Citation Nr: 21072688 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 18-11 908 DATE: December 6, 2021 ORDER For the period on appeal, entitlement to a separate 30 percent rating for right knee instability is granted. For the period on appeal, entitlement to a separate 10 percent rating for left knee instability is granted. For the period prior to August 4, 2020, entitlement to a compensable rating for a right knee meniscal tear is denied. From August 4, 2020, entitlement to a rating of 20 percent for a right knee meniscal tear is granted. For the period on appeal, entitlement to a rating greater than 10 percent for right knee limitation of flexion is denied. For the period on appeal, entitlement to a rating of 10 percent, but no higher, for right knee limitation of extension is granted. For the period on appeal, entitlement to a rating greater than 10 percent for left knee limitation of flexion is denied. For the period on appeal, entitlement to a compensable rating for left knee limitation of extension is denied. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran's right knee condition was manifested by severe instability. 2. Throughout the appeal period, the Veteran's left knee condition was manifested by slight instability. 3. For the period prior to August 4, 2020, the evidence does not indicate the presence of a meniscal condition of the right knee. 4. From August 4, 2020, the Veteran's right knee condition manifested by a meniscal tear with frequent episodes of pain, effusion, and locking. 5. Throughout the appeal period, the Veteran's right knee condition manifested by painful flexion limited to 80 degrees and extension limited to 10 degrees; at no time has flexion limited to 45 degrees or extension limited to 15 degrees been shown. 6. Throughout the appeal period, the Veteran's left knee condition manifested by painful flexion limited to 90 degrees and full extension; at no time has flexion limited to 45 degrees or extension limited to 10 degrees been shown. CONCLUSIONS OF LAW 1. For the period on appeal, the criteria for a 30 percent rating for right knee instability have been met or approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.6, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5257 (in effect prior to February 7, 2021). 2. For the period on appeal, the criteria for a 10 percent rating, but no higher, for left knee instability have been met or approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.6, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, DC 5257 (in effect prior to February 7, 2021). 3. For the period prior to August 4, 2020, the criteria for a compensable rating for a right knee semilunar cartilage tear were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.6, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, DCs 5258, 5259. 4. From August 4, 2020, the criteria for a 20 percent rating for a right knee semilunar cartilage tear have been met or approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.6, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, DCs 5258, 5259. 5. For the period on appeal, the criteria for a rating greater than 10 percent for right knee limitation of flexion have not been met or approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.6, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, DC 5260. 6. For the period on appeal, the criteria for a rating of 10 percent, but no higher, for right knee limitation of extension have been met or approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.6, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, DC 5260, 5261. 7. For the period on appeal, the criteria for a rating greater than 10 percent for left knee limitation of flexion have not been met or approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.6, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, DC 5260. 8. For the period on appeal, the criteria for a compensable rating for left knee limitation of extension have not been met or approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.6, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, DC 5261. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from April 1996 to April 2000. He appealed a September 2015 rating decision by the Agency of Original Jurisdiction (AOJ). A Board hearing was held in August 2021. A transcript is of record. Pertinent evidence was added to the Veteran's file after the issuance of the February 2018 Statement of the Case, and the Veteran has waived initial AOJ consideration of this new, pertinent evidence in accordance with 38 C.F.R. § 20.1305(c). See Board Hearing Tr. at 15. Thus, the Board may proceed with adjudication. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings based on average impairment in earning capacity. 38 U.S.C. § 1155. Percentage evaluations are determined by comparing the manifestations of a particular disorder with the requirements contained in the VA's Rating Schedule, 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When a question arises as to which of two ratings apply under a particular DC, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. 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, 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). Knee disabilities are generally rated under DCs 5256 through 5263 of 38 C.F.R. § 4.71a. DC 5256 addresses ankylosis of the knee. DC 5257 addresses recurrent subluxation or lateral instability. DC 5258 addresses dislocated semilunar cartilage in the knee manifested by frequent episodes of "locking," pain, and effusion into the joint. DC 5259 addresses symptomatic residuals related to removal of semilunar cartilage. DC 5260 addresses limitation of motion on flexion while DC 5261 addresses limitation of motion on extension. DC 5262 addresses impairment of the tibia and fibula from malunion or nonunion. DC 5263 addresses genu recurvatum. The Board must consider the Veteran's service-connected knee disabilities under each DC and apply the appropriate ratings without having any of the symptomatology by duplicative or overlapping. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The Veteran cannot receive compensation under two different codes for the same manifestations of symptoms as this would constitute impermissible pyramiding under 38 C.F.R. § 4.14. The regulations pertaining to rating musculoskeletal disabilities were revised, effective February 7, 2021. Claims, such as this, pending prior to the effective date will be considered under both old and new rating criteria from that date, and whatever criteria is more favorable to the Veteran will be applied from the effective date of the change. For rating the knee, changes were made to DCs 5257 and 5262. Additionally, changes were made to DC 5055 for total knee replacement. Thus, both the old and new rating criteria for these DCs will be analyzed by the Board for the Veteran's ratings from February 7, 2021. In Correia v. McDonald, the Court of Appeals for Veterans Claims (Court) found that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. 28 Vet. App. 158, 169-70 (2016). Additionally, in Sharp v. Shulkin, the Court held that a VA examination is inadequate when the VA clinician does not elicit relevant information as to the Veteran's flares or ask him to describe additional functional loss, if any, he suffered during flares and then does not "estimate the [Veteran's] functional loss due to flares based on all the evidence of record (including the [Veteran's] lay information) or explain why [he or she] could not do so." 29 Vet. App. 26, 35 (2017). 1. Right Knee Instability Under the old criteria, DC 5257 provides ratings for other knee impairments with the following ratings assigned: 10 percent for slight, 20 percent for moderate, and 30 percent for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, DC 5257. The words "slight," "moderate," and "severe" as used in the various DCs are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. 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. Under the new rating criteria for a recurrent subluxation or lateral instability of the knee, 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. See 38 C.F.R. § 4.71a, DC 5257. 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. Id. Finally, a 30 percent rating is warranted for a disability manifest as 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. Id. Objective medical evidence of knee instability is not required, and objective medical evidence is not categorically more probative than lay evidence. English v. Wilkie, 30 Vet. App. 347 (2018). The September 2015 examiner reported that the Veteran's right knee symptoms included instability of station, but that joint stability testing was normal. The November 2017 and May 2021 examination reports indicated joint stability testing was normal, and that the Veteran denied a history of instability. A November 2017 VA physical therapy summary noted the Veteran reported instability symptoms in his right knee, and that he was referred for a soft knee brace. According to a December 2020 VA physical therapy note, the Veteran reported his knee gives out but that he had never fallen. In August 2021, the Veteran testified that his right knee felt unstable, and that the knee gave way two to three times per day. He added that he had fallen due to the instability, and regularly wore a brace. See Board Hearing Tr. at 5-7. Throughout the appeal period, the Veteran reported instability of the right knee. Given the Veteran's report of his knee giving way two to three times per day and resulting falls, the evidence more closely approximates a finding of severe instability for the entire appeal period, under the rating criteria in effect prior to February 7, 2021. 38 U.S.C. § 5107; 38 C.F.R. § 4.3. A 30 percent rating is the maximum available evaluation under the old and new rating criteria. Thus, a rating greater than 30 percent for right knee instability is not warranted. 2. Left Knee Instability The September 2015 examiner reported that the Veteran's left knee symptoms included instability of station, but that joint stability testing was normal. The November 2017 and May 2021 examination reports indicated joint stability testing was normal, and that the Veteran denied a history of instability. In August 2021, the Veteran testified that his left knee did not experience as much instability as his right knee, adding that he only noticed it a "few" times and that it did not give out or only gave out "a couple times." See Board Hearing Tr. at 7-8. The Veteran added he did not wear a brace on his left knee but wore a support sock for the knee. Id. at 9. Throughout the appeal period, the Veteran demonstrated instability of the left knee. However, given his reports that his left knee did not give out and that he only noticed instability a "few" times, the evidence more closely approximates a finding of slight instability for the entire appeal period, under the rating criteria in effect prior to February 7, 2021. 38 U.S.C. § 5107; 38 C.F.R. § 4.3. The Veteran's reports that he did not use a brace for left knee instability and that his left knee did not give out weigh against a finding of "moderate" or "severe" instability. Further, as the record contains no indication of an unrepaired or failed complete ligament tear, a diagnosed condition of the patellofemoral complex with recurrent instability after surgical repair, or the prescription of a brace, cane, or walker for the left knee ambulation, a higher rating under the criteria in effect from February 7, 2021 is not warranted. 3. Right Knee Meniscal Tear In April 2021, the Veteran submitted a VA Form 21-526EZ on which he requested service connection for a meniscal tear of the right knee. In a June 2021 rating decision, the AOJ granted service connection for a meniscal tear and assigned a 10 percent rating from April 14, 2021 under DC 5259. Although the Veteran filed a separate claim for the meniscal tear, the evidence of record indicates the condition is part and parcel of his already service-connected right knee disability. See June 2015 meniscal tear opinion. The Board will therefore consider the evidence of record from the date of his increased rating claim. DC 5258 provides a 20 percent disability rating for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. Similarly, DC 5259 provides a 10 percent disability rating for symptomatic removal of semilunar cartilage. The September 2015 and November 2017 knee examination reports stated the Veteran had no meniscal conditions. MRI results dated August 4, 2020, noted the presence of moderate knee joint effusion. A second MRI, dated August 28, 2020, showed a degenerative tear of the posterior horn of the medial meniscus. A December 2020 VA physical therapy note indicates the Veteran reported pain throughout his right knee, which he described as feeling like "getting stabbed," and that his knee locked up. In a February 2021 VA physical medicine consult, the Veteran reported frequent sensations of clicking, popping, and catching. According to an April 2021 VA orthopedic consult, the Veteran reported frequent swelling in the knee but denied "any true catching or locking sensations." The clinician felt that the Veteran's meniscus tear was not symptomatic and therefore did not require treatment. The May 2021 examination report stated that the Veteran's meniscal condition was manifested by pain and decreased range of motion. Based on the foregoing, the evidence shows that the Veteran did not have any of the symptoms required for a separate rating under DC 5258 or DC 5259 prior to August 4, 2020. However, as of August 4, 2020, the evidence indicated the existence of a meniscal tear, and subsequent records show frequent symptoms of pain, locking, and effusion. As these symptoms more closely approximate the criteria for a 20 percent rating under DC 5258, the Board finds that a 20 percent rating is warranted from August 4, 2020. 38 U.S.C. § 5107; 38 C.F.R. § 4.3. The Board acknowledges that a rating under DC 5258 contemplates pain, and that the Veteran is already compensated for pain with the 10 percent rating under DC 5260. However, the February 2021 VA physical medicine consult suggests the meniscal pain is distinct from the pain compensated by DC 5260, in that the Veteran described it as a dull, nagging pain experienced "90 percent of the time," rather than the pain experienced during movement. Given this report and affording the Veteran the benefit of the doubt, the Board finds that a rating under DC 5258 does not constitute impermissible pyramiding. See 38 C.F.R. §§ 3.159, 4.14. By virtue of this decision, the Board is changing the applicable rating for these symptoms from DC 5259 to DC 5258 and is discontinuing the 10 percent rating under DC 5259. It is permissible to switch DCs to reflect more accurately a Veteran's current symptoms. See Read v. Shinseki, 651 F. 3d 1296 (Fed. Cir. 2011). The Board notes that the Veteran's 10 percent rating under DC 5259 was in effect since April 14, 2021 and is thus not protected. Moreover, there is no reduction in rating or severance of service connection from a change in the DC because of the Board's action. In fact, the Veteran is being assigned a higher rating for these symptoms earlier in time; as such, there is no reduction in benefits. Cf. Murray v. Shinseki, 24 Vet. App. 420, 428 (2011); see also Read, 651 F.3d at 1302. 4. Right Knee Limitation of Motion The Veteran currently has a 10 percent disability rating based on painful limitation of motion under DC 5003-5260, and a noncompensable rating under DC 5261. Under DC 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, DC 5260. Under DC 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, DC 5260. The September 2015 and November 2017, and May 2021 knee examination reports indicate range of motion findings of flexion consistent with a noncompensable rating. The September 2015 examination report indicated that the Veteran's flexion was at worst limited to 90 degrees with repeated use over time, and that he maintained full extension. The Veteran denied flare-ups at that time. The November 2017 examination report indicated the Veteran had flexion limited to 90 degrees but maintained full extension. While the Veteran endorsed flare-ups two to three times a week which required two hours of rest, the examiner advised that she was unable to provide an estimate of additional loss of motion during flare-ups, as the Veteran was not examined during a flare-up. The May 2021 examination report noted active and passive range of motion testing demonstrated flexion to 90 degrees, with pain on flexion, and extension limited to 10 degrees. Repetitive use testing resulted in no additional loss of function or range of motion. The examiner estimated that with repeated use over time and during flare-ups, flexion would be limited to 80 degrees and extension limited to 10 degrees. The Board observes that the September 2015 examination report was not compliant with the Court's guidance in Correia, and that the November 2017 examination report was not compliant with the Court's guidance in Sharp. The May 2021 range of motion findings are compliant with both holdings, and as they are most favorable to the Veteran, the Board will consider their applicability for the entire appeal period. Applying the May 2021 range of motion findings to the entire appeal period, there is no indication that the Veteran has been limited to 45 degrees of flexion; however, extension has been shown to be limited to 10 degrees. Thus, a rating greater than 10 percent based on limitation of flexion of the right knee is not warranted. However, a rating of 10 percent, but no higher, for limitation of extension is warranted. 5. Left Knee Limitation of Motion The Veteran currently has a 10 percent disability rating based on painful limitation of motion under DC 5003-5260, and a noncompensable rating under DC 5261. The September 2015, November 2017, and May 2021 knee examination reports indicate flexion range of motion findings consistent with a noncompensable rating. The September 2015 examination report noted that the Veteran's flexion was at worst limited to 90 degrees with repeated use over time; the Veteran maintained full extension. The Veteran denied flare-ups at this time. The November 2017 examination report indicated the Veteran had flexion limited to 105 degrees and full extension. While the Veteran endorsed flare-ups, the examiner advised that she was unable to provide an estimate of additional loss of motion during flare-ups as the Veteran was not examined during a flare-up. The May 2021 examination report noted active and passive range of motion testing demonstrated flexion to 110 degrees, with pain on flexion, and full extension. Repetitive use testing resulted in no additional loss of function or range of motion. The examiner estimated that with repeated use over time and during flare-ups, flexion would be limited to 90 degrees, and that the Veteran would maintain full extension. The Board observes that the September 2015 examination report was not compliant with the Court's guidance in Correia, and that the November 2017 examination report was not compliant with the Court's guidance in Sharp. The May 2021 range of motion findings are compliant with both holdings, and as they are most favorable to the Veteran, the Board will consider their applicability for the entire appeal period. Applying the May 2021 range of motion findings to the entire appeal period, there is no indication that the Veteran has been limited to 45 degrees of flexion, or to 10 degrees of extension. Thus, entitlement to a rating greater than 10 percent based on limitation of flexion of the left knee is denied. Additionally, entitlement to a compensable rating based on limitation of extension of the left knee is denied. 6. Additional Considerations The Board has also considered whether an additional or higher rating would be available under other DCs pertaining to the knee. There is no indication of ankylosis or impairment of the tibia and fibula, nor is there a diagnosis of genu recurvatum. As such, there is no basis for a separate evaluation under DCs 5256, 5262, or 5263. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Pelican, Luke H. 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.