Citation Nr: 21026810
Decision Date: 05/04/21	Archive Date: 05/04/21

DOCKET NO. 09-26 449
DATE: May 4, 2021

ORDER

Entitlement to a rating in excess of 40 percent for lumbar spine degenerative disc disease is denied.

Entitlement to a rating in excess of 10 percent for residuals status-post left knee arthroscopy is denied.

Entitlement to a separate rating of 20 percent effective October 31, 2006, but no higher and no earlier, for residuals of a torn meniscus of the left knee is granted.

FINDINGS OF FACT

1. Throughout the period on appeal, the Veteran's lumbar spine degenerative disc disease manifested as forward flexion that was limited to 30 degrees, at worst; without medically prescribed bedrest, associated bowel or bladder impairments or ankylosis. 

2. Throughout the period on appeal, the Veteran's residuals status-post left knee arthroscopy manifested by limitation of flexion to 30 degrees or limitation of extension to 15 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 without instability, ankylosis, malunion or non-union of the tibia and fibula, or genu recurvatum.

3. Resolving all reasonable doubt in the Veteran's favor, the evidence of record suggests that the Veteran's residuals status-post left knee arthroscopy has manifested in dislocated semilunar cartilage, with frequent episodes of locking, pain, and joint effusion throughout the period on appeal.

CONCLUSIONS OF LAW

1. The criteria for entitlement to a rating in excess of 40 percent for lumbar spine degenerative disc disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.40, 4.45, 4.71a, Diagnostic Codes 5242, 5243.

2. The criteria for a rating in excess of 10 percent for left knee status post-arthroscopy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.27, 4.40, 4.59, 4.71a, Diagnostic Codes 5003, 5260.

3. The criteria for a separate rating of 20 percent effective October 31, 2006, but no higher and no earlier, for residuals of a torn meniscus of the left knee have been met throughout the appeal period. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.27, 4.40, 4.59, 4.71a, Diagnostic Code 5258. 

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Army from January 1975 to July 1980.  The Veteran also had other active duty service from July 1980 to April 1981; however, it was determined that the character of service for the latter period was a bar to the receipt of VA benefits.

This appeal comes before the Board of Veterans' Appeals (Board) on appeal of a May 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  To the extent that previous adjudications characterized these claims as an appeal of a February 2008 rating decision, the Board notes that the February 2008 rating decision was specifically issued in response to additional evidence received in November 2007.  This means that new and material evidence was received within one year of a Legacy rating decision issued May 2007, see 38 C.F.R. § 3.156(a), and as the May 2007 rating decision has never been rendered final, it is on appeal.  

Meanwhile, the May 2007 rating decision specifically states that it is in response to the Veteran's new claims that were received on October 31, 2006. See VA Form 21-4138 (rec'd Oct. 31, 2006).  Before October 31, 2006, the last rating decision of any kind in the Veteran's claims file is dated March 2004, and there is no Notice of Disagreement within one year of it.  The Board concludes that even though an earlier rating decision is on appeal, the Board still has no jurisdiction over the propriety of any rating prior to October 31, 2006.  Meanwhile, the Board notes that the Veteran was in receipt of a temporary total disability rating for his left knee from August 21, 2009 until August 31, 2009.  The Board concludes that as this disorder was afforded a maximum rating for this time period only, this period is not on appeal, see 38 C.F.R. § 4.30; Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1977); however, as higher ratings exist before and after this temporary total disability rating, the claim, as recharacterized on the title page, remains in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993).

The Veteran previously testified at a hearing before a now retired Veterans Law Judge on June 12, 2018, with his representative present.  A transcript of this hearing was produced and associated with the claims file.  In short, the claims that remain on appeal were each remanded: the lumbar spine, in order to obtain a statement as to residual effects on bowels and bladder; the left knee, to obtain further statements that comply with Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017); otherwise for both claims, to administer updated VA examinations in light of credible testimony of increasingly severe symptoms. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); 38 C.F.R. § 3.327.  The Veteran was then issued a Supplemental Statement of the Case in July 2020.  The Board concludes that through this post-remand development, to include VA examinations conducted in July 2019, the Veteran has been afforded substantial compliance with the remand directives from October 2018. See Stegall v. West, 11 Vet. App. 268, 271 (1998).  

Subsequent to all of the above, the Veteran was informed by correspondence that the Veterans Law Judge who presided over the June 12, 2018 hearing is no longer employed by the Board. See BVA Letter ( Jan. 4, 2021 ) (rec'd Feb. 4, 2021).  In this letter, the Veteran was informed of his appellate right to testify at a new hearing before the new presiding Veterans Law Judge. Id.; see 38 U.S.C. § 7107(c); 38 C.F.R. § 19.3(b).  This letter indicated that if no response from the Veteran was received within 30 days, then the Board would assume that the Veteran did not desire another hearing.  The Veteran returned correspondence explicitly waiving his right to testify at a subsequent hearing before a new Veterans Law Judge, and instead asking the Board to promulgate a decision based on the evidence of record. See Correspondence ( Feb. 23, 2021 ) (rec'd Mar. 6, 2021).  The Board accordingly reasserts jurisdiction.

For the reasons to be more fully articulated below, the Board finds that the Veteran's status-post left knee arthroscopy is entitled to a separate compensable rating for dislocated semilunar cartilage, with frequent episodes of "locking," pain, and effusion in the joint, throughout the period on appeal.  To this extent only, the Veteran's claim for increased ratings for the left knee is granted.  Aside from that, there are neither other applicable diagnostic codes nor evidence of residuals meriting higher ratings than already awarded for the knee, and there is also no evidence to support higher ratings than for which the Veteran is already compensated for his lumbar spine disorder. See Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997).  As a result, the remainder of the Veteran's claims are denied.

Additionally, the Board has considered whether an inferred claim for a total disability based upon individual unemployability has been raised pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). Neither the Veteran nor his representative allege that he is unable to secure and maintain substantially gainful employment. The Veteran reported that he worked as an electronic technician in a July 2019 VA examination. The issue of a TDIU does not arise in the context of an increased rating claim when there is no allegation or evidence of unemployability. Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009) (finding that where there was no evidence indicating unemployability, and with the record suggesting the opposite, i.e. that the Veteran was employed, a TDIU claim was not raised.) As such, a Rice claim is not raised.

Increased Ratings

Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects their ability to function under the ordinary conditions of daily life, including employment, by comparing their symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.

While the Veteran's entire history is reviewed when making a disability determination, where service connection has already been established and an increase in the disability rating is at issue, it is a present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994).  The Court of Appeals for Veterans Claims (Court) has held that, in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007).  In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary.

Consideration is given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they are raised by the Veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7.

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 claims on appeal; and the appropriate criteria is discussed below. 

The Board also notes that the February 7, 2021 musculoskeletal amendments presented no changes to the rating criteria for Diagnostic Codes 5260 and 5243.  In other words, Diagnostic Codes 5250 and 5243 are the same both prior to and after February 7, 2021.  Compare 38 C.F.R. § 4.71a (December 29, 2020) with 38 C.F.R. § 4.71a (February 7, 2021).  

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).

1. Entitlement to a rating in excess of 40 percent for lumbar spine degenerative disc disease is denied.

The Veteran's lumbar spine degenerative disc disease is currently rated as 40 percent disabling throughout the period on appeal, which starts on October 31, 2006.  This disorder is rated under Diagnostic Code 5242. 38 C.F.R. § 4.71a.  VA regulations provide that spine disabilities are rated under either the General Rating Formula for Diseases and Injuries of the Spine orif applicablethe Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, under Diagnostic Code 5243, whichever would result in a higher rating. 38 C.F.R. § 4.71a.  The Veteran appears to have been diagnosed with IVDS during the appellate period; therefore, the Board shall consider rating the Veteran's lumbar spine disorder under Diagnostic Codes 5242 and 5243.

As Diagnostic Code 5242 contains successive criteria, the criteria for the lower rating must be met before a higher disability rating may be awarded.  A higher rating cannot be granted based on a finding that the Veteran's disability picture more nearly approximates the criteria for the next higher rating.  However, reasonable doubt regarding the presence of a criterion may be resolved in the Veteran's favor. Johnson v. Wilkie, 30 Vet. App. 245 (2018).

The General Rating Formula for Diseases and Injuries of the Spine, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, provides the following: A 40 percent rating is assigned for forward flexion of the thoracolumbar spine of 30 degrees or less; or, unfavorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a.  

Meanwhile, the Formula for Rating IVDS Based on Incapacitating Episodes provides the following: A 40 percent rating is assigned with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is assigned with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Id.  An incapacitating episode is defined by regulation as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id.

The current spine rating criteria instructs the Board to evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. See 38 C.F.R. § 4.71a, Note (1).

The current spine rating criteria provide specific values for range of motion of the cervical and thoracolumbar (thoracic and lumbar) spine.  For the thoracolumbar spine, normal range of motion on forward flexion is zero to 90 degrees; backwards extension, zero to 30 degrees; left and right lateral flexion, zero to 30 degrees; and, left and right lateral rotation, zero to 30 degrees. See 38 C.F.R. § 4.71a, Note (2) (see also Plate V).

It is not in serious dispute that on at least one occasion upon VA examination, the Veteran's lumbar spine disorder manifested in forward flexion of 30 degrees. See VA Examination ( Mar. 24, 2007 ), at Page 7.  This is a maximum rating for a service-connected lumbar spine disorder predicated upon measured range of motion.  Any higher rating would have to predicated upon ankylosis under the General Formula, or else upon longer periods of prescribed bed rest under the IVDS Formula. See 38 C.F.R. § 4.71a, Diagnostic Codes 5242, 5243.  As a result, the Board concludes that for his lumbar spine disorder only, the Veteran cannot be prejudiced by any finding that might otherwise fail to adequately describe effects of flare-ups. See Sharp v. Shulkin, supra.

Throughout the period on appeal, the Veteran has submitted to VA examinations of the spine in March 2007, August 2009, in December 2013, and in July 2019. See VA Examinations (Mar. 24, 2007; Aug. 28, 2009; Dec. 14, 2013; July 16, 2019).  There is no evidence of record to suggest that the Veteran has ever suffered from ankylosis at any time on appeal. See, e.g.: VA Exam (Dec. 14, 2013), at Question No. 13; (July 16, 2019), at Question No. 9. Moreover, the Veteran has not alleged that he suffered from ankylosis.  The Board accordingly concludes that there are no available higher ratings under the General Formula.  

Meanwhile, the Board acknowledges that there is some ambiguity as to when the Veteran was diagnosed with IVDS, see Medical Treatment Record (Aug. 28, 2009) (confirming a diagnosis of IVDS, but offering no commentary as to periods of prescribed bed rest); cf. VA Exam (Dec. 14, 2013), at Question No. 15 (denying IVDS).  Notwithstanding these discrepancies, the Board notes that in order to warrant a rating in excess of 40 percent at any time on appeal, the record must show evidence of incapacitating episodes having a total duration of at least six weeks during the previous 12 months. 38 C.F.R. § 4.71a.  The Board concludes that there is no evidence of the Veteran ever being subjected to prescribed bed rest at any time on appeal, let alone for more than six weeks in any given span of twelve months. See, e.g.: Medical Treatment Record (Apr. 15, 2007) (confirming that the Veteran has not suffered from any incapacitating episodes of the back within the previous twelve months); VA Exam (July 16, 2019), at Question No. 11 (confirming a diagnosis of IVDS, but denying any incapacitating episodes within the previous twelve months). Moreover, the Veteran has not alleged or reported such doctor prescribed bedrest.  As a result, the Board concludes that the Veteran is not entitled to a rating in excess of 40 percent for his lumbar spine disorder under the IVDS Formula. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991).

In addition to considering the orthopedic manifestations of a back disability, VA regulations also require that consideration be given to any associated objective neurologic abnormalities, which are to be evaluated separately under an appropriate diagnostic code.  The Board was instructed to administer an updated VA examination in order to ascertain whether these symptoms may apply. See BVA Remand (Oct. 9, 2018), at Remand Directive "F."  The examiner concluded that the Veteran's service-connected back injury is "far less than 50 percent probability" of resulting in bladder impairment or bowel impairment. See VA Exam (July 16, 2019), at Question No. 17.  There is no competent or credible evidence suggesting otherwise. The Board notes that the Veteran is already in receipt of separate ratings for left and right lower extremity radiculopathy. Therefore, the Board finds that, at no time during the appeal period, has the Veteran's lumbar spine degenerative disc disease resulted in neurological impairment.

Finally, the Board has considered the effects of repeated use over time and flare-ups along with the adequacy of the VA examinations in light of the Court's holdings in Correia and Sharp.  See Correia v. McDonald, 28 Vet. App. 158, 168 (2016), and Sharp v. Shulkin, 29 Vet. App. 26 (2017).  In this case, the VA examiners did not test the opposite joint; however, the spine does not have an opposite joint. As noted previously, Sharp is not for application at any time on appeal; Sharp pertains to the adequacy of examinations as they relate to range of motion findings, but range of motion findings would not be relevant because they cannot result in a higher rating than the currently assigned rating.  Moreover, while VA must in some circumstances consider functional impairment in addition to limitation of motion due to factors such as pain, weakness, premature or excess fatigability, and incoordination, DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995); 38 C.F.R. §§ 4.40, 4.45, such considerations do not apply where, as here, the Veteran is receiving the maximum schedular evaluation based on limitation of motion and a higher rating requires ankylosis. Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997).

Ultimately, the Veteran's claim was previously remanded so that the AOJ could administer one more examination and address possible bowel and bladder impairments. See BVA Remand (Oct. 9, 2018).  The Board concludes that this has taken place and that this examination is adequate. See VA Exam (July 16, 2019).  The Board ultimately concludes that there is no evidence of record to suggest manifestations of ankylosis or the requirement of bed rest for at least six weeks in a twelve-month period at any time. See 38 U.S.C. § 5103A(b); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required pursuant to Stegall).

Alternatively, the Board concludes that among the VA examinations of record as recounted above and the Veteran's voluminous medical history as available to the Board for appellate review, any perceived failure to afford the Veteran substantial compliance with all previous remand directives would not reasonably raise a likelihood of an entitlement to an increased rating.  There is no evidence suggesting any possible entitlement to higher ratings under Sharp, DeLuca, Mitchell, Correia, or otherwise as pertaining to range of motion.  Otherwise, at all times on appeal, i.e.: since October 31, 2006, the Veteran has received a maximum schedular rating for the thoracolumbar spine as predicated upon limitation of range of motionin this case, 40 percent.  Only findings of ankylosis or a requirement of at least six weeks in a twelve-month period due to IVDS could yield ratings in excess of 40 percent.  As a result, any perceived failure of substantial compliance would be predicated on a remand directive upon which there is no basis for remand. See Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.71a, Diagnostic Codes 5242. See also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law, not the evidence, is dispositive, the appeal should be terminated for lack of legal merit or entitlement).

Under these circumstances, further development would unnecessarily impose additional burdens upon the Board with no reasonable possibility of any benefit flowing to the Veteran. Soyini v. Derwinski, 1 Vet. App. 540 (1991); Stegall, supra. But cf. Snuffer, supra; Allday, supra.  Given the above, with respect to the service-connected lumbar spine disability, further examination or opinion is unnecessary.  See also Sabonis v. Brown, supra (holding that remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant are to be avoided).

In assessing the severity of the Veteran's residuals of his thoracolumbar spine disorder without ankylosis or IVDS, the Board has considered the competent lay assertions regarding symptoms experienced and observed.  See, e.g., Layno v. Brown, 6 Vet. App. 465, 470 (1994) and Grottveit v. Brown, 5 Vet. App. 91, 93 (1993).  However, the criteria needed to support higher ratings as the required medical findings that are within the province of trained medical professionals.  See Jones v. Brown, 7 Vet. App. 134, 137-138 (1994).  As such, the lay assertions are not considered more persuasive than the objective medical findings which, as indicated above, do not support assignment of any higher rating pursuant to any applicable criteria at any point pertinent to this appeal.

The Board has considered whether further staged rating under Hart, supra is appropriate; however, the Veteran is already in receipt of a staged rating to reflect adequate compensation throughout the period on appeal.  Therefore, assigning any further staged ratings beyond as already assigned is not warranted.  The Veteran and/or his agent has not raised any other issues, nor have any other issues been reasonably raised by the record in regard to the increased rating claim adjudicated herein.  Doucette v. Shulkin, 28 Vet. App. 366 (2017).

For the foregoing reasons, the Veteran's thoracolumbar spine disorder is already afforded a rating of 40 percent throughout the period on appeal.  A rating in excess of the above is not warranted.  As the preponderance of the evidence reflects that the Veteran's symptoms do not more nearly approximate the criteria for a rating higher than 40 percent at any time on appeal, the benefit of the doubt doctrine is not for application in this regard. The claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra.

2. Entitlement to a rating of 20 percent effective October 31, 2006, but no higher and no earlier, for residuals of a torn meniscus of the status-post left knee arthroscopy is granted.

3. Entitlement to a rating in excess of 10 percent at any time prior to August 21, 2009 or else since August 31, 2009 for residuals of a status-post left knee arthroscopy is denied.

The Veteran generally contends that higher ratings are warranted for his left knee disorder.  His left knee has been rated as 10 percent disabling under Diagnostic Codes 5003-5260 since October 31, 2006, except for a period of temporary total disability from August 21, 2009 to August 31, 2009.  This "built-up" Diagnostic Code reflects the rater's attempt to arrive at the best criteria for rating a disability which does not specifically appear in the rating schedule. 38 C.F.R. § 4.27.  Diagnostic Code 5003 refers to degenerative arthritis and is rated based upon limitation of motion of the affected part (in this case, for the Veteran's left knee; more specifically, due to impairment of flexion [Diagnostic Code 5260]).

Disabilities of the knee are rated under Diagnostic Codes 5256 to 5263. 38 C.F.R. § 4.71a.

Diagnostic Code 5260 provides that flexion of the leg 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.

Diagnostic Code 5261 provides that extension of the leg limited to 45 degrees warrants a 50 percent rating; extension limited to 30 degrees warrants a 40 percent rating; extension limited to 20 degrees warrants a 30 percent rating; extension limited to 15 degrees warrants a 20 percent rating; extension limited to 10 degrees warrants a 10 percent rating; extension limited to 5 degrees warrants a zero percent (noncompensable) rating. 38 C.F.R. § 4.71a.

For comparison, normal range of motion of the knee is from zero degrees of extension to 140 degrees of flexion. See 38 C.F.R. § 4.71, Plate II. A 10 percent rating can also be assigned for the knee joint if there is painful motion without compensable limitation of motion. 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5003; see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that the applicability of 38 C.F.R. § 4.59 is not limited to arthritis claims).

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. 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. 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.

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).

Ratings can also be assigned for impairment of the tibia or fibula, removal of semilunar cartilage, genu recurvatum, or ankylosis of the knee. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5259, 5262, 5263. As an initial matter, the Board notes that the evidence in this case does not reflect and the Veteran does not allege that he has tibia or fibula impairment, genu recurvatum, or ankylosis. As such, those diagnostic codes are not for application.

The Board concludes that the evidence of record suggests that the Veteran's left knee has been subject to locking throughout the period on appeal. See VA Examination (Mar. 24, 2007), at Page 15 ("Locking episodes: daily or more often"); VA Exam (Mar. 15, 2017), at Question No. 8a (endorsing meniscal tear, and frequent episodes of joint "locking," pain, and effusion); VA Exam (July 16, 2019), at Question No. 8a (endorsing meniscal tear, and frequent episodes of joint "locking," pain, and effusion).  The Board accordingly determines that entitlement to a 20 percent rating is warranted throughout the period on appealin this case, effective October 31, 2006. 38 C.F.R. § 4.71a, Diagnostic Code 5258.  This is the maximum schedular rating under this Diagnostic Code unless other applicable Diagnostic Codes might apply to the Veteran's claim for his left knee. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law, not the evidence, is dispositive, the appeal should be terminated for lack of legal merit or entitlement).

In the Veteran's case, his left knee was previously only rated under Diagnostic Code 5003-5260 throughout the period on appeal.  The Veteran's claim was remanded in October 2018 in order to address allegations of increasingly severe symptomatology since the last examination, and to obtain statements adequately addressing flare-ups in accordance with Sharp v. Shulkin.  Upon examination in July 2019, the examiner concluded that there is no evidence of subluxation or instability, and there is no other competent or credible evidence otherwise within the Veteran's claims file.  

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.

With regards to limitation of flexion under Diagnostic Code 5260, the Board notes that flexion measured 70 degrees, at worst, during the appeal period. The Veteran's range of motion of the left knee was observed at between zero and 90 degrees in flexion. See VA Exam (July 16, 2019), at Question No. 3a.  The examiner further opined that in the event of a flare-up, the Veteran's left knee could be further limited by as much as 20 degrees. See id. at Question No. 3d. 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.  The Board accordingly concludes that even if the Veteran's left knee is limited to 70 degrees in flexion due to a most severe flare-up, the Veteran's separate 10 percent rating adequately compensates him for this residual.  In fact, the Veteran's left knee would have to be limited to 30 degrees or less in flexion in order to warrant a rating in excess of 10 percent, see 38 C.F.R. § 4.71a, Diagnostic Code 5258, and there is simply no competent or credible evidence to suggest that this applies to the Veteran.  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.

The Board has considered whether there is any other schedular basis for further granting the above claim but has found none. The Board recognizes that it is the intent of the rating schedule to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. In this case, the Veteran is already assigned a 10 percent rating for his left knee under Diagnostic Code 5003-5260, which is the minimum compensable rating allowable for the knee joint, and is now afforded an additional 20 percent rating for his left knee under Diagnostic Code 5258, which is the maximum compensable rating for residuals of a torn meniscus with frequent joint "locking," pain, and effusion. 38 C.F.R. § 4.71a.

To the extent that the Veteran and contends that his left knee disorders are more severe than currently evaluated during any period on appeal, the Board observes that the Veteran, while competent to report symptoms, is not competent to report that his knee disabilities are of sufficient severity to warrant higher evaluations under VA's rating schedule because such an opinion requires medical expertise (training in evaluating musculoskeletal impairment), which he has not been shown to possess. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002); 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 however notes in passing that to the extent that the Veteran has claimed that he was entitled to higher ratings throughout the period on appeal, the Veteran is now in receipt of a separate 20 percent rating under Diagnostic Code 5258; therefore, the Board did not impugn the Veteran's credibility.

The Board has considered whether a staged rating under Hart, supra is appropriate; however, the Board finds that the remainder of his symptomatology has been stable throughout the appeal. Therefore, assigning a staged rating is not warranted.  Further, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, with regard to such claim.  Doucette v. Shulkin, supra.

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For all the foregoing reasons, the Board awards a separate 20 percent rating for joint locking, pain, and effusion due to a torn meniscus of the service-connected left knee throughout the appeal period.  However, there is no basis for any higher or separate rating at any point during the period on appeal, beyond that (under Diagnostic Code 5258) and the 10 percent rating under Diagnostic Code 5003-5260 that the Veteran already receives.  As the preponderance of the evidence is against a higher or separate rating, the benefit-of-the-doubt rule does not apply and the claim must be denied. 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	Michael B. Engle, 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.