Citation Nr: 21071846 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 18-53 176 DATE: December 1, 2021 ORDER An initial rating of 30 percent, but no higher, for left knee arthritis prior to July 23, 2018, is granted. An initial rating in excess of 10 percent for left knee instability prior to July 23, 2018, is denied. A separate rating of 10 percent, but no higher for the symptomatic removal of the semilunar cartilage under Diagnostic Code (DC) 5259 prior to July 26, 2019, is granted. A rating of 50 percent, but no higher, for left knee arthritis from July 23, 2018, to July 25, 2019, is granted. A rating of 30 percent, but no higher, for left knee instability from July 23, 2018, to July 25, 2019, is granted. REMANDED The issue of service connection for pes planus is remanded. The issue of service connection for a right wrist disorder is remanded. FINDINGS OF FACT 1. The competent and probative evidence shows that before July 23, 2018, when considering flare-ups or repeated use over time, left knee arthritis manifested in extension approximately limited to 30 degrees. 2. Before July 23, 2018, the evidence is against a finding of moderate left knee instability. 3. Before July 26, 2019, the evidence demonstrates asymptomatic removal of the left knee semilunar cartilage. 4. From July 23, 2018, to July 25, 2019, the competent and probative evidence is at least in equipoise as to whether the Veteran's left knee arthritis warranted the maximum schedular rating permitted for limitation of leg extension. 5. From July 23, 2018, to July 25, 2019, the competent and probative evidence is at least in equipoise as to whether the Veteran's left knee instability warranted the maximum schedular rating permitted for recurrent subluxation or lateral instability. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 30 percent, but no higher, for left knee arthritis manifest in limitation of extension prior to July 23, 2018, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5003-5261. 2. The criteria for an initial rating in excess of 10 percent for left knee instability prior to July 23, 2018, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5257. 3. The criteria for a separate rating of 10 percent, but no higher, prior to July 26, 2019, for the symptomatic removal of semilunar cartilage, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.71a, DC 5259. 4. The criteria for a rating of 50 percent, but no higher, for left knee arthritis manifest in limitation of extension from July 23, 2018, to July 25, 2019, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5003-5261. 5. The criteria for a rating of 30 percent, but no higher, for left knee instability from July 23, 2018, to July 25, 2019, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1982 to June 1991. This case is before the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). In a May 2020 decision, the Board denied the claims of service connection for pes planus and a right wrist disorder, denied an initial rating in excess of 20 percent for left knee arthritis before July 26, 2019, and granted a separate rating of 10 percent for left knee instability before July 26, 2019. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court), which vacated the Board's May 2020 decision in a June 2021 Order. In an accompanying Joint Motion for Partial Remand (JMPR), the parties agreed that the Board failed to ensure compliance with VA's duty to assist and provide an adequate statement of reasons or bases for its findings. Specifically, regarding the denial of service connection for pes planus and a right wrist disorder, the Board erred in not addressing whether the VA satisfied the duty to assist in obtaining medical records from the Veteran's private physicians. Accordingly, these issues will be remanded for further development. Regarding the initial increased rating for left knee arthritis before July 26, 2019, the parties agreed that the Board erred in relying on an inadequate August 2017 VA examination. Further, the JMPR states that, while the Board determined the Veteran's left knee disability also manifests in slight instability warranting a separate rating, it failed to articulate what is considered to be "slight," "moderate," and "severe" instability in determining the appropriate rating. Accordingly, the Board will conduct a de novo review of these issues. Increased Rating An initial increased rating for a left knee disability. The Veteran contends that he is entitled to a higher rating for his service-connected left knee instability. The Veteran's left knee disability prior to July 26, 2019, is rated 20 percent under DC 5003-5261 for degenerative arthritis manifest in limitation of extension and 10 percent under DC 5257 for recurrent subluxation or lateral instability. 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 shall be applied, VA will assign the higher evaluation if the disability picture more nearly approximates the criteria required for that rating. Otherwise, it will assign the lower rating. 38 C.F.R. § 4.7. VA resolves any reasonable doubt regarding the degree of disability in favor of the Veteran. 38 C.F.R. § 4.3. Hyphenated Diagnostic Codes are used when an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy, or rating under one Diagnostic Code requires the use of an additional Diagnostic Code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. In the case of an initial rating, the entire evidentiary record from the time of a veteran's claim for service connection to the present is of importance in determining the proper evaluation of the disability. Fenderson v. West, 12 Vet. App. 119 (1999). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the rating period on appeal, the Board can assign different or "staged" ratings for such different periods. See Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). In evaluating a disability, the current examination reports are considered in light of the whole recorded history to ensure that the current rating accurately reflects the disorder's severity. The medical and industrial history are to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Veterans are competent to report observable symptoms in the realm of their personal knowledge. See Jandreau, 492 F.3d at 1377; 38 C.F.R. § 3.159(a). DC 5003 provides that degenerative arthritis will be rated based on limitation of motion under the appropriate Diagnostic Codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, DC 5003. A rating of 10 percent is applicable, to be combined, not added under DC 5003, for each major joint or group of minor joints limitation of motion effects when it is noncompensable under the appropriate Diagnostic Codes. Findings such as swelling, muscle spasm, or satisfactory evidence of painful motion must objectively confirm the limitation of motion. The standard motion of a knee joint is from zero degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. DCs 5260 and 5261 govern the limitation of leg motion. DC 5260 concerns the limitation of leg flexion. Under DC 5260, flexion limited to 45 degrees warrants a 10 percent rating, flexion limited to 30 degrees warrants a 20 percent rating, and flexion limited to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a. DC 5261 pertains to the limitation of leg extension. Under DC 5261, extension limited to 10 degrees warrants a 10 percent rating, extension limited to 15 degrees warrants a 20 percent rating, extension limited to 20 degrees warrants a 30 percent rating, extension limited to 30 degrees warrants a 40 percent rating, and extension limited to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a. DC 5256 provides the rating criteria for ankylosis of the knee. 38 C.F.R. § 4.71a, DC 5256. Under DC 5257, slight subluxation or lateral instability warrants a 10 percent rating. Moderate subluxation or lateral instability warrants a 20 percent rating. A maximum 30 percent rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, DC 5257. 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. Objective medical evidence is not required to establish lateral knee instability under DC 5257, so objective medical evidence cannot be categorically found more probative than lay evidence concerning this Diagnostic Code. See English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). Effective February 7, 2021, VA amended the rating criteria for disabilities of the knee and leg. The amended DC 5257 provides ratings for other impairment of the knee based on recurrent subluxation or instability and patellar instability. These revisions apply to all claims filed on or after February 7, 2021. VA is to consider claims filed before and pending on February 7, 2021, under both the old and new rating criteria and will apply whatever criteria are more favorable to the Veteran. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). 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 one of the following: (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace 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 the 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 a 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. Under DC 5258, evidence of dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the knee joint warrants a 20 percent rating. 38 C.F.R. § 4.71a, DC 5258. Symptomatic removal of a semilunar cartilage warrants a 10 percent rating under DC 5259. 38 C.F.R. § 4.71a, DC 5259. Under DC 5262 provides the rating criteria for the malunion of the tibia and fibula. 38 C.F.R. § 4.71a, DC 5262. For disabilities evaluated based on limitation of motion, VA must apply the provisions of sections 4.40 and 4.45 on functional impairment. 38 C.F.R. §§ 4.40, 4.45. When applying these regulations, the VA must obtain examinations in which the examiner determines whether the disability manifests through weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. The examiner, if possible, should express these determinations in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain during flare-ups and after repetitive use over time. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011); DeLuca v. Brown, 8 Vet. App. 202, 208 (1995); 38 C.F.R. § 4.59. In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves when a flare-up is not observable at the time of examination. The higher evaluation will be assigned when two disability evaluations are potentially applicable, and the disability picture more nearly approximates the criteria for the higher rating. 3 8 C.F.R. § 4.7. VA has an independent obligation to consider all potentially applicable provisions of law and regulation and to apply the diagnostic criteria in a manner that maximizes benefits. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); Bradley v. Peake, 22 Vet. App. 280 (2008). Evaluating the same disability under several Diagnostic Codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one disorder is not duplicative of the symptomatology of the other disorder. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. For example, a claimant with arthritis and knee instability may be rated separately under DCs 5003 and 5257, but separate ratings require separate compensable symptomatology. See also 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). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information including lay and medical evidence of record in a case before the Secretary concerning benefits under laws the Secretary administers. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). A review of the evidence shows that before July 23, 2018, the Veteran's left knee disability manifested in left knee arthritis resulting in limitation of range of motion, warranting an initial rating of 30 percent, and mild left knee instability warranting a 10 percent rating. Before July 26, 2019, the Veteran's left knee disability also manifested in the symptomatic removal of the semilunar cartilage, warranting a 10 percent rating. The evidence demonstrates an increase in severity of arthritis and instability as of July 23, 2018. From July 23, 2018, to July 25, 2019, before the Veteran's total knee replacement surgery, the evidence is at least in equipoise that the left knee disability manifested in left knee arthritis with limitation of extension warranting a rating of 50 percent and left knee instability, warranting a 30 percent rating. During the February 2015 VA examination, the Veteran stated that his left knee flare-ups caused severe swelling that immobilized his knee, causing it not to bend properly. He reported constant use of a knee brace to help with his bilateral knee pain. The February 2015 VA examiner found functional impairment of the left knee was due to weakened movement, excess fatigability, pain on movement, swelling, deformity, instability of station, disturbance of locomotion, interference with sitting, standing, and weight-bearing. Joint stability testing showed an abnormal Lachman test with anterior instability of 5 to 10 millimeters demonstrating likely rupture of the anterior cruciate ligament and abnormal medial-lateral instability of fewer than 5 millimeters. The examiner found no posterior instability, patellar subluxation, or patellar dislocation. The examiner also noted the Veteran had a prior meniscectomy with residual symptoms of pain. Left knee flexion was limited to 100 degrees, with objective evidence of painful motion beginning at 95 degrees. Left knee extension was limited to 15 degrees with painful motion also beginning at 15 degrees. The Veteran was able to engage in the active movement of the left knee against gravity, but not against some resistance. The examiner further found the contributing factors of pain, weakness, fatigability, incoordination, and additional limitation of functional ability of the knee joint during flare-ups or repeated use over time resulted in the additional range of motion loss of 5 degrees in each direction; thus, in these circumstances, the Veteran's left knee flexion could be limited to 95 degrees and extension to 20 degrees. The Veteran denied falling within the last twelve months during a September 2015 VA intake note. The Veteran underwent a VA examination in August 2017; however, the August 2017 VA examination was inadequate as it did not estimate functional loss during a flare-up as required by Sharp; further, it did not satisfy the Correia testing requirements because the examiner provided no estimates for active, passive, weight-bearing, and non-weight-bearing range of motion testing. Additionally, the examination did not provide sufficient detail to fully inform the Board on the severity of the Veteran's left knee disability. See Monzingo v. Shinseki, 26 Vet. App. 97, 109 (2012). Thus, the Board will afford the August 2017 VA examination report no probative weight in determining the severity of the Veteran's left knee disability. A VA treatment note from July 23, 2018, shows the Veteran complained that his left knee disability had become progressively worse for several months. He rated his pain as 9 out of 10, reported a large amount of swelling around his left knee, and that pain made weight-bearing and ambulation difficult. He also reported intermittent numbness to the left knee. He said he fell due to his loss of balance, and VA treatment records show he was prescribed a cane. The Board finds a rating of 30 percent, but no higher, is warranted for left knee arthritis manifest in extension limitation before July 23, 2018. When considering additional functional loss during a flare-up or repetitive use, left knee extension was limited to approximately 20 degrees before July 23, 2018. A separate rating of 10 percent, but no higher, is warranted under DC 5259 as the record shows the Veteran had a left knee meniscectomy with residual symptoms of pain throughout the period before his July 26, 2019 total left knee replacement. The Board finds that the preponderance of the evidence is against a rating of more than 10 percent for left knee instability under DC 5257 before July 23, 2018. The Board has carefully considered the Veteran's reports about instability. English, 30 Vet. App. 347, 352-53. However, overall, the lay and medical evidence indicate that the instability symptoms have varied and caused only a small amount of instability before July 23, 2018. The preponderance of the evidence does not suggest the presence of symptoms more nearly approximating moderate severity under either the pre- or post-February 7, 2021 DC 5257 rating criteria. Indeed, before July 23, 2018, the Veteran did not report falling, experiencing persistent instability, or requiring the use of a cane, nor did the Veteran have a prescription for an assistive device or a diagnosis of a patellofemoral complex as indicative of moderate instability. Further, the Veteran reported his knee brace use was for pain. The Board finds the evidence at least in equipoise that from July 23, 2018, to July 25, 2019, a rating of 50 percent, but no higher, is warranted for left knee arthritis with painful motion resulting in functional loss and a rating of 30 percent, but no higher, is warranted for left knee instability. The record demonstrated worsening of these symptoms as of July 23, 2018; indeed, by July 26, 2019, the Veteran was required to undergo a total left knee replacement. The record contains no adequate medical examination from July 23, 2018, to July 25, 2019; however, the Board is granting the maximum schedular rating permitted for the Veteran's left knee arthritis and instability. Given the fully favorable decision contained herein, any error caused is harmless. Separate ratings are not warranted under DCs 5256, 5258, 5260, or 5262 as the weight of the competent and probative evidence is against finding ankylosis, dislocated semilunar cartilage, limitation of flexion to 45 degrees or less, or a tibial or fibular impairment. All Diagnostic Codes pertaining to the knee and leg have been considered. 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, 6 Vet. App. at 261-62; Lyles, 29 Vet. App. 107. In applying the benefit of the doubt doctrine, the record demonstrates that prior to July 23, 2018, a 30 percent rating, but no higher, is warranted for left knee arthritis with painful motion resulting in functional loss. Prior to July 26, 2019, a separate rating of 10 percent, but no higher, is warranted for the symptomatic removal of the semilunar cartilage. Prior to July 23, 2018, a rating in excess of 10 percent for slight left knee joint instability is not warranted. From July 23, 2018, to July 25, 2019, a rating of 50 percent, but no higher, is warranted for left knee arthritis with painful motion resulting in functional loss, and a rating of 30 percent, but no higher, is warranted for left knee instability. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.40, 4.45, 4.59, 4.7, 4.71a, DCs 5003-5261, 5257, 5259. REASONS FOR REMAND 1. Service connection for pes planus. 2. Service connection for a right wrist disorder. During September 2015 and March 2016 VA medical center visits, the Veteran identified relevant outstanding treatment records from private rheumatologists and an orthopedic surgeon. A remand is required to allow VA to obtain authorization and request these records. Regardless, the Board cannot make a fully-informed decision on the issue of service connection for pes planus or a right wrist disorder because no VA examiner has evaluated the Veteran for these disorders and opined whether he has a current disability related to service. VA treatment records contain complaints of flat feet and a right wrist disorder. The Veteran contends he injured his right wrist on active duty and that wearing combat boots in service caused his arches to drop. Accordingly, a remand is also necessary for a VA examination. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (stating that "[t]his is a low threshold" for meeting the requirement to trigger VA's duty to assist in providing an examination). The matters are REMANDED for the following action: 1. September 2015 and March 2016 VA treatment notes show the Veteran identified relevant outstanding private treatment records. VA should obtain authorization and request these records. 2. Upon completion of directive #1, schedule the Veteran for a VA examination for his pes planus/flat feet. The examiner should review the claims file. If a diagnosis cannot be provided, but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner should respond to the following: Is pes planus/flat feet at least as likely as not related to service, including continued use of combat boots? Did pes planus/flat feet clearly and unmistakably (undebatable) preexist the Veteran's service? If the examiner finds pes planus/flat feet did clearly and unmistakably preexist service, was it clearly and unmistakably not aggravated by service? Provide a rationale to support the opinion(s). 3. Upon completion of directive #1, schedule the Veteran for a VA examination for his right wrist disorder. The examiner should review the claims file. If a diagnosis cannot be provided, but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner should respond to the following: Is the right wrist disorder at least as likely as not related to service, including the claimed in-service injury? (Continued on the next page) Provide a rationale to support the opinion(s). R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Costa, 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.