Citation Nr: 21022842 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 14-04 276 DATE: April 19, 2021 ORDER From November 1, 2016 to October 16, 2017, a rating of 20 percent, but no higher, for right knee instability is granted. From November 1, 2016 to October 16, 2017, a maximum schedular rating of 10 percent for symptomatic removal of right knee semilunar cartilage is granted. From November 1, 2016 to October 16, 2017, a rating in excess of 30 percent for a right knee disability other than instability and symptomatic removal of right knee semilunar cartilage is denied. REMANDED From December 1, 2018, a rating in excess of 30 percent for a right knee disability status post replacement is remanded. FINDINGS OF FACT 1. From November 1, 2016 to October 16, 2017, the right knee disability was manifested by symptoms that more closely approximated moderate instability, but not severe instability. 2. From November 1, 2016 to October 16, 2017, the Veteran’s right knee disability was manifested by symptomatic removal of semilunar cartilage. 3. From November 1, 2016 to October 16, 2017, the right knee disability was not manifested by extension limited to 30 degrees or greater. CONCLUSIONS OF LAW 1. From November 1, 2016 to October 16, 2017, the criteria for a rating of 20 percent, but no higher, for right knee instability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5257. 2. From November 1, 2016 to October 16, 2017, the criteria for a maximum schedular 10 percent rating for symptomatic removal of right knee semilunar cartilage are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, DC 5259. 3. From November 1, 2016 to October 16, 2017, the criteria for a rating in excess of 30 percent for right knee limitation of motion are denied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, DC 5010-5261. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1991 to March 1995. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2011 rating decision of an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). In February 2017, the Veteran and his wife testified at a videoconference hearing before the undersigned. In February 2018, the Board dismissed certain issues on appeal and remanded the remaining issues for additional development. Moreover, the Board explained that the Veteran had separately appealed the issue of entitlement to a total disability rating due to individual unemployability (TDIU) and that it was permissive for the Board to separately process this issue. The Veteran has separately perfected an appeal as to entitlement to a TDIU, along with additional service-connection issues, and requested a Board hearing. Thus, this issue is not before the Board. In May 2020, the Board granted an increased rating for a right knee disability prior to August 10, 2016. The Board also remanded the issues of entitlement to service connection for sleep apnea and entitlement to an increased rating for a right knee disability from November 1, 2016 to October 16, 2017, and prospectively from December 1, 2018. The AOJ subsequently granted service connection for sleep apnea and that issue is no longer before the Board. Separately, the Veteran appealed an April 2017 rating decision that granted a temporary total rating for a right knee disability from August 10, 2016 to November 1, 2016. In April 2020, the Board remanded that matter for additional development. In December 2020, the Board denied entitlement to a temporary total rating for convalescence beyond October 31, 2016, to include whether a TDIU is warranted for this period. The Board has split the claim seeking an increased rating for a right knee disability into two parts so as to give a favorable decision on part of the claim without any further delay. See Locklear v. Shinseki, 24 Vet. App. 311, 315 (2011). Substantial Compliance As discussed below, remand is necessary with respect to the issue of entitlement to a rating in excess of 30 percent subsequent to the Veteran’s right knee replacement. However, the Board did not direct any additional development with respect to the issues decided below. Instead, action was deferred pending receipt of documents requested in a separate appeal stream. See May 2020 Board Decision and Remand at 9-10. However, the Board determined that no additional records were received. See December 2020 Board Decision at 6. Moreover, the Veteran did not identify any new private treatment records. 1. From November 1, 2016 to October 16, 2017, a rating of 20 percent, but no higher, for right knee instability is granted. The Veteran asserts that his right knee disability is also manifested by instability. See, e.g., February 2017 Hearing Transcript. The Board agrees. The rating criteria were amended during the pendency of the appeal effective February 7, 2021. However, the Board is only addressing the period through October 16, 2017, and thus these amendments are not applicable. Recurrent subluxation or instability of the knee is rated under DC 5257. A 10 percent rating is warranted for slight instability. A 20 percent rating is warranted for moderate instability. A maximum schedular 30 percent rating is warranted for severe instability. Here a 20 percent rating is warranted under DC 5257 from November 1, 2016 to October 16, 2017. The March 2017 private disability benefits questionnaire (DBQ) shows 2+ right knee anterior instability (Lachman Test) with regular use of a brace. See March 2017 DBQ. The Board previously found that 2+ instability is consistent with moderate instability. See May 2020 Board Decision and Remand. Thus, as 2+ instability is also shown here, a 20 percent rating for moderate instability is appropriate. A maximum schedular 30 percent rating for instability is not warranted between November 1, 2016 and October 16, 2017. Severe instability is consistent with 3+ instability on the Lachman test, as the Board noted in the May 2020 decision and remand. As the Veteran was shown to have 2+ instability during this period, a maximum schedular 30 percent rating is denied. 2. From November 1, 2016 to October 16, 2017, a maximum schedular rating of 10 percent for symptomatic removal of right knee semilunar cartilage is granted. The Veteran underwent removal of the meniscus (semilunar cartilage) on August 10, 2016. See March 2017 DBQ. Under DC 5259, a maximum schedular 10 percent rating is warranted for symptomatic removal of the meniscus. Here, the examiner noted postoperative residuals, including swelling. See March 2017 DBQ. This postoperative symptom warrants a 10 percent rating under DC 5259. The Board emphasizes that this award will not result in pyramiding of disabilities, as instability, swelling, and limitation of motion are different aspects of a knee disability. A 20 percent rating under DC 5258 is not warranted, as DC 5258 requires dislocated semilunar cartilage, which is not shown here. 3. From November 1, 2016 to October 16, 2017, a rating in excess of 30 percent for a right knee disability other than instability and symptomatic removal of right knee semilunar cartilage is denied. The Veteran is currently in receipt of a 30 percent rating under DC 5010-5261, posttraumatic arthritis rated as limitation of extension. Limitation of knee extension is rated under DC 5261. A 30 percent rating is warranted for extension limited to 20 degrees. A 40 percent rating is warranted for extension limited to 30 degrees. A maximum schedular 50 percent rating is warranted for extension limited to 45 degrees. Limitation of knee flexion is rated under DC 5260. The highest rating available under DC 5260 is a 30 percent rating for flexion limited to 15 degrees. Here, a February 24, 2017 private treatment note shows flexion limited to 120 degrees with pain at extreme limits of range, with extension normal, with active and passive range of motion testing conducted. Additionally, the private treatment notes show that the examiner considered weight bearing and nonweight bearing, and the Veteran’s left knee is damaged. While extension was not reported on the March 2017 DBQ, the private treatment notes show that the Veteran did not meet the criteria for a rating in excess of 30 percent based on limitation of motion. Notably, his flare-ups are manifested by difficulty walking and standing or going up and down stairs, and not by a reduction in limitation of motion. Thus, although the Veteran experienced additional limitations other than limitation of motion, these are adequately compensated by his separate ratings. Accordingly, a rating in excess of 30 percent for a right knee disability other than instability and symptomatic removal of cartilage is denied. REASONS FOR REMAND 4. From December 1, 2018, a rating in excess of 30 percent for a right knee disability status post replacement is remanded. The Board regrets the delay, but additional development is necessary. In this regard, the record does not squarely address whether the Veteran’s post-replacement right knee is manifested by severe painful motion or weakness during a flare-up or after repeated use over time. See Tedesco v. Wilkie, 31 Vet. App. 360 (2019) (explaining that limitation of motion is distinct from severe painful motion and weakness). Updated treatment records should also be secured. The matters are REMANDED for the following action: 1. Secure any updated VA treatment records. 2. With any necessary assistance from the Veteran, secure outstanding private treatment records. 3. After completing #1 and #2, refer the claims file to the examiner who completed the January 2020 Knees DBQ for preparation of an addendum opinion as to the severity of the Veteran’s right knee disability status post total replacement. No additional examination of the Veteran is necessary unless the examiner deems otherwise. If the January 2020 examiner is unavailable, the Veteran should be afforded another examination, if possible. The examiner should state whether the Veteran’s right knee disability during a flare-up is manifested by “chronic residuals of severe painful motion or weakness in the extremity.” Additionally, the examiner should state the functional impact, if any, of the anterior leg numbness noted by the Veteran. A complete rationale must be provided for all opinions. If the requested opinion cannot be provided without resorting to speculation, the examiner should so state and explain why an opinion would be speculative. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D.M. Badaczewski, 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.