Citation Nr: 21010651 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 18-35 599 DATE: February 25, 2021 ORDER Entitlement to a separate disability rating of 10 percent for left knee instability from April 17, 2015 is granted. Entitlement to a separate disability rating of 10 percent for right knee instability from April 17, 2015 is granted. REMANDED Entitlement to a rating greater than 10 percent for left knee instability from February 7, 2021 is remanded. Entitlement to a rating greater than 10 percent for right knee instability from February 7, 2021, is remanded. Entitlement to an increased rating greater than 10 percent prior to October 11, 2016 for total left knee replacement (previously rated as chondromalacia, left knee) is remanded. Entitlement to an increased disability rating greater than 10 percent prior to December 13, 2016 for total right knee replacement (previously rated as chondromalacia, right knee) is remanded. Entitlement to a disability rating greater than 60 percent for total left knee replacement (previously rated as chondromalacia, left knee) from November 1, 2018 is remanded. Entitlement to a disability rating greater than 60 percent for total right knee replacement (previously rated as chondromalacia, right knee) from January 1, 2019 is remanded. FINDINGS OF FACT 1. From April 17, 2015, the Veteran's left knee disability approximated slight subluxation or instability. 2. From April 17, 2015, the Veteran's right knee disability approximated slight subluxation or instability. CONCLUSIONS OF LAW 1. The criteria for a separate rating of 10 percent for left knee instability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, DC 5257. 2. The criteria for a separate rating of 10 percent for right knee instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, DC 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 1982 to February 1987. In a July 2019 decision, the Board denied the claims for increased disability ratings. The Veteran subsequently appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In an April 2020 Joint Motion for Remand (JMR), the parties agreed that the Board erred when it failed to provide an adequate statement of reasons or bases for its findings, and when it failed to ensure that VA provided an adequate examination. Accordingly, in September 2020, the Board remanded the matter to the Agency of Original Jurisdiction (AOJ) for actions consistent with the Court’s JMR. The matter has been returned to the Board for further appellate review. During the pendency of this appeal, in a November 2020 rating decision, the AOJ increased the Veteran’s disability rating from 30 to 60 percent, for her total left knee replacement (previously rated as chondromalacia, left knee) effective November 1, 2018. Similarly, the AOJ increased the Veteran’s disability rating from 30 to 60 percent, for her total right knee replacement (previously rated as chondromalacia, right knee) effective January 1, 2019. The Board notes that these did not constitute a full grant of the benefits sought. Accordingly, the Veteran’s increased rating appeal for total bilateral knee replacement (previously rated as chondromalacia), remains in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). Increased Rating 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. The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Based on the evidence of record, the Board finds the Veteran's functional impairment due to his service-connected bilateral knee disabilities have not changed significantly during the period on appeal and uniform ratings are warranted. Pyramiding, that is the rating 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). In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. Weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse are relevant factors in regard to joint disability. 38 C.F.R. § 4.45. With any form of arthritis, painful motion is an important factor of disability; therefore, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. The intent of the schedule is to recognize painful motion with joint or particular 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. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. Weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse are relevant factors in regard to joint disability. 38 C.F.R. § 4.45. 1. Entitlement to a separate disability rating of 10 percent but no higher, for left knee instability 2. Entitlement to a separate disability rating of 10 percent but no higher, for right knee instability The Veteran has been in receipt of a 10 percent rating under DC 5257 for her left and right knee chondromalacia since May 26, 2014. From October 11, 2016 to October 31, 2018, the Veteran was granted a total disability rating for a period of convalescence. This period is considered a full grant of benefits sought and are therefore not under consideration by the Board. The Veteran was granted two periods of a total rating for convalescence from December 13, 2016 to January 31, 2017 and from November 10, 2017 to December 31, 2018. These periods are considered a full grant of benefits sought and are therefore not under consideration by the Board. The Veteran asserts that her left knee disability warrants a rating greater than 10 percent prior to October 11, 2016; a rating greater than 10 percent prior to December 13, 2016 for her right knee disability; a rating greater than 60 percent from November 1, 2018 for left knee; and a rating greater than 60 percent from January 1, 2019 for right knee disability. At the outset, the Board notes that, effective February 7, 2021, a new General Rating Formula for knee disabilities applies to DC 5257. See 85 Fed. Reg. 76453 (Nov. 30, 2020). These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after February 7, 2021. Claims pending prior to the effective date will be considered under both old and new rating criteria, and the more veteran-favorable criteria will be applied. The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective date of the new regulation if the prior version was in effect during the pendency of the appeal. The Board has reviewed the evidence of record and determined that separate ratings of 10 percent, but no greater, for each knee are warranted under the prior version of DC 5257. However, further development is required to determine whether she meets the criteria for a higher rating from February 7, 2021, under the revised version of DC 5257. Accordingly, the issue of whether a rating in excess of 10 percent for each knee is warranted is addressed in the remand, below. Prior to February 7, 2021, under Diagnostic Code 5257 a 10 percent evaluation is warranted when there is slight recurrent subluxation or lateral instability. A 20 percent evaluation is warranted when there is moderate recurrent subluxation or lateral instability. A 30 percent evaluation is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a. Diagnostic Code 5257 is based upon instability and subluxation, not the limitation of motion. As a result, the criteria outlined in DeLuca do not apply. DeLuca, 8 Vet. App. at 206. Under Diagnostic Code 5260, limitation of flexion of the leg, a 10 percent evaluation is warranted where flexion is limited to 45 degrees; a 20 percent evaluation is warranted where flexion is limited to 30 degrees; and a 30 percent evaluation is warranted where flexion is limited to 15 degrees. 38 C.F.R. § 4.71a. Under Diagnostic Code 5261, limitation of extension of the leg, a 10 percent rating is warranted where extension is limited to 10 degrees; a 20 percent rating is warranted where extension is limited to 15 degrees; a 30 percent rating is warranted where extension is limited to 20 degrees; a 40 percent rating is warranted where extension is limited to 30 degrees; and a 50 percent rating is warranted where extension is limited to 45 degrees. 38 C.F.R. § 4.71a (2019). VA's Office of General Counsel has provided guidance concerning increased rating claims for knee disorders. Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition. See Esteban, 6 Vet. App. at 262. VA's General Counsel interpreted that compensating a claimant for separate functional impairment under Diagnostic Code 5257 and 5003 does not constitute pyramiding. VAOPGCPREC 23-97. In VAOPGCPREC 9-98, VA's General Counsel reiterated that if a veteran has a disability rating under Diagnostic Code 5257 for instability of the knee, and there is also X-ray evidence of arthritis, a separate rating for arthritis could also be based on painful motion under 38 C.F.R. § 4.59. Given the findings of osteoarthritis, the General Counsel stated that the availability of a separate evaluation under Diagnostic Code 5003 in light of sections 4.40, 4.45, 4.59 must be considered. See Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). Absent x-ray findings of arthritis, limitation of motion should be considered under Diagnostic Codes 5260 and 5261. The veteran's painful motion may add to the actual limitation of motion so as to warrant a rating under Diagnostic Codes 5260 or 5261. The Veteran was afforded a VA examination in July 2014. The examination showed that the Veteran was diagnosed with bilateral chondromalacia patella. The Veteran reported no flare ups but endorsed symptoms of pain and stiffness after too much activity. Range of motion testing showed flexion to 140 degrees or greater and normal extension. There were no additional limitations found after repetitive use. Pain was noted on the peri patellar bilaterally. Ankylosis was not presented. There was no instability or laxity. See July 2014 VA Examination. On April 13, 2015, a physician noted the following: “right knee, skin is intact. There is no erythema, warmth or swelling. Some moderate crepitus is noted. Full range of motion. No appreciable instability. To the left knee, skin is intact. There is no erythema or warmth. There is some skin swelling. There is some crepitus and tenderness anteriorly diffusely. No masses are palpated. Compartments are soft. There is no evidence of cellulitis or lymphangitis, no pathologic reflexes, distally neurovascularly intact. Normal sensation. Feet are warm and well perfused. Balance and coordination are mildly diminished”. See Medical Treatment Record - Non-Government Facility. An April 17, 2015 MRI indicated that there was mild lateral subluxation of the patella relative to the trochelear groove, with lateral patellar tilt. See Medical Treatment Record - Non-Government Facility. On April 20, 2015 the Veteran’s medical report noted that the Veteran complained pain that was worse with any type of running or movement. The objective findings in that examination revealed “Peripatellar tenderness noted today. Negative Lachman. Negative drawer. +/- McMurray sign noted. No masses palpated. Assessment: bilateral knee pain, left greater than right and patellofemoral arthritis, bilateral knees- left greater than right”. See Medical Treatment Record - Non-Government Facility. In August 2015, the Veteran reported difficulty with hiking or walking and that she takes ibuprofen two to three times a day. Review of the systems were noted as unchanged. Objective findings indicated that crepitus was noted on exam. Tenderness in the patellofemoral joint. No medial or lateral joint line tenderness, McMurray sing noted, negative drawer sign, upper extremity without weakness or edema. See Medical Treatment Record - Non-Government Facility. In a March 2016 examination note, the physician noted the following “Left knee shows skin to be intact, no erythema, warmth or effusion. Good range of motion, no laxity or instability. Compartments are soft. Neurovascular exam is intact”. The impression was degeneration osteoarthritis, bilateral knees. See Medical Treatment Record - Non-Government Facility. Objective findings in a May 2016 medical report noted that the bilateral knees had a stable range of motion. There were no signs of infection, but that crepitus and pain were present. See Medical Treatment Record - Non-Government Facility. An October 2020 examiner provided retrospective opinions regarding the Veteran’s bilateral knee disabilities prior to October 2016 for the left knee and prior to December 13, 2016. The examiner noted that the estimate the range of motion for the left knee were 120 flexion and zero extension based on the findings of a September 2015 VA orthopedic note (which noted that the Veteran exhibited decreased flexion in the knees by 15-20° because of the anterior pain). The examiner also noted that there was pain on active motion and passive motion, weight bearing and non-weight bearing; and that the right knee as well as left knee already diagnosed with osteoarthritis. The examiner concluded that therefore prior to the periods on appeal the range of motion measurements for the left and right knees were flexion to 120 degrees; and extension to 0 degrees. See October 2020 C&P Examination. The Board notes that the Veteran is in receipt a 10 percent rating for the left knee and right knee disabilities respectively, effective from May 26, 2014. However, the Board finds that separate 10 percent ratings for the left and right knees are warranted for the appeal period. The Board notes that the Veteran has reported symptoms of her knees “giving away” to her private physician, Dr. M. G. Additionally, the April 2015 MRI revealed “mild lateral subluxation of the patella relative to the trochelear groove”. Furthermore, the Veteran is competent to describe symptoms associated with knee instability, such as her knees giving way, locking or concerns about knee stability with activity. See Jandreau, 492 F.3d at 1377. While various examinations did not note objective evidence of instability, the Board resolves reasonable doubt in favor of the Veteran to find that "mild" instability of each knee has been present since the April 2015 MRI report. The Board finds that the evidence does not more nearly approximate moderate instability for either knee under the prior version of DC 5257. The VA examinations of record show that clinical joint stability testing have not revealed instability. Even with due consideration to the Veteran's lay descriptions about symptoms of giving way regarding her knee disabilities, the Board finds that the evidence does not demonstrate left or right knee instability symptoms that more nearly approximate moderate instability. 38 C.F.R. § § 4.71a, DC 5257. The record does not also reflect dislocated semilunar cartilage or removal of semilunar cartilage of the bilateral knees to warrant a separate rating under Diagnostic Code 5258 or a higher rating under Diagnostic Code 5259. See 38 C.F.R. § 4.71a. For the reasons discussed above, the Board finds that separate 10 percent ratings, but no higher, are warranted based upon left and right knee instability are warranted prior to February 7, 2021. REASONS FOR REMAND 1. Entitlement to an increased rating greater than 10 percent from February 7, 2021, for instability of the left knee is remanded. 2. Entitlement to an increased rating greater than 10 percent from February 7, 2021, for instability of the right knee is remanded. 3. Entitlement to an increased rating greater than 10 percent prior to October 11, 2016 for total left knee replacement (previously rated as chondromalacia, left knee) is remanded. 4. Entitlement to an increased disability rating greater than 10 percent prior to December 13, 2016 for total right knee replacement (previously rated as chondromalacia, right knee) is remanded. 5. Entitlement to a disability rating greater than 60 percent for total left knee replacement (previously rated as chondromalacia, left knee) from November 1, 2018 is remanded. 6. Entitlement to a disability rating greater than 60 percent for total right knee replacement (previously rated as chondromalacia, right knee) from January 1, 2019 is remanded. While the Board sincerely regrets the delay, a remand is required before the Board can make a determination on the merits of the remaining outstanding increased rating claims on appeal. The Veteran asserts that her left knee disability warrants a rating greater than 10 percent prior to October 11, 2016; a rating greater than 10 percent prior to December 13, 2016 for her right knee disability; a rating greater than 60 percent from November 1, 2018 for her left knee; and a rating greater than 60 percent from January 1, 2019 for her right knee disability. As noted above, the regulations pertaining to musculoskeletal disabilities were amended, effective February 7, 2021. See 85 Fed. Reg. 76453 (Nov. 30, 2020). The Secretary of VA has determined that “claims pending prior to [February 7, 2021] will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied.” As the Veteran's claims was pending prior to February 21, 2021, a remand is necessary for an examination of her left and right knee disabilities using the principles and rating criteria from the amendments. Further, having awarded separate 10 percent ratings for instability of each knee, a new examination should be conducted to ascertain whether a rating in excess under the revised version of DC 5257 is warranted. The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to assess the current severity of her service-connected bilateral knee disabilities. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran's disabilities under the new rating criteria. Specifically, the examiner must test the Veteran's active motion, passive motion, ranges of motion of the opposing joint, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. 2. The examiner must also provide retrospective opinions regarding the severity of the Veteran’s service-connected left knee, prior to her total knee replacement surgery on October 11, 2016, and of her right knee, prior to her total knee replacement surgery on December 13, 2016, that includes the range of motion testing as mandated in Correia and 38 C.F.R.§ 4.59. 3. A complete rationale should be provided by the examiner for any expressed opinion. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. M. Rogers, 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.