Citation Nr: 21072101 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 17-06 579 DATE: December 2, 2021 ORDER Entitlement to an increased rating of 50 percent, but no higher, for right knee strain is granted. Entitlement to a separate evaluation of 20 percent, but no higher, prior to February 26, 2020 for right knee instability is granted. Entitlement to an evaluation of 20 percent, but no higher, from February 26, 2020 to August 6, 2021 for right knee instability is granted. Entitlement to an evaluation in excess of 20 percent from August 6, 2021 for right knee instability is denied. FINDINGS OF FACT 1. After resolving reasonable doubt in the Veteran's favor, his right knee strain has manifested in functional impairment equivalent to extension limited to 45 degrees during the entire appeal period. 2. After resolving reasonable doubt in the Veteran's favor, his right knee instability has manifested during the entire appeal period and has been the functional equivalent to moderate in severity. CONCLUSIONS OF LAW 1. The criteria for entitlement to an increased rating of 50 percent, but no higher, for right knee strain have been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (Code) 5261 (2021). 2. The criteria for entitlement to a separate evaluation of 20 percent, but no higher, prior to February 26, 2020 for right knee instability have been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Code 5257 (2020). 3. The criteria for entitlement to an evaluation of 20 percent, but no higher, from February 26, 2020 for right knee instability have been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Code 5257 (2020). 4. The criteria for entitlement to an evaluation in excess of 20 percent from August 6, 2021 for right knee instability have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Code 5257 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1995 to April 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision by the Department of Veterans Affairs (VA). This case was remanded in October 2019 and June 2021 for further development. In September 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. After the Board's last remand, the Agency of Original Jurisdiction (AOJ) increased the rating for the Veteran's right knee instability to 20 percent, effective August 6, 2021. See August 2021 rating decision. The issue has been recharacterized accordingly. The Board notes that VA medical evidence was added to the claim file after the most recent supplemental statement of the case (SSOC). Waiver of AOJ consideration of this evidence has not been obtained and is not assumed. However, the denials herein are as a matter of law, as discussed below, and the evidence received is not relevant. Thus, the Board is not prejudicing the Veteran by proceeding with adjudication. Entitlement to an increased rating in excess of 10 percent for right knee strain; entitlement to an evaluation in excess of 10 percent prior to August 6, 2021 and in excess of 20 percent thereafter for right knee instability. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular Code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining, including degree of disability, is to be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In any claim for an increased rating, "staged" ratings may be warranted where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's right knee strain is currently rated at 10 percent pursuant to Code 5260. His right knee instability is rated pursuant to Code 5257. Standard motion of a knee joint is from zero degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. Limitation of leg motion is governed by Codes 5260 and 5261. Code 5260 concerns limitation of leg flexion. 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; and a 30 percent maximum rating is warranted where flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, Code 5260. Code 5261 pertains to limitation of leg extension. A 10 percent rating is warranted where extension is limited to 10 degrees; a 20 percent rating is warranted where extension is limited to 15 degrees; a 30 percent rating is warranted where extension is limited to 20 degrees; a 40 percent rating is warranted where extension is limited to 30 degrees; and a 50 percent maximum rating is warranted where extension is limited to 45 degrees. 38 C.F.R. § 4.71a, Code 5261. Under Code 5257, a 10 percent rating is warranted for slight subluxation or lateral instability. A 20 percent rating is warranted for moderate subluxation or lateral instability. A 30 percent maximum rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Code 5257 (2020). When assigning a disability rating, some of the regulations preceding the rating schedule add flexibility to the listed Codes. 38 C.F.R. § 4.59 is one such regulation. In Petitti v. McDonald, 27 Vet. App. 415, 424 (2015), the Court of Appeals for Veterans Claims (Court) noted that § 4.59 explains how to arrive at proper evaluations under the Codes appearing in the disability rating schedule. The provisions of § 4.59 acknowledge that a claimant's disability may cause actual pain or painful motion but still not be severe enough to warrant a compensable rating under the appropriate Code. Accordingly, when there is evidence of painful motion, § 4.59 operates to provide at least the minimum compensable rating available under the Code for the joint. See Sowers v. McDonald, 27 Vet. App. 472, 478 (2016). The evaluation of the same disability under several 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. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). A claimant who has both limitation of flexion and limitation of extension of the same leg may be rated separately under Codes 5260 and 5261 to be adequately compensated for functional loss associated with injury to the leg. VAOPGCPREC 9-2004 (2004), 69 Fed. Reg. 59,990 (Oct. 6, 2004). Additionally, a claimant who has arthritis and instability of the knee may be rated separately under Codes 5003 and 5257. However, separate ratings require separate compensable symptomatology. VAOPGCPREC 9-98 (1998), 63 Fed. Reg. 56,704 (Oct. 22, 1998); VAOPGCPREC 23-97 (1997), 62 Fed. Reg. 63,604 (Dec. 1, 1997); see also Lyles v. Shulkin, 29 Vet. App. 107 (2017). The combined rating for disabilities of an extremity shall not exceed the rating for the amputation of that extremity at the elective level, were amputation to be performed. 38 C.F.R. § 4.68. A 60 percent rating is provided for an amputation of the thigh, above the knee, at the middle or lower third. 38 C.F.R. § 4.71a, Codes 5162, 5163, 5164. The Board notes that, effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). Where the rating criteria are amended during the course of the appeal, the Board considers both the former and the current schedular criteria and, should an increased rating be warranted under revised criteria, that award may not be made effective before the effective date of the change. Because the Veteran is being awarded the maximum combined rating for his right knee pursuant to the old criteria, the new criteria will not be further discussed herein. The Board notes that this case has been remanded to obtain an examination in compliance with Correia v. McDonald, 28 Vet. App. 158 (2016). The examination obtained in August 2021 remains inadequate and does not comply with the Board's prior remand directive. However, the Board is assigning the Veteran's right knee disability a combined rating of 60 percent and he cannot legally obtain a rating in excess of 60 percent due to the amputation rule. Thus, there is no reasonable possibility of substantiating the claim, and remand is unnecessary. See 38 C.F.R. § 3.159(d). As discussed above, the VA examinations of record are inadequate. As a result, the Board assigns the range of motion measurements therein no probative weight. However, during a December 2016 VA examination, the Veteran reported flare-ups lasting about one month and a 20 percent decrease in flexion. During a February 2020 VA examination, he reported that his flare-ups occurred three to four times a week and he would have swelling, increased pain, and limited range of motion up to 50 percent. During the most recent VA examination in August 2021, the Veteran reported that his right knee would swell, lock up, and give out at times; it was also painful, and he had limited range of motion. He would have severe flare-ups four to five times a month, which would last four to five days. The examiner opined that the Veteran had lack of endurance, weakness, and pain during such flare-ups. The Veteran reported no range of motion and being unable to bear weight on his right knee as part of his functional impairment. The examiner opined that he was not able to stand, walk, sit, use stairs, kneel, squat, or drive for any prolonged period of time. In light of the Veteran's report of flare-ups in August 2021 that take up a majority of his time and an almost complete functional loss that includes total loss of range of motion, as well as weakness and lack of endurance, the Board will resolve reasonable doubt in his favor and find that the Veteran has functional impairment equivalent to extension limited to 45 degrees. As a result, the Board is changing the Code for his right knee strain to Code 5261 and is assigning a rating of 50 percent. Because this is the maximum rating allowed pursuant to that Code, a rating in excess of 50 percent is not warranted. The Board acknowledges that the Veteran's symptoms earlier in the appeal period do not appear to be as severe as during the August 2021 VA examination. However, the Board does not have probative range of motion measurements for which to rely on during the earlier part of the appeal period because the VA examinations are inadequate. As a result, the Board must resolve reasonable doubt in the Veteran's favor and find that his symptoms as manifested during the August 2021 VA examination are applicable to the entire appeal period. Thus, the Veteran is warranted a 50 percent rating, but no higher, for his right knee strain pursuant to Code 5261 during the entire appeal period. Additionally, in light of the Veteran's report of right knee instability and functional impairment manifesting in an inability to bear weight on his right knee, the Board is also resolving reasonable doubt in his favor and finds that the Veteran has moderate right knee instability during the entire appeal period. Thus, a 20 percent rating, but no higher, for right knee instability is also warranted during the entire appeal period, which includes the grant of a separate evaluation for instability prior to February 26, 2020 and an increased rating of 20 percent from February 26, 2020 to August 6, 2021. 38 C.F.R. § 4.71a, Code 5257 (2020). Although Code 5257 provides for a higher rating, the Veteran's combined rating for his right knee strain (rated at 50 percent pursuant to Code 5261) and instability (rated at 20 percent) is now 60 percent, which is the maximum rating allowed for his knee pursuant to the amputation rule. See 38 C.F.R. § 4.68. As a result, the Veteran cannot obtain a higher rating for his right knee, to include a 30 percent rating for instability pursuant to Code 5257 under the old or new criteria. Thus, a rating in excess of 20 percent for right knee instability or additional ratings pursuant to other Codes must be denied as a matter of law. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Sandler, 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.