Citation Nr: 21068451 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 09-47 679 DATE: November 10, 2021 ORDER A 10 percent rating, but no higher, is granted under DC 5003 for arthritis and painful motion of the left knee from January 17, 2007 to October 29, 2014. A 10 percent rating, but no higher, is granted for painful motion of the left knee under DC 5260 from April 9, 2016 to September 22, 2017. A rating in excess of 10 percent for limitation of flexion of the left knee is denied. A compensable rating for limitation of extension of the left knee is denied. A 10 percent rating is granted under DC 5259 for symptomatic removal of semilunar cartilage of the left knee from January 17, 2007. A 20 percent rating, but no higher, is granted for moderate patellar dislocation of the left knee under DC 5257 from January 17, 2007. REMANDED Entitlement to an increased rating in excess of 20 percent for a right knee disability is remanded. FINDINGS OF FACT During the appeal period, the Veteran's left knee disability was manifested by arthritis and painful motion of the knee, moderate patellar dislocation, and symptomatic removal of the semilunar cartilage. The evidence during the appeal period shows flexion limited to 95 degrees and extension limited to 5 degrees. The Veteran does not have a prescribed assistive device for his left knee. CONCLUSIONS OF LAW 1. The criteria for a 10 percent rating for arthritis and painful motion of the left knee under DC 5003 are met from January 17, 2007 to October 30, 2014 and from April 9, 2016 to September 22, 2017. 38 U.S.C. § 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.14, 4.45, 4.59, 4.71a, DCs 5256, 5257, 5258, 5259, 5260. 2. 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, 5103, 5103A, 5107(b); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.14, 4.45, 4.59, 4.71a, DCs 5256, 5257, 5258, 5259, 5260. 3. The criteria for a compensable rating for limitation of extension of the left knee have not been met. 38 U.S.C. § 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.14, 4.45, 4.59, 4.71a, DCs 5256, 5257, 5258, 5259, 5260. 4. The criteria for a 20 percent rating for moderate dislocation of the left knee under DC 5257 have been met from January 17, 2007. 38 U.S.C. § 1155 , 5103, 5103A, 5107(b); 38 C.F.R. §§ 4.1 , 4.3, 4.7, 4.10, 4.40, 4.14, 4.45, 4.59, 4.71a, DCs 5256, 5257, 5258, 5259, 5260. 5. The criteria for a 10 percent rating for removal of semilunar cartilage of the left knee under DC 5259 have been met from January 17, 2007. 38 U.S.C. § 1155 , 5103, 5103A, 5107(b); 38 C.F.R. §§ 4.1 , 4.3, 4.7, 4.10, 4.40, 4.14, 4.45, 4.59, 4.71a, DCs 5256, 5257, 5258, 5259, 5260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1997 to August 2005 and from July 2006 to January 2007. This matter comes before the Board of Veterans' Appeals on appeal from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. This case was previously remanded in September 2015 and December 2018. A February 2017 Board decision granted a 20 percent rating for a left knee disability under Diagnostic Code 5258 throughout the appeal period from November 15, 2007. A 20 percent rating was granted for right knee meniscal tear throughout the rating period on appeal from November 15, 2007. The Veteran appealed the decision to the United States Court of Appeals for Veterans' Claims (Court). In May 2018, the Court granted a Joint Motion for Remand, which vacated the portion of the decision that denied ratings in excess of 20 percent for right and left knee disabilities. The Joint Motion did not disturb the portion of the decision that awarded 10 percent ratings for right and left knee scars. The Joint Motion found that the Board erred in not addressing whether separate ratings are warranted under DC 5003 or 5010. The parties also agreed that the Board erred in assigning a single rating under DC 5258 for patellar subluxation of the left knee and failing to explain whether separate ratings are warranted under DC 5257 and 5259 for recurrent patellar subluxation and semilunar cartilage removal. In July 2021, the Veteran filed a new claim for an increased rating for his right knee disability. The Board notes that the increased rating for his right knee disability is already on appeal. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1 . Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the policy of the VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. After careful consideration of the evidence, any reasonable doubt remaining is resolved in the claimant's favor. 38 C.F.R. § 4.3. In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate or "staged" evaluations may be assigned for separate periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119, 125-126 (1999). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Court has held that "staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. 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. Painful motion is entitled to at least the minimum compensable rating. See Burton v. Shinseki, 25 Vet. App. 1 (2011). This regulation also requires that, whenever possible, the joints involved are 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. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The United States Court of Appeals for Veterans' Claims also has held, that "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). 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. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. The Court has held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. In both claims for an increased rating on an original claim and an increased rating for an established disability, only the specific criteria of the Diagnostic Code are to be considered. Massey v. Brown, 7 Vet. App. 204, 208 (1994). In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Increased rating for left knee disability The Veteran seeks a higher initial rating for his left knee disability. The Veteran contends that he has chronic knee pain and that his knee pain continues to worse. See February 2018 statement. A May 2008 rating decision granted service connection for left knee status post arthroscopy, effective from January 2007. A 0 percent rating was assigned. An October 2009 rating decision granted a 10 percent rating for left knee status post arthroscopy and right knee status post medial meniscal tear, together, from January 2007. The rating was assigned under DC 5003 for left knee status post arthroscopy and right knee status post medial meniscal tear for degenerative joint disease of both knees, with no objective evidence of painful motion or instability to warrant separate compensable ratings for either knee. An April 2015 Statement of the Case assigned a separate 10 percent rating for painful motion of the left knee from October 30, 2014 under DC 5260, pertaining to limitation of flexion of the left knee. The 10 percent rating was assigned based on VA treatment records in October 2014, which noted painful motion of the left knee. A June 2016 rating decision granted service connection for recurrent patellar dislocation of the left knee and assigned a 20 percent rating under DC 5258 for frequent episodes of locking and pain and effusion into the joint. In a February 2017 decision, the Board denied a rating in excess of 20 percent for recurrent patellar dislocation of the left knee. A December 2017 rating decision granted service connection for painful flexion of the left knee. A 10 percent rating was assigned under DC 5260 from September 23, 2017. The December 2017 rating decision continued the 20 percent rating for recurrent patellar dislocation under DC 5258. A July 2021 rating decision granted service connection for limitation of flexion and limitation of extension of the left knee from November 13, 2019. A 10 percent rating was assigned for limitation of flexion from November 13, 2019, based on flexion limited to 45 degrees. The Board notes that the 10 percent rating for limitation of flexion was already in effect from September 23, 2017. A 0 percent rating was assigned for limitation of extension from November 13, 2019, based on extension limited to 5 degrees. In summary, during the rating period, the Veteran had a combined 10 percent rating for both knees under DC 5003 from January 17, 2007 to October 30, 2014. A 10 percent rating was assigned for limitation of flexion of the left knee, pursuant to DC 5260, from October 30, 2014 to April 7, 2016 and from September 23, 2017. A 20 percent rating was assigned under DC 5258 from April 8, 2016. A non-compensable rating was assigned for limitation of extension from November 13, 2019. For reasons set forth below, the Board finds that a 10 percent rating is warranted for arthritis and painful motion of the left knee under DC 5003 prior to October 30, 2014 and from April 9, 2016 to September 22, 2017. The Board finds that a 20 percent rating is warranted for moderate recurrent dislocation of the left knee under DC 5257 from January 17, 2007. A 10 percent rating is warranted for symptomatic removal of semilunar cartilage under DC 5259 from January 17, 2007. A VA examination of the left knee dated in October 2007 showed normal range of motion of the left knee with no pain on motion. The Veteran reported that his left knee became a problem for him in October 2004. He was on patrol when the driver of the vehicle hit a ditch, causing his left knee to hit the radio. Three months later, he hopped off of his bed and dislocated his patella. X-ray showed very slight narrowing of the medial compartment of each knee and otherwise normal range of motion of the left knee. A private treatment record dated in May 2007 noted minimal patellofemoral pain of the left knee and very little activity related ache in the left knee. His gait was non-antalgic. He had motion of the left knee from 0 to 130 degrees. A VA treatment record dated in October 2014 indicated that the range of the knee joints was limited due to pain. The Veteran was next afforded a VA examination in April 2016. The Veteran reported frequent flare-ups of his knee in cold weather. The functional loss of the knee was that he always walked with a limp, could not run anymore, and even had pain with prolonged sitting. Range of motion testing showed flexion of the left knee to 110 degrees and extension to 0 degrees. There was knee pain with flexion, extension, and with weight-bearing. There was additional loss of motion with repetition. He had flexion to 95 degrees after three repetitions. The functional loss was due to pain and lack of endurance. The examiner was unable provide an opinion as to whether pain, weakness, fatigability, or incoordination could significantly limit functional ability during flare-ups or when the joint is used repeatedly over time. It was noted that there was a flare-up at the time of the examination. Additional factors of disability included intermittent swelling. Walking, prolonged sitting, and standing also worsened knee pain. Ankylosis was not present. The examiner diagnosed osteoarthritis and recurrent patellar dislocation of the left knee. The examination showed that there was no subluxation, instability, or recurrent effusion of the left knee. Joint stability tests of the left knee were normal. The examination noted a history of moderate recurrent patellar dislocation. The examiner estimated that the range of motion of the left knee was limited to 95 degrees due to pain. The examination noted a history of reconstruction of the medial patellofemoral ligament and excision of medial plica and limited chondroplasty. VA treatment records dated in June 2017 noted chronic left knee pain after patellar subluxation requiring medial patellar lateral reconstruction and quad release. The Veteran had a brace. On examination in December 2017, the Veteran had flexion of the left knee to 115 degrees and extension to 0 degrees. The Veteran had pain with flexion of the left knee with weight-bearing. The examination noted that the functional ability of the left knee was not significantly limited by pain, weakness, fatigability, or incoordination with repeated use over time or with flare-ups. There was no ankylosis. Joint stability tests of the knee were normal. The examination noted a history of recurrent patellar dislocation. There was no history of recurrent subluxation and no semilunar cartilage condition of the left knee. A November 2019 VA examination showed flexion to 110 degrees and extension to 5 degrees. There was pain with flexion and extension. There was no additional loss of function or range of motion with three repetitions. The examiner noted that pain, weakness, fatigability, and incoordination significantly limited functional ability with repeated use over time. The examiner was unable to describe the functional loss in terms of range of motion. Additional factors of disability of the left knee included swelling, interference with sitting, and interference with standing. There was a history of moderate lateral instability of the left knee. Joint stability tests of the left knee were normal. The Veteran reported that his left knee buckled, and the movement was loose. There was moderate patellar dislocation of the left knee. There was a history of meniscal conditions with frequent episodes of joint "locking" of the left knee. The examiner opined that arthritis of the left knee is related to service. In June 2020, the examiner completed an addendum opinion. The examiner estimated that the Veteran had flexion of the left knee to 105 degrees and extension to 0 degrees with functional loss. In February 2021, the RO requested an additional retrospective opinion addressing the revised rating criteria for the knee effective from February 2021. In March 2021, the examiner completed an addendum opinion regarding the range of motion of the left knee since 2008. The examiner reviewed the past examinations. In November 2019, he had left knee flexion to 110 and extension to 5. In February 2017, the Veteran had left knee flexion to 120 degrees and extension to 0 degrees. In April 2016, he had left knee flexion to 120 degrees and extension to 0 degrees. In January 2008, the left knee was normal. The examiner commented that passive range of motion and range of motion in non-weight bearing were not assessed in 2008, 2016, or 2017. Therefore, the examiner was unable to comment on the passive range of motion and range of motion in non- weight bearing. The examiner opined that the retrospective opinion, "is that depending on the day and how the Veteran is feeling influences objective findings and measurements." The examiner opined that all measurements are believed to be accurate assessments on that particular day, and one would opine that there is consistency in measurements, with the exception of the initial finding in 2008, representing a consensus to current disability. The Veteran had a VA examination in May 2021. The Veteran reported that he could not run anymore. He reported that he could only do 20 feet if he had to. The examination noted flexion of the left knee to 120 degrees and extension to 0 degrees. The Veteran had passive flexion of the left knee to 130 degrees and extension to 0 degrees. There was no evidence of pain on examination. He did not have additional loss of range of motion after three repetitions. A September 2021 VA examination showed flexion of the left knee to 110 degrees and extension to 0 degrees. With pain, weakness, fatigability, and incoordination, the examiner estimated that the Veteran had flexion to 105 degrees. The estimated range of motion of the knee with flare-ups was 100 degrees. With regard to limitation of motion, the evidence shows that the Veteran has had painful motion of the left knee throughout the appeal period. Prior to October 2014, there was conflicting information about painful motion of his knee joint. While the October 2007 VA examination did not show painful motion, the May 2007 private treatment record noted patellofemoral pain and painful motion. In VAOPGCPREC 23-97, the VA General Counsel interpreted that a veteran who has arthritis and instability of the knee may be rated separately under DC's 5003 and 5257, provided that a separate rating is based upon additional disability. Subsequently, in VAOPGCPREC 9-98, the VA General Counsel further explained that, if a veteran has a disability rating under DC 5257 for instability of the knee, and there is also x-ray evidence of arthritis, a separate rating for arthritis could also be based on painful motion under 38 C.F.R. § 4.59. With respect to the assignment of a rating under DC 5003, as noted previously, a combined 10 percent rating was assigned for both knees under DC 5003 from January 17, 2007 to October 30, 2014. The 10 percent rating for both knees was based on arthritis of two joints with no objective evidence of painful motion. However, the evidence shows that the Veteran had arthritis and painful motion of his left knee throughout the initial rating period. The minimum compensable rating is warranted for painful motion of the knee. Accordingly, a 10 percent rating is warranted for arthritis and painful motion under DC 5003 for his left knee, alone, prior to October 30, 2014. A 10 percent rating for limitation of flexion under DC 5260 was in effect from October 30, 2014 to April 8, 2016 and from December 8, 2017. In a June 2016 rating decision, a separate rating was granted for recurrent patellar dislocation of the left knee from April 8, 2016. From April 8, 2016, the separate 10 percent rating for painful motion of the left knee was discontinued. However, the separate rating for painful motion should have remained in effect from April 8, 2016 to December 8, 2017, as the arthritis and painful motion of his knee was not contemplated by the rating assigned for recurrent dislocation under DC 5258. Accordingly, a 10 percent rating is also warranted for painful flexion from April 9, 2016 to September 22, 2017. The 10 percent rating for limitation of flexion of the left knee has been in effect since September 23, 2017. Thus, although the July 2021 rating decision granted service connection for limitation of flexion, a 10 percent rating was already in effect at that time for limitation of flexion. The criteria for a rating higher than 10 percent for limitation of flexion of the left knee have not been met during the appeal, as he did not have flexion of the left knee limited to 30 degrees. The evidence shows that the Veteran's left knee disability has been manifested by flexion to 95 degrees and extension to 5 degrees, with consideration of functional loss of the knee due to pain and flare-ups. A compensable rating is not warranted for limitation of extension at any point during the appeal period. His extension is limited to 5 degrees at worst, with consideration of functional loss due to pain and flare-ups. A 20 percent rating is currently assigned for the Veteran's recurrent patellar dislocation under DC 5258. The Joint Motion directed the Board to consider the application of ratings under DC 5257 and 5259. In Lyles v. Shulkin, 29 Vet. App. 107 (2017), the Court held that, as a matter of law, separate ratings are not precluded for limitation of motion (DCs 5003, 5260 and 5261), meniscal disability (DCs 5258 and 5259) and instability (DC 5257). The evidence reflects that the Veteran had two arthroscopic knee surgeries in service, including reconstruction of the medial patellofemoral ligament and excision of the medial plica and limited chondroplasty. The November 2019 VA examination showed a history of meniscal conditions with frequent episodes of joint "locking" of the left knee and reported symptoms of buckling and looseness of his knee. The Board finds that a 10 percent rating is warranted for symptomatic removal of the semilunar cartilage under DC 5259 throughout the initial rating period from January 17, 2007. The Veteran has had recurrent dislocation of his patella throughout the appeal period, which has been assessed as moderate. He was diagnosed with a chronically dislocated left patella in service. His November 2019 VA examination assessed the patellar dislocation as moderate. The Board finds that a 20 percent rating is warranted for recurrent patellar dislocation under DC 5257 throughout the initial rating period from January 17, 2007. The evidence does not reflect findings of ankylosis, impairment of the tibia and fibula, or genu recurvatum. Accordingly, there is no basis for the assignment of ratings under DC's 5260, 5262, or 5263. The Board notes that the rating criteria of DC 5257 were revised, effective February 7, 2021. The revised criteria or recurrent subluxation or instability under DC 5257 provide that 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. The revised criteria for patellar instability under DC 5257 provide that 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. The March 2021 VA examination reflects that the Veteran did not report the use of any assistive devices for his left knee. Therefore, the evidence does not show that a medical provider has prescribed both an assistive device and bracing or a brace with a cane or walker for his left knee disability. Accordingly, a rating in excess of 20 percent is not applicable under the revised criteria of DC 5257 in effect from February 7, 2021. REASONS FOR REMAND 1. Entitlement to an increased rating for a right knee disability is remanded. The prior remand directed the RO to obtain a retrospective medical opinion regarding limitation of motion for both the left and right knees. In February 2021, the RO requested a retrospective opinion for both knees. The March 2021 retrospective medical opinion only addressed the left knee. In order to ensure compliance with the remand, the appeal must be remanded for a retrospective opinion addressing limitation of motion of the right knee. (Continued on the next page) The matters are REMANDED for the following action: 1. Obtain a retrospective opinion on the severity of the Veteran's right knee disability through the appeal period since January 2007. The examiner must comment on the historical severity of the Veteran's range of motion on both active and passive motion and in weight-bearing and non-weight-bearing. If this opinion cannot be provided the examiner must clearly explain why that is so, including discussing whether the prior VA examinations are accurate representations of the Veteran's disability level. J. NICHOLS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Catherine Cykowski 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.