Citation Nr: 21072527 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 07-32 159 DATE: December 3, 2021 ORDER An initial rating greater than 10 percent for right knee chondromalacia patella and osteoarthritis is denied. From December 26, 2019, to February 7, 2021, a rating greater than 10 percent for right knee instability is denied. From February 7, 2021, to the present, a rating greater than 20 percent for right knee instability is denied. REMANDED Entitlement to a total disability rating based on individual employability (TDIU) due to service-connected disabilities prior to February 5, 2016, is remanded. FINDINGS OF FACT 1. Throughout the period on appeal, right knee chondromalacia patella and osteoarthritis manifested by subjective complaints of pain and intermittent flare-ups; objective testing did not demonstrate limitation of extension to 15 degrees. 2. From December 26, 2019, to February 7, 2021, right knee instability resulted in slight, but not moderate, instability. 3. From February 7, 2021, to the present, right knee instability resulted in moderate but not severe, instability; objective findings do not demonstrate unrepaired or failed repair of complete ligament tear causing persistent instability, or patellar instability. CONCLUSIONS OF LAW 1. The criteria for an initial rating greater than 10 percent for right knee chondromalacia patella and osteoarthritis are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.71a, DC 5299-5261. 2. From December 26, 2019, to February 7, 2021, the criteria for a rating greater than 10 percent for right knee instability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.71a, DC 5257. 3. From February 7, 2021, to the present, the criteria for a rating greater than 20 percent for right knee instability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.71a, DC 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from December 1999 to May 2005, including foreign service. For her meritorious service, the Veteran was awarded (among other decorations) the Air Force Achievement Medal. Procedurally and in pertinent part, the Board denied an appeal seeking entitlement to an initial rating greater than 10 percent for right knee chondromalacia patella and osteoarthritis in March 2015. In October 2015, the Court of Appeals for Veterans Claims (Court) granted a Joint Motion for Remand (JMR), thereby vacating the Board's determination and remanding the matter for further review. Subsequently, the Board repeatedly remanded this appeal for additional development. In March 2021, the Board awarded service connection for right knee removal of semilunar cartilage under DC 5259 and remanded the remaining appeals. See also April 2021 rating decision (implementing the Board's grant). As the Veteran has not expressed dissatisfaction with any portion of the right knee cartilage award, to include the initial rating or effective date assigned, this matter is not for further consideration herein. Most recently, the remaining matters were remanded in July 2021 for additional development which has since been completed, to include the provision of a new VA examination. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Ratings Disability ratings are determined by the applications of the VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Kuzma, 341 F. 3d 1327. Therefore, the Board will consider the Veteran's appeals under the old criteria prior to February 7, 2021, and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Right Knee Chondromalacia Patella and Osteoarthritis/Right Knee Instability The characterization of the pending matters and their related DCs have repeatedly changed during the period on appeal. Currently, the matters on appeal are identified as follows: (1) Entitlement to an initial rating greater than 10 percent for right knee chondromalacia patella and osteoarthritis under DC 5299-5261; and (2) Entitlement to higher ratings for right knee instability, currently evaluated as 10 percent disabling from December 26, 2019, and 20 percent disabling from February 7, 2021, under DC 5257. There is significant overlap in these appeals, as the Board must consider all DCs relevant to the knee in addressing issue (1) as identified above. Thus, in the interest of clarity, these matters will be analyzed simultaneously herein, with distinct adjudications rendered. Accordingly, from May 24, 2005, to the present, the award of a higher initial rating or separate, compensable service-connected disability (stemming from the Veteran's right knee chondromalacia patella and osteoarthritis appeal) may be warranted with evidence of the following: Flexion of the knee limited to 45 degrees (10 percent under DC 5260); or Extension of the knee limited to 15 degrees (20 percent under DC 5261). These criteria were not amended in February 2021. The Schedule provides that the normal range of motion of the knee is from zero degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. From December 26, 2019, to February 7, 2021, a 20 percent rating is warranted for the Veteran's right knee instability under DC 5257 with evidence of the following: Moderate recurrent subluxation or lateral instability. From February 7, 2021 to the present, a 30 percent rating is warranted for the Veteran's right knee instability under DC 5257 with evidence of the following: Severe recurrent subluxation or lateral instability (under the old regulations); 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 (under the new regulations); or, 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 the new regulations). Other DCs pertaining to the knee include DC 5256 (ankylosis), DC 5258 (dislocation of semilunar cartilage), DC 5262 (impairment of the tibia and fibula), and DC 5263 (genu recurvatum). Whether applying the old or amended regulations, these disorders are not shown during the period on appeal, such that application of these DCs is not warranted. See, e.g., VA examinations dated December 2005, May 2012, August 2012, March 2017, October 2017, May 2019, December 2019, December 2020, and August 2021. Additionally, the Veteran is already in receipt of a separate award for right knee removal of semilunar cartilage under DC 5259 spanning the entire period on appeal, such that this DC does not merit consideration herein. Turning to the evidence, the Veteran underwent multiple VA examinations during the period on appeal, as follows. In December 2005, the Veteran reported constant pain and swelling with intermittent flares and edema. She indicated that pain worsened with movement. She showed full range of motion on examination, with flexion from zero to 140 degrees and extension from zero to full extension. There was no fatigue, tenderness, or instability with repetitive use. Joint instability was also denied. Further, there was "no motion in neutral and 30 degrees of flexion in her knee." In May 2012, the Veteran reported constant pain and flare-ups which occurred "every other day for [a] few hours; [with] bad flare-ups [once per week, lasting for one to two days]." Initial range of motion testing showed flexion to 110 degrees, with objective evidence of painful motion beginning at 110 degrees; and no degree of hyperextension or objective evidence of painful motion. With repetitive-use testing, flexion was shown to 105 degrees, with no degree of hyperextension. Neither subluxation nor instability were reported; weakness, fatigability, and incoordination were also denied. The Veteran required the occasional use of a cane for ambulation. An August 2012 examination was provided primarily for the Veteran's left knee, such that right knee range of motion was not tested at that time. However, she reported bilateral knee pain, treated with injections. In March 2017, the Veteran reported chronic pain which caused sleep impairment. Initial range of motion testing showed flexion from zero to 130 degrees and extension from 130 to zero degrees, with no evidence of pain on movement or with weight-bearing. The Veteran was able to perform repetitive-use testing without additional loss of motion. As the Veteran was not being examined following repeated use over a period of time, the examiner concluded that it would be speculative to report whether pain, weakness, fatigability, or incoordination could significantly limit functional ability during prolonged use. Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). In the section regarding flare-ups, the examiner simply wrote "not applicable." A history of recurrent subluxation or lateral instability were explicitly denied. The Veteran reported the occasional use of a wheelchair or cane to assist with ambulation. In October 2017, the Veteran reported chronic pain and flares. However, the examiner reported that she "does not have instances of flares, she reports chronic pain all day . . . ." The examiner then denied that the Veteran reported flare-ups in her right knee. Prolonged standing and walking exacerbated her symptoms, including during recreational travel. Initial range of motion testing showed flexion from zero to 125 degrees and extension from 125 to zero degrees, with no evidence of pain on movement or with weight-bearing. The Veteran was able to perform repetitive-use testing without additional loss of motion. The examiner reported that it was "impossible to state, without undue speculation, whether pain, weakness, fatigability, or incoordination could significantly limit functional ability during flares ups, or when the joint is used repeatedly over a period of time." A history of recurrent subluxation or lateral instability were explicitly denied. The examiner denied that assistive devices were required. In May 2019, the Veteran reported constant pain, estimated as a six out of 10. As a result, she reported difficulty with prolonged standing, sitting, and walking, with accompanying sleep impairment. Initial range of motion testing showed flexion from zero to 90 degrees and extension from 90 to zero degrees, with pain productive of functional loss and on weight-bearing. The Veteran was able to perform repetitive-use testing without additional loss of motion. Pain was said to limit functional ability with repeated use over a period of time, estimated as flexion from zero to 70 degrees and extension from 70 to zero degrees. Additional symptoms of incoordination, fatigability, and weakness were unreported. A history of recurrent subluxation or lateral instability were explicitly denied, and the Veteran denied a history of flare-ups. In December 2019, the Veteran reported chronic right knee pain, treated with injections and over-the-counter pain medication. She also reported flares productive of worsened pain. Her symptoms made it difficult for her to run, walk/stand for prolonged periods of time, or climb ladders/stairs. Initial range of motion testing showed flexion from 95 to 130 degrees and extension from 130 to 95 degrees. Pain was observed on movement but not on weight-bearing. The Veteran was able to perform repetitive-use testing without additional loss of motion. Pain was said to significantly limit functional ability with repeated use over a period of time and during flare-ups, but did not result in additional loss of motion. Fatigue, weakness, lack of endurance, and incoordination were unreported. A history of recurrent subluxation or lateral instability were explicitly denied; however, joint instability was reported on objective testing. The Veteran reported the occasional use of a brace to assist with ambulation. An addendum opinion was obtained in December 2020, wherein it was noted that the December 2019 range of motion "figures do not correlate with [the rating schedule] used to determine range of motion for VA compensation purposes." To clarify, the examiner estimated that range of motion should have been reported as flexion from 10 to 95 degrees and extension from 95 to 10 degrees. In August 2021, the Veteran reported chronic pain, limitation of motion, and instability. Her symptoms were treated with injections and over-the-counter medications. As a result, she was unable to run and had difficulty walking/standing/sitting for prolonged periods of time, climbing ladders/stairs, or squatting. Initial range of motion testing showed flexion to 130 degrees and extension to 75 degrees. Pain was noted on motion and with weight-bearing. The Veteran was able to perform repetitive-use testing without additional loss of motion. The available evidence did not suggest that pain, fatigability, weakness, lack of endurance, or incoordination would significantly limit functional ability with repeated use over a period of time or during flares. The examiner recorded recurrent subluxation or persistent instability, such that the Veteran required a prescription for a cane and a brace to assist with ambulation. The remaining evidence, including VA treatment records and the Veteran's lay testimony, support the disability pictures as depicted above. Collectively, this evidence documents the Veteran's history of chronic right knee pain productive of limited motion, with a history of flares and intermittent instability requiring multiple treatment methods including assistive devices. Notably, there are no range of motion results which demonstrate more severe limitations than those shown during the Veteran's examinations. Upon review of the above and the record in its entirety, the Board offers the following findings. First, neither an initial rating greater than 10 percent for right knee chondromalacia patella and osteoarthritis under DC 5299-5261, nor a separate award of service connection based on limitation of flexion under DC 5260, are warranted during the period on appeal. Rather, the Veteran consistently showed range of motion far greater than that enunciated in the relevant rating criteria, even with the presence of pain, during flare-ups, or with repetitive use. Additional symptoms including weakness, incoordination, and fatigability were also routinely denied and did not contribute to additional loss of motion or function. DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). At worst, the Veteran was estimated to show flexion from zero to 70 degrees and extension from 70 to zero degrees with repeated use over a period of time during her May 2019 VA examination. Moderate limitation of function was reported, including difficulty with prolonged walking, standing, or climbing. However, the Veteran remained capable of performing the tasks of daily living without assistance, even with her right knee symptoms. Thus, in accordance with objective testing and the Veteran's subjective reporting, her disability is not of such severity as to warrant a grant of this appeal in accordance with DCs 5260 or 5299-5261. Rather, the appeal is hereby denied. Next, a rating greater than 10 percent is not warranted for the Veteran's right knee instability under DC 5257 from December 26, 2019, to February 7, 2021. Here, the December 2019 VA examination marks the earliest objective reporting of instability in the record, which was directly attributed to the progression of the Veteran's chondromalacia. However, there is no evidence to indicate that the Veteran's instability was moderate in nature. Rather, concurrent joint stability testing showed primarily normal results, with limited abnormal results only mild in nature. Neither the Veteran nor the examiner attributed any degree of functional impairment to this symptom, nor is such evidence present in the record. Rather, the Veteran's instability was both intermittent and mild, with limited related impairment. Accordingly, her disability picture from December 26, 2019, to February 7, 2021 is fully embodied in the criteria for a 10 percent rating under DC 5257, as currently assigned. This appeal is hereby denied. Finally, a rating greater than 20 percent is not warranted for the Veteran's right knee instability under DC 5257 from February 7, 2021 to the present, whether under the old or new regulations. Here, the Board acknowledges that the August 2021 VA examination provided an affirmative response to the section documenting recurrent subluxation or persistent instability. Specifically, the Veteran reported unexpected buckling of the right knee. However, this symptom was intermittent in nature and did not appear to contribute to any severe functional loss, such that the resulting impact is best described as moderate in severity. Additionally, the Board acknowledges that the Veteran presented with lateral instability during the August 2021 VA examination, which required a prescription for assistive devices. Although she also underwent surgeries in 2004 and 2018, this arthroscopic procedure was meant to clean up debris from cartilage damage/tear and arthritis. Critically, the examiner did not report an unrepaired or failed repair of complete ligament tear as the cause of the lateral inability. Moreover, the examiner explicitly denied that the Veteran shower patellar instability, nor is there evidence of such in the record. Thus, whether under the old or new regulations, the Veteran's disability picture from February 7, 2021 to the present does not warrant a higher rating, and the appeal is denied. With respect to each of the above appeals, the Board has considered the Veteran's position that higher ratings are warranted, including her testimony regarding the nature and severity of her symptoms. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, she lacks the medical expertise to competently identify a specific level of disability according to the applicable DCs. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Instead, greater probative value has been offered to the medical evidence in assessing the severity of the Veteran's disabilities during the periods on appeal, as the examiners possess the requisite expertise to render opinions regarding the degree of impairment caused by the Veteran's disabilities and had sufficient facts and data on which to base their conclusions. In this respect, the Board finds that the medical evidence supports the determinations offered herein. Accordingly, the preponderance of the evidence weighs against the appeals, the benefit-of-the-doubt doctrine is not for application, and the appeals are hereby denied. Of final note, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND Although the Board sincerely regrets the additional delay this will cause, further development is necessary prior to the adjudication of the remaining appeal. Specifically, the Veteran is currently in receipt of a TDIU from February 5, 2016. However, she does not meet the schedular criteria for a TDIU prior to this date, nor has the matter been referred for extraschedular consideration. The Board may not award an extraschedular TDIU without first referring the issue to the Director, Compensation and Pension Service. The Court of Appeals for Veterans Claims (Court) has recently clarified the threshold by which the Board must consider whether extraschedular TDIU consideration is warranted. Specifically, the Court held that an initial referral to the Director for extraschedular TDIU consideration is required when "there's sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable because of service-connected disabilities." Snider v. McDonough, No. 19-6707, slip op. at 8 (Vet. App. Nov. 19, 2021). Applying that case law to the case at bar, the Board finds at least a "reasonable possibility" that the Veteran may have been unemployable due to service-connected disabilities prior to February 5, 2016. That is not to say that the Board finds that the Veteran was unemployable (or that such a claim would or should be granted), but only to say that the standard for determining whether referral is warranted has been met. Accordingly, the Board shall remand the issue of entitlement to a TDIU prior to February 5, 2016 in order that it may be referred for extraschedular consideration. [CONTINUED ON NEXT PAGE] The matter is REMANDED for the following action: Refer the issue of whether a TDIU is warranted to VA's Director of Compensation Service for consideration on an extraschedular basis prior to February 5, 2016. Include a full statement as to the Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue. See 38 C.F.R. § 4.16(b). Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Kovarovic, 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.