding instability, the Board notes that while VA examiners found no evidence of lateral instability on examination, multiple VA medical records document complaints of the knee giving way, buckling or giving out. The Veteran's complaints are corroborated by statements from his wife and former employer who witnessed the knee giving out on occasion. Accordingly, resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran's right knee disability has manifested in slight lateral instability and therefore warrants a separate 10 percent rating prior to February 7, 2021. However, the record does not indicate that the instability was more than occasional or severe enough to warrant a rating higher than 10 percent during this time. Beginning February 7, 2021, the revised rating criteria allows for the increased 20 percent rating as the Veteran has a diagnosed knee condition with recurrent instability after surgical repair, and uses a cane prescribed by a medical provider. However, the Board finds that the higher 30 percent rating is not warranted as of February 7, 2021, as the evidence does not show that the recurrent instability requires a prescription for a brace and either a cane or walker. Accordingly, the preponderance of the evidence is against a finding that a rating higher than 10 percent prior to April 5, 2021, and a rating higher than 30 percent as of April 5, 2021, is warranted for limitation of motion caused by the right knee disability. A separate 10 percent rating for slight instability is warranted prior to February 7, 2021. However, a rating higher than 20 percent as of February 7, 2021, for patellar instability is not warranted. REASONS FOR REMAND TDIU Remand is required for referral of the claim for a TDIU to the Director, Compensation Service, for extraschedular consideration. The Veteran asserts he has been unable to work since April 2020. The Veteran is service connected for the following disabilities: Right knee meniscus tear status post-surgery, rated 10 percent from December 13, 2014, and rated 30 percent from April 5, 2021; Right knee impairment, residual of incomplete ligament tear, rated 20 percent as of February 7, 2021; Residuals of meniscal tear, left knee, rated 0 percent, and right knee scar, rated 0 percent. The Board notes that the decision herein also grants a 10 percent rating prior to February 7, 2021, for lateral instability of the right knee. Based on the forgoing, the Veteran does not meet the percentage standards set forth in § 4.16(a). Therefore, the Board may not consider the claim for a TDIU in the first instance but will refer it to the Director, Compensation Service, as there is a reasonable possibility that the Vetearn is unemployable by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). In February 2021 statements, the Veteran indicated that he cannot work due to symptomatology associated with the service-connected knee disabilities. Accordingly, remand is required for referral of the claim for a TDIU to the Director, Compensation Service, for extraschedular consideration. The matter is REMANDED for the following action: Refer the Veteran's claim for TDIU to VA's Director of Compensation Service for extraschedular consideration. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Ahmad 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.