Citation Nr: 21025378 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 15-37 819 DATE: April 28, 2021 ORDER For the period prior to January 7, 2019, a disability rating in excess of 20 percent for service-connected post-operative residuals, left lateral meniscal tear (left knee disability) under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5260 (2019) is denied. For the period from February 4, 2015 to January 7, 2019, a disability rating of 20 percent, and not in excess thereof, is granted for the left knee disability under 38 C.F.R. § 4.71a, DC 5261 (2019), subject to the law and regulations governing the award of monetary benefits. For the period prior to January 7, 2019, a disability rating in excess of 10 percent for service-connected left knee disability with instability under 38 C.F.R. § 4.71a, DC 5257 (2019) is denied. For the period prior to January 7, 2019, a disability rating in excess of 10 percent for service-connected left knee disability under 38 C.F.R. § 4.71a, DC 5259 (2019) is denied. For the period from March 1, 2020, a disability rating in excess of 60 percent for service-connected left knee disability under 38 C.F.R. § 4.71a, DC 5055 is denied. FINDINGS OF FACT 1. For the rating period prior to January 7, 2019, the Veteran’s left knee disability was not productive of limitation of flexion to 15 degrees or less, or the functional equivalent thereof. 2. For the rating period prior to February 4, 2015, the Veteran’s left knee disability was not productive of limitation of extension to 10 degrees or more, or the functional equivalent thereof. 3. For the rating period from February 4, 2015 to January 7, 2019, the Veteran’s left knee disability was productive of limitation of extension to 15 degrees. 4. For the rating period from February 4, 2015 to January 7, 2019, the Veteran’s left knee disability was not productive of limitation of extension to 20 degrees or more. 5. For the rating period prior to January 7, 2019, the Veteran’s left knee disability was not productive of moderate or severe recurrent subluxation or lateral instability, ankylosis, or malunion or nonunion of the tibia or fibula. 6. For the rating period prior to January 7, 2019, the Veteran is in receipt of the maximum schedular rating under 38 C.F.R. § 4.71a, DC 5259 (2019). 7. For the rating period prior to September 25, 2013, the left knee disability was not productive of acquired traumatic genu recurvatum. 8. From March 1, 2020, the Veteran’s total left knee replacement has been productive of chronic residuals consisting of severe painful motion or weakness in the affected extremity. CONCLUSIONS OF LAW 1. For the period prior to January 7, 2019, the criteria for an award of a disability rating in excess of 20 percent for the left knee disability under DC 5260 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5260 (2019). 2. For the rating period from February 4, 2015, the criteria for an award of a disability rating of 20 percent, and not in excess thereof, for the left knee disability under DC 5261 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5261 (2019). 3. For the rating period prior to January 7, 2019, the criteria for an award of a disability rating in excess of 10 percent for the left knee disability under DC 5257 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5257 (2019). 4. For the period from March 1, 2020, the criteria for an award of a disability rating in excess of 60 percent for service-connected left knee disability under DC 5055 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.68, 4.71a, DC 5055. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1988 to August 1994, and from February 1996 to October 1996. He also had service in a Reserve component of the military. His decorations include Army Service Ribbon, the National Defense Service Medal, and the Army Lapel Button. These matters come to the Board of Veterans’ Appeals (Board) on appeal from a May 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2018 and January 2020, the Board remanded the issues currently on appeal to the agency of original jurisdiction (AOJ) for additional development. There has been at least substantial compliance with the remand directives that the Board will proceed with adjudication of the appeal. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). After taking further action, the AOJ granted a 60 percent rating under DC 5055 for the left knee disability from March 1, 2020, confirmed and continued the other prior denials, and returned the case to the Board. See August 2020 supplemental statement of the case. Higher Ratings Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the evaluations to be assigned to the various disabilities. If 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. If different disability ratings are warranted for different periods of time over the life of a claim, “staged” ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). 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. 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); Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). With any form of arthritis, painful motion is an important factor of disability; the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. The intent of the schedule is to recognize painful motion with joint or particular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. 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. 38 C.F.R. § 4.59. 1. A disability rating in excess of 20 percent for service-connected left knee disability under DC 5260 prior to January 7, 2019 is denied. 2. From February 4, 2015 to January 7, 2019, a disability rating of 20 percent for service-connected left knee disability under DC 5260 is granted. 3. A disability rating in excess of 10 percent for service-connected left knee disability with instability under DC 5257 prior to January 7, 2019 is denied. 4. A disability rating in excess of 10 percent for service-connected left knee disability under DC 5259 prior to January 7, 2019 is denied. For the rating period prior to January 7, 2019, the Veteran was in receipt of multiple ratings for the service-connected left knee disability. Specifically, he was in receipt of a 20 percent rating under DC 5260, a 10 percent rating under DC 5257, a 10 percent rating DC 5259, and a 10 percent rating under DC 5263. Limitation of flexion and extension of the knee joint are evaluated under DCs 5260 and 5261, respectively. Under DC 5260, a noncompensable rating is warranted when flexion is limited to 60 degrees. A 10 percent rating is warranted if flexion is limited to 45 degrees, and a 20 percent rating is warranted if flexion is limited to 30 degrees. Flexion that is limited to 15 degrees warrants a 30 percent rating. Under DC 5261, a noncompensable rating is assigned when extension is limited to 5 degrees, a 10 percent rating when it is limited to 10 degrees, a 20 percent rating when it is limited to 15 degrees, a 30 percent rating when limited to 20 degrees, a 40 percent rating when limited to 30 degrees, and a 50 percent rating when limited to 45 degrees. Normal range of motion of the knee is to 0 degrees of extension and 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. DC 5257 contemplates “other impairment” of the knee including recurrent subluxation or lateral instability. Under DC 5257, where impairment is severe, moderate or slight, disability evaluations of 30, 20, and 10 percent are assigned, respectively. The words “slight,” “moderate,” “severe,” and “marked” as used in the various diagnostic codes are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for “equitable and just” decisions. 38 C.F.R. § 4.6. DC 5259, which provides that a 10 percent rating is assigned for cartilage, semilunar, removal of, symptomatic. This diagnostic code does not provide for a disability rating in excess of 10 percent. 38 C.F.R. § 4.71a. DC 5263 provides that acquired traumatic genu recurvatum, with objectively demonstrated weakness and insecurity in weight-bearing warrants a 10 percent rating. This diagnostic code does not provide for a disability rating in excess of 10 percent. Id. Other potentially applicable diagnostic codes for evaluation the left knee disability include: DC 5256, for ankylosis of the knee, provides that favorable ankylosis of either knee warrants a 30 percent evaluation. Ankylosis is considered to be favorable when the knee is fixed in full extension, or in slight flexion at an angle between 0 and 10 degrees. A 40 percent evaluation requires that the knee be fixed in flexion at an angle between 10 and 20 degrees. When the knee is fixed in flexion between 20 and 45 degrees, a 50 percent rating is assigned. A 60 percent rating is warranted for extremely unfavorable ankylosis, with the knee fixed in flexion at an angle of 45 degrees or more. 38 C.F.R. § 4.71a. DC 5258, which provides that when there is cartilage, semilunar, dislocated, with frequent episodes of “locking,” pain, and effusion into the joint, a 20 percent is assignable. 38 C.F.R. § 4.71a. DC 5262 provides that malunion of the tibia and fibula is rated at 10 percent with slight disability, 20 percent with moderate disability, and 30 percent with marked disability. Nonunion of the tibia and fibula, with loose motion and requiring a brace, is rated at 40 percent. The Veteran underwent a VA examination of the left knee in April 2012. He reported chronic left knee pain and daily use of a knee brace. Upon examination, the Veteran had left knee flexion to 105 degrees, with objective evidence of painful motion beginning at 75 degrees, and extension to 0 degrees with no objective evidence of painful motion. After repetitive use testing, the Veteran had limitation of left knee flexion to 90 degrees, and extension to 0 degrees. The Veteran was noted to have functional loss due to less movement than normal, incoordination, pain on movement, swelling, disturbance of locomotion, and interference with sitting, standing, and weight-bearing. Joint stability testing showed that the Veteran had normal anterior, posterior and medial-lateral stability. It was noted that the Veteran had no history of recurrent patellar subluxation/dislocation. The examiner assessed that residuals of a prior partial meniscectomy were pain, instability, and locking. The Veteran underwent another VA examination of the left knee in February 2015. He reported left knee pain and swelling. Upon examination, the Veteran had left knee flexion to 75 degrees, with objective evidence of painful motion beginning at 65 degrees, and extension to 10 degrees with objective evidence of painful motion beginning at 15 degrees. The Veteran was unable to perform repetitive use testing, as well as joint stability testing, due to pain. It was noted that the Veteran had no history of recurrent patellar subluxation/dislocation. The examiner indicated that there was evidence of left knee acquired traumatic genu recurvatum with weakness and insecurity in weight-bearing. The examiner assessed that residuals of a prior partial meniscectomy included frequent episodes of joint locking, pain, and effusion. Higher rating under DC 5260 The Board finds that the preponderance of the evidence is against the assignment of a disability rating in excess of 20 percent for the left knee disability under DC 5260. 38 C.F.R. § 4.71a. A higher rating would be warranted under DC 5260 for limitation of left knee flexion to 15 degrees or less. The evidence weighs against such manifestations. The Veteran’s left knee flexion, at worst, was measured at 65 degrees, to include as due to pain and after repetitive use testing. See, e.g., February 2015 VA examination report. Treatment records during the period prior to January 7, 2019 do not otherwise show left knee flexion limited to 15 degrees or less. Accordingly, there is evidence of limitation of left knee flexion, but not to less than 15 degrees. As to functional equivalence, there is evidence of functional loss due to pain on movement, less movement than normal, incoordination, pain swelling, disturbance of locomotion, and interference with sitting, standing, and weight-bearing; however, the Board finds that these manifestations taken together are not the functional equivalent of a 30 percent rating under the rating criteria. Stated differently, neither the objective nor subjective evidence suggests that there is the functional equivalent of limitation of flexion to 15 degrees or less. In fact, the Veteran’s left knee flexion measurements throughout this period are not consistent with a compensable rating under DC 5260. Because the Veteran has already been assigned a 20 percent rating under DC 5260, the Board will not disturb that rating; however, the Veteran is not entitled to a disability rating in excess of 20 percent for left knee flexion at any point during the rating period prior to January 7, 2019. Higher rating under DC 5261 The Board finds that, for the period prior to February 4, 2015, a separate compensable disability rating for the left knee disability under DC 5261 is not warranted. 38 C.F.R. § 4.71a. A compensable rating would be warranted for limitation of left knee extension to 10 degrees or more. The evidence weighs against such manifestations. The Veteran’s left knee extension was measured at 0 degrees, with no objective evidence of pain, to include after repetitive use testing. See, e.g., April 2012 VA examination report. Treatment records during the period prior to February 4, 2015 do not otherwise show left knee extension limited to 10 degrees or more. As to functional equivalence, there is evidence of functional loss due to pain on movement, less movement than normal, incoordination, pain swelling, disturbance of locomotion, and interference with sitting, standing, and weight-bearing; however, the Board finds that these manifestations taken together are not the functional equivalent of a 10 percent rating under the rating criteria. Stated differently, neither the objective nor subjective evidence suggests that there is the functional equivalent of limitation of extension to 10 degrees or more. Based on the foregoing, a separate compensable disability rating for left knee extension is not warranted at any point during the rating period prior to February 4, 2015. The Board finds that, for the period from February 4, 2015 to January 7, 2019, the Veteran’s left knee disability more nearly approximated limitation of extension to 15 degrees, so warrants a 20 percent rating under DC 5261. 38 C.F.R. § 4.71a. The February 2015 VA examination report shows that the Veteran’s left knee extension was to 10 degrees, with objective evidence of painful motion beginning at 15 degrees. According, and after resolving reasonable doubt in the Veteran’s favor, the Board finds that a disability rating of 20 percent under DC 5261 is warranted for limitation of left knee extension for the period from February 4, 2015 to January 7, 2019. The Board finds that the preponderance of the evidence is against the assignment of a disability rating in excess of 20 percent under DC 5261 during the period from February 4, 2015 to January 7, 2019. 38 C.F.R. § 4.71a. A higher rating would be warranted under DC 5261 for limitation of left knee extension to 20 degrees or more. The evidence weighs against such manifestations. The Veteran’s left knee extension was, at worst, measured at 15 degrees, to include as due to pain. See, e.g., February 2015 VA examination report. Treatment records during the period from February 4, 2015 to January 7, 2019 do not otherwise show left knee extension limited to 20 degrees or more. As to functional equivalence, the Board notes that there is evidence of functional loss due to pain on movement, less movement than normal, incoordination, pain swelling, disturbance of locomotion, and interference with sitting, standing, and weight-bearing; however, the Board finds that these manifestations taken together are not the functional equivalent of a 30 percent rating under the rating criteria. Stated differently, neither the objective nor subjective evidence suggests that there is the functional equivalent of limitation of extension to 20 degrees or more. Based on the foregoing, a disability rating in excess of 20 percent for left knee extension is not warranted at any point during the rating period from February 4, 2015 to January 7, 2019. Higher rating under DC 5257 The Board finds that the preponderance of the evidence is against the assignment of a disability rating in excess of 10 percent for the left knee disability under DC 5257. 38 C.F.R. § 4.71a. A higher rating would be warranted under DC 5257 for moderate or severe recurrent subluxation or lateral instability. The evidence weighs against such manifestations. The April 2012 and February 2015 VA examination reports noted that there was no evidence or history of recurrent subluxation or lateral instability. Treatment records during the appeal period do not otherwise show evidence of moderate or severe recurrent subluxation or lateral instability of the left knee. Therefore, the evidence does not show that the left knee disability warrants a compensable disability rating under DC 5257 during this period. While the Veteran has already been assigned a 10 percent rating under DC 5257 during this period, the Board will not disturb that rating; however, the Veteran is not entitled to a disability rating in excess of 10 percent for left knee recurrent subluxation or lateral instability under DC 5257 at any point during the rating period prior to January 7, 2019. Higher ratings under DC 5259 and DC 5263 As noted, the Veteran is in receipt of a 10 percent rating for the left knee disability under DC 5259 for the entire rating period prior January 7, 2019. Here, the Veteran is already in receipt of the maximum schedular rating available under DC 5259 for the entire rating period prior to January 7, 2019. 38 C.F.R. § 4.71a. Accordingly, a higher rating under DC 5259 is not possible. The Veteran is also in receipt of a 10 percent rating for genu recurvatum of the left knee from September 25, 2013 to January 7, 2019. Here, the Veteran is already in receipt of the maximum schedular rating available under DC 5263 for the period from September 25, 2013 to January 7, 2019. Accordingly, a higher rating under DC 5263 is not possible during that period. As for the period prior to September 25, 2013, the preponderance of the evidence is against finding that the left knee disability was productive of acquired traumatic genu recurvatum, with objectively demonstrated weakness and insecurity in weight-bearing during the period prior to September 25, 2013. See, e.g., April 2012 VA examination report (showing that the Veteran did not have acquired traumatic genu recurvatum). Accordingly, a compensable rating under DC 5263 is not warranted for the left knee disability for the period prior to September 25, 2013. 38 C.F.R. § 4.71a. Other potentially applicable diagnostic codes The Board has considered whether higher or separate ratings are warranted under other potentially applicable diagnostic codes. In this regard, the Veteran’s left knee disability was not productive of ankylosis or malunion or nonunion of the tibia and fibula at any point during the rating period prior to January 7, 2019. See, e.g., April 2012 and February 2015 VA examination reports. Accordingly, higher or separate ratings under DCs 5256 and 5262 are not warranted. Finally, the Board finds that a higher or separate rating under DC 5258 is not warranted. The critical element in permitting the assignment of several ratings under various Diagnostic Codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In this case, the Veteran is in receipt of a 20 percent rating for the left knee disability for the entire rating period prior to January 7, 2019 under DC 5260. He is also now in receipt of a separate 20 percent rating for the left knee disability for the period from February 4, 2015 to January 7, 2019 under DC 5261. The April 2012 VA examination report noted that residuals of a prior left knee partial meniscectomy were pain, and locking, but no effusion. The February 2015 VA examination report noted that residuals of a prior partial meniscectomy included frequent episodes of joint locking, pain, and effusion. Based on the foregoing, a higher or separate disability rating under DC 5258 for the period prior to February 4, 2015 is not warranted because, while the evidence shows that the left knee disability was productive of frequent episodes of pain and locking, it was not productive of frequent episodes of effusion as required by DC 5258. Moreover, as discussed below, the assignment of a separate disability rating under DC 5258 would constitute impermissible pyramiding because the Veteran is already in receipt of a 20 percent rating under DC 5260 during this period. DCs 5258 and 5260/5261 rate based on limitation of motion and knee pain, as a cause of limitation of motion. In the case of DC 5258, limitation of motion is reflected by the symptoms or findings of pain, locking, and effusion into the joint. See also Firestein, Kelley’s Textbook of Rheumatology 571 (9th ed. 2012) (“locking” is the sudden loss of ability to extend the knee and is usually painful and may be associated with an audible noise, such as a click or pop). In the case of DCs 5260 and 5261, such limitation of motion is encompassed by the limitation of flexion and extension, including limitation of motion due to pain. Both diagnostic codes (5258 and 5260, and 5258 and 5261) overlap in “locking” as a form of limitation of motion that is usually accompanied by pain; therefore, the diagnostic codes both rate on knee pain and limitation of motion due to pain. See DeLuca; 38 C.F.R. §§ 4.40, 4.45, 4.59. Were the Board to grant separate ratings under both DC 5258 and DC 5260, or DC 5258 and DC 5261, the Veteran would receive compensation under two different codes for the same manifestations of pain and limitation of motion, which would constitute impermissible pyramiding. 38 C.F.R. § 4.14. For these reasons, the Veteran is not entitled to separate disability rating under DC 5258 and DCs 5260/5261 for the painful limitation of motion, flexion or extension, associated with the service-connected left knee disability at any point during the rating period prior to January 7, 2019. 5. A disability rating in excess of 60 percent for service-connected left knee disability under Diagnostic Code 5055 from March 1, 2020 is denied. Throughout the period on appeal from March 1, 2020, the Veteran has been in receipt of a 60 percent rating under DC 5055. The Board observes that there were multiple revisions to the rating criteria for evaluating musculoskeletal system and muscle injuries, effective February 7, 2021. See 85 Fed. Reg. 76453 (November 30, 2020). 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, DC 5055 provided that a 60 percent rating is warranted for knee replacement with chronic residuals consisting of severe painful motion or weakness in the affected extremity. A maximum rating of 100 percent was warranted for one year following implantation of the prosthesis. 38 C.F.R. § 4.71a (2019). Effective February 7, 2021, DC 5055 provides that a 60 percent rating is warranted for knee replacement with chronic residuals consisting of severe painful motion or weakness in the affected extremity. A maximum rating of 100 percent is warranted for four months following implantation of the prosthesis or resurfacing. See 85 Fed. Reg. 76453 (emphasis added). In this case, the Veteran has been awarded a 100 percent rating pursuant to 38 C.F.R. § 4.30 based on surgery necessitating convalescence effective January 7, 2019 (date of left knee replacement surgery), followed by a 100 percent rating pursuant to DC 5055 until February 29, 2020 (the last day of the month following a one-year 100 percent rating following implantation of prosthesis). As noted, the old rating criteria under DC 5055 is more advantageous to the Veteran because it provides a 100 rating for a longer period (one year under the old rating criteria verus four months under the new rating criteria) following implantation of the prosthesis. Therefore, the Veteran has been awarded a 100 percent rating for the maximum period under the law pursuant to DC 5055. 38 C.F.R. § 4.71a. Based on the foregoing, a disability rating in excess of 60 percent is not warranted for the left knee disability for the period from March 1, 2020. Although DC 5055 allows for rating residuals of knee replacement by analogy to DCs 5256 (ankylosis), 5261 (limitation of extension), and 5262 (impairment of the tibia and fibula) below the 60 percent level, it does not allow for analogous ratings under DCs 5257, 5258, 5259, or 5260. Moreover, it does not at all allow for the application of analogous ratings if the requirements for a 60 percent rating have been satisfied. To the contrary, at that point, and beyond the first year after surgery, DC 5055 simply provides for a single 60-percent rating that contemplates chronic residuals consisting of severe painful motion or weakness in the affected extremity. This is consistent with the amputation rule, which allows for a maximum rating of 60 percent for disabilities affecting the middle and lower thirds of a lower extremity. See 38 C.F.R. §§ 4.68, 4.71a, DCs 5160-5164. Simply put, DC 5055 does not allow for a schedular rating in excess of 60 percent beyond the one-year period following implantation of prosthesis, by analogy or otherwise. Because a 60 percent rating under DC 5055 is the maximum rating available under the law beyond the one-year period following implantation of prosthesis, the Board finds that a disability rating in excess of 60 percent for the left knee disability is not warranted at any point during the period from March 1, 2020. The appeal of this issue must be denied based on a lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). John Kitlas Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Ragheb, 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.