Citation Nr: 21068005 Decision Date: 11/08/21 Archive Date: 11/08/21 DOCKET NO. 14-20 233 DATE: November 8, 2021 ORDER 1. Entitlement to a rating in excess of 10 percent for limitation of flexion of the left knee is denied. 2. Entitlement to an initial compensable rating for limitation of extension of the left knee is denied. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran's left knee has not demonstrated flexion limited to 30 degrees. 2. Throughout the appeal period, the Veteran's left knee has not demonstrated extension limited to 10 degrees. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for limitation of flexion of the left knee have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.71a, Diagnostic Criteria (DC) 5260 (2020). 2. The criteria for an initial compensable rating for limitation of extension of the left knee have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.71a, DC 5261 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1994 to September 2001. This appeal comes to the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In July 2016, the Veteran testified before the undersigned Veterans Law Judge at a Board hearing held at the RO. A transcript of that hearing has been associated with the record. In April 2018, the Board remanded this matter for further development. The Board notes that the issue of entitlement to service connection for a right knee disability was previously remanded. An April 2019 rating decision granted service connection for a right knee disability and awarded a 10 percent disability rating effective January 2, 2019. As this represents a full grant of the benefits sought, the issue is no longer in appellate status. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). The record contains no indication that the Veteran has disagreed with the initial rating or effective date assigned, thus, those matters are not in appellate status. See Grantham, 114 F. 3d at 1158 (holding that a separate notice of disagreement must be filed to initiate appellate review of "downstream" elements such as the disability rating or effective date assigned). Entitlement to an increased rating for limitation of flexion and extension of the left knee is denied. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if that disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3. Where a claimant appeals the denial of a claim of an increased disability rating for a disability for which service connection was in effect before he filed the claim for increase, the present level of disability is the primary concern, and past medical reports should not be given precedence over current medical findings. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). 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, 509-510 (2007). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disability. 38 C.F.R. § 4.14. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. § § 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, 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. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2017). In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id. (quoting 38 C.F.R. § 4.40). The Veteran's left knee disability is currently assigned a 10 percent rating under DC 5260 for limitation of flexion, as well as a noncompensable rating under DC 5261 for limitation of extension. He has been granted periods of temporary total evaluation for the left knee disability from October 26, 2011 to January 1, 2012, and from March 28, 2019 to July 1, 2019. Therefore, the Board will consider entitlement to an increased rating before and after these time periods. The knee may be rated under various diagnostic codes. The criteria for rating musculoskeletal disabilities have changed during the period covered by this appeal, effective February 7, 2021. See 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, DC 5257). When a law or regulation changes during the pendency of a Veteran's appeal, the version most favorable to the Veteran applies, absent congressional intent to the contrary. The amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change; however, the old regulations will be considered for the periods both before and after the change was made. See 38 U.S.C. § 5110 (g); 38 C.F.R. § 3.114; VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Thus, the Veteran is entitled to application of the criteria that are most favorable to his claim, except that an award based on the amended regulations may not be made effective before the effective date of the change. DC 5260 rates based on limitation of flexion. When flexion of the leg is limited to 60 degrees, a noncompensable rating is warranted. When flexion is limited to 45 degrees, a 10 percent rating is warranted. Flexion limited to 30 degrees warrants a 20 percent rating, while flexion limited to 15 degrees warrants the maximum 30 percent rating. However, where the Veteran shows noncompensable limitation of motion, but painful motion and functional impairment are evident, the Veteran is entitled to a 10 percent rating. DC 5261 rates based on limitation of extension. That code provides that when extension is limited to 5 degrees, a noncompensable rating is assigned. Extension limited to 10 degrees warrants a 10 percent rating. When limitation of extension is at 15 degrees, a 20 percent rating is warranted Extension limited to 20 degrees warrants a 30 percent rating. Extension limited to 30 degrees warrants a 40 percent rating. Lastly, extension limited to 45 degrees warrants the maximum, 50 percent rating. Under the version of the Schedule for Rating Disabilities in effect from February 7, 2021, DCs 5260 and 5261 remained the same. The diagnostic criteria applicable to recurrent subluxation or lateral instability, prior to February 7, 2020, is found at 38 C.F.R. § 4.71a, DC 5257 (2020). Under that code, slight impairment is assigned a 10 percent rating, moderate impairment a 20 percent rating, and severe impairment a 30 percent rating. The terms "mild," "moderate," and "severe" are not defined in the 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 should also be noted that use of terminology such as "mild" or "moderate" by VA examiners and others, 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 a higher rating. 38 C.F.R. §§ 4.2, 4.6. The criteria for DC 5257 have been amended to address recurrent subluxation and patellar instability, effective February 7, 2020, as explained below. Under DC 5257 for recurrent subluxation or instability, a 10 percent rating is warranted for a 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 either (a) a sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescription for a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation; or (b) the unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescription for either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 30 percent rating is warranted for the unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescription for both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. Regarding patellar instability, DC 5257 awards a 10 percent rating 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 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. 38 C.F.R. § 4.71a, DC 5257, Note. 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). Id. Other DCs pertaining to the knee include DC 5258, under which a maximum 20 percent rating is warranted for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. DC 5259 holds that symptoms due to the removal of the semilunar cartilage of either knee warrant a 10 percent rating, which is the maximum rating under the diagnostic code. Because DCs 5258 and 5259 have been interpreted as already contemplating limitation of motion of the knee generally (which means it contemplates limitation of flexion and extension), a separate rating under DCs 5259 and 5260 and/or 5261 is not indicated, because that would be compensating the same limitation of motion more than once. Under the version of the Schedule for Rating Disabilities in effect from February 7, 2021, DCs 5258 and 5259 remained the same. The diagnostic criteria applicable to impairment of the tibia and fibula are found at 38 C.F.R. § 4.71a, DC 5262 and have been amended, effective February 7, 2020. Under that code, prior to February 7, 2020, a 10 percent evaluation is warranted when malunion of the tibia and fibula is productive of slight knee or ankle disability. A 20 percent evaluation is warranted when malunion of the tibia and fibula is productive of moderate knee or ankle disability, and a 30 percent evaluation is warranted when such disability is marked. A 40 percent evaluation is warranted for nonunion of the tibia and fibula, with loose motion, requiring a brace. Since February 7, 2020, malunion of the tibia and fibula is to be evaluated under DCs 5256, 5257, 5260, or 5261 for the knee, or 5270 or 5271 for the ankle, whichever results in the highest evaluation. Nonunion of the tibia and fibula continues to warrant a 40 percent evaluation with loose motion, requiring a brace. Medial tibial stress syndrome (MTSS) and shin splints are also rated under DC 5262, effective February 7, 2020. A noncompensable rating is warranted for treatment for less than 12 consecutive months for one or both lower extremities. A 10 percent rating is warranted for required treatment for no less than 12 consecutive months and unresponsiveness to either shoe orthotics or other conservative treatment for one or both lower extremities. A 20 percent rating is warranted for required treatment for no less than 12 consecutive months and unresponsiveness to surgery and either shoe orthotics or other conservative treatment for one lower extremity. A 30 percent rating is warranted for required treatment for no less than 12 consecutive months and unresponsiveness to surgery and either shoe orthotics or other conservative treatment for both lower extremities. Under the version of the Schedule for Rating Disabilities in effect from February 7, 2021, the diagnostic criteria related to ankylosis of the knee, DC 5256, and genu recurvatum, DC 5263, remained the same. Finally, the diagnostic criteria applicable to knee replacement (prosthesis) are found at 38 C.F.R. § 4.71a, DC 5055 (2020). As the Veteran has not had a knee replacement, or demonstrated ankylosis or genu recurvatum in either knee, these codes are inapplicable. In May 2012, the Veteran attended a VA examination for his left knee disability. He denied experiencing flare-ups. Flexion was to 110 degrees, with objective evidence of pain at 90 degrees. Extension was to 5 degrees. The Veteran was able to perform repetitive use testing with no additional limitation of motion. The examiner noted pain on movement, swelling, limited movement, and interference with sitting, standing, and weight-bearing. Muscle strength and stability testing were normal. There was no history of patellar subluxation or dislocation. The Veteran did not have a history of MTSS, stress fractures, chronic exertional compartment syndrome, or any other tibial or fibular impairment. The examiner noted a left meniscal tear and associated meniscectomy. The Veteran did not use an assistive device for locomotion. In the VA Form 9 dated May 2014, the Veteran stated that his left knee disability resulted in pain, limitation of motion, and swelling. At the July 2016 Board hearing, the Veteran described instability and catching of the left knee, as well as frequent swelling. He also reported limitations regarding his ability to squat, run, and climb. In January 2019, the Veteran underwent another VA examination. He described symptoms including instability, as well as grinding and clicking when using stairs. He denied flare-ups or functional impairment. Flexion was to 140 degrees, with extension to 0 degrees. There was no objective evidence of tenderness, crepitus, or pain with weight-bearing. The Veteran was able to perform repetitive use testing, with three repetitions, with no additional loss of range of motion. Although the Veteran was not examined after repeated use over time or during a flare-up, the examiner estimated that no additional limitation of motion would result in such situations. Muscle strength testing was normal with no evidence of muscle atrophy or ankylosis. The examiner noted no history of recurrent effusion, recurrent subluxation, or lateral instability. Joint stability testing revealed only mild anterior instability in the left knee. The Veteran did not have a history of MTSS, stress fractures, chronic exertional compartment syndrome, or any other tibial or fibular impairment. The examiner noted the left meniscal tear that resulted in instability as a residual symptom. The Veteran did not use an assistive device for ambulation. In December 2020, the Veteran was afforded a third VA examination to evaluate the severity of his left knee disability. He reported pain while squatting and during high impact activity, as well as persistent swelling of the left knee. He described moderate flare-ups that occurred weekly and lasted for half of a day. These flare-ups were precipitated by playing with his children, squatting, and kneeling. They were alleviated by rest, ice, and heat. Flexion was to 140 degrees, with extension to 0 degrees. There was evidence of pain with flexion, which did not result in additional functional loss. The examiner noted pain with weight-bearing, crepitus, and mild tenderness. The Veteran was able to perform repetitive use testing, with three repetitions, with no additional loss of range of motion. Although the Veteran was not examined during a flare-up, the examiner estimated that flexion would be limited to 120 degrees in such situations. Muscle strength testing was normal with no evidence of muscle atrophy or ankylosis. There was no history of recurrent subluxation or lateral instability. The examiner noted effusion which involved swelling about three times monthly due to overuse. Joint stability testing revealed no evidence of instability in the left knee. The Veteran did not have a history of MTSS, stress fractures, chronic exertional compartment syndrome, or any other tibial or fibular impairment. The examiner noted the left meniscal tear resulted in painful motion as a residual symptom. The Veteran did not use an assistive device for ambulation. Additionally, in an addendum opinion, the December 2020 VA examiner concluded that the instability identified at the time of the January 2019 VA examination was the result of an ACL tear and that it was less likely than not that the ACL tear was the result of the service-connected left meniscal condition. The examiner explained that meniscal tears do not lead to ACL tears, as ACL tears typically occur due to high velocity injuries. The examiner further concluded that the Veteran did not have residual instability following his surgery in March 2019. Based on the evidence of record, the Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for the Veteran's left knee under DC 5260. The medical evidence of record reflects that the Veteran demonstrated flexion to no worse than 110 degrees throughout the appeal period. To warrant the next higher rating of 20 percent, flexion would need to be limited to 30 degrees. As such limitation has not been demonstrated, a higher rating under DC 5260 is not warranted. Regarding limitation of extension, the evidence of record does not reflect that the Veteran's extension was ever limited to 10 degrees during the appeal period in the left knee. Indeed, the record reflects that his extension was limited to no more than 5 degrees prior to and following the periods of convalescence. As such, a separate rating under DC 5261 is not warranted. Furthermore, there is no indication of any symptomatology that would warrant a separate rating under DC 5257. The record does not reflect evidence of joint instability as to warrant a separate compensable rating. The Board notes the Veteran's reports of instability at the Board hearing and during the January 2019 examination. However, he denied any history of recurrent subluxation and lateral instability in January 2019 and December 2020. Indeed, stability testing was normal upon examination in December 2020. Although mild anterior instability was identified during the January 2019 examination, the December 2020 examiner associated such symptomatology with an ACL tear, as opposed to the service-connected left meniscal condition. He further concluded that there was no residual instability of the left knee following the March 2019 surgery. The Board considers the examination findings to be the most probative evidence on the question of instability, as they reflect the outcome of evaluations by trained professionals. As these do not provide evidence of recurrent subluxation, lateral instability, or patellar instability, a separate rating under DC 5257 is not warranted. The Board notes that the Veteran has a history of a left meniscal tear, which was associated with instability and painful motion in January 2019 and December 2020, respectively. Although effusion was reported throughout the appeal period, none of the VA examiners concluded that frequent effusion was a residual symptom of the meniscal tear. Additionally, in the absence of frequent episodes of locking, a 20 percent rating under DC 5258 is not warranted. The Board further notes that an additional rating under DC 5258 or DC 5259 is not warranted as limitation of motion is already evaluated under another code. As such, a separate rating under DC 5258 or 5259 would constitute impermissible pyramiding. The medical evidence is negative for a diagnosis of ankylosis or genu recurvatum, precluding a rating under DCs 5256 and 5263. The record is also silent for any complaints, treatments, or diagnoses of an impairment of the tibia or fibula. Thus, a separate rating under DC 5262 is not warranted. In evaluating the Veteran's increased rating claim under DeLuca and Mitchell, supra, the Board notes that there has been objective evidence of painful motion on examination, as well as notations of functional impairment regarding the Veteran's ability to run, squat, climb, and perform high impact activities. The evidence of record reflects that the Veteran demonstrated pain, but no additional limitation of motion following repetitive use testing as to warrant a rating in excess of 10 percent under DC 5260 or a compensable rating under DC 5261. As such, the pertinent evidence of record has not revealed that flexion or extension were further limited as a result of pain, weakness, fatigability, incoordination, lack of endurance, or repetitive motion to a degree as to warrant a higher rating. Therefore, the Board finds that any rating higher than the current ratings assigned is not warranted based on application of 38 C.F.R. §§ 4.40 and 4.45. The Board notes that, in Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must provide opinions regarding flare-ups based upon estimates derived from information procured from relevant sources, including lay statements, when a flare-up is not observable at the time of examination. However, as with DeLuca, guidance on how to evaluate flare-ups has not been particularly clear. Nevertheless, it is reasonable that flare-ups must be quantifiable and must result in limitation of motion or function beyond that contemplated by the already provided evaluation. In addition, because there is a regulation addressing stabilization of ratings, the flare-up must be of such length as to establish that the overall impairment is more severe than currently evaluated, rather than a brief snapshot in time. Initially, the Veteran denied experiencing flare-ups during the May 2012 and January 2019 VA examinations. As such, additional testing to evaluate the impact of flare-ups and pain on limitation of motion was unwarranted on those occasions. In December 2020, he described moderate flare-ups occurring following physical activity on a weekly basis, which lasted for half of a day. The December 2020 VA examiner estimated that flare-ups would further limit flexion to 120 degrees and would not limit extension. The Board has considered the Veteran's statements regarding increased pain following certain physical activities. Based on the VA examination reports and lay statements, the evidence does not reflect symptomatology, including flexion to 30 degrees or extension to 10 degrees, due to flare-ups to the degree that would warrant a higher rating. In summary, the Board finds the preponderance of the evidence is against the assignment of increased ratings for limitation of flexion and extension of the left knee. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. The Veteran and his representative have not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017). MICHAEL KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Erin J. Trojanowski, 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.