Citation Nr: 21072621 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 16-53 685A DATE: December 3, 2021 ORDER From April 30, 2014 to May 1, 2015, and prospectively from July 1, 2015, a rating in excess of 10 percent for left knee limitation of flexion is denied. From April 30, 2014, an initial rating of 10 percent, but no higher, for left knee limitation of extension is granted. From April 30, 2014, an initial rating of 20 percent, but no higher, for left knee instability is granted. From April 30, 2014 to May 1, 2015, the date of his temporary total rating for left knee meniscal surgery, an initial maximum schedular rating of 20 percent for left knee dislocated semilunar cartilage is granted. From July 1, 2015, a maximum 10 percent rating for left knee symptomatic semilunar cartilage surgical residuals is granted. Entitlement to a temporary total rating pursuant to 38 C.F.R. § 4.30 for July 19, 2019 left knee surgery is granted. FINDINGS OF FACT 1. From April 30, 2014 to May 1, 2015 and prospectively from July 1, 2015, the Veteran's left knee disability has not manifested with flexion limited to 30 degrees or less. 2. From April 30, 2014, the Veteran's left knee disability has manifested with painful limitation of extension, but not extension limited to 15 degrees or greater. 3. From April 30, 2014, the Veteran's left knee disability has manifested with moderate instability, but not severe instability or instability requiring the use of a brace and an assistive device for ambulation. 4. From April 30, 2014 to May 1, 2015, the Veteran's left knee disability was manifested by a meniscal tear with locking, pain and effusion into the joint. 5. From July 1, 2015, following his temporary total evaluation for left knee meniscal surgery, the Veteran evidenced symptomatic semilunar cartilage surgical residuals, separate and distinct from his painful flexion, extension, and instability. 6. The July 19, 2019 left knee outpatient surgery resulted in severe postoperative residuals, including the prescribed use of crutches to walk. CONCLUSIONS OF LAW 1. From April 30, 2014 to May 1, 2015 and prospectively from July 1, 2015, the criteria for a rating in excess of 10 percent for left knee limitation of flexion are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5260. 2. From April 30, 2014, the criteria for an initial rating of 10 percent, but no higher, for left knee limitation of extension are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5261. 3. From April 30, 2014, the criteria for an initial rating of 20 percent, but no higher, for left knee instability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5257. 4. From April 30, 2014 to May 1, 2015, the criteria for an initial 20 percent rating for left knee dislocated semilunar cartilage are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, DC 5258. 5. From July 1, 2015, the criteria for a 10 percent rating for symptomatic semilunar cartilage surgical residuals are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, DC 5259. 6. The criteria for a temporary total rating with respect to July 19, 2019 outpatient left knee surgery are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.30(a)(2). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from October 2003 to April 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision by a Department of Veteran's Affairs (VA) Agency of Original Jurisdiction (AOJ). The Board previously remanded this matter in August 2019 to secure a VA medical examination and to obtain additional VA treatment records. There has been substantial compliance with these remand directives. The 2019 Remand presents a detailed discussion of the procedural and substantive development of the issues on appeal, from the initial 2015 Notice of Disagreement through the August 2019 Remand. See August 2019 Remand. This opinion incorporates that history by reference. The Veteran asserts that his left knee disabilities are worse than what is contemplated by the currently assigned ratings. The Board agrees inasmuch as a partial grant of the benefits sought on appeal is warranted on the present record. 1. From April 30, 2014 to May 1, 2015, and prospectively from July 1, 2015, a rating in excess of 10 percent for limitation of left knee flexion is denied. 2. From April 30, 2014, an initial rating of 10 percent, but no higher, for limitation of left knee extension is granted. 3. From April 30, 2014, an initial rating of 20 percent, but no higher, for left knee instability is granted. 4. From April 30, 2014 to May 1, 2015, the date of his temporary total rating for left knee meniscal surgery, an initial maximum schedular rating of 20 percent for left knee dislocated semilunar cartilage is granted. 5. From July 1, 2015, a maximum 10 percent rating for left knee symptomatic semilunar cartilage surgical residuals is granted. The Veteran is currently in receipt of service connection for left knee instability with a 10 percent rating under DC 5257 and for residuals of a left knee injury with osteoarthritis and scars, status-post reconstruction of the anterior cruciate ligament, and a medial and lateral meniscal tear/instability. An initial 10 percent rating was assigned for this disability under Diagnostic Code 5257 for knee instability. In addition, a 10 percent rating for residuals of a left knee injury with osteoarthritis and scars, status post reconstruction of the anterior cruciate ligament and a medial and lateral meniscal tear was continued under Diagnostic Code 5260 for limitation of motion. From May 1, 2015 through July 1, 2015, the Veteran is in receipt of a temporary total rating for convalescence from left knee surgery. The period on appeal is from April 30, 2014, the date that the Veteran applied for a total disability rating due to individual unemployability (TDIU). See April 2014 VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. The Board notes that the Veteran's April 2014 TDIU claim resulted in the AOJ's grant of TDIU effective April 30, 2014, with a collateral grant of an additional left knee rating for post-operative residuals. The Veteran sustained a debilitating training injury to his left knee in 2004, incurring a meniscal tear. The tear was repaired in 2004, re-torn in 2010 (medially and laterally), and repaired again in 2015. In addition, he has had arthroscopic surgery to the left knee in 2004, 2015, and 2019. See, e.g., September 2015 and December 2019 Knee and Lower Leg Conditions Disability Benefits Questionnaire (DBQ). Eventually, he will require a left knee replacement, but he is presently too young for that surgery. Id. In the meantime, his left knee symptomatology has increasingly impeded his daily activities, as described below. The Veteran has presented for multiple compensation and pension examinations during the period on appeal relating to his left knee disability, specifically, in October 2020, December 2019, December 2017, and September 2015. Note that effective February 7, 2021, VA amended the rating criteria for disabilities of the knee and leg; however, as it pertains to this case, Diagnostic Codes (DC) 5260 for limitation of flexion, 5261 for limitation of extension of the knee, and 5259 for symptomatic semilunar cartilage surgical residuals were unchanged. However, DC 5257, for instability was changed, as discussed in further detail below. The VA rating schedule prohibits "pyramiding" of disabilities, meaning it does not permit rating the same symptoms of a disability under multiple diagnostic codes. See 38 C.F.R. § 4.14. However, separate and simultaneous ratings may be awarded for limitation of flexion and limitation of extension of the same knee. See VAOPGPREC 9-2004. Moreover, a separate and simultaneous rating may also be granted for knee instability and knee limitation of motion. See, e.g., Lyles v. Shulkin, 29 Vet. App. 107 (2017) (noting that the veteran was in receipt of simultaneous ratings for instability and limitation of extension). As discussed below, a simultaneous award for symptomatic meniscal surgical residuals is also warranted in this case and may be assigned without pyramiding. With respect to effective date of the award in this case, the effective date for all compensable knee ratings is adjusted to the earliest date of the appeal period. This is in recognition of the interdependent nature of these disabilities and the lack of evidence of significant worsening during the period in question. See, e.g., October 2020 disability benefits questionnaire (DBQ) ("All the three conditions: meniscal tear, ACL tear, and s/p arthroscopy [sic] with meniscus repair and ACL repair were associated with his original injury event in 2004.") The Board resolves the reasonable doubt as to the level of severity over the course of the appeal in favor of the Veteran and will apply the most favorable findings of record throughout the entire period on appeal. Note also that the October 2020 DBQ provides a "factual correction" of his original diagnosis; thus, the Diagnostic Codes applied in this case best reflect the latest medical information and most precise diagnoses. See id. The Veteran's limitation of flexion of the left knee is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5260, a noncompensable rating is warranted for flexion limited to 60 degrees. A 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. A 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, may not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). 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. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court of Appeals for Veterans Claims (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 Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for the Veteran's left knee limitation of flexion. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain, weakened movement, excess fatigability, incoordination, pain during flare-ups, and pain during repetitive use over time. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that during some flare-ups, he is unable to bend, or flex, his knee and has to stay in bed and that lesser flareups cause an estimated 50 percent loss of range of motion, would not result in limitation of motion more nearly approximating flexion limited to 30 degrees. Of the Veteran's four DBQs within the appeal period, the December 2019 DBQ shows the greatest loss of flexion, consistent with a rating of 10 percent (measured at 10 to 90 degrees of range of motion). Even if the range of motion was reduced by 50 percent, to 45 degrees of flexion, this is consistent with a 10 percent rating. Limitation of extension of the left knee is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5261, for limitation of extension. Under Diagnostic Code 5261, a noncompensable 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. A 30 percent rating is warranted for extension limited to 20 degrees. A 40 percent rating is warranted for extension limited to 30 degrees. A 50 percent rating is warranted for extension limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. A rating of 10 percent under Diagnostic Code 5261 is warranted throughout the period on appeal. The December 2019 DBQ shows extension limited to 10 degrees, which is consistent with a rating of 10 percent. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for the Veteran's limitation of left knee extension. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain, weakened movement, excess fatigability, incoordination, pain during flare-ups, and pain during repetitive use over time. However, even considering the Veteran's lay reports of symptoms and noted painful flare-ups and functional loss, the degree of additional limitation caused by flare-ups would not result in limitation of motion more nearly approximating extension limited to 15 degrees. Note, of the Veteran's four DBQs within the appeal period, the December 2019 DBQ shows the greatest loss of extension, at 10% (measured at 10 to 90 degrees ROM). Additionally, the Board has considered additional factors of disability in granting a separate compensable rating under Diagnostic Code 5259, which is not premised on range of motion or instability. The Veteran also asserts that he is entitled to a higher rating for his left knee instability. The Veteran's left knee instability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5257, for other impairment of the knee. Effective February 7, 2021, VA amended the rating criteria for disabilities of the knee and leg. The amended Diagnostic Code 5257 provides ratings for other impairment of the knee based on recurrent subluxation or instability, and patellar instability. Pursuant to the version of Diagnostic Code 5257 in effect prior to February 7, 2021, a 10 percent rating under was warranted for slight instability. A 20 percent rating was warranted for moderate instability. A maximum schedular 30 percent rating was warranted for severe instability. Effective February 7, 2021, for recurrent subluxation or instability, 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. Separate criteria apply for patellar instability, which is not present in this case. For the period on appeal prior to February 7, 2021, the effective date of the amendment to Diagnostic Code 5257, the Board must apply the pre-amendment rating criteria. Prospectively from February 7, 2021, the Board must apply the more favorable of the pre-amendment criteria or the amended criteria. The Veteran has required the use of a brace throughout the appeal period and objective lateral instability (1+) has been measured at examinations. See, e.g., October 2020 knee DBQ. This is consistent with moderate instability under historical DC 5257, which warrants a 20 percent rating. The Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for left knee instability. The Board has carefully considered the Veteran's reports about instability, and the lay and medical evidence indicates that the Veteran has experienced sustained left knee instability with the regular use of a prescribed brace, throughout the period on appeal. English v. Wilkie, 30 Vet. App. 347, 352-53 (a veteran is competent to report instability). Moreover, the record demonstrates that the Veteran's use of a brace is attributable to left knee instability, post-surgical repair of his anterior cruciate ligament (ACL). See, e.g., October 2020, December 2020, December 2017, and September 2015 DBQs. Under the historical rating criteria, a 30 percent rating is not warranted, as no examiner found objective instability greater than 1+ (0-5 millimeters) and the Veteran has not required an assistive device such as a cane or walker, except during surgical recovery when he was in receipt of a temporary total rating. Under the amended criteria, a 30 percent rating is not warranted because the Veteran does not require, nor has he been prescribed, both an assistive device and bracing for ambulation. But see section 5 of this opinion, granting the Veteran a temporary total disability for his July 2019 surgery, during which time he was temporarily prescribed both an assistive device (crutches) and a brace for ambulation. Additionally, the Board finds that a separate maximum schedular 10 percent rating is warranted under Diagnostic Code 5259, for symptomatic meniscal surgery residuals, and prior to the Veteran's surgery a 20 percent rating is warranted under Diagnostic Code 5258 for dislocated semilunar cartilage. In this regard, the Veteran has a service-connected lateral and medical meniscal tears and has undergone meniscal repair surgery; warranting a separate 10 percent rating under Diagnostic Code 5259 (symptomatic removal of semilunar cartilage) following his first temporary total rating during the appeal period, or from July 1, 2015. See, e.g., October 2020 Knee DBQ. Moreover, he has symptomatology that is not contemplated by his ratings for flexion, extension and instability, such as weekly "locking" of his left knee that requires additional medication. See id. at 2B (flare-ups). "Locking" is a symptom distinct from limitation of flexion, extension, and instability, and thus a separate award under Diagnostic Code 5259 may be assigned without pyramiding of disabilities. From April 30, 2014 to May 1, 2015, the date of initiation of his temporary total rating, the Veteran evidenced a left meniscal tear with evidence of pain, locking and effusion into the joint (see September 2015 VA examination report) warranting a 20 percent rating under 5258, and the Board affords the Veteran the benefit of the doubt in finding that the pain from his meniscal tear is separate and distinct from his left knee joint pain. Thus, a 20 percent rating is warranted under DC 5258 until the Veteran's meniscal surgery, and after resolution of his temporary total rating, a 10 percent rating is warranted under DC 5259 for symptomatic residuals of the surgical repair of his meniscal tear. Accordingly, throughout the appeal, a rating in excess of 10 percent for left knee limitation of flexion is not warranted; an initial rating of 10 percent, but no higher, for left knee limitation of extension is warranted; an initial rating of 20 percent, but no higher, for left knee instability is warranted; and an initial maximum schedular rating of 20 percent for meniscal tear prior to surgery and a 10 percent thereafter for symptomatic meniscal surgical residuals is warranted. The Board has afforded the Veteran the full benefit of the doubt in assigning these ratings. 5. Entitlement to a temporary total rating pursuant to 38 C.F.R. § 4.30 for July 19, 2019 left knee surgery is granted. The Board finds that a temporary total rating for convalescence is warranted due to the Veteran's July 19, 2019 outpatient left knee surgery. This finding is in keeping with the VA's duty to maximize claimant benefits. A total disability rating (100 percent) will be assigned without regard to other provisions of the rating schedule when it is established by report at hospital discharge (regular discharge or release to non-bed care) or outpatient release that entitlement is warranted based on the criteria being met. 38 C.F.R. § 4.30. A temporary total rating may be assigned pursuant to 38 C.F.R. § 4.30 if treatment of a service-connected disability results in: (1) surgery necessitating at least one month of convalescence; (2) surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited); or (3) immobilization by cast, without surgery, of one major joint or more. Here, a July 19, 2019 postoperative report notes that following surgery at a VA medical center, the Veteran was discharged home on crutches, with followup in ten days. See July 19, 2019 VA post-operative Discharge Orders. 38 C.F.R. § 4.30(a)(2) specifically identifies the requirement for continued use of crutches as a severe postoperative residual warranting a temporary total rating. Although the followup period noted on the discharge report is less than one month, subsection (a)(2) does not identify any minimum period of convalescence (as is required under subsection (a)(1)). Moreover, while the term "continued use" is not defined, this term is consistent with the Veteran being issued crutches to take home to adapt to his postoperative residuals, and the Board resolves any reasonable doubt in this regard in favor of the Veteran. Accordingly, as the criteria under 38 C.F.R. § 4.30(a)(2) are met, entitlement to a temporary total rating is granted. To avoid prejudice to the Veteran, the Board will allow the AOJ to assign an effective date and duration in the first instance. If the Veteran disagrees with the AOJ decision, he may file a request for review on the appropriate VA-promulgated form. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Saumur, 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.