Citation Nr: 21007551 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 15-14 842A DATE: February 9, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for a right knee condition is denied. Entitlement to a separate 10 percent rating, but no higher, for right knee instability, prior to March 14, 2017, is granted. Entitlement to a rating in excess of 10 percent for right knee instability, from March 14, 2017, is denied. FINDINGS OF FACT 1. The Veteran’s right knee condition is manifested by limitation of motion to no less than 75 degrees. 2. Prior to March 14, 2017, the Veteran’s right knee instability was manifested by slight lateral instability. 3. From March 14, 2017, the Veteran’s right knee instability is manifested by slight lateral instability. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for a right knee condition have not been met. 38 U.S.C. § § 1155, 5103, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.10, 4.14, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260. 2. The criteria for a separate rating of 10 percent, but no higher, for right knee instability, prior to March 14, 2017, have been met. 38 U.S.C. § § 1155, 5103, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.10, 4.14, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257. 3. The criteria for a rating in excess of 10 percent for right knee instability, from March 14, 2017, have not been met. 38 U.S.C. § § 1155, 5103, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.10, 4.14, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1990 to October 2012. The Veteran appealed a September 2013 rating decision by the Agency of Original Jurisdiction (AOJ). In July 2018, the Board of Veterans’ Appeals (Board) remanded the Veteran’s claim to the AOJ for further action consistent with the Board’s remand directives. The claim is back before the Board for further appellate proceedings. The Board finds there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). When, as here, a Veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Where, as here, the question to consider is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a “staged” rating are required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Importantly, the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998); 38 C.F.R. § 3.102. For disabilities evaluated based on limitation of motion, the Department of Veterans Affairs (VA) is required to apply the provisions of Sections 4.40 and 4.45 pertaining to functional impairment. 38 C.F.R. §§ 4.40, 4.45. The United States Court of Appeals for Veterans Claims (Court) has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain during flare-ups and after repetitive use over time. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). The Board notes that 38 C.F.R. § 4.59, entitled “Painful motion,” states, in pertinent part, “The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.” In Burton v. Shinseki, the Court stated that the scope of § 4.59 is not limited to arthritis claims. 25 Vet. App. 1, 5 (2011). When painful motion is present the minimum compensable rating for the joint should be assigned. Sowers v. McDonald, 27 Vet. App. 472, 479-81 (2016). The Veteran’s right knee condition is currently rated as 10 percent disabled under Code 5260 based on a finding of painful motion under 38 C.F.R. § 4.59. However, multiple codes are potentially applicable to the knee, and the law permits simultaneous rating under various codes, so long as prohibited pyramiding is avoided. See generally VAOPGCPREC 23-97 and VAOPGCREC 9-98; 38 C.F.R. § 4.14. Knee disabilities are rated under Codes 5256 through 5263 of 38 C.F.R. § 4.71a. Code 5256 addresses ankylosis of the knee. Code 5257 addresses recurrent subluxation or lateral instability. Code 5258 addresses dislocated semilunar cartilage in the knee manifested by frequent episodes of “locking,” pain, and effusion into the joint. Code 5259 addresses symptomatic residuals related to removal of semilunar cartilage. As noted, Code 5260 addresses limitation of motion on flexion, while Code 5261 addresses limitation of motion on extension. Code 5262 addresses impairment of the tibia and fibula from malunion or nonunion. Code 5263 addresses genu recurvatum. 38 C.F.R. § 4.71a. The Board notes that during this appeal, VA promulgated new regulations for the evaluation of musculoskeletal disabilities effective February 2, 2021. See 85 Fed. Reg. 76,453-76,469 (November 30, 2020). Because the amendments have a specified effective date without provision for retroactive application, they may not be applied before the effective date. As of that effective date, the Board must apply whichever version of the rating criteria is more favorable to the Veteran. 38 U.S.C. § 5110(g); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). For purposes of this decision, the new regulations impact the rating criteria concerning instability of the knee. This will be addressed below in the section regarding knee instability. A. Limitation of Motion Code 5260 provides ratings for limitation of flexion with the following ratings assigned: 0 percent for flexion limited to 60 degrees, 10 percent for flexion limited to 45 degrees, 20 percent for flexion limited to 30 degrees, and 30 percent for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, Code 5260. Similarly, Code 5261 provides ratings for limitation of extension with the following ratings assigned: 10 percent for limitation of extension to 10 degrees, 20 percent for limitation of extension to 15 degrees, 30 percent for limitation of extension to 20 degrees, 40 percent for limitation of extension to 30 degrees, and 50 percent for limitation of extension to 45 degrees. 38 C.F.R. § 4.71a, Code 5261. Normal knee flexion is to 140 degrees, and normal knee extension is to 0 degrees. See 38 C.F.R. § 4.71, Plate II. Medical records indicate that the Veteran underwent right knee surgery to repair his right meniscus in May 2013 and May 2018. As such, the record includes multiple VA examinations during the appellate period. However, the Board finds that the previous VA examinations, prior to the September 2020 VA examination report, were inadequate because they did not properly account for flare-ups. The July 2012 VA examination report noted flare-ups but did not elicit sufficient information to allow the Board to assess decrease in range of motion (ROM) during flare-ups. The August 2013 VA examination report did not note flare-ups. However, the August 2013 VA examination was being conducted only 3 months following the Veteran’s right knee surgery. Therefore, it is possible the Veteran’s right knee condition was not able to fully settle prior to assessing its severity. Additionally, later VA examination reports noted flare-ups. The March 2017 VA examination report noted flare-ups during cold weather. However, the March 2017 VA examination report did not elicit sufficient information to determine any decrease in flare-ups during cold weather. Lastly, the January 2019 VA examination report did not note flare-ups, but continued to comment that there is no empirical basis for making a determination of decreased ROM during flare-ups. Therefore, it is unclear whether the January 2019 VA examiner attempted to elicit information regarding flare-ups. Nevertheless, the September 2020 VA examiner properly accounted for flare-ups and provided decreased ROM measurements during flare-ups for the right knee. The ROM measurements in the September 2020 VA examination report are also the most severe compared to the other VA examination reports of record. However, the September 2020 VA examination report only noted, at its worse, right knee flexion to be 75 degrees during flare-ups. The Veteran’s right knee condition is rated as 10 percent disabling under Code 5260 for limitation of flexion due to painful motion under 38 C.F.R. § 4.59. This recognizes that the degree of limitation of motion is not compensable, but the painful motion did cause functional impairment and therefore requires compensation. Saunders v. Wilkie, 886 F. 3d (Fed. Cir. 2018). The measured range of motion remains noncompensable, and therefore no increased rating may be assigned under Code 5260. The Board has considered whether an additional rating might be assigned under Code 5261, for limitation of extension, or limitation of function in extension due to pain. However, as extension is measured as full and complete, even after extended use, the Board finds that the reported symptomatology—painful motion—is already compensated under Code 5260. No limitation of motion meeting the criteria for increased rating is shown by competent lay or medical evidence, and hence an increased rating is not warranted. The various VA examination reports note the Veteran’s statements of issues with kneeling, squatting, and climbing stairs. See also October 2013 Veteran statement. However, the Veteran does not provide specific details as to the extent of his ROM limitations and medical treatment records mainly note treatment for pain. B. Instability The Board notes the record indicates right knee instability. The Veteran was awarded service connection for right knee instability at 10 percent disabling, effective March 14, 2017, in a December 2017 rating decision. Code 5257 provides ratings for other knee impairments with the following ratings assigned: 10 percent for slight, 20 percent for moderate, and 30 percent for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Code 5257. The words “slight,” “moderate,” and “severe” as used in the various Codes are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all the evidence, to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. Code 5257, effective February 7, 2021, includes rating criteria for recurrent subluxation or instability, and also patellar instability. See 85 Fed. Reg. 76,463 (November 30, 2020). Under recurrent subluxation or instability, a 10 percent rating is assigned for a sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation; a 20 percent rating requires either (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation, or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation; and a 30 percent rating is assigned for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. Under patellar instability, a 10 percent rating is assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker; a 20 percent rating is assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: A brace, cane, or walker; and a 30 percent rating is assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. The Board notes that in order to obtain a rating in excess of 10 percent for instability under the new regulations, the Veteran is required to be prescribed from a medical provider a brace or assistive device and have persistent or recurrent instability. However, recent medical evidence does not suggest the Veteran is prescribed any assistive device. Although the September 2020 VA examination report noted occasional use of a knee brace, medical evidence does not suggest that this was recently prescribed by a medical professional for current use. Therefore, it would not be advantageous to rate the Veteran under the new regulations effective February 7, 2021. 1. Prior to March 14, 2017 The Board notes the December 2017 rating decision assigned an effective date for the Veteran’s right knee instability based on the date of his March 2017 VA examination. However, it is possible the Veteran had right knee instability prior to the date of his VA examination. Importantly, the March 2017 VA examiner noted residuals of buckling after the Veteran’s 2013 surgery. The Veteran also specifically stated in October 2013 that he suffered from right knee instability. See also, May 2015 VA Form 9. Based on the evidence, the Board finds that the Veteran is entitled to a separate disability rating of 10 percent throughout the appellate period prior to March 14, 2017 for his right knee instability. The Veteran suffers from instability of the right knee causing his knee to buckle at times. Nevertheless, the evidence does not demonstrate that the Veteran warrants a higher rating prior to March 14, 2017. Treatment records do not note frequent falling and the Veteran has not provided specific details about his unstable right knee or any falling. Thus, the Board finds that the criteria for a separate disability rating of 10 percent, but no higher, throughout the appellate period, prior to March 14, 2017, for right knee instability are met. See Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. 2. From March 14, 2017 The March 2017 VA examination report checked joint instability, noted lateral instability in the right knee, and noted the Veteran’s statement of occasionally feeling as if the knee is going to buckle. The January 2019 VA examination report did not note joint instability. The September 2020 VA examination report noted joint instability in the right knee but marked all testing as normal. Overall, the evidence does not demonstrate that the Veteran warrants a higher rating from March 14, 2017. Treatment records do not note frequent falling and the Veteran has not provided specific details about his unstable right knee or any falling. Additionally, medical treatment records do not note a current prescription by a medical provider for a knee brace or assistive device. As such, a higher rating under the new criteria from February 7, 2021 is not warranted. Thus, the Board finds that the criteria for a disability rating in excess of 10 percent for right knee instability, from March 14, 2017, are not met. See Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. C. Semilunar Cartilage The Veteran had documented right knee meniscal tear. See May 2013 and 2018 private treatment records. The August 2013 and January 2019 VA examiners noted that the Veteran had a right meniscal tear and underwent arthroscopic surgeries to repair the meniscus. Following the Veteran’s surgeries, he stated that he continued to have pain. May 2013 treatment records noted effusion. The various VA examinations conducted following the Veteran’s surgeries did not find both effusion and locking. The September 2020 VA examination report noted frequent episodes of joint locking and pain, but no history of effusion. Overall, no frequent episodes of effusion have been found. Therefore, while the Veteran had a semilunar cartilage tear which resulted in pain, there is no indication that he experienced frequent locking and effusion. As such, a separate rating under Diagnostic Code 5258 is not warranted. VA examiners did not note additional residual signs or symptoms due to the Veteran’s surgeries apart from pain and buckling which the Veteran is already compensated for. See March 2017 VA examination report. The predicate element in assigning several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Assigning a separate rating under Diagnostic Code 5259 would violate the rules prohibiting pyramiding as it would compensate the Veteran twice for the same symptomatology. 38 C.F.R. § 4.14. The Board also notes the Veteran’s meniscus was only repaired and not fully removed. Therefore, the Board finds that separate ratings under diagnostic codes 5258 and 5259 are not warranted. D. Other Conditions The evidentiary record does not suggest impairment of the tibia and fibula, genu recurvatum, or ankylosis of the right knee. As such, disability ratings under Codes 5256, 5262, and 5263 are not warranted. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Zheng, 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.