Citation Nr: 21011863 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 00-12 232A DATE: March 2, 2021 ORDER Entitlement to a rating in excess of 10 percent for left knee arthritis is denied. Entitlement to a rating in excess of 10 percent for left knee meniscus disability is denied. REMANDED Entitlement to a rating in excess of 10 percent for right knee chondromalacia patella is remanded. Entitlement to an initial rating in excess of 10 percent for left knee instability. Entitlement special monthly compensation based on aid and attendance is remanded. FINDINGS OF FACT 1. Affording the benefit of the doubt to the Veteran, the Veteran’s left knee arthritis has been manifested primarily by pain, decreased flexion no less than 90 degrees, and full extension to 0 degrees. 2. The Veteran is in receipt of the highest schedular rating for his left knee meniscus disability rated under Diagnostic Code 5259. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for right knee disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5260. 2. The criteria for entitlement to service connection left knee meniscus disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.7, 4.40, 4.45, 4.71a, DC 5259. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty form June 1977 to June 1997. In a September 2014 statement, the Veteran submitted a notice of disagreement and a VA Form 9 to request a direct appeal to the Board. He explicitly waived his right to a statement of the case (SOC). In September 2015, the Board accepted jurisdiction of these claims after the Veteran indicated that he wanted to proceed with the appeal without a SOC. These issues were remanded in September 2015, August 2017, and August 2020 for further development, including obtaining outstanding VA treatment records and scheduling the Veteran for VA examinations to determine the severity of the bilateral knee disabilities. VA treatment records have since been associated with the claims file and the Veteran was afforded relevant VA examinations in June 2017, October 2019, and September 2020. As such, with regard to the left knee arthritis and meniscus disability, the Board finds there has been substantial compliance with the remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Stegall v. West, 11 Vet. App. 268 (1998). Increased Rating Disability evaluations are determined by applying a schedule of ratings which is based on average impairment of earning capacity based on the specific diagnostic codes identifying the various disabilities.  38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating.  38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. For musculoskeletal disabilities, a higher rating may be based on greater limitation of motion due to pain on use, including during flare-ups.  38 C.F.R. §§ 4.10, 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202 (1995). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability, and therefore, actually painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. See 38 C.F.R. § 4.59. Regarding knee claims, a claimant who has arthritis and instability of the knee may be rated separately under DCs 5003 and 5257 or 5258/5259. See VAOPGCPREC 23-97. For example, when a knee disorder was already rated under DC 5257 (addressing lateral instability), a separate rating may be warranted if the Veteran’s knee also shows limitation of motion which at least meets the criteria for a zero-percent rating under DC 5260 (flexion limited to 60 degrees or less) or 5261 (extension limited to 5 degrees or more). Moreover, a separate rating could also be warranted under 38 C.F.R. § 4.59, based on x-ray findings of arthritis with painful motion. See VAOPGCPREC 9-98; see also Degmetich v. Brown, 104 F.3d 1328, 1331 (Fed. Cir. 1997). In addition, the General Counsel has also held that separate ratings may be granted based on limitation of flexion (DC 5260) and limitation of extension (DC 5261) of the same knee joint. VAOPGCPREC 09-04. The Board notes that the criteria for rating musculoskeletal disabilities were amended during the pendency of the appeal, effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020). When a law or regulation changes during the pendency of an appeal, the version most favorable to the Veteran applies, absent congressional intent to the contrary. See VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (May 23, 2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change; however, the old regulations will be considered for the periods both before and after the change was made. See 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114; VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (May 23, 2000); Kuzma, 341 F.3d 1327. 1. Entitlement to a rating in excess of 10 percent left knee arthritis In this case, the Veteran’s left knee arthritis is rated under DC 5003-5260. The Veteran has limitation of motion and the basis for his compensation is DC 5260, which was unchanged in the new regulations. The Veteran applied for an increased rating for his service-connected bilateral knee disabilities in March 2013. Throughout the course of the period on appeal, the Veteran has undergone multiple VA examinations to evaluate the severity of his bilateral knee disabilities. At the January 2014, April 2014, December 2015, June 2017, October 2019, and September 2020 VA examinations, the Veteran underwent range of motion (ROM) testing and consistently reported flare-ups that caused limitation of motion (LOM). Throughout the appeal period, including in the six noted VA examinations, the Veteran’s ROM was, at worst, noted to show flexion limited to 90 degrees and normal extension (zero degrees). The Board has considered the DeLuca criteria. However, a rating higher than 10 percent for left knee arthritis is also not warranted based on functional loss due to pain, weakness, premature or excess fatigability, and incoordination, causing additional disability beyond that reflected in range of motion measurements. 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 206 - 07. The evidence shows that the Veteran’s left knee disabilities are not manifested by weakness on range of motion testing and there are no additional limitations of motion on repeat testing. The Court has established that flare-ups must be considered. Sharp v. Shulkin, 29 Vet. App. 26 (2017). Guidance on how to evaluate flare-ups has not been particularly clear. However, the Board finds overall wisdom in Mitchell. Flare-ups must be quantifiable and must result in limitation of motion or function beyond that contemplated by the already provided evaluation. In addition, because there is a regulation addressing stabilization of ratings, the flare-up must be of such length as to establish that the overall impairment is more severe than currently evaluated, rather than a brief snapshot in time. With that in mind, consideration has been given to the Veteran’s report at the January 2014 VA examination that he experienced total loss of function during a flare-up; however, in April 2014 the Veteran estimated his ROM during a flare-up at 90 degrees flexion and normal extension. In all subsequent VA examinations, the Veteran’s ROM during a flare-up was estimated to be at least 95 degrees flexion and normal extension. In sum, 38 C.F.R. § 4.1 provides that the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illness proportionate to the severity of the several grades of disability. Here, the single report of exacerbation or flare-ups of such severity in January 2014 is not of sufficient duration to warrant a change in evaluation without violating the spirit of Mitchell, the spirit of 38 C.F.R. § 4.1 and the rule regarding stabilization of ratings. The Board has considered whether a higher disability rating is warranted based on functional loss due to pain or weakness, fatigability, incoordination, or pain on movement of a joint. The Board observes, however, that the current 10 percent ratings for the left knee arthritis under Diagnostic Code 5260 contemplates the effects of any complaints of pain, fatigue, swelling, weakness, or lack of endurance. Even considering the Veteran’s subjective complaints and the objective findings of functional loss due to pain, his limitation of flexion does not approximate flexion limited to 30 degrees, which is required for a higher 20 percent rating under Diagnostic Code 5260. Accordingly, consideration of other factors of functional limitation does not support the grant of a rating in excess of the 10 percent rating already assigned. See 38 C.F.R. §§ 4.40, 4.45; DeLuca, supra. Consideration has also been given to other potentially applicable diagnostic codes. In this regard, the Board notes that the Veteran is already in receipt of separate ratings for left knee scars (DC 7804), left knee residuals of meniscectomy (DC 5259), and left knee instability (DC 5257). The ratings for the scars and instability are not on appeal, and the rating for the meniscectomy is discussed herein. The Veteran clearly does not have ankylosis to warrant a separate rating under Diagnostic Code 5256 (ankylosis), and there is no evidence of dislocated cartilage with frequent episodes of “locking” pain, limitation of extension, malunion of the tibia and fibula, or genu recurvatum to warrant separate ratings under Diagnostic Codes 5258 (dislocated cartilage with frequent episodes of “locking” pain), 5261 limitation of extension, 5262 (malunion of the tibia and fibula), or 5263 (genu recurvatum). Based on the foregoing, the preponderance of the evidence is against the assignment in excess of 10 percent for left knee arthritis. 2. Entitlement to service connection left knee meniscus disability The Veteran has been assigned the maximum rating assignable under Diagnostic Code 5259 for the entire period of appeal. As such, a rating in excess of 10 percent for the left knee residuals of meniscectomy is not warranted. As noted above, the Veteran is in receipt of four separate left knee disabilities under DCs 5260 (arthritis), 5257 (instability), 5259 (meniscus), and 7804 (scars). REASONS FOR REMAND 1. Entitlement to a rating in excess of 10 percent for right knee chondromalacia patella is remanded. 2. Entitlement to rating in excess of 10 percent for left knee instability is remanded. The Veteran’s right knee chondromalacia patella is evaluated under Diagnostic Code 5024-5257, indicating that tenosynovitis (DC 5024) is rated under the criteria for recurrent subluxation or lateral instability (DC 5257). His left knee instability is rated under Diagnostic Code 5257. Under the revised criteria for rating musculoskeletal disabilities effective February 7, 2021, Diagnostic Code 5257 provides a 20 percent rating for recurrent subluxation or instability or patellar instability that requires a prescription by a medical provider for a brace, cane, walker, or crutch. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020). Here, the record clearly indicates the Veteran uses assistive devices, but it is not clear whether these devices are medically prescribed. As such, remand for a clarification is required. 3. Entitlement special monthly compensation based on aid and attendance The claim for a higher level of SMC is inextricably intertwined with the claims for entitlement to increased ratings for his bilateral knee disabilities. Where a claim is inextricably intertwined with another claim, the claims must be adjudicated together. Harris v. Derwinski, 1 Vet. App. 180 (1991). Therefore, further consideration of the claim for a higher level of SMC must be deferred. The matters are REMANDED for the following actions: 1. Associate with the claims file all records relevant to any prescribed assistive devices (such as a brace, cane, walker, or crutch(es)) for the Veteran’s right and/or left knee conditions, to include associating any relevant documents scanned into VistA Imaging and/or contacting the Veteran and asking him to submit all necessary authorizations to obtain relevant records. 2. After completing the above, and any additional development deemed necessary, readjudicate the claims. If any benefit sought on appeal remains denied, then a fully responsive supplemental statement of the case should be furnished to the Veteran and his representative, and they should be afforded a reasonable opportunity for response. N. NELSON Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Rekowski 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.