Citation Nr: 21024925 Decision Date: 04/27/21 Archive Date: 04/26/21 DOCKET NO. 11-23 750A DATE: April 27, 2021 ORDER Entitlement to a 20 percent rating for right knee disability prior to July 31, 2013 is granted, effective March 6, 2013. Entitlement to a rating in excess of 10 percent for left knee disability prior to March 30, 2016 is denied. Entitlement to a separate 10 percent rating for slight lateral instability of the right knee prior to July 31, 2013 is granted. Entitlement to a separate 10 percent rating for slight lateral instability of the left knee prior to March 30, 2016 is granted. Entitlement to a separate 20 percent rating for lateral and medial menisci tears of the right knee is granted, effective June 19, 2013 until July 31, 2013. FINDINGS OF FACT 1. Prior to March 6, 2013, the Veteran’s right knee disability was manifest by painful limitation of motion. 2. Between March 6, 2013 and July 31, 2013, the Veteran’s right knee disability was manifest by limitation of flexion less than 30 degrees. 3. Prior to March 30, 2016, the Veteran’s left knee disability was manifest by painful limitation of motion. 4. Prior to July 31, 2013, the evidence is at least in equipoise to show the Veteran’s right knee disability was manifest by slight lateral instability. 5. Prior to March 30, 2016, the evidence is at least in equipoise to show the Veteran’s left knee disability was manifest by slight lateral disability. 6. Between June 19, 2013 and July 31, 2013, the preponderance of the evidence shows that the Veteran had lateral and medial menisci tears in his right knee. CONCLUSIONS OF LAW 1. Prior to March 6, 2013, the criteria for a rating in excess of 10 percent for a right knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5260. 2. Between March 6, 2013 and July 31, 2013, the criteria for a 20 percent rating for a right knee disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5260. 3. Prior to March 30, 2016, the criteria for entitlement to a rating in excess of 10 percent for left knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5260. 4. Prior to July 31, 2013, a separate rating of 10 percent is warranted for slight instability of the right knee. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5257. 5. Prior to March 30, 2016, a separate rating of 10 percent is warranted for slight instability of the left knee. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5257. 6. Between June 19, 2013 and July 31, 2013, a separate rating of 20 percent is warranted for lateral and medial menisci tears of the right knee. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5258. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from September 1975 to December 1976. These matters appear before the Board of Veterans’ Appeals (Board) on appeal of a March 2012 rating decision of the Regional Office (RO) in Nashville, Tennessee. In November 2019, the Board remanded the Veteran’s claims in accordance with a July 2019 United States Court of Appeals for Veterans Claims (Court) Order implementing a June 2019 Joint Motion for Remand (JMR). The November 2019 Board remand directed the Agency of Original Jurisdiction (AOJ) to obtain retrospective opinions regarding the functional loss of the Veteran’s knee disabilities prior to his total knee replacement surgeries. In November 2019, VA requested the retrospective opinions. The Veteran underwent VA examination in December 2019; however, this examiner did not complete the requisite opinions. In September 2020, VA again requested the opinions, and later that month the retrospective opinions were associated with the Veteran’s claims. The Board finds substantial compliance with the November 2019 Board remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Increased Rating The Veteran underwent a right total knee replacement on July 31, 2013 and a left total knee replacement on March 30, 2016. Prior to his total knee replacement surgeries, his knee disabilities were rated under 38 C.F.R. § 4.71a, DC 5010, 5260. Under DC 5010, VA rates the Veteran’s disability on limitation of motion, dislocation, or other specified instability under the affected joint. Under DC 5260, a Veteran’s disability is rated based on limitation of flexion. A noncompensable (0 percent) rating is assigned for limitation of flexion of the leg to 60 degrees. A 10 percent rating is warranted for limitation of flexion of the leg to 45 degrees. A 20 percent rating is warranted for limitation of flexion of the leg to 30 degrees. A 30 percent rating is warranted for limitation of flexion of the leg to 15 degrees. 38 C.F.R. § 4.71a. The Board notes that normal range of motion is from 140 degrees on flexion to 0 degrees on extension. See 38 C.F.R. § 4.71, Plate II. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. Effective February 7, 2021, the Musculoskeletal and Muscle Injuries body system in VA’s Schedule for Rating Disabilities (VASRD) was revised to ensure the schedule uses current terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities. Importantly, Diagnostic Codes (DC) 5055 and 5257 were revised. DC 5055 involves knee resurfacing or knee replacement. DC 5257 involves recurrent subluxation or instability and patellar instability. As the only issues on appeal are applicable to time periods prior to February 7, 2021, the revised regulations do not apply. 1. Entitlement to a 20 percent rating for right knee disability prior to July 31, 2013, effective March 6, 2013 The Board finds that the preponderance of the evidence is against granting a rating in excess of 10 percent for a right knee disability prior to March 6, 2013. The Veteran essentially contends that he is entitled to a rating in excess of 10 percent for the entire appeal period; however, the evidence instead shows that the Veteran’s right knee disability met the criteria for a 20 percent rating on March 6, 2013, not before. To that extent, the appeal is granted. As noted above, prior to July 31, 2013, the Veteran was rated 10 percent disabled for his right knee under 38 C.F.R. § 4.71a, DC 5010, 5260, for right knee osteoarthritis with limitation for flexion. Specifically, the Veteran was granted a 10 percent disability rating under 38 C.F.R. § 4.59 for painful motion. The Veteran underwent VA examination in February 2012. The Veteran reported knee pain since service, but that he did not experience flare-ups. Upon physical examination, the examiner measured the Veteran’s range of motion on flexion to be 0 to 120 degrees. The examiner found that the Veteran’s right knee flexion was painful at 100 degrees. Accordingly, the Board finds that his right knee’s range of motion on the examination was limited 0 to 100 degrees. The examiner indicated that the Veteran was unable to perform repetitive use testing with three repetitions because of pain. While the examiner indicated the Veteran did not have additional limitation in range of motion of his right knee after repetitive use testing, the examiner did find that the Veteran’s right knee has less movement than normal and pain on movement. The examiner further concluded that the Veteran’s right knee affects his ability to work because he is unable to be on his feet for a significant amount of time due to pain and an inability to ambulate without pain. The Court implemented JMR argued that the Board failed to provide adequate reasons and bases for denying the Veteran’s claim to a rating in excess of 10 percent prior to July 31, 2013 because the February 2012 examination is inadequate. Specifically, the parties argued that the examination does not comply with Correia. Accordingly, the Veteran underwent a VA examination again in December 2019. The physical examination was completed after the Veteran’s knee surgeries; however, the examiner provided an opinion on the functional loss prior to the Veteran’s knee surgeries. The examiner explained that during the February 2012 examination the Veteran was unable to complete repetitive use testing, but he was able to complete repetitive use testing after the surgeries were completed. The examiner concluded that this supports the claim that the Veteran did suffer functional loss of his knee prior to his surgery. Specifically, the examiner stated the functional loss was due to pain and consistent with end-stage knee arthritis. In September 2020, a VA examiner provided a retrospective opinion. He opined that there is no additional medical evidence available from which to form any further opinion regarding the Veteran’s functional loss prior to his knee surgery in July 2013. The examiner concluded that it was impossible to render any further opinion regarding functional loss and pain on weight-bearing resulting from an inability to perform repetitive use testing or without resorting to mere speculation. The examiner quoted the February 2012 examination stating the Veteran is unable to be on his feet for a significant amount of time due to pain and explained that further comment is not possible. The Veteran’s VA treatment records indicate consistent treatment for his bilateral knees during the time period at issue. The Veteran was seen on multiple occasions for his bilateral knees; however, most of the entries do not include range of motion measurements required by the rating criteria. One March 6, 2013 treatment note indicates the Veteran’s right knee range of motion was limited to 30 degrees or less. The medical provider also noted that the Veteran had a lot of difficulty getting around. Consequently, the Veteran’s right knee disability met the criteria for a 20 percent rating as of March 6, 2013. Also of record are private treatment records. In a March 2011 treatment record from Dr. L.K.H., the Veteran’s right knee range of motion is noted to be 0 to 90 degrees. Furthermore, a private treatment record from July 2013, two days prior to surgery, the Veteran’s right knee range of motion was noted to be 12-50 degrees at maximal effort. The Veteran contends that he is entitled to a rating in excess of 10 percent prior to March 6, 2013. The Board finds that the Veteran’s right knee disability, prior to March 6, 2013, did not warrant a rating in excess of 10 percent. Specifically, the Veteran’s right knee range of motion remained noncompensable and the Veteran’s painful limitation of motion was considered under 38 C.F.R. § 4.59. The Board acknowledges the aforementioned caselaw as well as the JMR. Evidence needed to satisfy both the caselaw and the JMR was requested from a VA examiner; however, the VA examiner indicated that no additional information could be provided based on the evidence of record. Additionally, because of the TKA performed on the knee, any current examination of the Veteran’s knees is irrelevant with regard to the severity of his knee prior to surgery. VA exhausted all potential avenues for obtaining evidence consistent with the requirements of Correia and Sharp, and there is no further development that could be conducted to obtain such information. As such, VA has satisfied its duty to assist with regard to this matter, but there remains no evidence dated prior to March 6, 2013 to show that the rating criteria in excess of 10 percent are met. Accordingly, the Board finds that from March 6, 2013 until his surgery on July 31, 2013, the Veteran’s right knee disability warranted a 20 percent rating. Further, the Board finds that a rating in excess of 10 percent prior to March 6, 2013 was not warranted. 2. Entitlement to a rating in excess of 10 percent for left knee disability prior to March 30, 2016 The Board finds that the preponderance of the evidence is against supporting a rating in excess of 10 percent prior to March 30, 2016 for the Veteran’s left knee disability. The Veteran essentially contends that he was entitled to a rating in excess of 10 percent for his left knee disability prior to his total knee replacement surgery on March 30, 2016. The evidence instead shows that the Veteran’s left knee was manifested by painful motion of otherwise noncompensable limitation of flexion. The Veteran underwent VA examination in February 2012. The Veteran reported painful bilateral knees since separating from service, but no flare-ups. Upon physical examination, the examiner found that the Veteran’s left knee range of motion was 0 to 115 degrees. The examiner noted that he Veteran exhibited pain at 90 degrees of flexion. The Board finds that the Veteran’s left knee range of motion was limited 0 to 90 degrees on examination. The examiner indicated the Veteran was unable to complete repetitive use testing due to pain, and he found that the Veteran had less movement than normal and pain on movement of his left knee. As noted above, the examiner indicated the Veteran’s left knee affected his ability to work because he was unable to be on his feet for significant periods of time and an inability to ambulate without pain. The December 2019 examiner concluded that the Veteran’s functional loss was due to pain and consistent with end stage arthritis. The September 2020 examiner reached the same conclusions for the Veteran’s left knee as he did for the Veteran’s right knee noted above. Further comment or opinion regarding the Veteran’s functional loss prior to his total knee replacements surgeries is impossible without resorting to speculation. The Veteran’s VA treatment records include a few range of motion measurements for the Veteran’s left knee. In a November 2015 treatment note, the Veteran’s left knee range of motion was 0 to 120 degrees and he experienced tenderness to palpation along the medial joint line. In a February 2016 treatment note, the Veteran’s left knee range of motion is measured at 0 to 130 degrees. In a March 2016 treatment note, two weeks prior to his total knee replacement surgery, the Veteran’s left knee range of motion was 5 to 130 degrees. The Veteran’s private treatment records also show limited flexion for his left knee. In a March 2011 treatment note, the Veteran’s left knee flexion was limited 0 to 90 degrees. As noted above, the Board acknowledges the aforementioned caselaw as well as the JMR. Evidence needed to satisfy both the caselaw and the JMR was requested from a VA examiner; however, the VA examiner indicated that no additional information could be provided based on the evidence of record. Additionally, because of the TKA performed on the knee, any current examination of the Veteran’s knee is irrelevant with regard to the severity of his knee prior to surgery. VA exhausted all potential avenues for obtaining evidence consistent with the requirements of Correia and Sharp, and there is no further development that could be conducted to obtain such information. As such, VA has satisfied its duty to assist with regard to this matter, but there remains no evidence dated prior to March 30, 2016 to show that the rating criteria in excess of 10 percent are met. The Veteran contends that he is entitled to a rating in excess of 10 percent prior to March 30, 2016. The Board finds that the Veteran’s left knee disability, prior to March 30, 2016, did not warrant a rating in excess of 10 percent. Specifically, the Veteran’s left knee range of motion remained noncompensable and the Veteran’s painful limitation of motion was considered under 38 C.F.R. § 4.59. 3. Entitlement to a separate rating for right knee medial and lateral instability prior to July 31, 2013 4. Entitlement to a separate rating for right knee meniscal tear with frequent episodes of locking prior to July 31, 2013 5. Entitlement to a separate rating for left knee medial and lateral instability prior to March 30, 2016 The June 2019 JMR also noted the Board erred to provide adequate reasons and bases for denying separate disability ratings prior to the Veteran’s total knee replacement surgeries. Specifically, the parties asserted that the Board failed to consider the Veteran’s lay statements regarding instability. Consequently, the Board has also considered the other Diagnostic Codes pertaining to the knee and leg. Other 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). A claimant may have separate compensable ratings for a knee injury, to include limitations in its range of motion and a meniscus injury or one that is post-operative. C.F.R. § 4.71a, DCs 5258-5261. Other diagnostic codes provide rating criteria used to evaluate ankylosis, recurrent subluxation or lateral instability, dislocated cartilage, limitation of extension, impairment of the tibia and fibula, and genu recurvatum. 38 C.F.R. § 4.71a, DCs 5262-5263, 5256-5257. Specifically, in the Veteran’s April 2012 Notice of Disagreement (NOD), he contended that he also suffered instability with his knees giving way. He further reported wearing braces to assist his walking. Furthermore, a July 2013 treatment note indicated a June 2013 MRI showed the Veteran suffered articular surface tearing of the posterior horn and body of the medial meniscus and a horizontal tear of the lateral meniscus. These reports reasonably raise separate rating analyses in today’s Board decision. As noted above, the Veteran underwent VA examination in February 2012 for the bilateral knees. Upon physical examination, the examiner found no pain on palpation for the joint line or soft tissue in either knee. Additionally, he found no objective evidence of reduced muscle strength, instability, patellar subluxation or dislocation, any tibial or fibular impairment, no meniscal conditions, and no evidence of ankylosis. Here, the medical evidence does not show evidence of ankylosis, impairment of the tibia and fibula, or genu recurvatum. Thus, a separate rating is not warranted for either knee under DCs 5256, 5262 or 5263. As outlined above, the evidence also does not show compensable limitation of extension and, therefore a separate rating under DC 5261 is not warranted for either knee. Under DC 5257, a separate rating is warranted for recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, DC 5257. Prior to February 7, 2021, a 10 percent rating is awarded for a “slight” disability, a 20 percent rating for a “moderate” disability, and a 30 percent rating for a “severe” disability. Id. Objective medical evidence is not required to establish lateral knee instability under Diagnostic Code 5257, so objective medical evidence cannot be categorically found more probative than lay evidence with respect to this Diagnostic Code. See English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). Under DC 5258, a separate disability rating is warranted for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint. The Board finds that the preponderance of the evidence supports granting separate ratings for slight instability of the right knee, slight instability of the left knee, and a meniscal tear with episodes of locking of the right knee. In the Veteran’s NOD he reported bilateral knee instability because his knees would give way and wearing braces for support. Furthermore in a July 2013 private treatment record, the Veteran reported feeling as though his right knee was unstable. Specifically, the Veteran reported his knee giving out. The Veteran’s VA treatment records indicate the Veteran was consistently wearing bilateral braces, sometimes he was wearing unloader braces and others he was wearing hinge braces for support. The Veteran’s VA treatment records indicate he was initially outfitted with a right knee medial unloader brace in January 2012 and with a left knee medial unloader brace in March 2012. Shortly after he reported that the knee braces were helping him. The Veteran also reported using a cane to ambulate. A March 2013 treatment note indicate the Veteran had great difficulty getting around, moves extremely slowly, and uses a cane for support. The Veteran’s private treatment records include diagnostic reports which show the Veteran had medial compartment meniscal chondrocalcinosis in October 2010. A July 2013 treatment note also shows the Veteran has been wearing knee braces. The Veteran is competent to report symptoms such as his knees giving way. His reports are credible and consistent in the record. Objective evidence is not categorically more probative than lay evidence of instability. English v. Wilkie, 30 Vet. App. 347 (2018). As such, the evidence of instability, prior to the Veteran’s bilateral knee replacement surgeries, was at least in equipoise, and a rating for instability is warranted under DC 5257. As of June 19, 2013, the date of the MRI showing medial and lateral meniscus tears, the Board finds that the evidence supports a separate rating for dislocated semilunar cartilage with episodes of locking. In a July 2013 private treatment record, the Veteran reported episodes of locking in his right knee. In that same treatment record, the physician referenced a June 19, 2013 MRI scan which showed tears in the Veteran’s medial and lateral meniscus in the right knee. Accordingly, the Board finds that the Veteran was entitled to a separate 20 percent rating for his medial and lateral meniscus tears. In summary, the Board finds that the Veteran was entitled to a separate 10 percent rating for slight lateral instability of his right knee prior to July 31, 2013 and a separate 10 percent rating for slight lateral instability of his left knee prior to March 30, 2016. Finally, the Board finds that the Veteran was entitled to a separate 20 percent rating for the meniscal tears of his right knee, effective June 19, 2013 until July 31, 2013. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. N. Fournier, 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.