Citation Nr: 21025736 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 14-24 150 DATE: April 28, 2021 ORDER Entitlement to a higher rating for left knee anterior cruciate ligament tear with degenerative arthritis, rated as 20 percent disabling prior to January 16, 2020, is denied. Entitlement to a 20 percent rating for left knee anterior cruciate ligament tear with degenerative arthritis beginning on January 16, 2020 is granted. Entitlement to a 10 percent rating for left anterior cruciate ligament tear with degenerative arthritis (flexion) prior to January 16, 2020 is granted. Entitlement to a rating in excess of 10 percent for left anterior cruciate ligament tear with degenerative arthritis (flexion) beginning on January 16, 2020 is denied. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran’s left knee anterior cruciate ligament tear with degenerative arthritis manifested as slight instability and subjective complaints of instability without recurrent subluxation, a meniscus condition, patellar instability, ankylosis, impairment of the tibia and fibula, or genu recurvatum. 2. Throughout the period on appeal, left anterior cruciate ligament tear with degenerative arthritis (flexion) manifested as painful motion and flexion that was limited to, at worst, 50 degrees even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups. CONCLUSIONS OF LAW 1. The criteria for a 20 percent rating for a left knee anterior cruciate ligament tear with degenerative arthritis throughout the appeal period is granted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1—4.14, 4.40, 4.59, 4.71a, Diagnostic Codes 5003, 5257. 2. The criteria for a 10 percent rating for left knee anterior cruciate ligament tear with degenerative arthritis throughout the appeal period is granted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1—4.14, 4.40, 4.59, 4.71a, Diagnostic Codes 5003, 5260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from June 1986 to August 1991. These matters come before the Board of Veterans’ Appeals (Board) from a December 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In April 2018 and September 2019, the Board remanded this matter to the agency of original jurisdiction (AOJ) for further development. More specifically, in April 2018, the Board directed the AOJ to schedule the Veteran for a new examination to determine the severity of his left knee condition and in September 2019, the Board directed the AOJ to provide an adequate examination that tested the range of motion lost due to pain and limitation of flexion and instability. Such examinations were conducted in January 2020 and January 2021 and updated VA treatment records have been associated with the file. The Board therefore determines that there has been substantial compliance with its previous remands. The AOJ recharacterized the Veteran’s left knee disability in a February 2021 rating decision to left knee anterior cruciate ligament tear with degenerative arthritis rated as instability and left knee anterior cruciate ligament tear with degenerative arthritis (flexion) rated as limitation of motion. However, because the rating does not represent a total grant of the benefits sought on appeal, the claims for increase remain on appeal. AB v. Brown, 6 Vet. App. 35 (1993). The matter now returns to the Board. The Board notes that the Veterans Law Judge who conducted the November 2017 hearing has retired and is no longer employed by the Board. The Veteran was informed that the Veterans Law Judge who conducted the November 2017 hearing has retired and is no longer employed by the Board and offered the opportunity for a new hearing in an March 2021 letter. The Veteran did not respond to this letter. Therefore, the Board may proceed with its decision. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered because of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. Separate ratings can be assigned for separate periods based on the facts found, a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). In this regard, 38 C.F.R. § 4.59 requires that “[t]he 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.” Correia v. McDonald, 28 Vet. App. 158 (2016). Further, 38 C.F.R. § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable or malaligned joints or periarticular regions, regardless of whether the Diagnostic Code under which the disability is evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board notes that effective February 7, 2021, the criteria for schedule of ratings for the musculoskeletal system was revised. See 86 Fed. Reg. 8142 (Feb. 4, 2021) (codified at 38 C.F.R. pt. 4). In the instant case, the claims file is absent any medical evidence submitted or associated with the claims file subsequent to the revised rating effective date of February 7, 2021. Therefore, the February 2021 musculoskeletal criteria do not apply to the Veteran’s claim on appeal; and the appropriate criteria is discussed below. The Veteran’s left knee condition has been rated as 20 percent disabling prior to January 16, 2020 and 10 percent thereafter under 38 C.F.R. § 4.71a, Diagnostic Code 5003-5257. The Veteran is also assigned a separate rating for left knee anterior cruciate ligament tear with degenerative arthritis (flexion) associated with left knee anterior cruciate ligament tear with degenerative arthritis rated at 10 percent pursuant to Diagnostic Code 5003-5260. Under Diagnostic Code 5003, arthritis, substantiated by X-ray findings, is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion: where there is x ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, the arthritis is evaluated as 20 percent disabling; and where there is x ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, the arthritis is evaluated as 10 percent disabling. Here, the appropriate diagnostic codes for disabilities of the knee are rated under Diagnostic Codes 5256 to 5263. 38 C.F.R. § 4.71a. Under Diagnostic Code 5257, recurrent subluxation and lateral instability of the knee warrants a 10, 20, or 30 percent rating if slight, moderate, or severe, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Under Diagnostic Code 5258, when the knee disability affects the meniscus, a 20 percent rating is warranted when there is dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. 38 C.F.R. § 4.71a, Diagnostic Code 5258. Under Diagnostic Code 5258, a 10 percent rating is warranted when there has been removal of semilunar cartilage (e.g., meniscectomy) and current residual symptoms. 38 C.F.R. § 4.71a, Diagnostic Code 5259. Under Diagnostic Code 5260, flexion of the knee limited to 15 degrees warrants a 30 percent rating; flexion limited to 30 degrees warrants a 20 percent rating; flexion limited to 45 degrees warrants a 10 percent rating; and flexion limited to 60 degrees warrants a zero percent (noncompensable) rating. 38 C.F.R. § 4.71a Ratings can also be assigned for impairment of the tibia or fibula, genu recurvatum, or ankylosis of the knee. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5262, 5263. Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). Ankylosis is also defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” Dorland’s Illustrated Medical Dictionary 93 (30th ed. 2003). In this case the evidence does not reflect, and the Veteran does not allege, that he has tibia or fibula impairment, genu recurvatum, or ankylosis of either knee. As such, those diagnostic codes are not for application. Separate ratings can be assigned for the above knee disabilities (Diagnostic Codes 5257, 5258, 5259, 5260, and 5261) when none of the symptomatology overlaps and the separate rating is based on additional disabling symptomatology. See VAOPGCPREC 23-97, 62 Fed. Reg. 63,603 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,703 (1998); VAOPGCPREC 9-2004; 69 Fed. Reg. 59,988 (2004); Lyles v. Shulkin, 29 Vet. App. 107 (2017). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Although the Board has an obligation to provide reasons and bases supporting its decision, there is no obligation to discuss, in detail, the extensive evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board’s analysis will focus specifically on what the evidence shows, or fails to show, as it relates to the Veteran’s claim. 1. Entitlement to a higher rating for left knee anterior cruciate ligament tear with degenerative arthritis, rated as 20 percent disabling prior to January 16, 2020 is denied. 2. Entitlement to a 20 percent rating for left knee anterior cruciate ligament tear with degenerative arthritis beginning on January 16, 2020 is granted. 3. Entitlement to a 10 percent rating for left anterior cruciate ligament tear with degenerative arthritis (flexion) prior to January 16, 2020 is granted. 4. Entitlement to a rating in excess of 10 percent for left anterior cruciate ligament tear with degenerative arthritis (flexion) beginning on January 16, 2020 is denied. The Veteran generally contends that he should have a higher rating for his left knee anterior cruciate ligament tear with degenerative arthritis, which is worse than contemplated by the currently assigned ratings. Specific argument in support of this appeal has not been presented. In November 2011, the Veteran was afforded a VA examination. At that time, the examiner noted a diagnosis of osteoarthritis of the left knee. The Veteran reported flare-ups of moderate left knee pain lying in bed about twice weekly that will last for one to two hours. This usually occurred following prolonged weight bearing or sitting. His left knee flexion was up to 130 degrees and extension was zero degrees. There was no objective evidence of painful motion. After repetitive use testing the Veteran’s flexion was up to 120 degrees and extension was zero degrees. There was no joint instability, no patellar subluxation or dislocation. There was no pain on palpation. The examiner noted a meniscus semilunar cartilage condition with frequent episodes of joint locking, joint pain and joint effusion. X-ray findings revealed minimally arthritic appearing left knee joint without effusion and it was noted that the Veteran wears brace occasionally for instability. There was no medial tibial stress syndrome, no stress fractures, no chronic exertional compartment syndrome or any other tibial and/or fibular impairment. There was no prior surgeries and meniscectomy was not reported. In May 2019, the Veteran was afforded another VA examination. The Veteran reported flare-ups of the left knee occurring one to two times each week and functional loss due to difficulty with squatting, sitting and standing for long periods, lifting heavy items, limited running and jumping. His left knee flexion was up to 110 degrees and extension was zero degrees. There was pain noted after repetitive testing and his range of motion for flexion was up to 100 degrees and extension was zero degrees. A slight lateral instability was noted, but no subluxation. The examiner noted that the Veteran wore a hinged brace for his left knee, regularly. There was no recurrent patellar dislocation, no medial tibial stress syndrome, no stress fractures, no chronic exertional compartment syndrome or any other tibial and/or fibular impairment. There was slight lateral instability, anterior instability and posterior instability, but no subluxation was noted. The September 2019 Board remand deemed this examination inadequate for adjudicative purposes. In January 2020, the Veteran was afforded another VA examination. The Veteran did not report flare-ups of the left knee but reported functional loss due to his inability to run. His left knee flexion was up to 120 degrees and extension was zero degrees. Pain was noted on his flexion and on weight bearing, but no pain on non-weight-bearing. There was pain noted after repetitive testing, but his range of motion was the same. The examination was not conducted during a flareup and pain, weakness, fatigability or incoordination did not significantly limit functional ability with flare ups. There was no ankylosis, and no recurrent subluxation, lateral instability or recurrent effusion. There was anterior instability and the Veteran wore a brace regularly. There was no prior surgeries and meniscectomy reported. In January 2021, the Veteran was afforded another VA examination. The Veteran reported flare-ups of the left knee occurring weekly that last for hours. Functional loss was reported as his left knee giving out when walking, pain when standing and an inability to bend his knee. His left knee flexion was up to 60 degrees and extension was zero degrees. There was pain noted after repetitive testing and his range of motion for flexion was up to 50 degrees and extension was zero degrees. The examiner noted there was no pain on non-weight bearing testing. There was no ankylosis and no history of recurrent subluxation or lateral instability. There was a history of recurrent effusion with left knee swelling. The Veteran reported constantly wearing a brace. There was no prior surgeries and meniscectomy was not reported. With regards to the left knee anterior cruciate ligament tear with degenerative arthritis, the record reflects that the Veteran reported that his knee gave way and that he wore a knee brace. Objective examination in November 2011 was negative for joint instability and objective examination in November 2019 revealed slight instability. Anterior instability was noted on objective examination in January 2020 and objective examination could not be conducted in January 2021 due to pain. The record does not establish, and the Veteran has not alleged, recurrent subluxation. Therefore, the Board finds that a 20 percent rating, but no higher, is warranted for instability throughout the period on appeal. With regards left knee anterior cruciate ligament tear with degenerative arthritis (flexion), the record reflects that a 10 percent rating is warranted throughout the period on appeal under Diagnostic Code 5260. A November 2011 VA examination demonstrated flexion to 120 degrees following repetitive use testing and a diagnosis of arthritis while a May 2019 VA examination demonstrated flexion was up to 100 degrees with pain. As the Veteran has X-ray evidence of arthritis and painful motion, a 10 percent rating for limitation of flexion is warranted throughout the period on appeal. The Board finds that a rating in excess of 10 percent is not warranted. In this regard, there is no evidence that the Veteran experienced worse than 45 degree of flexion during this period on appeal. Therefore, Board finds that such factors do not result in functional loss more nearly approximating flexion limited to 30 degrees in the knee. See DeLuca v. Brown, supra; Mitchell v. Shinseki, supra. Pursuant to VAOPGCPREC 9-04, the Board has considered whether the Veteran is entitled to a separate rating for limitation of extension. Under Diagnostic Code 5261, a 10 percent rating is warranted for limitation of extension of the leg to 10 degrees; a noncompensable rating is warranted for extension limited to five degrees. The evidence shows, however, that the Veteran had full left knee extension during the appeal period, even in consideration of additional functional loss due to symptoms such as pain, swelling, weakness, fatigue, or incoordination or a result of repetitive motion and/or flare-ups. Therefore a separate rating for limitation of extension is not warranted. The Board has also considered whether the Veteran is entitled to any additional separate rating for his left knee anterior cruciate ligament tear with degenerative arthritis. While the Veteran underwent a patellar ligament repair in February 2019 for his right knee, the record does not reflect such as surgery for the left knee. The clinical evidence does not establish, and the Veteran has not alleged, ankylosis, a meniscal condition, impairment of the tibia or fibula, or genu recurvatum. Therefore, Diagnostic Codes 5256, 5258, 5259, 5262, and 5263 are not for application. The Board acknowledges the Veteran's belief that his left knee condition is more severe than the current rating reflects. While the Board recognizes that the Veteran is competent to provide statements regarding his observable symptomatology, he is not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). The Board also acknowledges that the Veteran’s VA treatment records note complaints of and treatment for his left knee disability. However, these records do not address the specific rating criteria necessary to determine severity. In determining the actual degree of disability, the examination findings are more probative of the degree of impairment. The Board has considered whether a staged rating under Hart, supra, are warranted, however, the Board finds that his symptomatology has been stable throughout each period on appeal. Therefore, assigning further staged ratings is not warranted. Further, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Finally, the Board has considered whether an inferred claim for a total disability based upon individual unemployability (TDIU) has been raised pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran reported being employed as a police officer in a November 2020 VA treatment note. The Veteran has not alleged, and the record does not suggest, that he is not able to obtain or maintain employment due to his left knee disability As such, a claim for TDIU under Rice is not raised. Therefore, a 10 percent rating for left anterior cruciate ligament tear with degenerative arthritis (flexion) prior to January 16, 2020 is granted and that a 20 percent rating for left anterior cruciate ligament tear with degenerative arthritis beginning on January 16, 2020 is granted. However, the preponderance of the evidence is against higher or separate ratings for the Veteran’s claims and the benefit of the doubt doctrine is not applicable. To that extent, higher ratings are denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Adeyemi, 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.