Citation Nr: 21015409 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 18-00 915 DATE: March 17, 2021 ORDER Entitlement to an increased rating in excess of 10 percent for right knee instability status post anterior cruciate ligament (ACL) reconstruction with posttraumatic arthritis is denied. REMANDED Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU) is remanded. FINDING OF FACT During the entire period on appeal, the Veteran’s right knee instability status post ACL reconstruction with posttraumatic arthritis, was manifested by slight recurrent subluxation and lateral instability. CONCLUSION OF LAW The criteria for an evaluation in excess of 10 percent for right knee instability status post ACL reconstruction with post-traumatic arthritis have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.59, 4.7, 4.71a, Diagnostic Code 5257 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Air Force from August 1978 to August 1998. The claims were previously before the Board in September 2019. A July 2020 order of the United States Court of Appeals for Veterans Claims (Court) implemented a July 2020 Joint Motion for Partial Remand (JMPR), vacating and remanding, in part, the September 2019 Board decision that denied entitlement to an increased rating for the Veteran’s right knee instability status post anterior cruciate ligament (ACL) reconstruction with post-traumatic arthritis and entitlement to a TDIU. As such the issues of entitlement to an increased rating for the Veteran’s right knee instability status post ACL reconstruction and entitlement to a TDIU are again before the Board. Increased Rating Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, staged ratings will be considered and discussed, as warranted. VA regulations set forth at 38 C.F.R. §§ 4.40, 4.45, and 4.59 provide for consideration of functional impairment due to pain on motion when evaluating the severity of a musculoskeletal disability. If feasible, these determinations are to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59. Moreover, joint testing is to be conducted on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158, 170 (2016). Right knee instability The Veteran contends that an increased rating is warranted for her right knee instability status post ACL reconstruction with post traumatic arthritis. Herein, the Board will refer to such as the Veteran’s right knee instability, using such to refer to the entirety of the symptomology associated with her right knee instability. The Veteran’s right knee instability has been rated at 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5257. Under Diagnostic Code 5257, the criteria for impairment of the knee other than ankylosis, 10, 20, and 30 percent evaluations are assigned for slight, moderate, and severe recurrent subluxation or instability, respectively. C.F.R. § 4.71a, Diagnostic Code 5257. The terms “slight,” “moderate,” and “severe” are not defined in the Schedule. 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 “slight” or “moderate” 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 a higher rating. 38 C.F.R. §§ 4.2, 4.6. During the course of the appeal, effective February 7, 2021, 38 C.F.R. § 4.71a Schedule of Ratings-Musculoskeletal System including Diagnostic Code 5257 was amended. Effective February 7, 2021 forward, under updated Diagnostic Code 5257, the criteria for other impairment of the knee recurrent subluxation, a 10 percent evaluation is assigned for sprain, incomplete ligament tear or complete ligament tear (repaired, unrepaired, or failed repair) causing peristent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or for bracing or ambulation. A 20 percent evaluation is assigned for one of the following: a sprain, incomplete ligament tear, or repaired complete ligament tear causing peristent instability, and medical provider prescribes a brace and/or assistive device (e.g., cane(s) crutch(es), walker) for ambulation or unrepaired or failed repair of complete ligament teart causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 30 percent evaluation is assigned for unrepaired or failed repair of complete ligament tear causing persistent instability and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. Additionally, effective February 7, 2021 Diagnostic Code 5257 also provides a rating for patellar instability and a 10 percent evaluation is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. A 20 percent evaluation for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: A brace, cane or walker. A 30 percent evaluation is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. Note (1): For patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note (2): A surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). 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, Diagnostic Code 5257). As a result, the Board has considered the updated Diagnostic Code, and herein applies the most favorable rating criteria from February 7, 2021 forward. The application of the updated Diagnostic Code will be discussed in greater detail below. Additionally, the Veteran is in receipt of a 10 percent rating for her right knee status post anterior cruciate ligament reconstruction with limited extension under Diagnostic Code 5101-5261. This additional rating is not currently before the Board. The Veteran contends that she has ongoing right knee pain which has worsened over time. The Veteran reports increased pain and difficulty with standing, sitting, climbing stairs and walking for prolonged periods of time. Additionally, at times the Veteran has reported that her knees feel like they want to buckle. Further, the Veteran reports regular use of a cane and walker. The Veteran was afforded a VA examination in February 2016. The examiner noted right knee anterior cruciate ligament tear and knee joint osteoarthritis. The Veteran reported that following her right knee repair in-service she worked in a warehouse until she quit her job in June due to bilateral knee pain. The Veteran reported flare ups in that her right knee has recently become more painful due to favoring this side since her left knee replacement recently. The Veteran reports she is limited to standing and sitting more than 15 to 20 minutes and, locking at times and difficulty bending and climbing stairs. The Veteran reports functional loss in that increases in lower extremity activity causes pain and swelling. Right knee range of motion testing noted flexion from 10 to 120 degrees and extension from 120 to 10 degrees, with pain. The examiner noted that the Veteran’s range of motion contributes to functional loss limiting her ability to walk, climb stairs and change positions. Pain on weight bearing with localized tenderness and pain on palpation was noted. Repetitive use testing did not result in any additional functional loss or loss range motion. No right side ankylosis was noted. Joint stability testing noted no history of recurrent subluxation or lateral instability. A history of recurrent effusion was noted with chronic effusion on the left side greater than on the right side, prior to her total knee replacement. Joint stability testing noted right knee anterior instability of 1+ (0 to 5 millimeters), normal posterior instability, normal medial instability and normal lateral instability. The Veteran had a medial meniscal tear along with a torn ACL in-service in July 1995 and underwent surgery in October 1995. The Veteran constantly uses a cane and walker when walking and standing. Imaging notes tricompartmental degenerative changes and post-surgical changes of a right ACL repair. Then the Veteran was afforded a VA examination in April 2017. The Veteran reported achy lateral and medial pain in the right knee when walking, climbing and prolonged standing. The Veteran also reported tightness in the knee with prolonged sitting and a worsening of symptoms. The examiner noted status post anterior cruciate ligament reconstruction with post-traumatic arthritis of the right knee. The Veteran reported functional loss in that her right knee pain makes it difficult to climb stairs. Right knee range of motion testing noted flexion from 0 to 140 degrees and extension from 140 to 0 degrees with tenderness or pain on palpation. There was evidence of pain on non-weight bearing. Repetitive use testing did not result in any additional loss of function or range of motion. Muscle strength testing was 5/5 with no muscle atrophy on the right side. No right side ankylosis was noted. There is no recurrent subluxation, lateral instability or recurrent effusion. Joint stability testing noted no joint instability with normal anterior instability, posterior instability, medial instability and lateral instability testing. The examiner noted that the Veteran’s current knee disability impacts her ability to perform occupational tasks as she has a limited tolerance for prolonged walking, standing, repetitive climbing/squatting and kneeling. VA, Department of Defense (DoD) and private treatment records have been associated with the claims file and note ongoing reports of right knee pain and regular medication management for pain. DoD treatment records consistently note that evaluation of the knees noted tenderness along the medial joint line but that her knees were consistently ligamentously stable and normal varus and valgus stress testing. Further, muscle strength testing was consistently 5/5. Based on the lay and medical evidence of record the Board finds that the Veteran’s right knee instability does not more nearly approximate the level of severity contemplated by an increased 20 percent rating. The Board notes the Veteran’s contentions that her right knee pain and instability warrants an increased rating and that her pain and symptomology has increased during the appeal. The Veteran is competent to testify to such lay observable symptomology. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, such lay evidence in this case even when accepted as accurate, does not establish a level of disability contemplated by a higher evaluation. The Board has considered the Veteran’s lay reports primarily of her right knee “giving out” with feelings of her knee buckling occasionally. Additionally, the Veteran reports regular use of a walker and cane. The Court of Appeals for Veterans Claims has held that Diagnostic Code 5257 does not require objective medical evidence of lateral instability for a rating to be assigned. See English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). Moreover, the Board acknowledges that the Veteran is competent to present evidence about what she experienced; for example, she is competent to discuss symptoms associated with feelings of her right knee giving out or buckling. The Veteran has not reported incidents of falling due to her right knee, and regularly reports difficulty standing, walking and climbing steps for prolonged periods due to ongoing pain. The Veteran does not contend or report moderate right knee recurrent subluxation or lateral instability. There is no lay or medical evidence of record indicating moderate recurrent subluxation or lateral instability of the right knee. VA examinations at worst noted right knee anterior instability of 1+ (0 to 5 millimeters). Treatment records consistently note that evaluation of the Veteran’s knee was consistently ligamentous stable with normal varus and valgus stress testing and muscle strength testing was 5/5. VA examinations note regular use of a cane and walker for ambulating at times. Further, as to the Veteran’s general contentions the Board has considered these in the current 10 percent rating. The Veteran’s statements are credible, and she is competent to report her ongoing symptomology. However, while the Veteran is competent to give evidence about what she has experienced and discuss symptoms associated with her right knee instability she has not reported specific instances of subluxation or instability, indicting moderate instability that would rise to the level warranting an increased 20 percent rating. In light of the consistently specific and normal stability findings, indicating at worst anterior instability of 1+, and a lack of indication in lay statements that the Veteran’s right knee instability was more than slight the preponderance of the evidence is against finding that the symptoms more nearly approximated moderate instability. An increased 20 percent rating is available under Diagnostic Code 5257, with moderate recurrent subluxation or lateral instability. In consideration of the Veteran’s statements and the medical evidence of record the Board finds that there is no competent and credible evidence to support a finding of an increased rating. The lay statements and medical evidence of record do not support a finding of moderate subluxation or instability. Rather the lay and medical evidence of record notes occasional instances of slight lateral instability. Further, the Board notes that the Veteran’s functional loss was considered, as the medical evidence shows that the Veteran has consistently complained of pain in her right knees. 38 C.F.R. §§ 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202 (1995). However, the limitation of motion documented in the medical records as resulting from pain is already contemplated in the disability ratings currently assigned. The Veteran has normal muscle strength and no evidence of muscle atrophy. Thus, despite the Veteran’s reported problems associated with the right knee, she clearly is able to use the knees in close to a normal manner, to include duration of use, and, in fact, does so. See 38 C.F.R. § 4.40 (noting that, “A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like.”). There is otherwise no evidence of significant impairment of motor skills, muscle function, or strength attributable to the Veteran’s right knee disability. Consequently, the Board finds that a higher disability rating based on functional loss is not warranted. The Board notes that during the course of the appeal effective February 7, 2021 the Diagnostic Code 5257 was amended. As a result, the Board has considered the updated Diagnostic Code, and herein applies the most favorable rating criteria from February 7, 2021 forward. 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, Diagnostic Code 5257). However, there is no evidence of a right knee sprain, incomplete ligament tear or a repaired complete ligament tear causing persistent instability, and the medical provider prescribing a brace or assistive device. The Board notes that while the Veteran has regularly reported use of an assistive device there is no evidence of a right knee sprain, incomplete ligament tear or a repaired complete ligament tear causing persistent instability. As such the amended Diagnostic Codes have been considered but are not applicable. Further, the amended Diagnostic Code also provides a rating for patellar instability however there is no evidence of a diagnosed condition involving the patellofemoral complex with recurrent instability. As such the Board finds that the Veteran is not entitled to an increased rating in excess of 10 percent for his right knee instability under Diagnostic Code 5257. During the appeal period, the evidence did not demonstrate moderate recurrent subluxation or lateral instability. As such a higher rating under Diagnostic Code 5257 is not warranted for right knee instability. All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The preponderance of the evidence is against finding an increased rating in excess of 10 percent for the Veteran’s service-connected right knee instability is warranted, during this period on appeal. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. REASONS FOR REMAND Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU) The Veteran contends that a TDIU is warranted due to her service connected disabilities. Specifically, the Veteran contends that she is unable to obtain gainful employment in light of her service connected knee disabilities. In light of the points raised by the JMPR and a Board review of the claims file the Board finds that a remand is warranted. The Veteran specifically contends that the Board failed to consider whether TDIU was warranted both on a schedular as well as an extraschedular basis. The Veteran reports that based on her education and work history, and that the entirety of her work experience has been in physically taxing jobs in warehouse settings. The Veteran reported she stopped working in June 2015 due to her ongoing knee pain which was increased with working. The Veteran has been in receipt of SSA disability since June 2015. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities; provided that, if there is only one such disability, this disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a); see also 38 C.F.R. §§ 3.340, 3.341 (2019). For purposes of one 60 percent disability or one 40 percent disability in combination, disabilities of a common etiology or from a single accident are considered to be one disability. 38 C.F.R. § 4.16 (a). During the period on appeal the minimum schedular criteria for a TDIU are not met as the Veteran is rated at 30 percent for left knee status post total arthroplasty, 10 percent for asthma, 10 percent for recurrent folliculitis, 10 percent for right knee limited extension, 10 percent for right knee instability and noncompensable for cervical dysplasia, noncompensable for a sebaceous cyst, noncompensable for fibrocystic breast disease and noncompensable for right and left knee scars, with a 60 percent combined rating from February 1, 2017 forward. 38 C.F.R. § 4.16 (a). The Board notes that during periods on the appeal from December 16, 2015 to January 31, 2017 the Veteran was in receipt of a 100 percent rating for recovery from left knee replacement. As the Veteran was in receipt of a temporary total rating, this period is not currently on appeal. However, even when the criteria under 38 C.F.R. § 4.16(a) are not met, entitlement to a TDIU on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reasons of service connected disabilities. 38 C.F.R. § 4.16 (b). The Board does not have the authority to assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). The rating board will refer to the Director of the Compensation Service for extraschedular consideration all cases of Veterans who are unemployable by reason of service connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16 (a). In this case, there is evidence that suggests shows the Veteran may be unable to secure or follow a substantially gainful occupation due to her service connected disabilities. When determining whether the Veteran is unable to secure or follow a substantially gainful occupation due to her service connected disabilities consideration may be given to the Veteran’s level of education, special training, and previous work experience, but it may not be given to her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. § 3.341, 4.16, 4.19. The Veteran contends that she is unable to secure or follow a substantially gainful occupation due to her service connected disabilities. The Veteran contends that she was no longer able to work in her warehouse position and has been in receipt of Social Security disability since June 2015 due to her service connected disabilities. The Veteran has not worked since June 2015, and previously worked in a warehouse setting during service and after service until June 2015. Further, the Veteran has provided evidence noting that she has difficulty standing and walking for prolonged periods and difficulty going up and down stairs. The Board finds that for the purposes only of consideration of referral for extraschedular consideration in the light most favorable to the Veteran there is at least some possibility that a finding of TDIU could be warranted. Namely the Veteran’s service connection right knee disabilities and left knee disabilities resulted in ongoing difficulty walking, standing and bending for prolonged periods with difficulty going up and down stairs and completing associated tasks in an employment setting. As the Board does not have the authority to assign an extraschedular TDIU in the first instance, referral to the Director Compensation and Pension Service for consideration of entitlement to TDIU is warranted. 38 C.F.R. § 4.16 (b). The matter is REMANDED for the following action: 1. The AOJ should undertake any additional development deemed warranted to ascertain the occupational impact of the Veteran’s service-connected disabilities. 2. Thereafter, unless the AOJ finds that a fully favorable decision can be rendered, refer the claim to the Director, Compensation and Pension Service, for consideration of whether TDIU on an extraschedular basis is warranted. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K.R. Kardian, 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.