Citation Nr: 21007397 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 16-10 401 DATE: February 9, 2021 ORDER Entitlement to a rating in excess of 20 percent disabling for status post-operative left knee synovitis, osteoarthritis, and chondromalacia is denied. Entitlement to a rating in excess of 30 percent disabling for right knee synovitis, osteoarthritis, and chondromalacia is denied. Entitlement to a rating in excess of 30 percent disabling for instability of the right knee is denied. Entitlement to a rating in excess of 30 percent disabling for instability of the left knee is denied. Entitlement to a rating in excess of 10 percent disabling for left knee scar is denied. Entitlement to a rating in excess of 10 percent disabling for osteoarthritis, right ankle is denied. FINDINGS OF FACT 1. The Veteran’s right knee is assigned the highest schedular disability rating available under DC 5260. 2. During the entire period on appeal, the Veteran does not exhibit flexion limited to 30 degrees in his left knee. 3. The Veteran’s right knee instability is assigned the highest schedular disability rating available under DC 5257. 4. The Veteran’s left knee instability is assigned the highest schedular disability rating available under DC 5257. 5. The Veteran has no more than two left knee scars that are painful. 6. The Veteran has limited range of motion and pain on motion associated with his service-connected right ankle osteoarthritis, but does not have ankylosis, and is rated at the highest schedular rating available for his orthopedic symptomatology. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 20 percent disabling for status post-operative left knee synovitis, osteoarthritis, and chondromalacia have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a DC 5020-5260. 2. The criteria for entitlement to a rating in excess of 30 percent disabling for right knee synovitis, osteoarthritis, and chondromalacia have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a DC 5020-5260. 3. The criteria for entitlement to a rating in excess of 30 percent for right knee instability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.68, 4.71, DC 5257. 4. The criteria for entitlement to a rating in excess of 30 percent for recurrent left knee instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.68, 4.71, DC 5257. 5. The criteria for a disability rating in excess of 10 percent for left knee scar have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7804. 6. The criteria for entitlement to a rating in excess of 20 percent disabling for osteoarthritis, right ankle have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.71a, DC 5271. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from October 1972 to August 1978. The Board sincerely thanks the Veteran for his service to our country. This matter comes before the Board of Veterans’ Appeals (Board) from a November 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in September 2019, when it was remanded for VA examinations. The Board finds that there has been substantial compliance with its remand directives. In March 2015, The Veteran and a witness testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the record. Increased Rating Disability ratings are assigned in accordance with VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from a disability. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. When a question arises as to which of two ratings shall be applied under a particular diagnostic code, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. The evaluation of the same "disability" or the same "manifestations" under various diagnoses is prohibited. See 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993) (interpreting 38 U.S.C. § 1155). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, if a veteran has separate and distinct manifestations attributable to the same injury, they may be compensated under different diagnostic codes. See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993). Where the rating appealed is the initial rating assigned with a grant of service connection, the entire appeal period is for consideration, and separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Moreover, adjudication of a claim for a higher initial disability rating should include specific consideration of whether staged ratings are appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999). In McGrath v. Gober, 14 Vet. App. 28 (2000), the Court held that when the Veteran was actually experiencing symptoms is what is relevant for assigning rating effective dates, not when evidence was created. Thus, the Board will consider whether the evidence of record suggests that the severity of pertinent symptoms increased sometime prior to the date of the examination reports noting pertinent findings. The Board has also considered the history of the Veteran's disability prior to the rating period on appeal to see if it supports a higher rating during the rating period on appeal. 1. Entitlement to a rating in excess of 20 percent disabling for s/p operative left knee synovitis, osteoarthritis, and chondromalacia 2. Entitlement to a rating in excess of 30 percent disabling for right knee synovitis, osteoarthritis, and chondromalacia 3. Entitlement to a rating in excess of 30 percent disabling for right knee instability 4. Entitlement to a rating in excess of 30 percent disabling for left knee instability 5. Entitlement to a rating in excess of 10 percent disabling for left knee scar The Veteran’s bilateral knee synovitis, osteoarthritis, and chondromalacia is currently rated under DC 5020-5260 as 20 percent disabling on the left and 30 percent disabling on the right. Hyphenated diagnostic codes are used when a rating for a particular disability under one diagnostic code is based upon rating of the residuals of that disability under another diagnostic code. 38 C.F.R. § 4.27. The first four numbers reflect the diagnosed disability. The second four numbers after the hyphen identifies the criteria used to evaluate that disability. DC 5020 provides that synovitis will be rated based on limitation of motion, as arthritis, degenerative. See 38 C.F.R. § 4.71a, DC 5020. Under DC 5003, arthritis established by X-ray findings is rated on the basis of limitation of motion of the affected joints. When, however, the limited motion of the specific joint or joints involved would be noncompensable under the appropriate diagnostic codes, a 10 percent rating is assigned for each involved major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. 38 C.F.R. § 4.71a, DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, however, arthritis is rated as 10 percent disabling when the involvement of two or more major joints or two or more minor joint groups is shown by X-ray evidence, or as 20 percent disabling when the involvement of two or more major joints or two or more minor joint groups is shown by x-ray evidence, with occasional incapacitating exacerbations. Id. Under DC 5260, flexion of the leg limited to 60 degrees warrants a 0 percent rating, flexion limited to 45 degrees warrants a 10 percent rating, flexion limited to 30 degrees warrants a 20 percent rating, and flexion limited to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a, DC 5260. Flexion of the knee to 140 degrees is considered full and extension to 0 degrees is considered full. 38 C.F.R. § 4.71, Plate II. The August 2013 VA examination report shows the Veteran’s bilateral knee flexion limited to 120 degrees, with objective evidence of painful motion beginning at 90 degrees, and extension ending at 5 degrees with painful motion. No additional loss of motion was noted after repetitive-use testing. Tenderness to palpation was noted bilaterally, as was medial-lateral instability of 2+. VA treatment records note complaints of bilateral knee pain. The January 2020 VA examination report shows that the Veteran experiences episodes of bilateral knee pain, swelling, buckling of the knees, stiffness, weakness, and a sensation of giving way; locking, catching or clicking as the knees are moved or bent; twisting movements with a popping sensation; and an inability to straighten the knees (flexion). The Veteran’s chondromalacia also causes episodes of knee joint pain that worsens when walking up or down stairs, kneeling, squatting, or sitting cross-legged also may hurt; grinding sensation; and joint buckling. The Veteran described sharp flare-ups frequently and reported that they occur while walking and only his cane prevents him from falling. He described his functional loss as an inability to walk long distance or stand for a long time. He stated he cannot run, climb a deer stand, or play ball. The Veteran’s bilateral knees were painful on both flexion and extension, with objective evidence of moderate-severe tenderness, pain and crepitus. Range of motion measurements, at their worst with repeated use over time due to pain, fatigue, weakness, and lack of endurance, were reported as flexion and extension of 0 to 66 degrees on the right and 0 to 50 degrees on the left. The examiner reported less movement than normal, weakened movement, instability of station, disturbance of locomotion, interference with sitting, and interference with standing each contributes to the Veteran’s disability. Reduced muscle strength of 4/5 was noted bilaterally. The examiner stated that there was a history of bilateral lateral instability and recurrent effusion in the form of synovial fluid accumulating in or around the knee joint, swelling, clicking, and locking. Joint stability testing showed medial and lateral stability 3+ bilaterally. Neither pain with weight bearing and non-weight bearing, muscle atrophy, ankylosis, nor recurrent subluxation were shown. The examiner stated that the Veteran did not have tibial or fibular impairment, or a meniscus condition. Passive range of motion testing could not be performed or was not medically appropriate on the right knee. On the left knee, passive range of motion was the same as active range of motion. The Board finds that the preponderance of the evidence is against the claims for entitlement to a disability rating in excess of 20 percent disabling for the left knee, and in excess of 30 percent disabling for the right knee under DC 5260 from March 22, 2013. The Veteran’s right knee is assigned the highest disability rating available under DC 5260, and because the Veteran does not more nearly approximate flexion limited to 30 degrees in his left knee, a 30 percent disability evaluation is not warranted on the left. An August 2020 rating decision increased the Veteran’s knee instability ratings to 30 percent, the highest schedular disability rating available under DC 5257 for medial-lateral instability, throughout the appeal. The Veteran has not made any specific arguments with respect to the knee instability ratings since that time, although in a September 2020 statement the Veteran reported generally that even higher ratings were warranted as his service-connected disabilities have worsened. Additionally, the August 2020 rating decision increased the rating for the Veteran’s left knee scar to 10 percent under DC 7804 for residual surgical scars. Under 38 C.F.R. § 4.118, Diagnostic Code 7804, a 10 percent rating is warranted for one or two scars that are unstable or painful. A 20 percent rating is warranted for three or four scars that are unstable or painful. A 30 percent rating is warranted for five or more scars that are unstable or painful. The January 2020 VA scar examination noted that the Veteran had two painful scars, one on the left anterior knee and one on the left medial knee. As the Veteran does not have more than 2 painful scars of the knee, a higher rating under DC 7804 is not warranted. The Board has also considered the applicability of other potentially applicable diagnostic criteria in the range of Diagnostic Codes 7800 - 7805, but finds no higher rating is assignable under them. Diagnostic Code 7800 contemplates scars of the head, face or neck only. The pre-August 2018 version of Diagnostic Code 7801 provides that scars other than on the head, face, or neck which are deep, nonlinear and cover an area of at least 6 square inches (39 square (sq.) cm.) warrant a compensable evaluation. A deep scar is one associated with underlying soft tissue damage. However, although the Veteran's knee scars were not specifically found to be linear, their measurements suggest strongly they are; for example, The scars were 10.8 cm X 0.5 cm and 4.5 cm X 0.5 cm in size indicate length exponentially greater than width, as similarly do the other scars, thereby indicating vestiges of incisions roughly represented as lines. More pertinently, they were not deep, as there were no findings of underlying soft tissue damage and they do not cover the area in square centimeters specified above. They had an approximate total area of 7.65 cm2. From August 13, 2018, Diagnostic Code 7801 has been amended as follows: A 10 percent rating is warranted for burn scars or scars due to other causes, not of the head, face, or neck, that are deep and nonlinear, at least 6 square inches (39 square centimeters). 38 C.F.R. § 4.118, Diagnostic Code 7801. Higher ratings are available for deep and linear scars that affect a larger area, measuring at least 12 square inches. The six zones of the body are defined as each extremity, anterior trunk and posterior trunk. See 38 C.F.R. § 4.118, Diagnostic Code 7801, Note (1). A separate evaluation may be assigned for each affected zone of the body under this diagnostic code if there are multiple scars, or a single scar, affecting multiple zones of the body. See 38 C.F.R. § 4.118, Diagnostic Code 7801, Note (2). Once again, findings on examination do not reflect the types or sizes of these criteria. The pre-August 2018 version of Diagnostic Code 7802 provides that scars, other than on the head, face, or neck, which are superficial and nonlinear, and cover an area of at least 144 square inches (929 sq. cm.) warrant a compensable evaluation. A superficial scar is one not associated with underlying soft tissue damage. Diagnostic Code 7802, too, has been amended in the August 2018 revision and now reads as follows: A maximum 10 percent rating is warranted for burn scars or scars due to other causes, not of the head, face, or neck, that are superficial (not associated with soft tissue damage), affecting an area or areas of 144 square inches (929 sq. cm.) or greater. In regard to both versions, the findings made in the January 2020 VA examination do not indicate nonlinear scars or of these significant dimensions. When this appeal was initiated and at present, Diagnostic Code 7803 remains reserved for criteria not yet formulated and, in effect, there is as yet no Diagnostic Code 7803. Diagnostic Code 7804 has not been amended and its criteria remain as follows: A 10 percent rating is 3] warranted for one or two scars that are unstable or painful. A 20 percent rating is warranted for three or four scars that are unstable or painful, with a maximum 30 percent rating warranted for five or more scars that are unstable or painful. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. See 38 C.F.R. § 4.118, Diagnostic Code 7804, Note (1). However, if one or more scars is both unstable and painful, 10 percent is added to the evaluation that is based on the total number of unstable or painful scars. See 38 C.F.R. § 4.118, Diagnostic Code 7804, Note (2). Scars can receive separate evaluations under Diagnostic Codes 7800, 7801, 7802, and 7805, despite also being rated under Diagnostic Code 7804. See 38 C.F.R. § 4.118, Diagnostic Code 7804, Note (3). As set forth above, the August 2010 VA examiner specifically found that all scars exhibited neither pain nor skin breakdown. The 2020 examiner noted that none of the scars were unstable or had underlying soft tissue damage. The Veteran has not made any specific arguments with respect to the knee scar since that time, other than to generally report in a September 2020 submission that even higher ratings were warranted as his service-connected disabilities have worsened. Because the Veteran’s bilateral knees do not exhibit ankylosis, DC 5256 does not apply, and because the 2020 VA examiner found the Veteran’s knee disability does not involve the meniscus or semilunar cartilage, DC 5258 and 5259 do not apply. The Veteran’s bilateral knee limitation of extension is not severe enough to warrant a compensable rating under DC 5261, and because the record does not contain evidence of impairment of the tibia and fibula, a rating under DC 5265 is not warranted. The Board has considered whether there is any other basis for granting further increased and/or additional ratings but has found none. Additionally, neither the Veteran nor his attorney have raised any other issues, nor have any other issues been reasonably raised by the record. See 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). Accordingly, the preponderance of the evidence is against the claims. Therefore, the benefit of the doubt rule does not apply, and the appeal as to this matter must be denied.   Entitlement to a rating in excess of 20 percent disabling for osteoarthritis, right ankle The Veteran’s right ankle osteoarthritis is currently rated as 20 percent disabling under DC 5010-5271. Under DC 5010, arthritis, due to trauma, substantiated by x-ray findings, is to be rated as arthritis, degenerative (DC 5003). Under DC 5271, a 10 percent rating contemplates moderate limitation of motion. Marked limitation of motion of the ankle warrants a 20 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5271. DC 5271 does not permit a higher rating than 20 percent. The terms “moderate” and “marked” as used under DC 5271 are not defined in the Schedule. Rather than applying a mechanical formula to determine when symptomatology is “moderate” or “marked,” the Board must evaluate all the evidence to ensure an “equitable and just” decision. 38 C.F.R. § 4.6. To that extent, the Board notes that the normal range of motion for the ankle is as follows: dorsiflexion to 20 degrees and plantar flexion to 45 degrees. 38 C.F.R. § 4.71, Plate II. The January 2020 VA examiner described symptoms including episodes of ankle pain, pain on the outside of the ankle, stiffness, locking, swelling, giving way, weakness, difficulty walking on uneven ground, muscle spasms and cramping. The Veteran also reported flare-ups walking long stairs and stated he is unable to run, climb the deer stand, walk long distances, or play ball. Initial range of motion testing showed dorsiflexion limited from 0 to 10 degrees, plantar flexion limited from 0 to 32 degrees. Pain was noted with dorsiflexion, as well as moderate-severe tenderness to palpation and crepitus. Passive range of motion was the same as active range of motion, and pain was not noted on weight bearing or non-weight bearing. After three repetitions, dorsiflexion was reduced to 0 to 7 degrees, plantar flexion to 0 to 27 degrees, due to pain, fatigue, weakness, and lack of endurance. Further loss of function was noted with repeated use over time and during flare-ups. Specifically, dorsiflexion was reduced to 0 to 5 degrees, plantar flexion to 0 to 20 degrees due to pain, fatigue, weakness, and lack of endurance. dorsiflexion 0-5, PF 0-20. The examiner also noted weakened movement due to muscle or peripheral nerve injury, disturbance of locomotion, interference with standing, and limitation on prolonged walking and standing. The Veteran’s right ankle strength was reported to be 4/5, with no ankylosis or instability. The Veteran is already assigned the highest disability rating available under DC 5271 (20 percent). The Board notes that there are, of course, other DCs that could be considered for the Veteran's ankle disability. For instance, his medical records show that he has been diagnosed with osteoarthritis. However, DC 5003 does not permit application based on an osteoarthritis diagnosis if the appropriate limitation of motion DC allows for a compensable rating, as it does here. Likewise, the other DCs pertinent to the ankle are inapplicable for the Veteran. The lone DC that would permit the Veteran to achieve a higher rating than 20 percent, DC 5270, only applies where a veteran has a diagnosis of ankylosis. However, none of the medical reports of record show that the Veteran has ever had an ankylosis diagnosis associated with his right ankle. Accordingly, DC 5270 cannot be applied in this case. The Court has held that diagnostic codes predicated on limitation of motion require consideration of a higher rating based on functional loss due to pain on use or due to flare-ups. 38 C.F.R. §§ 4.40, 4.45, 4.59; Johnson v. Brown, 9 Vet. App. 7 (1997); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). However, when the maximum rating for limitation of motion of a joint has already been assigned, a finding of pain on motion cannot result in a higher rating. Johnson v. Brown, 9 Vet. App. 7 (1997). Accordingly, because the Veteran has been assigned the maximum compensable rating for his orthopedic symptoms, he cannot be assigned any additional ratings under sections 4.40, 4.45, or 4.59 for any additional functional loss associated with pain on use or due to flare-ups. In sum, the Board finds that the Veteran has received the highest allowable rating under the schedular criteria for his orthopedic symptoms, and an increase is denied. Additionally, neither the Veteran nor his attorney have raised any other issues, nor have any other issues been reasonably raised by the record. See 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). Accordingly, the preponderance of the evidence is against the claims. Therefore, the benefit of the doubt rule does not apply, and the appeal as to this matter must be denied. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board O. Halpern 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.