Citation Nr: 21014704 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 13-22 045 DATE: March 15, 2021 ORDER From January 18, 2011 to October 20, 2014, a 20 percent rating for meniscal impairment under Diagnostic Code 5258 is granted. From December 1, 2014 to July 11, 2019, a rating greater than 20 percent rating for meniscal impairment under Diagnostic Code 5258 is denied. From January 18, 2011 to October 20, 2014, a separate 10 percent rating for instability under Diagnostic Code 5257 is granted. From December 1, 2014 to July 11, 2019, a separate 10 percent rating for instability under Diagnostic Code 5257 is granted. REMANDED From January 18, 2011, entitlement to a separate rating for limitation of flexion under Diagnostic Code 5260 is remanded. From January 18, 2011, entitlement to a separate rating for limitation of extension under Diagnostic Code 5261 is remanded. From January 18, 2011 to October 20, 2014, a rating greater than 10 percent for instability under Diagnostic Code 5257 is remanded. From December 1, 2014 to July 11, 2019, a rating greater than 10 percent for instability under Diagnostic Code 5257 is remanded. From September 1, 2020, entitlement to a rating greater than 60 percent status post total knee arthoplasty (TKA) under Diagnostic Code 5055 is remanded. Entitlement to an effective date earlier than November 17, 2015 for the grant of a total disability based upon individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. From January 18, 2011 to July 11, 2019, exclusive of surgical convalescence, the Veteran has experienced dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the right knee. 2. From January 18, 2011 to July 11, 2019, exclusive of surgical convalescence, the Veteran has experienced slight instability in the right knee. CONCLUSIONS OF LAW 1. From January 18, 2011 to July 11, 2019, exclusive of surgical convalescence, the criteria for a 20 percent rating, but no higher, for meniscal impairment of the right knee under Diagnostic Code 5258 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5258. 2. From January 18, 2011 to July 11, 2019, exclusive of surgical convalescence, the criteria for a 10 percent rating for instability of the right knee under Diagnostic Code 5257 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1982 to June 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision of an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). The Board previously considered the appeal in May 2015, February 2016, June 2017, December 2018, and November 2019. For clarity, the Board highlights that the Veteran received a 100 percent rating for convalescence resulting from a meniscal surgery and a TKA. As such, the Board will not address these periods: October 21, 2014 to November 30, 2014, and July 12, 2019 to August 31, 2020. Issue 1: From January 18, 2011 to October 20, 2014, entitlement to a rating greater than 10 percent under Diagnostic Code 5258 Issue 2: From December 1, 2014 to July 11, 2019, entitlement to a rating greater than 20 percent rating under Diagnostic Code 5258 Increased Ratings Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted considering the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, where the question for consideration is the propriety of the initial disability rating assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The law allows for an effective date up to one year prior to the date of receipt of a claim, sometimes informally called "the one-year lookback period." 38 C.F.R. § 3.400(o)(2). Specifically, if an increase in disability level was "factually ascertainable" within one year prior to receipt of the increased rating claim, then the effective date will be the date on which that increase is shown to have occurred. Musculoskeletal Disabilities Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervations, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45, see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The factors involved in evaluating, and rating, disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement. 38 C.F.R. § 4.45. As such, the Veteran’s reports of pain have been considered in conjunction with the Board’s review of the limitation of motion diagnostic codes. Merits The Veteran claimed service connection for a right knee disorder on June 5, 2009. The AOJ service connected the disability as "status post right knee surgery and right knee degenerative joint disease," rating it as 10 percent disabling under Diagnostic Code 5010. It set the effective date of its grant as June 5, 2009. The Veteran did not appeal the rating or effective date the AOJ assigned. The Veteran claimed an increased rating on January 18, 2011. As the appeal was pending, the AOJ, in December 2020, recharacterized the disability as "status-post right knee meniscus surgery and right knee degenerative joint disease" for the period from June 5, 2009 to July 11, 2019 and as "right total knee replacement (TKA)" from July 12, 2019. It elected to rate the disability from June 5, 2009 to July 11, 2019 under Diagnostic Code 5258 as opposed to Diagnostic Code 5010. According to the codesheet accompanying the December 2020 rating decision, it rated the disability as 10 percent disabling from June 5, 2009 to October 20, 2014, 100 percent disabling due to surgical convalescence from October 21, 2014 to November 30, 2014, and 20 percent disabling from December 1, 2014 to July 11, 2019 under Diagnostic Code 5258. The Board observes that this must be an error. Two Diagnostic Codes address meniscal disabilities. First, Diagnostic Code 5258 provides that a 20 percent rating is warranted for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint. The 20 percent rating is the only available rating under Diagnostic Code 5258. Second, Diagnostic Code 5259 provides that a 10 percent rating is warranted for removal of semilunar cartilage. Thus, despite the codesheet, it appears the AOJ continued to rate the Veteran under Diagnostic Code 5010 from June 5, 2009 to October 20, 2014 because a 10 percent rating is not available under Diagnostic Code 5258. The AOJ did not explain why it changed to Diagnostic Code 5258, but it stated the following: A 10 percent evaluation is confirmed and continued for status post right knee surgery and right knee degenerative joint disease from June 5, 2009 to October 21, 2014, excluding a period of temporary total evaluation from October 21, 2014 to December 1, 2014 due to a need for a period of convalescence, based on: • For painful or limited motion of a major joint or group of minor joints and may also be applied once to multiple joints if there is no limited or painful motion. A 20 percent evaluation is not warranted unless X-ray evidence shows: • Involvement of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations. It is the determination of the Decision Review Officer (DRO) that the evidentiary record supports a change in the previous determination. Statements in support of your claim are considered reasonable and competent. As such, all reasonable doubt is resolved in your favor. (38 C.F.R. § 3.102, 38 C.F.R. § 4.3). This decision is based in whole on a de novo review of the evidentiary record contained within the claims record without deference to the prior determination under authority of 38 C.F.R. § 3.2600. We have assigned a 20 percent evaluation for your status post right knee meniscus surgery and right knee degenerative joint disease from December 1, 2014 to July 12, 2019 based on: • Dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint Additional symptom(s) include: • Painful motion of the knee The AOJ seemingly decided to change the Diagnostic Code based on the Veteran's partial medial meniscectomy on October 21, 2014. However, this ignores the fact that the Veteran had a prior meniscal surgery in 1988. Moreover, although VA rates the removal of cartilage under Diagnostic Code 5259, not 5258, the AOJ used 5258 because it was only a partial medial meniscectomy, i.e., some cartilage remained in the knee. Notwithstanding this, the Veteran demonstrated symptoms during the period from January 18, 2011 to October 20, 2014 that, at worst, are equivalent to the symptoms used to justify the 20 percent rating from December 1, 2014 to July 11, 2019. First, the March 2011 VA examiner found the Veteran had "mild to moderate degenerative change of the medial compartment with evidence of calcium pyrophosphate deposition of the medial meniscus. Small effusion. There is no significant change." Second, an April 16, 2014 VA treatment record notes "right knee positive effusion." Third, a June 6, 2014 VA treatment record notes "chronic right knee pain with significant mechanical symptoms (locking multiple times per week) with inability to fully extend his knee." Given the foregoing, the Board finds the Veteran warrants a 20 percent rating under Diagnostic Code 5258 from January 18, 2011 to October 20, 2014. The Board has set January 18, 2011 as the effective date because the increase in disability level was not factually ascertainable prior to receipt of the increased rating claim. Lastly, the Board notes that with its grant, the Veteran will be rated at the maximum schedular rating available under Diagnostic Code 5258 from January 18, 2011 to July 11, 2019, exclusive of surgical convalescence. Moreover, the Veteran has not raised, and the evidence does not suggest, that referral for an extra-schedular evaluation during this period is warranted. Accordingly, the Board will deny a rating greater than 20 percent under Diagnostic Code 5258 from January 18, 2011 to July 11, 2019, exclusive of surgical convalescence. Issue 3: From January 18, 2011 to October 20, 2014, a separate 10 percent rating for instability under Diagnostic Code 5257 Issue 4: From December 1, 2014 to July 11, 2019, a separate 10 percent rating for instability under Diagnostic Code 5257 Instability, as referred to in Diagnostic Code 5257, includes patellar instability due to recurrent patellar subluxation or patellar dislocation, and/or any other instability or laxity of the knee that involves other stabilizing structure of the knee such as the collateral or cruciate ligaments. Subluxation refers to partial or incomplete dislocation of the knee joint (tibiofemoral dislocation/subluxation) or tendency for the patella to dislocate from its track (patellar dislocation/subluxation). Prior to February 7, 2021, a 10 percent disability rating under Diagnostic Code 5257 was assigned for slight recurrent subluxation or lateral instability. A 20 percent disability rating was warranted when there is moderate recurrent subluxation or lateral instability, and a 30 percent disability rating required severe recurrent subluxation or lateral instability. Effective February 7, 2021, VA revised the portion of the Schedule for Rating Disabilities that addresses the musculoskeletal system. As relevant here, VA amended Diagnostic Code 5257. That said, the Board notes that the Veteran had a TKA on July 12, 2019 and that VA, from that date, has rated his disability under Diagnostic Code 5055. As the Board will consider whether the Veteran is entitled to a separate rating under Diagnostic Code 5257 in this portion of its decision, the Board highlights Tedesco v. Wilkie, 31 Vet. App. 360 (2019) for two reasons. First, in footnote 5 of Tedesco, the U.S. Court of Appeals for Veterans Claims (Court) stated: At oral argument, the Secretary’s counsel argued that the Board committed legal error when it found that a separate rating for instability under DC 5257 could be awarded. He argued that a separate instability rating is not allowable when a knee disability is rated under DC 5055 because to allow such a rating would constitute improper pyramiding. See O.A. at 52:04-56:06. The Court declines to address this argument because the Secretary did not raise it in his brief. See Norvell v. Peake, 22 Vet. App. 194, 201 (2008) (This Court has “repeatedly discouraged parties from raising arguments that were not presented in an initial brief to the Court.”), aff’d sub nom. Norvell v. Shinseki, 333 F. App’x 571 (Fed. Cir. 2009); see also McFarlin v. Conseco Servs., LLC, 381 F.3d 1251, 1263 (11th Cir. 2004) ("A party is not allowed to raise at oral argument a new issue for review."); Tarpley v. Greene, 684 F.2d 1, n.17 (D.C. Cir. 1982) ("Clearly, oral argument on appeal is not the proper time to advance new arguments or legal theories.”). The Court advances no view on the Board’s position on a separate rating for instability in conjunction with his left knee rating under DC 5055. Second, the Court also reiterated the holding of English v. Wilkie, 30 Vet. App. 352 (2019) that the Board cannot categorically favor medical evidence such as normal examination findings as to knee stability over lay statements describing giving way of the knee in determining whether a separate rating is warranted under Diagnostic Code 5257. Given VA's position that "a separate instability rating is not allowable when a knee disability is rated under DC 5055 because to allow such a rating would constitute improper pyramiding," the Board will restrict its analysis to the periods articulated above, i.e., from January 18, 2011 to October 20, 2014, and from December 1, 2014 to July 11, 2019. As the Board will be analyzing a time window prior to the revision of Diagnostic Code 5257, it must elucidate the standard imposed. The VA Schedule for Rating Disabilities did not define the words "slight," "moderate," and "severe." Rather than applying a mechanical formula, the Board must evaluate all the evidence so that its decisions are "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of such terminology 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. Because Diagnostic Code 5257 did not define the terms used, one possible source for such definitions would be the dictionary. Webster's II New College Dictionary defines "slight," as relevant here, "small in size, degree, or amount." Id. at 1038. The definitions for "moderate" include "of average or medium quantity, quality, or extent." Id. at 704. Finally, definitions for "severe" include "extremely intense." Id. at 1012. For the period from January 18, 2011 to October 20, 2014, VA examined the Veteran twice – March 2011 and June 2013. Neither VA examiner diagnosed the Veteran with instability through objective testing. However, a February 2014 VA treatment record notes "right knee pain and instability secondary to OA, s/p PT, steroid and euflexxa injections with no relief in knee pain." Mindful of English v. Wilkie and the Veteran's competent, credible reports of the manifestations of his knee disability, the Board finds the Veteran experienced instability from January 18, 2011 to October 20, 2014. For purposes of measuring the severity of the instability for the period from January 18, 2011 to October 20, 2014, the Board finds that the current evidence of record demonstrates that it manifested at the "slight" level. That is, when balancing the Veteran's reports of instability against the lack of objective findings at the 2011 and 2013 VA examinations, the Board finds that the instability manifested as "small in size, degree, or amount." Absent these objective findings – which are specifically tailored to identify instability – the Board finds the instability did not approach the "moderate" level, i.e., "of average or medium quantity, quality, or extent." For the period from December 1, 2014 to July 11, 2019, VA examined the Veteran five times – August 2015, January 2016, October 2016, November 2017, and July 2019. No VA examiner diagnosed the Veteran with instability through objective testing. However, VA treatment records from June 2016, September 2016, March 2017, and April 2017 note chronic instability. Mindful of English v. Wilkie and the Veteran's competent, credible reports of the manifestations of his knee disability, the Board finds the Veteran October 21, 2014 meniscal surgery did not repair has instability. Therefore, the Board finds he experienced instability from December 1, 2014 to July 11, 2019. For purposes of measuring the severity of the instability for the period from December 1, 2014 to July 11, 2019, the Board finds that the current evidence of record demonstrates it manifested at the "slight" level. That is, when balancing the Veteran's reports of instability against the lack of objective findings at the five VA examination conducted during this window, the Board finds that the instability manifested as "small in size, degree, or amount." Absent these objective findings – which are specifically tailored to identify instability – the Board finds the instability did not approach the "moderate" level, i.e., "of average or medium quantity, quality, or extent." REASONS FOR REMAND Remand is warranted for six issues. From January 18, 2011, entitlement to a separate rating for limitation of flexion under Diagnostic Code 5260 From January 18, 2011, entitlement to a separate rating for limitation of extension under Diagnostic Code 5261 From January 18, 2011 to October 20, 2014, a rating greater than 10 percent for instability under Diagnostic Code 5257 From December 1, 2014 to July 11, 2019, a rating greater than 10 percent for instability under Diagnostic Code 5257 From September 1, 2020, entitlement to a rating greater than 60 percent status post total knee arthoplasty (TKA) under Diagnostic Code 5055 As background, VA, through the Veterans Health Administration (VHA), authorizes eligible Veterans to receive health care from a community provider rather than waiting for a VA appointment or traveling to a VA facility. This authorization includes both the former Veterans Choice Program and the current Veterans Community Care Program. In November 2019, the Board, as relevant here, remanded for the AOJ to obtain Community Care-approved treatment at Crest Physical Therapy. The AOJ obtained these records, and they are contained in a file received December 9, 2019. In a CAPRI file uploaded to the claims file on May 20, 2020, VA treatment records show multiple Community Care-referrals for the Veteran's right knee. This 656-page file includes references, for example, to Twinboro Physical Therapy, Briello Orthopedics, and Dr. N.B. of Orthopedic Sports & Medicine Rehab Center. For Twinboro Physical Therapy and Briello Orthopedics, the records do not appear in the claims file. For Orthopedic Sports & Medicine Rehab Center, VA received records from this facility on May 14, 2019, August 23, 2019, and February 17, 2021. Therefore, the Board considers these records to be complete. As these records may bear on ratings under the Diagnostic Codes cited above, remand is warranted to attempt to obtain them before deciding those issues. Also, to the extent that there may also be other Community Care providers beyond Twinboro Physical Therapy and Briello Orthopedics, remand is also warranted. Entitlement to an effective date earlier than November 17, 2015 for the grant of a total disability based upon individual unemployability (TDIU) The VA regulation defining eligibility for a TDIU is 38 C.F.R. § 4.16. This regulation, however, does not define the procedure by which a Veteran may claim a TDIU. Instead, VA practice and case law have defined two ways – formal and informal. A formal claim exists when VA receives a VA Form 21-8940. An informal claim, in contrast, is created pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). Rice holds that a claim for a TDIU is part of any open rating issue (initial or increased) when unemployability is expressly raised by a veteran or reasonably raised by the record during the rating appeal, and it attaches for the entire rating period. Here, the Veteran filed a VA Form 21-8940 on November 28, 2015. In it, he stated that he "became too disabled to work" on October 21, 2014, that his "disability affected full-time employment" on October 21, 2014, and that he "last worked full-time" on November 16, 2015. The AOJ granted a TDIU in a December 2020 rating decision. It assigned November 17, 2015 as the effective date, the day after the Veteran stated he last worked full time. The Veteran did not file a Notice of Disagreement with this decision. That, however, does not end the inquiry. In 2018, the U.S. Court of Appeals for Veterans Claims, in Harper v. Wilkie, 30 Vet. App. 356 (2018), held that when, as here, the issue of entitlement to a TDIU becomes part and parcel of an underlying appeal for a higher disability rating, the grant of a TDIU does not bifurcate the appeal and a Notice of Disagreement does not need to be filed to challenge the effective date assigned for the award of a TDIU. If the grant of a TDIU does not encompass the entire disability rating period on appeal, it serves as a partial grant and the remaining period remains in appellate status. Given the foregoing, the issue of entitlement to an effective date earlier than November 17, 2015 for the grant of a TDIU is on appeal. In this regard, the Board notes the Veteran received a 100 percent disability rating for surgical convalescence from October 21, 2014 to November 30, 2014. Remand is warranted because it is unclear what the Veteran's employment status was between October 21, 2014 and November 17, 2015. The matters are REMANDED for the following action: 1. Ask the Veteran to identify the following: All private medical providers that have treated him through either the Veterans Choice Program or Veterans Community Care Program for his right knee disorder. Ask him to provide the AOJ with the addresses and phone numbers of these facilities. If the Veteran responds, attempt to obtain all treatment records available from these facilities. 2. Independent of Directive #1, identify all records generated through the Veterans Choice Program or Veterans Community Care Program that VHA already possesses relevant to treatment of the Veteran's right knee disorder. Once identified, arrange for these documents to be made viewable in VBMS and/or added as separate files. In short, the Board wants to ensure that it can view all available records, not simply a notation that private records have been scanned into a VHA database to which the Board does not have access. The Board reminds the AOJ that the Board does not have access to VistA Imaging, so any relevant records contained in VistA must be copied and uploaded/added to the Veteran's VBMS file. 3. Ask the Veteran to explain his employment status from October 21, 2014 to November 17, 2015. The Board needs this information to determine whether he is entitled to an effective date earlier than November 17, 2015 for the grant of his TDIU. Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Sopko, 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.