Citation Nr: 21072709 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 15-17 716 DATE: December 6, 2021 ORDER Entitlement to a rating in excess of 10 percent for left patellar fracture is denied. Entitlement to a rating in excess of 20 percent for left knee patellar instability is denied. A rating of 10 percent, but no greater, for a left knee limitation of extension, is granted, subject to the law and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. The most probative evidence does not reflect that the Veteran's service-connected left patellar fracture has been manifested by flexion limited to 30 degrees or less, to include upon repetitive motion testing, during a flare-up of symptoms, in weight-bearing and nonweight-bearing positions, and on passive and active motion. 2. The most probative evidence does not reflect that the Veteran's service-connected left knee patellar instability has been manifested by evidence of severe recurrent subluxation or lateral instability, ligament damage or surgical repair, or recurrent instability after surgical repair of the patella that requires a prescription by a medical provider for a brace and either a cane or a walker. 3. The Veteran's left knee extension is manifested by pain that results in functional loss. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for left knee patellar fracture are not met. 38 U.S.C. §§ 1155, 5121A; 38 C.F.R. §§ 3.1010, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5099-5260. 2. The criteria for a rating in excess of 20 percent for left knee patellar instability are not met. 38 U.S.C. §§ 1155, 5121A; 38 C.F.R. §§ 3.1010, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257. 3. The criteria for a 10 percent rating, but not higher, for left knee limitation of extension, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5261. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1987 to December 1994. This case comes before the Board of Veterans' Appeals (Board) from a November 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. In September 2017, the Veteran presented sworn testimony during a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's claims file. This matter was previously before the Board in November 2020, at which time it was remanded for additional development. Pursuant to the November 2020 Board remand, the Veteran received VA examinations in January 2021 and July 2021. Based on the results of the examination, the RO granted a separate 20 percent evaluation for left knee patellar instability, effective July 21, 2021, and a separate noncompensable evaluation for left knee limitation of extension, effective January 27, 2021. Although the Board notes that the Veteran has not expressed disagreement with the evaluations, received a Statement of the Case (SOC) on the matter, and/or perfected an appeal to the Board with the filing of a substantive appeal, to avoid piecemeal litigation, the Board is taking jurisdiction of the claims as part and parcel of her claim of entitlement to a rating in excess of 10 percent for left patellar fracture. See Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996); Smith (Daniel) v. Gober, 236 F.3d 1370, 1373 (Fed. Cir. 2001) (holding that, where the facts underlying separate claims are 'intimately connected,' the interests of judicial economy and avoidance of piecemeal litigation require that the claims be adjudicated together); see also Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (holding that the Board may take jurisdiction of issues that have not been perfected to the Board if they are inextricably intertwined with an issue on appeal), aff'd, 631 F.3d 1380 (Fed. Cir. 2011), vacated on other grounds, 132 S. Ct. 75 (U.S. 2011). Simply put, since these additional ratings were assigned during the course of the subject appeal, the Board finds those newly assigned ratings are subject to review as they are part and parcel of the original claim on appeal. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. See 38 U.S.C. § 1155; 38 C.F.R. Part 4. The percentage ratings in VA's Schedule for Rating Disabilities (Rating Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. See 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, "staged" ratings are appropriate where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. See Hart, supra. Separate compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). 1. Entitlement to a rating in excess of 10 percent for left patellar fracture 2. Entitlement to a rating in excess of 20 percent for left knee patellar instability 3. Entitlement to a compensable rating for left knee limitation of extension Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the scheduler criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995); Sharp v. Shulkin, 29 Vet. App. 26, 34 (2017); VAOPGCPREC 9- 98. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity or atrophy of disuse and instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Pain is contemplated in the rating criteria for all musculoskeletal disabilities, and therefore it does not need to be identified in each individual code to indicate its inclusion. 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 any range of motion testing "for pain on both active and passive motion [and] in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." Under VA regulations, separate disabilities arising from a single disease entity are to be rated separately. See 38 C.F.R. § 4.25; see also Esteban v. Brown, 6 Vet. App. 259, 261 (1994). Arthritis due to trauma under Diagnostic Code 5010 substantiated by X-ray findings is rated as degenerative arthritis under Diagnostic Code 5003. Diagnostic Code 5003 provides that degenerative arthritis that is established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When there is no limitation of motion of the specific joint or joints that involve degenerative arthritis, Diagnostic Code 5003 provides a 20 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, and a 10 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. Note (1) provides that the 20 percent and 10 percent ratings based on X-ray findings will not be combined with ratings based on limitation of motion. Note (2) provides that the 20 percent and 10 percent ratings based on X-ray findings, above, will not be utilized in rating conditions listed under Diagnostic Codes 5013 to 5024, inclusive. When there is some limitation of motion of the specific joint or joints involved that is noncompensable (0 percent) under the appropriate diagnostic codes, Diagnostic Code 5003 provides a rating of 10 percent for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. When there is limitation of motion of the specific joint or joints that is compensable (10 percent or higher) under the appropriate diagnostic codes, the compensable limitation of motion should be rated under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a. Diagnostic Code 5260 which provides that limitation of flexion of the knee to 60 degrees warrants a zero percent evaluation, limitation of flexion of the knee to 45 degrees warrants a 10 percent evaluation, limitation of flexion of the knee to 30 degrees warrants a 20 percent evaluation, and limitation of flexion of the knee to 15 degrees warrants a 30 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Diagnostic Code 5261 provides that limitation of extension of the knee to 5 degrees warrants a zero percent evaluation, limitation of extension of the knee to 10 degrees warrants a 10 percent evaluation, limitation of extension of the knee to 15 degrees warrants a 20 percent evaluation, limitation of extension of the knee to 20 degrees warrants a 30 percent evaluation, limitation of extension of the knee to 30 degrees warrants a 40 percent evaluation, and limitation of extension of the knee to 45 degrees warrants a 50 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Separate ratings under Diagnostic Code 5260 and 5261 may be assigned for a disability of the same joint if range of motion findings equate to compensable evaluations under each Diagnostic Code. See VAOPGCPREC 9- 2004. Normal knee motion is from zero degrees to 140 degrees. See 38 C.F.R. § 4.71, Plate II. Separate disability ratings are possible for arthritis with limitation of motion under Diagnostic Codes 5003 and instability of a knee under Diagnostic Code 5257. See VAOPGCPREC 23-97. When X-ray findings of arthritis are present and a veteran's knee disability is rated under Diagnostic Code 5257, the veteran would be entitled to a separate compensable rating under Diagnostic Code 5003 if the arthritis results in noncompensable limitation of motion and/or objective findings or indicators of pain. See VAOPGCPREC 9-98. Under 38 C.F.R. § 4.71a, Diagnostic Code 5257, the following evaluations are assignable for other impairment of the knee, to include recurrent subluxation or lateral instability: 30 percent for severe, 20 percent for moderate, and 10 percent for slight. The Board acknowledges that the terms "mild," "moderate," and "severe" are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The use of terminology such as "moderate" or "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The Board does note, for reference and illustrative purposes only, that the definitions for "mild" includes not very severe. WEBSTER'S II NEW COLLEGE DICTIONARY at 694 (1995). The Board also notes that a synonym for "mild" is "slight" and definitions for "slight" includes small in size, degree, or amount. Id. at 1038. The definitions for "moderate" includes of average or medium quantity, quality, or extent. Id. at 704. Finally, definitions for "severe" includes extremely intense. Id. at 1012. Diagnostic Code 5257 was amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). When 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). As of February 7, 2021, under the amended version of Diagnostic Code 5257, criteria for recurrent subluxation or lateral instability have been changed as the following: 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 is rated as 30 percent. If one of the following is met, 20 percent is assigned: (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. 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 is rated as 10 percent. In addition, the amended version of Diagnostic Code 5257 now includes new criteria for "patellar instability." 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 is rated as 30 percent disabling. 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 is rated as 20 percent. A diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker is rated as 10 percent. Note (1) of this newly added "patellar instability" section provides that for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note (2) provides that a surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). Analysis The Veteran's service-connected left knee patellar fracture is rated as 10 percent disabling under Diagnostic Code 5099-5260, while the service-connected left knee patellar instability is rated as 20 percent disabling under Diagnostic Code 5257 and service-connected left knee limitation of extension assigned a noncompensable rating under Diagnostic Code 5261. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. The additional diagnostic code, shown after the hyphen, represents the basis for the rating, while the primary diagnostic code indicates the underlying source of the disability. Additionally, the use of the "99" series and hyphenated diagnostic codes reflects that there is no specific diagnostic code applicable to the disability, and it must be rated by analogy. 38 C.F.R. § 4.20. The evidence of record describing the frequency, severity, and duration of the Veteran's service-connected knee disabilities are reflected in voluminous VA treatment records, the reports of VA examinations completed in January 2011, January 2021, and July 2021, and her lay statements, to include her sworn testimony at the June 2019 Board hearing. As an initial matter, the Board observes that the Veteran has not asserted, and the record does not reflect, that her service-connected left knee disabilities are manifested in ankylosis of the joint, dislocated semilunar cartilage, removal of semilunar cartilage, impairment of the tibia and fibula, or genu recurvatum, during the appeal period. As such, her appealed issues cannot be availed by application of the pertinent facts to the criteria within 38 C.F.R. § 5.71a Diagnostic Codes 5256, 5258, 5259, 5262, and 5263, throughout the pendency of the appeal. Applying the pertinent medical evidence to the rating criteria, the most limited flexion of the left knee, to include on active and passive motion, in weight-bearing and nonweight-bearing positions, after repetitive motion testing, and during a flare-up of symptoms, was to 35 degrees, but no less, at the July 2021 VA examination. The most limited extension of the left knee, to include on active and passive motion, in weight-bearing and nonweight-bearing positions, after repetitive motion testing, and during a flare-up of symptoms, was to 5 degrees, but no less, at the January 2021 VA examination. The Board observes that flexion of the knee limited to 35 degrees does not meet the criteria for an evaluation in excess of 10 percent under Diagnostic Code 5260 and extension limited to 5 degrees does not meet the criteria for a compensable evaluation under Diagnostic Code 5261. However, the January 2021 VA examination noted that the Veteran experienced painful motion in extension and it caused functional loss. In light of this finding, the Board finds that a 10 percent rating, but not higher, is warranted, for the entire period on appeal for left knee extension. This represents a partial allowance of the benefits sought regarding this appealed issue. Concerning entitlement to even higher initial evaluations for left knee patellar fracture and left knee extension, the evidence does not show flexion limited to 30 degrees or extension limited to 15 degrees. In view of above, the Board concludes that the currently assigned 10 percent evaluations for noncompensable painful flexion and extension of the left knee are appropriate throughout the appeal period. VAOPGCPREC 9-98. To that extent, the evidence does not support entitlement to an evaluation in excess of 10 percent for either of these service-connected knee disabilities based on limitation of motion, as provided by 38 C.F.R. § 5.71a, Diagnostic Codes 5260 and 5261. There is also no additional uncompensated limitation of extension or flexion that could form the basis for an even higher rating under DeLuca v. Brown, supra. With regard to a rating in excess of 20 percent for left knee instability, under the amended criteria relating to ligament damage are not for application as the only knee surgery consisted of the repair of the patella by internal fixation and there is otherwise no evidence of ligament damage. In addition, with respect to the amended provisions relating to patellar instability, while the Veteran constantly requires a brace, the evidence does not show that there has been a prescription by a medical provider for a brace and either a cane or a walker during the relevant appeal period. The Board further observes that the Veteran's primary symptoms of instability consist of pain and required use of a knee brace without episodes of patella dislocation, locking, or effusion. Consequently, the Board further finds that there is an inadequate basis to assign the next higher rating of 30 percent under former Diagnostic Code 5257 for severe recurrent subluxation and lateral instability. Lastly, neither the Veteran nor the record has raised the matters of entitlement to an extraschedular evaluation, or a total evaluation based on individual unemployability due to service-connected disabilities (TDIU) due to her service-connected knee disabilities during the appeal period of these issues. Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017). As such, further action or discussion of these matters is unnecessary. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Daniels, 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.