Citation Nr: 21022506 Decision Date: 04/16/21 Archive Date: 04/16/21 DOCKET NO. 15-05 820 DATE: April 16, 2021 ORDER A 30 percent rating for left knee instability from October 28, 2013, but not earlier, is granted. A rating higher than 30 percent for left knee instability is denied. A separate 10 percent rating for symptomatic removal of semilunar cartilage (meniscus) is granted. REMANDED Entitlement to a rating higher than 10 percent for muscle atrophy of the left lower extremity prior to October 23, 2019, and a rating higher than 30 percent thereafter, is remanded. FINDINGS OF FACT 1. From October 28, 2013, but not earlier, the Veteran’s left knee instability has been manifested by severe instability. 2. The Veteran’s left knee disability is rated as 30 percent disabling, which is the maximum schedular rating permitted for instability of the knee. 3. The evidence shows that the Veteran has residual symptoms from his left knee meniscectomy. CONCLUSIONS OF LAW 1. From October 28, 2013, but not earlier, the criteria for a 30 percent rating for left knee instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. 2. There is no legal basis for the assignment of a schedular rating higher than 30 percent for left knee instability. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. 3. The criteria for assignment of a separate rating of 10 percent for symptomatic removal of semilunar cartilage (meniscus) have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5259. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 2003 to January 2009. These matters come before the Board of Veterans’ Appeals (Board) on appeal from March 2012 and May 2012 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in November 2018. A hearing transcript is associated with the record. In March 2019, the Board remanded the appeal for additional evidentiary development. During remand status, the RO granted service connection for degenerative disc disease, thoracolumbar spine. As this represents a full grant of the benefit sought on appeal, there remains no controversy for Board consideration. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (noting that a grant of service connection extinguishes appeals before the Board). The Board observes that, in January 2021, the Veteran’s representative indicated that the Board should consider the applicability of a higher rating based on limitation of motion. See Appellate Brief (January 2021). To the extent that he seeks to establish an increased rating for service-connected arthritis with painful limitation of motion (DC 5003-5260), which was previously assigned a 10 percent rating in an unappealed April 2016 rating decision, he is advised that all claims for benefits must be submitted on required forms. Effective on March 24, 2015, VA amended its rules as to what constitutes a claim for benefits; such now requires that claims be made on specific claim form prescribed by the Secretary and available online or at the local Regional Office. This provision effectively removed informal claims from VA’s processes. Increased Rating for Left Knee Instability Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 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 their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If two ratings are potentially applicable, 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. A disability may require re-evaluation in accordance with changes in a veteran’s condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. A February 2009 rating decision granted service connection for left knee instability, and assigned a 10 percent rating under 38 C.F.R. §4.71a, Diagnostic Code 5257. See Rating Decision (February 2009). On June 14, 2010, VA received a claim for increased rating for left knee instability. See VA Form 21-0820 (June 2010). A March 2012 rating decision denied entitlement to a rating in excess of 10 percent for left knee instability. This appeal arises from the Veteran’s disagreement with that decision. 1. Entitlement to a rating higher than 10 percent for left knee instability prior to October 23, 2019. The Veteran’s representative contends that a higher rating is warranted prior to the October 2019 VA examination, and that a separate rating is warranted for meniscal disability under Diagnostic Code (DC) 5258 or 5259. See Appellate Brief (January 2021). The issue in this appeal is whether the Veteran’s associated symptoms caused the level of impairment required for a rating higher than 10 percent prior to October 23, 2019. The Board concludes that the preponderance of the evidence supports finding that the criteria for a 30 percent rating for left knee instability are met as of October 28, 2013, but not earlier. The Veteran’s left knee instability is rated under 38 C.F.R. § 4.71a, DC 5257, for instability of the knee. VA amended the criteria for rating Musculoskeletal System disabilities effective from February 7, 2021. 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 whatever criteria is more favorable to the veteran 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 dates of the new regulation if the prior version was in effect during the pendency of the appeal. Prior to February 7, 2021, under DC 5257, a 10 percent rating is warranted for slight recurrent subluxation or lateral instability. A 20 percent rating is warranted for moderate recurrent subluxation or lateral instability. A 30 percent rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, DC 5257. According to MERRIAM WEBSTER’S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), “slight” means small in amount. “Moderate” means limited in scope or effect. “Severe” means very painful or harmful or of a great degree. Objective medical evidence is not required to establish lateral knee instability under DC 5257, so objective medical evidence cannot be categorically found more probative than lay evidence with respect to this DC. See English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). From February 7, 2021, under DC 5257 for recurrent subluxation or instability, a 10 percent rating is warranted 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 (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 20 percent rating is warranted for either: 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; 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 30 percent rating is warranted 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. 38 C.F.R. § 4.71a, DC 5257. A report of VA general examination dated in May 2011 shows symptoms of instability, stiffness, incoordination, and decreased joint speed but not giving away, dislocation or subluxation, or locking. The examiner noted that the Veteran exhibited an antalgic gait which impacted weightbearing, and that the Veteran wore a knee brace at all times. VA treatment records from April 2011 show that the Veteran exhibited an antalgic gait, guarding on movement, and had a positive result for anterior drawer test; the Veteran reported multiple episodes of instability, and that his knee gave away while walking. In May 2011, a VA clinician noted that the Veteran’s knee was stable to varus stress, but showed slight laxity to valgus stress. In June 2011, a VA clinician noted a positive result on pivot shift testing but no rotary instability. A report of VA knee examination dated in April 2012 shows that Veteran was wearing a brace but still exhibited a limp and difficulty walking. Instability testing showed slight anterior, posterior, and lateral instability, but no patellar subluxation or dislocation. The examiner noted that the Veteran’s disability caused functional loss due to less than normal movement and instability. In October 2013, a VA clinician provide an impression of multidirectional instability but did not indicate the severity of such instability. A VA treatment record on October 28, 2013 shows that the Veteran reported multidirectional instability, and that the attending clinician noted positive results on anterior drawer, pivot shift, and Lachman’s tests. Lachman’s tests results were reported as “grade 3” for severe instability. In September 2015, the Veteran reported that his knee is still unstable and giving away; the attending VA clinician noted slight varus and valgus laxity, positive anterior and posterior drawer testing, and severe instability on Lachman’s testing. In March 2016, the Veteran reported buckling approximately once per week, but that he is still able to golf. A report of VA knee examination dated in April 2016 shows that the Veteran reported occasionally wearing a brace; the examiner noted that the Veteran exhibited slight anterior instability, slight recurrent subluxation, but had no history of lateral instability. An October 2019 VA knee examination reflects that the Veteran reported instability with clicking and grinding, and that his knee buckled two weeks ago at the beach. The examiner noted symptoms of weakened movement, instability of station, disturbance of locomotion, and interference with sitting and standing. The examiner also noted slight medial instability, severe anterior and lateral instability, but no patellar subluxation or dislocation. The examiner further noted that the Veteran used no assistive devices. Based on the above, the Board finds that the criteria for rating Musculoskeletal System disabilities prior to February 7, 2021 are more favorable to the Veteran and will be applied. The Board also finds that the preponderance of the evidence is against the assignment of a 30 percent rating prior to October 28, 2013. VA treatment records and examinations prior to October 28, 2013 indicate only slight instability on pivot shift and varus stress testing, but no rotary or valgus stress instability. Even when anterior, posterior, and lateral instability was shown, it was indicated as only slight. Additionally, the Veteran’s reports that his knee gave away were infrequent prior to October 28, 2013. The Board further finds, resolving all doubt in favor of the Veteran, that the preponderance of the evidence supports the assignment of 30 percent rating from October 28, 2013. Examination on that date showed positive anterior drawer and pivot shift testing, but also a positive Lachman’s test, which was noted to be severe. Subsequent testing also showed both varus and valgus laxity, and subsequent lay reports indicate that knee buckling was more frequent. Although the April 2016 VA examiner indicated that the Veteran exhibited only slight instability and no lateral instability, the Board finds that examiner’s findings to be of low probative value as they are inconsistent with prior VA clinicians’ findings of lateral instability in April 2012 and multidirectional instability in October 2013, affording the Veteran the benefit of the more favorable findings given that the April 2016 VA examiner provided no explanation for finding that the Veteran had no history of lateral instability (see C&P Exam at 4), despite existing evidence to the contrary. See generally, Ardison v. Brown, 6 Vet. App. 405, 407 (1994). The record shows severe instability as of October 28, 2013, and that level of disability was confirmed during the October 2019 VA examination as it showed severe anterior and lateral instability. However, it is not factually ascertainable that the Veteran’s disability was manifest by the criteria required for a maximum 30 percent rating, by showing severe instability, until his VA treatment on October 28, 2013. The Board has carefully considered the Veteran’s reports about instability and his knee giving away. English, 30 Vet. App. 347, 352-53. However, overall, the lay and medical evidence do not suggest the presence of symptoms more nearly approximating severe instability prior to October 28, 2013 as discussed above. In addition to the objective medical findings which indicate only slight instability prior to October 28, 2013, the Veteran’s competent and credibly lay reports indicate that his knee giving away was only sporadic prior to October 28, 2013. The Board has also considered whether a 100 percent convalescent rating is warranted for knee surgeries in December 2010, July 2011, and December 2013. However, the evidence shows that those surgeries did not necessitate at least one month of convalescence as required under 38 C.F.R. § 4.130. Whether a disability meets the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the complaints coupled with the medical evidence. Here, although the Veteran believes that he meets the criteria for a higher disability rating, his complaints and the medical findings do not meet the schedular requirements for the higher rating prior to October 28, 2013, as explained and discussed above. Both the lay and the medical evidence are probative here. However, it does not more nearly reflect the criteria for a higher rating under the assigned DC prior to October 28, 2013. Entitlement to a separate evaluation under any other potentially relevant code is discussed below. Accordingly, a maximum 30 percent rating from October 28, 2013, but not earlier, is granted. In denying a 30 percent rating prior to October 28, 2013, there is no doubt to resolve. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 2. Entitlement to a rating higher than 30 percent, to include on an extraschedular basis, for left knee instability. The Veteran’s representative requests an extraschedular rating, but provides no indication of the exceptional and unusual symptoms experienced by the Veteran. See Appellate Brief (January 2021). The issue in this appeal is whether the totality of the factors of the Veteran’s knee instability are so exceptional or unusual that it renders application of the regular schedular ratings impractical, and if so, whether such exceptional symptomatology causes marked interference with employment, frequent periods of hospitalization, or other related factors so as to warrant referral for extraschedular consideration. The Board concludes that the preponderance of the evidence is against a rating higher than 30 percent for left knee instability. As there is no legal basis upon which to award a schedular rating higher than 30 percent, the Veteran’s appeal must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994). The criteria for rating the Veteran’s left knee instability is provided above. Consideration of an extraschedular rating requires a three-step inquiry. The first question is whether the schedular rating criteria adequately contemplate the veteran’s disability picture. If the schedular evaluation does not contemplate the level of disability and symptomatology shown and is found inadequate, then the second inquiry is whether the exceptional disability picture exhibits other related factors, such as marked interference with employment or frequent periods of hospitalization. See Thun v. Peake, 22 Vet. App. 111 (2008). The first Thun element compares a claimant’s symptoms to the rating criteria, while the second addresses the resulting effects of those symptoms. Specifically, “Thun’s first step centers on whether the veteran’s disability picture as a whole—that is, the full symptomatology—presents an impairment that is so exceptional that the rating schedule is not capable of assessing it in the first instance. Long v. Wilkie, No. 16-1537, 2020 U.S. App. Vet. Claims LEXIS 2371 (Vet. App. Dec. 30, 2020). Thus, the first and second Thun elements, although interrelated, involve separate and distinct analyses. Yancy v. McDonald, 27 Vet. App. 484, 495 (2016). If the veteran’s disability picture meets the second inquiry, then the third step is to refer the case to the Director of Compensation Services to determine whether an extraschedular rating is warranted. See Thun, 22 Vet. App. 111. In regard to the first element, comparison of the Veteran’s symptoms and associated functional impairment does not show that the rating criteria are inadequate to describe his disability picture. The Veteran’s left knee instability is rated under DC 5257. The record shows that he has complaints and findings of instability, incoordination, decreased joint speed, antalgic gait, guarding, and giving away. The Board finds that the rating criteria reasonably contemplate these symptoms. See Thun, 22 Vet. App. at 115. Although the symptoms are not specifically listed in the rating criteria, they are the type of functional effects that derive from instability of the joint. See Doucette v. Shulkin, 28 Vet. App. 366, 370-71 (2017) (in the context of extraschedular consideration, hearing loss rating criteria contemplate the functional effects of difficulty hearing and understanding speech). Additionally, the Veteran’s unlisted symptoms were contemplated in determining the totality of the factors of the Veteran’s knee instability and used to assign the 30 percent rating from October 28, 2013. The Board observes that the Veteran is separately rated for left knee arthritis with painful motion, which effects use of the left knee joint. This matter is not presently on appeal and, hence, any marked interference caused by this disability, is not for consideration with respect to considering whether referral of the left knee instability for an extraschedular rating is warranted. The Court recently held that the revised 38 C.F.R. § 3.321(b), which eliminates the possibility of extraschedular consideration based on the collective impact of multiple service-connected disabilities, can be applied to cases that were pending before VA on January 8, 2018, as doing so does not have an impermissible retroactive effect. See Thurlow v. Wilkie, No. 16-3633, 2018 U.S. App. Vet. LEXIS 1225 (September 12, 2018). Here, the Veteran’s left knee instability manifestations are reasonably contemplated by DC 5257. The threshold issue under Thun is thus not met, and further consideration of an extraschedular rating is not warranted. Consequently, referral for consideration of entitlement to an extraschedular rating for left knee instability is not warranted. There is no doubt to resolve. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.321, 4.3. 3. Entitlement to a separate rating for meniscal disability. The Veteran’s representative contends that a separate rating for meniscal disability under DC 5258 or 5259 is warranted. See Appellate Brief (January 2021). The Board concludes that the evidence supports a separate rating of 10 percent for symptomatic removal of semilunar cartilage (meniscus). Separate disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). Regarding the Veteran’s left knee disability, he is service-connected for instability under DC 5257, muscle atrophy under DC 5311, arthritis with painful noncompensable limitation of motion under DC 5003-5260, and scars under DC 7802. For symptomatic disability following removal of semilunar cartilage (meniscus) a 10 percent rating is assigned. 38 C.F.R. § 4.71a, Diagnostic Code 5259. For dislocated semilunar cartilage (meniscus) with frequent episodes of locking pain and effusion into the joint a 20 percent rating is warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5258. The record shows that the history of the Veteran’s left knee disability includes a total meniscectomy (removal of semilunar cartilage) and meniscal transplant with subsequent revisions. The record also shows symptomatic residuals of his meniscectomy. A report of VA examination in May 2011 VA examination includes findings of crepitus, tenderness, clicks or snaps, grinding, and a positive McMurray test. The October 2019 VA examiner noted symptoms of clicking, grinding, and crepitus. The Board has also considered the other DCs pertaining to the knee and leg. However, DC 5261 (extension), 5256 (ankylosis of the knee), 5258 (dislocated semilunar cartilage), 5262 (impairment of the tibia and fibula), and 5263 (genu recurvatum) are all inapplicable in this case. The evidence simply does not reflect findings or a history consistent with these conditions. Accordingly, a maximum 10 percent rating for symptomatic removal of semilunar cartilage (meniscus) is granted. In denying a higher rating under any other DC, there is no doubt to resolve. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3; Gilbert, supra. REASONS FOR REMAND Regarding the issue of entitlement to an increased rating for atrophy of the left lower extremity remanded in March 2019, there has not been substantial compliance with the Board’s previous remand directives and another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). Although an examination was provided in October 2019, for the reasons provided below, it is inadequate. Where VA provides an examination or obtains an opinion, it must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Entitlement to a rating higher than 10 percent for atrophy of the left lower extremity prior to October 23, 2019, and higher than 30 percent thereafter. The Veteran’s representative contends that separate ratings should be provided for “muscle atrophy of the anatomical region of The Foot and Leg (DC 5311 – gastrocnemius) and for the anatomical region for The Pelvic Girdle and Thigh (DC 5313 and/or 5314 – quadriceps and hamstring).” See Appellate Brief (January 2021). The Veteran’s representative further contends that the Veteran’s severe symptoms, currently rated under DC 5311, “should be carried over to DC 5313/5314 which carries a higher maximum rating of 40%.” Id. 38 C.F.R. § 4.73 sets forth the rating criteria for muscle injuries and assigns DCs based on the anatomical region of the muscles disabled. Pertinent to this claim are Muscle Group X, which contemplates movements of the forefoot and toes; Muscle Group XI, which contemplates propulsion and plantar flexion of foot, stabilization of arch, flexion of toes, and flexion of knee; Muscle Group XIII, which contemplates extension of hip and flexion of knee, outward and inward rotation of flexed knee, acting with rectus femoris and sartorius synchronizing simultaneous flexion of hip and knee and extension of hip and knee by belt-over-pulley action at knee joint; Muscle Group XIV, which contemplates extension of knee, simultaneous flexion of hip and flexion of knee, tension of fascia lata and iliotibial (Maissiat’s) band, and acting with hamstrings in synchronizing hip and knee, and; Muscle Group XV, which contemplates adduction of hip, flexion of hip, and flexion of knee. 38 C.F.R. § 4.73, Diagnostic Codes 5310, 5311, 5313, 5314, 5315. The Board finds that the October 2019 VA medical opinion is inadequate due to internal inconsistencies. The examination report shows that atrophy of the left quadricep (Muscle Group XIV), hamstring (Muscle Group XIII), and gastrocnemius (Muscle Group XI) were diagnosed. The examiner noted that the Veteran’s left thigh (Muscle Groups XIII and XIV) and left calf (Muscle Group XI) were atrophied by thirteen centimeters and nine centimeters, respectively, compared to his right thigh and calf. Additionally, muscle strength testing performed by the examiner showed weakness in left knee flexion (Muscle Groups XI, XIII, XIV, and XV) and left knee extension (Muscle Groups XI, XIII, and XIV). However, the examiner opined that only the muscles of the Veteran’s foot, ankle, and calf (Muscle Groups X and XI) were injured—which is inconsistent with the provided diagnoses of muscle atrophy to Muscle Groups XIII and XIV, and the findings of muscle weakness in Muscle Groups XIII, XIV, and XV, which suggests pelvic girdle and thigh impairment. While there may be nuances understandable to a medical professional, no explanation was provided to explain what appears to be internal inconsistencies. As no reasoning was provided to support the findings, and resulting inconsistencies, the opinion is inadequate. Nieves-Rodriguez, supra. Therefore, remand is required to ensure that VA has met its duty to assist. 38 C.F.R. § 3.159(c)(4); Barr, supra. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from September 2019 to the Present. 2. Schedule the Veteran for a VA examination by an appropriate clinician to determine the current severity of his service-connected left lower extremity muscle atrophy. The clinician should review this Remand to avoid the inadequacies noted herein. The clinician should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. Specifically. the clinician should identify the muscle groups effected by the Veteran’s service-connected disabilities of the left lower extremity and in so doing clarifying the October 2019 VA muscle examination, which shows (1) Diagnosis #1 as “atrophy, quadriceps and hamstring, left lower extremity,” and Diagnosis #2 as “atrophy, gastrocnemius left lower extremity.” (2) identified as Foot/Leg muscle groups effects as: Group X (muscle of the foot) and Group XI (muscles of the foot, ankle and calf), and (3) did not identify any muscle group effected of the Pelvic Girdle and Thigh, which involves the thigh, quadricep and hamstring (e.g. Group XIII (Posterior thigh/hamstring)), which is at odds with the Diagnosis #1 and #2. 3. Consider the applicability of separate ratings under the appropriate Diagnostic Code in the first instance for the effected muscle groups shown on examination. 4. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Thaddaeus J. Cox, 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.