Citation Nr: 21012748 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 17-45 788 DATE: March 5, 2021 ORDER Entitlement to a 10 percent disability rating for left knee instability is granted. Entitlement to a rating higher than 10 percent for a left knee disability based on limitation of motion is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDING OF FACT 1. The evidence is in equipoise as to whether the left knee is manifested by slight instability. 2. The Veteran’s left knee disability is manifested by complaints of pain, with flexion limited to no less than 90 degrees and extension to no greater than 10 degrees. CONCLUSION OF LAW 1. The criteria for a rating of 10 percent, but not higher, for right knee instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5257. 2. The criteria for a rating higher than 10 percent for limited motion of the left knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1980 to January 1991. In an April 2019 decision, the Board denied a rating higher than 10 percent for a left knee disability and remanded the claim for entitlement to a TDIU. The Veteran appealed the Board’s denial of a rating in excess of 10 percent to the U.S. Court of Appeals for Veterans Claims (Court). By way of an April 2020 Order, the Clerk of the Court granted a Joint Motion for Partial Remand (JMPR) that vacated the April 2019 denial of a rating in excess of 10 percent for the left knee disability and remanded the matter for adjudication consistent with its terms. Entitlement to a higher disability rating for the left knee disability Ratings for service-connected disabilities are determined by comparing the Veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2009). The assignment of a particular diagnostic code to evaluate a disability 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. Traumatic arthritis shown by x-ray studies is rated based on limitation of motion of the affected joint. When limitation of motion would be noncompensable under a limitation-of-motion code, but there is at least some limitation of motion, a 10 percent disability rating may be assigned for each major joint so affected. 38 C.F.R. § 4.71a, Diagnostic Codes 5003 (degenerative arthritis) and 5010 (traumatic arthritis). Diagnostic Code 5003 states that degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate Diagnostic Codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003. When, however, the limitation of motion is noncompensable under the appropriate Diagnostic Codes, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. In the absence of limitation of motion, x-ray evidence of arthritis involving two or more major joints or two or more minor joint groups, will warrant a rating of 10 percent; in the absence of limitation of motion, x-ray evidence of arthritis involving two or more major joint groups with occasional incapacitating exacerbations will warrant a 20 percent rating. The above ratings are to be combined, not added under Diagnostic Code 5003. 38 C.F.R. § 4.71a, Diagnostic Code 5003, Note 1. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, with or without degenerative arthritis, 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. 38 C.F.R. §§ 4.59; see Burton v. Shinseki, 25 Vet. App. 1, 5 (2011) (holding that the provisions of 38 C.F.R. § 4.59 are not limited to disabilities involving arthritis). Moreover, when evaluating musculoskeletal disabilities, VA may, in addition to applying the schedular criteria, assign a higher disability rating when the evidence demonstrates functional loss due to limited or excessive movement, pain, weakness, excessive fatigability, or incoordination, to include during flare-ups and with repeated use, if those factors are not considered in the rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202 (1995); Burton, 25 Vet. App. at 5. The Court also held in Correia v. McDonald, 28 Vet. App. 158 (2016) that the final sentence of 38 C.F.R. §§ 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Nonetheless, a disability rating higher than the minimum compensable rating is not assignable under any diagnostic code relating to range of motion where pain does not cause a compensable functional loss. Rather, the “pain must affect some aspect of ‘the normal working movements of the body’ such as ‘excursion, strength, speed, coordination, and endurance,” as defined in 38 C.F.R. §§ 4.40, before a higher rating may be assigned. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011) (noting that while “pain may cause a functional loss, pain itself does not constitute a functional loss,” and, is therefore, not grounds for entitlement to a higher disability rating). As the Veteran can understand, the evaluation of a knee problem is complicated. The Veteran seeks a separate compensable rating for left knee instability. The Veteran’s service-connected left knee disability has been assigned a 10 percent disability rating for limitation of motion under Diagnostic Codes 5261. 38 C.F.R. § 4.71a, Diagnostic Code 5261. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes “to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities.” Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran’s claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Flexion of the leg limited to 60 degrees warrants a 0 percent rating, flexion limited to 45 degrees warrants a 10 percent rating, flexion limited to 30 degrees warrants a 20 percent rating, and flexion limited to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Extension limited to 5 degrees warrants a 0 percent rating, extension limited to 10 degrees warrants a 10 percent rating, extension limited to 15 degrees warrants a 20 percent rating, extension limited to 20 degrees warrants a 30 percent rating, extension limited to 30 degrees warrants a 40 percent rating, and extension limited to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Flexion of the knee to 140 degrees is considered full and extension to 0 degrees is considered full. See 38 C.F.R. § 4.71, Plate II. VA’s General Counsel has held that separate ratings may be assigned for disability of the same joint under Diagnostic Codes 5260 (for limitation of flexion) and 5261 (for limitation of extension). VAOGCPREC 9-2004 (September 2004). In contrast, an evaluation under Code 5003 may not be combined with one under Code 5260 or Code 5261; Code 5003 does not specify the plane of limited motion considered, and so evaluation under either of the other limitation of motion Codes forecloses the possibility of multiple evaluations. See generally VAOPGCPREC 23-97 and VAOPGCREC 9-98; 38 C.F.R. § 4.14. Prior to the regulatory change, the rating schedule provided for a 10 percent rating for slight recurrent subluxation or lateral instability, a 20 percent rating for moderate recurrent subluxation or lateral instability, and a 30 percent rating for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. As of February 7, 2021, under the amended criteria for recurrent subluxation or lateral instability, a 10 percent rating is warranted for 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 (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. 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 (e.g., cane(s), crutch(es), walker) and bracing for ambulation. 38 C.F.R. § 4.71a, Diagnostic Code 5257. As of February 7, 2021, under the amended criteria for recurrent patellar instability, a 10 percent rating is warranted 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 warranted 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. 38 C.F.R. § 4.71a, Diagnostic Code 5257. For patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. 38 C.F.R. § 4.71a, Diagnostic Code 5257, Note (1). 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). 38 C.F.R. § 4.71a, Diagnostic Code 5257, Note (2). Dislocated semilunar cartilage, with frequent episodes of “locking,” pain, and effusion into the joint will be rated a maximum 20 percent disabling. 38 C.F.R. § 4.71a , Diagnostic Code 5258. Removal of the semilunar cartilage, if symptomatic, will be rated a maximum 10 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Code 5259. The Board has also considered whether separate or increased evaluations are warranted under any other Diagnostic Codes pertaining to knee disabilities that would afford the Veteran higher ratings. Here, there is no evidence of ankylosis of the knee to warrant a rating under Diagnostic Code 5256; there is no evidence of dislocated semilunar cartilage, or removal of the semilunar cartilage under Diagnostic Codes 5258, 5259; no evidence of malunion or nonunion of the tibia and fibula to warrant a rating under Diagnostic Code 5262 for impairment of the tibia, and; no evidence of genu recurvatum to warrant a rating under Diagnostic Code 5263. Hence, the Board will not discuss these Diagnostic Codes any further. A May 2014 clinical treatment note recorded complaints of bilateral knee pain, left greater than right. The Veteran reported pain with weight bearing, limited range of motion and difficulty with stairs and squatting. She endorsed a sense of instability with pain, as well as stiffness and intermittent throbbing. The Veteran reported locking at the anterior knee. On examination, flexion was to 105 degrees with mild to moderate tenderness. Instability testing, including McMurray, Lachman, anterior and posterior drawers test were all negative. A June 2014 rehabilitation note recorded complaints of pain, with no dysesthesias or locking. The assessment was degenerative joint disease of the left knee. On VA examination in December 2014, the examiner noted a history of anterior cruciate ligament (ACL) repair in 1987 for an anterior cruciate ligament tear. The Veteran reported pain, swelling and loss of mobility. She described difficulty with walking, standing or sitting for extended periods, and bending down to lift. The Veteran endorsed flare-ups which resulted in pain with walking, standing, squatting, and climbing ladders or slopes. The examiner noted the left knee diagnoses of anterior cruciate ligament tear and knee joint osteoarthritis. Range of motion testing of the left knee revealed flexion to100 degrees and extension to 10 degrees. Both flexion and extension exhibited pain with tenderness of the joint or associated soft tissue. The examiner noted no history a meniscus (semilunar cartilage) condition. No ankylosis, subluxation, lateral instability, recurrent effusion, shin splints, or locking pain was noted. The medial/lateral collateral ligaments stability test, the anterior/posterior cruciate ligaments stability test and the medial/lateral meniscus stability test are all within normal limits. The examiner noted that the Veteran used orthotic insert for ambulation. In March 2015, the Veteran reported occasional sense of locking, but the clinician determined there was no true mechanical locking. The clinician noted instability associated with pain and a sense of locking, with no true pain-free buckling. In August 2015, no knee locking was noted. In November 2015 report noted “no pain-free instability”. The Veteran reported a fall onto the right knee approximately a week earlier. A VA treatment note in June 2016, showed the Veteran used of a yellow bracelet to alert other staff members of her fall risk. The Veteran declined a wheelchair for ambulation. August 2016 and September 2016 treatment notes showed that the Veteran reported having fallen in October 2015 after losing her of balance due to knee issues. Subsequent treatment records fail to document any complaints of knee instability, subluxation, balance problems or a diagnosed condition involving the patellofemoral complex, and the Veteran consistently denied falling since October 2015. Additionally, there is no evidence that the Veteran was prescribed a brace, crutch, cane or walker to assist with ambulation as a result of the left knee disability. On VA examination in July 2019, the Veteran endorsed flare-ups of left knee symptoms almost daily. The left knee flare-ups were described as moderate to severe, lasting from 30 min to 1.5 hours. Flare-ups were precipitated by standing, walking, sitting, climbing stairs and sometimes during sleep, and were alleviated by resting and medicine. She was unable to walk fast or squat down, and had significant difficulty in going up and down the stairs. Left knee range of motion was 10 to 90 degrees with pain, with no additional loss of motion with repetitive movement. There was mild localized tenderness or pain on palpation of the left knee joint. There was pain on weight bearing, non-weight bearing and passive range of motion. The examiner noted crepitus. The examiner found no evidence of left knee ankylosis, subluxation, lateral instability, recurrent effusion, shin splints, patellar or quadriceps tendon rupture, patellar dislocation or locking pain. The examiner noted that the Veteran did not have, nor had she ever had, a meniscus/semilunar cartilage condition. The medial/lateral collateral ligaments stability test, the anterior/posterior cruciate ligaments stability test and the medial/lateral meniscus stability test were all within normal limits. There was no reduction of muscle strength or muscle atrophy. The Veteran required no assistive devices for ambulation. The examiner noted surgical scarring that was not painful or unstable. The scar measured 20 cm in length by 0.5 cm width. Occupationally, the Veteran was not able to stand or walk for more than 5 to 10 minutes and she experienced significant difficulty going up and down the stairs. Her left knee surgery contributed significantly to her advanced arthritis in the left knee. She apparently had significant limitation of her mobility due to the limited range of motion of both knees, especially the left knee, with constant pain and difficulty with stairs. The Board will first address the claim for a separate compensable rating left knee instability. The Veteran has reported subjective complaints of instability, locking, giving way, stiffness, buckling and swelling throughout the appeal. In March 2015 a clinician noted instability associated with pain. She related falling due to loss of balance associated with the knee. However, joint stability testing in May 2014, December 2014 and July 2019, revealed no abnormalities, and the examiners noted no history of recurrent subluxation or lateral instability. The Board acknowledges that there is a lack of clarity on whether the Veteran has had instability. However, after examining the medical evidence, the VA examinations, and the Veteran’s statements, the Board finds that knee instability has (it appears) played a role in her knee condition. Accordingly, affording the Veteran the benefit of the doubt, the Board finds that a 10 percent disability rating for slight left knee instability under the rating criteria in effect prior to February 7, 2021, is warranted. There is no indication that any instability found to have been present was moderate in severity. Specifically, stability testing consistently revealed no abnormalities and muscle strength was full, with no atrophy. Additionally, there is no evidence that the Veteran has been prescribed an assistive device for ambulation, to include a brace, cane, crutch or a walker, due to the left knee disability. Accordingly, a rating of 10 percent, but no higher, for recurrent subluxation and lateral instability of the knee is warranted. 38 C.F.R. § 4.71a Diagnostic Code 5257. Next, concerning higher disability ratings based on limitation of motion, the Board notes that Diagnostic Code 5003 cannot serve as the basis for higher ratings for the knee disability, inasmuch as the knee is a single joint. A maximum rating of 10 percent would be assigned for the knee under Diagnostic Code 5003, therefore a higher rating is not warranted. 38 C.F.R. § 4.71a. Diagnostic Code 5003. The Veteran’s service-connected left knee disability has been assigned a separate rating of 10 percent under Diagnostic Code 5261, for limited extension. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Throughout the appeal, extension was limited to, at worst, 10 degrees, thus warranting a separate 10 percent disability rating based on limitation of left knee extension. Flexion was limited to, at worst, more than 90 degrees. Thus, her range of motion was beyond required flexion limited to 45 degrees for a compensable rating, and beyond required extension to 15 degrees for the next higher rating of 20 percent. Deluca factors. 38 C.F.R. §§ 4.40 and 4.45. See DeLuca, 8 Vet. App. at 207; see also Mitchell, 25 Vet. App. at 32; Correia, 28 Vet. App. at 158; Sharp, 29 Vet. App. at 26. Accordingly, higher or separate ratings for limitation of extension and/or flexion of the left knee are not warranted. Although the Veteran has reported pain associated with her range of motion, the Court has held that “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.” See Mitchell, 25 Vet. App. 32. Indeed, the Court found that nothing in its case law supports an appellant’s contentions that she should be given the maximum disability ratings under Diagnostic Codes 5260 and 5261 simply because she experienced pain throughout the range of motion of the knee. Id. While an estimate of loss of motion in degrees was not noted during flare-ups, the examiners reported no additional limitation of motion with repetitive movements. Additionally, a review of the entirety of the evidence of record, including the Veteran’s VA clinical records, does not suggest that the Veteran experiences symptomatology during flare-ups sufficient to justify a rating in excess of 10 percent. While the Board could remand this matter yet again to request this additional information, such remand would likely result in additional delay and expenditure of resources without any reasonable possibility of assisting the Veteran in demonstrating entitlement to a higher overall rating for the left knee (and may provide evidence against the current evaluations). Given these findings, additional remand is found unwarranted. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). This appeal has been pending for many years and the Board does not wish to delay the Veteran’s case once again. Another examination in light of either Correia or Sharp is simply not warranted in this distinct case and would only delay the adjudication without benefit to the Veteran. The findings regarding the knee are very consistent over a period of time. The post-service treatment records, as whole, do not fully support the Board’s grant of the claim above, let alone a higher evaluation. Additionally, while the left knee disability involves surgical scarring, as the scar on the left knee was not painful or unstable, nor covering a total area greater than 39 square cm. Accordingly, separate compensable rating is not warranted. See 38 C.F.R. § 4.118, Diagnostic Codes 7804, 7805. While the Veteran clearly has problems with her left knee (if she did not, there would be no basis for the current compensation level) the Board finds the medical evidence of record to be highly probative as to the current nature, extent, and severity of the Veteran’s left knee disorder. The medical reports were based on physical examinations and provided sufficient information to allow the Board to apply the schedular criteria. Thus, although the Veteran’s competent and credible reports of symptoms have been considered and are probative, the Board attaches greater probative weight to the clinical findings of skilled, unbiased professionals. See Cartleft v. Derwinski, 2 Vet. App. 24, 25 (1991). As such, the objective medical findings and opinions provided by the VA examiners have been accorded greater probative weight and outweigh the Veteran’s contentions. For all the foregoing reasons, the Board finds that the preponderance of the evidence is against assignment of any higher and/or separate ratings for the left knee disability. See 38 U.S.C. § 5107 (b); Gilbert, supra. REASONS FOR REMAND Entitlement to a TDIU due to service-connected disabilities is remanded. The claim of entitlement to a TDIU was previously before the Board in April 2019, at which time it was remanded for additional development. It appears that while the claim for an increased rating for the left knee disability was being appealed to the Court, development and adjudication of the remanded claim for entitlement to a TDIU was deferred. Simply stated, the RO could not act on the TDIU issue without knowing the what the Court would do regarding the left knee issue. A review of the claims file shows that the matter is not ripe for appellate disposition as the record shows it is still being developed by the Agency of Original Jurisdiction (AOJ). Another remand is necessary to implement the Board’s remand directives, as a Board remand confers on the Veteran the right to compliance with the remand order. The matters are REMANDED for the following action: The AOJ should review the record and ensure compliance with the April 2019 Board remand directives regarding the TDIU claim. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Azizi, T. 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.