Citation Nr: 21020922 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 14-12 219A DATE: April 8, 2021 ORDER Entitlement to a separate disability rating of 10 percent for left knee instability from May 11, 2015 is granted. REMANDED Entitlement to a disability rating greater than 10 percent for left knee instability is remanded. Entitlement to a disability rating greater than 10 percent for status post repair left knee anterior cruciate ligament tear to include hamstring graft (left knee disability) is remanded. FINDING OF FACT From May 11, 2015, the Veteran's left knee disability approximated slight subluxation or instability. CONCLUSION OF LAW The criteria for a separate rating of 10 percent for left knee instability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, DC 5257. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 2007 to December 2011. In a November 2019 decision, the Board denied the increased rating claim for a left knee disability. The Veteran subsequently appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2020 Joint Motion for Partial Remand (JMPR), the parties agreed that the Board erred when it failed to provide an adequate statement of reasons or bases regarding whether the Appellant was entitled to a separate, or staged, rating for left knee instability. Additionally, the Court noted that the Board failed to address all relevant evidence of the severity of Appellant’s left knee limitation of motion. Accordingly, the matter has been remanded to the Board for actions consistent with the Court’s JMPR. 1. Entitlement to a separate disability rating of 10 percent for left knee instability from May 11, 2015 Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity, and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Pyramiding, that is the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a Veteran's service-connected disability. 38 C.F.R. § 4.14. However, it is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; the critical element in permitting the assignment of several evaluations 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. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. Weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse are relevant factors regarding joint disability. 38 C.F.R. § 4.45. The Veteran asserts that he is entitled to a separate disability rating for his left knee instability under Diagnostic Code (DC) 5257. At the outset, the Board notes that, effective February 7, 2021, a new General Rating Formula for knee disabilities applies to DC 5257. See 85 Fed. Reg. 76453 (Nov. 30, 2020). These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after February 7, 2021. Claims pending prior to the effective date will be considered under both old and new rating criteria, and the more veteran-favorable criteria will be applied. The Board may not apply a current regulation prior to its effective date unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective date of the new regulation if the prior version was in effect during the pendency of the appeal. The Board has reviewed the evidence of record and determined that a separate rating of 10 percent, but no greater, for the left knee is warranted under the prior version of DC 5257. However, further development is required to determine whether he meets the criteria for a higher rating from February 7, 2021, under the revised version of DC 5257. Accordingly, the issue of whether a rating greater than 10 percent for left knee instability is warranted, is addressed in the remand, below. Prior to February 7, 2021, under DC 5257 a 10 percent evaluation is warranted when there is slight recurrent subluxation or lateral instability. A 20 percent evaluation is warranted when there is moderate recurrent subluxation or lateral instability. A 30 percent evaluation is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a. DC 5257 is based upon instability and subluxation, not the limitation of motion. As a result, the criteria outlined in DeLuca do not apply. DeLuca, 8 Vet. App. at 206. Under Diagnostic Code 5260, limitation of flexion of the leg, a 10 percent evaluation is warranted where flexion is limited to 45 degrees; a 20 percent evaluation is warranted where flexion is limited to 30 degrees; and a 30 percent evaluation is warranted where flexion is limited to 15 degrees. 38 C.F.R. § 4.71a. Under Diagnostic Code 5261, limitation of extension of the leg, a 10 percent rating is warranted where extension is limited to 10 degrees; a 20 percent rating is warranted where extension is limited to 15 degrees; a 30 percent rating is warranted where extension is limited to 20 degrees; a 40 percent rating is warranted where extension is limited to 30 degrees; and a 50 percent rating is warranted where extension is limited to 45 degrees. 38 C.F.R. § 4.71a (2019). VA's Office of General Counsel has provided guidance concerning increased rating claims for knee disorders. 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. at 262. VA's General Counsel interpreted that compensating a claimant for separate functional impairment under Diagnostic Code 5257 and 5003 does not constitute pyramiding. VAOPGCPREC 23-97. 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. Given the findings of osteoarthritis, the General Counsel stated that the availability of a separate evaluation under Diagnostic Code 5003 considering 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 veteran's painful motion may add to the actual limitation of motion to warrant a rating under Diagnostic Codes 5260 or 5261. The Veteran was afforded a VA examination in September 2011. The left knee x-ray showed post ACL- repair surgery. The examiner noted tenderness in the left knee but no signs of edema, instability, abnormal movement, effusion, weakness, redness, heat, deformity, guarding of movement, malalignment, and drainage. The examiner further noted that there was no subluxation, locking pain, genu recurvatum, crepitus or ankylosis. See September 2011 C&P Examination. During a physical examination on May 11, 2015, the examiner noted a diagnosis of left knee instability and arthritis. Management plan included conservation treatment, wearing brace on left knee and use of non-steroidal anti-inflammatory. See CAPRI Record. A May 2018 VA Knee and Lower Leg Conditions examination indicated that there was no joint instability. See May 2018 C&P Examination. At the September 2017 Board Hearing, the Veteran testified that his left knee is unstable and that he experiences grinding and locking of the left knee, often leading to falls. See September 2017 Hearing Transcript. The Board notes that the Veteran is in receipt a 10 percent rating for status post repair left knee anterior cruciate ligament tear to include hamstring graft (left knee disability) effective from December 16, 2011. However, the Board finds that a separate 10 percent rating for the left knee instability is warranted for the appeal period. The Board notes that the Veteran has reported symptoms of his left knee feeling “unstable” at Board hearing. Additionally, the May 2015 VA physical examination revealed a diagnosis of left knee instability. Furthermore, the Veteran is competent to describe symptoms associated with knee instability, such as his left knee giving way, locking or concerns about knee stability with activity. See Jandreau, 492 F.3d at 1377. While the September 2011 and May 2018 VA examinations did not note objective evidence of instability, the Board resolves reasonable doubt in favor of the Veteran to find that “mild” instability of the left knee has been present since the May 11, 2015 medical report. The record does not also reflect dislocated semilunar cartilage or removal of semilunar cartilage of the left knee to warrant a separate rating under Diagnostic Code 5258 or a higher rating under Diagnostic Code 5259. See 38 C.F.R. § 4.71a. For the reasons discussed above, the Board finds that a separate 10 percent rating, based upon left knee instability is warranted. REASONS FOR REMAND 1. Entitlement to a disability rating greater than 10 percent for left knee instability is remanded. 2. Entitlement to a disability rating greater than 10 percent for status post repair left knee anterior cruciate ligament tear to include hamstring graft (left knee disability) is remanded. While the Board sincerely regrets the delay, a remand is required before the Board can decide on the merits of the remaining outstanding increased rating claims on appeal. The Veteran asserts that his status post repair left knee anterior cruciate ligament tear to include hamstring graft (left knee disability) warrants a rating greater than 10 percent. As noted above, the regulations pertaining to musculoskeletal disabilities were amended, effective February 7, 2021. See 85 Fed. Reg. 76453 (Nov. 30, 2020). The Secretary of VA has determined that “claims pending prior to [February 7, 2021] will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied.” As the Veteran's claims were pending prior to February 21, 2021, a remand is necessary for an examination of his left knee disabilities using the principles and rating criteria from the amendments. Further, having awarded a separate 10 percent rating for instability of the left knee, a new examination should be conducted to ascertain whether a rating greater than 10 percent under the revised version of DC 5257 is warranted. The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to assess the current severity of his service-connected left knee disabilities. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran's disabilities under the new rating criteria. Specifically, the examiner must test the Veteran's active motion, passive motion, ranges of motion of the opposing joint, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. 2. A complete rationale should be provided by the examiner for any expressed opinion DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. M. Rogers, 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.