Citation Nr: 21015298 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 15-42 690 DATE: March 17, 2021 ORDER A disability rating in excess of 10 percent for service-connected limitation of flexion associated with residuals of right medial meniscus repair with fibrosis and scar (hereinafter referred to as right knee flexion) from January 7, 2014 is denied. A separate disability rating of 20 percent for right knee lateral instability (hereinafter referred to as right knee instability), and no higher, from January 7, 2014 is granted. REMANDED A temporary total disability rating (TTR) under 38 C.F.R. § 4.30 subsequent to November 1, 2011 for convalescence following a right knee patellofemoral groove replacement surgery is remanded. FINDINGS OF FACT 1. For the rating period on appeal, from January 7, 2014, the right knee flexion disability manifested in flexion between 70 and 100 degrees, extension at 0 and 5 degrees, and some functional loss. 2. From January 7, 2014, the right knee instability disability more nearly approximated moderate instability. 3. From February 7, 2021, the right knee instability manifested in patellar instability with recurrent instability after surgical repair that requires a prescription by a medical provider for a cane. 4. For the rating period on appeal from January 7, 2014, the right knee did not manifest in ankylosis, dislocation or removal of semilunar cartilage, nonunion or malunion of the tibia and fibula, medial tibial stress syndrome (MTSS) or shin splints, or genu recurvatum, to warrant a higher or separate compensable rating. CONCLUSIONS OF LAW 1. The criteria for an increased rating in excess of 10 percent for the right knee flexion disability for the entire rating period on appeal, from January 7, 2014, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260 (2020), 4.71a, Diagnostic Code 5260 (effective February 7, 2021). 2. Resolving reasonable doubt in favor of the Veteran, the criteria for an initial rating of 20 percent for the right knee instability from January 7, 2014 have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257 (2020), 4.71a, Diagnostic Code 5257 (effective February 7, 2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1999 to June 2003. These matters stem from a claim for TTR for the right knee surgery on August 31, 2011 filed on January 7, 2014. In a June 2014 rating decision issued by the Regional Office (RO) in San Diego, California, the RO denied entitlement to a TTR for the right knee surgery on August 31, 2011 and entitlement to a TTR for the left knee surgery on October 16, 2013. The Veteran filed a notice of disagreement in July 2014, which was followed by an October 2015 statement of the case. The Veteran filed a substantive appeal (VA Form 9) in November 2015. During the current appeal stream, in a September 2015 rating decision, the RO granted a TTR for left knee surgery on October 16, 2013. The claim for a TTR for left knee surgery has been granted in full. The Veteran testified at a Board videoconference hearing at the RO in San Diego, California, in February 2019 before the undersigned Veterans Law Judge in Washington, DC. The hearing transcript has been associated with the record. These matters were previously before the Board in May 2019. The Board granted a separate disability rating of 10 percent for right knee lateral instability from November 23, 2018, denied a disability rating in excess of 10 percent for service-connected residuals of right medial meniscus repair with fibrosis and scar and granted TTR under 38 C.F.R. § 4.30 from August 31, 2011 to November 1, 2011 for convalescence following a right knee patellofemoral groove replacement surgery. The Veteran appealed the May 2019 Board decision to the U.S. Court of Appeals for Veterans Claims (CAVC).      An August 2020 Order by CAVC adopted a Joint Motion for Partial Remand (JMPR) filed by the parties. The parties agreed that the reasons and bases in the May 2019 Board decision pertaining to the effective date of November 23, 2018 for a 10 percent rating for the right knee instability and the denial of a rating in excess of 10 for the right medial meniscus repair with scare are inadequate. The parties agreed that the Board did not address and explain the period on appeal for rating the right knee disabilities, including the right knee instability, right knee scar, and any other separately compensable right knee ratings. The parties also agreed that the Board did not ensure VA satisfied its duty to assist as it relates to issue of establishing entitlement to TTR subsequent to November 1, 2011 because the record suggests the existence of outstanding relevant private treatment records that have not been submitted to the record. Duties to Notify and Assist The Board finds that the duties to notify and assist the Veteran in this case have been fulfilled regarding the issue now addressed on the merits. Neither the Veteran nor the representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). Legal Authority for Disability Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. § Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran’s service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (double “compensation” for the same symptom or impairment is prohibited). When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Further, 38 C.F.R. §§ 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. Painful motion is considered limited motion at the point that pain actually sets in. See VAOPGCPREC 9-98. With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or mal-aligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. The appropriate diagnostic codes for rating limitation of motion of the knees are Diagnostic Codes 5260 and 5261. 38 C.F.R. § 4.71a. Normal range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. In VAOPGCPREC 9-2004, the VA General Counsel interpreted that when considering Diagnostic Codes 5260 and 5261 together with 38 C.F.R. § 4.71, a veteran may receive a rating for limitation in flexion only, limitation of extension only, or, if the 10 percent criteria are met for both limitations of flexion and extension, separate ratings for limitations in flexion under Diagnostic Code 5260 (leg, limitation of flexion) and extension under Diagnostic Code 5261 (leg, limitation of extension). Under Diagnostic Code 5260, limitation of knee flexion is rated 30 percent disabling where flexion is limited to 15 degrees; 20 percent disabling where flexion is limited to 30 degrees; 10 percent disabling where flexion is limited to 45 degrees; and noncompensable where flexion is limited to 60 degrees. 38 C.F.R. § 4.71a. Under Diagnostic Code 5261, limitation of knee extension is rated 50 percent disabling where extension is limited to 45 degrees; 40 percent disabling where extension is limited to 30 degrees; 30 percent disabling where extension is limited to 20 degrees; 20 percent disabling where extension is limited to 15 degrees; 10 percent disabling where extension is limited to 10 degrees; and noncompensable where extension is limited to 5 degrees. 38 C.F.R. § 4.71a. During the pendency of this appeal the diagnostics codes in 38 C.F.R. § 4.71a have been revised, pertinent to this case DCs 5257 and 5262. Prior to February 7, 2021 revision, Diagnostic Code 5257 contemplated “other impairment” of the knee including recurrent subluxation or lateral instability. Under Diagnostic Code 5257, where impairment is severe, moderate or slight, disability evaluations of 30, 20, and 10 percent are assigned, respectively. 38 C.F.R. § 4.71a. From February 7, 2021, Diagnostic Code 5257 contemplates “other impairment” of the knee including (1) recurrent subluxation or instability and (2) patellar instability. For recurrent subluxation or instability, unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation warrants a 30 percent rating. A 20 percent rating is warranted if the veteran exhibits one of the following: (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation, or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 10 percent rating is warranted if the veteran exhibits sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. For patellar instability, a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker warrants a 30 percent rating. A 20 percent rating is warranted if the veteran has a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace, cane, or walker. A 10 percent rating is warranted if the veteran has a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. Prior to February 7, 2021, Diagnostic Code 5262 contemplated impairment of the tibia and fibula, assigning a 40 percent rating for nonunion of the tibia and fibula, and 10, 20, and 30 percent ratings for slight, moderate or marked knee or ankle disabilities. The words “slight,” “moderate,” “severe,” and “marked” as used in the various diagnostic codes are not defined in the VA Rating Schedule. From February 7, 2021, the revised Diagnostic Code 5262 contemplates impairment of the tibia and fibula, assigning a 40 percent rating for nonunion of the tibia and fibula with loos emotion requiring brace. A 30 percent rating is assigned for medial tibial stress syndrome (MTSS), or shin splints, requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, both lower extremities. A 20 percent rating is assigned for MTSS, or shin splints, requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, one lower extremity. A 10 percent rating is assigned for MTSS, or shin splints, requiring treatment for no less than 12 consecutive months, and unresponsive to either shoe orthotics or other conservative treatment, one or both lower extremities. A 0 percent rating is assigned for MTSS, or shin splints, requiring treatment less than 12 consecutive months, one or both lower extremities. Under Diagnostic Code 5256, disability ratings are assigned when ankylosis is present. Diagnostic Code 5258 provides a 20 percent disability rating when a dislocated semilunar cartilage is present with frequent episodes of “locking,” pain, and effusion into the joint. Diagnostic Code 5259 provides for a 10 percent disability rating when semilunar cartilage has been removed and related symptoms are present. A 10 percent disability rating is assigned under Diagnostic Code 5263 when genu recurvatum is identified. Diagnostic Code 5003 provides that degenerative arthritis established by X-ray findings is to be evaluated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic code, an evaluation 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 DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent evaluation is assignable for X-ray evidence of involvement of arthritis of two or more major joints or two or more minor joint groups. A 20 percent evaluation is assignable for X-ray evidence of involvement of arthritis of two or more major joints or two or more minor joint groups, with occasional incapacitating episodes. 38 C.F.R. § 4.71a. Notes (1) and (2) under Diagnostic Code 5003 provides the following: Note (1) provides that the 20 percent and 10 per cent ratings based on X-ray findings, above, will not be combined with ratings based on limitation of motion. Note (2) provides that the 20 percent and 10 percent ratings based on X-rays findings, above, will not be utilized in rating conditions listed under Diagnostic Codes 5013 to 5024, inclusive. VA’s Office of General Counsel has provided guidance concerning increased rating claims for knee disabilities. VA’s General Counsel interpreted that compensating a claimant for separate functional impairment under Diagnostic Code (DC) 5257 and 5003 does not constitute pyramiding. See VAOPGCPREC 23-97. Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not “duplicative of or overlapping with the symptomatology” of the other condition. See Esteban, 6 Vet. App. 259, 262; Lyles, 29 Vet. App. 107. In VAOPGCPREC 9-98, VA’s General Counsel reiterated that, if a veteran has a disability rating under Diagnostic Code 5257 for instability of the knee, and there is also X-ray evidence of arthritis, a separate rating for arthritis could also be based on painful motion under 38 C.F.R. §§ 4.59. In addition, the General Counsel considered a hypothetical situation in which a knee disability was evaluated under Diagnostic Code 5259 that was productive of pain, tenderness, friction, osteoarthritis established by X-rays, and a slight loss of motion. For the purposes of the hypothetical, it was assumed that Diagnostic Code 5259 did not involve limitation of motion. Given the findings of osteoarthritis, the General Counsel stated that the availability of a separate evaluation under Diagnostic Code 5003 in light of sections 4.40, 4.45, 4.59 must be considered. See Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). Absent X-ray findings of arthritis, limitation of motion should be considered under Diagnostic Codes 5260 and 5261. The claimant’s painful motion may add to the actual limitation of motion so as to warrant a rating under Diagnostic Codes 5260 or 5261. The VA General Counsel further noted in VAOPGCPREC 9-98 that the removal of the semilunar cartilage may involve restriction of movement caused by tears and displacements of the menisci, but that the procedure may result in complications such as reflex sympathetic dystrophy, which can produce loss of motion. Therefore, limitation of motion is a relevant consideration under Diagnostic Code 5259, and the provisions of 38 C.F.R. §§§ 4.40, 4.45, and 4.59 must be considered. 1. Rating the Right Knee Flexion Disability from January 7, 2014 The Veteran is in receipt of a 10 percent disability rating for the right knee flexion disability from November 1, 2011 under DC 5260. (This disability now referred to as a flexion disability encompasses all pain, limitations of motion, findings, and functional limitations other than the instability that is separately rated under Diagnostic Code 5257) The Veteran reports that he has undergone several surgeries on the right knee. The Veteran reports that the right knee manifests in pain and limitation of motion, which have affected the ability to walk, climb stairs, and engage in recreational activities. See January 2014 VA Examination; April 2014 VA Examination; February 2019 Transcript; January 2020 VA Examination; October 2020 VA Examination. After reviewing the evidence of record, lay and medical, the Board finds that for the rating period on appeal, from January 7, 2014, the right knee flexion disability manifested in flexion between 70 and 100 degrees, extension at 0 and 5 degrees, and some functional loss. See January 2014 VA Examination (The VA examiner measured flexion at 95 degrees initially and 90 degrees after repetitive use and measured extension at 5 degrees initially and after repetitive use); April 2014 VA Examination (The VA examiner measured flexion at 70 degrees initially and after repetitive use and measured extension at 0 degrees initially and after repetitive use); January 2020 VA Examination (The VA examiner measured flexion at 70 degrees and extension at 0 degrees initially, after observed repetitive use, after repetitive use over time, and during flare ups); October 2020 VA Examination (The VA examiner measured flexion at 110 degrees and extension at 0 degrees initially, after observed repetitive use, after repetitive use over time, and during flare ups). The evidence does show compensable flexion or extension throughout the entire period on appeal from 2014. Even considering additional functional limitations due to pain and weakness, the evidence does not show separately compensable limitation of flexion (for a 10 percent rating under DC 5260) or separately compensable limitation of extension (under DC 5261). For these reasons, the Board finds that the criteria for an increased disability rating in excess of 10 percent for the right knee flexion disability for the entire period on appeal, from January 7, 2014, have not been met; therefore, the appeal for increased rating must be denied. 2. Rating the Right Knee Instability from January 7, 2014 The Veteran is in receipt of a 10 percent disability rating for the right knee instability disability from November 23, 2018 under DC 5257. The JMPR agreed that the potential instability rating period is from January 2014. The Veteran claims that the right knee instability is more severe than the current rating and has manifested throughout the entire period on appeal, including the rating period prior to November 23, 2018. See February 2019 Transcript; August 2020 JMPR. This issue stems from a claim filed on January 7, 2014. During the pendency of this appeal, some of the diagnostic codes in 38 C.F.R. § 4.71a have been revised with an effective date of February 7, 2021, specifically pertinent to this case, DCs 5257 and 5262. The Board will make its findings in accordance with this revision, applying the previous rating criteria for the entire rating period from 2014, and applying the new rating criteria for the rating period from February 7, 2021 to see if the new criteria is more favorable. After a review of all the evidence, the Board finds that, for the increased rating period from January 7, 2014, the right knee instability more nearly approximated moderate instability to warrant a higher rating of 20 percent. The Board finds that entitlement to a higher initial rating for the right knee instability arose on January 7, 2014, as the matter stems from a claim for TTR for the right knee surgery filed on January 7, 2014. In a VA examination conducted in January 2014, the VA examiner found right knee anterior instability, posterior instability, medial-lateral instability, and a history or of moderate recurrent patellar subluxation or dislocation. The VA examiner also noted that the Veteran constantly wore knee braces for support. An April 2014 VA examination report shows findings of normal stability in the right knee and noted “no response provided” when determining whether the Veteran used assistive devices. During the February 2019 Board hearing, the Veteran testified that he experienced right knee instability, explaining that the knee frequently buckles and interferes with daily activities. See February 2019 Transcript. The January 2020 VA examination report notes a history of instability but found normal stability in the right knee. The VA examiner noted that the Veteran used a brace regularly to reduce swelling and a cane occasionally for walking. An October 2020 VA examination report shows findings of normal stability in the right knee and notes that the Veteran used a brace and cane regularly. An October 2020 VA examination report notes that the Veteran used a brace and cane regularly but did not note whether the devices were prescribed by a medical professional for the purpose of stability. Evidence of record suggests that the brace was used to reduce swelling and the cane was used for stability. With regard to the new rating criteria of DC 5257 that became final on February 7, 2021, there was patellar instability with recurrent instability recurrent instability after surgical repair that requires a prescription by a medical provider for a cane. This also meets the revised rating criteria for a 20 percent disability rating under the revised DC 5257 that became final on February 7, 2021. No Other Separate or Higher Right Knee Ratings The evidence of record does not establish, and the Veteran does not contend, that the right knee exhibited ankylosis, dislocation or removal of semilunar cartilage, nonunion or malunion of the tibia and fibula, medial tibial stress syndrome (MTSS) or shin splints, or genu recurvatum for the rating period on appeal, from January 7, 2014, to warrant higher or separate compensable disability ratings. See January 2014 VA Examination; April 2014 VA Examination; February 2019 Transcript; January 2020 VA Examination; October 2020 VA Examination. See 38 C.F.R. § 4.71a Diagnostic Codes 5256, 5258, 5259, 5260, 5262, or 5263. REASONS FOR REMAND 3. Entitlement to a TTR under 38 C.F.R. § 4.30 subsequent to November 1, 2011 for convalescence following a right knee patellofemoral groove replacement surgery is remanded. In the August 2020 Order by CAVC adopted a Joint Motion for Partial Remand (JMPR) filed by the parties. The parties agreed that the record suggests the existence of outstanding relevant private treatment records from Palomar Orthopedic Specialists, Physical Therapy and Hand Centers of Ramona, California, and lay statements of record. The parties request that the Board remand the TTR issue in order to request outstanding medical treatment records. The matters are REMANDED for the following action: Obtain all relevant medical treatment records, VA and private, pertaining to the right knee patellofemoral groove replacement surgery on August 31, 2011, including all follow-up treatment, therapy, and recovery for the right knee, especially all relevant records from Palomar Orthopedic Specialists and Physical Therapy and Hand Centers of Ramona, California. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Costantino, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.