Citation Nr: 21073669 Decision Date: 12/09/21 Archive Date: 12/09/21 DOCKET NO. 15-24 536 DATE: December 9, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for a left knee disability, excluding the period of a temporary total rating due to convalescence from March 28, 2018 to May 1, 2018, is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is dismissed. REMANDED Entitlement to service connection for a right knee disability is remanded. FINDINGS OF FACT 1. During the relevant appeal period, the Veteran's service-connected left knee disability has been manifested by painful motion, but has not manifested by objective evidence of flexion limited to 45 degrees or less, or extension limited to 15 degrees or more. 2. The appeal for a TDIU has been rendered moot by the grant of a total schedular rating for the Veteran's service-connected posttraumatic stress disorder (PTSD) with severe alcohol use disorder and special monthly compensation (SMC) for housebound benefits throughout the entirety of the appeal period. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 10 percent for a left knee disability, excluding the period of a temporary total rating due to convalescence from March 28, 2018 to May 1, 2018, have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. 2. The appeal for a TDIU is moot. 38 U.S.C. § 1155; 38 C.F.R. § 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from January 1986 to May 1986 and from May 1988 to May 1992. In August 2018, the Board of Veterans' Appeals (Board) remanded the matters on appeal for additional evidentiary development. The Board finds that there has been substantial compliance with the remand directives and the issues have been appropriately returned to the Board for adjudication. Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to a disability rating in excess of 10 percent for a left knee disability, excluding the period of a temporary total rating due to convalescence from March 28, 2018 to May 1, 2018, is denied. The Veteran maintains entitlement to a disability rating in excess of 10 percent for a left knee disability, excluding the period of a total rating due to convalescence from March 28, 2018 to May 1, 2018. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered because of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. In a claim for a greater original rating after an initial award of service connection, all the evidence submitted in support of the veteran's claim is to be considered. See Fenderson v. West, 12 Vet. App. 119 (1999). Where entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). VA must determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a "staged rating." See Fenderson, 12 Vet. App at 119; Hart v. Mansfield, 21 Vet. App. 505 (2008). The Board notes that, when evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). At the outset, the Board acknowledges that VA has recently revised portions of the rating criteria for the musculoskeletal system, effective February 7, 2021. 82 F.R. 35719. The regulations for rating knee disabilities under Diagnostic Codes 5258, 5260, and 5261 have not changed. Degenerative or traumatic arthritis 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 however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate Diagnostic Codes, a rating of 10 percent is for application 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. In the absence of limitation of motion, a 10 percent rating is warranted for x-ray evidence of arthritis with evidence of involvement of 2 or more major joints or 2 or more minor joint groups. A 20 percent rating is warranted for x-ray evidence of arthritis with evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010. Diagnostic Code 5256 governs ankylosis (complete bony fixation) of the knee. Diagnostic Code 5257 addresses recurrent subluxation or lateral instability of the knee. Diagnostic Codes 5258 and 5259 evaluates semilunar cartilage, or the meniscus. A 20 percent rating is assigned for a dislocated meniscus with frequent episodes of ''locking,'' pain, and effusion into the joint under Diagnostic Code 5258. A 10 percent rating is assigned for removal of the meniscus that is symptomatic under Diagnostic Code 5259. Diagnostic Code 5260 addresses limitation of flexion of the knee. Under it, a 30 percent rating is for application where flexion is limited to 15 degrees; a 20 percent rating is for application where flexion is limited to 30 degrees; a 10 percent rating is for application where flexion is limited to 45 degrees; a 0 percent rating is for application where flexion limited to 60 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Diagnostic Code 5261 addresses limitation of extension of the knee. Under it, a 50 percent rating is for application where extension is limited to 45 degrees; a 40 percent rating is for application where extension is limited to 30 degrees; a 30 percent rating is for application where extension is limited to 20 degrees; a 20 percent rating is for application where extension is limited to 15 degrees; a 10 percent rating is for application where extension is limited to 10 degrees; a 0 percent rating is for application where extension is limited to 5 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Diagnostic Code 5262 concerns impairment of the tibia and fibula. Diagnostic Code 5263 governs genu recurvatum. A maximum 10 percent rating is assigned for genu recurvatum (acquired, traumatic, with weakness and insecurity in weight-bearing objectively observed). The Board notes that the criteria under Diagnostic Codes 5257, 5260, and 5261 are not considered to be overlapping, and therefore separate ratings can be assigned where appropriate symptomatology is shown. The normal range of motion for the knee is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71. The Veteran sought an increased rating for his left knee disability in April 2014. Thus, the Board will review the relevant evidence from one year prior to that date. Turning to the evidence of record, an April 2013 VA primary care note indicates that the Veteran experienced bilateral knee pain. He reported that it was most painful when descending the stairs. He also indicated that he felt like his knees were going to give out. The Veteran treated the pain with ibuprofen daily. He stated that he had left knee arthroscopy in the 1980s with no additional procedures. The Veteran also described muscle cramps in the lower legs behind the knees that occurred when he sat down after being active. On physical examination, the examiner found no cyanosis, clubbing, or edema. The Veteran's peripheral pulses were palpable. There was no palpable tenderness. The examiner noted arthritis and pain with movement of the knees bilaterally. The Veteran was prescribed an all-day pain reliever for his knees and other arthritic joints. In May 2013, the Veteran was fitted for knee high compression garments to address the small amounts of edema he experienced in his bilateral lower extremities at the end of the day. The Veteran underwent a VA examination in August 2015. There, the Veteran reported intermittent pain, swelling, and instability. He indicated that he had difficulty navigating stairs. The Veteran stated that he had daily flare-ups that lasted half a day during which he limped and had difficulty squatting, bending, or kneeling. He reported no limitations with sitting but reported that he could not stand too long or walk far. He stated that he could lift grocery bags but avoided lifting much other than that. Range of motion testing was performed using a goniometer. Flexion was normal to 140 degrees. Extension was abnormal, limited to 5 degrees. This abnormality did not contribute to functional loss. The examiner observed evidence of pain with weightbearing and objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue across the lateral joint line. There was also objective evidence of crepitus. The Veteran was able to perform repetitive use testing with at least three repetitions without additional functional loss or range of motion after three repetitions. The Veteran was not examined immediately after repetitive use over time or during a flare-up. The examiner found that the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time or during a flare-up. However, she found that pain, weakness, fatigability, or incoordination did not significantly limit the Veteran's functional ability under either of those conditions. Concerning additional factors contributing to the Veteran's disability, the examiner noted that he had difficulty squatting and that there were audible cracking sounds in the knees. However, she also indicated that he did not hold on to the table or anything for support. Muscle strength testing yielded normal results; there was no reduction in the Veteran's muscle strength, nor did he exhibit muscle atrophy. No ankylosis was shown. The examiner noted no history of recurrent subluxation or lateral instability. Joint stability testing was performed, and results were normal. The Veteran did not have nor did he ever have recurrent patellar dislocation, "shin splints" (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome, any other tibial and/or fibular impairment, or meniscus (semilunar cartilage) condition. The examiner noted that he had a pre-service left knee arthroscopy that left no residuals, including scars. She observed that the Veteran had a slow, steady gait. He did not limp but had a waddle type walk. She observed that he was not bowlegged and did not utilize assistive devices. The Veteran's functioning was not so diminished such that amputation with a prosthesis would equally serve him. Concerning the functional impact of his left knee disability, she observed that he should avoid frequent and/or prolonged standing, walking, squatting, kneeling, and bending. In January 2016, the Veteran sought VA treatment for continued left knee pain and swelling. He also complained of left knee instability when he steps and stated that he felt like his knee was "slipping off." The Veteran also reported that his uneven gait was beginning to impact his left hip as well. On physical examination, the Veteran's left knee showed moderate effusion. No ecchymosis or erythema was shown. There was tenderness in the medial aspect of the knee. There was no pain or laxity with valgus/varus stress. The McMurray's test was positive. Lachman's and posterior drawer tests were negative. The Veteran complained of lateral pain with passive motion and pain with all active motion. The examiner noted that the positive McMurray's test and pain medially raised suspicion for possible injured ligaments. Further, the Veteran's uneven gait likely caused some strain on his joints. That March, the Veteran underwent steroid injection of the knees to assist with pain. In April 2017, the Veteran returned to the VA orthopedic clinic regarding his knee. He reported that the previous injection did not help, and he was not anxious to have another shot. The examiner recommended a new anti-inflammatory to help with pain and recommended exercising the knee in a seated position such as on a stationary bicycle. The Veteran underwent left knee arthroscopy, medial meniscectomy (partial), and arthroscopically assisted lateral release at a private facility in March 2018. The Veteran attended another VA examination in September 2021. There, he reported that he cannot ascend or descend stairs, get up from a kneeling position, crawl, run, or walk more than 30 yards. He stated that his knee hurt at a 7/10 level at all times and was worse when used. The Veteran indicated that he took NSAIDs for his pain and inflammation. He denied flare-ups. The Veteran reported that he was unable to use his left knee repeatedly. He endorsed a history of instability/recurrent subluxation of the knee as follows: "When I was running, it would give out on me, and whenever I got down (squatting) it popped and would swell." He also endorsed a history of frequent effusion of the knee, stating that it swelled on the top right side by the knee cap. Range of motion testing was performed using a goniometer. The examiner noted that pain caused decreased motion. Flexion was abnormal to 115 degrees. Extension was abnormal to 10 degrees. Passive range of motion yielded the same results. Pain was observed on both flexion and extension with weight-bearing, non-weight-bearing, and on active and passive motion. There was objective evidence of crepitus and objective evidence of moderate localized tenderness or pain on palpation of the joint or associated soft tissue in the general knee area due to degenerative joint disease. The Veteran was unable to perform repetitive-use testing with at least three repetitions due to pain. The Veteran was not examined immediately after repeated use over time or during a flare-up; however, the procured evidence did not suggest that pain, fatigability, weakness, lack of endurance, or incoordination significantly limited the Veteran's functional ability with repeated use over time or during a flare-up. No additional factors contributed to the disability. The Veteran did not display muscle atrophy or ankylosis. Recurrent subluxation or persistent instability were noted. The examiner noted that the Veteran had a complete ligament tear of the left knee that had been repaired. The Veteran did not use assistive devices. The Veteran did not have nor did he ever have recurrent patellar dislocation, "shin splints" (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome, any other tibial and/or fibular impairment, or meniscus (semilunar cartilage) condition. The Veteran's functioning was not so diminished such that amputation with a prosthesis would equally serve him. Concerning the functional impact of his left knee disability, the examiner noted that the Veteran could not squat or crawl, walk more than 100 feet, lift more than 20 pounds, navigate stairs, or run, and he had difficulty getting in and out of vehicles. The Board finds that a disability rating in excess of 10 percent for the Veteran's service-connected left knee disability is not warranted. The Veteran has not met the criteria for a compensable rating based on limitation of flexion at any time during the appellate period. Under Diagnostic Code 5260, a 10 percent rating is for application where flexion is limited to 45 degrees and higher ratings are awardable based on additional functional loss. Here, flexion of the Veteran's left knee has been limited to, at worst, 115 degrees. As there is no medical evidence of record demonstrating limitation of flexion to 45 degrees, a separate, compensable rating under Diagnostic Code 5260 based on limitation of flexion is not warranted. See 38 C.F.R. § 4.71a, Diagnostic Code 5260. Further, the Veteran has not met the minimum criteria for a higher, 20 percent disability rating based on limitation of extension at any time during the appellate period. Under Diagnostic Code 5261, a 20 percent rating is warranted where extension is limited to 15 degrees and higher ratings are awardable based on additional loss. Here, extension of the Veteran's left knee has been limited to, at worst, 10 degrees. As there is no medical evidence demonstrating limitation of extension to 15 degrees, a higher, 20 percent disability evaluation based on limitation of extension is not warranted. See 38 C.F.R. § 4.71a, Diagnostic Code 5261. The Board has considered functional impairment due to the Veteran's service-connected left knee disability and acknowledges the subjective complaints of pain made throughout the course of the Veteran's claim, as well as the objective evidence of pain on movement and reduced movement during range of motion testing. While the Veteran experiences pain, the Board finds that the 10 percent evaluation assigned for the left knee adequately portrays any functional impairment, pain, and weakness that the Veteran experienced as a result of use of his left knee. See Spurgeon v. Brown, 10 Vet. App. 194 (1997). Therefore, higher evaluations for the left knee disability based on functional loss are not warranted for the period on appeal. See DeLuca, 8 Vet. App. at 204-06. The Board notes that the Veteran has been service-connected for left knee lateral instability, under Diagnostic Code 5257 and that this rating is not on appeal. The Board has also considered whether the Veteran is entitled to any additional separate ratings for his left knee disability. The clinical evidence does not establish ankylosis, removal or dislocation of semilunar cartilage, impairment of the tibia or fibula, or genu recurvatum. Therefore, Diagnostic Codes 5256, 5258, 5259, 5262, and 5263 are not for application. In summary, the preponderance of the against weighs against the Veteran's claim for a disability rating in excess of 10 percent for his service-connected left knee disability. 2. Entitlement to a TDIU is dismissed. The Veteran maintains that his service-connected disabilities render him unable to obtain and maintain substantially gainful employment. The Board notes that the Veteran currently has a 100 percent rating for service-connected PTSD with severe alcohol abuse disorder. VA's duty to maximize a claimant's benefits includes potentially considering whether TDIU is warranted for a particular service-connected disability even when a schedular 100 percent rating is already in effect for other service-connected disabilities in order to determine the veteran's eligibility for SMC under section 1114(s). See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Specifically, SMC may be warranted if a veteran has a 100 percent disability rating for a single disability, and VA finds that TDIU is warranted based solely on a disability other than the disability that is rated at 100 percent. Bradley, 22 Vet. App. 280. In this case, however, the issue of TDIU is moot, as the Veteran is already in receipt of SMC under section 1114(s) for the entire appeal period. As the Veteran is already in receipt of maximum benefits for the entire appeal period, consideration for a TDIU is rendered moot. REASONS FOR REMAND Entitlement to service connection for a right knee disability is remanded. The Veteran attended a VA examination in September 2021 where his diagnoses of right knee degenerative joint disease and Pellegrini-Stieda lesion were confirmed, and an additional diagnosis of right knee instability was discovered. The VA examiner found that the Veteran's claimed right knee disability was at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness. She noted the repeated finding of Pellegrini-Stieda lesion on the May 2016 radiology report (were initially seen in August 2015) and observed that this is indicative of a previous injury. She then related this to findings of a twisted knee and a possible torn patella in the Veteran's service treatment records in June and July 1989. The Board notes that this opinion, although positive, is predicated upon an inaccurate factual premise, as the in-service notations of a twisted knee and possible torn patella are attributed to his already service-connected left knee, not his right knee. As this opinion is wholly based on an inaccurate factual premise, it lacks probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (A medical opinion based on an inaccurate factual premise has no probative value.). However, as the Veteran did experience an in-service abrasion injury to his right leg during service in May 1989, the Board finds that an addendum opinion should be obtained addressing whether this injury caused the current Pellegrini-Stieda lesion. The matter is REMANDED for the following action: Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's claimed right knee disability, including his diagnosed degenerative arthritis, right knee instability, and/or Pellegrini-Stieda lesion, is at least as likely as not related to his active duty military service, to include the documented in-service May 1989 abrasion to the right leg. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Bush 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.