Citation Nr: 21075080 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 15-14 780A DATE: December 17, 2021 ORDER 1. A 20 percent rating, but no higher, exclusive of the temporary total rating period from November 19, 2013 to December 31, 2013, for right knee strain post medial meniscectomy is granted. 2. A separate 10 percent rating, but no higher, for right knee limitation of flexion is granted. FINDINGS OF FACT 1. The Veteran's right knee strain post medial meniscectomy is manifested by frequent episodes of locking, pain, and effusion into the joint 2. The Veteran's right knee disability is manifested by limitation of flexion due to painful motion, reduced range of motion, weakness, fatigability, swelling, recurrent effusion, disturbance of walking, and interference with sitting and standing. CONCLUSIONS OF LAW 1. The criteria for a 20 percent rating, but no higher, for right knee strain post medial meniscectomy are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5258. 2. The criteria for a separate 10 percent rating, but no higher, for right knee limitation of flexion are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1992 to January 1999. This case is on appeal from a May 2013 rating decision. The Board notes that the Veteran requested a Board hearing in a May 2015 VA Form 9. He was scheduled for the hearing in November 2017, but he did not attend. Thus, such request is considered withdrawn. See 38 C.F.R. § 20.704(d). In February 2019, the Board remanded the claim on appeal as well as service connection for a right hip disability for additional development. In a January 2020 rating decision, the RO granted a temporary total rating for the Veteran's right knee disability from November 19, 2013 to December 31, 2013. Thereafter, in a February 2020 rating decision, the RO granted a 20 percent rating for the right knee disability as of December 21, 2019 and service connection for a right hip disability as of October 9, 2012. The staged ratings granted for the right knee disability do not represent the maximum disability rating assignable for this disability, and the Veteran has not indicated that the current staged ratings are the maximum benefit sought. As higher ratings are available and a claimant is presumed to be seeking the maximum available rating for disabilities, the claim remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In addition, as the right hip claim has been granted in full, it is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). A rating in excess of 10 percent prior to December 21, 2019, and in excess of 20 percent thereafter, exclusive of the temporary total rating period from November 19, 2013 to December 31, 2014, for right knee strain post medial meniscectomy. Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Disabilities of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59. 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). The Veteran's right knee disorder has been rated based on removal of semilunar cartilage. This condition is considered under DCs 5258 and 5259. Additionally, DCs 5258 and 5259 are potentially applicable to rating knee disabilities. DC 5258 provides for a 20 percent evaluation for semilunar, dislocated cartilage with frequent episodes of "locking," pain, and effusion into the joint. 38 C.F.R. § 4.71a, DC 5258. DC 5259 provides for a 10 percent rating for symptomatic removal of semilunar cartilage. 38 C.F.R. § 4.71a, DC 5259. In addition, limitation of motion of the knee is contemplated in 38 C.F.R. § 4.71a, DCs 5260 and 5261. DC 5260 provides for a noncompensable rating for limitation of flexion limited to 60 degrees; a 10 percent rating is warranted for limitation of flexion limited to 45 degrees; a 20 percent rating is warranted for limitation of flexion limited to 30 degrees; and a 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. Ratings for limitation of extension of the knee are under 38 C.F.R. § 4.71a, DC 5261. DC 5261 provides for a noncompensable rating for limitation of extension limited to 5 degrees; a 10 percent rating is warranted for limitation of extension limited to 10 degrees; a 20 percent rating is warranted for limitation of 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; and a 50 percent rating is warranted for extension limited to 45 degrees. 38 C.F.R. § 4.71a, DC 5261. Furthermore, under DC 5257, a 10 percent rating is warranted for either slight recurrent subluxation or slight lateral instability; a 20 percent rating is warranted for moderate recurrent subluxation or moderate lateral instability; and a 30 percent rating is warranted for severe recurrent subluxation or severe lateral instability. 38 C.F.R. § 4.71a, DC 5257. Merriam-Webster dictionary defines "moderate" as tending toward the mean or average amount or dimension and "severe" is "of a great degree." See https://www.merriam-webster.com/dictionary/moderate; www.merriam-webster.com/dictionary/severe. Effective February 7, 2021, the criteria to knee instability were amended. See 82 Fed. Reg. 76453 (Nov. 30, 2020); 38 C.F.R. § 4.71a, DC 5257. Under the new criteria for DC 5257, a 10 percent rating is assigned for 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, crutch, walker) or bracing for ambulation; a 20 percent rating is assigned for sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace or assistive device (e.g., cane, crutch), walker) for ambulation, or unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane, crutch, walker) or bracing for ambulation; and a 30 percent rating is assigned for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane, crutch, walker) and bracing for ambulation. Furthermore, under the new criteria separate ratings may also be assigned for patellar instability. For patellar instability a 10 percent rating assigned for 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; a 20 percent rating is assigned for 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; and a 30 percent rating is assigned for 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. Id. NOTE 1 following the criteria provides, for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. NOTE 2 following the criteria provides 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). The Board also notes that, as the February 7, 2021 rating criteria change did not specify that it was to have a retroactive effect, the prior criteria and the new criteria will both be considered for the later rating period and the rating assigned based on the criteria most favorable to the Veteran. However, an award warranted under the revised criteria cannot be effective prior to February 7, 2021. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Furthermore, an effective date for an increased rating should not be assigned mechanically based on the date of a diagnosis. Rather, all of the facts should be examined to determine the date that the disability first manifested. Accordingly, the effective date for an increased rating-as well as for an initial rating or for staged ratings-is predicated on when the increase in the level of disability can be ascertained. Swain v. McDonald, 27 Vet. App. 219, 224 (2015); DeLisio v. Shinseki, 25 Vet. App. 45, 56 (2011). In determining when an increase is "factually ascertainable," all of the evidence must be looked to, including testimonial evidence and expert medical opinions, and an effective date must be assigned based on that evidence. See McGrath v. Gober, 14 Vet. App. 28, 35-36 (2000); VAOPGCPREC 12-98. Thus, "it is the information in a medical opinion, and not the date the medical opinion [that] was provided that is relevant when assigning an effective date." Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010); see also Young v. McDonald, 766 F.3d 1348 (Fed. Cir. 2014). 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 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 U.S.C. § 5107(b); 38 C.F.R. § § 3.102, 4.3. Analysis The Veteran contends that a higher increase rating is warranted for his service-connected right knee disorder. In an April 2013 correspondence, the Veteran reported he incurred 4 knee surgeries and that his knee disorders have progressively worsened, causing limping after walking or standing for long periods of time. He also reported experiencing intense pain intense that prevents him from sleeping. Also, the Veteran reported that, while the prescribed pain medication helps, it does not give him real relief. Moreover, the Veteran reported that his family and social life have been impacted to the extent he is prevented from participating in family and outdoor activities. The Veteran's spouse reported that the Veteran elevates his knee when he comes back from his employment and limps after a few hours of work. The Veteran's post-service VA treatment records show that in March 2011 a VA provider found "probable small effusion" in the right knee. In April 2011, the Veteran reported that the pain in the right knee was worsening. An October 2012 record show that a VA radiologist found "blunting of the posterior horn of the medial meniscus," attributed to recent surgery knee procedure, and "partial thickness articular cartilage defects of the lateral patellar facet and patellar apex." A January 2013 record shows that the treating physician noted a "diffuse chondromalacia and blunting of the post horn of the meniscus" in the right knee. Furthermore, the physician noted that the Veteran had a "new pathology as well as gross changes in the knee." He also noted that the Veteran reported "a mass that is medially based." A July 2016 record show that the Veteran reported severe knee pain. In January 2020, the Veteran reported right knee pain and instability, causing back pain. In May 2013, the Veteran was afforded a VA examination for this claim. The Veteran reported that he is an assistant manager at convenience store. He reported that after standing for an hour, he has to sit down due to pain in his knee. Furthermore, he reported that he can walk a half mile before needing to stop and rest. Also, the Veteran reported that heavy lifting requires him to stop physical activity sooner to rest. The Veteran reported that he limps due to right knee pain. Moreover, he reported that he cannot be employed in a job that requires prolonged standing or long distance walking without the ability to take a break to rest his knees. The Veteran did not report flare-ups. The physician reviewed the claims file. The physician reported right knee range of motion from zero degrees to 90 degrees with painful motion at zero degrees. The physician also reported that the Veteran experienced frequent episodes of joint paint. The physician denied additional limitation of range of motion after repetitive-use testing, loss of muscle strength, ankylosis, patellar subluxation or dislocation, instability on anterior, posterior, and medial-lateral testing, and use of assistive devices. Pursuant to the February 2019 Board remand, the Veteran was afforded another examination in December 2019. The Veteran reported experiencing symptoms to include pain, grinding, and swelling. The Veteran reported experiencing flare-ups starting about 2 hours into work time, lasting about an hour or more during or after work. He reported that the flare-ups are precipitated by standing too long or walking around and alleviated by medication or sitting down. The physician reviewed the claims file. The physician reported normal range of motion with pain on flexion and extension on range of motion testing and on 3 repetitions of testing. Also, the reported pain in active and passive range of motion testing and on weight and non-weight bearing testing. He explained that while the examination was not conducted during flare up, it was medically consistent with the Veteran's statements describing functional loss during flare-ups. Based on the full record, including the Veteran's statements prior to and during the examination, the physician estimated that the Veteran retains right knee range of motion from zero degrees to 140 degrees during flareups. The physician also found that the Veteran does not experience significantly limited functional ability with repeated use overtime. Also, the physician reported additional factors contributing to the Veteran's disability to include disturbance in locomotion and interference with walking and standing for long periods of time. Moreover, the physician reported a frequent episodes of joint pain and joint effusion, and regular use of a brace as an assistive device for knee support. The physician denied the presence of loss of muscle strength, ankylosis, history of subluxation or lateral instability, and instability on anterior, posterior, and medial-lateral testing. The physician noted chondrocalcinosis and scar as progressive disorders. Also, he reported that the pain affects the Veteran's ability to bend, squat, twist, stand for a long period of time, and walk for a long period of time. During VA treatment in January 2020, the Veteran claimed he has right knee instability. The Board finds that a 20 percent for right knee strain status post medial meniscectomy is warranted. The Veteran's right knee disorder has manifested semilunar, dislocated cartilage with frequent episodes of locking, pain, and effusion into the joint throughout the period on appeal. See 38 C.F.R. § 4.71a, DCs 5258. In this regard, the March 2011 VA record shows evidence of joint effusion in the Veteran's right knee. In April 2011, the Veteran reported worsening right knee symptoms. An October 2012 VA record shows evidence of cartilage defects in the Veteran's knee cap. Also, a January 2013 VA record shows that a VA physician noted damage of the Veteran's kneecap and gross changes in the knee." The May 2013 examiner reported frequent episodes of joint pain. The December 2019 examination showed Veteran meniscal conditions to include tear, frequent episodes of joint pain and joint effusion, and regular use of a brace. However, a rating in excess of 20 percent is not warranted as it is the highest rating available for removal of knee cartilage. Id. In addition, an earlier 20 percent rating is not warranted because the evidence shows that condition had worsened prior to March 2011, which is more than one year prior to the date of claim of October 9, 2012. See Swain, 27 Vet. App. at 224; McGrath, 14 Vet. App. at 35-36; VAOPGCPREC 12-98. The Board also finds that a separate 10 percent rating under DC 5260 is warranted. In this regard, the evidence shows that the Veteran has experienced limitation of flexion with functional impairment of painful motion, limitation in bending, squatting, twisting, stand for a long period of time, and walk for a long period of time throughout the period on appeal. However, a rating in excess of 10 percent for limitation of flexion or a compensable rating for limitation of extension is not warranted. In this regard, the evidence does not show that the Veteran has experienced flexion limited to 30 degrees or less or extension limited to 10 degrees or more, even after repetitive use overtime and during flareups. See 38 C.F.R. § 4.71a, DCs 5260, 5261. In addition, the Veteran has reported experience sleep impairment due to knee pain. The rating schedule does not specifically address this symptom in connection with the DC under which such disability has been rated. However, the natural consequences of pain are likely to result in difficulty sleeping. Thus, such functional effects are contemplated by the assigned knee ratings. Therefore, the Board finds that the assigned 20 percent rating for medial meniscectomy and 10 percent rating for limitation of flexion account for the Veteran's right knee symptoms of painful motion, reduced range of motion, weakness, fatigability, swelling, recurrent effusion, disturbance of walking, and interference with sitting and standing, even during flare-ups. See 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DC 5003; DeLuca, 8 Vet. App. at 202. The Board also considered whether the Veteran is entitled to separate ratings under DC 5257 for instability. The Veteran has reported use of a knee brace during the appeal period. He also reported experiencing right knee instability for the first time in January 2020. However, the medical evidence, to include VA treatment records and examinations, does not indicate the presence of knee instability. See 38 C.F.R. § 4.71a, DCs 5257. While the Veteran has used a knee brace during the appeal period, there is no indication that it was used due to instability. In addition, the examiners both denied a history of instability and any instability on anterior, posterior, and medial-lateral on testing, including during testing performed in December 2019. The Board finds that the Veteran's report of knee instability is outweighed by the examiners findings that no instability is present on testing. In this regard, the Veteran is competent to report symptoms, but does not have the medical expertise necessary to determine whether he experiences knee instability as opposed to other symptoms contemplated by the assigned ratings such as locking, weakness, and fatigability. See 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DCs 5259, 5260; DeLuca, 8 Vet. App. at 202. Therefore, greater evidentiary weight is placed on the examiners' findings in regard to the absence of right knee instability. In sum, the Board finds the preponderance of the evidence shows that the Veteran's right knee disability manifests by frequent episodes of locking, pain, effusion into the joint and limitation of flexion due to painful motion, reduced range of motion, weakness, fatigability, swelling, recurrent effusion, disturbance of walking, and interference with sitting and standing. Therefore, a 20 percent rating for right knee strain status post medial meniscectomy, exclusive of the temporary total rating period, and a separate 10 percent rating for right knee limitation of flexion are warranted. However, as there is no reasonable doubt to be resolved, the benefit-of-the-doubt rule is not applicable and additional higher or separate ratings for the Veteran's right knee disability are not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. DAVID JIMERFIELD Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Nevarez-Myrick, Nancy 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.