Citation Nr: 21068366 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 17-22 627 DATE: November 10, 2021 ORDER From March 16, 2014, an initial rating in excess of 10 percent for right knee limitation of flexion is denied. From March 16, 2014, an initial rating of 10 percent, but no higher, for right knee limitation of extension is granted. From March 16, 2014, an initial maximum schedular rating of 10 percent for symptomatic residuals of right knee semilunar cartilage removal is granted. From March 16, 2014, an initial rating of 20 percent, but no higher, for right knee instability is granted. FINDINGS OF FACT 1. Throughout the appeal, the Veteran's right knee disability has not manifested with limitation of flexion that more closely approximated limitation to 30 degrees or less. 2. From March 16, 2014, the Veteran's right knee disability has manifested with painful extension, but has not more closely approximated extension limited to 15 degrees or greater. 3. From March 16, 2014, the Veteran's right knee disability has manifested with symptomatic residuals of semilunar cartilage removal, separate and distinct from degenerative joint disease with limitation of motion and instability. 4. From March 16, 2014 to February 7, 2021, the Veteran's right knee disability has manifested with instability that more closely approximated moderate instability; but not severe instability. From February 7, 2021, the Veteran's right knee disability has manifested with instability that more closely approximated a successfully repaired complete ligament tear causing persistent instability and a medical provider prescribes a brace for ambulation; but not an unrepaired or failed repair of a complete ligament tear requiring bracing and an assistive device such as a cane, crutches, or walker for ambulation. CONCLUSIONS OF LAW 1. Throughout the appeal, the criteria for an initial rating in excess of 10 percent for right knee limitation of flexion are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003-5260. 2. From March 16, 2014, the criteria for an initial rating of 10 percent, but no higher, for right knee limitation of extension are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5261. 3. From March 16, 2014, the criteria for an initial maximum schedular rating of 10 percent for symptomatic residuals of right knee semilunar cartilage removal are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5259. 4. From March 16, 2014, the criteria for an initial rating of 20 percent, but no higher, for right knee instability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from June 2006 to March 2014. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision of an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). In February 2019, the Board denied an initial rating in excess of 10 percent for a right knee disability, denied an initial rating in excess of 10 percent for left peroneal sensory neuropathy, and remanded the issue of entitlement to service connection for a left shoulder disorder. The Veteran appealed the February 2019 Board decision to the United States Court of Appeals for Veterans Claims (CAVC). In January 2020, the CAVC granted a December 2019 Joint Motion for Partial Remand (JMPR) and vacated the February 2019 Board decision insofar as it denied an initial rating in excess of 10 percent for a right knee disability. The Veteran and the VA agreed that the Board erred when it found the Veteran's lay testimony of instability to be competent and credible and then denied a separate compensable rating for instability without sufficiently explaining why the medical evidence of record was more probative than the Veteran's lay statements. See JMPR at 2-3. In April 2020, the AOJ granted entitlement to service connection for a left shoulder disability. Thus, the appeal as to that issue has been resolved in full, and the only remaining issue on appeal is entitlement to an increased initial rating for a right knee disability. In November 2020, the Board remanded the issues of entitlement to an initial rating in excess of 10 percent for a right knee disability and entitlement to a separate compensable rating for right knee instability. The Board noted that VA treatment records generated since the most recent knee examination showed the Veteran's report of right knee instability, and directed the Veteran be afforded another knee examination as that evidence "suggests a worsening of [knee] symptomatology." See November 2020 Board Remand at 2. In September 2021, the AOJ granted entitlement to a separate 10 percent rating for right knee instability effective as of September 1, 2021. That was a partial grant of the benefit sought on appeal, and thus this appeal remains pending. Substantial Compliance There has been substantial compliance with the Board's remand directives, as the Veteran was afforded an adequate knee examination in September 2021 and addressed the specific items identified in the Board's remand directives, with one exception discussed below. The examiner noted additional factors of disability, here pain, significantly limited the Veteran's functional ability during flare-ups, and after repeated use over time, and based on the Veteran's lay statements estimated a decreased range of motion as a result of the pain. The examiner described the Veteran's functional impairment as limitation in sitting, driving, standing or walking for prolonged periods of time, bending, kneeling, and squatting. The examiner conducted active and passive range of motion testing and obtained the range of motion of the opposite undamaged joint, stated that active and passive ranges of motion were the same, and noted that both active and passive motion in nonweight-bearing, but not weight-bearing, were productive of functional loss due to pain. The Board acknowledges that the notwithstanding the Board's remand directives, the examiner did not provide separate ranges of motion for testing performed in weight-bearing compared to nonweight-bearing or explain why that could not be accomplished. Thus, there has not been strict compliance with the Board's remand directives. However, the Board notes that competent medical evidence establishes that range of motion testing of the knee is accomplished in nonweight-bearing. See 38 C.F.R. § 4.71a, Plate II. Additionally, VA regulations require "testing for pain in weight-bearing and nonweight bearing," which has been accomplished here and which is distinct from requiring range of motion testing in weight-bearing and nonweight-bearing. See 38 C.F.R. § 4.59 ("[t]he joints involved should be tested for pain on both active and passive motion in weight-bearing and nonweight-bearing, and if possible, with the range of the opposite undamaged joint") (emphasis added). Here, the September 2021 examiner achieved compliance with VA regulations the intended purpose of the Board's remand directive and hence there has been substantial compliance with the Board's remand directives. 1. From March 16, 2014, an initial rating in excess of 10 percent for right knee limitation of flexion is denied. The Veteran asserts that his right knee disability is severe and warrants at least a 30 percent rating. See, e.g., July 2014 Notice of Disagreement. The Board agrees. While the Board is not assigning a rating of 30 percent under any single Diagnostic Code, the combined ratings exceed 30 percent. The Veteran is currently in receipt of an initial 10 percent rating under Diagnostic Code 5003-5260 (degenerative arthritis rated as limitation of flexion) for right knee degenerative joint disease (DJD) status post anterior cruciate ligament (ACL) reconstruction. Furthermore, the Veteran is in receipt of a 10 percent rating for right knee instability under Diagnostic Code 5257 effective September 1, 2021. The period appeal is from March 16, 2014, the effective date of service connection. Under Diagnostic Code 5260 (limitation of knee flexion) a zero percent rating is warranted where flexion is limited to 60 degrees. A 10 percent rating is warranted where flexion is limited to 45 degrees. A 20 percent rating is warranted where flexion is limited to 30 degrees. Higher ratings are warranted for more severe limitation of flexion. The Veteran's right knee was examined in December 2013, June 2014, August 2015, and September 2021. The Board observes that the September 2021 examination report is the only probative report of record. In this regard, the Veteran's service treatment records from 2012 include multiple imaging studies of the Veteran's right knee, which demonstrate "moderate tricompartmental ostearthritis." See STRs. In contrast, the August 2015 examiner incorrectly stated that degenerative or traumatic arthritis was not documented by diagnostic testing, which demonstrates unfamiliarity with the history of the Veteran's disability or a failure to accurately report the findings. Similarly, the June 2014 VA examiner stated that the imaging studies of the Veteran's knee were unavailable, evidencing lack of familiarity with the history of the Veteran's disability. Additionally, the December 2013 VA-contracted examination report contains insufficient information for rating the Veteran's knee disability. Thus, the Board will resolve reasonable doubt as to the severity of the Veteran's disability throughout the appeal in his favor and will rely on the September 2021 examination report in rating the entire period on appeal, as it is the most favorable to the Veteran. The most limited range of motion during the appeal period was noted in September 2021, where the examiner noted limitation of flexion to 100 degrees during flare-ups and after repeated use over time. Thus, as range of motion more closely approximates flexion limited to 60 degrees or more and does not more closely approximate flexion limited to 30 degrees or less, the Veteran does not meet the criteria for a rating in excess of 10 percent. The Board considered additional functional loss due to factors of disability including pain, excess fatigability, etc. However, the measured 100 degrees of flexion contemplate additional loss of range due to pain. Moreover, as discussed below, compensable ratings are warranted on a basis other than limitation of motion, and compensating the Veteran for these symptoms simultaneously under two Diagnostic Codes would result in impermissible "pyramiding," meaning that the Veteran would receive two compensable ratings at once for the same symptoms, which is prohibited by VA regulations. 2. From March 16, 2014, an initial rating of 10 percent, but no higher, for right knee limitation of extension is granted. Limitation of extension of the knee is rated under Diagnostic Code 5261. A zero percent rating is warranted for extension limited to 5 degrees. A 10 percent rating is warranted for extension limited to 10 degrees. A 20 percent rating is warranted for extension limited to 15 degrees. Higher ratings are warranted for greater limitation of extension. The most severe limitation of extension noted during the appeal was at the September 2021 examination, where the examiner noted painful knee extension that ended 5 degrees short of full extension. VA regulations state that the intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability, and actually painful joints are entitled to at least the minimum compensable rating for the joint. See 38 C.F.R. § 4.59. A precedential VA General Counsel opinion holds that a veteran may receive simultaneous ratings for limitation of flexion and limitation of extension of the knee without violating the rule against pyramiding, as flexion and extension are distinct motions. See VAOGCPREC 9-2004. Here, the Veteran's limitation of extension to 5 degrees short of full range warrants a zero percent rating under Diagnostic Code 5261. However, given VA's intent to recognize actually painful motion with joint pathology as productive of disability, and in light of the evidence of painful extension, a rating of 10 percent under Diagnostic Code 5261 is warranted. A rating in excess of 10 percent is not warranted as the evidence does not show, and the Veteran does not assert, limitation of extension that more closely approximates limitation to 15 degrees short of full extension. 3. From March 16, 2014, an initial maximum schedular rating of 10 percent for symptomatic residuals of right knee semilunar cartilage removal is granted. In addition to right knee DJD status post ACL repair, the evidence shows a meniscal (semilunar cartilage) condition. Specifically, the evidence shows a history of meniscal tear, and in 2012 the Veteran underwent "ACL reconstruction (revision) and chondroplasty medial femoral condyle with debridement anterior horn medial meniscus right." See September 2021 Examination Report at 16-17. Additionally, the examiner noted symptoms including frequent episodes of joint "locking" and joint pain. See id. at 16. Furthermore, while not noted in that section of the examination report, the examiner noted the Veteran's history of frequent effusion of the knee. See id. at 4. Under Diagnostic Code 5259, a 10 percent rating is warranted for symptomatic residuals following removal of semilunar cartilage. Under Diagnostic Code 5258, a 20 percent rating is warranted for dislocated semilunar cartilage, with frequent episodes of joint pain, "locking," and effusion. Here, a rating is warranted under Diagnostic Code 5259. The evidence shows debridement of semilunar cartilage with symptomatic residuals. As this condition is a listed condition in the rating schedule, the Board is required to use this Diagnostic Code when rating this disability. See Copeland v. McDonald, 27 Vet. App. 333 (2015). A rating under Diagnostic Code 5258 is not warranted. The Veteran has symptomatic residuals of semilunar cartilage, but he does not have dislocated semilunar cartilage. While his meniscal condition is productive of all the symptoms listed under Diagnostic Code 5258, it must be rated under Diagnostic Code 5259. The Board acknowledges that the Veteran is in receipt of separate ratings for painful flexion and extension. Moreover, as discussed below, the Board is awarding a rating for instability. However, he has additional right knee symptoms that are not contemplated by those ratings, such as joint pain at rest. Additionally, his ratings based on flexion, extension, and instability are related to his right knee DJD, not his meniscal condition. Thus, assigning a simultaneous rating under Diagnostic Code 5259 does not result in pyramiding of disabilities. 4. From March 16, 2014, an initial rating of 20 percent, but no higher, for right knee instability is granted. As noted above, the Veteran is in receipt of a 10 percent rating for instability under Diagnostic Code 5257 effective September 1, 2021. The rating criteria under Diagnostic Code 5257 were amended effective February 7, 2021, during the pendency of this appeal. Prior to the effective date of the amendment, a 10 percent rating was warranted under Diagnostic Code 5257 for recurrent subluxation or lateral instability that was slight. A 20 percent rating was warranted for recurrent subluxation or lateral instability that was moderate. A maximum schedular 30 percent rating was warranted for recurrent subluxation or lateral instability that was severe. According to MERRIAM WEBSTER'S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), "slight" means small in amount. "Moderate" means limited in scope or effect. "Severe" means very painful or harmful or of a great degree. 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).] Objective medical evidence is not required to establish lateral knee instability under Diagnostic Code 5257, so objective medical evidence cannot be categorically found more probative than lay evidence with respect to this Diagnostic Code. See English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). Here, the September 2021 examiner stated that recurrent subluxation or persistent instability was not present. However, the Board previously found that the Veteran has competently and credibly reported the presence of instability, and this was the subject of the JMPR resulting in vacatur of the prior Board decision. The Board resolves this reasonable doubt in favor of the Veteran and determines that persistent instability has manifested during the appeal. A 20 percent rating for recurrent subluxation or instability is warranted under the amended rating criteria. The evidence shows that the Veteran had undergone successful repair of a complete ligament tear. See September 2021 Examination Report. Moreover, the evidence shows that a brace is medically required for this condition. In this regard, the September 2021 examiner noted that the Veteran regularly wears a brace for locomotion due to his right knee DJD status post ACL repair. See id. at 18. While the examiner noted that the Veteran did not require a prescription for this brace, see id. at 14, other evidence of record is to the contrary. Specifically, the Veteran was prescribed a brace following his 2012 ACL reconstruction and was still wearing it months later. See, e.g., May 2012 STR; July 2012 STR; December 2012 STR. The Board resolves this reasonable doubt in favor of the Veteran. A maximum schedular 30 percent rating is not warranted under the amended criteria because the evidence does not show an unrepaired or failed repair of tear and does not show that an assistive device is required other than a brace. With respect to the period prior to February 7, 2021, the Board may not retroactively apply the amended rating criteria prior to the effective date of amendment. However, the Veteran's impairment prior to February 7, 2021 is consistent with "moderate" lateral instability. In this regard, while the Veteran described his flare-ups as "severe," that description includes his symptoms of pain, which are rated separately, and is not specific to his instability. Moreover, objective instability has been noted on testing during the appeal, and the Board finds that evidence of absence of objective instability is consistent with instability that is not severe. Likewise, the Veteran's requirement for a brace, but not an assistive device in addition to a brace, is consistent with instability that is less than severe. The Board acknowledges the Veteran's subjective report of worsening, as was noted in the November 2020 Board remand. However, as prior examinations of record are inadequate, the Board resolves the reasonable doubt as to severity throughout the appeal in favor of the Veteran. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D.M. Badaczewski, Associate 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.