Citation Nr: 21005718 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 15-09 281 DATE: February 2, 2021 ORDER Entitlement to a rating in excess of 10 percent disabling for left knee bipartite patella with knee and meniscal tears is denied. Entitlement to a rating in excess of 20 percent disabling for left knee instability is denied. REMANDED Entitlement to an earlier effective date and a rating in excess of 30 percent for irritable bowel syndrome (IBS) is remanded. FINDINGS OF FACT 1. The Veteran’s left bipartite patella with knee sprain and meniscal tear is not manifest by limitation of flexion to 30 degrees or less. 2. The Veteran’s left knee disorder is manifest by no more than moderate lateral instability. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 10 percent for left knee bipartite patella with knee and meniscal tears have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5260. 2. The criteria for entitlement to a rating in excess of 20 percent for left knee instability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from August 2001 to November 2011. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2012 and February 2015 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO). In September 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. The Board issued a remand in May 2019 instructing the RO to obtain outstanding medical records and obtain a VA examination to determine the level of severity of the Veteran’s left knee disability and IBS. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The RO obtained outstanding VA treatment records and October 2020 VA examinations. The Board finds the RO substantially complied with the May 2019 remand directives. 1. Entitlement to a rating in excess of 10 percent disabling for left knee bipartite patella with knee and meniscal tears. 2. Entitlement to a rating in excess of 20 percent disabling for left knee instability. The Board addresses the increased rating claims together as they stem from the same factual background and are addressed under the same legal basis. The Veteran is currently service connected for left knee bipartite patella with knee and meniscal tears under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5260 with a 10 percent rating effective August 26, 2014. She is also service connected for left knee instability under DC 5257 with a 20 percent rating effective August 26, 2014. In a September 2018 hearing transcript, the Veteran stated that her knee condition has worsened. The Veteran stated that her knee gives out at least once a week which causes her to brace her fall. Her falls has lead to other injuries such as a sprained wrist and bruised shoulders. (further down) the Veteran stated that she has missed up to six days a month for emergency room visits related to her knee giving out. The Veteran reported that she has been provided a cane, wheelchair, and walker as a result of her falls. She was embarrassed to have them because she is so young. The Veteran stated that if she sits too long or stands too long her knee will become stiff and give out after a few steps. The Veteran testified that she originally hurt her in knee while in service. She was running to from the bathroom to get into formation during training when she slipped and jammed her knee, hip, and back together. The Veteran testified that she injured her knee a second time when a higher ranked officer slammed her knee into the Veteran’s knee which tore the Veteran’s meniscus and ACL. Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). 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. Where there is a question as to which of two 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, 4.59 allows consideration of functional loss due to painful motion to be rated to at least the minimum compensable rating for a particular joint. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” in all claims for increased ratings. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519 (2007). DC 5257 provides a 10 percent disability rating for slight recurrent subluxation or lateral instability of the knee. A 20 percent disability rating is warranted where the recurrent subluxation or lateral instability of the knee is moderate. The maximum 30 percent disability rating is warranted where there is severe recurrent subluxation or lateral instability of the knee. DC 5260 provides a noncompensable rating is warranted for flexion limited to 60 degrees. A 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. A 30 percent rating is warranted for flexion limited to 15 degrees. Post-service treatment records indicate that the Veteran continued to experience pain in her left knee, but the severity of the range of motion of her knee stayed the same. See e.g., October 2015 Physician Note (knee sprain, exam impression: normal left knee); November 2015 Therapy Consult (x-ray show normal left knee, abnormal range of motion); August 2016 Primary Care Note (osteoarthritis of the knee); November 2018 Primary Care Note (full range of motion). The evidence includes the report of a VA examination was in August 2014. On this examination, limitation of flexion of the left knee was 115 degrees and limitation of extension was zero. After repetitive use testing, limitation of flexion was the same. The Veteran had additional functional loss due to less movement than normal, weakened movement, excess fatigability, pain on movement, disturbance of locomotion, and interference with sitting. It was also noted that the Veteran had a history of meniscus condition and surgery in 2003, 2004, 2006, 2010, and 2014. She constantly had to use a brace and cane for mobility. The Board remanded for an updated VA examination which was obtained in October 2020. At that examination she reported that she used to fall a lot and was weak on her left knee. She sprained her knee multiple times when it gave out. She has a total of 5 left knee surgeries and knee scopes in 2004, 2005, 2006, 2009 and 2013. She also stated that she continued to have left knee pain and her left knee was weak and unstable. The Veteran reported that she had flare-ups daily when driving, sitting too long, standing too long, and moving or twisting her hips. Limitation of flexion was 5 to 70 degrees and extension from 70 to 5 degrees. The Veteran had localized tenderness with aching and sharp pain. There was pain on weight-bearing, but no evidence of crepitus, ankylosis or atrophy. It was noted that the Veteran did not have a history of recurrent subluxation, but she did have slight instability in the left knee. It was noted the Veteran did not have additional functional loss due to pain, weakness, fatigability, or incoordination. However, instability of station, disturbance of locomotion, interference with sitting and standing contributed to the Veteran’s disability. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for left knee limitation of flexion of bipartite patella under DC 5260. The record indicates the Veteran’s flexion is not limited to 30 degrees or less which is required for a 20 percent rating. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to walking, sitting, standing and twisting. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that she experienced constant pain would not result in limitation of motion more nearly approximating flexion limited to 30 degrees. Based upon the evidence of record as detailed above, the Board finds that a rating in excess of 20 percent is not warranted for left knee instability under DC 5257. In this regard, the Veteran has repeatedly reported left knee instability with use of a brace and a cane for ambulation. There were specific findings of slight to moderate instability in the left knee in October 2020 VA examination. These findings are consistent with the 20 percent ratings currently assigned under Diagnostic Code 5257 for moderate lateral instability and do not more nearly approximate severe instability. The Board has also considered the other DC pertaining to the knee and leg. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). Evidence of record indicates that the Veteran is entitled to a noncompensable rating for limitation of extension. See October 2020 VA examination. REASONS AND BASES FOR REMAND Entitlement to an earlier effective date and a rating in excess of 30 percent for IBS. In May 2019, the Board remanded the claim of entitlement to a compensable rating for IBS. While on remand, the Veteran completed an October 2020 VA examination and was assigned a maximum 30 percent rating effective October 21, 2020, in an October 2020 rating decision. In November 2020, the Veteran communicated with the VA and reported that she disagreed the effective date of the rating assigned for her IBS. Initially, she did not challenge the rating assigned. See also November 2020 Lay Statement (effective date is incorrect); November 2020 Statement in Support of Claim (effective date should be January 27, 2012); November 2020 Decision Review Request. In December 2020, the RO issued a rating decision denying an earlier effective date for the assignment of the 30 percent rating and denying an increased rating for IBS in excess of 30 percent. No further disagreement has been stated in the record since this rating decision. If the Agency of Original Jurisdiction (AOJ) receives evidence after an appeal is initiated but before the appeal is transferred to the Board, the evidence must be referred to the appropriate rating or authorization activity for review and disposition (i.e. Remand for SSOC). 38 C.F.R. § 19.37(a). The record does not show that the AOJ has readjudicated the claim taking into consideration the October 2020 VA examination in a Supplemental Statement of the Case on the matter. In addition, the Veteran has not challenged the rating assigned for her IBS, only the effective date. This matter is REMANDED for the following action: Readjudicate the IBS claim on appeal and issue a Supplemental Statement of the Case. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Harris, Attorney Advisor 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.