Citation Nr: 21027463 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 16-02 599 DATE: May 5, 2021 ORDER Prior to June 26, 2017, entitlement to a rating in excess of 10 percent for a left knee disability based on limitation of motion is denied. From April 28, 2011 to June 26, 2017, entitlement to a separate 10 percent rating for left knee instability is granted. From April 28, 2011, an initial rating of 10 percent, but no higher, for right hip limitation of motion is granted. From April 28, 2011, a maximum schedular 10 percent rating for right hip limitation of adduction is granted. FINDINGS OF FACT 1. Prior to June 26, 2017, the Veteran's left knee disability more closely approximated limitation of extension to 10 degrees and limitation of flexion greater than 60 degrees. 2. From April 28, 2011 to June 26, 2017, the Veteran's left knee disability more closely approximated mild instability, but not moderate or severe instability. 3. From April 28, 2011, the Veteran's right hip disability was manifested by painful flexion. 4. From April 28, 2011, the Veteran's right hip disability was manifested by an inability to cross the legs. CONCLUSIONS OF LAW 1. Prior to June 26, 2017, the criteria for a rating in excess of 10 percent for left knee limitation of motion are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5010, 5260, 5261. 2. From April 28, 2011 to June 26, 2017, the criteria for a separate 10 percent rating for mild left knee instability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5257. 3. From April 28, 2011, the criteria for an initial rating of 10 percent, but no higher, for right hip limitation of motion are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DCs 5251, 5252. 4. From April 28, 2011, the criteria for a separate 10 percent rating for right hip limitation of adduction are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5253. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from February 1967 to August 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from July 2012 and August 2014 rating decisions by an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). In December 2018, the Veteran testified at a videoconference hearing before the undersigned. In June 2019, the Board issued a decision and remand in this appeal. That decision was implemented by a September 2019 rating decision by the AOJ. In August 2020, the AOJ issued a rating decision that granted service connection for a right knee disability and a left hip disability. Thus, these issues are no longer before the Board. The Veteran may consult with his attorney if he wishes to seek a higher initial rating or seek an earlier effective date of service connection. 1. Prior to June 26, 2017, entitlement to a rating in excess of 10 percent for a left knee disability based on limitation of motion is denied. 2. From April 28, 2011 to June 26, 2017, entitlement to a separate 10 percent rating for left knee instability is granted. The Board remanded this matter to obtain an addendum opinion as to the historical severity of the Veteran's left knee disability prior to June 2017, i.e., the date of his left knee replacement. See June 2019 Board Decision and Remand at 23. An adequate medical opinion was secured in June 2020. The musculoskeletal rating criteria were amended during the pendency of this appeal. However, these changes do not affect the rating of the Veteran's knee disability, as these criteria are effective going forward from February 2021, and there is no relevant evidence of record dated after February 2021. During the period on appeal, the Veteran is in receipt of a 10 percent rating for his left knee disability pursuant to DC 5010-5261 (posttraumatic arthritis rated as limitation of extension). The period on appeal is from April 28, 2011 to June 26, 2017, plus the one-year lookback period. Under DC 5261, a 10 percent rating is warranted where knee extension is limited to 10 degrees. A 20 percent rating is warranted where extension is limited to 15 degrees. Higher ratings are warranted for more severe limitation of extension. Under DC 5260 (limitation of flexion) a zero percent rating is warranted where flexion is limited to 60 degrees. A 10 percent rating is warranted where flexion is limited to 45 degrees. Higher ratings are warranted for more severe limitation of flexion. Under DC 5257 (recurrent instability or subluxation), a 10 percent rating is warranted for mild instability. A 20 percent rating is warranted for moderate instability. A maximum schedular 30 percent rating is warranted for severe instability. The June 2020 examiner noted severe left knee ostearthritis prior to replacement and stated that the range of motion noted in the May 2012 examination report was probably erroneous, as it contradicted with physical therapy findings. The examiner noted that left knee limitation of flexion to 90 degrees was noted at the June 2012 physical therapy appointment. The Veteran submitted a July 2020 private examination report. However, this is report is not probative with respect to the Veteran's left knee symptoms prior to June 26, 2017, and the Board has already assigned a rating based on the Veteran's post-surgical residuals. Additionally, the May 2012 VA examination report notes left knee extension limited to 10 degrees. The May 2012 examiner noted no reported flare-ups. A May 27, 2011 VA treatment note indicates that the Veteran was prescribed a knee brace to stabilize and provide support to the left knee. Here, the evidence shows that the Veteran's left knee disability does not more closely approximate the criteria for a rating in excess of 10 percent during the appeal based on limitation of motion. The most severe limitation of extension noted is 10 degrees, commensurate with a 10 percent rating. No compensable limitation of flexion was noted, and flexion is in the same plane of motion as extension and thus a simultaneous rating cannot be assigned for both flexion and extension based on additional factors of disability without resulting in impermissible pyramiding. See Lyles v. Shulkin, 29 Vet. App. 107 (2017). However, a separate 10 percent rating is warranted for mild instability. In this regard, while no examiner noted objective instability, a May 2011 VA treatment note shows prescription of a knee brace for stability. The Board finds that this is equivalent to mild instability. More severe instability would be commensurate with objective instability on testing. Resolving reasonable doubt in favor of the Veteran, this 10 percent rating is warranted from the April 28, 2011 date of claim. An earlier effective date is not warranted as instability is not shown during the one-year lookback period prior to the date of claim. 3. From April 28, 2011, an initial rating of 10 percent, but no higher, for right hip limitation of motion is granted. 4. From April 28, 2011, a maximum schedular 10 percent rating for right hip limitation of adduction is granted. The Board remanded this matter to ensure that all necessary testing was conducted. This was competed in June 2020. Additionally, the Veteran submitted a July 2020 private examination report. The musculoskeletal rating criteria were amended during the pendency of this appeal. However, the hip rating criteria were not amended, and thus this appeal is not affected. The Veteran is in receipt of a 10 percent rating under DC 5252 (limitation of flexion of the hip) for a right hip disability from June 9, 2014. Prior to that he is in receipt of a noncompensable rating under DC 5299-5252 (other musculoskeletal disability rated as limitation of flexion of the hip). The period on appeal is from April 28, 2011, the date of claim, plus the one-year lookback period. Under DC 5252, a 10 percent rating is warranted for limitation of flexion of the thigh to 45 degrees. A 20 percent rating is warranted for limitation of flexion to 30 degrees. Higher ratings are warranted for greater limitation of flexion. Under DC 5251, a maximum schedular 10 percent rating is warranted for limitation of extension to 5 degrees. Under DC 5253, a 10 percent rating is warranted where there is limitation of adduction that precents crossing legs. Alternately, a 10 percent rating is warranted for limitation of rotation of the thigh where a veteran cannot toe out more than 15 degrees. Or, a 20 percent rating is warranted for limitation of abduction with motion lost beyond 10 degrees. Here, the July 2020 private examination report is the most favorable evidence of record. Thus, the Board will focus on thus examination report to ensure that the Veteran is afforded every benefit. In this regard, examinations prior to 2020 are not probative as not all necessary testing was performed, and there is no reason to prefer the June 2020 VA examination over the July 2020 private examination. The July 2020 examination report shows limitation of extension to zero degrees after repetitive use testing and limitation of flexion to 80 degrees. This is consistent with a 10 percent rating based on limitation of extension. The Veteran does not meet the criteria for a separate compensable rating based on limitation of flexion, even after considering additional factors of disability. Moreover, as the Veteran's limitation of extension is based on additional factors of disability, a simultaneous rating for limitation of flexion based on additional factors of disability may not be granted without pyramiding of disabilities. However, this 10 percent rating is warranted from April 28, 2011, the date of claim. While the AOJ granted service connection for a compensable rating effective June 2014, the Veteran was already in receipt of a noncompensable rating for his right pubic ramus fracture. Additionally, a 10 percent rating for limitation of adduction under DC 5253 is warranted from April 28, 2011, as the evidence shows that the Veteran is unable to cross his legs. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D.M. Badaczewski, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.