Citation Nr: 21007705 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 11-18 865 DATE: February 10, 2021 ORDER A disability rating in excess of 20 percent for status-post medial-lateral cartilage residuals of the right knee is denied. A rating in excess of 10 percent for osteoarthritis with painful limitation of motion of the right knee is denied. For the appeal period from November 16, 2017, to June 30, 2019, a rating in excess of 10 percent for right knee instability is denied. Beginning July 1, 2019, a 20 percent rating, but no higher, for instability of the right knee is granted. REMANDED Entitlement to a total disability evaluation based on individual unemployability (TDIU) on an extraschedular basis is remanded. FINDINGS OF FACT 1. The Veteran is already in receipt of a maximum 20 percent rating under Diagnostic Code 5258 for a meniscal condition with frequent episodes of locking, pain, and effusion into the joint. 2. For the entire rating period on appeal, the Veteran’s right knee disability has been manifested by no worse than 75 degrees flexion, to include during flare-ups and repeated use over time. 3. Range of motion testing in extension has been normal throughout the rating period, to include during any flare-ups or with repeated use over time. 4. From November 16, 2017, to June 30, 2019, the Veteran’s right knee disability was manifested by symptoms indicative of “slight” instability. 5. Beginning July 1, 2019, the Veteran’s right knee disability was manifested by symptoms indicative of “moderate” instability. 6. Beginning February 7, 2021, the Veteran’s right knee disability was also not manifested by patellar instability or an unrepaired or failed repair of a complete ligament tear causing persistent instability with the prescribed use of both an assistive device and bracing for ambulation. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for status post medial-lateral cartilage residuals of the right knee are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5258 (2020). 2. The criteria for a rating in excess of 10 percent for osteoarthritis with painful limitation of motion of the right knee are not met. 38 C.F.R. §§ 1155, 5107, 7104 (2017); 38 C.F.R. §§ 3 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5260, 5261 (2020). 3. From November 16, 2017, to June 30, 2019, a rating in excess of 10 percent for right knee instability are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.21, 4.71a, Diagnostic Code 5257 (2020). 4. Beginning July 1, 2019, a 20 percent rating, but no higher, for right knee instability are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.21, 4.71a, Diagnostic Code 5257; 85 Fed. Reg. 76457 (Feb 7, 2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from March 1972 to July 1975. These matters came before the Board of Veterans’ Appeals (Board) on appeal from a February 2010 rating decision. By way of background, in a January 2015 decision, the Board denied an increased rating for residuals of a right meniscus tear. The Veteran appealed that determination to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a December 2015 Joint Motion for Remand (JMR), the Court issued an order vacating the Board’s January 2015 decision, and remanded the issue to the Board for action consistent with the JMR. In June 2016 and April 2017, the Board remanded the claim. In a November 2017 decision, the Board denied entitlement to a rating in excess of 20 percent for status post medial-lateral cartilage residuals of the right knee; granted a 10 percent rating for degenerative arthritis; granted a 10 percent rating for right knee instability prior to July 3, 2013; and denied a rating in excess of 10 percent for right knee instability from July 3, 2013. The Veteran appealed to the Court that portion of the Board decision that denied entitlement to a rating in excess of 10 percent for osteoarthritis of the right knee and denied an evaluation in excess of 20 percent for status post medial-lateral cartilage residuals of the right knee. Pursuant to a February 2019 Joint Motion for Partial Remand (JMPR), the Court issued an order vacating that portion of the Board’s November 2017 decision, and remanded these issues to the Board for action consistent with the JMR. In July 2019, the Board remanded the issues regarding entitlement to a disability evaluation in excess of 20 percent for status post medial-lateral cartilage residuals of the right knee; entitlement to a rating in excess of 10 percent for osteoarthritis of the right knee; and entitlement to a TDIU in order to obtain an adequate VA examination. In November 2020, the Board again remanded the claims in order to obtain Social Security Administration records. As it pertains to the severity of the Veteran’s right knee instability, a November 15, 2017 Board decision awarded the Veteran a 10 percent rating, but no higher, for slight right knee instability for the entire rating period on appeal. The Veteran did not appeal this determination to the Court. However, the Board finds that the medical evidence dated since the November 2017 decision, demonstrates relevant symptoms. As such, the Board herein considers the Veteran’s disability rating as it pertains to instability for the rating period following the November 2017 Board decision. Disability Rating Laws and Regulations Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”). Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a veteran’s service-connected disability. 38 C.F.R. § 4.14. However, it is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; the critical element in permitting the assignment of several evaluations under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). The relevant rating criteria include Diagnostic Code 5010, which instructs the rater to rate traumatic arthritis as degenerative arthritis under Diagnostic Code 5003. Under Diagnostic Code 5003, arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate Diagnostic Codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined and not added, under Diagnostic Code 5003. For purpose of rating disability from arthritis, the elbow is considered a major joint. 38 C.F.R. § 4.45 (f). The diagnostic codes that focus on limitation of motion of the knee are Diagnostic Codes 5260 (limitation of flexion) and 5261 (limitation of extension). For rating purposes, normal range of motion in a knee joint is from 0 to 140 degrees. 38 C.F.R. § 4.71, Plate II. The Rating Schedule provides for ratings of 0, 10, 20, or 30 percent where there is limitation of flexion of the leg to 60, 45, 30, or 15 degrees, respectively, and for ratings of 0, 10, 20, 30, 40, or 50 percent for limitation of extension of the leg to 5, 10, 15, 20, 30, or 45 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. VA’s General Counsel has held that separate ratings are available for limitation of flexion and limitation of extension under Diagnostic Codes 5260 and 5261. VAOPGCPREC 9-2004 (2004). As it pertains to recurrent subluxation or instability of the knee, the Board observes that the schedular criteria for evaluating disabilities of the knee have undergone revision during the pendency of this appeal. Specifically, an amendment to Diagnostic Code 5257 was made effective February 7, 2021. See 85 Fed. Reg. 76457 (Feb 7, 2021). Because these changes took effect during the pendency of the Veteran’s appeal, both the former and revised criteria will be considered in evaluating the Veteran’s service-connected right knee disability. However, application of the new criteria prior to the effective date of the amended regulation is not allowed. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); Green v. Brown, 10 Vet. App. 111, 116-119 (1997); see also 38 U.S.C. § 5110 (g). Prior to February 7, 2021, instability of the knee was rated under Diagnostic Code 5257, which provided ratings of 10, 20, and 30 percent for recurrent subluxation or lateral instability of the knee, which is slight, moderate, or severe, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Effective February 7, 2021, Diagnostic Code 5257 provides ratings for both recurrent subluxation or instability of the knee and for patellar instability. As it pertains to recurrent subluxation or instability of the knee, Diagnostic Code 5257 provides a 10 percent rating 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 is warranted for 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, or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device or bracing for ambulation. A 30 percent rating is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device and bracing for ambulation. As it pertains to patellar instability of the knee, Diagnostic Code 5257 provides a 10 percent rating for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. A 20 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: A brace, cane, or walker. A 30 percent rating is 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. Note (1): For patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note (2): A surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). See DC 5257 (Effective February 7, 2021). Diagnostic Code 5258 provides a 20 percent rating may be assigned for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint. Diagnostic Code 5259 provides for a 10 percent rating for symptomatic removal of the semilunar cartilage. VA’s General Counsel has held that a claimant who has arthritis and instability of the knee may be rated separately under DCs 5003 and 5257. VAOPGCPREC 23-97; 62 Fed. Reg. 63,604 (1997). The General Counsel subsequently clarified that for a knee disability rated under DC 5257 to warrant a separate rating for arthritis based on X-ray findings and limitation of motion, limitation of motion under DC 5260 or DC 5261 need not be compensable but must at least meet the criteria for a zero-percent rating. A separate rating for arthritis can also be based on X-ray findings and painful motion under 38 C.F.R. § 4.59. VAOPGCPREC 9-98 (1998); 63 Fed. Reg. 56,704 (1998). VA’s General Counsel has subsequently held that separate ratings can also be provided for limitation of knee extension and flexion. VAOPGCPREC 9-2004; 69 Fed. Reg. 59,990 (2004). Rating Analysis for Right Knee Disability The Board finds that a rating in excess of 20 percent for status post medial-lateral cartilage residuals of the right knee is not warranted. The evidence of record shows that the Veteran has symptoms equivalent to frequent episodes of locking, pain, and effusion in the right knee joint as contemplated by the currently assigned 20 percent rating pursuant to Diagnostic Code 5258. The Veteran is already in receipt of the maximum allowable rating under DC 5258 and therefore a rating higher than 20 percent is not warranted. The Board further finds that Diagnostic Code 5259 is not applicable as there is no evidence of record that the Veteran had a complete removal of cartilage. Next, the Board finds that a rating in excess of 10 percent for osteoarthritis of the right knee with painful limitation of motion is not warranted. A review of the medical evidence of record shows that the Veteran’s right knee flexion has been limited to no worse than 75 degrees with normal extension. See January 2010 VA examination (flexion limited to 140 degrees and extension was to 0 degrees); see July 2013 VA examination (flexion limited to 100 degrees and extension was to 0 degrees); see November 2016 VA examination (flexion limited to 120 degrees and extension was to 0 degrees); see May 2017 VA examination (flexion limited to 75 degrees and extension was to 0 degrees), and December 2019 VA examination (flexion limited to 75 degrees and extension was to 0 degrees); see also October 2013 Social Security Consultative Examination report (flexion limited to 90 degrees and extension was to 0 degrees). Pursuant to the Court’s February 2019 JMPR, the Board was asked to obtain an adequate medical opinion as to the Veteran’s right knee disability that addressed functional loss due to flare-ups and repetitive use over time. In this regard, a VA examination report was obtained in December 2019. At that time, the Veteran reported difficulty walking, bending, and sitting for prolonged periods of time. Notably, the Veteran reported that he was experiencing a flare-up of the right knee at the time of examination. The examiner specifically indicated that the Veteran’s right knee was limited to 80 degrees in flexion and 0 degrees in extension, to include after repetitive use testing and during flare-ups. The examiner further noted that pain, weakness, fatiguability, or incoordination significantly limited the Veteran’s functional ability with repeated use over time resulting in flexion limited to 75 degrees, and with normal extension. The Board concludes that the Veteran’s right knee disability does not meet or more nearly approximate the criteria for a rating in excess of 10 percent for the entire rating period on appeal due to painful limitation of motion. The Veteran has never demonstrated the functional equivalent of flexion limited to 30 degrees in order to warrant a higher disability rating under DC 5260. Throughout the appeal period, he maintained flexion to, at worst, to 75 degrees, to include during a flare-up and after repetitive use testing. See December 2019 VA examination report. As such, a rating in excess of 10 percent under Diagnostic Code 5260 is not warranted. Moreover, the VA examination reports listed above showed normal range of motion testing in extension throughout the rating period. As noted above, the Veteran was experiencing a flare-up of the right knee disability at the time of the December 2019 VA examination, and even with consideration of his symptoms during a flare-up, the Veteran was able to fully extend the knee at the time of the 2019 evaluation. A separate rating for limitation of extension is not warranted as the Veteran does not have compensable limitation of extension in the right knee. Pursuant to the most recent JMPR, the parties indicated that the Board (in its November 2017 decision) had erred in not providing an adequate statement of reasons or bases regarding whether the Veteran’s pain, swelling, popping, locking, and grinding associated with his left knee meniscal disability had been compensated by his current left knee evaluations under DC 5261. As the issue of an increased rating for the Veteran’s left knee disability was not on appeal at the time of the November 2017 decision the Board assumes that the noted left knee disability (versus the right knee) in the JMPR was merely a typographical error. With regard to the issue of pain, swelling, popping, locking, and grinding associated with the Veteran’s right knee meniscal disability, the Board finds that a separate compensable rating under DC 5261 (for limitation of motion in extension) would constitute impermissible pyramiding. See 38 C.F.R. § 4.14. The Veteran’s reports of pain, swelling, locking, and popping have already been contemplated under the currently assigned 20 percent rating under DC 5258. Under DC 5258, symptoms of pain, locking, and swelling are specifically listed. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); 38 C.F.R. § 4.14; see also FIRESTEIN, KELLEY’S TEXTBOOK OF RHEUMATOLOGY 571 (9th ed. 2012) (“locking” is the sudden loss of ability to extend the knee and is usually painful and may be associated with an audible noise, such as a click or pop). Therefore, granting separate ratings for the same manifestations as due to the Veteran’s symptoms under both DCs 5258 and 5261 would constitute impermissible pyramiding. Further, the Board finds that the Veteran’s symptoms of grinding (which reasonably would include some pain and/or limitation of motion in the knee joint) falls under the auspices of painful limitation of motion, for which the Veteran has already been assigned a 10 percent rating. As it pertains to the instability of the Veteran’s right knee, the Board previously granted a 10 percent rating for the appeal period prior to July 3, 2013, and denied a rating in excess of 10 percent beginning July 3, 2013. See Board decision dated November 2017. Although the Veteran appealed part of the November 2017 decision to the Court, he did not appeal the instability rating determinations. See February 2019 JMPR. As such, the November 2017 Board decision became final as to the issue of instability of the right knee. See 38 C.F.R. § 20.1100 (a). Nonetheless, although the Veteran did not expressly appeal the award of a separate rating for right knee instability to the Court, the issue is inextricably intertwined with the questions of entitlement to a higher rating for his right knee disability based on arthritis with limited flexion and his meniscal condition. This is because the Board must consider all potentially applicable diagnostic codes in assigning the proper rating. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Here, the Board considers the evidence of record following the November 15, 2017 Board decision as it pertains to right knee instability. See generally Hazan v. Gober, 10 Vet. App. 511 (1997). The Board finds that the evidence following the November 2017 Board decision indicates that the Veteran’s right knee instability warrants a 20 percent rating effective July 1, 2019. Specifically, the December 2019 VA examiner determined that the Veteran had “moderate” instability in the right knee, although stability testing was not performed due to pain. Further, the Veteran reported that he had intermittent instability and had fallen three times since July 2019. As such, the Board finds that a 20 percent rating is warranted effective July 1, 2019. The Board further finds that a rating in excess of 20 percent is not warranted for the entire rating period beginning July 1, 2019. As it pertains to the rating period effective February 7, 2021, the Board has considered the rating criteria under both the earlier diagnostic code and the current diagnostic code. As noted above, the 2019 VA examiner specifically indicated that the Veteran had moderate right knee instability. Further, there is no evidence that the Veteran has an unrepaired or a failed repair of a complete ligament tear causing instability in the knee. He has also not been found to have patellar instability after surgical repair. See 38 C.F.R. § 4.73, DC 5257 (effective February 7, 2021). See 2019 knee x-ray reports (noting patella normally seated). As such, a rating in excess of 20 percent under both the earlier and revised DC 5257 is not warranted for the appeal period beginning July 1, 2019. Regarding the rating period from November 16, 2017 (following the final Board decision on the issue of instability) to June 30, 2019, the Board finds that a rating in excess of 10 percent for right knee instability is not warranted. The medical evidence during this period shows that the Veteran reported falling; however, this appeared to be related to his spine and radiculopathy symptoms and not to his right knee disability. See e. g., June 2018 VA primary care note (Veteran reported that he had fallen twice recently as legs giving out on him. Veteran stated that he was unable to get back injections and that he had increased back pain with pain and numbness down both legs). The Board finds that the December 2019 VA examination report is the first evidence demonstrating “moderate” instability of the knee joint. See December 2019 VA knee examination (where Veteran reported falling due to his knee disability three times since July 2019). As such, a 20 percent rating of right knee instability is warranted effective July 1, 2019, but no earlier. The Board further finds that there is no evidence of any knee joint ankylosis, or malunion of the tibia and fibula to support higher or separate ratings under DCs 5256 or 5262. Finally, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 371 (2017). REASONS FOR REMAND A TDIU may be assigned where the schedular rating is less than total when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16 (a). For a schedular TDIU, a veteran must either have a single disability rated at 60 percent or more, or two or more disabilities with at least one disability rated at 40 percent or more, and sufficient additional disabilities for a combined rating of 70 percent or more. Id. The Veteran in this case does not currently meet the criteria for a TDIU under 38 C.F.R. § 4.16 (a). He does not have a single disability rated at 60 percent or higher, or multiple disabilities combining to 70 percent, with at least one rated 40 percent or higher. Id. Even if his disability ratings were combined under the criteria of 38 C.F.R. § 4.16 (a), they would still not meet the schedular threshold. Nonetheless, for the reasons mentioned below, the Board finds that referral for consideration of an extraschedular TDIU is warranted. Social Security Administration disability records show that the Veteran has been awarded disability benefits, in part, due to his knee disabilities. Further, the medical evidence of record shows that the Veteran’s knee disabilities has impacted his ability to work. The matters are REMANDED for the following actions: 1. Refer the Veteran’s claim for a TDIU to VA’s Director of Compensation Service for extraschedular consideration for a TDIU. (Continued on the next page)   2. Then, readjudicate the remanded claim on appeal. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Casadei, 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.