Citation Nr: 21075619 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 16-53 509A DATE: December 21, 2021 ORDER From January 30, 2012 to March 13, 2017, entitlement to a 10 percent rating for a left knee disorder based upon instability under Diagnostic Code 5257 is granted. REMANDED From January 30, 2012 to November 3, 2019, entitlement to a rating greater than 10 percent for a low back disorder is remanded. From November 4, 2019, entitlement to a rating greater than 20 percent for a low back disorder is remanded. Prior to March 14, 2017, entitlement to a rating greater than 10 percent for a left knee disorder based upon limitation of flexion under Diagnostic Code 5260 is remanded. From January 30, 2012 to March 13, 2017, entitlement to a rating greater than 10 percent rating for a left knee disorder based upon instability under Diagnostic Code 5257 is remanded. From May 1, 2018 to November 3, 2019, entitlement to a rating greater than 30 percent for a left knee disorder after a total knee replacement (TKR) under Diagnostic Code 5055 is remanded. From November 4, 2019, entitlement to a rating greater than 60 percent for a left knee disorder after a TKR under Diagnostic Code 5055 is remanded. From January 30, 2012, entitlement to a rating greater than 10 percent for a right knee disorder based upon limitation of flexion under Diagnostic Code 5260 is remanded. From November 4, 2019 to August 6, 2020, entitlement to a rating greater than 10 percent for a right knee disorder based upon instability under Diagnostic Code 5257 is remanded. From August 7, 2020, entitlement to a rating greater than 20 percent for a right knee disorder based upon instability under Diagnostic Code 5257 is remanded. Entitlement to a total disability based upon individual unemployability (TDIU) prior to November 4, 2019 is remanded. FINDING OF FACT From January 30, 2012 to March 13, 2017, the Veteran experienced slight instability in his left knee. CONCLUSION OF LAW From January 30, 2012 to March 13, 2017, the criteria for a separate 10 percent rating for instability of the left knee under Diagnostic Code 5257 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from September 1976 to September 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision of an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). The Board previously considered the appeal in December 2018 and August 2021. In September 2017, the Veteran withdrew his request for a Board hearing in this appeal. For clarity, the Board highlights that the Veteran, from March 14, 2017 to April 30, 2018, received a 100 percent rating for convalescence resulting from a TKR of his left knee. As such, the Board will not address this period. Issue: From January 30, 2012 to March 13, 2017, entitlement to a separate rating for a left knee disorder based upon instability under Diagnostic Code 5257 Increased Ratings Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted considering the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, where the question for consideration is the propriety of the initial disability rating assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). 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. The law allows for an effective date up to one year prior to the date of receipt of a claim, sometimes informally called "the one-year lookback period." 38 C.F.R. § 3.400(o)(2). Specifically, if an increase in disability level was "factually ascertainable" within one year prior to receipt of the increased rating claim, then the effective date will be the date on which that increase is shown to have occurred. Musculoskeletal Disabilities 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 these elements. 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 innervations, or other pathology, or it 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 that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45, see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The factors involved in evaluating, and rating, disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement. 38 C.F.R. § 4.45. As such, the Veteran's reports of pain have been considered in conjunction with the Board's review of the limitation of motion diagnostic codes. Merits Instability, as referred to in Diagnostic Code 5257, includes patellar instability due to recurrent patellar subluxation or patellar dislocation, and/or any other instability or laxity of the knee that involves other stabilizing structure of the knee such as the collateral or cruciate ligaments. Subluxation refers to partial or incomplete dislocation of the knee joint (tibiofemoral dislocation/subluxation) or tendency for the patella to dislocate from its track (patellar dislocation/subluxation). Prior to February 7, 2021, a 10 percent disability rating under Diagnostic Code 5257 was assigned for slight recurrent subluxation or lateral instability. A 20 percent disability rating was warranted when there is moderate recurrent subluxation or lateral instability, and a 30 percent disability rating required severe recurrent subluxation or lateral instability. Effective February 7, 2021, VA revised the portion of the Schedule for Rating Disabilities that addresses the musculoskeletal system. As relevant here, VA amended Diagnostic Code 5257. That said, the Board notes that the Veteran had a left knee TKR on March 14, 2017 and that VA, from that date, has rated his disability under Diagnostic Code 5055. As the Board will consider whether the Veteran is entitled to a separate rating under Diagnostic Code 5257 in this portion of its decision, the Board highlights Tedesco v. Wilkie, 31 Vet. App. 360 (2019) for two reasons. First, in footnote 5 of Tedesco, the U.S. Court of Appeals for Veterans Claims (Court) stated: At oral argument, the Secretary's counsel argued that the Board committed legal error when it found that a separate rating for instability under DC 5257 could be awarded. He argued that a separate instability rating is not allowable when a knee disability is rated under DC 5055 because to allow such a rating would constitute improper pyramiding. See O.A. at 52:04-56:06. The Court declines to address this argument because the Secretary did not raise it in his brief. See Norvell v. Peake, 22 Vet. App. 194, 201 (2008) (This Court has "repeatedly discouraged parties from raising arguments that were not presented in an initial brief to the Court."), aff'd sub nom. Norvell v. Shinseki, 333 F. App'x 571 (Fed. Cir. 2009); see also McFarlin v. Conseco Servs., LLC, 381 F.3d 1251, 1263 (11th Cir. 2004) ("A party is not allowed to raise at oral argument a new issue for review."); Tarpley v. Greene, 684 F.2d 1, n.17 (D.C. Cir. 1982) ("Clearly, oral argument on appeal is not the proper time to advance new arguments or legal theories."). The Court advances no view on the Board's position on a separate rating for instability in conjunction with his left knee rating under DC 5055. Second, the Court also reiterated the holding of English v. Wilkie, 30 Vet. App. 352 (2019) that the Board cannot categorically favor medical evidence such as normal examination findings as to knee stability over lay statements describing giving way of the knee in determining whether a separate rating is warranted under Diagnostic Code 5257. Given VA's position that "a separate instability rating is not allowable when a knee disability is rated under DC 5055 because to allow such a rating would constitute improper pyramiding," the Board will restrict its analysis to the period prior to the left knee TKR on March 14, 2017. As the Board will be analyzing a period prior to the revision of Diagnostic Code 5257, it must clarify the standard imposed. The VA Schedule for Rating Disabilities did not define the words "slight," "moderate," and "severe." Rather than applying a mechanical formula, the Board must evaluate all the evidence so that its decisions are "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of such terminology 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. Because Diagnostic Code 5257 did not define the terms used, one possible source for such definitions would be the dictionary. Webster's II New College Dictionary defines "slight," as relevant here, "small in size, degree, or amount." Id. at 1038. The definitions for "moderate" include "of average or medium quantity, quality, or extent." Id. at 704. Finally, definitions for "severe" include "extremely intense." Id. at 1012. The Veteran claimed an increased rating for his left knee disorder on January 30, 2012. For the period from January 30, 2012 to March 13, 2017, VA examined the Veteran twice November 2012 and May 2016. Neither VA examiner diagnosed the Veteran with instability through objective testing. However, at the 2012 examination, the Veteran reported "giving out with swelling, stiffness, and popping." He similarly reported that his left knee "gave out sometimes" at the 2016 examination. Mindful of English v. Wilkie and the Veteran's competent, credible reports of the manifestations of his knee disability, the Board finds the Veteran experienced instability from January 30, 2012, to March 13, 2017. For purposes of measuring the severity of the instability for the period from January 30, 2012 to March 13, 2017, the Board finds that the current evidence of record demonstrates that it manifested at the "slight" level. That is, when balancing the Veteran's reports of instability against the lack of objective findings at the 2012 and 2016 VA examinations, the Board finds that the instability manifested as "small in size, degree, or amount." Absent these objective findings which are specifically tailored to identify instability the Board finds the instability did not approach the "moderate" level, i.e., "of average or medium quantity, quality, or extent." The Veteran has not contended otherwise, and the evidence does not support such a finding. Therefore, a separate 10 percent rating for "slight" instability is granted from January 30, 2012, to March 13, 2017. REASONS FOR REMAND Remand is warranted for the remaining issues. Low back disorder VA examined the Veteran for this issue in November 2012, May 2016, and November 2019. The Veteran reported flareups at the 2012 examination, describing the impact as "chronic back pain, numbness right foot, cannot stand or drive for prolonged period of time." However, the examiner did not attempt to estimate whether the flareups reduced the Veteran's range of motion. The Veteran did not report flareups at the 2016 examination. However, he reported daily spasms. The Board finds that spasms are encompassed within the definition of a flareup. Notwithstanding this, the examiner did not attempt to estimate whether the spasms reduced the Veteran's range of motion. The Veteran reported flareups at the 2019 examination. The examiner estimated that the Veteran range of motion was limited to 50 degrees of flexion during his flareups. Based upon this estimate, the AOJ increased the Veteran's disability rating from 10 percent to 20 percent. The Board finds that the 2012 and 2016 examinations do not comply with Sharp v. Shulkin, 29 Vet. App. 26 (2017) while the 2019 examination does comply. In Sharp, the United States Court of Appeals for Veterans Claims held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flareups or repeated use before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Remand is warranted to determine to what extent these flareups limited the Veteran's range of motion for his low back disorder and to ensure Sharp compliance throughout the nearly 10-year period on appeal. Left knee disorder As noted above, the Veteran claimed an increased rating for his left knee disorder on January 30, 2012. VA has examined him four times during the period on appeal - November 2012, May 2016, November 2019, and August 2020. At the 2012 VAX, the Veteran reported flareups as "giving out with swelling, stiffness, and popping." The examiner, however, did not estimate whether the flareups reduced the Veteran's range of motion. Therefore, this examination did not comply with Sharp. At the 2016 examination, the Veteran did not report flareups in his left knee. At the 2019 examination, the Veteran reported flareups. The examiner reported that pain and weakness during flareups caused functional loss. The examiner estimated the range of motion during flareups to be 70 degrees. This examination complied with Sharp. At the 2020 examination, the Veteran reported flareups. The examiner reported that pain, fatigue, weakness, and lack of endurance during flareups caused functional loss. When asked "are you able to describe in terms of Range of Motion?", the examiner responded no, but did not explain why. Therefore, this examination did not comply with Sharp. Remand is warranted to determine to what extent these flareups limited the Veteran's range of motion for his left knee disorder and to ensure Sharp compliance throughout the nearly 10-year period on appeal. However, Sharp also impacts the left knee instability rating. Southall-Norman v. McDonald, 28 Vet. App. 346, 354 (2016), held that the plain language of 38 C.F.R. § 4.59 indicates that 38 C.F.R. § 4.59 applies to the evaluation of musculoskeletal disabilities involving actually painful, unstable, or malaligned joints or periarticular regions, regardless of whether the Diagnostic Code under which the disability is being evaluated is predicated on range of motion measurements. As such, additional medical inquiry is required to determine if the Veteran's flareups impact his left knee instability from January 30, 2012, to March 13, 2017. Right knee disorder limitation of motion VA has examined him four times for his right knee disorder during the period on appeal - November 2012, May 2016, November 2019, and August 2020. At the 2012 examination, the examiner documented reports of flareups in the left knee as noted above. However, the examiner did not discuss whether there were flareups in the right knee. At the 2016 examination, the examiner did not check the box on the report to indicate whether the Veteran experienced flareups in his right knee. Instead, the report says "no response provided." At the 2019 examination, the Veteran reported flareups. The examiner reported that pain and weakness during flareups caused functional loss. The examiner estimated the range of motion during flareups to be 70 degrees. This examination complied with Sharp. At the 2020 examination, the Veteran reported flareups. The examiner reported that pain, fatigue, weakness, and lack of endurance during flareups caused functional loss. When asked "are you able to describe in terms of Range of Motion?", the examiner responded no, but did not explain why. Therefore, this examination did not comply with Sharp. Remand is warranted to determine to what extent these flareups limited the Veteran's range of motion for his right knee disorder and to ensure Sharp compliance throughout the nearly 10-year period on appeal. As noted above, Sharp also impacts the right knee instability rating. As such, additional medical inquiry is required to determine if the Veteran's flareups impact his right knee instability at any period on appeal. TDIU The Veteran, as indicated on his May 2020 TDIU application, retired on November 30, 2018 from his job as a campus security officer at a state university. The Veteran was awarded a TDIU effective November 4, 2019. Therefore, the TDIU issue concerns the period from December 1, 2018 to November 3, 2019. This issue is inextricably intertwined with the other appellate issues, so the Board will defer adjudicating it pending their resolution. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and severity of his low back disorder. To comply with Sharp v. Shulkin, 29 Vet. App. 26, (2017), the examiner is asked to describe whether pain, weakness, fatigue, or incoordination significantly limits functional ability during flares or repetitive use, and if so, the examiner must estimate range of motion during flares or repetitive use. If the examination does not take place during a flare or repetitive testing cannot be performed, the examiner should have the Veteran describe or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees. If there is no pain or no limitation of function, note these in the report. The examiner should address if there is any medical reason to accept or reject the Veteran's description of reduced range of motion during flares or repetitive use. In addition to the customary examination and Sharp instructions, the examiner must also address the following: a) For the Sharp element of the examination, the examiner must attempt to estimate the loss in range of motion for the lumbar disorder from January 2012 to present. The Board recognizes that this is retrospective in nature, but that is what is required to adequately rate the Veteran's disability. In doing so, the examiner's opinion should be based on an estimate derived from information procured from relevant sources, including the Veteran's lay statements after he is asked to describe functional limitation, including statements made during the November 2012, May 2016, and November 2019 examinations of record. 2. Schedule the Veteran for a VA examination to determine the nature and severity of his right and left knee disorders. To comply with Sharp v. Shulkin, 29 Vet. App. 26, (2017), the examiner is asked to describe, for BOTH KNEES, whether pain, weakness, fatigue, or incoordination significantly limits functional ability during flares or repetitive use, and if so, the examiner must estimate range of motion during flares or repetitive use. If the examination does not take place during a flare or repetitive testing cannot be performed, the examiner should have the Veteran describe or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees. If there is no pain or no limitation of function, note these in the report. The examiner should address if there is any medical reason to accept or reject the Veteran's description of reduced range of motion during flares or repetitive use. In addition to the customary examination and Sharp instructions, the examiner must also address the following: a) For the Sharp element of the examination, the examiner must attempt to estimate the loss in range of motion for BOTH knee disorders from January 2012 to present. The Board recognizes that this is retrospective in nature, but that is what is required to adequately rate the Veteran's disabilities. In doing so, the examiner's opinion should be based on an estimate derived from information procured from relevant sources, including the Veteran's lay statements after he is asked to describe functional limitation, including statements made during the November 2012, May 2016, November 2019, and August 2020 examinations of record. b) For the Sharp element of the examination, the examiner must also attempt to estimate a) whether the Veteran's flareups increased the degree of instability the Veteran experienced in his RIGHT knee from November 4, 2019 to present, and b) whether the Veteran's flareups increased the degree of instability the Veteran experienced in his LEFT knee from January 30, 2012 to March 13, 2017. In this regard, please answer the following: i) From November 4, 2019 to present, did the Veteran's flareups increase the degree of instability the Veteran experienced in his RIGHT knee? If yes, why? If no, why not? ii) If the answer is yes, to what degree did the instability increase? VA has found that the Veteran's RIGHT knee instability, without considering flareups, was "slight" from November 4, 2019 to August 6, 2020 and "moderate" from August 7, 2020. When considering flareups, was the Veteran's RIGHT knee instability "moderate" or "severe" from November 4, 2019 to August 6, 2020? When considering flareups, was the Veteran's RIGHT knee instability "severe" from August 7, 2020 to present? Explain your answer. The Board recognizes that this is retrospective in nature, but that is what is required to adequately rate the Veteran's disability. iii) From January 30, 2012 to March 13, 2017, did the Veteran's flareups increase the degree of instability the Veteran experienced in his LEFT knee? If yes, why? If no, why not? iv) If the answer is yes, to what degree did the instability increase? VA has found that the Veteran's LEFT knee instability, without considering flareups, was "slight" from January 30, 2012 to March 13, 2017. When considering flareups, was the Veteran's LEFT knee instability "moderate" or "severe" from January 30, 2012 to March 13, 2017? Explain your answer. The Board recognizes that this is retrospective in nature, but that is what is required to adequately rate the Veteran's disability. The February 2021 amendments divided Diagnostic Code 5257 into two subsections recurrent subluxation or instability and patellar instability, each with its own criteria. For recurrent subluxation or instability, three ratings are available. A 10 percent rating is warranted for a sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 20 percent is warranted under one of two scenarios 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 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 30 percent rating is warranted for 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. For patellar instability, three ratings are available. A 10 percent rating is warranted 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 warranted 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. A 30 percent rating is warranted 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. Two Notes accompany the revised Diagnostic Code 5257. First, Note 1 states that for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Second, Note 2 states 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). With that as background, please answer the following: a) Is the Veteran's instability of the RIGHT knee most appropriately characterized as i) recurrent subluxation or instability, or ii) patellar instability? For whichever option is selected, explain why you selected it over the other option. (i.) If recurrent subluxation or instability is selected, which of the three levels of severity (10, 20, or 30 percent) most closely approximates the degree of instability of the RIGHT knee? Why? (Continued on the next page) (ii.) If patellar instability is selected, which of the three levels of severity (10, 20, or 30 percent) most closely approximates the degree of instability of the RIGHT knee? Why? Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Sopko, 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.