Citation Nr: 21074340
Decision Date: 12/15/21	Archive Date: 12/14/21

DOCKET NO. 16-40 983A
DATE: December 15, 2021

ORDER

A higher initial rating a right knee disability, in excess of 10 percent from February 26, 2008 to February 21, 2015, in excess of 20 percent from February 21, 2015 to May 7, 2015, and in excess of 10 percent from August 1, 2015 to June 8, 2021 is denied; a 20 percent rating for from June 8, 2021 is granted.

A separate compensable disability rating of 20 percent for the right knee instability from June 8, 2021 is granted. 

FINDINGS OF FACT

1. From February 26, 2008 to February 21, 2015, the service-connected right knee disability manifested in pain with some functional loss, without compensable limitation of motion, lateral instability or recurrent subluxation, ankylosis, dislocation or removal of semilunar cartilage, nonunion or malunion of the tibia and fibula, or genu recurvatum.

2. From February 21, 2015 to May 7, 2015, the service-connected right knee disability manifested in pain, popping, and locking with effusion due to a tear in the medial meniscus; without compensable limitation of motion, lateral instability or recurrent subluxation, ankylosis, nonunion or malunion of the tibia and fibula, or genu recurvatum.

3. From August 1, 2015 to June 8, 2021, the service-connected right knee disability manifested in pain with some functional loss, without compensable limitation of motion, lateral instability or recurrent subluxation, the need for an assistive device, ankylosis, dislocation or removal of semilunar cartilage, nonunion or malunion of the tibia and fibula, or shin splints or medial tibial stress syndrome (MTSS), or genu recurvatum.

4. From June 8, 2021, the service-connected right knee semilunar cartilage dislocation disability manifested in locking with effusion in the right knee.

5. From June 8, 2021, the service-connected right knee disability did not manifest in compensable limitation of motion, ankylosis, nonunion or malunion of the tibia and fibula, or shin splints (MTSS), or genu recurvatum, to warrant an additional separate compensable rating.

6. From June 8, 2021, the service-connected right knee instability required the use of a medically prescribed knee brace for ambulation 3 to 4 days a week.

CONCLUSIONS OF LAW

1. From February 26, 2008 to February 21, 2015, the criteria for a higher initial rating in excess of 10 percent for the right knee disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003.

2. From February 21, 2015 to May 7, 2015, the criteria for entitlement to a higher initial rating in excess of 20 percent for the right knee disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5258.

3. From August 1, 2015 to June 8, 2021, the criteria for a higher initial rating in excess of 10 percent for the right knee disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003 (2020), 4.71a, Diagnostic Code 5003 (effective February 7, 2021).

4. Resolving reasonable doubt in the Veteran's favor, from June 8, 2021, the criteria for a rating of 20 percent for the right knee disability have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5258 (effective February 7, 2021). 

5. Resolving reasonable doubt in the Veteran's favor, from June 8, 2021, the criteria for a separate compensable rating of 20 percent for the right knee instability have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.3, 4.7, 4.71a, Diagnostic Code 5257 (effective February 7, 2021).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from July 2003 to May 2006. 

The Veteran filed an original claim for service connection for a right knee disability on June 18, 2012. This matter is on appeal from a December 2012 rating decision issued by the Regional Office (RO), which granted service connection and rated the disability at 0 percent from June 18, 2012. In January 2013, the Veteran filed a notice of disagreement with the initial rating. A statement of the case (SOC) was filed in June 2016. The Veteran filed a substantive appeal in August 2016. 

In a June 2016 rating decision, the RO granted a 20 percent rating from February 21, 2015, assigned a temporary total rating from May 7, 2015 to July 31, 2015, and assigned a 10 percent rating from August 1, 2015.

A June 2017 rating decision continued the 10 percent rating from August 1, 2015. In a June 2018 rating decision, a higher 10 percent was granted from June 18, 2012 to February 21, 2015. 

This appeal was first brought before the Board in December 2018. The Board granted an earlier effective date of February 26, 2008 for service connection for the right knee disability. The Board remanded the issue of a higher initial disability rating in excess of 10 percent before February 21, 2015, a higher initial disability rating in excess of 20 percent before May 7, 2015, and a higher initial disability rating in excess of 10 percent from August 1, 2015 in order to obtain a VA examination. A VA examination was conducted in May 2019 and a supplemental statement of the case (SSOC) was issued in June 2019.

The appeal was brought before the Board again in August 2019. The Board remanded the questions of a higher initial disability rating in excess of 10 percent before February 21, 2015, a higher initial disability rating in excess of 20 percent before May 7, 2015, and a higher initial disability rating in excess of 10 percent from August 1, 2015 in order to obtain a VA examination that comports with Correia and Sharp. See Correia v. McDonald, 28 Vet. App. 158 (2016) (when possible, examiners must include range of motion testing on active and passive motion and in weight-bearing and nonweight-bearing conditions); Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017) (examiner must attempt to elicit information regarding the severity, frequency, duration, and functional loss during flare-ups before determining that additional range of motion loss due to flare-ups cannot be estimated). A VA examination addendum opinion was issued in April 2020 and a SSOC was issued in June 2020.

The Board remanded the above three stages of rating again in August 2020 in order to obtain a VA examination to assess limitations during flareups (Sharp). The Board noted that despite the fact that the Veteran has undergone three separate VA examinations, with an addendum sought for clarification of one, further examination was needed. A VA examination and addendum opinion was conducted in June 2021. A SSOC was issued in July 2021.

These issues were before the Board again in August 2021. The Board remanded the issues in order to obtain a VA examination. The Board requested a retrospective opinion that addresses limitations regarding weightbearing (Correia) and whether there was instability. A VA examination was conducted in October 2021. A SSOC was issued in October 2021. 

Duties to Notify and Assist

The Board finds that the duties to notify and assist the Veteran in this case have been fulfilled. Neither the Veteran nor the representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). 

Legal Authority for Disability Ratings

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. § Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21.

Where there is a question as to which of two disability ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3.

In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (double "compensation" for the same symptom or impairment is prohibited).

When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20.

When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Further, 38 C.F.R. §§ 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. Painful motion is considered limited motion at the point that pain actually sets in. See VAOPGCPREC 9-98.

With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or mal-aligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59.

The appropriate diagnostic codes for rating limitation of motion of the knees are Diagnostic Codes 5260 and 5261. 38 C.F.R. § 4.71a. Normal range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. In VAOPGCPREC 9-2004, the VA General Counsel interpreted that when considering Diagnostic Codes 5260 and 5261 together with 38 C.F.R. § 4.71, a veteran may receive a rating for limitation in flexion only, limitation of extension only, or, if the 10 percent criteria are met for both limitations of flexion and extension, separate ratings for limitations in flexion under Diagnostic Code 5260 (leg, limitation of flexion) and extension under Diagnostic Code 5261 (leg, limitation of extension).

Under Diagnostic Code 5260, limitation of knee flexion is rated 30 percent disabling where flexion is limited to 15 degrees; 20 percent disabling where flexion is limited to 30 degrees; 10 percent disabling where flexion is limited to 45 degrees; and noncompensable where flexion is limited to 60 degrees. 38 C.F.R. § 4.71a.

Under Diagnostic Code 5261, limitation of knee extension is rated 50 percent disabling where extension is limited to 45 degrees; 40 percent disabling where extension is limited to 30 degrees; 30 percent disabling where extension is limited to 20 degrees; 20 percent disabling where extension is limited to 15 degrees; 10 percent disabling where extension is limited to 10 degrees; and noncompensable where extension is limited to 5 degrees. 38 C.F.R. § 4.71a.

During the pendency of this appeal the diagnostics codes in 38 C.F.R. § 4.71a have been revised, pertinent to this case DCs 5257 and 5262.

Prior to February 7, 2021 revision, Diagnostic Code 5257 contemplated "other impairment" of the knee including recurrent subluxation or lateral instability. Under Diagnostic Code 5257, where impairment is severe, moderate or slight, disability evaluations of 30, 20, and 10 percent are assigned, respectively. 38 C.F.R. § 4.71a.

From February 7, 2021, Diagnostic Code 5257 contemplates "other impairment" of the knee including (1) recurrent subluxation or instability and (2) patellar instability.

For recurrent subluxation or instability, 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 warrants a 30 percent rating. A 20 percent rating is warranted if the veteran exhibits 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 10 percent rating is warranted if the veteran exhibits 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.

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 warrants a 30 percent rating. A 20 percent rating is warranted if the veteran has a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace, cane, or walker. A 10 percent rating is warranted if the veteran has 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.

Prior to February 7, 2021, Diagnostic Code 5262 contemplated impairment of the tibia and fibula, assigning a 40 percent rating for nonunion of the tibia and fibula, and 10, 20, and 30 percent ratings for slight, moderate or marked knee or ankle disabilities. The words "slight," "moderate," "severe," and "marked" as used in the various diagnostic codes are not defined in the VA Rating Schedule.

From February 7, 2021, the revised Diagnostic Code 5262 contemplates impairment of the tibia and fibula, assigning a 40 percent rating for nonunion of the tibia and fibula with loos emotion requiring brace. A 30 percent rating is assigned for medial tibial stress syndrome (MTSS), or shin splints, requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, both lower extremities. A 20 percent rating is assigned for MTSS, or shin splints, requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, one lower extremity. A 10 percent rating is assigned for MTSS, or shin splints, requiring treatment for no less than 12 consecutive months, and unresponsive to either shoe orthotics or other conservative treatment, one or both lower extremities. A 0 percent rating is assigned for MTSS, or shin splints, requiring treatment less than 12 consecutive months, one or both lower extremities.

Under Diagnostic Code 5256, disability ratings are assigned when ankylosis is present.

Diagnostic Code 5258 provides a 20 percent disability rating when a dislocated semilunar cartilage is present with frequent episodes of "locking," pain, and effusion into the joint.

Diagnostic Code 5259 provides for a 10 percent disability rating when semilunar cartilage has been removed and related symptoms are present.

A 10 percent disability rating is assigned under Diagnostic Code 5263 when genu recurvatum is identified.

Diagnostic Code 5003 provides that degenerative arthritis established by X-ray findings is to be evaluated on the basis of limitation of motion under the appropriate diagnostic code 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 code, an evaluation 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 DC 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 evaluation is assignable for X-ray evidence of involvement of arthritis of two or more major joints or two or more minor joint groups. A 20 percent evaluation is assignable for X-ray evidence of involvement of arthritis of two or more major joints or two or more minor joint groups, with occasional incapacitating episodes. 38 C.F.R. § 4.71a.

Notes (1) and (2) under Diagnostic Code 5003 provides the following: Note (1) provides that the 20 percent and 10 percent ratings based on X-ray findings, above, 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-rays findings, above, will not be utilized in rating conditions listed under Diagnostic Codes 5013 to 5024, inclusive. VA's Office of General Counsel has provided guidance concerning increased rating claims for knee disabilities. VA's General Counsel interpreted that compensating a claimant for separate functional impairment under Diagnostic Code (DC) 5257 and 5003 does not constitute pyramiding. See VAOPGCPREC 23-97. Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition. See Esteban, 6 Vet. App. 259, 262; Lyles, 29 Vet. App. 107.

In VAOPGCPREC 9-98, VA's General Counsel reiterated that, if a veteran has a disability rating under Diagnostic Code 5257 for instability of the knee, and there is also X-ray evidence of arthritis, a separate rating for arthritis could also be based on painful motion under 38 C.F.R. §§ 4.59. In addition, the General Counsel considered a hypothetical situation in which a knee disability was evaluated under Diagnostic Code 5259 that was productive of pain, tenderness, friction, osteoarthritis established by X-rays, and a slight loss of motion. For the purposes of the hypothetical, it was assumed that Diagnostic Code 5259 did not involve limitation of motion. Given the findings of osteoarthritis, the General Counsel stated that the availability of a separate evaluation under Diagnostic Code 5003 in light of sections 4.40, 4.45, 4.59 must be considered. See Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). Absent X-ray findings of arthritis, limitation of motion should be considered under Diagnostic Codes 5260 and 5261. The claimant's painful motion may add to the actual limitation of motion so as to warrant a rating under Diagnostic Codes 5260 or 5261.

The VA General Counsel further noted in VAOPGCPREC 9-98 that the removal of the semilunar cartilage may involve restriction of movement caused by tears and displacements of the menisci, but that the procedure may result in complications such as reflex sympathetic dystrophy, which can produce loss of motion. Therefore, limitation of motion is a relevant consideration under Diagnostic Code 5259, and the provisions of 38 C.F.R. §§§ 4.40, 4.45, and 4.59 must be considered.

1. Rating the Right Knee Disability 

From February 26, 2008 to February 21, 2015 

The Veteran was in receipt of a 10 percent disability rating for the right knee disability from February 26, 2008 to February 21, 2015 for painful noncompensable limitation of motion with some functional loss, which should be coded under DC 5003. (The DC 5258 coding for this period on appeal is incorrect, so the Board corrects this mislabeled code to reflect how the 10 percent rating was actually assigned).

After a review of the evidence, both lay and medical, the Board finds that from February 26, 2008 to February 21, 2015, the service-connected right knee disability manifested in pain with some functional loss, without compensable limitation of motion, lateral instability or recurrent subluxation, ankylosis, dislocation or removal of semilunar cartilage, nonunion or malunion of the tibia and fibula, or genu recurvatum, to warrant a higher compensable rating under any other rating criteria, or to warrant a separate rating for instability or any other nonoverlapping symptoms.

The most probative piece of evidence of record is the October 2012 VA examination report. During the October 2012 VA examination, the Veteran reported pain and experiencing difficulty standing. There is no indication of arthritis, ankylosis, or impairment of the fibula or tibia. All stability testing produced normal results, with no symptoms of recurrent subluxation. The VA examiner measured initial flexion at 140 degrees and initial extension at 0 degrees; the Veteran had full range of motion. There is also no evidence of dislocation or removal of semilunar cartilage or genu recurvatum.

The Veteran submitted three lay statements to the record in October 2012. The lay statements contend that the Veteran has been experiencing chronic knee pain since service separation. 

Based on the foregoing, the Board finds that the criteria for a higher initial rating in excess of 10 percent for the right knee disability from February 26, 2008 to February 21, 2015 have not been met. The 10 percent rating contemplates the presence of knee pain that limits to a noncompensable degree. Even considering additional functional limitations due to the reported pain and difficulty standing, the evidence does not support a higher or separate compensable rating; as such, the claim must be denied.

From February 21, 2015 to May 7, 2015

VA assigned a 20 percent disability rating for the right knee disability from February 21, 2015 to May 7, 2015 under DC 5258 (which provides for a maximum 20 percent rating).

After a review of the evidence, both lay and medical, the Board finds that from February 21, 2015 to May 7, 2015, the service-connected right knee disability manifested in pain, popping, and locking with effusion due to a tear in the medial meniscus; without evidence of compensable limitation of motion, lateral instability or recurrent subluxation, ankylosis, nonunion or malunion of the tibia and fibula, or genu recurvatum. These findings do not support a higher rating under an alternative diagnostic code or a separate compensable rating for nonoverlapping symptoms.

In the March 2015 VA treatment records, the Veteran reported that on February 21, 2015 she was playing with her children and heard a "pop." The Veteran could not straighten her right leg and experienced swelling. Upon further testing in April 2015, a VA medical examiner found effusion in the right knee joint. See April 2015 VA Treatment Records. 

The evidence of record does not support a higher or separate compensable rating during this period on appeal (separate from the 20 percent disability rating under Diagnostic Code 5258). The evidence does not show compensable limitation of motion, lateral instability or recurrent subluxation, ankylosis, nonunion or malunion of the tibia and fibula, or genu recurvatum, to warrant a rating higher than 20 percent under an alternative diagnostic code, or to warrant a separate compensable rating. Even considering additional functional limitations due to the reported pain and swelling, the evidence does not support a higher or separate compensable rating. Based on the foregoing, the Board finds that the criteria for a higher initial rating in excess of 20 percent for the right knee disability from February 21, 2015 to May 7, 2015 have not been met. 

From August 1, 2015 to June 8, 2021

From May 7, 2015 to July 31, 2015, the Veteran was in receipt of a 100 percent disability rating for convalescence following a meniscectomy surgery on the right knee, which occurred on May 7, 2015. After the convalescence, the Veteran received a 10 percent disability rating for the right knee disability from August 1, 2015 (incorrectly labeled under DC 5260). The 10 percent disability rating from August 1, 2015 to June 8, 2021 was assigned based on findings of painful, noncompensable limitation of motion with some functional loss. Painful, noncompensable limitation of motion should be rated (and coded) under DC 5003, rather than DC 5260 (which is for compensable limitation of flexion). The Board corrects the Diagnostic Code assigned to reflect a 10 percent disability rating for the right knee disability from August 1, 2015 to June 8, 2021 under the substantive criteria of DC 5003.

After a review of the evidence, both lay and medical, the Board finds that, for the period from August 1, 2015 to June 8, 2021, the service-connected right knee disability manifested in pain with some functional loss, without evidence of compensable limitation of motion, lateral instability or recurrent subluxation, the need for an assistive device, ankylosis, dislocation or removal of semilunar cartilage, nonunion or malunion of the tibia and fibula, or shin splints (MTSS), or genu recurvatum, to warrant a separate compensable rating.

The Veteran submitted May 2017 private treatment records to the case file. The private examiner noted that right knee was aggravated by movement and manifested in pain. The medical records do not establish any basis for a separate compensable rating for this period on appeal as this evidence continues to show painful, noncompensable limitation of motion of the knee.

The Veteran submitted to a June 2017 VA examination. The Veteran reported having no functional loss and denied flare ups. The VA examiner noted arthritis in the right knee, but did not find ankylosis, lateral instability or recurrent subluxation, tibia or fibula impairment, genu recurvatum, or dislocation or removal of semilunar cartilage. The VA examiner measured initial flexion at 120 degrees and initial extension at 0 degrees, with no change after observed repetitive use testing. 

According to May 2018 private treatment records, the Veteran reported pain, stiffness, numbness, and swelling after the May 7, 2015 meniscectomy.  The private examiner measured flexion at 130 degrees and extension at 0 degrees. 

The Veteran submitted to another VA examination in May 2019. The Veteran reported that she is unable to run, squat, or kneel. The Veteran also reported difficulty raising from a seated position, navigating stairs due to weakness in the right leg, and walking more than 1/10 of a mile, and endorsed flare ups. The VA examiner noted arthritis in the right knee and that the Veteran occasionally used a brace, but did not find ankylosis, lateral instability or recurrent subluxation (all stability testing produced normal results), tibia or fibula impairment, genu recurvatum, or dislocation or removal of semilunar cartilage. The VA examiner measured initial flexion at 130 degrees and initial extension at 0 degrees, with no change after repetitive use testing; the VA examiner did not test for repetitive use over time or estimate a range of motion during a flare up.

In the August 2019 Board remand, the Board found that the May 2019 VA examiner made inconsistent findings when the examiner found that the Veteran had significantly limiting functional loss during flare-ups, but failed to adequately estimate this loss in terms of range of motion. The August 2019 Board remand directives instructed the VA examiner to resolve the medical discrepancy in the May 2019 VA examination, in which the examiner: (a) measured initial range of motion for flexion at 0 to 130 degrees and initial range of motion for extension at 130 to 0 degrees (see examination report at box 3A); and (b) indicated that pain significantly limits functional ability during flare-ups and indicated that she was able to describe the additional functional loss in terms of range of motion (see examination report at box 3D); but then (c) measured flexion during flare-ups at 0 to 130 degrees and extension during flare-ups at 130 to 0 degrees (see examination report at box 3D), which are exactly the same measurements recorded for initial range of motion (not during flare-ups).

Pursuant to an August 2019 Board remand, an April 2020 VA examination addendum opinion was issued. In the April 2020 VA examination addendum opinion, the VA examiner explained that loss of range of motion during a flare up or after repetitive use testing could not be reliably determined or demonstrated. The VA examiner noted that the right knee appeared normal in a June 2018 x-ray and then arthritis and a meniscal tear in the right knee was documented on a May 2019 medical treatment record. The VA examiner concluded that medical records did not sufficiently identify previous range of motion measurements during flare ups or after repetitive motion and that general medical knowledge of the Veteran's joint condition is insufficient to reasonably estimate range of motion for each plane of motion as there is great variability between people who have the same conditions. 

Even considering additional functional limitations due to the reported pain and limitation of motion, the evidence does not support a higher or separate compensable rating. For these reasons, the Board finds that the criteria for entitlement to a higher initial rating in excess of 10 percent for the right knee disability from August 1, 2015 to June 8, 2021 have not been met. 

From June 8, 2021

After a review of the evidence, both lay and medical, the Board finds that from June 8, 2021 the service-connected right knee semilunar cartilage dislocation disability manifested in locking with effusion in the right knee to warrant a 20 percent disability rating under Diagnostic Code 5258. According to the June 8, 2021 VA examination, the VA examiner noted locking with effusion in the right knee. During a September 2021 VA examination, the VA examiner found that the Veteran experienced a meniscal tear with pain, swelling, and locking. Resolving reasonable doubt in favor of the Veteran, the Board finds that the criteria for a compensable rating of 20 percent under DC 5258 for the right knee semilunar cartilage dislocation disability from June 8, 2021 have been met. 

In light of the multiple stages of rating, as well as changes of diagnostic codes used to rate the right knee disability, the net result of this Board decision is as following ratings and diagnostic codes (DCs):

From February 26, 2008 to February 21, 2015 (DC 5003) at 10 percent.

From February 21, 2015 to May 7, 2015 (DC 5258) at 20 percent.

From August 1, 2015 to June 8, 2021 (DC 5003) at 10 percent.

From June 8, 2021 (DC 5258) at 20 percent.

No Separate Compensable Ratings from June 8, 2021

From June 8, 2021, the service-connected right knee disability did not manifest in compensable limitation of motion, ankylosis, nonunion or malunion of the tibia and fibula, or shin splints (MTSS), or genu recurvatum, to warrant an additional separate compensable rating. (A separate compensable rating for instability under Diagnostic Code 5257 from June 8, 2021 is assigned below)

At the VA examination on June 8, 2021, the Veteran reported pain, difficulty walking, standing, lifting, pushing, pulling, climbing, and bending, and instability with the need for a brace. The Veteran denied flare ups. The VA examiner noted arthritis in the right knee, but did not find ankylosis, tibia or fibula impairment, shin splints (MTSS), or genu recurvatum. The VA examiner measured initial flexion at 130 degrees and initial extension at 0 degrees, with no change after observed repetitive use testing or during flare ups. After repetitive use testing over time, the VA examiner measured flexion at 120 degrees and extension at 0 degrees, noting pain, weakness, fatiguability, and lack of endurance. 

In the August 2020 Board remand, the Board requested that the VA examiner answer questions related to the functional limitations caused by flareups and repetitive use. In summation, the directives requested that the VA examiner offer the following opinions: (1) if the Veteran endorses experiencing flare-ups of the right knee, the examiner must obtain information regarding the frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups, (2) review the VA examinations conducted in June 2017 and May 2019 and render an opinion about the range of motion findings for pain on both active and passive motion, on weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint, and (3) comment on the Veteran's range of motion  during flare-ups or on repetitive use, expressed, if possible, in terms of degrees, or explain why such details cannot be feasibly provided.

Pursuant to the August 2020 Board remand, a June 8, 2021 VA examination addendum opinion was issued. In the June 8, 2021 VA examination addendum opinion, the VA examiner noted that the Veteran did not endorse flare ups. The VA examiner reviewed the June 2019 and May 2019 VA examinations and opined that it was least as likely as not that this Veteran would have no change in the range of motion with active and passive motion, on weight-bearing and with non-weight-bearing. Based on the June 8, 2021 VA examination, the VA examiner opined that the Veteran would have right knee pain with active and passive range of motion, and on weight-bearing, with no pain with non-weight-bearing. The VA examiner also opined that based on the June 8, 2021 VA examination, the Veteran would have no left knee pain with active and passive range of motion, weight-bearing and non-weight-bearing. With repetitive use over time, the VA examiner opined the Veteran would have functional limitations of limited walking, standing, lifting, pushing, pulling, climbing, and bending, and estimated flexion at 120 degrees and extension at 10 degrees. The Board notes that while 10 degrees of extension meets the criteria for a 10 percent under DC 5261, in this case, compensating extension would constitute pyramiding because compensation under DC 5258 (locking, and limitations associated with pain) would overlap with (would doubly compensate) for painful limitation of motion (extension) under DC 5261. 

The Veteran submitted to another VA examination in September 2021. The Veteran reported that she is not able to climb stairs, ladders, ropes, ramps, or scaffolding, and difficulty balancing on slippery or uneven terrain. The Veteran also reported that she is not able to kneel, crouch when bending both legs and spine, stoop when bending spine at the waist, or crawl frequently. The VA examiner noted arthritis in the right knee, but did not find ankylosis, tibia or fibula impairment, or genu recurvatum. The VA examiner measured initial flexion at 120 degrees and initial extension at 0 degrees, with no change after observed repetitive use testing. After repetitive use testing over time, the VA examiner measured flexion at 120 degrees and extension at 0 degrees. The VA examiner estimated that during flare ups flexion would be measures at 115 degrees and extension would be measures at 0 degrees.

Based on the foregoing, the Board finds that from June 8, 2021 the service-connected right knee disability did not manifest in compensable limitation of motion, ankylosis, nonunion or malunion of the tibia and fibula, or shin splints (MTSS), or genu recurvatum, to warrant higher alternative ratings, or a separate compensable rating. 

2. Separately Rating the Right Knee Instability from June 8, 2021

After a review of the evidence, both lay and medical, the Board finds that from June 8, 2021 the service-connected right knee instability disability required the use of a medically prescribed knee brace for ambulation 3 to 4 days a week, which warrants a separate 20 percent disability rating under Diagnostic Code 5257. See VAOPGCPREC 23-97, VAOPGCPREC 9-98.

The Veteran submitted to a VA examination on June 8, 2021. The Veteran reported pain and that she was taking anti-inflammatory medication to treat the right knee. The Veteran denied flare ups. The VA examiner noted that the Veteran used a brace 3 to 4 days a week for ambulation (not patellar instability), which was prescribed by a medical professional.

The Veteran submitted to another VA examination in September 2021. The Veteran reported a throbbing pain and explained that the right knee buckled; however, the VA examiner noted that the Veteran did not use any assistive devices and all, stability testing produced normal results. 

Based on the foregoing, and resolving reasonable doubt in favor of the Veteran, the Board finds that the criteria for a separate compensable rating of 20 percent, and no higher, under DC 5257 for the right knee instability disability from June 8, 2021 have been met.

 

 

J. PARKER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	D. Costantino, 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.