Citation Nr: 21010114 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 15-21 017 DATE: February 24, 2021 ORDER Entitlement to an initial compensable rating for right lower extremity cutaneous nerve disability is denied. REMANDED Entitlement to an initial compensable rating prior to September 13, 2019 and in excess of 20 percent thereafter for left knee instability is remanded. Entitlement to an initial rating in excess of 10 percent for left knee limitation of extension is remanded. Entitlement to an initial rating in excess of 20 percent for right knee instability is remanded. Entitlement to an initial rating in excess of 10 percent for right knee limitation of extension is remanded. FINDING OF FACT Throughout the period on appeal, the Veteran’s right lower extremity cutaneous nerve disability has been manifested by pain, a history of numbness, and pins and needles sensation. CONCLUSION OF LAW The criteria for an initial compensable rating for right lower extremity cutaneous nerve disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.123, 4.124, 4.124a, Diagnostic Code 8529. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in March 1994, with additional periods of active duty for training and inactive duty for training. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in November 2013 by a Department of Veterans Affairs (VA) Regional Office (RO). The full procedural background of the claim is outlined in the prior June 2019 Board decision and remand, and is incorporated herein by reference. In June 2019 the Board restored a 20 percent rating for the Veteran’s right knee instability, effective February 1, 2014. As this constituted a full grant of the benefits sought on appeal, the question of the propriety of the right knee reduction is no longer part of the current appeal. Ab v. Brown, 6 Vet. App. 35 (1993). The Board then remanded the claims for increased ratings for right knee instability and left and right limitation of flexion for further development, and the claim for an increased rating for a right lower extremity cutaneous nerve disability (cutaneous nerve disability) for agency of original jurisdiction (AOJ) consideration of un-waived evidence. A new VA knee examination was obtained in September 2019, and a supplemental statement of the case readjudicating all of the issues was provided in November 2020. As such, the directives have been substantially complied with and the appeal is again properly before the Board. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). While on remand, in a rating decision issued in May 2020 the RO assigned a separate rating of 20 percent for left knee instability, effective September 9, 2019. As the current appeal includes a claim for an increased rating for left knee limitation, which includes the question of whether additional separate or higher ratings may be assigned based on other manifestations, the Board has added the issue of entitlement to an initial compensable rating for left knee instability prior to September 9, 2019 and in excess of 20 percent thereafter. Further, the Board notes that in a November 2020 rating decision the RO changed the Diagnostic Code assigned for the Veteran’s left and right knee limitation of motion. The assignment of a particular diagnostic code is “completely dependent on the facts of a particular case.” See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual’s relevant medical history, the diagnosis and demonstrated symptomatology. Any change in a diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Furthermore, the selection of diagnostic codes or applicable rating criteria is not protected and may be appropriately revised if the action does not result in the reduction of compensation payments. See 38 C.F.R. §§ 3.951, 3.957; Butts, 5 Vet. App. 532; VA Gen. Coun. Prec. 71-91 (Nov. 7, 1991). At the time of the June 2019 Board remand, the Veteran was assigned 10 percent ratings for the left and right knee pursuant to Diagnostic Code 5260, based on the presence painful motion of the joints without compensable limitation of motion. 38 C.F.R. § 4.59. As such, at that time Board characterized the issues as entitlement to increased ratings in excess of 10 percent for left and right knee limitation of flexion. However, the September 2019 VA examination showed that the Veteran had compensable limitation of extension in the left and right knees during flare-ups of the disability. Based on the presence of compensable limitation of motion during flare-ups, the RO changed the Veteran’s Diagnostic Code from 5260 to 5261, governing actual limitation of extension. The newly assigned Diagnostic Code more accurately encompasses the Veteran’s current symptoms, which are pain on motion and actual compensable limitation of extension, and further did not result in a reduction in benefits. Pernorio, Derwinski, 2 Vet. App. at 629; see Butts, 5 Vet. App. at 538 (1993). As such, the Board has recharacterized the issues as entitlement to initial rating in excess of 10 percent for left and right knee limitation of extension. The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in October 2018. A transcript of the hearing is of record. 1. Entitlement to an increased rating for cutaneous nerve impairment. Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating 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. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; see Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Veteran’s cutaneous nerve disability is currently rated under Diagnostic Code 8529. Under Diagnostic Code 8529, mild or moderate paralysis of the external cutaneous nerve of the thigh warrants a noncompensable rating. 38 C.F.R. § 4.124a, Diagnostic Code 8529. Severe to complete paralysis of the external cutaneous nerve warrants a 10 percent rating. Id. When the involvement is wholly sensory, the rating should be for the mild, or at most the moderate degree. 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves, Note. The terms “mild,” “moderate,” and “severe” are not defined in the rating schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to arrive at a just and equitable decision. Additionally, the use of such terminology by VA examiners and others, although an element to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. During his October 2018 hearing testimony, the Veteran reported that following his right knee surgery he experienced numbness in the immediate surrounding area. He further stated that the numbness eventually went away and was replaced by a pins and needles sensation in the area around the knee, as well as some pain. The Veteran is competent to report such symptoms, and there is no evidence that his statements are not credible. Jandreau, 492 F.3d 1372. As such, his testimony is entitled to significant probative weight. The Veteran was provided with VA peripheral nerve examinations in February 2017 and October 2020. In February 2017 the examiner noted complaints of mild constant pain, mild intermittent pain and mild paresthesias or dysesthesias. Muscle strength was normal in the right lower extremity, and there was no evidence of atrophy. Reflexes and sensation to light touch were also noted to be normal. Overall, the examiner noted that the Veteran’s right cutaneous nerve was normal. In October 2020, the examiner noted no complaints of constant pain, intermittent pain, paresthesias, dysesthesias or numbness in the right lower extremity. Muscle strength in the right lower extremity was normal, and there was no evidence of atrophy. Reflexes and sensation to light touch were also normal. Overall, the examiner stated that the Veteran’s right cutaneous nerve was normal. There is no evidence that the above examiners were either not competent or credible. Further, both assessments were based on the Veteran’s own reports of his symptoms as well as objective examinations of the nerves in the right lower extremity. As such, the Board finds that each respective examination report is entitled to significant probative weight as to the severity of the Veteran’s disability during the period on appeal. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). VA knee examinations from April 2012, November 2012, April 2013, August 2014, September 2014, and September 2019 all not that the Veteran had full muscle strength in the right lower extremity. Treatment records associated with the file are generally silent for any assessments of the right lower extremity cutaneous nerve impairment. Based on the foregoing, the preponderance of the evidence is against a finding that a compensable rating is warranted for the Veteran’s cutaneous nerve disability. The evidence of record reflects that the Veteran has reported the disability is manifested by pain and a pins and needles sensation and a history of localized numbness, all of which are wholly sensory impairments. Such wholly sensory impairment was also noted in the February 2017 VA peripheral nerves examination. None of the orthopedic or neurologic examinations of record reflect that the Veteran has any physical manifestations associated with his cutaneous nerve impairment, such as decreased or absent reflexes or loss of muscle strength or atrophy. As noted, impairment that is wholly sensory is to be rated as mild, or at most moderate, incomplete paralysis. Under Diagnostic Code 8529, both mild and moderate paralysis of the cutaneous nerve warrant a noncompensable rating. As such, an initial compensable rating is not warranted in this case. 38 C.F.R. § 4.3, 4.7, 4.124a, Diagnostic Code 8529. No additional higher or alternative ratings under different Diagnostic Codes can be applied. The Board notes that the evidence of record reflects that the Veteran has impairment of the right ilio-inguinal nerve. However, this disability is already separately rated. 38 C.F.R. § 4.14. None of the medical evidence of record indicates that there is impairment of any other nerves of the right lower extremity associated with the Veteran’s right knee disability. As such, higher or additional ratings are not warranted in this case. All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). 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, 369–70 (2017). The preponderance of the evidence is against an initial compensable rating for the Veteran’s cutaneous nerve disability. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, the claim is denied. REASONS FOR REMAND 1. Entitlement to increased ratings for left and right knee instability. Effective February 7, 2021, VA amended the regulations governing the rating of musculoskeletal disabilities. 85 Fed. Reg. 76,453 (Nov. 30, 2020) (eff. Feb. 7, 2021). Of particular import to this case, VA completely revised the rating criteria contained in Diagnostic Code 5257, governing instability of the knee. Id. at 76,463. Where the law or regulations governing a claim are changed while the claim is pending, the version most favorable to the claimant applies (from the effective date of the change), absent Congressional intent to the contrary. Karnas v. Derwinski, 1 Vet. App. 308, 312–13 (1991); see VA Gen. Coun. Prec. 7-2003 (Nov. 19, 2003) (stating that new provisions should generally be applied to pending claims provided there is no express intent to the contrary and the application of the new provision does not result in impermissible retroactive effects). In this case, the Veteran is in receipt of ratings for left and right knee instability, and therefore the current appeal is affected by the February 2021 amendment. Further, the Board may apply the new rating criteria for instability of the knee to the current case from the effective date of the amendment forward. Karnas, 1 Vet. App. at 312–13; see VA Gen. Coun. Prec. 7-2003. However, as the criteria for rating knee instability have been completely revised, it is not clear based on the evidence currently of record whether an increased rating for the left or right knee instability is possible based on the new rating criteria. As such, a remand is necessary for a new examination which makes findings consistent with the revised rating criteria for instability of the knee. 2. Entitlement to increased ratings for left and right knee limitation of extension. Concerning entitlement to increased rating for left and right knee limitation of extension, the Board finds that the development ordered with respect to the remanded issues may result in the development of evidence relevant to the claims for increased ratings for left and right knee limitation of motion. As such, the claims for increased ratings for limitation of motion are inextricably intertwined with the instability claims being remanded and must therefore be remanded as well. Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an appropriate medical professional to determine the current severity of his left and right knee disabilities. The examiner is asked to provide the following: (a) Report the extent of the symptoms of the left and right knee disabilities in accordance with VA rating criteria. (b) Conduct testing for pain on active motion, passive motion, weightbearing, and non-weightbearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, an explanation must be provided. (c) Render specific findings as to whether there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination. (d) State whether the examination is taking place during a flare-up. If not, the examiner should ask the Veteran to describe the flare-ups, including: frequency, duration, characteristics, severity, and/or extent of functional impairment he experiences. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Wendell, 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.