Citation Nr: 21016734 Decision Date: 03/23/21 Archive Date: 03/23/21 DOCKET NO. 14-38 644A DATE: March 23, 2021 ORDER Entitlement to a rating greater than 30 percent for left knee degenerative arthritis, prior to February 3, 2015, is denied. Entitlement to a separate rating of 20 percent under Diagnostic Code 5258 for post-operative torn meniscus of the left knee, prior to February 3, 2015, is granted, subject to controlling regulations governing the payment of monetary awards. Entitlement to a 60 percent rating, but no higher, for left knee disability (to include limitation of motion, instability, and post-operative torn meniscus), from February 3, 2015, is granted, subject to controlling regulations governing the payment of monetary awards. FINDINGS OF FACT 1. Pertinent to his May 2013 claim for increase, the Veteran’s left knee degenerative arthritis is manifested by limitation of flexion to at most 90 degrees and limitation of extension to at most 30 degrees; with no additional significant or sustained additional loss of motion due to such factors as pain, weakness, lack of endurance, fatigability, or incoordination with repeated use over time or during flare ups; there is no knee ankylosis, tibia or fibula impairment, or genu recurvatum. 2. Pertinent to his May 2013 claim for increase, the Veteran’s left knee has been found to have crepitus, with frequent episodes of “locking” and pain of the knee. 3. Pertinent to his May 2013 claim for increase, the Veteran has experienced at most moderate left knee instability, from February 3, 2015. CONCLUSIONS OF LAW 1. The criteria for an increased rating greater than 30 percent for left knee degenerative arthritis, prior to February 3, 2015, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5256, 5259-5263. 2. The criteria for a separate rating of 20 percent for post-operative torn meniscus of the left knee, prior to February 3, 2015, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.40, 4.45, 4.59, 4.71(a), Diagnostic Code (DC) 5258. 3. The criteria for a 60 percent rating, but no higher, for left knee disability (to include limitation of motion, instability, and post-operative torn meniscus), from February 3, 2015, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.20, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5257, 5258, 5260, 5261. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1985 to June 1989. This appeal to the Board of Veterans’ Appeals (Board) arose from a September 2013 rating decision. In the September 2013 rating decision, the agency of original jurisdiction (AOJ), inter alia, reduced the Veteran’s rating for left knee degenerative arthritis from 30 percent to 10 percent disabling, effective December 6, 2012. In April 2014, the Veteran filed a notice of disagreement (NOD). In a September 2014 rating decision, the AOJ, inter alia, found clear and unmistakable error (CUE) in the September 2013 rating decision; and therefore, restored the 30 percent rating, effective October 11, 2011. At the same time, the AOJ proposed that the Veteran’s degenerative arthritis of the left knee status post arthroscopic surgery be reduced to 10 percent. However, the Veteran’s rating continued at 10 percent from December 6, 2012. A statement of the case (SOC) was issued in September 2014 and a supplemental statement of the case (SSOC) was issued in November 2014. The Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans’ Appeals) in November 2014. In March 2018, the Veteran testified during a Board video-conference hearing before a Veterans Law (VLJ) and a transcript of the hearing is of record. The VLJ who conducted the hearing is no longer employed at the Board and is unable to participate in any further adjudication. In December 2018, the Board restored the rating for the Veteran’s left knee degenerative arthritis to 30 percent, effective December 6, 2012, and remanded the claim for a rating higher than 30 percent for left knee degenerative arthritis. In May 2020, the AOJ awarded a separate 10 percent rating for left knee instability, from December 31, 2019. In a January 2021 letter, the Board notified the Veteran that the VLJ who conducted the December 2018 hearing was no longer employed at the Board and that the Veteran had a right to an additional hearing before another VLJ. The letter advised the Veteran to respond within 30 days. The Veteran did not respond. Therefore, it is assumed that the Veteran does not wish to have another hearing, and the Board may proceed to consider his appeal. In the December 2018 remand, the Board instructed the AOJ to ask the Veteran to identify any outstanding treatment records and to complete the appropriate authorization form to allow VA to obtain any outstanding private medical records, obtain all outstanding VA treatment records, and afford the Veteran a VA examination to assess the severity of his service-connected left knee disability. Pursuant to the Board’s remand, the Veteran was asked to identify any outstanding treatment records and to complete the appropriate authorization form to allow VA to obtain any outstanding private medical records by way of a September 2019 letter. Copies of the authorization forms (VA Forms 21-4142a and 21-4142) were included with the letter. Also, all outstanding VA treatment records were obtained and associated with the claims file and the Veteran was afforded a VA examination in December 2019 to assess the severity of his service-connected left knee disability. Therefore, the AOJ substantially complied with the Board’s pertinent remand instructions. See Dyment v. West, 13 Vet. App. 141, 146- 47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). As a final preliminary matter, the Board points out that the Veteran had also perfected an appeal with regard to the issue of entitlement to service connection for left ankle disability, and the Board remanded this issue in December 2018 for further development. The AOJ awarded service connection for left ankle lateral collateral ligament sprain in a May 2020 decision, and thereby resolved the appeal as to this issue. Increased Rating A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule). See generally 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.27. VA has a duty to acknowledge and to consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. See Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. The Board will consider whether separate ratings may be assigned for separate periods of time based on the facts found, a practice known as “staged ratings,” regardless of whether a case involves an initial rating. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). The standard of proof to be applied in decisions on claims for veterans’ benefits is set forth in 38 U.S.C. § 5107. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Entitlement to a rating greater than 30 percent for left knee degenerative arthritis This appeal stems from an increased rating claim received on May 1, 2013. During the claim period, the Veteran’s left knee disability has been rated 30 percent disabling. Although this rating is currently listed as being under Diagnostic Code 5260 for limitation of knee flexion, the 30 percent rating was actually assigned for limitation of knee extension under Diagnostic Code 5261. See a July 2012 rating decision. The Board concludes that the Veteran’s disability picture, to include the Veteran’s statements, does not more nearly approximate the degree required for a higher or additional separate rating on the basis of limitation of knee flexion or extension at any time during the claim period. Separate ratings can be assigned for knee disabilities when none of the symptomatology overlaps and the separate rating is based on additional disabling symptomatology; this includes separate ratings based on limitation of flexion (Diagnostic Code 5260), limitation of extension (Diagnostic Code 5261), lateral instability or recurrent subluxation (Diagnostic Code 5257), and meniscal conditions (Diagnostic Codes 5258, 5259). See VAOPGCPREC 23-97, 62 Fed. Reg. 63,603 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,703 (1998); VAOPGCPREC 9-2004; 69 Fed. Reg. 59,988 (2004); Lyles v. Shulkin, 29 Vet. App. 107 (2017). The normal range of motion of the knee is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. Limitation of flexion warrants 10, 20, and 30 percent ratings when limitation is to 45 degrees, 30 degrees, and 15 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Limitation of extension warrants 10, 20, 30, 40, and 50 percent ratings when limitation is to 10 degrees, 15 degrees, 20 degrees, 30 degrees, and 45 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5261. A 10 percent rating can also be assigned for the knee joint if there is painful motion without compensable limitation of motion. 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5003; see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that the applicability of 38 C.F.R. § 4.59 is not limited to arthritis claims). Ratings can also be assigned when the knee disability affects the meniscus, with a maximum 20 percent rating for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint and a maximum 10 percent rating for removal of semilunar cartilage (e.g., meniscectomy) and current residual symptoms. 38 C.F.R. § 4.71a, Diagnostic Codes 5258, 5259. Ratings can be assigned for impairment of the tibia or fibula, genu recurvatum, or ankylosis of the knee. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5262, 5263. Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). Ankylosis is also defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” Dorland’s Illustrated Medical Dictionary 93 (30th ed. 2003). In this case the evidence does not reflect and the Veteran does not allege that he has tibia or fibula impairment, genu recurvatum, or ankylosis of the knee. As such, those diagnostic codes are not for application. Ratings can be assigned for knee subluxation or instability under Diagnostic Code 5257. 38 C.F.R. § 4.71a. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a, including Diagnostic Code 5257, were amended effective February 7, 2021. 85 Fed. Reg. 76453 (Nov. 30, 2020). Prior to February 7, 2021, the Board will consider the old version of the diagnostic codes only; however, for the period beginning February 7, 2021 the Board will consider both the old and amended version (amended code) of the diagnostic code and rate based on whichever version is most favorable to the Veteran. Prior to the regulatory change, recurrent subluxation and lateral instability of the knee warranted a 10, 20, or 30 percent rating if slight, moderate, or severe, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2020). “Slight,” as relevant to a physical condition, is defined as “small of its kind or in amount.” Merriam-Webster’s Dictionary (merriam-webster.com/dictionary, accessed February 8, 2021). It is similar to “mild,” which is defined as “not severe” or temperate; with “Temperate” being defined as “keeping or held within limits” and “not extreme or excessive.” “Moderate” is defined as “tending toward the mean or average amount,” “not violent, severe, or intense,” and “limited in scope or effect.” Id. “Severe” is defined as “very painful or harmful” or “of a great degree.” Id. The term “severe” is used throughout the rating schedule, including in Diagnostic Code 5257, to indicate a very great degree of the specific listed disability, in order to differentiate between lesser (or sometimes greater) cases of that same disability within the specific diagnostic code. Within the context of Diagnostic Code 5257, which establishes a successive, tiered rating structure, it represents the highest or most extreme level. As of February 7, 2021, Diagnostic Code 5257 contains two sections for rating other impairment of the knee. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The first is for recurrent subluxation or instability. The second is for patellar instability. Regarding recurrent subluxation and instability, a compensable rating requires persistent instability. Id.; see also 38 C.F.R. § 4.31. “Persistent” is defined as “continuing or inclined to persist in a course” with “continuing” defined as “constant” and “persist” defined as “to continue to exist.” Merriam-Webster’s Dictionary (merriam-webster.com/dictionary, accessed February 8, 2021). Under these criteria, a 30 percent rating is assigned with unrepaired or failed repair of complete ligament tear which causes persistent instability and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. A 20 percent rating is assigned with either (a) Sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device for ambulation, or (b) Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device or bracing for ambulation. A 10 percent rating is assigned for 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 or bracing for ambulation. Lastly, regarding 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, which is the highest allowable rating 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, cane, or walker warrants a 20 percent rating. 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 warrants a 10 percent rating. The patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. 38 C.F.R. § 4.71a, Diagnostic Code 5257, Note (1). 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). Id., Note (2). Disabilities evaluated on the basis of limitation of motion require VA to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The United States Court of Appeals for Veterans Claims (Court) has instructed that in applying these regulations VA should obtain examinations in which the examiner determines whether the disability is manifested by weakened movement, excess fatigability, incoordination, pain, or flare-ups. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. The examiner should also determine the point, if any, at which such factors cause functional impairment. Moreover, 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. Correia v. McDonald, 28 Vet. App. 158 (2016); Mitchell v. Shinseki, 25 Vet. App. 32, 43-4 (2011); 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. In this case, knee range of motion testing was performed during VA examinations in May 2012 and September 2014, a February 3, 2015 examination at the Ellis Clinic, PC (Ellis), and during a December 2019 VA examination. During these examinations, left knee motion was limited to at most 90 degrees of flexion and 30 degrees of extension. The limitation of knee extension to 30 degrees was noted during the February 2015 examination, but knee extension was otherwise normal (0 degrees) during the other examinations. At the examinations, the Veteran was asked about pain, flare-ups, and functional limitations, and relevant testing was performed by the examiners, to include testing for pain and testing to reveal any additional functional limitations in certain circumstances, such as after repetitive use. During the May 2012 examination, the Veteran reported that he experienced flare ups of knee symptoms, during which his kneecap would hurt, there was pain behind the kneecap, the outer tendon burned, and the knee was hard to straighten without pain. These symptoms caused his left foot to roll outward, changed the way he walked, and caused pain in the foot and leg. At the September 2014 examination, the Veteran reported flare-ups consisting of being unable to straighten his leg. At the January 2020 examination, the Veteran reported flare-ups consisting of pain and fatigue that are precipitated by sitting, bending, kneeling, sleeping, and walking. Notably, the examiner in January 2020 estimated that the ranges of left knee motion during flare-ups would be at worst 90 degrees of flexion and 0 degrees of extension. Thus, the Board finds that the range of motion findings on examination depict the estimated range of motion during a flare-up. Treatment records do not show greater limitation of motion than the examination findings. The Veteran is competent to report the symptoms associated with his service-connected left knee disability and the extent of his impairment during flare ups of symptoms and following repetitive use, and the Board has no reason to challenge the credibility of his contentions. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Regardless of the competent and credible reports of flare ups, pain, and other functional impairments, and despite the fact that painful motion has been documented, the preponderance of the evidence nonetheless supports the conclusion that the Veteran’s knee symptoms have most closely approximated the criteria for a 30 percent rating on the basis of limitation of knee motion during the entire claim period. Specifically, the above evidence reflects that the flare ups and other functional impairments have not been so severe, frequent and/or prolonged to warrant the next higher percent ratings under DCs 5260 or 5260. As noted above, although knee extension was recorded as being limited to 30 degrees during the February 2015 examination at Ellis (which warrants a 40 percent rating under DC 5261), knee extension has otherwise been normal during all other examinations. Regardless, as explained below, the Board is awarding an overall 60 percent rating for the Veteran’s left knee disability during the entire period since February 3, 2015 (the date of the February 2015 examination at Ellis) and this is the maximum possible rating for knee disability. Overall, a preponderance of the evidence shows that even considering pain, flare ups, and other functional factors, the Veteran’s knee symptoms have not in general been shown to be so disabling to actually or effectively result in limitation of knee flexion more nearly approximating 45 degrees or limitation of knee extension more nearly approximating 30 degrees, which are the requirements for a compensable (10 percent rating) for limitation of knee flexion under DC 5260 and a 40 percent rating for limitation of knee extension under DC 5261, respectively. Accordingly, a higher rating on the basis of limitation of knee motion under DCs 5260 and 5261 is not warranted at any time during the claim period. As for knee instability, the February 2015 examination at Ellis revealed a positive McMurray’s test and moderate left knee laxity with stressing of the medial and lateral collateral ligaments. The Veteran walked with a slightly antalgic gait. During the January 2018 Board hearing, he reported that he experienced left knee instability/laxity. Also, the December 2019 VA examination report reveals that the Veteran reported that he experienced giving out of his knee which caused occasional falls. Examination revealed that there was 1+ medial instability. In light of the Veteran’s reports of knee instability/laxity, the evidence of moderate knee laxity during the February 2015 examination, and the evidence of 1+ medial instability during the December 2020 VA examination, the Board finds that a separate 20 percent rating is warranted for left knee instability under the old version of Diagnostic Code 5257. This version of the regulations is more favorable to the Veteran because a rating higher than 10 percent under the revised version of Diagnostic Code 5257 requires that a brace or assistive device be prescribed for the Veteran and there is no evidence that he has been prescribed any knee brace or assistive device due to his service-connected left knee disability. It is unclear exactly when the knee instability began during the claim period, but the earliest that it is factually ascertainable that the Veteran experienced knee instability during the claim period is February 3, 2015 (the date of his examination at Ellis). Therefore, a separate 20 percent rating for moderate knee instability is warranted, from February 3, 2015. The Board also notes that a separate rating is warranted for the Veteran’s left knee disability under DC 5258. The January 2020 VA examiner noted that the Veteran had a meniscus (semilunar cartilage) condition with symptoms of frequent episodes of joint “locking” and frequent episodes of joint pain. Further, a December 2019 VA treatment record documented that the Veteran’s left knee exhibited minimal amount of crepitus. A February 2013 private treatment record documents that the Veteran’s left knee had crepitus under his knee cap. The September 2014 VA examiner also noted that the Veteran had a meniscal condition and that he experienced a meniscal tear and frequent episodes of joint pain of the left knee. The September 2014 examiner noted that the Veteran had a meniscectomy of the left knee in 1987 and a debridement in 2014. Accordingly, the Board finds that the Veteran is entitled to a separate 20 percent rating under DC 5258 for cartilage, semilunar, dislocated, with frequent episodes of “locking,” pain, and effusion into the joint for left knee during the entire claim period. This is the maximum schedular rating under DC 5258. As the Veteran is now receiving a 20 percent rating under DC 5258 for symptoms relating to dislocated semilunar cartilage, to compensate him for this as well as removal of symptomatic semilunar cartilage under DC 5259 would constitute pyramiding. 38 C.F.R. § 4.14. Therefore, a separate rating under DC 5259 for cartilage injury is not warranted at any time during the claim period. As explained above, during the period from February 3, 2015, the Veteran is in receipt of a 30 percent rating for limitation of knee motion and the Board is awarding a separate 20 percent rating for knee instability and a separate 20 percent rating for dislocated semilunar cartilage. Therefore, during this period, the combined disability rating for the left lower extremity is 60 percent. See 38 C.F.R. § 4.25. The amputation rule allows for no more than a 60 percent rating for the Veteran’s entire left knee disability. See 38 C.F.R. §§ 4.68, 4.71a, DC 5164. Therefore, a maximum 60 percent rating for the Veteran’s left knee disability (to include limitation of motion, instability, and post-operative torn meniscus) is warranted, from February 3, 2015. As a final point, the Board notes that in conjunction with the claim for an increased rating for the service-connected left knee disability, no other related issues have been raised by the Veteran or his representative, and no other such issues have been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Brian J. Elwood Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Hammad Rasul, 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.