Citation Nr: 21005879
Decision Date: 02/02/21	Archive Date: 02/02/21

DOCKET NO. 09-24 670
DATE: February 2, 2021

ORDER

A rating in excess of 20 percent prior to February 28, 2008 for right knee internal derangement with chondromalacia patella, status post meniscectomy, is denied.

Subject to the laws and regulations governing the award of VA monetary benefits, a 20 percent rating, but no more, prior to February 28, 2008, for a right knee degenerative arthritis with locking, pain, and effusion due to a torn ACL is granted.

A rating in excess of 60 percent from December 1, 2009, for right total knee arthroplasty with arthrofibrosis is denied.

A rating in excess of 20 percent for left knee internal derangement with instability is denied.

A rating in excess of 10 percent for left knee degenerative arthritis is denied prior to January 12, 2018.

Subject to the laws and regulations governing the award of VA monetary benefits, a rating of 50 percent, but no more, for left knee limitation of extension is granted from January 12, 2018. 

A rating in excess of 10 percent prior to February 21, 2008, for right knee painful scars is denied.

Subject to the laws and regulations governing the award of VA monetary benefits, a 30 percent rating, but no more, from October 23, 2008, for seven right knee painful scars is granted.

An initial compensable rating for surgical scars of the right knee is denied.

A compensable rating for status post fractured sternum is denied.  

Effective December 1, 2009, but no earlier, a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted.

Effective December 1, 2009, but no earlier, special monthly compensation (SMC) under 38 U.S.C. § 1114(s) is granted.

FINDINGS OF FACT

1. Prior to February 28, 2008, the Veteran’s right knee disability manifested in moderate lateral instability.

2. Prior to February 28, 2008, the Veteran’s right knee disability manifested in dislocated cartilage with frequent episodes of locking, pain, and effusion into the joint.

3. From December 1, 2009, the Veteran’s right knee disability has manifested in chronic residuals from his total knee replacement of pain, swelling, effusion, stiffness, weakness, fatigue, incoordination, and limited range of motion.

4. Throughout the entire appeal period, the Veteran’s left knee disability manifested in moderate lateral instability with subjective reports of instability, giving way, crepitus, catching, and locking, as well as the occasional evidence of effusion in the joint.

5. Throughout the entire appeal period, the Veteran’s left knee disability demonstrated flexion limited to no more than 90 degrees, including due to pain, repetitive use, or during flare-ups.

6. The Veteran’s left knee disability was manifested by normal extension, including due to pain, repetitive use, or during flare-ups until January 2018, when pain and fatigue are estimated to limit extension to 70 degrees during flare-ups. 

7. After resolving reasonable doubt in favor of the Veteran, the evidence reflects that, prior to February 28, 2008, he had 3 residual scars on the right knee from the in-service meniscectomy that were superficial and painful, did not cover an area exceeding 12 square inches, and did not result in any limitation of motion or function in the right knee.

8. After resolving reasonable doubt in favor of the Veteran, the evidence reflects that, from February 28, 2008, the Veteran had 7 scars on the right knee, all of which were painful or tender to palpation, unstable, and did not cover an area of 144 square inches (929 sq. cm.) or more. 

9. The Veteran’s fractured sternum residuals include intermittent pain, but he has not undergone resection or removal of one rib.

10. The Veteran’s service-connected disabilities alone did not render him unable to secure and maintain substantially gainful employment prior to February 28, 2008.

11. The Veteran’s service-connected disabilities other than his right knee disability did not render him unable to secure and maintain substantially gainful employment from February 28, 2008, to July 7, 2009.

12. From December 1, 2009, the Veteran’s service-connected right knee disability standing alone supports an award of a TDIU.

13. From December 1, 2009, the Veteran has a TDIU based on one service-connected disability and a separate disability rated at least 60 percent.  

CONCLUSIONS OF LAW

1. The criteria for a rating in excess of 20 percent prior to February 28, 2008, for right knee internal derangement with chondromalacia patella, status post meniscectomy, have not been met.  38 U.S.C. § 1155, 5103, 5103A, 5107(b); 38 C.F.R. § 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5257.

2. The criteria for a 20 percent rating, but no more, prior to February 28, 2008, for right knee degenerative arthritis with locking, pain, and effusion due to a torn ACL have been met.  38 U.S.C. § 1155, 5103, 5103A, 5107(b); 38 C.F.R. § 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5258.

3. The criteria for a rating in excess of 60 percent for right total knee arthroplasty with arthrofibrosis have not been met.  38 U.S.C. § 1155, 5103, 5103A, 5107(b); 38 C.F.R. § 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5055.

4. The criteria for a rating in excess of 20 percent for left knee internal derangement have not been met.  38 U.S.C. § 1155, 5103, 5103A, 5107(b); 38 C.F.R. § 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5257.

5. The criteria for a rating in excess of 10 percent for left knee degenerative arthritis have not been met.  38 U.S.C. § 1155, 5103, 5103A, 5107(b); 38 C.F.R. § 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5003.

6. From January 12, 2018, the criteria for a 50 percent rating, but no more, for a left knee limitation of extension have been met.  38 U.S.C. § 1155, 5103, 5103A, 5107(b); 38 C.F.R. § 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5261.

7. The criteria for a rating in excess of 10 percent prior to February 21, 2008, for right knee painful scars have not been met.  38 U.S.C. § 1155, 5103, 5103A, 5107(b); 38 C.F.R. § 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.118, DC 7804.

8. From October 23, 2008, the criteria for a 30 percent rating, but no more, for seven right knee painful scars have been met.  38 U.S.C. § 1155, 5103, 5103A, 5107(b); 38 C.F.R. § 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.118, DC 7804.

9. The criteria for an initial compensable rating for surgical scars of the right knee have not been met.  38 U.S.C. § 1155, 5103, 5103A, 5107(b); 38 C.F.R. § 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.118, DC 7802, 7805.

10. The criteria for a compensable rating for status post fractured sternum have not been met.  38 U.S.C. § 1155, 5103, 5103A, 5107(b); 38 C.F.R. § 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.72, DC 5299-5297.

11. The criteria for a TDIU from December 1, 2009, but no earlier, have been met.  38 U.S.C. §§ 1155, 5103(a), 5107(b); 38 C.F.R. §§ 3.341, 4.16, 4.25.

12. The criteria of a single disability rated as total and an additional disability ratable as at least 60 percent for SMC from December 1, 2009, but no earlier, have been met. 38 U.S.C. §§ 1114(s), 1155, 5107; 38 C.F.R. § 3.102, 3.321(b), 3.350, 4.16.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Army from September 1973 to March 1985.  

These matters were previously before the Board in May 2014 and December 2017 at which time they were remanded for further evidentiary development.  Substantial compliance with the remand requests having been accomplished, the Board may proceed to consider the claims.  See Stegall v. West, 11 Vet. App. 268 (1998).

In February 2010, the Veteran testified before the undersigned Acting Veterans Law Judge at a Board videoconference hearing.  A transcript of the proceeding has been associated with the claims file.  The record reflects that in September 2020, the Veteran was sent a letter indicating that he could request a virtual tele-hearing instead of waiting for a travel board hearing.  However, upon careful review, there is no pending hearing request.  The testimony provided at the February 2010 hearing has been considered herein.    

The Board notes that the Veteran has indicated that his ability to maintain employment was affected by his service-connected disabilities.  Therefore, the Board finds entitlement to a TDIU has been raised by the record. 

The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion 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).

Increased Rating

Disability evaluations are determined by the application of a schedule of ratings that 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.  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.  The veteran’s entire history is reviewed when making disability evaluations.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran.  38 C.F.R. § 4.3.  

The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; separate ratings may be assigned for distinct disabilities resulting from the same injury only where the symptomatology for one condition is not duplicative or overlapping with the symptomatology of the other condition.  See 38 C.F.R. § 4.14; see also Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994).

In every instance where the rating schedule does not provide for a noncompensable evaluation, a noncompensable evaluation shall be assigned where the requirements for a compensable rating are not met.  38 C.F.R. § 4.31.

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and recurrence of his symptoms.  Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge).  

Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate.  See Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007); Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 

The Court, in Correia v. McDonald, 28 Vet. App. 158 (2016), held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.  Thus, the Court’s holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate.

Further, in evaluating joint disabilities, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995).  The Court clarified that 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); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. at 592.  Additionally, the Court has stated that flare-ups must be factored into an examiner’s assessment of functional loss.  Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017).

1. Bilateral Knees

Degenerative and/or traumatic arthritis as shown by x-ray studies are rated based on limitation of motion of the affected joint.  38 C.F.R. § 4.71a, DCs 5003, 5010.  When, however, the limitation of motion is noncompensable under the appropriate diagnostic code, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion.  A rating of 20 percent may be applied where there are occasional incapacitating exacerbations.  38 C.F.R. § 4.71a, DCs 5003, 2010.  The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.  Id.

Under DC 5256, favorable ankylosis of the knee, in full extension or in slight flexion between 0 degrees and 10 degrees warrants a 30 percent disability rating; ankylosis in flexion between 10 degrees and 20 degrees warrants a 40 percent disability rating; ankylosis in flexion between 20 degrees and 45 degrees warrants a 50 percent disability rating; and extremely unfavorable ankylosis in flexion at an angle of 45 degrees or more warrants a 60 percent disability rating.

Under DC 5257, slight recurrent subluxation or lateral instability will be rated as 10 percent disabling, moderate recurrent subluxation or lateral instability will be rated as 20 percent disabling, and severe recurrent subluxation or lateral instability warrants a 30 percent rating.  

Under DC 5258, a claimant is entitled to a 20 percent rating for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint.  

Under DC 5259, a 10 percent evaluation is assigned for symptomatic removal of semilunar cartilage.  

Under DC 5260, flexion of the leg limited to 60 degrees is rated noncompensably (0 percent) disabling; flexion of the leg limited to 45 degrees is rated 10 percent disabling; flexion of the leg limited to 30 degrees is rated 20 percent disabling; and flexion of the leg limited to 15 degrees is rated 30 percent disabling.  

Under DC 5261, extension of the leg limited to 5 degrees is rated noncompensably (0 percent) disabling; extension of the leg limited to 10 degrees is rated 10 percent disabling; extension of the leg limited to 15 degrees is rated 20 percent disabling; extension of the leg limited to 20 degrees is rated 30 percent disabling; extension of the leg limited to 30 degrees is rated 40 percent disabling; and extension of the leg limited to 45 degrees is rated 50 percent disabling.  

Under DC 5262, a 10 percent rating is warranted for malunion of the tibia and fibula with slight knee or ankle disability.  A 20 percent rating is warranted for malunion of the tibia and fibula with moderate knee or ankle disability.  A 30 percent rating is warranted for malunion of the tibia and fibula with marked knee or ankle disability.  A maximum 40 percent rating is warranted with nonunion of the tibia and fibula, with loose motion, requiring a brace.  

Under DC 5263, a 10 percent rating is warranted for genu recurvatum (acquired, traumatic, with weakness and insecurity in weight-bearing objectively demonstrated).

Pursuant to DC 5055, prosthetic replacement of a knee joint is rated 100 percent for one year following implantation of the prosthesis.  The one-year total rating commences after a one-month convalescent rating under 38 C.F.R. § 4.30.  Thereafter, chronic residuals consisting of severe painful motion or weakness in the affected extremity warrant a 60 percent rating.  Intermediate degrees of residual weakness, pain, or limitation of motion are rated by analogy to DC 5256, 5260, 5261, or 5262.  The minimum rating following replacement of a knee joint is 30 percent.  

Normal ranges of motion of the knee are to 0 degrees in extension, and to 140 degrees in flexion.  38 C.F.R. § 4.71, Plate II.

The Board notes that the terms “mild,” “moderate,” “moderately severe,” and “severe” are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are equitable and just.  38 C.F.R. § 4.6.  Although a medical examiner’s use of descriptive terminology such as “mild” is an element of evidence to be considered by the Board, it is not dispositive of an issue.  The Board must evaluate all evidence in arriving at a decision regarding an increased rating.  38 C.F.R. §§ 4.2, 4.6.

VA General Counsel has held that a Veteran who has both arthritis and instability of a knee may be granted separate evaluations under DC 5003 and 5257, respectively, without violating the rule against pyramiding in 38 C.F.R. § 4.14.  However, any such separate rating must be based on additional disabling symptomatology.

Right Knee

The Veteran was service-connected for right knee internal derangement with chondromalacia patella, status post meniscectomy, and right knee degenerative arthritis.  The disabilities were rated 20 percent disabling under 38 C.F.R. § 4.71a, DC 5257, for recurrent subluxation or lateral instability, and 10 percent disabling under 38 C.F.R. § 4.71a, DC 5003, for degenerative arthritis, respectively.  The Veteran submitted a claim for increase on July 10, 2007, which was denied in the January 2008 rating decision on appeal.  Subsequently, he underwent a total knee replacement on February 28, 2008, and the 20 and 10 percent ratings under DCs 5257 and 5003 were discontinued as of that date.  Indeed, in a May 2008 rating decision, the Veteran was awarded a 100 percent rating from the date of surgery under 38 C.F.R. § 4.71a, DC 5055, and his disability was recharacterized as right total knee arthroplasty, to later include arthrofibrosis. See also August 2010 rating decision.  The 100 percent rating was made effective until December 1, 2009, after which a 60 percent rating was granted. 

a)	A rating in excess of 20 percent prior to February 28, 2008, for right knee internal derangement with chondromalacia patella, status post meniscectomy, is denied.

b)	A 20 percent rating, but no more, prior to February 28, 2008, for a right knee right knee degenerative arthritis with locking, pain, and effusion due to a torn ACL is granted.

Turning to the evidence of record, in a January 2007 VA treatment record, the Veteran reported worsening pain, swelling, and instability in his right knee.  He submitted a statement in January 2007 that his normal way of walking had changed due to his right knee and instability in that knee.  He had lost time from work due to his knee pain and eventually retired from one job due to his symptoms.  

In February 2007, the Veteran described problems with swelling, occasional catching and locking, and pain.  He had difficulty with any significant amount of walking, using steps, and doing bending and squatting.  A mild effusion and a definite antalgic limp to the left were observed.  Range of motion was from 0 to 140 degrees with no significant varus or valgus instability.  The Veteran noted that he was not currently taking any medication, using any braces, or using any assistive devices due to his right knee disability.  His job had him on his legs constantly, increasing his symptoms.  Clinicians suggested he use a knee brace and a cane when walking and Feldene was prescribed for use as needed.  

In an April 2007 VA treatment record, the Veteran reported that his right knee symptoms had improved with use of a knee brace and cane.  He demonstrated full range of motion.  There was no evidence of effusion but evidence of 2+ varus valgus instability in 30 degrees of flexion.  The Veteran was advised to keep his weight down, perform recommended exercises, and to use his brace.  It was noted that his right knee was responding reasonably well to treatment.  

The Veteran reinjured his right knee at work in May 2007.  An x-ray revealed degenerative osteoarthritis, marked in the lateral compartment, subcortical bony changes to the distal femur and proximal tibia, hypertrophic osteoarthritis, and moderate joint effusion.  An MRI demonstrated extensive degenerative change in the lateral compartment with significant cartilage erosion, “bone on bone” anteriorly, extensive tear or postoperative change in the lateral meniscus involving all portions, moderate degenerative change in the medial compartment, a tear or postoperative change involving the posterior horn and body of the medial meniscus, moderate-sized joint effusion, complete tear of the anterior cruciate ligament, patellar subluxation without significant thinning of the prepatellar cartilage, and postoperative changes in the skin anterior to the joint without obvious loose body.  

In June 2007, the Veteran reported pain with ambulation and standing and swelling when on his feet.  Upon observation, he had decreased range of motion and strength and an antalgic gait.  Physical therapy was ordered.  Subsequent therapy records reflected knee pain and edema, swelling, weakness, and crepitus.  Range of motion was measured on different occasions which revealed flexion to 124 degrees and extension to 6 degrees, flexion to 135 degrees, flexion to 100 degrees, and flexion to 130 degrees.  In a July 2007 therapy record, it was noted that while the Veteran’s range of motion was much improved and his knee was less swollen, his progress was poor because he was too focused on pain.  In another July 2007 record, the Veteran reported a sensation of instability.  The right knee was aspirated and a cortisone injection was administered.  Throughout therapy records, the Veteran described increased pain and swelling with prolonged standing and weight-bearing activities.  In September 2007, the Veteran had a moderate effusion, cracking, and popping in the right knee.  Another aspiration and cortisone injection were administered.  Another effusion and persistent synovitis were observed in December 2007 and another aspiration and injection were administered.  

The Veteran underwent a VA examination in November 2007.  He reported severe constant pain in his right knee and presented with an antalgic gait.  He stated that he used a cane and right knee brace but did not present with either at the examination.  He described difficulty with prolonged standing, walking for more than a half hour, walking up and down steps, climbing, and squatting.  On active and passive motion, there was evidence of moderate pain with range of motion was zero to 120 degrees, with moderate pain beginning at 110 degrees.  With repetitive use, range of motion was not additionally limited by pain, fatigue, weakness, or lack of endurance.  The Veteran denied flare-ups.  The examiner stated there were no clinical signs of instability in either knee and, in this regard, noted that drawers test was negative.  However, he also noted there was a questionable McMurray’s sign bilaterally but, again, stated there was no instability at the time of the examination.  There was mild to moderate tenderness noted along the medial, anterior, and lateral aspects of the knee.  

In December 2007, the Veteran submitted a statement describing not being able to stand due to right knee swelling or to walk due to right knee pain.  He stated that the aspirations and injections had not worked to relieve his symptoms and that he had been recommended to have a total right knee replacement.  

In a January 2008 VA treatment record, it was noted that the cortisone injections had not provided the Veteran any relief.  He reported that his right knee disability interfered with routine daily activities and caused pain at night.  A mild effusion was observed.  Range of motion was from 2 to 120 degrees.  Clinicians advised him to go forward with a right total knee replacement surgery.

Another VA examination was conducted in February 2008.  The Veteran reported pain in his right knee that had worsened over time and with the May 2007 work injury.  He also stated that his knee had always popped and locked.  He reported use of an elastic knee brace and cane and that he took Feldene as needed for pain.  He described constant pain at a 7 to 8 out of 10, increasing to 10 out of 10 when standing or walking a short distance or when running at work.  He also stated that he could not walk up steps without holding onto a rail.  The Veteran noted the pain was pounding and sharp in nature, sometimes throbbing.  Flare-ups were described as occurring about seven hours a day, with pain at a 10 out of 10 in severity.  The knee swelled any time he stood, even for a few minutes, and when he took a walk.  Swelling was partially relieved with icing.  He avoided activities at night, as well.  He reported that sometimes the knee gave way, especially sideways, sometimes while going up steps or even on level surfaces.  He also described popping and locking of the knee.  

Upon observation, gait was normal with use of a cane and balance was limited without assistance.  He was able to squat and rise with several crepitations audible in the right knee.  There was no swelling or effusion in the knee, the patella had marked tenderness, and there were retropatellar crepitations noted.  Active range of motion was to 0 degrees in extension and passive range of motion was to -2 degrees with evidence of discomfort.  Repetitive motion yielded similar results.  Active flexion was to 100 degrees without complaints and to 120 degrees with discomfort.  Passive flexion was to 120 degrees with no pain.  Repetitive flexion resulted in 105 degrees without pain and 120 degrees with mild to moderate discomfort.  Muscle strength testing was normal with no atrophy.  The examiner stated that the Veteran’s activities were rather limited due to instability and pain in the right knee.  During flare-ups, further limitations in range of motion would result, but the extent could not be determined as it would depend on the severity of pain, presence or absence of swelling, and any activities.  Endurance was limited due to the right knee condition for limited walking, fatigue was a subjective complaint, and regarding coordination, balance was slightly limited without assistive devices due to pain and instability.  

Regarding instability, the examiner noted that, in the right knee, drawers test was slightly positive, as were medial and lateral (varus/vulgus) stress testing, but McMurray’s and Alpey’s tests could not be performed. In the left knee, while the Veteran was in moderate discomfort during varus or valgus stress testing, drawers sign, Lachman’s test, and medial-lateral stress testing were all negative. In this regard, the examiner noted that, in the supine position, there was no evidence of deformity in either lower extremity.  Regarding an impact on employment, the examiner stated that the severe degenerative joint disease in the right knee would inhibit running activities or prolonged walking, especially due to instability.  

The Board notes, at the outset, that the VA examinations of record, taken in conjunction with records of medical treatment and lay statements, are an adequate basis upon which to determine the extent and severity of the Veteran’s right knee disability.  Range of motion on both active and passive motion were measured at both examinations and the examiners described additional loss of function with repetitive use and during flare-ups.  Although further limitation in terms of range of motion during flare-ups could not be determined, the February 2008 examiner found that pain, fatigue, and incoordination would cause additional functional loss, used the Veteran’s own description of his limitations to describe the functional impact, and provided a medical reason for why additional limitation in terms of degrees of motion could not be provided.  The Veteran himself has provided ample statements regarding the limitation of his activities from which to extrapolate the extent and severity of his right knee disability.  For instance, he has repeatedly stated that he experiences increased pain and swelling with weight-bearing activities, such as prolonged standing and walking.  As weight-bearing activities are noted to cause an increase in his symptoms, they represent the extremes of his disability, such that evaluating nonweight-bearing activities would likely produce less severe results.  The Veteran has also given examples of activities he cannot engage in during flare-ups, such as prolonged standing and walking, climbing, and bending.  As such, the Board finds that the requirements of DeLuca, Sharp, and Correia have been adequately addressed.  DeLuca v. Brown, 8 Vet. App. At 202; Sharp v. Shulkin, 29 Vet. App. at 32; Correia v. McDonald, 28 Vet. App. at 158.

Based on the foregoing, the Board finds that a rating in excess of 20 percent under DC 5257 for right knee internal derangement with chondromalacia patella, status post meniscectomy, prior to February 28, 2008, is not warranted.  The Veteran has described experiencing instability throughout the appeal period, he was prescribed knee braces and instructed to use an assistive device to aid in stability, and signs of instability were observed on several occasions.  The Board notes that there has also been objective evidence of medial-lateral instability in the right knee, as reflected by the varus and valgus tests performed in April 2007 and February 2008, in addition to the positive drawer’s test in February 2008. Despite the foregoing clinical evidence of instability in the right knee joint, the evidence does not indicate diffuse instability throughout the joint, as other stability tests were negative. For example, in November 2007, drawer’s test was negative and, while there was a questionable McMurray’s sign, the examiner stated there was no instability at the time of the examination. Similarly, while drawer’s, varus, and valgus tests were positive in February 2008, the examiner indicates that the tests were slightly positive, which contraindicates a finding of a more severe impairment.  Therefore, the Board finds this disability picture best approximates moderate recurrent lateral instability, meriting no more than a 20 percent rating.  Accordingly, a rating in excess of 20 percent under DC 5257 prior to February 28, 2008, is not warranted.

Prior to February 2008, the Veteran’s right knee degenerative arthritis received a 10 percent rating under DC 5003 based upon painful, limited motion that did not meet the criteria for a compensable rating for limitation of flexion or extension under DCs 5260 and 5261.  In this regard, the Board notes that the evidence dated prior to February 2008 shows that the Veteran’s extension was limited to no more than 2 degrees and flexion to no less than 100 degrees, including when considering pain, fatigability, and other factors during active and passive range of motion, weight-bearing and nonweight bearing testing, flare-ups, and with repetitive use.  See e.g., January 2008 VA treatment record; February 2008 VA examination report.

Therefore, a rating in excess of 10 percent is not warranted under DCs 5260 and 5261.  A 10 percent rating is also the maximum evaluation available to the Veteran under the criteria of DC 5003, as there is no evidence that the right knee disability involved two or more joints and was manifested by incapacitating exacerbations. 

However, the Board finds that an alternative rating under another diagnostic code more favorably represents the symptomology and severity of the right knee disability (separate and distinct from instability) during this period.  

Diagnostic Code 5258 allows for a higher (single and maximum) 20 percent rating for dislocation of semilunar cartilage with frequent episodes of joint locking, pain, and effusion.  Although the Veteran underwent a meniscectomy during service, imaging of the right knee in May 2007 revealed post-operative changes in the lateral and medial meniscus, as well as a complete tear in the anterior cruciate ligament.  Further, there are frequent notations throughout the record of locking, pain, and effusion in the joint.  As such, the right knee disability meets the criteria of DC 5258.  As this represents a more favorable finding for the Veteran, the Board finds that the symptomology of the right knee disability is better evaluated under DC 5258 than under DC 5003 and contemplates the frequent episodes of locking, effusion, and painful motion in the joint. In this regard, the Board notes that the Veteran may not be assigned separate ratings under both DC 5003 and DC 5258 as both diagnostic codes overlap in ratings based on pain and locking as forms of limitation of motion; therefore, assigning separate ratings under both DC 5003 and DC 5258 would violate the rule against pyramiding.  38 C.F.R. § 4.14.  Accordingly, the evaluation of the Veteran’s right knee degenerative arthritis with locking, pain, and effusion due to a torn ACL is changed from the criteria of DC 5003 to DC 5258.  See Butts v. Brown, 5 Vet. App. 532, 538 (1993).  As such, an alternative 20 percent rating under DC 5258 is warranted prior to February 28, 2008.  

The Board has considered whether rating the Veteran’s right knee disability under additional or alternative diagnostic criteria would be more appropriate and advantageous to the Veteran.  However, the evidence does not reflect that the right knee disability has been manifested by ankylosis, malunion or nonunion of the tibia and fibula, or genu recurvatum throughout the appeal period to warrant rating under DC 5256, 5262, or 5263, respectively.  As noted above, limitation of flexion and extension were not compensable on passive and active motion or with repetition.  As such, rating under DC 5260 or 5261 is not indicated.  Finally, although the Veteran’s right knee met the criteria of DC 5259 as he previously underwent a meniscectomy, rating the disability under both the criteria of DC 5257 and DC 5259 would represent improper pyramiding, as the symptoms of recurrent subluxation or lateral instability are encompassed by the “symptomatic” criteria in DC 5259.  Therefore, rating the disability under DC 5259 would not provide any advantage to the Veteran.  

Accordingly, a 20 percent rating, but no more, under DC 5258 is warranted prior to February 28, 2008, for the Veteran’s right knee degenerative arthritis with locking, pain, and effusion due to a torn ACL.

c)	A rating in excess of 60 percent from December 1, 2009, for right total knee arthroplasty with arthrofibrosis is denied.

As noted above, the Veteran’s was awarded a 100 percent rating under the criteria of DC 5055 for the right knee disability from February 28, 2008 to December 1, 2009.  Thereafter, a 60 percent rating was granted.  

The Board notes that 60 percent is the highest rating assignable under DC 5055 for chronic residuals following total knee replacement. As such, the Veteran is currently in receipt of the highest evaluation available under DC 5055 or any other knee rating criteria.  

Additionally, it is important to note that the combined disability rating for the right knee disability cannot exceed the rating for the amputation at the elective level, were amputation to be performed.  See 38 C.F.R. § 4.68 (“amputation rule”).  For a below the knee amputation, the combined disability rating cannot exceed 40 percent, and for an above-the-knee amputation, the combined disability rating cannot exceed 60 percent.  See 38 C.F.R. § 4.71a, DCs 5162-5165.  

Thus, as a matter of law, the Veteran cannot receive a rating in excess of 60 percent for his right knee.  38 C.F.R. § 4.68 (“amputation rule”); see also 38 C.F.R. § 4.71a, DCs 5162-5165.

The medical evidence, moreover, does not warrant an increased rating under any potentially applicable provision.

VA treatment records from December 2009 noted increased pain, swelling, heat with walking, stiffness, locking, and weakness in the Veteran’s right knee.  The Veteran described sharp, stabbing, and dull pain occurring constantly.  Symptoms were aggravated by standing and walking for long periods and alleviated with pain medication.  It was noted that he walked with a cane and a steady gait.  Range of motion testing revealed flexion limited from 30 to 60 degrees on one occasion and 15 to 40 degrees on another.  The clinician stated that the Veteran’s condition was permanent and not expected to improve.  

In January 2010, VA clinicians stated that the range of motion in the right knee was markedly limited on both active and passive motion and the Veteran was unable to completely extend the knee.  He could flex to only about 45 degrees.  

At the February 2010 hearing, the Veteran stated that he had limited use of his right knee and difficulties with walking, bending, getting up and down, and going to the bathroom.  He noted that he wore a brace and used crutches, a cane, or a walker.  He felt that his knee was unstable and that if he was on it for more than 30 minutes to an hour, it would start to give.  He stated that he could not bend the knee completely and experienced constant swelling.  

Another VA examination was conducted in March 2010.  The Veteran reported that he currently used a knee brace and pain medication to treat his right knee disability with fair results and also used a cane frequently and crutches occasionally.  Relevant reported symptoms included giving way, instability, pain, stiffness, weakness, incoordination, decreased speed of joint motion, frequent locking episodes, constant effusions, swelling, and tenderness.  Functional limitations included standing for 15 minutes and walking for 50 yards.  His gait was observed to be antalgic with poor propulsion.  Upon observation, the right knee had a bony joint enlargement, deformity, edema, effusion, exquisite tenderness, weakness, abnormal motion, and guarding of movement.  There was no clicking, grinding, instability, locking, or dislocation.  The joint prosthesis resulted in moderate weakness.  Range of active motion was from 22 to 45 degrees in flexion and extension was limited by 22 degrees.  There was objective evidence of pain with repetitive motion but no additional limitations after repetition.  There was no joint ankylosis.  An x-ray revealed evidence of total right knee arthroplasty with stable appearance of the prosthetic components and prosthesis bone interfaces; soft tissue calcifications along the distal quadriceps tendon; no signs of superimposed trauma or loosening; and a suspected joint effusion.  The right knee disability was determined to have significant effects on occupation due to decreased mobility with lifting and carrying, lack of stamina, weakness or fatigue, decreased strength, and pain.  Chores, exercise, sports, and driving were prevented by the disability, whereas shopping, recreation, and traveling were severely affected.  

In April 2010, range of motion was from 5 to 85 degrees.  There were considerable contractures and scar tissue.  No instability was observed but there was some mild swelling.  An x-ray demonstrated the prosthetic components with the long stem in the femur and tibia; there was no evidence detected of loosening or any infectious disorders.  In a June 2010 VA treatment record, range of motion was noted to be 0 to 80 degrees with pain at the extremes.  There was no evidence of instability.  In November 2011, range of motion was from 3 to 90 degrees with some stiffness and tenderness.  There was no erythema or swelling.  A November 2012 treatment record reflected range of motion from 0 to 110 degrees with swelling, tenderness, and numbness.  

In several 2010 statements, the Veteran contended that his right knee was not evaluated fairly at VA examinations and that the disability was not rated fairly.  

In February 2013, clinicians noted that range of motion was from 0 to 85 degrees, but the Veteran could stretch to 100 degrees.  There was tenderness and some atrophy.  In a March 2013 treatment record, right knee active range of motion was said to be within normal limits except flexion was to 75 degrees.  The Veteran had an antalgic gait.  Physical therapy was undertaken.  

A private right knee evaluation was conducted in July 2013.  The Veteran reported dull and intermittently sharp pain, numbness, and stiffness.  Pain was described as an 8 out of 10 in severity, exacerbated to a 10 out of 10 with activity.  Walking more than 5 minutes or standing more than 15 minutes reportedly caused swelling.  The Veteran stated he could not go up or down stairs, was unable to squat or kneel, and had difficulty with deep chairs, low cars, and bathtubs.  Pain was relieved by ice, elevation, rest, and ibuprofen.  Stiffness was worse with activity and he experienced occasional weakness when the knee was stiff.  Range of motion was from 5 to 50 degrees.  The clinician observed that the Veteran walked with a limp and had atrophy of the quadriceps.  The clinician also stated that the Veteran had significant restrictions in activities and could not work.  

October 2014 VA treatment records reflected range of motion from 0 to 85 or 90 degrees with tenderness.  The Veteran described occasional mild swelling, no locking, no instability, and some crepitus.  The clinician stated that most of the symptoms were related to weight-bearing or going up and down stairs.  The Veteran was currently taking no medication for his knees.  In May 2015, flexion was noted to be limited and the right knee demonstrated tenderness.  An x-ray revealed the prosthesis without any sign of loosening.  

The Veteran underwent another VA examination in October 2015.  He described worsening right knee pain and flare-ups of pain with prolonged bending, standing, walking on uneven terrain, and running.  Flexion was to 60 degrees and extension was to 10 degrees.  The examiner noted that the right lower extremity was currently in a flare, resulting in decreased range of motion.  Pain was noted upon examination and determined to cause functional loss.  There was pain with weight-bearing and objective evidence of localized tenderness or pain on palpation but no crepitus.  Repetitive use was performed without any additional loss of function.  The examiner determined that pain and weakness would result with repeated use over time and pain would result during flare-ups.  Additional functional loss with repeated use over time and during flare-ups would result in 55 degrees of flexion and 10 degrees of extension.  Additional factors contributing to disability included less movement than normal, weakened movement, and interference with standing.  Muscle strength testing was normal on flexion but slightly reduced on extension.  There was a reduction in muscle strength but no atrophy.  No ankylosis was observed.  There was no evidence or history of recurrent subluxation, lateral instability, or recurrent effusion.  Joint stability testing resulted in no instability.  As a result of the total knee replacement, there were intermediate degrees of residual weakness, pain, or limitation of motion.  The Veteran was noted to occasionally use a knee brace for pain but no assistive devices.  The examiner concluded that the knee disability would impact the Veteran’s ability to perform occupational tasks, as he could only perform light physical and sedentary tasks. 

Another VA examination was conducted in January 2018.  The Veteran reported current symptoms of knee pain, loss of range of motion, and stiffness.  He did not describe flare-ups.  Functional loss was noted to be range of motion, stiffness, and locking after sitting for short periods.   Flexion was from 60 to 115 degrees and extension was from 115 to 60 degrees.  There was generalized pain on palpation around the knee and scar tissue.  There was evidence of pain with weight-bearing but not with nonweight-bearing.  The examiner determined that passive motion testing could not be performed or was not medically appropriate.  The examiner also stated that weight-bearing did not play a role on the Veteran’s mechanical knee, rather range of motion and the pain it caused were what limited function of the knee.  There was no evidence of crepitus.  The Veteran was able to perform repetitive use testing with flexion from 60 to 110 degrees and extension from 110 to 60 degrees with fatigue causing functional loss.  The examiner stated that he could not determine whether pain, weakness, fatigability, or incoordination or loss in terms of range of motion resulted with repeated use over time or during flare-ups as such testing was not performed and any conclusion would be speculative.  However, he stated that the right knee would be restricted by fatigue from increased swelling with movement, as increased swelling added tension/pressure around the joint which caused weakness/fatigue.  Such functional loss would result in a 5 to 15 degree decrease in range of motion as use progressed and swelling increased.  Regarding additional contributing factors of disability, the examiner stated that the development of arthrofibrosis from the Veteran’s multiple knee surgeries resulted in painful and more restricted movements of the right knee and leg because scar tissue is not elastic like the natural joints are.  Movement thus caused pain as well as a decrease in range of motion.  Muscle strength testing yielded normal results and there was no muscle atrophy.  No ankylosis was observed and there was no history of recurrent subluxation or lateral instability.  The Veteran did have chronic knee effusion or swelling, worse with use.  As a result of the total knee replacement, there were chronic residuals consisting of severe painful motion or weakness and arthrofibrosis. The Veteran was noted to regularly use a cane or walker, depending on severity of pain.  The examiner concluded that there was not functional impairment of the right lower extremity such that no effective function remained other than that which would be equally well served by an amputation with prosthesis.  Regarding functional loss, the examiner determined that due to severe arthritis, running, jumping, and climbing stairs would be nearly impossible without causing severe pain and hardship.  

An April 2018 VA treatment record noted that the Veteran experienced aching pain and sometimes swelling in his right knee.  Upon observation, there was mild swelling and no tenderness.  An x-ray revealed the arthroplasty with good alignment.  In May 2018 treatment records, range of motion was from 0 to 75 degrees.  Pain and occasional swelling were described.  In May 2019, range of motion was from 5 to 85 degrees.  X-rays again revealed no evidence of loosening or other abnormalities.  

The Veteran underwent another VA examination in October 2019.  He described current symptoms of pain, loss of range of motion, and stiffness but did not describe flare-ups.  Functional loss was noted to be range of motion, stiffness, and locking when sitting for short periods.  Active flexion was from 60 to 115 degrees and extension was from 115 to 60 degrees with pain noted on movement.  The examiner noted that active range of motion limitations appeared to be exaggerated a bit upon examination.  There was pain with weight-bearing.  The examiner noted that the Veteran claimed constant pain involving the spine, therefore there was pain throughout the entire arc of movement, whether active, weight-bearing, or nonweight-bearing.  Passive movement could not be performed due to the lumbar spine condition.  Generalized tenderness was observed around the knee and scar tissue at a 7 out of 10 severity.  There was no evidence of crepitus.  Repetitive use resulted in flexion from 60 to 110 degrees and extension from 110 to 60 degrees.  The examiner determined that the examination was medically consistent with the Veteran’s statements describing functional loss with repeated use over time and during flare-ups.  With repeated use over time, flexion would be from 65 to 105 degrees and extension from 105 to 65 degrees with pain and fatigue.  During flare-ups, flexion would be from 70 to 100 degrees and extension from 100 to 70 degrees with pain and fatigue.  Muscle strength testing was normal with no atrophy.  There was no history of recurrent subluxation or lateral instability, but the Veteran had chronic effusion or swelling, worse with use.  As a result of the total knee replacement, there were chronic residuals consisting of severe painful motion or weakness and arthrofibrosis. The Veteran was noted to regularly use a cane or walker, depending on severity of pain.  The examiner concluded that there was not functional impairment of the right lower extremity such that no effective function remained other than that which would be equally well served by an amputation with prosthesis.  Regarding functional loss, the examiner determined that due to severe arthritis, running, jumping, and climbing stairs would be nearly impossible without causing severe pain and hardship.  

A February 2020 treatment record reflected right knee range of motion from 0 to 90 degrees with 4 out of 5 strength.  

The Board finds that the VA examinations of record are adequate to determine the nature, extent, and severity of the Veteran’s right knee disability.  Although some examiners did not provide additional loss of range of motion in terms of degrees with repetitive use or during flare-ups, the Board finds that the Veteran himself has provided sufficient information regarding the limitation of his activities from which to extrapolate the extent and severity of his right knee disability.  His own depictions of the symptomology and practical effects of his condition provide an adequate basis upon which to evaluate the disability, including with repetitive use and during flare-ups.  The Board further finds that the examinations complied with the standards of DeLuca v. Brown, 8 Vet. App. At 202; Sharp v. Shulkin, 29 Vet. App. at 32; and Correia v. McDonald, 28 Vet. App. at 158.  Therefore, the examinations and the medical record as a whole are an adequate basis upon which to determine the current severity of the Veteran’s right knee disability.

Based on the foregoing, the Board finds that a rating in excess of 60 percent from December 1, 2009, for the Veteran’s right knee disability, is not warranted.  As noted, the Veteran’s right knee disability has consistently demonstrated chronic residuals consisting of severe painful motion or weakness in the affected extremity since December 2009, meriting a 60 percent rating under DC 5055.  Indeed, the Veteran’s relevant residuals following his total right knee replacement include pain, swelling, effusion, stiffness, weakness, fatigue, incoordination, and limited range of motion.  These symptoms result in difficulty with prolonged walking, standing, sitting, bending, climbing stairs, and squatting, and an inability to run.  Such symptoms and their functional impact are contemplated by the 60 percent criteria of DC 5055. Parenthetically, the Board notes that pain, stiffness, and limitation of motion are also specifically addressed by diagnostic codes 5256, 5261, and 5262.  As such, the established schedular criteria are adequate to describe the severity and symptoms of the Veteran’s disability.  

As also noted, the Veteran is in receipt of the highest schedular rating (following the 100 percent period) under DC 5055 and under diagnostic codes 5256, 5261, and 5262 for which intermediate degrees of residuals are evaluated.  Additionally, a higher evaluation is also precluded as a matter of law pursuant to the amputation rule.  See 38 C.F.R. § 4.68.

Accordingly, a rating in excess of 60 percent from December 1, 2009, for the Veteran’s right total knee arthroplasty with arthrofibrosis is not warranted.

Left Knee

The Veteran was service-connected for left knee internal derangement and degenerative arthritis.  The disabilities were rated 20 percent disabling under 38 C.F.R. § 4.71a, DC 5257, for recurrent subluxation or lateral instability, and 10 percent disabling under 38 C.F.R. § 4.71a, DC 5003, for degenerative arthritis, respectively.  The Veteran submitted a claim for increase on July 10, 2007, which was denied in the January 2008 rating decision on appeal.  Subsequently, in a June 2020 rating decision, the two separate ratings were combined into one 50 percent rating under 38 C.F.R. § 4.71a, DC 5003-5261, effective October 17, 2019.  

Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating, with the first code representing the underlying condition and the second code representing the residuals.  38 C.F.R. § 4.27.  Here, the hyphenated diagnostic codes indicate that the Veteran’s left knee internal derangement and degenerative arthritis is rated under the criteria of DC 5261, pertaining to limitation of extension.  In the June 2020 rating decision, the Agency of Original Jurisdiction (AOJ) indicated that the rating was granted based on extension limited to 45 degrees or more, x-ray evidence of degenerative arthritis, and dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion.  

Turning to the evidence of record, in a February 2007 VA treatment record, it was noted that the Veteran experienced catching or locking in his left knee due to overuse and had pain with any significant amount of walking, using steps, or doing bending or squatting activities.  He had a definite antalgic limp on the left.  He had full range of motion in the left knee with no effusion, no instability, and mild tenderness.  In a June 2007 private treatment record, it was noted that the Veteran had left knee pain and he was frustrated with the decrease in function and activity level due to his bilateral knee conditions.  Flexion and extension in the left knee were within normal limits and the ligaments were noted to be stable.  

The Veteran underwent a VA examination in November 2007.  He reported severe constant pain in his left knee and presented with an antalgic gait.  He stated that he used a cane but did not present with one at the examination.  He described difficulty with prolonged standing, walking for more than a half hour, walking up and down steps, climbing, and squatting.  On active and passive motion, there was evidence of moderate pain with range of motion from 110 degrees to 120 degrees.  With repetitive use, range of motion was not additionally limited by pain, fatigue, weakness, or lack of endurance.  The Veteran denied flare-ups.  The examiner stated there were no clinical signs of instability in either knee and, in this regard, noted that drawers test was negative.  However, he also noted there was a questionable McMurray’s sign bilaterally but, again, stated there was no instability at the time of the examination.  There was mild to moderate tenderness noted along the medial, anterior, and lateral aspects of the knee and crepitus was observed.  

In a December 2007 treatment record, it was noted that the left knee had minimal symptoms and a physical examination was unremarkable.  In January 2008, range of motion in the left knee was from 0 to 135 degrees.  

Another VA examination was conducted in February 2008.  The Veteran described pain on the inside of his left knee and at the back.  At least two or three times a week, pain would be at a 7 out of 10 in severity, increasing to 10 out of 10 if he worked over 13 to 14 days.  The knee seldom swelled and was very mild unless he walked for a prolonged period.  He did not wear braces but used a cane to ambulate due to bilateral knee disabilities.  He noted that his knee gave way sometimes to the side.  He reported that it popped and locked and pain was pounding, sharp, and sometimes throbbing.  He denied pain and swelling upon examination.  He described flare-ups lasting for a few hours to a few days.  Upon observation, no tenderness or swelling was noted and the patella was not displaced.  Active range of motion in extension was 0 degrees and passive motion was -5 degrees, which the examiner stated was normal.  Repetitive motion did not result in any change or pain.  Active flexion was 130 degrees and passive flexion was 135 degrees.  Repetitive motion did not result in any change or pain.  Stress testing, e.g., drawer’s and Lachman’s test, did not reveal any instability though the Veteran was in moderate discomfort during varus and valgus stress testing.  Muscle strength was normal.  X-rays demonstrated mild lateral patellofemoral joint space narrowing and normal medial and lateral compartments.  

In a July 2008 VA treatment record, clinicians noted that the left knee was progressively worsening.  There was a trace effusion and tenderness along the posterior medial joint line and medial facet.  Range of motion was from 0 to 130 degrees with mild crepitus and pain.  There was no valgus/varus instability.  The Veteran received a cortisone injection in the left knee.  An August 2008 x-ray revealed mild narrowing of the medial compartment and an MRI demonstrated moderate lateral patellofemoral joint space narrowing with severe chondromalacia patella, moderate joint effusion, small Baker’s cyst, and no meniscal or ligamentous tear.  

The Veteran underwent another VA examination in September 2008.  He stated his left knee pain was at 8 out of 10 in severity a majority of the time, sometimes increasing to a 10 out of 10 after walking.  He had no pain when resting.  He denied any swelling but noted that the knee occasionally gave way.  Going down steps caused buckling, grinding, and cracking in the knee.  He could not describe flare-ups but stated that he used ice packs for relief during flare-ups.  Upon observation, marked tenderness was noted.  The patella was not displaced or dislocated.  There were mild retropatellar crepitations during passive motion.  No swelling or effusions were observed.  Active range of motion in extension was 0 degrees and passive range of motion and repetitive motion resulted in 0 degrees without complaints of pain.  Active, passive, and repetitive flexion was 120 degrees without complaints of pain.  Several stress tests could not be performed due to pain, but the Veteran was in moderate to severe discomfort during the varus/valgus stress test.  No muscle atrophy was noted.  The examiner stated that during flare-ups, the Veteran could have further limitations, but based on the description, the extent of limitations could not be determined.  He reported that pain was aggravated depending on the amount of walking he did or activities he performed.  Regarding coordination, limited balance was caused by the right knee disability.  Endurance would also be slightly limited due to pain.  X-rays revealed mild narrowing of the medial compartment of the left knee.  

In October 2008, VA clinicians noted that the left knee had no erythema, warmth, or swelling but was very tender.  Range of motion was from 0 to 130 degrees with some crepitus and pain.  It was noted that there was a possible meniscal tear.  Three Synvisc injections were administered to the left knee in December 2008.  Range of motion was from 0 to 120 degrees with mild crepitus and pain.  A March 2009 x-ray revealed demineralization of the bones of the left knee with mild patellar spurring but no superimposed acute trauma.  In an April 2009 treatment record, it was noted that the left knee had swelling, aggravated by movement, standing for prolonged periods, sitting, and sleeping, and alleviated by ibuprofen.  

Another VA examination was conducted in May 2009.  He reported that he used a brace daily and a cane constantly and took ibuprofen for pain.  He stated that he was limited to standing for 15 to 30 minutes only.  His gait was described as poor propulsion.  Upon observation, there was tenderness but no crepitation, clicking or snapping, grinding, instability, or other abnormality.  Range of motion was from 0 to 15 degrees.  There was no objective evidence of pain on active motion and no additional limitation after repetition.  There was no evidence of ankylosis.  A June 2009 addendum corrected the range of motion findings, noting that range of motion in the left knee was perfectly normal with extension to 0 degrees and flexion to 140 degrees.  

In a May 2009 treatment record, the left knee had full range of motion with crepitus.  In December 2009, range of motion was from 0 to 90 degrees and there was tenderness to palpation.  In another December 2009 treatment record, range of motion was from 0 to 120 degrees with some effusion and synovial thickening.  In January 2010, range of motion was only mildly limited due to pain.  

At the February 2010 hearing, the Veteran described his left knee pain as an 8 out of 10 in severity and noted that it gave way more than his right knee.  He reported that the knee was unstable every day and that he used a brace daily.  He described constant pain and swelling which limited his activities.  

During a March 2010 VA examination, the Veteran’s left knee range of motion was from 0 to 110 with objective evidence of pain.

An April 2010 record reflected range of motion from 0 to 135 degrees, a minimal effusion, tenderness to palpation, and minimal pain.  An MRI revealed no evidence of signal changes or meniscal tear, the ligaments were intact, and minimal degenerative changes were seen in the joint.  

In June 2010, range of motion in the left knee was 0 to 135 degrees with a trace effusion and tenderness.  In a November 2012 treatment record, left knee range of motion was from 0 to 135 degrees with tenderness and minimal crepitation.  An x-ray conducted in January 2013 revealed mild left medial femorotibial knee joint space narrowing and mild degenerative changes of the patellofemoral compartment.  A February 2013 treatment record reflected some crepitation and patella lateral shift.  In March 2013, the Veteran reported constant pain in his left knee.  Range of motion was within normal limits and there was tenderness in the left knee.  In October 2014, the Veteran received four viscosupplementation injections in the left knee.  

The Veteran underwent another VA examination in October 2015.  He described flare-ups of pain with prolonged bending, standing, walking on uneven terrain, and running.  Flexion was to 140 degrees and extension to 0 degrees on active motion and after repetition.  Pain was not noted upon examination.  There was no evidence of pain with weight-bearing or pain on palpation.  Crepitus was noted.  With repeated use over time and during flare-ups, the examiner determined that pain would result and range of motion would be limited to 135 degrees of flexion and 0 degrees of extension.  Additional factors contributing to disability included less movement than normal.  Muscle strength testing was normal and there was no atrophy.  There was no ankylosis.  The examiner indicated that there was no history of recurrent subluxation, lateral instability, or recurrent effusion.  Joint stability testing yielded normal results.  The Veteran reported occasional use of a knee brace.  The examiner concluded that the knee disability would impact the Veteran’s ability to perform occupational tasks, as he could only perform light physical and sedentary tasks. 

The Veteran underwent another VA examination in January 2018.  He described flare-ups of popping and locking of the left knee.  Functional loss was depicted as range of motion, stiffness, and stiffness and locking after sitting for short periods.  Range of motion was from 0 to 140 degrees.  Passive range of motion testing yielded the same results.  There was evidence of tenderness along the medial joint line.  There was pain with weight-bearing, no pain with nonweight-bearing, no pain on passive range of motion, and there was evidence of crepitus.  With repetitive use testing there was no loss of range of motion.  The examiner could not provide additional loss in terms of range of motion with repeated use over time or during flare-ups, noting the Veteran was not tested or evaluated after repeated use or during a flare-up.  Muscle strength testing was normal and there was no atrophy.  There was no ankylosis.  The examiner noted that there was no history of recurrent subluxation, lateral instability, or recurrent effusion in the left knee and, thus, joint stability tests were deemed not indicated.  However, the examiner noted a left knee meniscal condition with frequent episodes of joint locking, pain, and effusion and noted the Veteran had severe, bone-on-bone arthritis in his left knee that could result in such symptoms.  In this regard, he noted the Veteran’s report of popping and locking of the knee during flare-ups and further that locking could occur after sitting for short periods.  The Veteran reported regular use of a cane or walker depending on how severe the pain was.  The examiner noted that pain and functional loss were primarily with weight-bearing and climbing stairs, walking distances, or any running would be difficult to impossible.  This was because lack of knee cartilage resulted in a bone-on-bone grinding with weight-bearing which resulted in severe pain and difficult ambulation.  The examiner also stated that the left knee was affected by pain, excruciating at times.  Functional loss in terms of range of motion would not result in loss of range of motion, just an increase in pain.  The examiner also concluded that the Veteran’s left knee cartilage was likely semilunar, given the description of symptoms and physical findings.  Regarding functional loss, the examiner determined that due to severe arthritis, running, jumping, and climbing stairs would be nearly impossible without causing severe pain and hardship.  

In a May 2018 VA treatment record, it was noted that the left knee was experiencing more pain, crepitus, and swelling.  The Veteran reported that the knee occasionally gave way but in general, he mostly had night pain.  Range of motion was from 0 to 110 degrees with mild tenderness and moderate crepitus.  An x-ray revealed mild osteoarthritis.  In May 2019, the Veteran reported mild pain, some crepitus, and swelling in the left knee.  A trace effusion was observed.  An x-ray demonstrated mild to moderate arthritic changes with narrowing of the medial joint line.  

Another VA examination was conducted in October 2019.  The Veteran reported flare-ups of popping and locking of the left knee.  He described functional loss as range of motion and stiffness, and that stiffness and locking occurred when he was sitting for short periods.  Range of motion was normal with flexion from 0 to 140 degrees and extension from 140 to 0 degrees.  Pain was noted on both motions and with weight-bearing.  The examiner determined that there was pain throughout the entire arc of movement, whether active, weight-bearing, or nonweight-bearing motion.  Passive movement without weight-bearing could not be performed due to a lumbar spine condition.  There was tenderness along the medial joint line and crepitus.  Repetitive use testing did not result in any loss of range of motion.  However, the examiner estimated that, due to pain and fatigue, range of motion would be limited to 5 degrees of extension to 135 degrees of flexion with repeated use over time and 70 degrees of extension to 130 degrees of flexion during flare-ups.  Muscle strength testing was normal and there was no atrophy.  The examiner indicated that there was no history of recurrent subluxation, lateral instability, or recurrent effusion in the left knee and, as such, joint stability tests were deemed not indicated.  The Veteran reported frequent episodes of locking, pain, and effusion.  He also noted regular use of a cane or walker, depending on the severity of knee pain.  The examiner determined that due to severe arthritis, running, jumping, and climbing stairs would be nearly impossible without causing severe pain and hardship.  

The Board notes at the outset that although some of the VA examinations did not discuss the additional requirements outlined in Correia or provide limitation of motion after repeated use over time or during flare-ups in terms of degrees of motion, the Veteran himself has provided sufficient information regarding the limitation of his activities from which to extrapolate the extent and severity of his left knee disability.  His own depictions of the symptomology and practical effects of his condition provide an adequate basis upon which to evaluate the disability.  For instance, he has stated that he experiences increased pain and swelling with prolonged bending, standing, walking on uneven terrain, going up and down steps, and running. This suggests that the extremes of his disability occur with active motion and weight-bearing; as such, range of motion testing with active motion and weight-bearing such as captured at the examinations likely best reflects the extent and severity of the condition.  

Additionally, the Board finds that the most recent October 2019 VA examination is adequate to determine the current nature, extent, and severity of the Veteran’s left knee disability.  The requirements of DeLuca, Correia, and Sharp were all addressed by the examiner and the Veteran’s own descriptions of his limitations were taken into account in determining functional impact and additional loss in terms of range of motion with repetitive use over time and during flare-ups.  DeLuca v. Brown, 8 Vet. App. at 202; Correia v. McDonald, 28 Vet. App. at 158; Sharp v. Shulkin, 29 Vet. App. at 32.  Notably, the flare-ups described by the Veteran were identical during the January 2018 and October 2019 examinations and, thus, the estimates provided during the October 2019 examination regarding additional loss of motion during repetitive use testing and flare-ups will be applied retrospectively to the January 2018 examination.  Therefore, the Board finds that the examination results, along with the other medical evidence of record, provide an adequate basis upon which to evaluate the left knee disability.

a)	A rating in excess of 20 percent for left knee internal derangement is denied.

The Board finds that a rating in excess of 20 percent under the criteria of DC 5257 is not warranted at any time during the appeal period, i.e., since the date of receipt of the January 2007 increased rating claim.

By way of background, the Board notes that the 20 percent rating awarded under DC 5257 was granted based on the findings of a January 2000 VA examination wherein the left knee was manifested by a positive Lachman’s sign of 2 mm and “strongly positive” Zohlen sign, with additional findings of enlarged joint contour, elongated medial collateral ligament, and severe patellar crepitation. The examiner also noted medial and lateral joint line tenderness to palpation and pressure, painful medial rotary movements, and massive friction and pain with displacement of the patella on a sliding base. There was, however, no evidence of swelling or palpable effusion at that time. The Regional Office determined that the evidence from this examination showed moderate instability as contemplated by a 20 percent rating under DC 5257. See August 2000 rating decision. 

During the current appeal period, the Veteran has reported experiencing giving way and buckling in the left knee and, while he has repeatedly reported that the giving way occurred occasionally and depending on the frequency of his walking, he testified during the February 2010 hearing that the left knee felt unstable every day and required the use of a brace daily. See e.g., VA examinations dated February 2008 and September 2008; May 2018 VA treatment record. 

Indeed, the evidence reflects that the Veteran was prescribed a knee brace and cane in part to aid in his stability. Nevertheless, objective evidence of instability is not reflected during the appeal period, as joint, ligament, and meniscus stability tests have consistently been normal during clinical evaluation. In this regard, the Board notes that, in November 2007, there was questionable McMurray’s sign and the Veteran experienced discomfort during varus/valgus testing in February and September 2008; however, the November 2007 examiner stated there was no instability at that time and, in February and July 2008, drawers, Lachman’s, and varus/valgus tests did not reveal any instability. Indeed, other than noted above, the Veteran’s ligaments were stable on laxity and stability tests conducted throughout the appeal period. See e.g., June 2007 private treatment record; VA examinations dated May 2009, October 2015, January 2018, and October 2019.  

In this regard, the Board notes that there is no evidence showing any tears or abnormal findings in the left knee ligaments or meniscus. In October 2008, a clinician noted that there may be a possible left knee meniscal tear; however, an April 2010 MRI confirmed there were no tears in the meniscus or ligaments. See VA treatment records dated October 2008 and April 2010.  

In addition to complaints of giving way, buckling, and instability in the left knee joint, the Veteran has also described catching, locking, popping, and grinding in the left knee. See e.g., February 2007 VA treatment record; VA examinations dated February 2008, September 2008, January 2018, and October 2019. There has also been occasional findings of effusion in the left knee joint. See VA treatment records dated July 2008, December 2009, June 2010, and May 2019. 

In evaluating the Veteran’s left knee under DC 5257, the Board finds probative that, despite his reports of giving way, buckling, and instability, there has been no objective evidence of instability during joint, ligament, and meniscus stability tests at any point during the appeal period. Indeed, while there was objective evidence of instability and laxity (as well as pain and crepitus with rotary and other movement of the patella) when the 20 percent rating for moderate instability was granted in August 2000, there has been no such objective evidence during the appeal period to support a finding of moderate instability. Nevertheless, the Veteran’s subjective reports of instability have remained constant, as have his complaints of popping and grinding with additional complaints of catching and locking and occasional evidence of effusion in the left knee joint. 

In this regard, the Board notes that frequent episodes of locking, pain, and effusion are contemplated by DC 5258, which evaluates dislocated semilunar cartilage and that, in January 2018, the VA examiner attributed the Veteran’s reports of locking, pain and effusion to his semilunar cartilage given his description and the physical findings. See January 2018 VA examination report. However, the January 2018 VA examiner did not conduct stability tests at that time and, as noted, imaging of the left knee has confirmed there is no meniscus or ligament tear and stability tests have revealed no laxity in the left knee joint. Therefore, the opinion provided by the January 2018 VA examiner in this regard is outweighed by the other evidence of record and is not afforded any probative value. 

Accordingly, the Board finds that the preponderance of the evidence does not reveal dislocated or impairment of the semilunar cartilage to warrant evaluation under DC 5258 and that the reports of locking, pain and effusion in the left knee joint are adequately contemplated by the 20 percent rating assigned under DC 5257. 

As noted, there is no objective evidence of instability or laxity in the left knee to support a finding of moderate or severe instability under DC 5257 but, given the Veteran’s continued reports of instability, giving way, crepitus (popping/grinding), catching, and locking, as well as the occasional evidence of effusion in the joint, the Board finds these symptoms more nearly approximate and result in moderate instability as contemplated by the 20 percent rating, but no higher, under DC 5257. 

The Board reiterates that, without any objective or clinical evidence of instability or laxity in the left knee joint during the appeal period, a finding of severe instability to warrant a higher, 30 percent rating under DC 5257 is not established. Similarly, the Board finds that, without evidence of dislocated or abnormality of the semilunar cartilage in the left knee, a separate rating under DC 5258 is not appropriate in this case.

 

b)	A rating in excess of 10 percent for left knee degenerative arthritis is denied prior to January 19, 2018

c)	From January 19, 2018, a 50 percent rating, but no higher, for left knee degenerative arthritis, is granted

As noted, the Veteran’s left knee degenerative arthritis is rated 10 percent disabling under DC 5003 until October 17, 2019, when a 50 percent rating is assigned for internal derangement with degenerative arthritis under DC 5003-5261. 

In the June 2020 rating decision, the AOJ granted a 50 percent rating under the criteria of DC 5261 on the basis of extension limited to 45 degrees or more, x-ray evidence of degenerative arthritis, and dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion, based on the results of the October 17, 2019 VA examination.  Further, as recognized by the AOJ, the left knee resulted in frequent episodes of locking, pain, and effusion, which warrants a 20 percent rating under DC 5258, which appears to have been combined with limited extension into a 50 percent rating under DC 5261.  Unfortunately, combining ratings this way is not consistent with the criteria of the rating schedule and, as noted above, the evidence of locking, pain, and effusion are contemplated by the 20 percent rating assigned under DC 5257 for moderate instability. 

Turning to the manifestations of arthritis in the left knee joint, the Board notes that the 10 percent rating awarded under DC 5003 was based upon painful, limited motion that did not meet the criteria for a compensable rating for limitation of flexion or extension under DCs 5260 and 5261.  

In this regard, the pertinent evidence reflects that the Veteran has demonstrated normal extension to zero degrees throughout the appeal period, while his flexion has been limited to no less than 110 degrees as a result of pain, except for one occasion in December 2009, when his flexion was limited to 90 degrees. See e.g., December 2009 VA treatment record; VA examinations dated November 2007 and March 2010.  The Board acknowledges the objective evidence of pain while demonstrating active and passive range of motion during several examinations, in addition to the Veteran’s lay reports of increased pain with various activities. Notably, the Veteran reported having flare-ups during the VA examinations conducted in February and September 2008, October 2015, January 2018 and October 2019 wherein he variously described as increased pain, popping, and locking with excess work and prolonged bending, standing, walking, and running and for which he uses ice packs. See e.g., VA examinations dated February 2008, September 2008, October 2015, January 2018, and October 2019. 

The October 2015 VA examiner estimated the Veteran’s pain would limit his functional ability during flare-ups and with repetitive use over time to zero degrees in extension and 135 degrees in flexion. However, the October 2019 VA examiner estimated that pain and fatigue would limit his functional ability after repetitive use over time to 5 degrees in extension and 135 degrees in flexion but, during flare-ups, he estimated limitation to 70 degrees in extension and 130 degrees in flexion.

Accordingly, even when considering pain, fatigability, and other factors, including during flare-ups or with repetitive use, the Board notes the Veteran’s flexion has been limited to no less than 90 degrees, which does not warrant a compensable rating under DC 5260 at any point during the appeal period. 

With respect to extension, the evidence shows that, even when considering pain, fatigability, and other factors, including during flare-ups and with repetitive use, the Veteran was able to demonstrate normal extension to zero degrees until October 2019 when the VA examiner estimated a limitation to 70 degrees of pain due to pain and fatigue. However, as noted, the estimates provided during the October 2019 examination regarding additional loss of motion during repetitive use testing and flare-ups will be applied retrospectively to the January 2018 examination, as the flare-ups described by the Veteran were identical during the January 2018 and October 2019 examinations.

Therefore, given the evidence of extension limited to 70 degrees, i.e., 45 degrees or more, the Board finds a 50 percent rating is warranted for limitation of extension under DC 5260, from January 12, 2018, but no earlier. As a 50 percent rating is the highest schedular rating for limitation of extension of the leg, there is no basis to award a higher evaluation. 

As noted, the Veteran consistently demonstrated normal extension to zero degrees prior to that date and, as such, a compensable rating, to include a rating higher than 10 percent, is not warranted under DC 5260. However, because the Veteran was noted to demonstrate painful motion in the left knee from the date of claim to January 2018, the 10 percent rating assigned under DC 5003 remains appropriate.

A 10 percent rating is the maximum evaluation available to the Veteran under the criteria of DC 5003, as there is no evidence dated prior to January 2018 showing the left knee disability involved two or more joints and were manifested by incapacitating exacerbations.  As such, a rating in excess of 10 percent would not be warranted under DC 5003 prior to January 12, 2018.

The Board has considered whether alternative or additional ratings are warranted under other diagnostic codes pertaining to the left knee.  There is, however, no evidence of ankylosis, nonunion or malunion of the tibia and fibula, or genu recurvatum warranting rating under DC 5256, 5262, or 5263.  

In summary, the Board finds the preponderance of the evidence is against the grant of a rating in excess of 10 percent for left knee degenerative arthritis; however, from January 12, 2018, a 50 percent rating is warranted for left knee limitation of extension. 

Scars

In the January 2008 rating decision on appeal, the RO continued a 10 percent rating assigned for service-connected symptomatic scar on the right knee which was evaluated under DC 7804. The Board notes that the scars on the right knee were residual scars from the meniscectomy performed during service. The Veteran appealed the RO’s determination as to the rating assigned to his right knee scars and this appeal ensued.

During the pendency of the appeal, the RO issued an October 2015 rating decision wherein it continued the 10 percent rating for the service-connected symptomatic right knee scar but awarded a separate 10 percent rating for a symptomatic scar on the right lower extremity associated with right knee total arthroplasty under DC 7804, effective February 28, 2008. As indicated, the separate 10 percent rating was assigned for the residual scars from the right knee total replacement performed in February 2008; however, the RO also granted another separate noncompensable (0 percent) rating for surgical scars of the right knee, effective February 28, 2008, under DC 7802. 

Thereafter, in a June 2020 rating decision, the RO recharacterized the service-connected symptomatic scars on the right lower extremity as right knee painful scars and assigned a higher, single 30 percent rating from January 8, 2018 under DC 7804. However, the RO continued the noncompensable rating for service-connected surgical scars of the right knee.   

The Board will proceed to evaluate whether a higher rating is warranted for the Veteran’s right knee scars at any point during the relevant period, i.e., since receipt of his January 2007 increased rating claim. 

Scars in general are evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.118, DC 7800-7805.  The Board notes that the rating criteria for scars were amended on August 30, 2002, October 23, 2008 and August 13, 2018. Generally, in a claim for an increased rating, the Board considers both the former and current criteria where the rating criteria are amended during the course of an appeal. However, the amendments to the rating criteria in 2002 occurred before the Veteran filed the increased rating claim from which this appeal arises. Therefore, the rating criteria in effect prior to August 2002 will not be addressed in the present decision.

The amended regulations effective October 2008 are generally only applicable to claims received on or after October 23, 2008, or if the claimant expressly requests consideration under the new criteria, which has not been done in this case. However, the record reflects that the RO has considered the Veteran’s right knee scars under the post-2008 criteria.  See e.g., October 2015 rating decision. 

Therefore, the Board will consider the Veteran’s residual scar disability under the criteria in effect from August 2002, October 2008, and August 2018 although the revised post-2008 and post-2018 criteria will not be applied to the time period prior to the effective date of the changes, as the revisions are not intended to have a retroactive effect. In other words, the amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change.  However, the old regulations will be considered for the periods both before and after the change was made.  See VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003).

Under the rating criteria in effect from August 2002, a 10 percent rating is warranted for scars covering an area of 144 square inches (929 sq. cm.) or greater where superficial and without resulting limited motion; a superficial, unstable scar (characterized by frequent loss of skin covering the scar); or a superficial scar that is painful on examination. For scars other than on the head, face, or neck, where such are deep or cause limited motion, a 10 percent rating is warranted when in an area exceeding six square inches (39 sq. cm), a 20 percent rating is warranted when in an area exceeding 12 square inches (77 sq. cm), a 30 percent rating is warranted when in an area exceeding 72 square inches (465 sq. cm), and a 40 percent rating is warranted when in an area exceeding 144 square inches (929 sq. cm). See 38 C.F.R. § 4.118, DCs 7801 to 7804 (2007). Higher ratings were available Otherwise, scars will be rated on the limitation of motion of the affected part, under DC 7805.

Under the post-October 2008 criteria, DC 7800 contemplates scars and other disfigurement of the head, face, or neck due to burns or other causes.  As the Veteran’s service-connected scars are located on his right knee, rating the disability under DC 7800 is not warranted.  

DC 7801 provides ratings for burn or other scars (not on the head, face, or neck) that are deep and nonlinear.  Deep and nonlinear scars involving an area or areas of at least 6 square inches (39 sq. cm) but less than 12 square inches (77 sq. cm.) are rated 10 percent.  Scars in an area or areas of at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm.) are rated 20 percent.  Scars in an area or areas of at least 72 square inches (465 sq. cm.) but less than 144 square inches (929 sq. cm.) are rated 30 percent.  Scars in an area or areas of 144 square inches (929 sq. cm.) or greater are rated 40 percent.  Note (1) specifies that a deep scar is one associated with underlying soft tissue damage.  Note (2) specifies that if multiple qualifying scars are present, or if a single qualifying scar affects more than one extremity, or a single qualifying scar affects one or more extremities and either the anterior portion or posterior portion of the trunk, or both, or a single qualifying scar affects both the anterior portion and the posterior portion of the trunk, assign a separate evaluation for each affected extremity based on the total area of the qualifying scars that affect that extremity, assign a separate evaluation based on the total area of the qualifying scars that affect the anterior portion of the trunk, and assign a separate evaluation based on the total area of the qualifying scars that affect the posterior portion of the trunk.  The midaxillary line on each side separates the anterior and posterior portions of the trunk.  Combine the separate evaluations under § 4.25.  Qualifying scars are scars that are nonlinear, deep, and are not located on the head, face, or neck. 

DC 7802 provides a maximum 10 percent rating for a burn or other scars that are superficial and nonlinear involving an area of 144 square inches (929 sq. cm) or greater.  Note (1) provides that a superficial scar is one not associated with underlying soft tissue damage.  Note (2) specifies that if multiple qualifying scars are present, or if a single qualifying scar affects more than one extremity, or a single qualifying scar affects one or more extremities and either the anterior portion or posterior portion of the trunk, or both, or a single qualifying scar affects both the anterior portion and the posterior portion of the trunk, assign a separate evaluation for each affected extremity based on the total area of the qualifying scars that affect that extremity, assign a separate evaluation based on the total area of the qualifying scars that affect the anterior portion of the trunk, and assign a separate evaluation based on the total area of the qualifying scars that affect the posterior portion of the trunk.  The midaxillary line on each side separates the anterior and posterior portions of the trunk.  Combine the separate evaluations under §4.25.  Qualifying scars are scars that are nonlinear, superficial, and are not located on the head, face, or neck. 

DC 7804 provides a 10 percent rating for one or two scars that are unstable or painful, a 20 percent rating for three or four scars that are unstable or painful, and a 30 percent rating for five or more scars that are unstable or painful.  Note (1) provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar.  Note (2) provides that if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars.  Note (3) provides that scars evaluated under Codes 7800, 7801, 7802, or 7805 may also receive an evaluation under DC 7804, when applicable. 

DC 7805 provides that any other scars (including linear scars) and other disabling effects of scars should be evaluated if not considered in a rating provided under diagnostic codes 7800, 7801, 7802, and 7804 under an appropriate diagnostic code.  

Under the current/amended criteria which became effective on August 13, 2018, DC 7800 and 7804 were not changed. 

DC 7801 now provides for burn scars or scars due to other causes, not of the head, face, or neck that are associated with underlying soft tissue damage.  The rating criteria for this code remained the same.  But Note (1) now reads as follows: For the purposes of DC 7801 and 7802, the six (6) zones of the body are defined as each extremity, anterior trunk, and posterior trunk.  The midaxillary line divides the anterior trunk from the posterior trunk.  Note (2) now reads as follows: A separate evaluation may be assigned for each affected zone of the body.  Combine the separate evaluations under § 4.25.  Alternatively, if a higher evaluation would result from adding the areas affected from multiple zones of the body, a single evaluation may also be assigned under this diagnostic code. 

Under the post-2018 criteria, DC 7802 provides for burn scars or scars due to other causes, not of the head, face, or neck, that are not associated with underlying soft tissue damage.  The rating criteria remained the same.  But Note (1) now reads: For the purposes of DC 7801 and 7802, the six (6) zones of the body are defined as each extremity, anterior trunk, and posterior trunk.  The midaxillary line divides the anterior trunk from the posterior trunk. Note (2) now reads:  A separate evaluation may be assigned for each affected zone of the body.  Combine the separate evaluations under § 4.25.  Alternatively, if a higher evaluation would result from adding the areas affected from multiple zones of the body, a single evaluation may also be assigned under this diagnostic code. 

DC 7805 was amended in that the parentheses which noted that linear scars were included was removed.  The title now provides for scars, other and other effects of scars evaluated under diagnostic codes 7800, 7801, 7802, and 7804.  The rating criteria remained the same. 

In every instance where the schedule does not provide a 0 percent rating for a diagnostic code, a noncompensable (0 percent) rating will be assigned when the requirements for a compensable rating are not met.  38 C.F.R. § 4.31.

Turning to the evidence of record, the Veteran underwent a VA examination in November 2007.  He reported no current symptoms from his right knee scars.  Upon observation, he had one vertical scar measuring 11 cm by 0.8 cm on the medial aspect of the right knee.  It was noted to be superficial, not tender, and not painful to palpation.  There was no adherence to the underlying tissue.  The texture was smooth and there was no ulceration or skin breakdown at the scar site.  There was insignificant depression of the scar and insignificant loss of underlying scar at the scar site.  There was no inflammation or edema at the scar site.  It was slightly more pigmented than the surrounding skin, causing minimal disfigurement.  A second, horizontal scar was measured at 7 cm by 0.5 cm on the lateral aspect of the right knee.  It was a superficial scar that was not tender or painful to palpation.  There was no adherence to the underlying tissue.  The texture was smooth.  There was no ulceration or skin breakdown at the scar site, no elevation or depression of the scar, no loss of underlying tissue at the scar site, no inflammation, no edema, and no keloid formation at the scar site.  The scar was slightly more pigmented than the surrounding skin, resulting in insignificant disfigurement.  The examiner determined that the scars were asymptomatic and healed.  

Another VA examination was conducted in February 2008.  Three scars were observed on the medial side, lateral and perpendicular to the knee, and lateral and superior to the kneecap.  The third scar was related to a drainage site and subsequent injection site.  The Veteran reported current symptoms of constant daily pain.  He stated that clothes rubbing the right leg elicited pain in the location of all three scars.  He wore shorts when he got home from work because of this, being relatively pain free when doing so.  He described the pain as 9 out of 10, like “pins and needles.”  The first scar was 11 cm by 1.5 cm.  The Veteran reported pain to the touch in the scar, but the examiner noted that the pain seemed disproportionate.  There was no adherence to underlying tissue.  Texture was irregular, atrophic, and shiny.  The scar was stable without loss of covering of the skin over the scar.  There was no elevation of the surface contour of the scar on palpation but there was depression of the surface contour of the scar on palpation.  The scar was superficial with no underlying soft tissue damage and it was not deep.  There was no inflammation, edema, or keloid formation.  The color of the scar was hyperpigmented.  There was no area of induration or inflexibility of skin in the area of the scar and no limitation of motion or function.  The scar was not disfiguring and was cosmetically benign.  

The second scar was measured at 9 cm by 1 cm.  The Veteran reported pain to touch but the examiner stated that the pain was disproportionate.  There was no adherence to underlying tissue.  Texture of the skin was irregular, atrophic, and shiny.  The scar was noted to be stable without loss of covering of skin over the scar.  The surface contour of the scar was not elevated but it was depressed.  The scar was superficial without underlying soft tissue damage and was not deep.  Inflammation, edema, and keloid formation were absent.  The color of the scar compared to normal areas of the skin was noted to be hypopigmented.  There was no area of induration and inflexibility of skin and no limitation of motion or function.  The scar was not disfiguring and was cosmetically benign.  The third scar was small and oval, measuring 2 cm by 1 cm.  The Veteran reported pain to touch but the examiner stated that it seemed disproportionate.  There was no adherence to underlying tissue.  Texture was irregular, atrophic, and shiny.  The scar was stable without loss of covering of the skin over the scar.  There was elevation of the surface contour of the scar on palpation but no depression of the surface contour.  The scar was superficial with no underlying soft tissue damage and it was not deep.  There was no inflammation, edema, or keloid formation.  The color of the scar was hypopigmented.  There was no area of induration or inflexibility of skin in the area of the scar and no limitation of motion or function.  The scar was not disfiguring and was cosmetically benign.  

In February 2008, the Veteran underwent a total right knee replacement surgery.  Another VA examination was conducted in September 2008.  Four scars were observed, and the Veteran described symptoms of tenderness and irritation in all four scars.  The first scar was long and linear, extending from the area just superior to the right patella and extending inferiorly over the skin over the top of the right patella ending inferior to the patella.  It measured 19.4 cm by 3.0 cm.  There was pain and tenderness in the scar on examination.  There was no adherence to underlying tissue and the texture of the skin was smooth.  The scar was not unstable with no frequent loss of covering of the skin.  There was slight elevation of the surface contour of the scar.  The scar was not superficial but instead was deep with underlying soft tissue loss and damage due to surgery that measured 19.4 cm by 0.4 cm.  There was no inflammation, edema, or keloid formation.  The scar was purplish-pink in color compared to adjacent normal areas of skin.  There were no areas of induration or inflexibility of skin and no limitation of motion or other function.  The Veteran considered the scar disfiguring.  The second scar was superolateral to the patella and measured 0.7 cm by 0.5 cm.  There was pain and tenderness in the scar on examination.  There was no adherence to underlying tissue and smooth texture of skin.  The scar was not unstable with no frequent loss of covering of the skin.  There was slight elevation of the surface contour of the scar.  The scar was not superficial but instead was deep with underlying soft tissue loss and damage due to surgery that measured 0.7 cm by 0.5 cm.  There was no inflammation, edema, or keloid formation.  The scar was hyperpigmented compared to adjacent normal areas of skin.  There were no areas of induration or inflexibility of skin and no limitation of motion or other function.  The Veteran considered the scar disfiguring.  

The third scar was located superomedial to the patella and measured 0.8 cm by 0.8 cm.  There was slight pain and tenderness in the scar on examination.  There was no adherence to underlying tissue and smooth texture of skin.  The scar was not unstable with no frequent loss of covering of the skin.  There was no elevation or depression of the surface contour of the scar.  The scar was not superficial but instead was deep with underlying soft tissue loss and damage that measured 0.8 cm by 0.8 cm.  There was no inflammation, edema, or keloid formation.  The scar was hyperpigmented compared to adjacent normal areas of skin.  There were no areas of induration or inflexibility of skin and no limitation of motion or other function.  The Veteran considered the scar disfiguring.  The fourth scar was located just superomedial to the right patella, closer to the patella, and measured 1.2 cm by 1.0 cm.  There was pain and tenderness in the scar on examination.  There was no adherence to underlying tissue and smooth texture of skin.  The scar was not unstable with no frequent loss of covering of the skin.  There was slight elevation of the surface contour of the scar.  The scar was not superficial but instead was deep with underlying soft tissue loss and damage due to surgery that measured 0.4 cm by 1.0 cm.  There was no inflammation, edema, or keloid formation.  The scar was a ring of hyperpigmentation surrounding a hypopigmented central region.  The hyperpigmented region measured 1.2 cm by 1.0 cm except for the hypopigmented region measuring 0.4 cm by 0.9 cm.  There were no areas of induration or inflexibility of skin and no limitation of motion or other function.  The Veteran considered the scar disfiguring.  

A February 2009 VA treatment record reflected an intact old surgical scar on the right knee.  A May 2009 treatment record noted that the scar from the Veteran’s right knee replacement surgery was large.  

The Veteran underwent another VA examination in May 2009.  Three scars were observed on the right knee.  The first scar measured 25 cm by 4 mm, extending from the middle leg, over the knee, to the lower thigh.  The second scar measured 11 cm by 2 mm on the medial aspect of the right knee.  The third scar measured 7 cm by 2 mm on the lateral aspect of the right knee.  The examiner noted that all scars were slightly raised and darker than his normal skin.  The scars were non-tender.  There was adherence to underlying tissue but no underlying soft tissue damage or skin ulceration or breakdown of the skin.  Limitation of motion of the right knee was partly due to his cars but mainly due to underlying joint disease.  

At the February 2010 hearing, the Veteran testified that he had seven scars on his right knee that were painful and limited motion.  

Another VA examination was conducted in October 2015.  Two scars were observed on the right knee.  The Veteran reported that they were sensitive to touch and that his pants rubbing on the scars was irritating.  The scars were not painful or unstable.  The first scar measured 23 cm by 0.8 cm and the second scar measured 10.0 cm by 0.8 cm.  Both were well-healed, nontender, and stable.  The scars did not result in limitation of function or other pertinent physical findings.  The examiner noted that the scars were tender to touch but did not affect function.  Internal scarring was affecting the knee but not from skin tightness.  

The Veteran underwent another VA examination in January 2018.  The examiner indicated that the Veteran had 6 painful scars, noting that they were hypersensitive, described as “needles” when touched.  None of the scars were unstable.  All of the scars were linear.  The first scar was vertical and located in the anterior knee.  It measured 24.0 cm in length.  The second scar was located in the medial oblique knee and measured 10.0 cm in length.  The third scar was located in the lateral oblique knee and measured 5.0 cm in length.  The fourth scar was located in the superior lateral knee and measured 1.0 cm in length.  The fifth scar was located in the central knee and measured 1.0 cm in length.  The sixth scar was located in the superior medial knee and measured 0.5 cm in length.  All scars were tender to palpation.  

In a May 2019 VA treatment record, it was noted that the Veteran’s right knee scars were well-approximated to well-healed.

A VA knee examination was conducted in October 2019.  The examiner indicated that the Veteran had scars related to his right knee condition and that there was objective evidence that any of the scars are painful, unstable, or had a total area equal to or greater than 39 sq. cm.; however, no further information or examination was provided or conducted at that time. 

The foregoing evidence provides varying information as to the number and size of the Veteran’s right knee scars; however, after reviewing the evidence, the Board finds the following summary represents an overall picture of his right knee scars, with all reasonable doubt as to the number, size, and symptomatology manifested by the scars resolved in favor of the Veteran. 

The evidence reflects that the Veteran has three residual scars on his right knee from the in-service meniscectomy. One scar is located on the medial aspect of the knee and measures approximately 11cm by .8cm. The second scar is located on the lateral aspect of the knee and measures approximately 9cm by 2 cm. See VA examinations dated November 2007 and February 2008.  The February 2008 VA examiner also noted a third small scar on the lateral/superior aspect of the knee that represented a drainage and injection site and measured 2cm by 1cm. During the November 2007 and February 2008 VA examinations, the meniscectomy scars were described as superficial and stable.  The scars were not tender during the November 2007 examination, but they were painful to touch during the February 2008 examination.  

The evidence reflects that the Veteran has four residual scars from the right knee arthroscopy/replacement performed in February 2008. The first scar is located superior to the right patella extending inferiorly (or over the right knee to the thigh) and measures approximately 25 by 3 cm. The second scar is located superolateral to the patella and measures approximately .7 by .5 cm. The third scar is located superomedial to the patella and measures approximately .8cm by .8cm. The fourth scar is also located superomedial to the patella but closer to the patella than the third scar and measures approximately 1.2 cm by 1 cm. See VA examinations dated September 2008, May 2009, and January 2018.  During the September 2008 VA examination, the right knee arthroscopy scars were described as linear, not unstable, and deep and were manifest by pain and tenderness. The September 2008 VA examiner also noted old healed surgical scars on the medial and lateral aspect of the knee that were manifest by marked tenderness, which the Board finds likely represents the meniscectomy scars. The examiner noted that one scar measured 9 inches long, but no further measurements were provided. See Id.  

Subsequent VA examinations provide varying information regarding the right knee scars, but the Board finds that none of them provide information that is deemed more probative than the findings noted above. In this regard, the Board has reviewed the evidence and attempted to reconcile the findings in each VA examination to determine which scars were described and, as noted, has resolved all reasonable doubt in favor of the Veteran to resolve any doubt as to the number, size, and symptoms associated with each scar.

For example, during the May 2009 VA examination, the three right knee scars described were reported as nontender, without underlying soft tissue damage (i.e., superficial), and partially responsible for limitation of motion of the knee joint. However, the evidence reflects that, following the February 2008 surgery, the Veteran consistently reported that each of his right knee scars were painful or, at a minimum, tender to touch or palpation. See e.g., February 2010 Board hearing transcript; VA examinations dated October 2015 and January 2018,

a)	A rating in excess of 10 percent prior to February 28, 2008, for three right knee painful scars is denied.

Based on the foregoing evidence, the Board finds that a rating in excess of 10 percent prior to February 28, 2008, for right knee painful scars under DC 7804 is not warranted.  

As discussed above, the Board has resolved all doubt in favor of the Veteran and finds that, prior to the February 2008 right total knee arthroscopy, he had three scars on his right knee that were superficial and painful. However, the criteria in effect prior to October 2008 only provides for a single 10 percent rating for scars whether they were superficial and without resulting limited motion, unstable, or painful on examination.  

While a rating higher than 20 percent is available under the pre-2008 criteria of DC 7801, the Veteran’s residual scars from the in-service meniscectomy were not described as deep and do not cover an area exceeding 12 square inches (77 sq. cm) to warrant a higher, 20 percent rating. 

Further, while the pre-2008 criteria under DC 7805 provides for scars to be rated on limitation of motion, the evidence dated prior to February 2008 does not reflect that the residual scars from the in-service meniscectomy resulted in any limitation of motion in the right knee joint. 

As a final matter, the Board reiterates that the amendments made to the rating criteria in October 23, 2008 and August 13, 2018 cannot be applied to the period dated prior to February 2008, as they can be applied only for periods from the effective date of the regulatory changes.  

Therefore, the criteria for a rating in excess of 10 percent have not been met prior to February 28, 2008.

b)	A 30 percent rating, but no more for seven right knee painful scars is granted, from October 23, 2008, but no earlier.

As discussed above, the Board has resolved all doubt in favor of the Veteran and finds that, following the February 28, 2008 right knee surgery, he had 7 total scars, including the three residual scars from the in-service meniscectomy and four residual scars from the right knee arthroscopy/replacement performed in February 2008. The evidence reflects that the right knee arthroscopy scars are generally described as linear, not unstable, and deep and are manifest by pain and tenderness. In fact, the evidence reflects that, following the February 2008 surgery, the Veteran consistently reported that each of his right knee scars were painful or, at a minimum, tender to touch or palpation.

In evaluating this claim, the Board again notes that amendments made to the rating criteria for evaluating painful or unstable scars under DC 7804 can only be applied for periods form the effective date of the regulatory change. Therefore, the Board finds that a 30 percent rating is warranted for seven painful right knee scars under DC 7804, effective October 23, 2008, but no earlier. 

Indeed, while the Board finds there is evidence of seven painful right knee scars following the February 2008 surgery, the rating criteria that allows for a higher rating based on the number of painful or unstable scars was not made effective until October 23, 2008. Therefore, the higher rating is not available prior to that date. 

The Board also notes that a rating higher than 30 percent is not warranted from October 23, 2008 under any relevant rating criteria. As an initial matter, the Board notes that the evidence does not reflect that any of the Veteran’s painful scars are also unstable to warrant the addition of 10 or more percent to the 30 percent rating under Note (2) of the current criteria of DC 7804.    

The Board again notes that the criteria in effect prior to October 2008 only provides for a single 10 percent rating for scars whether they were superficial and without resulting limited motion, unstable, or painful on examination.  While a rating higher than 30 percent is available under the pre-2008 criteria of DC 7801 and the Veteran’s residual scars from the total arthroscopy/replacement are described as deep, the evidence does not show that they cover an area 144 square inches (929 sq. cm.) to warrant a higher, 40 percent rating. 

Further, while the pre-2008 criteria under DC 7805 provides for scars to be rated on limitation of motion and the May 2009 VA examiner noted that limitation of motion in the right knee is partially due to the scars, the Board notes that assigning a rating based on limitation of motion at any point after February 28, 2008 would amount to pyramiding, which is prohibited, as the temporary total rating assigned from that date and the 60 percent rating assigned from December 1, 2009 under DC 5055 from that date contemplate the total impairment caused by the right knee arthroscopy/replacement performed in February 2008 and the chronic residuals in the right knee thereafter, including severe painful and limited motion reflected in the record. 

The Board also finds that the criteria under Diagnostic Codes 7801 through 7802 and 7805, both prior to and from August 13, 2018, are inapplicable.  Indeed, while the Veteran’s four residual scars from the total arthroscopy/replacement are generally described as associated with underlying soft tissue damage and the three residual scars from the in-service meniscectomy are generally described as not associated with underlying soft tissue damage, none of them cover an area or areas of 144 square inches (929 sq. cm.) or greater to warrant a rating in excess of 30 percent. 

Finally, the evidence of record shows there are no other disabling effects of the seven painful right knee scars that are not considered in a rating provided under Diagnostic Codes 7800-04 as contemplated under both pre- and post- October 2008 and August 13, 2018. Therefore, DC 7805 is not applicable in this case. 

The Board acknowledges that the Veteran believes that the disability on appeal has been more severe than the assigned disability rating reflects.  Moreover, the Veteran is competent to report observable symptoms, to include pain and resulting limitation of motion, and his reports are credible.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  However, the Board finds that the 30 percent rating assigned herein from October 23, 2008 contemplates the Veteran’s lay assertions and the findings reflected in the medical evidence of record. The Board also notes that the lay and medical evidence of record does not reflect that the Veteran’s seven painful scars are also unstable or cover an area exceeding 144 square inches (929 sq. cm.) to warrant a rating higher than 30 percent at any point since October 23, 2008. 

In conclusion, the Board finds that the preponderance of the evidence supports the grant of no more than a 30 percent rating for the Veteran’s service-connected seven right knee painful scars, from October 23, 2008, but no earlier. In making this determination, all reasonable doubt has been resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.

c)	An initial compensable rating for surgical scars of the right knee is denied.

As noted, during the pendency of the appeal, the RO granted a separate noncompensable (0 percent) rating for surgical scars of the right knee, effective February 28, 2008, under DC 7805. See October 2015 rating decision.

The basis of an additional separate rating for surgical scars of the right knee is not clear to the Board, as two ratings had been assigned for a symptomatic scars of the right knee related to the in-service meniscectomy and right knee arthroscopy/replacement performed in February 2008. 

Nevertheless, the Board finds that the ratings continued and assigned in the decision herein accurately reflect the severity and overall disability picture of the right knee scars reflected by the evidence of record, inclusive of the three residual meniscotomy scars and four residual arthroscopy scars. As noted, the evidence of record does not reflect any other disabling effects of the seven right knee scars that are not considered in a ratings provided under DCs 7800-05 as contemplated under both pre- and post- October 2008 and August 13, 2018. 

Therefore, the Board finds no basis to award a compensable rating for surgical scars of the right knee at any point during the appeal period under any potentially applicable rating criteria. 

Sternum

The Veteran was granted service connection for status post fractured sternum at a noncompensable rate under 38 C.F.R. § 4.72, DC 5299-5297.  DC 5299 indicates the disability is not listed in the rating schedule and the Veteran’s disability has been rated by analogy under a closely related disease or injury, DC 5297 pertaining to removal of ribs.  

Under DC 5297, a 10 percent rating is warranted where there has been the removal of one rib or the resection of two or more ribs without regeneration.  Higher ratings are warranted where multiple ribs are removed, up to a maximum rating of 50 percent where more than six ribs have been removed.

Turning to the evidence of record, in a June 2007 treatment record, the Veteran reported atypical chest pain.  His adenosine stress test demonstrated apical ischemia.  

The Veteran underwent a VA examination in November 2007 at which he reported intermittent and moderate pain in the mid-sternum, three times a week.  The pain lasted two to three minutes in duration.  He denied experiencing weakness, stiffness, swelling, heat, redness, drainage, or instability.  He took aspirin twice a day which was helpful with pain relief.  He denied flare-ups.  Aggravating factors were lifting more than 30 pounds and pushing.  There was no osteomyelitis.  Examination of the sternum revealed no evidence of deformity, angulation, false motion, shortening, intra-articular involvement, malunion, nonunion, loose motion, false joint, tenderness on palpation, or edema.  The diagnostic impression was a normal physical examination.  

Another VA examination was conducted in May 2009.  The course since the onset of the fractured sternum was noted to be stable.  There was no history of bone neoplasm or osteomyelitis, but there was inflammation.  The Veteran reported pain over the sternum.  There was no fracture site motion, no history of deformity, no fever, no general debility, the condition did not affect motion of the joint, and there were no flare-ups of bone or joint disease.  There was tenderness over the mid-sternum.  There was no palpable lump on the sternum.  The diagnosis was status post sternal fracture with occasional non-specific sternal chest pain and a tender spot on the mid-sternum.  It was noted that a recent cardiac evaluation did not show any significant cardiac condition.  

At May 2009 and June 2009 VA appointments, the Veteran’s sternum was normal upon inspection and palpation.  At the February 2010 hearing, he described always having pain in his chest and pain when he breathed in and out.  In May 2011, he reported chronic chest pain to clinicians, related to his sternum fracture.  In a January 2012 VA treatment record, it was noted that chest pain was likely sequela from his sternum fracture.  

The Veteran underwent another VA examination in January 2018.  He described severe chest pain.  The course of the condition was noted to be stable with intermittent sternal chest pain.  There were no episodes of osteomyelitis.  The only relevant symptom was noted to be pain and there were no flare-ups.  The examiner stated that the fractured sternum had no obvious residuals other than occasional chest pain.  However, the etiology of the intermittent pain was unknown/unable to be connected to the old fractured sternum.

VA treatment records throughout the appeal period also contain numerous denials of chest pain.

a)	A compensable rating for status post fractured sternum is denied.

Based on the foregoing, the Board finds that a compensable rating for the Veteran’s status post fractured sternum is not warranted.  Indeed, while the evidence shows the Veteran has endorsed intermittent pain as a residual condition of the previously fractured sternum, the evidence does not refect that his disability has involved resection or removal of a rib.  Therefore, the criteria for a compensable rating under DC 5297 have not been met at any time during the appeal period.  Further, there are no diagnostic codes that would more appropriately contemplate the Veteran’s residuals of intermittent pain.  As such, a compensable rating for status post fractured sternum is not warranted.

TDIU

The Board notes that the Veteran has indicated that his ability to maintain employment was affected by his service-connected disabilities.  The record reflects he was in receipt of a 100 percent schedular rating from February 28, 2008, for his right knee disability, in addition to SMC(s) on account of the 100 percent rated disability and additional service-connected disability independently ratable at 60 percent or more from July 8, 2009 to December 1, 2009.  He is in receipt of a combined schedular evaluation of 100 percent from December 1, 2009.  

SMC is available when, as the result of service-connected disability, a veteran suffers additional hardships above and beyond those contemplated under the Rating Schedule.  SMC is payable at the housebound rate where a veteran has a single service-connected disability rated as 100 percent and, in addition: (1) has a service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability, and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities.  38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i).

Although the total disability requirement must be met by a single disability, the 60 percent requirement may be met by applying the combined rating of the veteran’s remaining disabilities.  See Bradley v. Peake, 22 Vet. App. 280 (2008) (nothing that combined ratings to satisfy the second requirement but not the first).  Moreover, “section 1114(s) does not limit “a service-connected disability rated as total” to only a schedular rating of 100%, and the Secretary’s current regulation permits a TDIU rating based on a single disability to satisfy the statutory requirement of a total rating.”  Id. at 293.  

However, because TDIU is merely a rating, not an actual disability, and because it can be assigned based upon multiple service-connected disabilities, it does not always satisfy that element.  Rather, to qualify as a single disability rated as total, the Court held that an award of TDIU must be based on one service-connected disability standing alone.  See Buie v. Shinseki, 24 Vet. App. 242 (2010).  Nevertheless, the Court further held that regardless of how many disabilities were considered when TDIU was initially awarded, if any one of those conditions could warrant an award of TDIU standing alone, then the 100 percent rating for SMC is satisfied.  Id. at 250.  With respect to SMC(s) and TDIU, this means that the Board is obligated under Buie to assess whether a veteran’s TDIU could be supported by any one of his service-connected disabilities standing alone.  

Accordingly, the Board must consider whether the Veteran is entitled to TDIU based on all of his service-connected disabilities prior to February 28, 2008; whether he is entitled to TDIU based on his service-connected disabilities other than his right knee disability from February 28, 2008, to July 8, 2009, the date at which SMC was granted; and whether TDIU is warranted from December 1, 2009, the date at which SMC benefits ended, based on any one disability alone to the present, such that entitlement to SMC is warranted under 38 U.S.C. § 1114(s).     

A total disability rating for compensation purposes may be assigned where the schedular rating is less than total and where it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more.  38 C.F.R. § 4.16(a).  Consideration may be given to the Veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or to the impairment caused by nonservice-connected disabilities.  See 38 C.F.R. §§ 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993).

To meet the requirement of “one 60 percent disability” or “one 40 percent disability,” the following will be considered as one disability: (1) disability of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from one common etiology; (3) disabilities affecting a single body system; (4) multiple injuries incurred in action; and (5) multiple disabilities incurred as a prisoner of war.  Id.  

Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage.  Moore v. Derwinski, 1 Vet. App. 356 (1991).  Marginal employment may also be held to exist, on a facts-found basis (including, but not limited to, employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold.  38 C.F.R. § 4.16.

The term “substantially gainful occupation” is not defined in the rating schedule.  Rather, the Court in Ray v. Wilkie, found the phrase has two components: an economic one and a noneconomic one.  31 Vet. App. 58 (2019).  In assessing the veteran’s ability to secure and follow a substantially gainful occupation, the Board is to consider the veteran’s history, education, skill, and training as well as physical abilities and mental abilities required by the occupation at issue.  Id.  Such specific physical ability factors include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual.  Id.  Specific mental ability factors include memory, concentration, ability to adapt to change, handle workplace stress, getting along with coworkers, and demonstrating reliability and productivity.  Id.

Prior to February 28, 2008, as per this decision, the Veteran’s service-connected disabilities included a right knee internal derangement at 20 percent; right knee degenerative arthritis at 20 percent; a left knee internal derangement at 20 percent; left knee degenerative arthritis at 10 percent; right knee painful scars at 10 percent and status post fractured sternum at a noncompensable rate, for a combined evaluation of 60 percent.  Because the left knee and right knee scar disabilities are secondary to the right knee disability, they result from one common etiology.  As such, the ratings for the right and left knees and right scars combine to meet the requirement of one 60 percent disability.  As such, the schedular criteria for TDIU have been met prior to February 28, 2008.  

From February 28, 2008, the Veteran was in receipt of a 100 percent rating for right total knee arthroplasty; a 20 percent rating for left knee internal derangement; a 10 percent rating for left knee degenerative arthritis; a 10 percent rating for right knee painful scars; and a noncompensable rating for status post fractured sternum and right knee surgical scars.  A 10 percent rating for degenerative disc disease (DDD) of the lumbosacral spine was added effective May 21, 2008.  Additionally, the rating for painful scars was increased to 30 percent, per this decision, effective October 23, 2008.  The combined evaluation for the Veteran’s service-connected disabilities other than for his right knee was thus 40 percent from February 28, 2008, to October 23, 2008, and 60 percent from October 23, 2008, during the February 28, 2008, to July 8, 2009 period.  

From December 1, 2009, the Veteran’s service-connected disabilities included depression at 70 percent; right total knee arthroplasty at 60 percent; left knee internal derangement at 20 percent; left knee degenerative arthritis at 10 percent; right knee painful scars at 30 percent; DDD of the lumbosacral spine at 20 percent; and noncompensable ratings for status post fractured sternum, high blood pressure, anemia, neuropathy, and right knee surgical scars.  Additional ratings were added for degenerative joint disease (DJD) of the right hip at 10 percent, effective December 30, 2009; and sleep apnea at 0 percent effective January 28, 2010, and 50 percent effective March 10, 2010.  The rating for left knee degenerative arthritis was increased to 50 percent, per this decision, effective January 19, 2018.  As such, a combined evaluation of 100 percent was in effect from December 1, 2009. 

Concerning the economic component, the Veteran had a high school education and additional training in sports education.  His military occupational specialties were chemical operations specialist, personnel administrative specialist, and administrative specialist.  Post-service, he worked as a sports trainer and a counselor aide in youth sports.  He indicated on a VA Form 21-8940 Veteran’s Application for Increased Compensation Based on Unemployability, that he became too disabled to work on February 28, 2008.  He also identified elsewhere that his last date of work was February 26, 2008.  He described the duties of his occupation as a sports specialist to include setting up and participating in sporting programs (i.e., basketball, soccer, track and field, baseball, softball, football, tennis, golf fields, and facilities); repairing tractors, field equipment, weight equipment, and sporting equipment; ordering sporting equipment; preparing game schedules and transportation; attending meetings and conferences; and teaching physical fitness classes.  He stated that the job required him to lift at least 50 pounds and to load and unload equipment frequently.  

Concerning the noneconomic component, the Veteran was awarded Social Security Administration (SSA) disability benefits effective February 26, 2008, due to disorders of muscle, ligament, and fascia, and disorders of the back.  He reported that after reinjuring his right knee in May 2007, he was forced to take many sick days off of work and that his duties were changed to reduce his physical activities.  At a November 2007 VA examination, the Veteran reported that he was able to perform his occupation as a counselor’s aide with limitations.  He stated that he switched his daytime job to working at nighttime to avoid having to do physical exertion which increased his chest pain.  At a February 2008 VA examination, it was determined that the Veteran’s right knee disability would inhibit him from running activities or prolonged walking, especially due to instability.

 

a)	A TDIU is granted from December 1, 2009, but no earlier.  

From an economic perspective, the Veteran has the education, skills, work history, and training to perform a variety of suitable work, ranging from sports trainer and counselor aide to administrative work.  From a noneconomic perspective, while the Veteran’s service-connected disabilities caused impairment, the evidence does not show that the disabilities would preclude all such suitable work prior to February 28, 2008.  Based on his bilateral knee disabilities, it is unlikely that he could return to his prior occupation as a sports trainer.  However, he has an extensive work history that included counseling and administrative work which would not include physically taxing duties and would be largely involve sitting or other sedentary duties.

In Withers v. Wilkie, the Court noted that VA has not explicitly defined the meaning of “sedentary employment.”  Withers v. Wilkie, 30 Vet. App. 139 (2018).  Until VA provides such a definition, “the meaning and relevance of the term will have to be discerned on a case-by-case basis from the medical and lay evidence presented and in light of each veteran’s education, training, and work history.”  Id. at 149-150.  Here, the Veteran’s education, training, and work history demonstrated that he has the capacity to engage in sedentary occupations such as administrative work, equipment purchase and maintenance, and counseling.  

The Board considered the physical ability factors noted in Ray, to include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual.  See Ray, supra.  Although the evidence suggests that the Veteran can no longer perform the job requirements of a sports trainer, his limited ability to engage in heavy manual labor, prolonged standing and walking, and prolonged sitting would not preclude occupations which do not rely entirely on such activities.  Although he has described knee symptom flare-ups with prolonged sitting, the Veteran himself noted that his bilateral knee symptoms were aggravated with activity rather than inactivity.  As such, occupations requiring constant sitting (i.e. vehicle operator) would be precluded, while engaging in general office work or counseling might require, and would certainly not prevent, the Veteran from frequently getting up and taking breaks from a sitting position.  

The Board also considered the mental ability factors noted in Ray, to include memory, concentration, ability to adapt to change, handle workplace stress, getting along with coworkers, and demonstrating reliability and productivity.  See Ray, supra.  However, the Veteran was not service connected for any disability affecting mental ability prior to February 28, 2008.  

The Board does not doubt that the Veteran’s service-connected disabilities caused impairing symptomatology prior to February 28, 2008.  This impairment of function is recognized by the ratings assigned to each of his service-connected disabilities. However, the evidence does not support that these disabilities precluded substantially gainful employment, specifically to include sedentary employment as outlined above.  Further, it appears as though the Veteran maintained employment prior to February 28, 2008, with some modification of duties.  In light of the Veteran’s past work history, training, and skills and in light of the medical evidence in this case, the Board finds the Veteran was capable of substantially gainful work.  Accordingly, entitlement to a TDIU prior to February 28, 2008, is not warranted.

As noted above, the Board must consider whether TDIU is warranted based on the Veteran’s service-connected disabilities other than his right knee disability from February 28, 2008, to July 8, 2009.    

Regarding the Veteran’s left knee disability, a September 2008 VA examiner found that he had limitation of range of motion with pain aggravated with prolonged walking.  A May 2009 examiner noted that the Veteran ceased working due to his right knee disability and did not list any functional impairment caused by the left knee.  

Regarding the Veteran’s painful right knee scars and surgical scars, a September 2008 VA examiner determined that they did not cause any limitation of motion or other limitation of function.  A May 2009 examiner found no limitation of function by the scars.  

Regarding the Veteran’s DDD of the lumbosacral spine, a May 2009 examiner concluded that the spine disability would have moderate effects on chores, shopping, recreation, traveling, dressing, toileting, and grooming.  It would prevent exercise, sports, and bathing.  The Veteran described the onset of pain after going for a morning walk.

Regarding the Veteran’s status post fractured sternum, a May 2009 examiner determined that the condition had no impact on the Veteran’s daily activities.  

Based on the foregoing, the Board finds that during the February 28, 2008, to July 8, 2009, period, entitlement to TDIU is not warranted.  None of his disabilities other than his right knee disability when considered alone, or in combination, rendered the Veteran unable to obtain or maintain substantially gainful employment.  

Although the Veteran’s left knee disability would have caused difficulty with prolonged standing, it does not appear that it would have precluded all forms of employment for which he is qualified.  Indeed, as noted above, he could likely not return to his work as a sports trainer, but his history of engaging in counseling, equipment purchasing, and administrative work supports a finding that he has the skills, training, and experience to engage in similar forms of sedentary work which would not be precluded by his left knee disability alone.  

Further, although his lumbosacral spine disability would preclude exercise and sports and, thus, rendering his prior work as a sports trainer unsuitable, the Board again notes that the evidence suggests he could engage in work that is not physically taxing, such as his prior counseling, equipment purchasing, and administrative duties.  His spine disability has not been found to impact prolonged sitting and, indeed, the Veteran himself described pain with activity rather than with sedentary activities.  As such, the Veteran’s lumbosacral spine disability alone would not preclude the types of employment for which he has the necessary skills, training, and work history.  

The Veteran’s painful right knee scars, surgical scars, and status post fractured sternum were determined not to have any functional impact.  As such, the Veteran was not rendered unable to obtain or maintain substantially gainful employment due to any of those disabilities on their own.  

Accordingly, entitlement to TDIU based on the Veteran’s service-connected disabilities other than his right knee disability from February 28, 2008, to July 8, 2009, is not warranted.  

From December 1, 2009, the Board finds that the Veteran is entitled to TDIU on the basis of his right knee disability alone.  Although he has numerous service-connected disabilities which cause a functional impact, his right knee disability alone would prevent him from engaging in the types of employment for which he has the skills, training, and work history.  As TDIU is warranted based on the right knee disability alone, the Board will not discuss the limitations of his other service-connected disabilities.  

A March 2010 VA examiner concluded that the Veteran’s right knee disability would have significant effects on his usual occupation, resulting in decreased mobility, difficulty with lifting and carrying, a lack of stamina, weakness or fatigue, decreased strength in the lower extremity, and pain, resulting in increased absenteeism.  Exercise, sports, and driving were prevented by the disability.  

An October 2015 VA examiner determined that the Veteran’s right knee disability limited him to performing only light physical and sedentary tasks.  At a January 2018 examination, the examiner stated that because of the Veteran’s right knee disability, severe arthritis, running, jumping, and climbing stairs would be nearly impossible without causing severe pain and hardship.  The Veteran also reported that he experienced limited range of motion, stiffness, and locking after sitting for short periods.  An October 2019 VA examiner reiterated the findings from the January 2018 examination regarding functional limitations and the Veteran again stated that his right knee symptomology increased with sitting for short periods.  

Whereas previously the Veteran would have been able to engage in more sedentary activities for which he has experience, such as counseling and administrative work, because he only experienced increased symptomology with prolonged sitting, the Board finds that, since the right knee total arthroplasty, there is evidence that his symptoms worsen when sitting for only short periods.  As such, the Veteran would be unable to engage in his prior work as a sports trainer; nor would he be able to engage in sedentary activities such as counseling or administrative work for more than short periods.  Such limitations likely render the Veteran unable to maintain substantially gainful employment in light of his skills, training, and employment history.  

Accordingly, the Veteran is entitled to TDIU based on his right knee disability alone from December 1, 2009.  

SMC

a)	SMC is granted from December 1, 2009, but no earlier.

As the Board has determined herein that the Veteran is entitled to TDIU from December 1, 2009, on the basis of his right knee disability alone and he has an additional service-connected disability rated at least 60 percent, namely depression at 70 percent, SMC is warranted from December 1, 2009, under 38 U.S.C. § 1114(s).  

Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record.  Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

 

 

A. J. TURNIPSEED

Acting Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	Rachel E. Jensen, 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.