Citation Nr: 21013654
Decision Date: 03/10/21	Archive Date: 03/10/21

DOCKET NO. 10-20 423
DATE: March 10, 2021

ORDER

From March 1, 2010 to the present, an increased 40 percent rating, but no greater, for lumbar spine strain with intervertebral disc syndrome (IVDS) and arthritis, is GRANTED. 

An increased rating greater than 10 percent for LEFT knee arthritis and patellofemoral syndrome is DENIED. 

A separate 10 percent rating for LEFT knee instability under Diagnostic Code 5257 is GRANTED. 

Prior to November 4, 2019, an increased rating greater than 10 percent for RIGHT knee arthritis and patellofemoral syndrome is DENIED. 

From November 4, 2019 to January 1, 2021, an increased rating greater than 100 percent for a RIGHT knee disability, status post total knee replacement surgery, is DENIED.

On and after January 1, 2021, an increased rating greater than 30 percent for a RIGHT knee disability, status post total knee replacement surgery, is DENIED.

A separate 10 percent rating for a RIGHT knee medial meniscus injury, status post medial meniscectomy, under Diagnostic Code 5259 is GRANTED. 

FINDINGS OF FACT

1. From March 1, 2010 to the present, the Veteran’s service-connected lumbar spine strain with IVDS and arthritis limits forward flexion to 30 degrees or less due to pain, weakness, fatigue, and other factors of functional loss during flare-ups or after repetitive motion.  However, his lumbar spine disability is not productive of unfavorable ankylosis of the entire spine, unfavorable ankylosis of the entire thoracolumbar spine, favorable ankylosis of the entire thoracolumbar spine, or incapacitating episodes having a total duration of at least 6 weeks during any 12 month period.  

2. The Veteran’s LEFT knee arthritis and patellofemoral syndrome does not display limitation of flexion to 30 degrees, even with consideration of pain upon motion, flare-ups, repetitive use of the left knee, and other functional loss factors.

3. For the LEFT knee, there is probative lay and clinical evidence of “slight” instability, associated with his service-connected LEFT knee.  But the evidence of record does not demonstrate LEFT knee subluxation or lateral instability to a “moderate” or “severe” degree.  

4. Prior to November 4, 2019, the Veteran’s RIGHT knee arthritis and patellofemoral syndrome does not display limitation of flexion to 30 degrees, even with consideration of pain upon motion, flare-ups, repetitive use of the right knee, and other functional loss factors.

5. From November 4, 2019 to January 1, 2021, the Veteran’s RIGHT knee disability, status post total knee replacement surgery, has already been assigned a 100 percent rating.  This is the maximum schedular rating authorized for a right knee prosthesis under Diagnostic Code 5055.  

6. From January 1, 2021 to the present, the Veteran’s RIGHT knee disability, status post total knee replacement surgery, manifests in “intermediate” degrees of residual weakness, pain, and limitation of motion.  However, his right knee disability does not manifest in “severe” painful motion or “severe” weakness. 

7. For the RIGHT knee, throughout the entire appeal, the Veteran has symptomatic instability from a RIGHT knee medial meniscus injury, status post medial meniscectomy, associated with his service-connected RIGHT knee.

CONCLUSIONS OF LAW

1. From March 1, 2010 to the present, the criteria have been met for an increased rating of 40 percent, but no greater, for a lumbar spine strain with IVDS and arthritis.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243.

2. The criteria have not been met for increased rating greater than 10 percent for LEFT knee arthritis and patellofemoral syndrome.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5260.  

3. The criteria have been met for a separate initial 10 percent rating, but no greater, for LEFT knee instability associated with the Veteran’s service-connected LEFT knee disability.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.21, 4.71a, Diagnostic Code 5257; VAOPGCPREC 23-97 (July 1, 1997); VAOPGCPREC 9-98 (August 14, 1998).

4. Prior to November 4, 2019, the criteria have not been met for increased rating greater than 10 percent for RIGHT knee arthritis and patellofemoral syndrome.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5260.

5. From November 4, 2019 to January 1, 2021, the criteria have not been met for an increased rating greater than the maximum 100 percent rating already assigned for a RIGHT knee disability, status post total knee replacement.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.21, 4.71a, Diagnostic Code 5055.   

6. From January 1, 2021 to the present, the criteria have not been met for an increased rating greater than 30 percent for a RIGHT knee disability, status post total knee replacement.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5055.   

7. The criteria have been met for a separate initial 10 percent rating, but no greater, for instability from a RIGHT knee medial meniscus injury, status post medial meniscectomy.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5259; VAOPGCPREC 9-98 (August 14, 1998).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active duty service from September 1979 to March 1985 in the U.S. Army.   

The lumbar spine increased rating issue comes to the Board of Veterans’ Appeals (Board) on appeal from multiple rating decisions dated in February 2009, May 2009, August 2015, October 2016, and August 2020, issued by an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA).

The bilateral knee increased rating issues come to the Board on appeal from multiple rating decisions dated in February 2009, May 2009, October 2016, and August 2020, issued by the same AOJ.   

During the course of the appeal, the ratings for the Veteran’s lumbar spine and right knee disabilities have been staged by the AOJ for different periods of time.  See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999).  That is, for the lumbar spine, the Veteran was assigned 40 percent, 20 percent, 10 percent, 20 percent, and 40 percent ratings at different stages during the appeal.  For the right knee, the Veteran was assigned 10 percent, 100 percent, and 30 percent ratings at different stages during the appeal.  Presumably, the Veteran has continued to disagree with all ratings assigned.  See Breniser v. Shinseki, 25 Vet. App. 64, 79 (2011) (citing AB v. Brown, 6 Vet. App. 35, 38 (1993) (a veteran is presumed to be seeking the highest possible rating, unless he expressly indicates otherwise).

In December 2011, the Veteran presented testimony at a Travel Board hearing before the undersigned Veterans Law Judge.  A transcript of that hearing is associated with the claims file. 

In January 2013, July 2016, December 2017, and September 2019, the Board remanded the appeal for further development.  This case has since been returned to the Board for appellate review, after the AOJ substantially complied with the Board’s most recent September 2019 remand order.  Stegall v. West, 11 Vet. App. 268, 271 (1998).   

Finally, the Board has considered whether during the course of the increased rating appeal a request for a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities was reasonably raised by the record.  See 38 C.F.R. § 3.156(b); Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) (a request for a TDIU, whether expressly raised by Veteran or reasonably raised by the record, is not a separate “claim” for benefits, but rather, can be part and parcel of a claim for an initial rating or increased rating for a disability).  However, a March 2020 VA primary care note documented that the Veteran was working as a heavy equipment operator after his recent right knee surgery, taking Covid-19 precautions on the job.  Therefore, the issue of entitlement to a TDIU has not been raised by the evidence of record.  It will not be added to the present appeal.     

I.  VA’s Duty to Notify and Assist

VA’s duty to notify under the Veterans Claims Assistance Act of 2000 (VCAA) was satisfied by VA letters sent to Veteran, dated in December 2008, April 2009, January 2010, and July 2013.  See 38 U.S.C. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159 (2020).  These letters advised the Veteran of the information and evidence necessary to substantiate his increased rating claims.  

The Board in the present decision has granted additional, separate 10 percent ratings for the right and left knee disabilities on appeal, based on a careful consideration of the clinical and lay evidence of record.  The Board has also granted a higher 40 percent rating for the Veteran’s lumbar spine throughout the entire appeal period, instead of various, lower staged ratings.  That notwithstanding, the increased rating issues on appeal for the lumbar spine, right knee, and left knee are only being partially granted in the present Board decision.  In any event, subsequent to the most recent ameliorative September 2019 Board remand, neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist for any of the increased rating issues on appeal.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that the Board has an obligation to read filings in a liberal manner, but that obligation does not require the Board to “search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).  

In fact, in the December 2020 Post-Remand Brief, the Veteran’s representative acknowledged that the AOJ had substantially complied with the Board’s most recent September 2019 remand order, such that no additional development was necessary.  Stegall v. West, 11 Vet. App. 268, 271 (1998).  What’s more, the low back, right knee, and left knee increased rating issues on appeal have been pending since 2008 - so for over 12 years.  An imminent Board adjudication with a prompt resolution of these claims is to the Veteran’s benefit.    

II.  Increased Rating (IR)

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4.  The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.  

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  38 C.F.R. § 4.7. 

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.”). 

The Court has held that “limitation of motion” and “painful motion” are distinct concepts, although limitation of motion is a factor that may be considered to determine whether painful motion is present.  Tedesco v. Wilkie, 31 Vet. App. 360, 365-66 (2019).  

Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis.  See Burton v. Shinseki, 25 Vet. App. 1 (2011).  Read together, Diagnostic Code 5003 / 5010 and 38 C.F.R. § 4.59 indicate that painful motion of a major joint or groups caused by degenerative arthritis, where the arthritis is established by X-ray, is deemed to be limited motion and entitled to a minimum 10 percent rating, per joint, combined under Diagnostic Code 5003, even though there is no actual limitation of motion.  Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991).  

Further, 38 C.F.R. § 4.59 requires that "[t]he 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."  Correia v. McDonald, 28 Vet. App. 158, 169-170 (2016).  In addition, the assignment of a disability rating should take into account limitation of functional ability or additional range of motion lost during flare-ups or after repetitive motion, but not necessarily reflected on range-of-motion testing at the VA examination.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995).  

The Board must also assess the competence and credibility of lay statements and testimony.  Barr v. Nicholson, 21 Vet. App. 303, 308 (2007).  In increased rating claims, a Veteran’s lay statements alone, absent a negative credibility determination, may constitute competent evidence of worsening, at least with respect to observable symptoms.  See Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 102 (2010), rev’d on other grounds by Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (Fed. Cir. 2009).  The Veteran is uniquely suited to describe the severity, frequency, and duration of his service-connected lumbar spine and bilateral knee disabilities.  See Falzone v. Brown, 8 Vet. App. 398 (1995); Heuer v. Brown, 7 Vet. App. 379 (1995).  However, the Board can discount lay evidence in its role as factfinder if it weighs the evidence, finds the clinical evidence more probative, and provides an explanation with supporting reasons or bases.  English v. Wilkie, 30 Vet. App. 347, 352-53 (2018).  

When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor.  38 C.F.R. § 4.3.  

A.   Lumbar Spine at 40, 20, 10, 20, and 40 Percent Ratings 

The Veteran’s lumbar spine strain and arthritis is rated as 40 and 20 and 10 and 20 and 40 percent disabling at different times under Diagnostic Codes 5237 (lumbosacral strain) and 5242 (degenerative arthritis of the spine).  38 C.F.R. § 4.71a (2020).  

However, during the course of the appeal, the Veteran has been diagnosed with IVDS of the lumbar spine with incapacitating episodes (assessed on MRI as disc bulging and degenerative disc disease (DDD)).  See e.g., September 2007 and April 2013 MRIs for lumbar spine; May 2017 and February 2020 VA thoracolumbar spine examinations.  The Veteran’s DDD / IVDS has been associated with his service-connected thoracolumbar spine disability.  There is no evidence of record indicating a nonservice-connected, intercurrent cause.  Therefore, the Board will evaluate the Veteran’s lumbar spine disability under Diagnostic Code 5243 for IVDS, as it provides the potential for the most favorable rating under the current rating criteria.  See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (choice of diagnostic code should be upheld if it is supported by explanation and evidence).  

The Veteran filed an increased rating claim for his service-connected lumbar spine disability in November 2008.  When service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  But in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings.  See Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999).  The Board must consider whether there have been times when his lumbar spine disability has been more severe than at others, and rate it accordingly.  “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.”  Hart, 21 Vet. App. at 509.  Thus, the Board will focus on the evidence of record dated from November 2007 to the present, in adjudicating the increased rating claim at issue.

However, the Board is also cognizant that 38 C.F.R. §§ 4.1 and 4.2 and 4.41 require VA adjudicators to view each disability “in relation to its history” to “accurately reflect the elements of disability present,” respectively.  See Jones v. Shinseki, 26 Vet. App. 56, 62 (2012); see also Moore v. Shinseki, 555 F.3d 1369, 1373 (Fed. Cir. 2009) (discussing 38 C.F.R. §§ 4.1 and 4.2 and stating that, although the veteran was “only entitled to disability compensation for the period after … the date he filed his original claim for benefits,” VA regulations still require the disability to be “evaluated in light of its whole recorded history”).  Therefore, the Board has also considered and reviewed the Veteran’s entire history when assigning disability ratings for his lumbar spine IVDS in the present case.  38 C.F.R. § 4.1.  

As alluded to above, his IVDS of the lumbar spine has received the following staged ratings by the AOJ for separate periods of time: 

From March 1, 2010 to March 3, 2014, the Veteran’s IVDS of the lumbar spine is rated as 40 percent disabling. 

From March 3, 2014 to July 16, 2015, the Veteran’s IVDS of the lumbar spine is rated as 20 percent disabling.

From July 16, 2015 to the August 18, 2016, the Veteran’s IVDS of the lumbar spine is rated as 10 percent disabling.

From August 18, 2016 to February 24, 2020, the Veteran’s IVDS of the lumbar spine is rated as 20 percent disabling.

From February 24, 2020 to the present time, the Veteran’s IVDS of the lumbar spine is rated as 40 percent disabling.

The above ratings for his lumbar spine IVDS were assigned based on its orthopedic manifestations under the General Rating Formula for Diseases and Injuries of the Spine.  See 38 C.F.R. § 4.71a.    

The Board is aware that the Veteran's increased rating for his service-connected lumbar spine IVDS was staged by the AOJ during the course of the appeal and assigned 40, 20, 10, 20, and 40 percent ratings at different times.  Regardless, the assignment of a staged rating which includes a higher evaluation followed by a lower evaluation does not require application of the reduction notice rule.  The procedural protections regarding reduction of stabilized evaluations under 38 C.F.R. § 3.344 only apply to prospective rating reductions and are inapplicable to retroactively assigned staged disability ratings, assigned as part of an initial or increased disability evaluation.  Both the U.S. Court of Appeals for Veterans Claims (Court) and Federal Circuit Court have concluded that the procedural and substantive protections of the provisions of 38 C.F.R. §§ 3.105(e) and 3.344 do not apply to reductions in staged ratings.  See Singleton v. Shinseki, 23 Vet. App. 376 (2010); Reizenstein v. Shinseki, 583 F.3d 1331 (Fed. Cir. 2009); O'Connell v. Nicholson, 21 Vet. App. 89 (2007) (Board is not required to provide a § 3.105(e) notice where a staged rating is not reduced for any period of time below the evaluation in effect at the time of the appeal).  Therefore, in the instant case, no rating reduction analysis is necessary under 38 C.F.R. §§ 3.105(e) and 3.344 for the Veteran’s lumbar spine IVDS.  

The Veteran filed an increased rating claim for his service-connected lumbar spine IVDS in November 2008.  The Veteran believes that his lumbar spine is worse than his currently assigned 40, 20, 10, 20, and 40 percent ratings throughout the entire appeal period.  The Veteran testified at his December 2011 Travel Board hearing that he experiences lumbar spine pain on a daily basis.  He struggles at work as a heavy equipment operator riding a tractor.  He experiences daily muscle spasms, pain, stiffness, and cramps in the low back.  He is careful not to lift heavy objects.  Flexion or bending forward is the most difficult range of motion for him, as pain and weakness impair his motion.  He has to sit down to tie his shoes.  As a result of his lumbar spine IVDS, he is restricted with sitting, standing, ambulating, and with activities of daily living (ADLs).  He has described various aspects of his functional impairment due to his lumbar spine IVDS at the VA examinations throughout the appeal.  The Veteran takes several narcotic pain medications to control his low back pain, among other conditions. 

The criteria for spine disorders were amended in September 2002 and again in September 2003.  See 67 Fed. Reg. 54,345 54,349 (Aug. 22, 2002); 68 Fed. Reg. 51,454 (Aug. 27, 2003).  In this case, the Veteran’s increased rating claim for the thoracolumbar spine was received by the AOJ in November 2008, which was subsequent to the final amendments.  Thus, only the most current version of the rating criteria (i.e., the September 2003 amendments) is for application.  38 U.S.C. § 5110(g); VAOPGCPREC 3-2000.  See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003.  

The September 2003 amendments indicate that IVDS, (preoperatively or postoperatively) can be evaluated under either (1) the General Rating Formula for Diseases and Injuries of the Spine, OR (2) the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25.

The General Rating Formula for Diseases and Injuries of the Spine is as follows:

With or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease:

A 10 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent of more of height.  

A 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.

A 40 percent rating requires evidence of unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.

A 50 percent evaluation will be assigned with evidence of unfavorable ankylosis of the entire thoracolumbar spine.

A 100 percent rating requires evidence of unfavorable ankylosis of the entire spine.

Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code.

Note (2): (See also Plate V) For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion is zero to 30 degrees, and left and right lateral rotation is zero to 30 degrees.  For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion is zero to 45 degrees, and left and right lateral rotation is zero to 80 degrees.  The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation.  The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees.  The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion.

Note (4): Round each range of motion measurement to the nearest five degrees.

Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching.  Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.

Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability.

See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (in effect after September 26, 2003).

The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes is as follows:

A 10 percent rating requires evidence of incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months.  

A 20 percent rating requires evidence of incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months.  

A 40 percent rating requires evidence of incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. 

A 60 percent rating requires evidence of incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 

Note 1:  For purposes of evaluations under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 

Note 2:  If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment will be evaluated on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. 

38 C.F.R. § 4.71a, Diagnostic Code 5243 (in effect after September 26, 2003).

Upon review, throughout the entire appeal period from March 1, 2010 to the present, a higher 40 percent rating, but no greater, is granted, for the Veteran’s lumbar spine strain with IVDS and arthritis.  38 C.F.R. § 4.7.  This 40 percent rating is due to orthopedic manifestations of his thoracolumbar spine disability under the General Rating Formula for Diseases and Injuries of the Spine per Diagnostic Code 5243 (IVDS).  In making this determination that a 40 percent rating is warranted throughout the entire appeal period, the Board has reviewed both the medical and lay evidence of record.  Specifically, back to March 1, 2010, there is probative medical and lay evidence of record revealing forward flexion of the thoracolumbar spine to 30 degrees or less, when considering the factors of functional loss.  See again 38 C.F.R. § 4.71a, Diagnostic Code 5243.  In other words, in determining that the Veteran’s 40 percent rating should be earlier in time back to March 1, 2010, the Board has considered additional range of thoracolumbar spine motion lost during flare-ups or after repetitive motion, but not necessarily reflected on range-of-motion testing at the VA examinations.  See 38 C.F.R. § 4.40; Sharp, 29 Vet. App. at 33; DeLuca, 8 Vet. App. at 206.    

In essence, in the present Board decision, the Board is restaging his 40, 20, 10, 20, and 40 percent ratings for his IVDS of the lumbar spine into a single 40 percent rating during the entire appeal period, based on the medical and lay evidence of record.  

That is, in his lay statements and hearing testimony, the Veteran competently and credibly reported that he experiences “constant” lumbar spine pain on a “daily” basis.  He struggles at work as a heavy equipment operator riding a tractor.  He experiences daily muscle spasms, pain, stiffness, and cramps in the low back.  The pain worsens as the day progresses.  He is careful not to lift heavy objects.  Flexion or bending forward is the most difficult range of motion for him, as pain and weakness impair his motion.  He has to sit down to tie his shoes.  As a result of his lumbar spine IVDS, he is restricted with sitting, standing, ambulating, and with activities of daily living (ADLs).  He has described various aspects of his functional impairment due to his lumbar spine IVDS at the VA examinations throughout the appeal.  The Veteran takes several narcotic pain medications to control his low back pain (hydrocodone and tramadol and methocarbamol).  See also January 2013 Veteran statement.  

In the clinical evidence of record, at the February 2010 VA spine examination, the Veteran reported flare-ups of his lumbar spine pain several times a day at work upon weightbearing.  These flare-ups were “moderately severe.”  He can only stand up for 5-10 minutes during these flare-ups and walk no further than a few hundred yards.  He underwent lumbar spine decompression surgery (a foraminotomy) a month before in January 2010.   At the February 2010 VA spine examination, his flexion of the thoracolumbar spine was limited to only 20 degrees with pain throughout his range of motion, which supports a higher 40 percent rating under the General Rating Formula for Diseases and Injuries of the Spine per Diagnostic Code 5243 (IVDS).  See 38 C.F.R. § 4.71a.  At a March 2014 VA spine examination, the Veteran reported his low back pain was worsening and was aggravated by prolonged sitting, standing and walking.  The pain was “constant.”  His flexion of the lumbar spine became painful at 40 degrees and was limited to 50 degrees.  His functional impairment included less movement than normal, pain on movement, and disturbance of locomotion.  The March 2014 VA examiner did not provide an opinion as to the degree of range of motion loss during flare-ups; however, his painful flexion at 40 degrees upon examination is approximate to 30 degrees or less of flexion.  A June 2014 VA physical therapy consult observed “poor tolerance for standing trunk flexion for lumbar spine.”  The Veteran’s thoracolumbar range of motion was “limited 50 percent.”  At a July 2015 VA thoracolumbar spine examination, the Veteran reported daily pain in his low back.  The VA examiner felt it would be “speculative” as to whether pain, weakness, fatigability, or incoordination significantly limit functional ability with repeated use of his low back over a period of time.  A September 2015 VA pain consult also documented constant low back pain worsened by any physical activity.  

In the clinical evidence of record, at the August 2016 VA thoracolumbar spine examination, the VA examiner noted the Veteran continues to have low back pain which is “constant and made worse with work” where he drives a tractor all day.  The VA examiner observed flexion was limited to 55 degrees.  The Veteran was restricted in functional and daily activities and could not pick up objects from the floor by way of forward flexion of the lumbar spine.  What’s more, the August 2016 VA examiner added that pain, weakness, fatigability and incoordination significantly limit functional ability with flare-ups and with repeated use over a period of time.  Importantly, the latter February 2020 VA examiner opined that when reviewing the August 2016 VA examination report, forward flexion would have been limited to 30 degrees during flare-ups or with repeated use over a period of time, which directly supports a higher 40 percent rating under the General Rating Formula for Diseases and Injuries of the Spine per Diagnostic Code 5243 (IVDS).  See 38 C.F.R. § 4.71a.  The August 2016 VA examiner added that the VA examination is medically consistent with the Veteran's statements describing functional loss with repetitive use over time and during flare-ups.

In the clinical evidence of record, at the May 2017 VA thoracolumbar spine examination, the Veteran reported that because of his lower back pain, he could not work out the way he used to keep in shape.  He could not sit for more than 30 minutes, stand for more than 20 minutes, or bend, twist, dance or lift.  The VA examiner observed flexion was limited to 40 degrees, which is rather close to the 30 degrees required for a higher 40 percent rating.  Also, the May 2017 VA examiner added that pain, weakness, fatigability and incoordination significantly limit functional ability with repeated use over a period of time.  The Board finds it is logical to assume this would further limit his flexion to 30 degrees or less after repeated use.   

In the clinical evidence of record, at the February 2018 VA thoracolumbar spine examination, the Veteran reported consistent low pain, even when laying down in bed.  He described functional impairment of prolonged ambulation of more than 10 minutes of walking causing low back pain.  Both November 2018 and February 2019 VA physical therapy consults noted a “tortuous” return from trunk flexion.  The Veteran reported a recent flare-up in his low back pain with decreased flexibility of his spine.  His low back pain was “persistent” and unaffected by modalities, strengthening, or flexibility exercises.  In a May 2019 VA retrospective medical opinion, a VA clinician surmised that he can only speculate as to further reduced range of motion of the lumbar spine with flares-ups.  However, the May 2019 VA clinician indicated it was “plausible” to consider that the Veteran did have reduced range of motion during flare-ups.  His flexion in particular causes pressure on his disc disease.  He also works in a heavy equipment profession, using his low back each day.  

In the clinical evidence of record, at the February 2020 VA thoracolumbar spine examination, the VA examiner provided a detailed retrospective medical opinion as well as a current low back examination.  Upon examination, the Veteran’s flexion was limited to only 35 degrees, which is approximate to 30 degrees or less of flexion.  Moreover, the Veteran’s pain started at the onset of all his ranges of motion for the low back.  The February 2020 VA examiner opined that the Veteran’s range of motion definitively began to worsen in 2014.  This would have led to functional impairment due to low back pain.  The February 2020 VA examiner assessed that pain, weakness, fatigability or incoordination significantly limit the Veteran’s functional ability with repeated use over a period of time.  The VA examiner even described this in terms of range of motion with forward flexion limited to 20 degrees with repeated use of his low back over time, which directly supports a higher 40 percent rating under the General Rating Formula for Diseases and Injuries of the Spine per Diagnostic Code 5243 (IVDS).  See 38 C.F.R. § 4.71a.  The natural course of degenerative spine disease is worsening as can be seen by his range of motion decline since 2014 (especially flexion).  Therefore, the February 2020 VA examiner surmised there has been a progressive decline in his range of motion for his low back on examinations since 2014 with increased functional impairment as well due to pain.  

With regard to the above VA thoracolumbar spine examinations, the Court has held that if the VA examination does not take place during a flare-up or repetitive testing cannot be performed, the VA examiner should have the veteran describe and / or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees.  The VA examiner should comment as to whether there is any medical reason to accept or reject the veteran’s description of reduced range of motion during flare-ups or repetitive use, to include repetitive use over time.  Sharp, 29 Vet. App. at 35.  The above February 2020 VA thoracolumbar spine examiner accomplished this.  In other words, this VA examiner complied with the instructions laid out by the Court in Sharp v. Shulkin, 29 Vet. App. 26 (2017).  Therefore, regardless of the speculative conclusions of the earlier VA examiners, the Board concludes the clinical and lay evidence of record above strongly suggests that during flare-ups or after repetitive motion, the Veteran’s forward flexion of the thoracolumbar spine can be limited to 30 degrees or less due to functional loss.  See 38 C.F.R. § 4.40; Sharp, 29 Vet. App. at 35.  This finding supports a higher 40 percent rating for IVDS under Diagnostic Code 5243 and under the General Rating Formula for Diseases and Injuries of the Spine.  See 38 C.F.R. § 4.71a.  

The Board has considered that the lumbar spine IVDS disability was previously staged at 40, 20, 10, 20, and then 40 percent levels from March 1, 2010 to the present time.  But notably, when considering the degree of functional loss from the lumbar spine during flare-ups and repeated use over a period of time, the Board cannot discern any difference in the Veteran’s lumbar spine disability picture from the time period from March 1, 2010 to the present.  See 38 C.F.R. § 4.40; Sharp, 29 Vet. App. at 35.  A 40 percent rating for lumbar spine IVDS is therefore warranted back to March 1, 2010.  

Resolving all reasonable doubt in his favor, throughout the entire appeal period from March 1, 2010 to the present, a higher 40 percent rating under Diagnostic Code 5243 is warranted for orthopedic manifestations of the lumbar spine IVDS with consideration of functional loss.  38 C.F.R. § 4.3. 

However, upon review of the evidence, the Board concludes that the Veteran is not entitled to an increased rating in excess of 40 percent for his service-connected lumbar spine strain with IVDS and arthritis.  38 C.F.R. § 4.7.  In making this determination, the Board has considered both the competent and credible medical and lay evidence of record.

With regard to orthopedic manifestations of the Veteran’s thoracolumbar spine disability with consideration of functional loss (38 C.F.R. §§ 4.40, 4.45, 4.59), the most probative evidence of record does not reveal “unfavorable ankylosis of the entire spine” warranting a higher 100 percent evaluation, or “unfavorable ankylosis of the entire thoracolumbar spine” warranting a higher 50 percent evaluation, or even favorable ankylosis of the entire thoracolumbar spine.  38 C.F.R. § 4.71a.  On this issue, ankylosis is defined as the immobility and consolidation of a joint due to disease, injury, or surgical procedure.  See Dorland’s Illustrated Medical Dictionary, 91 (27th Ed. 1988); Shipwash v. Brown, 8 Vet. App. 218, 221 (1995).  Ankylosis is also defined as the “stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint.”  Dinsay v. Brown, 9 Vet. App. 79, 81 (1996).  

Here, range of motion and other clinical findings for the thoracolumbar spine, although limited at times, are not equivalent to favorable or unfavorable ankylosis, even when considering pain and other factors of functional loss and repetition of range of motion x 3 and flare-ups.  See again 38 C.F.R. §§ 4.40, 4.45, 4.59; Sharp, 29 Vet. App. at 33; DeLuca, 8 Vet. App. at 206.  In particular, no evidence of record reveals favorable or unfavorable ankylosis of the spine, such that an increased rating above 40 percent is not established.  None of the Veteran’s lay statements or December 2011 hearing testimony alleges or describes ankylosis of the thoracolumbar spine or anything more nearly approximating ankylosis.  VA thoracolumbar spine examinations dated in January 2009, February 2010, March 2014, July 2015, August 2016, May 2017, February 2018, and February 2020 specifically noted “no ankylosis” of the spine.  Both VA and private clinicians in treatment records dated from 2008 to 2020 failed to diagnose the Veteran with ankylosis of the spine or any similar condition.  Range of motion findings for the thoracolumbar spine, although certainly limited at times, were not equivalent to favorable or unfavorable ankylosis, even with consideration of pain and various other factors of functional loss.  X-ray reports and MRIs of the lumbar spine throughout the entire appeal revealed DDD with disc bulges, IVDS, facet spondylosis, and foraminal stenosis.  However, there was no mention of ankylosis.

In light of the above evidence, there is no diagnosis of ankylosis of the thoracolumbar spine in the evidence of record.  In fact, as noted above, there is affirmative evidence against ankylosis of the thoracolumbar spine.  The Board has considered the Veteran’s need to walk with a cane, his constant pain, his limited mobility, and other functional impairments that he exhibits.  Nonetheless, it is apparent from the evidence of record that the Veteran’s thoracolumbar spine is not fixated or immobile with fibrous or bony union.  The evidence does not show that pain or other factors cause functional loss more closely approximating favorable or unfavorable ankylosis.  In fact, the effect of pain and other functional loss factors for the Veteran’s thoracolumbar spine is already contemplated in the 40 percent rating currently assigned.  Moreover, the Veteran is still able to work at his job as a heavy equipment operator.  

As such, with regard to orthopedic manifestations of the thoracolumbar spine with consideration of functional loss, the evidence of record does not reveal unfavorable ankylosis of the entire spine warranting a higher 100 percent evaluation, or unfavorable ankylosis of the entire thoracolumbar spine warranting a higher 50 percent evaluation, or even favorable ankylosis of the entire thoracolumbar spine.  38 C.F.R. § 4.71a.  Thus, a rating higher than 40 percent based on orthopedic manifestations of the thoracolumbar spine is not warranted.  

On a side note, several of the more recent VA thoracolumbar spine examinations included joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint, or in the alternative explained why the Correia requirements would not pertain to the Veteran’s particular thoracolumbar spine disability.  Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016).  Thus, even though the earlier VA spine examinations of record did not satisfy the requirements of the Correia case, here this is inconsequential and, therefore, at most harmless error.  See 38 C.F.R. § 20.1102.

With regard to incapacitating episodes, the Formula for Rating IVDS Based on Incapacitating Episodes provides that a higher 60 percent rating would require evidence of incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.  Note (1) indicates that for purposes of evaluations under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician.  Note (2) indicates that if IVDS is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment will be evaluated on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment.  38 C.F.R. § 4.71a, Diagnostic Code 5243 (in effect after September 26, 2003).

Regardless, with regard to incapacitating episodes, the evidence of record does not show the Veteran to have had incapacitating episodes having a total duration of at least 6 weeks during any 12 month period, which would be the necessary criteria for a higher 60 percent rating.  See 38 C.F.R. § 4.71a, Diagnostic Code 5243.   As previously noted, an incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician.  See 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note 1.  Several VA examiners incorrectly stated the Veteran did not have even have a diagnosis of IVDS.  In any event, the Board observes that there are no VA or private treatment records or VA examinations associated with the claims file documenting prescribed bed rest by any physician for at least six weeks for the Veteran from March 1, 2010 to the present.  The Board sees the March 2014 VA thoracolumbar spine examiner documented the Veteran missing 2 days of work per month due to his low back and knee pain.  This would equate to 3-4 weeks per year of incapacitating episodes, only supportive at most of a 40 percent rating under the Formula for Rating IVDS Based on Incapacitating Episodes.  Thus, a rating above 40 percent would not be warranted for the Veteran’s thoracolumbar spine disability under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes.  See 38 C.F.R. § 4.71a, Diagnostic Code 5243.

With regard to neurological manifestations of his thoracolumbar spine disability, the Board is aware that under the General Rating Formula for Diseases and Injuries of the Spine, associated objective neurologic abnormalities should be evaluated separately under an appropriate diagnostic code.  See 38 C.F.R. § 4.71a, Note (1) (Diagnostic Codes 5235 to 5243).  On this point, in rating decisions dated in October 2016 and in August 2020, the AOJ granted the Veteran separate ratings for right lower extremity radiculopathy of the sciatic and femoral nerves, associated with his service-connected lumbar spine disability.  However, a review of the record demonstrates that the Veteran did not submit a Notice of Disagreement (NOD) or Substantive Appeal (e.g., VA Form 9 or equivalent statement) for either radiculopathy issue.  See 38 U.S.C. § 7105(a); 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.300, 20.302.  That is, he did not appeal either the initial ratings or effective dates assigned for his service-connected lower extremity radiculopathy.  See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (the veteran must separately appeal these downstream issues).  

In addition, in the SOC and SSOCs that adjudicated the appeal for an increased rating for the thoracolumbar spine, the AOJ did not treat the lower extremity radiculopathy as being part of this increased rating appeal.  See Percy v. Shinseki, 23 Vet. App. 37, 45-47 (2009) (VA may waive any objection to the adequacy or timeliness of a substantive appeal, explicitly or implicitly, if the AOJ or Board has treated the disability rating matter as being adequately appealed).  Neither did the Board in its previous January 2013, July 2016, December 2017, and September 2019 Board remands.  In fact, there is no binding legal authority that requires the Board to take jurisdiction over and adjudicate, as part of the claim for an increased rating for a spine disability, claims for increased ratings for already rated neurologic disabilities.  Thus, the issue of higher initial ratings for service-connected right lower extremity radiculopathy, associated with the service-connected thoracolumbar spine disability, is not on appeal before the Board.  The Board declines to take jurisdiction of the associated radiculopathy as part and parcel of the claim for an increased rating for the thoracolumbar spine.  The Veteran failed to express disagreement with or appeal the respective ratings and effective dates assigned by the AOJ on multiple occasions for right lower extremity radiculopathy.

On a final side note, the Board is cognizant of the recent changes to the Rating Schedule that addresses the musculoskeletal system and muscle injuries, which are effective February 7, 2021.  One such change impacts Diagnostic Code 5243 for IVDS.  See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76462 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a).  Specifically, VA has added an instruction to Diagnostic Code 5243 for IVDS to assign this diagnostic code only when there is disc herniation with compression and / or irritation of the adjacent nerve root; otherwise, assign Diagnostic Code 5242 for degenerative arthritis for all other diagnoses.  Id.   

Regardless, 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); VAOPGCPREC 3- 2000.  See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003.  The amendments above have established the effective date of February 7, 2021, without a provision for retroactive application.  See 85 Fed. Reg. 76453 (Nov. 30, 2020).  Thus, the Board will continue to apply the old rating criteria for Diagnostic Code 5243 to rating periods prior to February 7, 2021 but can apply whichever set of criteria is more favorable to periods after February 7, 2021, if the claim was pending prior to this date.  Id.  In the present case, there is no clinical or lay evidence of record in the claims file dated after February 7, 2021 pertaining to IVDS of the lumbar spine.  Therefore, the February 7, 2021 amendments to Diagnostic Code 5243 for IVDS are of no consequence here.  Moreover, even if they did apply to the evidence currently of record, the February 7, 2021 amendments would not change the outcome of the present appeal under Diagnostic Code 5243 based on the particular fact pattern of the Veteran’s case. 

Accordingly, throughout the entire appeal period from March 1, 2010 to the present, an increased disability rating of 40 percent, but no higher, for the Veteran’s lumbar spine strain with IVDS and arthritis is granted.  38 C.F.R. § 4.3.  

Finally, for the increased rating issue for IVDS of the lumbar spine, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record.  See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

	B.  LEFT Knee Arthritis at 10 Percent – DC 5260

The Veteran’s LEFT knee arthritis and patellofemoral syndrome is currently assigned a 10 percent rating pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5003-5260 (limitation of flexion of the left knee with degenerative arthritis).  The 10 percent rating has been in effect since February 28, 2005, the day the Veteran’s original service connection claim was received by the AOJ. 

Traumatic arthritis under Diagnostic Code 5010 is rated analogous to degenerative arthritis under Diagnostic Code 5003.  Degenerative arthritis, when 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.  When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, such as the present case, 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, not added under Diagnostic Code 5003.  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.  For purposes of rating disability from arthritis, the knee 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 and 5261.

The provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59 must be considered in assigning an evaluation for degenerative or traumatic arthritis under Diagnostic Code 5003 or 5010.  Rating personnel must consider functional loss and clearly explain the impact of pain on the disability.  VAOPGCPREC 9-98.

The Veteran’s LEFT knee arthritis and patellofemoral syndrome was noted to cause painful motion of the left knee on multiple occasions in the record.  In this regard, read together, Diagnostic Code 5003 / 5010 and 38 C.F.R. § 4.59 indicate that painful motion of a major joint or groups caused by degenerative arthritis, where the arthritis is established by X-ray, is deemed to be limited motion and entitled to a minimum 10 percent rating, per joint, combined under Diagnostic Code 5003, even though there is no actual limitation of motion.  Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991).  Hence, the AOJ in the original November 2005 rating decision assigned the minimum 10 percent rating under Diagnostic Code 5003-5260 for arthritis / patellofemoral syndrome of the LEFT knee with limitation of flexion.  In short, the Veteran has been assigned a minimum 10 percent rating due to his LEFT knee arthritis confirmed by X-rays, even though his range of motion of the LEFT knee (flexion and extension) would ordinarily be noncompensable.  The Board adds that for painful motion assigned pursuant to 38 C.F.R. § 4.59 and Burton, a lay person is competent to provide “objective” evidence of painful motion.  Petitti v. McDonald, 27 Vet. App. 415, 424-30 (2015).  The Court has further held that the plain language of § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving joint or periarticular pathology that are painful, whether or not evaluated under a diagnostic code predicated on range of motion measurements.  Southall-Norman v. McDonald, 28 Vet. App. 346, 354 (2016).  

In short, the Veteran has been awarded a 10 percent rating for a painful LEFT knee joint under Diagnostic Code 5003-5260 because his LEFT knee arthritis has only manifested in painful but noncompensable limitation of flexion of the left knee.  38 C.F.R. § 4.71a.  His LEFT knee arthritis has not demonstrated compensable limitation of motion (i.e. compensable limitation of flexion or extension) at any time during the relevant rating period.  Therefore, the Diagnostic Code assigned should have been Diagnostic Code 5003 only, to show that the LEFT knee arthritis is being rated based only on noncompensable limitation of motion that is painful.  For this reason, the Board is changing the Diagnostic Code for the LEFT knee arthritis to DC 5003 only to reflect the actual rating already assigned.  38 C.F.R. § 4.71a.

The Veteran filed an increased rating claim for his service-connected LEFT knee disability in November 2008.  When service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  But in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings.  See Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999).  The Board must consider whether there have been times when his LEFT knee disability has been more severe than at others, and rate it accordingly.  “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.”  Hart, 21 Vet. App. at 509.  Thus, the Board will focus on the evidence of record dated from November 2007 to the present, in adjudicating the increased rating claim at issue.

However, the Board is also cognizant that 38 C.F.R. §§ 4.1 and 4.2 and 4.41 require VA adjudicators to view each disability “in relation to its history” to “accurately reflect the elements of disability present,” respectively.  See Jones v. Shinseki, 26 Vet. App. 56, 62 (2012); see also Moore v. Shinseki, 555 F.3d 1369, 1373 (Fed. Cir. 2009) (discussing 38 C.F.R. §§ 4.1 and 4.2 and stating that, although the veteran was “only entitled to disability compensation for the period after … the date he filed his original claim for benefits,” VA regulations still require the disability to be “evaluated in light of its whole recorded history”).  Therefore, the Board has also considered and reviewed the Veteran’s entire history when assigning disability ratings for his LEFT knee disability in the present case.  38 C.F.R. § 4.1.  

Normal range of motion of the knee is to zero degrees extension and to 140 degrees flexion.  See 38 C.F.R. § 4.71a, Plate II.  

Under Diagnostic Code 5260, a noncompensable rating will be assigned for limitation of flexion of the leg to 60 degrees; a 10 percent rating will be assigned for limitation of flexion of the leg to 45 degrees; a 20 percent rating will be assigned for limitation of flexion of the leg to 30 degrees; and, a 30 percent rating will be assigned for limitation of flexion of the leg to 15 degrees.  See 38 C.F.R. § 4.71a.  

Under Diagnostic Code 5261, a noncompensable rating will be assigned for limitation of extension of the leg to 5 degrees; a 10 percent rating will be assigned for limitation of extension of the leg to 10 degrees; a 20 percent rating will be assigned for limitation of extension of the leg to 15 degrees; a 30 percent rating will be assigned for limitation of extension of the leg to 20 degrees; a 40 percent rating will be assigned for limitation of extension of the leg to 30 degrees; and, a 50 percent rating will be assigned for limitation of extension of the leg to 45 degrees.  Id.  

Upon review, an increased rating in excess of 10 percent for the Veteran’s LEFT knee arthritis and patellofemoral syndrome under either Diagnostic Code 5003 or 5260 for limitation of flexion is denied.  38 C.F.R. § 4.7.  In making this determination, the Board has reviewed both the medical and lay evidence of record.  Regardless, the probative lay and medical evidence of evidence of record does not demonstrate limitation of flexion more nearly approximating flexion to 30 degrees for the left knee, even when considering the Veteran’s lay report of symptoms and noted functional loss.  See 38 C.F.R. § 4.71a, Diagnostic Code 5260.

Specifically, the following evidence is not supportive of a higher 20 percent rating for limitation of flexion of the left knee:

VA treatment records dated from 2008 to 2019 document complaints and treatment for left knee pain, crepitus, tenderness, an antalgic gait, and other functional loss factors.  He wears a left knee brace.  

At a January 12, 2009 VA knee examination, the Veteran reported pain and stiffness and decreased speed in his left knee.  He denied flare-ups.  An examination of the left knee revealed tenderness and guarding of movement and crepitus and grinding and clicking.  His left knee flexion was limited to 130 degrees, with pain beginning at 120 degrees.  His left knee extension was limited to 0 degrees, with pain beginning at -5 degrees.  There was pain on motion observed.  There were no additional limitations after three repetitions of range of motion.  The impact of his left knee disability on his job included decreased mobility, problems with lifting and carrying, lack of stamina, and pain.

Nonetheless, this January 2009 VA examination report does not establish limitation of left knee flexion to 30 degrees, even when considering functional loss.  See 38 C.F.R. § 4.71a, Diagnostic Code 5260.

At the December 2011 Travel Board hearing, the Veteran testified his knee symptoms were worsening, and his left knee was worse than his right knee.  Going up the stairs is hard.  His employment as a heavy equipment operator in public works is difficult because it involves driving large vehicles which hurts his left knee.  He takes hydrocodone for his left knee pain.  He lost 2 to 3 weeks at work in the last year due to both knees.

In a January 2013 Veteran statement, the Veteran report “constant” pain in both knees that affects his work and quality of life. 

At a March 2014 VA knee examination, the Veteran reported “constant” pain in both knees.  He receives steroid injections which help for a few weeks.  He operates heavy equipment which aggravates his left knee pain.  His left knee pain is aggravated by walking and prolonged standing.  He can still go to the gym four times a week.  Physical therapy worsens his left knee pain.  He denied flare-ups.  His left knee flexion was limited to 110 degrees, with painful motion having no impact.  His left knee extension was limited to 0 degrees, with painful motion having no impact.  There was no additional limitation in range of motion after three repetitions.  His functional impairment included less movement than normal and pain on movement.  His left knee was tender.  His muscle strength was 5/5 in both knees.  He uses bilateral knee braces on a constant basis as an assistive device.  The impact of his left knee disability on his job was that he misses 2 days of work per month due to his knees and low back.  Nonetheless, this January 2009 VA examination report does not establish limitation of left knee flexion to 30 degrees, even when considering functional loss.  See 38 C.F.R. § 4.71a, Diagnostic Code 5260.

A June 2014 VA physical therapy consult observed his gait was steady with no assistive device, good foot clearance, but diminished cadence with diminished knee flexion in swing bilaterally.  His strength was 5/5 throughout both lower extremities.

At an August 2016 VA knee examination, the Veteran reported he gets stabbing pains in both knees when standing and walking for 5-10 minutes and getting up and down from the tractor and dump truck at work.  He gets throbbing pain even when sitting which is increased when in the tractor for long periods.  He also reported flare-ups.  He has difficulty standing, cutting lawn, or even taking his grandkids to the park.  His left knee flexion was limited to 125 degrees, with painful motion having no impact.  His left knee extension was limited to 0 degrees, with painful motion having no impact.  There was no additional limitation in range of motion after three repetitions.  The VA examiner indicated pain, weakness, fatigability or incoordination significantly limit functional ability with flare-ups.  He has swelling during flare-ups.  An examination of the left knee revealed tenderness and crepitus.  His muscle strength was 5/5 in both knees.   He uses bilateral knee braces on a regular basis as an assistive device.  The impact of his left knee disability on his job was that he misses work and has difficulty getting in and out of tractor, trailer and dump trucks.  He has more problems standing and walking.  It is noted in a February 2020 VA retroactive medical opinion, the VA examiner determined that pain at the August 2016 VA examination would limit functional ability with flare-ups.  In terms of range of motion, left knee flexion would be limited to 65 degrees and extension to 0 degrees.  Nonetheless, these findings do not establish limitation of left knee flexion to 30 degrees, even when considering functional loss.  See 38 C.F.R. § 4.71a, Diagnostic Code 5260.

At a May 2017 VA knee examination, the Veteran reported “constant” aching pain in his knees.  He reported because of his knee pain, he cannot run or squat to pick up children.  Getting in and out of a vehicle is difficult.  He cannot walk for more than 30 minutes or stand for more than 20 minutes.  He has difficulty walking upstairs and going downstairs.  He denied flare-ups.  He constantly uses knee braces.  His left knee flexion was limited to 125 degrees with painful motion.  His left knee extension was limited to 0 degrees.  The VA examiner noted his painful flexion and extension began at 10 degrees, but he could continue moving his left knee to 125 degrees flexion.  However, when assigning a disability evaluation based on loss of range of motion, painful motion is not considered the same as limited motion, unless the pain actually causes a loss of motion (which in this instance it did not).  See Mitchell v. Shinseki, 25 Vet. App. 32, 36-43 (2011); Thompson v. McDonald, 815 F.3d 781, 785-86 (Fed. Cir. 2016) (holding that §§ 4.40 and 4.45 do not supersede the requirements for a higher disability rating specified in § 4.71a).”).  There was no additional limitation in range of motion after three repetitions.  An examination of the left knee revealed tenderness.  Knee pain significantly limits functional ability with repeated use over a period of time, but additional ROM loss was speculative.  His muscle strength was 5/5 in both knees.  He uses bilateral knee braces on a constant basis as an assistive device.  The VA examiner concluded the Veteran’s left knee had worsened since 2009.  Nonetheless, this May 2017 VA examination report does not establish limitation of left knee flexion to 30 degrees, even when considering functional loss.  See 38 C.F.R. § 4.71a, Diagnostic Code 5260.

At a June 2017 VA orthopedic consult, the Veteran reported bilateral knee pain.

He walked with a slow start gait, gradually progressing to a normal gait.  On examination, he had bilateral knee medial joint pain, but less painful on the left.  His left knee flexion was limited to 120 degrees, while his extension was limited to 0 degrees.  In any event, the June 2017 VA orthopedic consult does not establish limitation of left knee flexion to 30 degrees, even when considering functional loss.  See 38 C.F.R. § 4.71a, Diagnostic Code 5260.

At a February 2018 VA knee examination, his left knee flexion was limited to 125 degrees, with no pain on examination.  His left knee extension was limited to 0 degrees, with no pain on examination.  There was no additional limitation in range of motion after three repetitions.  His muscle strength was 5/5 in both knees.  He uses bilateral knee braces on an occasional basis as an assistive device.  Nonetheless, this February 2018 VA examination report does not establish limitation of left knee flexion to 30 degrees, even when considering functional loss.  See 38 C.F.R. § 4.71a, Diagnostic Code 5260.

A December 2019 Tallahassee Orthopedic Clinic treatment record revealed tenderness, mild effusion, and crepitus in the left knee.  His left knee flexion was 120 degrees and extension was 0 degrees.  Pain was noted at the end of his flexion motion.  This private treatment report does not establish limitation of left knee flexion to 30 degrees, even when considering functional loss.  See 38 C.F.R. § 4.71a, Diagnostic Code 5260.  His left knee strength was normal.  He has an antalgic gait and walked with a cane.  

A December 2019 VA physical therapy physician note observed strength of 4/5 in both lower extremities with left knee pain.  He walked with a cane.  

A January 2020 VA physical therapy physician note mentioned that both knees felt stiff after a long drive.  He was ambulating with a cane.  His left knee was painful.  

A February 2020 VA physical therapy physician note indicated there was left knee pain.  

At a February 2020 VA thoracolumbar spine examination, muscle strength was 5/5 in both knees on knee extension.

At a February 2020 VA knee examination, the Veteran reported he continues to have “constant knee” pain in the left knee with the right knee less constant since surgery (his right knee pain is different as well and not the same severity or quality as the left side - he thinks it is more post-surgical in type).  His knees will swell intermittently but this is not always related to a flare-up.  His left knee flexion was limited to 135 degrees, with pain noted but not causing functional loss.  His left knee extension was limited to 0 degrees.  There was no additional limitation in range of motion after three repetitions.  However, the VA examiner opined that pain significantly limits functional ability in both knees with flare-ups.  This was shown in a reduction of flexion to 70 degrees and extension to 0 degrees.  His muscle strength was 5/5 in both knees.  The February 2020 VA examiner reviewed all previous VA examination and offered a retrospective medical opinion for the knees.  He assessed that his left knee examination is actually improved from prior examinations (likely due to physical therapy).  However, flare-ups do occur for the left knee.  Nonetheless, this February 2020 VA examination report does not establish limitation of left knee flexion to 30 degrees, even when considering functional loss.  See 38 C.F.R. § 4.71a, Diagnostic Code 5260.

Both February 2020 and March 2020 Tallahassee Orthopedic Clinic treatment records revealed tenderness, mild effusion, and crepitus in the left knee.  His left knee flexion was 120-130 degrees and his extension was 0 degrees.  Pain was noted at the end of his flexion motion on both occasions.  These private treatment reports do not establish limitation of left knee flexion to 30 degrees, even when considering functional loss.  See 38 C.F.R. § 4.71a, Diagnostic Code 5260.  His left knee strength was normal.  He has an antalgic gait and walked with a cane.  

A March 2020 VA primary care note advised that the Veteran reported an increase in left knee pain.  He is prescribed meloxicam and hydrocodone for his knee pain.  

In light of the above medical and lay evidence, even with consideration of additional range of LEFT knee motion lost due to pain and weakness and other functional loss factors during flare-ups or after repetitive motion, the Board finds that the Veteran’s limitation of LEFT knee flexion at no point warrants a rating in excess of 10 percent.  See 38 C.F.R. §§ 4.40, 4.45; 4.59; Sharp, 29 Vet. App. at 33; Mitchell, 25 Vet. App. at 38; DeLuca, 8 Vet. App. at 206.  In making this determination, the Board has consistently considered the impact of functional loss upon the Veteran’s range of motion for his left knee.  But VA regulations addressing functional loss do not require the assignment of a higher schedular rating where the functional limitation due to pain does not result in limitation of motion sufficient to meet the requirements of the next higher disability rating.  See Thompson v. McDonald, 815 F.3d 781, 785-86 (Fed. Cir. 2016) (holding that §§ 4.40 and 4.45 do not supersede the requirements for a higher disability rating specified in § 4.71a).”).  In the present case, despite his obvious functional loss, limitation of left knee flexion to 30 degrees, which is necessary to meet the criteria for a higher 20 percent rating under Diagnostic Code 5260, is not demonstrated anywhere in the record.  See 38 C.F.R. § 4.71a.

With regard to a higher rating for left knee arthritis under Diagnostic Code 5003, his arthritis did not provide a basis to increase the Veteran’s 10 percent evaluation.  See 38 C.F.R. § 4.71a, Diagnostic Code 5003.  That is, under Diagnostic Code 5003, in the absence of limitation of motion, a 20 percent rating is appropriate with X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations.  See 38 C.F.R. § 4.45(f) (for the purpose of rating disability from arthritis, the knee is considered a major joint).  However, this provision for a 20 percent rating for arthritis would not be applicable here, as the record above clearly shows some limitation of motion for both knees.  Also, he already has a 10 percent rating for each knee (two major joints), which would combine to a 20 percent rating.  See 38 C.F.R. § 4.25 (combined ratings table).

With regard to a separate rating for limitation of extension of the left knee (Diagnostic Code 5261), VA’s General Counsel has further held that separate ratings under Diagnostic Code 5260 (limitation of flexion) and Diagnostic Code 5261 (limitation of extension) may be assigned for disability of the same knee joint, without violating the rule against pyramiding.  See VAOPGCPREC 9-2004 (Sept. 17, 2004).  However, in this case, a separate rating for left knee extension is not warranted because the clinical evidence of record establishes no compensable limitation of extension for the left knee under Diagnostic Code 5261.  That is, for the left knee, limitation of extension at worst was noted to be 5 degrees, even when considering functional loss.  This constitutes only a noncompensable degree of limitation of extension for the left knee.  See 38 C.F.R. § 4.71a, Diagnostic Code 5261.  

The Board has also considered whether an increased evaluation or separate, additional evaluations would be in order under other relevant diagnostic codes for the left knee.  See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (choice of diagnostic code should be upheld if it is supported by explanation and evidence).  Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability.  See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment).  However, other diagnostic codes for left knee disabilities are not more appropriate because the facts of the case do not support their application.  See 38 C.F.R. § 4.71a, Diagnostic Code 5256 (ankylosis of the knee); Diagnostic Code 5258 (dislocated semilunar cartilage / meniscus injury); Diagnostic Code 5259 (removal of the semilunar cartilage / meniscectomy); Diagnostic Code 5262 (impairment of the tibia and fibula); and Diagnostic Code 5263 (genu recurvatum).  No probative medical or lay evidence of record supports application of any of these diagnostic codes for the left knee.  There is a history of a medical meniscus injury with meniscectomy surgery to the right knee (DC 5259), but not to the left knee.  Therefore, the Board will continue to evaluate the Veteran’s arthritis and patellofemoral syndrome of the left knee under Diagnostic Codes 5003 and 5260 involving arthritis and limitation of flexion.  

On a side note, the Board is cognizant of the recent changes to the Rating Schedule that addresses the musculoskeletal system and muscle injuries, which are effective February 7, 2021.  See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a).  Regardless, these changes did not substantively impact Diagnostic Code 5003 (other than posttraumatic arthritis) or Diagnostic Codes 5260 / 5261 (for limitation of flexion and extension of the knees). 

In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 10 percent for LEFT knee arthritis and patellofemoral syndrome under Diagnostic Code 5003.  In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable.  38 U.S.C. § 5107; 38 C.F.R. § 4.3.

Finally, for the increased rating issue for LEFT knee arthritis and patellofemoral syndrome, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record.  See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

	C.  Separate 10 Percent Rating for LEFT Knee Instability – DC 5257

The Board has also considered whether a separate, additional rating under Diagnostic Code 5257 is warranted for instability of the LEFT knee.

According to Diagnostic Code 5257, which rates impairment resulting from other impairment of the knee, to include recurrent subluxation or lateral instability of this joint, a 10 percent rating will be assigned with evidence of slight recurrent subluxation or lateral instability of a knee; a 20 percent rating will be assigned with evidence of moderate recurrent subluxation or lateral instability; and a 30 percent rating will be assigned with evidence of severe recurrent subluxation or lateral instability.  See 38 C.F.R. § 4.71a, Diagnostic Code 5257.  

The words “slight,” “moderate,” and “severe” as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities.  Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are “equitable and just.”  38 C.F.R. § 4.6.  It should also be noted that use of terminology such as “severe” by VA examiners and others, although an element of evidence 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.  

When a diagnostic code contains undefined subjective terms of degree, the Board must disclose the standard under which it is defining these terms.  Johnson v. Wilkie, 30 Vet. App. 245 (2018).  Both CAVC and the Federal Circuit have held that in discussing the meaning of the above terms, the Board is permitted to consult with a dictionary.  See Nielson v. Shinseki, 23 Vet. App. 56, 59 (2009) (“It is commonplace to consult dictionaries to ascertain a term’s ordinary meaning.”); Hime v. McDonald, 28 Vet. App. 1, 7 (2016) (using a law dictionary to define “decision”); Prokarym v. McDonald, 27 Vet. App. 307, 310 (2015) (defining diagnostic code term “severe” using the New Oxford American Dictionary and online Merriam-Webster Dictionary). 

According to MERRIAM WEBSTER’S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), “slight” means small in amount.  “Moderate” means limited in scope or effect.  “Severe” means very painful or harmful or of a great degree.  However, what is classified as “severe” can be dependent on the diagnostic code used.  See Breniser v. Shinseki, 25 Vet. App. 64, 76-77 (2011).

Under another case - Johnson v. Brown, 9 Vet. App. 7, 11 (1996), Diagnostic Code 5257 is not predicated on loss of range of motion; therefore, the provisions of 38 C.F.R. §§ 4.40 and 4.45 as well as the Deluca case do not apply to Diagnostic Code 5257.

It follows that the Board has considered whether an increased evaluation would be in order for the left knee under other relevant diagnostic codes.  The assignment of a particular diagnostic code is “completely dependent on the facts of a particular case.”  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 current diagnosis, and demonstrated symptomatology.  See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992).  Thus, the Board has considered the propriety of assigning a higher, or separate, rating under another diagnostic code.  See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995).

The evaluation of the same disability or the same manifestations of disability under multiple diagnoses (i.e., pyramiding) is to be avoided.  38 C.F.R. § 4.14.  However, separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not “duplicative of or overlapping with the symptomatology” of the other condition.  Esteban v. Brown, 6 Vet. App. 259, 262 (1994).  

In this regard, VA's General Counsel has held that a claimant who has both arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257, cautioning that any such separate rating must be based on additional disabling symptomatology.  See VAOPGCPREC 23-97 (July 1, 1997); 62 Fed. Reg. 63,604 (1997).  VA’s General Counsel subsequently clarified that for a knee disability rated under Diagnostic Code 5257 to warrant a separate rating for arthritis based on limitation of motion, limitation of motion under Diagnostic Codes 5260 or 5261 need not be compensable but must at least meet the criteria for a zero-percent rating.  Regardless, VA's General Counsel added that a separate rating for arthritis could also be based on X-ray findings and painful motion under 38 C.F.R. § 4.59.  See VAOPGCPREC 9-98 (August 14, 1998).  

In the present case, application of the provisions of both VAOPGCPREC 23-97 and VAOPGCPREC 9-98 is warranted here. 

Upon review, the evidence of record supports a separate 10 percent rating for instability of the LEFT knee under Diagnostic Code 5257 for “slight” instability.  38 C.F.R. § 4.7.  

In making this favorable determination, the Board has considered all the evidence of record – the Veteran’s lay statements, hearing testimony, post-service VA and private treatment records, and post-service VA knee examinations.  With regard to lay evidence of instability, there is nothing in Diagnostic Code 5257 that requires subluxation or instability to be shown through objective medical testing only.  If credible, lay testimony may consist of a veteran’s own statements to the extent that the statements describe symptoms capable of lay observation.  Petitti v. McDonald, 27 Vet. App. 415, 424 - 430 (2015).  Additionally, the Court has specifically held that the Veteran is competent to describe symptoms of the knee joint.  Clyburn v. West, 12 Vet. App. 296, 301 (1999).  Most importantly, the Court has held that under Diagnostic Code 5257, objective medical evidence is not required to establish lateral knee instability.  Lay evidence of instability under Diagnostic Code 5257 can be probative in establishing a compensable rating.  English v. Wilkie, 30 Vet. App. 347, 352-53 (2018).  

Specifically, the following evidence is supportive of a separate, additional 10 percent rating for instability of the LEFT knee under DC 5257:  

VA treatment records dated from 2008 to 2019 document complaints and treatment for left knee pain, crepitus, tenderness, an antalgic gait, and use of a cane at times (but also due to his low back and right knee).  He constantly wears a left knee unloader brace to keep his left knee “stable.”  This helps prevent falls.  Various VA knee examinations dated from 2009 to 2020 confirmed that he wears his left knee brace on a “constant” basis.  VA orthopedic consults and a VA orthopedic surgery outpatient note dated in March 2011, April 2011, and August 2011 indicated that his left knee swells and “gives way.”  An April 2011 VA surgery clinic ortho note approved medial and lateral support brace because of his left knee “giving way.”  Moreover, at the December 2011 Travel Board hearing, the Veteran reported left knee “locking.”  He competently and credibly testified he wears a left knee brace due to “instability.”  An October 2012 VA primary care note remarked that because of his left knee brace, the Veteran has no weakness and no falls.  At a June 2017 VA orthopedic consult, the Veteran complained of left knee pain with some “catching and occasional locking.”  He wears two different types of knee braces - a medial unloader and a wraparound hinged brace, which do supply some support to his knees.  

Furthermore, with regard to evidence of “slight” left knee instability, December 2019, February 2020, and March 2020 Tallahassee Orthopedic Clinic treatment reports documented left knee tenderness, mild effusion, and crepitus.  Upon testing, there was a positive patellar compression test with crepitus and pain for the left knee.  A December 2019 VA physical therapy physician note observed 4/5 strength in the left knee.  A February 2020 VA thoracolumbar spine examination and opinion assessed the regular use of a left knee brace with poor balance.  The Veteran was advised to use caution while walking on undulating surfaces and up and down stairs.  A February 2020 VA knee examiner remarked that the Veteran’s left knee will swell “intermittently.”

In light of the above evidence, there is credible and probative lay and clinical evidence of record for “slight” instability of the LEFT knee, warranting a 10 percent rating under Diagnostic Code 5257.  See 38 C.F.R. § 4.71a.    

However, a separate, additional rating beyond 10 percent is not warranted for LEFT knee instability under Diagnostic Code 5257.  38 C.F.R. § 4.7.  In particular, the medical and lay evidence of record does not reflect “moderate” or “severe” lateral instability or recurrent subluxation in the left knee, which is required for higher 20 or 30 percent ratings under Diagnostic Code 5257.  In particular, after objective examination and stability testing, the left knee was almost always normal.  That is, the anterior instability (Lachman test), the posterior instability (posterior drawer test), and the medial-lateral instability (varus / valgus tests) were all normal.  See VA knee examinations dated in January 2009, March 2014, August 2016, May 2017, February 2018, and February 2020.  The VA examiners found no objective history of recurrent patellar subluxation or dislocation for the left knee.  There was also no X-ray evidence of instability for the left knee in the record.  In summary, any signs of instability present in the left knee are more than adequately reflected in the separate, additional 10 percent rating assigned because they are at most “slight” in degree.  38 C.F.R. § 4.1.  

With regard to lay evidence of instability for the left knee, the Board finds that the preponderance of the evidence is against a rating in excess of 10 percent under Diagnostic Code 5257.  The Board has carefully considered the Veteran’s lay reports about subluxation / instability.  English, 30 Vet. App. at 352-53.  However, the lay and medical evidence of record demonstrates that the subluxation / instability symptoms in the left knee have varied and do not suggest the presence of symptoms more nearly approximating “moderate” severity required for a higher 20 percent rating.  The Veteran has not described a regular pattern of falls due to his left knee instability.  With one or two exceptions, his muscle strength was often 5/5 in the left knee. 

On a side note, the Board is cognizant of the recent changes to the Rating Schedule that addresses the musculoskeletal system and muscle injuries, which are effective February 7, 2021.  One such change impacts Diagnostic Code 5257 for recurrent subluxation or instability of the knees.  See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a).  Regardless, 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); VAOPGCPREC 3- 2000.  See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003.  The amendments above have established the effective date of February 7, 2021, without a provision for retroactive application.  See 85 Fed. Reg. 76453 (Nov. 30, 2020).  Thus, the Board will continue to apply the old rating criteria for Diagnostic Code 5257 to rating periods prior to February 7, 2021 but can apply whichever set of criteria is more favorable to periods after February 7, 2021, if the claim was pending prior to this date.  Id.  In the present case, there is no clinical or lay evidence of record in the claims file dated after February 7, 2021 pertaining to instability of the knees.  Thus, the February 7, 2021 amendments to Diagnostic Code 5257 for knee instability do not apply here.   

In conclusion, effective throughout the entire appeal period, the Board finds that the medical and lay evidence of record supports a separate, additional 10 percent rating, but no greater, for LEFT knee instability under Diagnostic Code 5257.  38 C.F.R. § 4.3.

Finally, for the increased rating issue for LEFT knee instability, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record.  See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

      D.  RIGHT Knee Arthritis at 10 Percent (Prior to 11-4-2019) – DC 5260

The Veteran’s RIGHT knee arthritis and patellofemoral syndrome has received the following staged ratings by the AOJ for separate periods of time: 

Prior to November 4, 2019, the Veteran’s RIGHT knee arthritis and patellofemoral syndrome is currently assigned a 10 percent rating pursuant to Diagnostic Code 5003-5260 (limitation of flexion of the right knee with degenerative arthritis).  See 38 C.F.R. § 4.71a.  The 10 percent rating has been in effect since February 28, 2005, the day the Veteran’s original service connection claim was received by the AOJ. 

From November 4, 2019 to January 1, 2021, the Veteran’s RIGHT knee disability, status post knee replacement, is currently assigned a 100 percent rating pursuant to Diagnostic Code 5055 (knee replacement prosthesis).  Id.  That is, on November 4, 2019, the Veteran underwent total knee arthroplasty (TKA) surgery for the RIGHT knee.  The AOJ continued the 100 percent rating for a total of one year following implementation of the RIGHT knee prosthesis until January 1, 2021.  See 38 C.F.R. § 4.71a, Diagnostic Code 5055.  

From January 1, 2021 to the present, the Veteran’s total knee replacement is currently assigned a 30 percent rating pursuant to Diagnostic Code 5055 (knee replacement prosthesis).  Id.  

In any event, this section of the Board decision will focus on whether prior to November 4, 2019, the Veteran is entitled to an increased rating greater than 10 percent for RIGHT knee arthritis and patellofemoral syndrome under Diagnostic Code 5003 (degenerative arthritis) or 5260 (limitation of flexion of the right knee).  See 38 C.F.R. § 4.71a.  

The complete language of the relevant VA regulations and caselaw for degenerative arthritis and functional loss factors and limitation of flexion / extension of the knee (38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003 and 5260 and 5261) has already been discussed in detail above under the analysis for LEFT knee arthritis.  So has the analysis as to why the Veteran’s bilateral knee arthritis should have only been rated as noncompensable limitation of motion that is painful under Diagnostic Code 5003.  Listing and repeating the same VA law and evidence again for the RIGHT knee would be unnecessary and redundant.  Therefore, all of the above is incorporated into the present analysis for the RIGHT knee arthritis at 10 percent.  

The Veteran filed an increased rating claim for his service-connected RIGHT knee disability in November 2008.  When service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  But in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings.  See Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999).  The Board must consider whether there have been times when his RIGHT knee disability has been more severe than at others, and rate it accordingly.  “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.”  Hart, 21 Vet. App. at 509.  Thus, the Board will focus on the evidence of record dated from November 2007 to the present, in adjudicating the increased rating claim at issue.

However, the Board is also cognizant that 38 C.F.R. §§ 4.1 and 4.2 and 4.41 require VA adjudicators to view each disability “in relation to its history” to “accurately reflect the elements of disability present,” respectively.  See Jones v. Shinseki, 26 Vet. App. 56, 62 (2012); see also Moore v. Shinseki, 555 F.3d 1369, 1373 (Fed. Cir. 2009) (discussing 38 C.F.R. §§ 4.1 and 4.2 and stating that, although the veteran was “only entitled to disability compensation for the period after … the date he filed his original claim for benefits,” VA regulations still require the disability to be “evaluated in light of its whole recorded history”).  Therefore, the Board has also considered and reviewed the Veteran’s entire history when assigning disability ratings for his RIGHT knee disability in the present case.  38 C.F.R. § 4.1.  

Upon review, prior to November 4, 2019, an increased rating in excess of the 10 percent assigned for the Veteran’s RIGHT knee arthritis and patellofemoral syndrome under either Diagnostic Code 5003 for arthritis or Diagnostic Code 5260 for limitation of flexion is denied.  38 C.F.R. § 4.7.  In making this determination, the Board has reviewed both the medical and lay evidence of record.  Regardless, the probative lay and medical evidence of evidence of record does not demonstrate limitation of flexion more nearly approximating flexion to 30 degrees for the right knee, even when considering the Veteran’s lay report of symptoms and noted functional loss.  See 38 C.F.R. § 4.71a, Diagnostic Code 5260.

Specifically, the following evidence is not supportive of a higher 20 percent rating for limitation of flexion of the right knee prior to November 4, 2019:

VA treatment records dated from 2008 to 2019 document complaints and treatment for right knee pain, crepitus, tenderness, an antalgic gait, and other functional loss factors.  He wears a right knee brace.  

At a January 2009 VA knee examination, the Veteran reported pain and stiffness and decreased speed in his right knee.  He denied flare-ups.  An examination of the right knee revealed tenderness and guarding of movement and crepitus and grinding and clicking.  His right knee flexion was limited to 130 degrees, with pain beginning at 120 degrees.  His right knee extension was limited to 0 degrees, with pain beginning at -5 degrees.  There was pain on motion observed.  There were no additional limitations after three repetitions of range of motion.  The impact of his right knee disability on his job included decreased mobility, problems with lifting and carrying, lack of stamina, and pain.  Nonetheless, this January 2009 VA examination report does not establish limitation of right knee flexion to 30 degrees, even when considering functional loss.  See 38 C.F.R. § 4.71a, Diagnostic Code 5260.

At the December 2011 Travel Board hearing, the Veteran testified his knee symptoms were worsening, and his left knee was worse than his right knee.  Going up the stairs is hard.  His employment as a heavy equipment operator in public works is difficult because it involves driving large vehicles which hurts his right knee.  He takes hydrocodone for his right knee pain.  He lost 2 to 3 weeks at work in the last year due to both knees.

In a January 2013 Veteran statement, the Veteran report “constant” pain in both knees that affects his work and quality of life. 

At a March 2014 VA knee examination, the Veteran reported “constant” pain in both knees.  He receives steroid injections which help for a few weeks.  He operates heavy equipment which aggravates his right knee pain.  His right knee pain is aggravated by walking and prolonged standing.  He can still go to the gym four times a week.  Physical therapy worsens his right knee pain.  He denied flare-ups.  His right knee flexion was limited to 110 degrees, with painful motion having no impact.  His right knee extension was limited to 0 degrees, with painful motion having no impact.  There was no additional limitation in range of motion after three repetitions.  His functional impairment included less movement than normal and pain on movement.  His right knee was tender.  His muscle strength was 5/5 in both knees.  He uses bilateral knee braces on a constant basis as an assistive device.  The impact of his right knee disability on his job was that he misses 2 days of work per month due to his knees and low back.  Nonetheless, this January 2009 VA examination report does not establish limitation of right knee flexion to 30 degrees, even when considering functional loss.  See 38 C.F.R. § 4.71a, Diagnostic Code 5260.

A June 2014 VA physical therapy consult observed his gait was steady with no assistive device, good foot clearance, but diminished cadence with diminished knee flexion in swing bilaterally.  His strength was 5/5 throughout both lower extremities.

At an August 2016 VA knee examination, the Veteran reported he gets stabbing pains in both knees when standing and walking for 5-10 minutes and getting up and down from the tractor and dump truck at work.  He gets throbbing pain even when sitting which is increased when in the tractor for long periods.  He also reported flare-ups.  He has difficulty standing, cutting lawn, or even taking his grandkids to the park.  His right knee flexion was limited to 115 degrees, with painful motion having no impact.  His right knee extension was limited to 5 degrees, with painful motion having no impact.  This made it more difficult for him to walk.  There was no additional limitation in range of motion after three repetitions.  The VA examiner indicated pain, weakness, fatigability or incoordination significantly limit functional ability with flare-ups.  He has swelling during flare-ups.  An examination of the right knee revealed tenderness and crepitus.  His muscle strength was 5/5 in both knees.  He uses bilateral knee braces on a regular basis as an assistive device.  The impact of his right knee disability on his job was that he misses work and has difficulty getting in and out of tractor, trailer and dump trucks.  He has more problems standing and walking.  It is noted in a February 2020 VA retroactive medical opinion, the VA examiner determined that pain at the August 2016 VA examination would limit functional ability with flare-ups.  In terms of range of motion, right knee flexion would be limited to 60 degrees and extension to 0 degrees.  Nonetheless, this August 2016 VA examination report does not establish limitation of left knee flexion to 30 degrees, even when considering functional loss.  See 38 C.F.R. § 4.71a, Diagnostic Code 5260.

At a May 2017 VA knee examination, the Veteran reported “constant” aching pain in his knees.  He reported because of his knee pains, he cannot run or squat to pick up children.  Getting in and out of a vehicle is difficult.  He cannot walk for more than 30 minutes or stand for more than 20 minutes.  He has difficulty walking upstairs and going downstairs.  He denied flare-ups.  He constantly uses knee braces.  His right knee flexion was limited to 115 degrees with painful motion.   His right knee extension was limited to 5 degrees.  There was pain on weight bearing.  Moderate tenderness and crepitus were observed for the right knee.  The VA examiner noted his painful flexion and extension began at 10 degrees but he could continue moving his right knee.  However, when assigning a disability evaluation based on loss of range of motion, painful motion is not considered the same as limited motion, unless the pain actually causes a loss of motion (which in this instance it did not).  See Mitchell v. Shinseki, 25 Vet. App. 32, 36-43 (2011); Thompson v. McDonald, 815 F.3d 781, 785-86 (Fed. Cir. 2016) (holding that §§ 4.40 and 4.45 do not supersede the requirements for a higher disability rating specified in § 4.71a).”).  There was no additional limitation in range of motion after three repetitions for the right knee.  Right knee pain significantly limits functional ability with repeated use over a period of time, but additional ROM loss was speculative.  His muscle strength was 5/5 in both knees.  He uses bilateral knee braces on a constant basis as an assistive device.  The VA examiner concluded the Veteran’s right knee had worsened since 2009.  Nonetheless, this May 2017 VA examination report does not establish limitation of right knee flexion to 30 degrees, even when considering functional loss.  See 38 C.F.R. § 4.71a, Diagnostic Code 5260.

At a June 2017 VA orthopedic consult, the Veteran reported bilateral knee pain.

He walked with a slow start gait, gradually progressing to a normal gait.  On examination, he had bilateral knee medial joint pain, but more painful on the right.  His right knee flexion was limited to 120 degrees, while his extension was limited to 0 degrees.  In any event, the June 2017 VA orthopedic consult does not establish limitation of right knee flexion to 30 degrees, even when considering functional loss.  See 38 C.F.R. § 4.71a, Diagnostic Code 5260.

At a February 2018 VA knee examination, his right knee flexion was limited to 120 degrees, with no pain on examination.  His right knee extension was limited to 0 degrees, with no pain on examination.  There was no additional limitation in range of motion after three repetitions.  His muscle strength was 5/5 in both knees.  He uses bilateral knee braces on an occasional basis as an assistive device.  Nonetheless, this February 2018 VA examination report does not establish limitation of right knee flexion to 30 degrees, even when considering functional loss.  See 38 C.F.R. § 4.71a, Diagnostic Code 5260.

The February 2020 VA examiner reviewed all previous VA examinations and offered a retrospective medical opinion for the knees.  He assessed that the prior VA examinations do not show a right knee condition than is worse than shown at those earlier times.  However, flare-ups do occur for the right knee.  Nonetheless, this February 2020 VA retrospective examination report does not establish limitation of right knee flexion to 30 degrees at any time during the appeal period (prior to November 4, 2019), even when considering functional loss.  See 38 C.F.R. § 4.71a, Diagnostic Code 5260.  

In light of the above medical and lay evidence, prior to November 4, 2019, even with consideration of additional range of RIGHT knee motion lost due to pain and weakness and other functional loss factors during flare-ups or after repetitive motion, the Board finds that the Veteran’s limitation of RIGHT knee flexion at no point warrants a rating in excess of 10 percent.  See 38 C.F.R. §§ 4.40, 4.45; 4.59; Sharp, 29 Vet. App. at 33; Mitchell, 25 Vet. App. at 38; DeLuca, 8 Vet. App. at 206.  In making this determination, the Board has consistently considered the impact of functional loss upon the Veteran’s range of motion for his right knee.  But VA regulations addressing functional loss do not require the assignment of a higher schedular rating where the functional limitation due to pain does not result in limitation of motion sufficient to meet the requirements of the next higher disability rating.  See Thompson v. McDonald, 815 F.3d 781, 785-86 (Fed. Cir. 2016) (holding that §§ 4.40 and 4.45 do not supersede the requirements for a higher disability rating specified in § 4.71a).”).  In the present case, despite his obvious functional loss, limitation of right knee flexion to 30 degrees, which is necessary to meet the criteria for a higher 20 percent rating under Diagnostic Code 5260, is not demonstrated anywhere in the record prior to November 4, 2019.  See 38 C.F.R. § 4.71a.

With regard to a higher rating for right knee arthritis under Diagnostic Code 5003, arthritis does not provide a basis to increase the Veteran’s evaluation.  See 38 C.F.R. § 4.71a, Diagnostic Code 5003.  That is, under Diagnostic Code 5003, in the absence of limitation of motion, a 20 percent rating is appropriate with X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations.  See 38 C.F.R. § 4.45(f) (for the purpose of rating disability from arthritis, the knee is considered a major joint).  However, this provision for a 20 percent rating for arthritis would not be applicable here, as the record above clearly shows some limitation of motion for both knees.  There is not the absence of limitation of motion.  Also, he already has a 10 percent rating for each knee (two major joints), which would already combine to a 20 percent rating.  See 38 C.F.R. § 4.25 (combined ratings table).

With regard to a separate rating for limitation of extension of the right knee (Diagnostic Code 5261), VA’s General Counsel has further held that separate ratings under Diagnostic Code 5260 (limitation of flexion) and Diagnostic Code 5261 (limitation of extension) may be assigned for disability of the same knee joint, without violating the rule against pyramiding.  See VAOPGCPREC 9-2004 (Sept. 17, 2004).  However, in this case, a separate rating for right knee extension is not warranted because the clinical evidence of record establishes no compensable limitation of extension for the right knee under Diagnostic Code 5261.  That is, for the right knee, prior to November 4, 2019, limitation of extension at worst was noted at 5 degrees, even when considering functional loss.  This constitutes only a noncompensable degree of limitation of extension for the right knee.  See 38 C.F.R. § 4.71a, Diagnostic Code 5261.  

The Board has also considered whether an increased evaluation or separate, additional evaluations would be in order under other relevant diagnostic codes for the right knee.  See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (choice of diagnostic code should be upheld if it is supported by explanation and evidence).  Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability.  See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment).  

However, other diagnostic codes for right knee disabilities are not more appropriate because the facts of the case do not support their application.  See 38 C.F.R. § 4.71a, Diagnostic Code 5256 (ankylosis of the knee); 5262 (impairment of the tibia and fibula); and Diagnostic Code 5263 (genu recurvatum).  No probative medical or lay evidence of record supports application of any of these diagnostic codes for the right knee.  There is a history of a medical meniscus injury with meniscectomy surgery to the right knee (DC 5259), but this will be addressed below in a separate section of this Board decision.  Therefore, prior to November 4, 2019, the Board will continue to evaluate the Veteran’s arthritis and patellofemoral syndrome of the right knee under Diagnostic Codes 5003 (arthritis) or 5260 (involving limitation of flexion).  

On a side note, the Board is cognizant of the recent changes to the Rating Schedule that addresses the musculoskeletal system and muscle injuries, which are effective February 7, 2021.  See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a).  Regardless, these changes did not substantively impact Diagnostic Code 5003 (other than posttraumatic arthritis) or Diagnostic Codes 5260 / 5261 (for limitation of flexion and extension of the knees). 

In conclusion, prior to November 4, 2019, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 10 percent for RIGHT knee arthritis and patellofemoral syndrome under Diagnostic Code 5003.  In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable.  38 U.S.C. § 5107; 38 C.F.R. § 4.3.

Finally, for the increased rating issue for RIGHT knee arthritis and patellofemoral syndrome, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record.  See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

	E.  RIGHT Knee Total Knee Replacement at 100 Percent 

From November 4, 2019 to January 1, 2021, the Veteran’s RIGHT knee disability, status post knee replacement surgery, is currently assigned a 100 percent rating pursuant to Diagnostic Code 5055 (knee replacement prosthesis).  Id.  That is, on November 4, 2019, the Veteran underwent total knee arthroplasty (TKA) surgery for the RIGHT knee.  

For prosthetic replacement of the knee joint, Diagnostic Code 5055 provides for assignment of a 100 percent rating for one year following the implantation of the prosthesis.  Thereafter, a 60 percent rating is warranted if there are chronic residuals consisting of “severe” painful motion or “severe” weakness in the affected extremity.  With “intermediate” degrees of residual weakness, pain, or limitation of motion, the disability will be rated by analogy to Diagnostic Codes 5256, 5261 or 5262, with a minimum rating of at least 30 percent.  See 38 C.F.R. § 4.71a.  

In Hudgens v. McDonald, 823 F.3d 630, 639 (Fed. Cir. 2016), the Federal Circuit held that Diagnostic Code 5055 is not limited only to total knee replacements, and that a partial knee replacement may be compensated under Diagnostic Code 5055. 

When filing a claim, a claimant is presumed to be seeking the maximum benefit allowed by law.  See Stowers v. Shinseki, 26 Vet. App. 550, 555 (2014); AB v. Brown, 6 Vet. App. 35, 38 (1993).  In addition, when a disability is assigned the maximum rating for loss of range of motion, application of the factors for functional loss is not required for that particular disability.  Johnston v. Brown, 10 Vet. App. 80, 85 (1997).  

Upon review, from November 4, 2019 to January 1, 2021, under Diagnostic Code 5055, an increased rating in excess of the 100 percent rating assigned for a RIGHT knee disability, status post knee TKA surgery, is denied.  38 C.F.R. § 4.7.  As noted above, 100 percent is the maximum schedular rating available under Diagnostic Code 5055 for the one year period after the implantation of the knee prosthesis.  The Veteran’s total knee replacement surgery occurred on November 4, 2019.  See November 4, 2019 private operative report.  The AOJ correctly awarded the Veteran a total 100 percent rating for the one year period after the TKA surgery until January 1, 2021.  See 38 C.F.R. § 4.71a, Diagnostic Code 5055.  As such, the Veteran may only receive a higher rating under a different diagnostic code or on an extraschedular basis.  In this regard, no other diagnostic code is for application here during the time period from November 4, 2019 to January 1, 2021 (with the exception of DC 5259 as will be explained below in a separate section of this Board decision).  All remaining RIGHT knee symptomatology is compensated by the 100 percent rating currently assigned for his total knee replacement of the RIGHT knee under Diagnostic Code 5055.  See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (choice of diagnostic code should be upheld if it is supported by explanation and evidence).  Moreover, neither the Veteran nor his representative has requested an alternative diagnostic code during this timeframe.   

Accordingly, from November 4, 2019 to January 1, 2021, the preponderance of the evidence is against an increased rating in excess of 100 percent under Diagnostic Code 5055 for a right knee disability, status post TKA surgery.  38 C.F.R. § 4.3. 

Finally, for the increased rating issue for TKA surgery of the RIGHT knee, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record.  See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

	F.  RIGHT Knee Total Knee Replacement at 30 Percent 

From January 1, 2021 to the present, the Veteran’s total knee replacement is currently assigned a 30 percent rating pursuant to Diagnostic Code 5055 (knee replacement prosthesis).  Id.  

As noted above, for prosthetic replacement of the knee joint, Diagnostic Code 5055 provides for assignment of a 100 percent rating for one year following the implantation of the prosthesis.  Thereafter, a 60 percent rating is warranted if there are chronic residuals consisting of “severe” painful motion or “severe” weakness in the affected extremity.  With “intermediate” degrees of residual weakness, pain, or limitation of motion, the disability will be rated by analogy to Diagnostic Codes 5256, 5261 or 5262, with a minimum rating of at least 30 percent.  See 38 C.F.R. § 4.71a.  

In Tedesco v. Wilkie, 31 Vet. App. 360, 365-66 (2019), the Court held that “severe” painful motion and limitation of motion are distinct concepts, and thus limitation of motion is not required for a 60 percent rating under Diagnostic Code 5055.  However, the Court added that limitation of motion may be considered as a factor in evaluating painful motion.  Id. 

Here, from January 1, 2021 to the present, the AOJ assigned the minimum 30 percent rating for the right knee beginning one year after the Veteran’s total knee replacement surgery.  The Veteran seeks a rating higher than 30 percent.   

Upon review, from January 1, 2021 to the present, under Diagnostic Code 5055, an increased rating in excess of 30 percent for a RIGHT knee disability, status post right knee TKA surgery, is denied.  38 C.F.R. § 4.7.  In making this determination, the Board has reviewed both the lay and medical evidence of record.  Regardless, the probative lay and medical evidence of evidence of record does not demonstrate chronic right knee residuals consisting of “severe” painful motion or “severe” weakness.  See 38 C.F.R. § 4.71a, Diagnostic Code 5055.

Specifically, the following evidence is not supportive of a rating in excess of 30 percent under Diagnostic Code 5055 on and after January 1, 2021:  

First of all, there is no clinical or lay evidence of record dated after January 1, 2021.  

However, what is clear is that subsequent to the Veteran’s right knee TKA surgery on November 4, 2019, the Veteran’s right knee disability gradually improved.  No ankylosis was observed (Diagnostic Code 5256).  No limitation of extension to 30 degrees of more was observed (Diagnostic Code 5261).  No nonunion of the tibia and fibula with loose motion was observed (Diagnostic Code 5262).  

No “severe” weakness was seen on examination.  Specifically, a December 2019 VA physical therapy physician note observed 4/5 strength in the right knee.  Tallahassee Orthopedic Clinic treatment records dated in December 2019, February 2020, and March 2020 documented 5/5 strength in the right knee.  By February 2020 his right knee showed no swelling, no deformity, no tenderness, no effusion, and no crepitus.  A February 2020 VA physical therapy physician note observed the Veteran was now able to ambulate without an assistive device.  A February 2020 VA thoracolumbar spine examination showed muscle strength of 5/5 in the right knee on knee extension.  A February 2020 VA knee examination and opinion indicated the Veteran’s right knee pain was “less constant” since his surgery.  The VA examiner assessed 5/5 strength in the right knee, no reduction in muscle strength, and no atrophy.  The VA examiner specifically opined that there was no “severe” weakness in the right knee.  The VA examiner reflected that after his total right knee replacement surgery, he was exhibiting “quite good functioning” in the right knee.  A February 2020 VA physical therapy physician note reported no complaints of right knee pain – the Veteran was ambulating without an assistive device.  It was assessed that the Veteran exhibited increased strength in his right knee.  He was independent in his home exercise program.  He was thus discharged from his physical therapy.  In summary, the above evidence does not demonstrate the “severe” weakness necessary for a higher 60 percent rating under Diagnostic Code 5055.  See 38 C.F.R. § 4.71a.  

No “severe” painful motion was seen on examination.  See e.g., December 2019 Tallahassee Orthopedic Clinic treatment record (flexion limited to 100 degrees and extension limited to 5 degrees with pain at a 4/10 level); December 2019 VA physical therapy physician note (flexion limited to 100 degrees and extension limited to 5 degrees with burning and sharp right knee pain at a level of 4/10 to 7/10); multiple January 2020 VA physical therapy physician notes (flexion limited to 105-115 degrees and extension limited to 3-5 degrees with pain and stiffness); February 2020 VA physical therapy physician notes (flexion limited to 105-115 degrees and extension limited to 3-5 degrees with pain and post-surgical swelling); February 2020 VA knee examination (flexion limited to 120 degrees and extension limited to 5 degrees with no pain on examination); February 2020 Tallahassee Orthopedic Clinic treatment report (flexion limited to 100 degrees and extension limited to 5 degrees with pain at 4/10 level); and March 2020 Tallahassee Orthopedic Clinic treatment report (flexion limited to 120 degrees and extension limited to 0 degrees with pain at 6/10 level).  The February 2020 VA knee examiner noted the Veteran’s pain was “less constant” and “not the same severity” subsequent to his November 2019 right knee surgery.  In summary, the above evidence does not demonstrate the “severe” painful motion necessary for a higher 60 percent rating under Diagnostic Code 5055.  See 38 C.F.R. § 4.71a.  

On a side note, the Board is cognizant of the recent changes to the Rating Schedule that addresses the musculoskeletal system and muscle injuries, which are effective February 7, 2021.  One such change impacts Diagnostic Code 5055 for a knee replacement or prosthesis.  See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76461 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a).  Regardless, 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); VAOPGCPREC 3-2000.  See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003.  The amendments above have established the effective date of February 7, 2021, without a provision for retroactive application.  See 85 Fed. Reg. 76453 (Nov. 30, 2020).  Thus, the Board will continue to apply the old rating criteria for Diagnostic Code 5055 to rating periods prior to February 7, 2021 but can apply whichever set of criteria is more favorable to periods after February 7, 2021, if the claim was pending prior to this date.  Id.  In the present case, there is no clinical or lay evidence of record in the claims file dated after February 7, 2021 pertaining to either knee.  Thus, the February 7, 2021 amendments to Diagnostic Code 5055 for a knee replacement or prosthesis do not apply here.   

Accordingly, from January 1, 2021 to the present, the preponderance of the evidence is against an increased rating in excess of 30 percent under Diagnostic Code 5055 for a right knee disability, status post TKA surgery.  38 C.F.R. § 4.3.  This claim is denied. 

Finally, for the increased rating issue for TKA surgery of the RIGHT knee, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record.  See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

G.  Separate 10 Percent Rating for RIGHT Knee Medial Meniscectomy            Under DC 5259

The Board has also considered whether a separate, additional rating is warranted under Diagnostic Code 5259 for instability due to a removal of the semilunar cartilage / medial meniscectomy of the RIGHT knee.

In this regard, the Board has considered whether an increased evaluation would be in order for the right knee under other relevant diagnostic codes.  The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case."  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 current diagnosis, and demonstrated symptomatology.  See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992).  Thus, the Board has considered the propriety of assigning a higher, or separate, rating under another diagnostic code.  See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995).

The evaluation of the same disability or the same manifestations of disability under multiple diagnoses (i.e., pyramiding) is to be avoided.  38 C.F.R. § 4.14.  However, separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not “duplicative of or overlapping with the symptomatology” of the other condition.  Esteban v. Brown, 6 Vet. App. 259, 262 (1994).  In this respect, the Court has specifically held that the evaluation of a knee disability under Diagnostic Codes 5260 / 5261 or both does not, as a matter of law, preclude separate evaluation of a meniscal disability of same knee under Diagnostic Codes 5258 or 5259, and vice versa.  Lyles v. Shulkin, 29 Vet. App. 107, 109 (2017).  The Court further held that entitlement to a separate evaluation in each case depends on whether the manifestations of disability for which a separate evaluation is being sought have already been compensated by an assigned evaluation under a different Diagnostic Code.  Id. 

Diagnostic Code 5259 provides for a maximum 10 percent rating for symptomatic knee disability following removal of the semilunar cartilage.  Diagnostic Code 5259 requires consideration of factors of functional loss under 38 C.F.R. § 4.40 and § 4.45 because removal of the semilunar cartilage may result in complications that produce limitation of motion.  See VAOPGCPREC 9-98 (Aug. 14, 1998). 

Semilunar cartilage is defined externally as the meniscus lateralis articulationis genus (lateral meniscus) and internally as the meniscus medialis articulationis genus (medial meniscus).  See Dorland's Illustrated Medical Dictionary 273, 1013 (28th ed. 1994). 

Upon review, the evidence of record supports a separate, additional 10 percent rating for instability of the RIGHT knee under Diagnostic Code 5259 due to removal of the semilunar cartilage / medial meniscectomy.  38 C.F.R. § 4.7.  This disability is associated with the Veteran’s service-connected right knee disability.  In making this favorable determination, the Board has considered all the evidence of record – the Veteran’s lay statements, hearing testimony, post-service VA and private treatment records, and post-service VA knee examinations.  This evidence of record clearly reveals symptomatic RIGHT knee instability following removal of the semilunar cartilage (medial meniscus surgery).  

Specifically, the following evidence supports a separate, additional 10 percent rating for instability of the RIGHT knee under DC 5259:  

VA treatment records dated from 2008 to 2019 document complaints and treatment for RIGHT knee pain, crepitus, tenderness, an antalgic gait, and use of a cane at times (but also due to his low back and left knee).  He constantly wears a right knee brace to keep his right knee “stable.”  This helps prevent falls.  Various VA knee examinations dated from 2009 to 2020 confirmed that he wears his right knee brace on a “constant” basis.  VA orthopedic consults and a VA orthopedic surgery outpatient note dated in March 2011, April 2011, and August 2011 indicated that his right knee “gives way.”  An April 2011 VA surgery clinic ortho note approved a medial and lateral support brace because of his right knee “giving way.”  Moreover, at the December 2011 Travel Board hearing, the Veteran reported right knee “locking.”  He competently and credibly testified he wears a right knee brace due to “instability.”  An October 2012 VA primary care note remarked that because of his right knee brace, the Veteran has no weakness and no falls.  VA treatment records dated from 2012 to 2014 recorded a history of a right knee 1987 meniscal tear followed by a surgery.  As a result, he wears an unloader brace on the right knee to keep it stable.  

Furthermore, a May 2017 VA knee examiner documented that the Veteran had a right side arthroscopic procedure for a meniscus tear in the early 1990s.  The torn meniscus ligament caused worsening of the pain in his right knee that he had previously from service.  At a June 2017 VA orthopedic consult, the Veteran complained of right knee pain with some “catching and occasional locking.”  He wears two different types of knee braces - a medial unloader and a wraparound hinged brace, which do supply some support to his knees.  A January 2019 VA physical therapy physician note observed the Veteran ambulating with a single-point cane.  He reported he fell two weeks earlier walking outside without his cane - his right knee suddenly “buckled.”  He was unbalanced in part due to right leg weakness.  It is noted he also has nonservice-connected diabetic neuropathy in the lower extremities as well.  See June 2019 VA podiatry E&M note.  The November 4, 2019 private operative report for his right knee TKA surgery assessed he was at “severe” risk for falls in the months prior to his surgery. 

Moreover, a December 2019 VA physical therapy physician note observed 4/5 strength in the right knee.  A January 2020 VA physical therapy physician note observed pain along the medial joint line of the right knee.  A February 2020 VA knee examiner remarked that the Veteran’s right knee will swell “intermittently.”  This VA examiner added that the Veteran had a previous right knee meniscal tear with a right knee meniscectomy in the late 1980s.  

In light of the above evidence, there is credible and probative lay and clinical evidence of record for instability of the RIGHT knee under Diagnostic Code 5259 due to a removal of the semilunar cartilage / medial meniscectomy, warranting a 10 percent rating under Diagnostic Code 5259.  See 38 C.F.R. § 4.71a.  As the Veteran is in receipt of the highest schedular rating (10 percent) for symptomatic removal of the semilunar cartilage, there is no basis to award a higher evaluation under Diagnostic Code 5259.  Id.  

The Board has also considered whether separate, additional evaluations would be in order under other relevant diagnostic codes for the right knee, in addition to Diagnostic Codes 5003 and 5055 and 5259.  See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (choice of diagnostic code should be upheld if it is supported by explanation and evidence).  Once again, other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability.  See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment).  

However, other diagnostic codes for right knee disabilities are not more appropriate because the facts of the case do not support their application.  See Diagnostic Code 5257 (other impairment of knee with recurrent subluxation or lateral instability); Diagnostic Code 5258 (dislocated semilunar cartilage / meniscus injury).  As to the propriety of assigning a separate, additional compensable rating for right knee instability under Diagnostic Code 5257, instability (e.g., locking, buckling, catching) is the common, overlapping symptomatology associated with disabilities rated under DC 5257 and DC 5259.  The origins of the instability differ, but the symptomatology is overlapping.  See 38 C.F.R. § 4.14.  In addition, the objective examination and testing for stability of the right knee in the claims file was always normal.  That is, the anterior instability (Lachman test), the posterior instability (posterior drawer test), and the medial-lateral instability (varus / valgus tests) were all normal for the right knee.  See VA knee examinations dated in January 2009, March 2014, August 2016, May 2017, February 2018, and February 2020; and Tallahassee Orthopedic Clinic treatment records dated in December 2019, February 2020, and March 2020.  The VA examiners in particular found no objective history of recurrent patellar subluxation or dislocation for the right knee per Diagnostic Code 5257.  

The Board has also considered the propriety of assigning a separate, additional 20 percent rating for dislocation of the semilunar cartilage of the right knee with frequent episodes of locking, pain, and effusion into the joint under Diagnostic Code 5258.  See 38 C.F.R. § 4.71a.  However, here, there is no evidence in the record of a recent dislocation or tear of the semilunar cartilage of the right knee.  Also, there is no probative medical or lay evidence of record for frequent episodes of right knee effusion.  See e.g., June 2017 VA orthopedic consult; Tallahassee Orthopedic Clinic treatment records dated in December 2019, February 2020, and March 2020 (all observing no effusion in the right knee).  Finally, his right knee pain and locking are already compensated within the separate ratings assigned under other Diagnostic Codes for the right knee - 5003, 5055, and 5259. 

Therefore, the Board will continue to evaluate the signs and symptoms of the Veteran’s service-connected right knee arthritis and patellofemoral syndrome under Diagnostic Codes 5003, 5055, and 5259.  

On a side note, the Board is cognizant of the recent changes to the Rating Schedule that addresses the musculoskeletal system and muscle injuries, which are effective February 7, 2021.  See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a).  Regardless, these changes did not impact Diagnostic Code 5259 (for removal of the semilunar cartilage). 

In conclusion, throughout the entire appeal period, the Board finds that the medical and lay evidence of record supports a separate 10 percent rating, but no greater, for instability of the RIGHT knee under Diagnostic Code 5259 due to removal of the semilunar cartilage / medial meniscectomy.  38 C.F.R. § 4.3.  This claim is granted.

Finally, for the increased rating issue for instability of the RIGHT knee under Diagnostic Code 5259, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record.  See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

 

 

DAVID L. WIGHT

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	P.S. Rubin, 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.