Citation Nr: 21068140 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 16-09 581 DATE: November 9, 2021 ORDER Effective December 19, 2012, a 30 percent disability rating, but no higher, for impairment of the left knee with dislocation of left fibula is granted. REMANDED Entitlement to an increased rating in excess of 20 percent for left leg numbness is remanded. FINDING OF FACT Throughout the entire period on appeal, the Veteran's left knee is manifested by severe instability and pain on flexion. CONCLUSION OF LAW The criteria for a 30 percent, but no higher, for impairment of the left knee with dislocation of left fibula, are met. 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 FINDING AND CONCLUSION The Veteran served on active duty from September 1989 to December 1990. This matter came before the Board of Veterans Appeals (Board) on appeal from a June 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In June 2021, the Board remanded the issues for new VA examinations. The appeal has returned for further appellate review. Entitlement to a 30 percent rating, but no higher, for a left knee disability. VA's schedular percentage ratings are based on the average impairment of earning capacity as a result of service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. A separate or higher rating may be assigned based on non-overlapping conditions and symptoms, if the compensable criteria under applicable diagnostic codes are met, including with consideration of additional functional loss after repetitive use or flare-ups for musculoskeletal conditions based on range of motion. See 38 C.F.R. §§ 4.14, 4.40, 4.45, 4.59, 4.71a; Amberman v. Shinseki, 570 F.3d 1377 (Fed. Cir. 2009); Thompson v. McDonald, 815 F.3d 781 (Fed. Cir. 2016). Pain itself does not constitute functional loss, and painful motion must result in functional loss to constitute limited motion for a rating under diagnostic codes based on limitation of motion. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings may be awarded if there are decreases or increases in symptomatology that meet the criteria for a different rating for a distinct period during the appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). If an increase in disability level was factually ascertainable within one year prior to receipt of the increased rating claim, then the effective date will be the date on which that increase is shown to have occurred; otherwise, the effective date will be the date of receipt of the claim. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(2). Knee disabilities in particular are unique in the rating code, as they are one of a few orthopedic disabilities in which a Veteran may receive multiple ratings based on separate symptoms in the same joint. Although the law generally prevents considering the same symptoms under various diagnoses to support separate ratings, some of the relevant diagnostic codes for the knee have been interpreted to apply to different functions of the knee, therefore warranting separate consideration. In particular, a separate rating may be assigned under a code for meniscal impairment pre- or post-surgery (Diagnostic Codes 5258 and 5259), for limitation of motion (Diagnostic Codes 5003 or 5260 and 5261), and for stability or subluxation (DC 5257), if there are non-overlapping symptoms that are not compensated by the assigned rating. The criteria for rating knee disabilities were recently amended, effective February 7, 2021. The Board will consider both sets of criteria, as the Veteran is entitled to application of the criteria that are most favorable to his pending claim; however, an award based on the amended regulations may not be made effective before the effective date of the change. See 38 U.S.C. § 5110 (g); 38 C.F.R. § 3.114; Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The Veteran's impairment of the left knee with dislocation of the left fibula is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5257, for other impairment of the knee. Under Diagnostic Code 5257, a 10 percent rating is warranted for slight recurrent subluxation or lateral instability. A 20 percent rating is warranted for moderate recurrent subluxation or lateral instability. A 30 percent rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Effective February 7, 2021, VA amended the rating criteria for disabilities of the knee and leg. The amended Diagnostic Code 5257 provides ratings for other impairment of the knee based on recurrent subluxation or instability, and patellar instability. 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 maximum 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. 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 maximum 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. Note (1) provides that, for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note (2) provides that a surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as a surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). Resolving reasonable doubt in the Veteran's favor, the Board finds a 30 percent rating, but no higher, is warranted for impairment of the left knee for the entire period on appeal beginning on December 19, 2012 (the date of the Veteran's increased rating claim plus the one year look back provision). Here, the Veteran was afforded VA examination in April 2014, August 2015, and July 2021. In April 2014, the Veteran reported taking Motrin and Tylenol for his pain and he wore a brace when needed. He reported having flare-ups at the end of his workday and that he used ice and non-steroidal anti-inflammatory drugs to resolve the pain. On physical examination, it was noted left knee flexion was limited to 95 degrees with objective evidence of painful motion beginning at 90 degrees. There was no limitation on extension and no objective evidence of painful motion on extension. On repetitive use testing, it was noted that flexion was limited to 95 degrees and extension was unlimited. The examiner noted that less movement than normal, weakened movement, pain on movement, disturbance of locomotion and interference with standing, sitting and weight bearing contributed to the Veteran's functional loss and/or impairment. There was pain to palpation of the joint line or soft tissue. Muscle strength was with active movement against some resistance on left knee flexion and extension. Anterior and medial-lateral stability testing were within normal limits. There was grade 1+ posterior instability noted. The examiner noted evidence of slight recurrent patellar subluxation and/or dislocation. There was no history of medial tibial stress syndrome, stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment. There was no meniscal condition, joint replacement, arthroscopic surgery, or any associated residuals. It was noted that the Veteran occasionally used a brace as a normal mode of locomotion. There was x-ray evidence of arthritis and no evidence of acute fracture or dislocation. The examiner concluded that the Veteran's left knee impacted his ability to work due to pain with long standing. The examiner also noted being unable to provide additional range of motion loss due to pain with flare-ups or over a period of time without resorting to mere speculation. In August 2015, the Veteran reported having daily flare-ups. On physical examination, it was noted left knee flexion was limited to 120 degrees. There was no limitation on extension. Pain was noted on flexion and the lateral aspect of the left knee over the bony prominence. There was no objective evidence of crepitus. On repetitive use testing, there was no additional functional loss or range of motion. The examiner was unable to opine without resort to mere speculation, whether the Veteran's pain significantly limited functional ability with flare-ups and repeated use. The examiner noted that instability of station, disturbance of locomotion, and interference with standing and sitting contributed to the Veteran's functional loss and/or impairment. Muscle strength was noted as reduced with active movement against some resistance on left knee flexion and extension. There was no ankylosis, recurrent subluxation, lateral instability, or recurrent effusion. Anterior, posterior, and medial stability testing were within normal limits. There was lateral instability that was noted as grade 3+. There was no history of medial tibial stress syndrome, stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment. There was no history of a meniscal condition, or knee surgery. It was noted that the Veteran occasionally used a brace as a normal mode of locomotion. There was no x-ray evidence of arthritis or other specific acute process. The examiner concluded that the Veteran's left knee impacted his ability to work due to pain with exercise, standing and walking. In July 2021, the Veteran reported having pain and weakness and flare-ups that were described as with daily severe pain and swelling lasting all day that manifested with sharp aches that were caused by walking, standing, bending, driving, and sitting. The examiner noted the Veteran did not report or have a history of instability or recurrent subluxation or effusion of the knee. On physical examination, it was noted left knee flexion was limited to 130 degrees and extension was unlimited. Pain was exhibited on flexion. Passive range of motion was noted to yield the same findings as active range of motion testing. There was no objective evidence of crepitus or localized tenderness or pain on palpation of the joint or associated soft tissue. On repetitive use testing, it was noted that there was no additional loss of function or range of motion. Pain caused functional loss with repeated use over time and during those times flexion was limited to 125 degrees and extension was unlimited. Pain was also noted to cause functional loss during flare-ups and during those times flexion was limited to 120 degrees and extension was unlimited. There were no additional factors contributing to the disability. There was no history of muscle atrophy, ankylosis, recurrent subluxation, persistent instability, ligament tear, recurrent patellar instability, medial tibial stress syndrome, stress fractures, chronic exertional compartment syndrome, or any other tibial and/or fibular impairment, or meniscus condition. The Veteran occasionally used a brace as a normal mode of locomotion. Imaging studies were not conducted, and the examiner concluded that the Veteran's left knee impacted his ability to work as he lost an average of one week in the last 12 months due to pain with exercise, standing, and walking. Based on the foregoing, the Board has resolved reasonable doubt in the Veteran's favor and found that a 30 percent rating under the more favorable version of Diagnostic Code 5257 prior to February 7, 2021 for the Veteran's left knee impairment is warranted. As reflected in the April 2014 examination report, the Veteran was noted to have instability in the left knee and at the August 2015 examination, that stability was noted to be severe. Additionally, in a June 2015 notice of disagreement, the Veteran indicated that he has had severe pain and instability in the left knee for the last four to five years. Thus, a 30 percent rating for severe instability is warranted. The Board finds a preponderance of the evidence is against the assignment of a higher than 30 percent. Per this decision, the Veteran is in receipt of the highest schedular rating for other impairment of the knee for the entire period on appeal, and there is no basis to award a higher evaluation. 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). However, the pertinent medical evidence does not suggest the Veteran has ever had ankylosis (Diagnostic Code 5256), dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint (Diagnostic Code 5258), removal of semilunar cartilage (Diagnostic Code 5259), extension limited to 30 degrees (Diagnostic Code 5261), impairment of the tibia and fibula (Diagnostic Code 5262), or genu recurvatum (Diagnostic Code 5263). The Board notes the Veteran is in receipt of a 10 percent rating for his left knee limitation of flexion due to pain on movement under Diagnostic Code 5260. However, the Veteran's left knee disability has not been noted to be manifested by flexion limited to 30 degrees or more to warrant a higher rating. In conclusion, the Board finds a 30 percent rating, but no higher, is warranted for the entire period on appeal and a preponderance of the evidence is against the Veteran's claim for a rating in excess of 30 percent. 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. REASONS FOR REMAND Entitlement to an increased rating in excess of 20 percent for left leg numbness is remanded. Here, the Veteran was last afforded a VA examination in July 2021. The Veteran reported pain and numbness that starts at the mid-thigh area and travels down to the lower leg and the condition had gotten worse. However, the examiner relied on a 1998 electromyography (EMG) study that predated the Veteran's reports of a worsening condition. The Board finds an EMG study is required as the Veteran has indicated his disability has worsened and the EMG utilized by the July 2021 examiner is too remote and not indicative of the current level of severity. Thus, the claim is remanded. The matter is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine the current level of severity of his left lower extremity nerve disability. The examiner should review the file and provide a complete rationale for all opinions expressed. EMG and nerve conduction studies should be performed. If the examiner finds that EMG and nerve conduction studies are not required, the examiner should clearly explain why that is the case. 2. Upon completion of the above, and any additional development deemed appropriate, readjudicate the remanded issue. If the benefit sought remains denied, the Veteran should be provided with a supplemental statement of the case. The case should then be returned to the Board for appellate review if otherwise in order. K.A. KENNERLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. McDuffie, 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.