Citation Nr: 21015337 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 16-30 490 DATE: March 17, 2021 ORDER For the period prior to August 25, 2011, a separate rating of 10 percent under DC 5259 for a symptomatic meniscal disability (torn cartilage) is granted. For the period since December 1, 2011, a separate rating of 30 percent under DC 5260 for limitation of right knee flexion is granted. For the period between December 1, 2011, and September 1, 2014, a higher rating of 20 percent, but no more, under DC 5257 for right knee instability is granted. For the period since June 1, 2015, the Veteran an even higher rating of 30 percent under DC 5257 for right knee instability is granted. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Prior to August 25, 2011, the Veteran experienced symptoms (e.g., swelling) related to a right meniscal disability (torn cartilage). 2. Since December 1, 2011, the Veteran’s right knee disability manifested as loss of range of motion that approximates the criteria for a rating of 30 percent. 3. Between December 1, 2011, and September 1, 2014, the Veteran’s right knee disability manifested as moderate lateral instability. 4. Since June 1, 2015, the Veteran’s right knee disability has manifested as severe lateral instability. CONCLUSIONS OF LAW 1. For the period prior to August 25, 2011, the criteria for a separate rating of 10 percent under DC 5259 for a symptomatic meniscal disability (torn cartilage) are met. 38 U.S.C. §§ 1155, 5107; 38C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5259. 2. For the period since December 1, 2011, the criteria for a separate rating of 30 percent under DC 5260 for limitation of right knee flexion are met. 38 U.S.C. §§ 1155, 5107; 38C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5260. 3. For the period between December 1, 2011, and September 1, 2014, the criteria for a higher rating of 20 percent, but no more, under DC 5257 for right knee instability are met. 38 U.S.C. §§ 1155, 5107; 38C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5257. 4. For the period since June 1, 2015, the criteria for an even higher rating of 30 percent under DC 5257 for right knee instability are met. 38 U.S.C. §§ 1155, 5107; 38C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1979 to January 1981. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2011 rating decision. The Veteran testified at a Board hearing in December 2018. In June 2020, the Board remanded the issues of higher rating for the knee and entitlement to a TDIU, for additional development. Entitlement to higher or separate rating for the Veteran’s right knee. The issue of a higher rating for the Veteran’s service-connected right knee disability stems from a March 2011 claim. See 03/03/2011, Supplemental Claim. Prior to August 25, 2011, the Veteran’s right knee is rated as 10 percent disabling under 5260. Since December 1, 2011, the Veteran’s service-connected right knee disability is rated as 20 percent disabling under DC 5258, with a separate rating of 10 percent (under DC 5257) for right knee instability. The Veteran is in receipt of a temporary rating of 100 percent from August 25, 2011, to November 30, 2011, and from September 2, 2014, to May 31, 2015. *** A June 2011 VA examination reflects that the Veteran complained of intermittent pain and swelling in both knees. He also reported being told that he had torn cartilage. On physical examination, there was no swelling or instability. The Veteran had right knee flexion to 130 degrees; extension was normal. It was noted that the Veteran used a cane to ambulate and appeared to require it for distance. The examiner noted that there was no evidence of weakened movement, excessive fatigability, or incoordination. It was noted that flare-ups occurred daily and were of moderate severity and duration. The examiner, however, indicated that there was no evidence of decreased motion during flare-ups or with repetitive motion. The examination was negative for instability. In August 2011, the Veteran underwent an arthroscopic meniscectomy. Based on the evidence above, the Board finds that a rating higher than 10 percent under DC 5260 is not warranted for the period prior to August 25, 2011. For the Veteran to be entitled to the next available rating of 20 percent, the evidence must show flexion limited to 30 degrees or less. 38 C.F.R. § 4.71a. In this case, however, the June 2011 VA examination shows flexion to 130 degrees, with no indication of additional functional loss due to repeated use or flare-ups, resulting in a disability picture that more closely approximates the criteria for a higher rating. Notwithstanding, the Board finds that the Veteran is entitled to a separate rating of 10 percent under DC 5259 for symptoms related to his torn meniscus cartilage. As mentioned, the Veteran has reported swelling. This symptomatology is not contemplated by painful and/or limited motion of DC 5260 so the Board does not finding pyramiding comes into play and a separate rating is warranted. 38 C.F.R. § 4.14. As mentioned above, the Veteran underwent a meniscectomy two months after the June 2011 VA examination. *** The Board now turns to the period since December 1, 2011. As mentioned above, a temporary rating of 100 percent is in effect from September 2, 2014, to May 31, 2015. In a December 2011 statement, the Veteran indicated that he had lateral instability, locking, and constant pain affecting his range of motion. See 12/12/2011, Statement in Support of Claim. An October 2014 VA examination shows that the Veteran complained of right pain, swelling, and popping. Regarding flare-ups, he complained of increased pain and swelling with prolonged standing and walking. The examiner noted that the Veteran underwent a right knee arthroscopy, to include arthroscopic medial and lateral meniscectomy, in August 2011 due to increasing symptoms. Range of motion testing shows right knee flexion to 95 degrees, with pain at 75 degrees; extension was normal. After repetitive use, right knee flexion was to 75 degrees. Joint stability testing was normal. It was noted that the Veteran had pain, swelling, and limited motion, as residuals of a meniscal tear. Regular use of cane and brace, prescribed, was noted. Regarding functional impact, the examiner noted that the Veteran had stopped working as an electrician six months earlier because he could not kneel, climb, or stand or walk for extended periods of time, as required by that line of work. Finally, the examiner noted that there was additional functional loss of 20 degrees of right knee flexion due to pain after repetitive use or during flare-ups, adding that pain could significantly limit functional ability during flare-ups or after repeated use over time. A May 2015 VA examination shows continued complaints of knee pain, locking, and swelling. The Veteran reiterated that he was unable to perform his duties as an electrician. Range of motion testing shows flexion to 100 degrees and extension to 10 degrees. The examiner indicated that the range of motion, while abnormal did not contributed to functional loss. However, the examiner indicated that pain was noted on examination, adding that the pain did cause functional loss. The Veteran was unable to perform repetitive use testing due to pain. The examiner acknowledged that the Veteran would have decreased range of motion with repeated use over time or during flare-ups but indicated that she could not provide a specific measurement of range of motion without resort to mere speculation. The examiner was unable to perform joint stability testing due to the Veteran’s condition at the time. Regarding the Veteran’s meniscal tear, the examiner indicated that the Veteran experienced locking, clicking, and giving way of knee. Regarding functional impairment, the Veteran was unable to stand, walk, or sit for prolonged periods. It was noted that the Veteran used to work as an electrician but was now unable to squat or sit to perform his duties. A July 2015 VA examination shows complaints of chronic right knee pain. The Veteran also indicated that his knees gives out and locks, adding weather and prolonged standing makes it worse. Range of motion testing could not be conducted, as the Veteran was in too much pain during the examination. Regarding instability, the examiner noted a history of slight instability. Joint stability testing, however, could not be performed. The examiner endorsed frequent episodes of joint locking and pain related to the Veteran’s meniscal tear. Regarding range of motion, the examiner referenced an April 2015 VA surgery note, showing right knee flexion to approximately 110 degrees, with full extension. A March 2018 VA examination reflects that the Veteran reported constant pain and intermittent swelling in his right knee. Range of motion testing shows flexion to 100 degrees; extension was normal. The examiner noted pain on flexion and with weight bearing. The Veteran also reported flare-ups where the pain “can get worse at anything” or from tweaking his knee the wrong way. The examiner explained that the Veteran’s range of motion loss after repeated use and during flare-ups was “variable, depending on how strenuously the joint was used.” At its worst, the Veteran could not move his knee at all due to pain, weakness, and lack of endurance. The section of the DBQ regarding meniscal conditions was not completed. Functional impact was described as difficulty with walking, sitting, and kneeling. At the December 2018 Board hearing, the Veteran reported intermittent swelling and a history of knee instability, to include falls due to loss of balance. In this regard, he stated that he had consistently worn a knee brace for the last three years. See 12/11/2018, Hearing Transcript, at 5. He also indicated that his knee disability was getting worse. Id. at 11. Most recently, a September 2020 VA examination shows diagnoses of meniscal tear, knee instability, and degenerative arthritis, for the right knee. Regarding current symptoms, the Veteran reported right knee pain and instability, and difficulty walking due the instability. He also reported being told that he would need a knee replacement for his right knee. It was noted that he used a knee brace and cane intermittently. On physical examination, right knee flexion was limited to 90 degrees, with normal extension. Regarding range of motion, the examiner noted the following: The veteran exhibited poor effort while doing range of motion testing. When asked to flex his knee veteran reports that he cannot bend his knee; was told not to bend his knee. The veteran was asked to remove his knee brace in order to the conduct the knee examination of his right knee. The veteran was able to bend his right knee to 90° placing it across his left knee in order to pull off his knee brace for examination. When asked to do range of motion after removing his knee brace the veteran reports he cannot move his knee past 20°.   Regarding range of motion after repetitive use, it was noted that the Veteran was unable to do repetitive use testing due to pain. Regarding functional loss with repeated use over time or during flare-ups, the examiner was unable to describe it in terms of range of motion. Rather, the examiner described it as moderate, lasting hours, precipitated my knee movement and alleviated by sitting still, resulting in pain with movement and limited range of motion of the knee. The examination was negative for ankylosis and instability testing could not be performed due to the Veteran’s pain and inability to bend his knee. Regarding the Veteran’s meniscal condition, the examiner noted meniscal tear, frequent episodes of joint locking, joint pain, and joint effusion. Functional impact was described as decreased capacity for prolonged walking, bending, and squatting, secondary to his right knee. *** At the outset, the Board notes that the Veteran is already in receipt of the maximum rating available under DC 5258. A higher rating under DC 5258 is not available as matter of law. Notwithstanding, the Board finds that the Veteran is entitled to a separate rating for limitation of flexion and higher ratings for knee instability. Based on the evidence above, the Board finds that the Veteran is entitled to a separate rating of 30 percent under DC 5260, for limitation of flexion. As described above, there is conflicting evidence regarding the severity of the Veteran’s loss of range of motion. While several physical examinations indicate that his flexion is limited to not less than 75 degrees, the Veteran’s descriptions of functional loss during flare-ups suggests greater limitation. Furthermore, VA examinations suggest that the Veteran’s right knee disability is so severe that it is difficult for examiners to properly assess his range of motion. Finally, the March 2018 VA examiner indicated that, during the worst flare-ups, the Veteran may not be able to move his knee at all due to pain, weakness, and lack of endurance. Resolving doubt in favor of the Veteran, the Board finds that his right knee disability manifests as loss of range of motion that more nearly approximates the criteria for a rating of 30 percent under DC 5260. 38 C.F.R. § 4.71a. This is the maximum rating under DC 5260. A higher rating under this diagnostic code is not available as a matter of law. The Board further finds that higher ratings are warranted for the Veteran’s right knee instability. More specifically, the Board finds that a rating of 20 percent is warranted from December 1, 2011, to September 1, 2014. The Board further finds that a rating of 30 percent is warranted for the period since June 1, 2015. The evidence of records for the period between December 1, 2011, and September 1, 2014, indicates that the Veteran’s right knee disability manifested as lateral instability, requiring use of a cane. By this time, the Veteran had already undergone right knee surgery. In view of this, the Board finds that level of severity of the Veteran’s right knee instability is best described as moderate. Such level of severity entitled the Veteran to a rating of 20 percent under DC 5257. 38 C.F.R. § 4.71a. In reaching this conclusion, the Board has considered new VA regulations that provide detailed criteria for the rating of knee instability. While these new regulations became effective only recently, on February 7, 2021, and do not apply to most of the period on appeal, they are nevertheless instructive as to how to interpret the prior regulations’ use of the terms “mild”, “moderate”, and “severe”. For the period since June 1, 2015, the Board finds that the Veteran meets the criteria for a rating of 30 percent under DC 5257. Significantly, the evidence shows that, during this period, the Veteran has required prescribed use of both a brace and a cane, suggesting a severe level of right knee instability. This is the maximum rating under DC 5257. A higher rating under this diagnostic code is not available as a matter of law. To summarize, the Board finds that, for the period prior to August 25, 2011, a separate rating of 10 percent (the only available rating) under DC 5259 for a symptomatic torn cartilage is warranted. For the period since December 1, 2011, the Veteran is entitled to a separate rating of 30 percent under DC 5260 for limitation of right knee flexion. Finally, for the period between December 1, 2011, and September 1, 2014, the Veteran is entitled to a higher rating of 20 percent under DC 5257 for right knee instability. Meanwhile, for the period since June 1, 2015, the Veteran is entitled to an even higher rating of 30 percent for severe right knee instability. REASONS FOR REMAND Entitlement to a TDIU is remanded. The Veteran has raised the issue of entitlement to a TDIU. In a September 2014 statement, he requested that his disability rating be increased from 30 percent to 100 percent, due to multiple service-connected disabilities. 09/10/2014, Statement in Support of Claim. At an October 2014 VA examination, he stated that, six months earlier, he stopped working as an electrician because he could not kneel, climb, or stand or walk for extended periods, as required by that line of work. In contrast, a VA treatment note from June 2018 indicates that the Veteran was employed full-time, earning $25 per hour. At his December 2018 Board hearing, he reported working as an electrician.12/11/2018, Hearing Transcript, at 3-4. In view of the above, in June 2020, the Board remanded the Veteran’s TDIU claim to the RO for development. In December 2020, the Veteran submitted a completed TDIU application. In it, he indicated that, in May 2020, he last worked full-time and became too disabled to work, due to his service-connected disabilities. His last full-time employment was an electrician, from 2015 to 2020. He reported having earned $58,000 in 2019 and $20,000 in the last 12 months. Regarding his education, he reported a high-school level education. This TDIU application was received after the most recent supplemental statement of the case (SSOC) had been issued. Most recently, in February 2021, VA sent a request for employment information to the Veteran’s most recent employer. As of the writing of this decision, no response has been received. Since the Board is granting higher and separate ratings for the Veteran’s service-connected right knee disability and the RO is still conducting relevant development for the Veteran’s TDIU claim, the Board finds that the appropriate course of action is to remand the TDIU claim back to the RO for readjudication in light of the Veteran’s new disability ratings and any employment information that is received.   The matter is REMANDED for the following action: After implementing the Board’s decision regarding the higher ratings for the Veteran’s right knee and completing all pending development related to the TDIU claim, readjudicate the issue of entitlement to a TDIU. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. López, 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.