Citation Nr: 21029321 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 16-37 646 DATE: May 13, 2021 ORDER Entitlement to an initial rating in excess of 20 percent for left knee instability prior to May 26, 2015 is denied. REMANDED The claim of entitlement to service connection for a lumbar spine disability is remanded. The claim of entitlement to a compensable rating for left knee instability since May 26, 2015 is remanded. The claim of entitlement to an initial rating in excess of 10 percent for left knee strain is remanded. The claim of entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability is remanded. FINDING OF FACT At no time during the appeal period prior to May 26, 2015, was the Veteran's left knee disability manifested by severe recurrent subluxation or severe lateral instability. CONCLUSION OF LAW The criteria for a disability rating higher than 20 percent for left knee laxity prior to May 26, 2015 were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from June to August 2009. He also served in the U.S. Navy Reserve until August 2012. This matter comes to the Board of Veterans' Appeals (Board) on appeal of a rating decision by a U.S. Department of Veterans Affairs (VA) Regional Office (RO). In September 2019, the Board remanded the claims on appeal for additional development. The case is again before the Board for appellate review. The TDIU claim is on appeal as well because it is part and parcel of the claims of entitlement to higher ratings for knee disability. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to an initial rating in excess of 20 percent for left knee instability prior to May 26, 2015 Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, 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. The Veteran is appealing the original assignment of a disability evaluation following an award of service connection for left knee laxity. As such, it is not the present level of disability which is of primary importance, but rather the entire period is to be considered to ensure that consideration is given to the possibility of staged ratings; that is, separate ratings for separate periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran contends that he is entitled to a higher rating for his service-connected left knee disability. The left knee disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5257, for other impairment of the knee. Under Diagnostic Code 5257, a 10 percent rating is warranted for slight recurrent subluxation or lateral instability. A 20 percent rating is warranted for moderate recurrent subluxation or lateral instability. A 30 percent rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The words slight, moderate, and severe are not defined under DC 5257. According to MERRIAM WEBSTER'S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), "slight" means small in amount. "Moderate" means limited in scope or effect. "Severe" means very painful or harmful or of a great degree. Objective medical evidence is not required to establish lateral knee instability under Diagnostic Code 5257, so objective medical evidence cannot be categorically found more probative than lay evidence with respect to this Diagnostic Code. See English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). In support of his claim, the Veteran submitted an Independent Medical Examination date March 9, 2015, which notes that examination of the left knee revealed moderate laxity of the lateral collateral ligament and mild laxity of the anterior cruciate ligament. VA treatment records indicate that x-ray of the left knee showed that the bones and joints of the left knee were intact without evidence of fracture, dislocation, or osseous mass lesion. No degenerative changes were appreciated. The soft tissues were well maintained, and no soft tissue swelling was noted. As the record is limited to this evidence during the relevant time period, a preponderance of the evidence is against a rating in excess of 20 percent for left knee laxity prior to May 26, 2015. Although the private medical opinion did not provide numeric findings, the examiner noted moderate laxity of the lateral collateral ligament. Overall, the medical evidence indicates that the Veteran's left knee laxity does not more nearly approximate severe instability. The Board has also considered the other Diagnostic Codes pertaining to the knee and leg. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). In this case, prior to May 25, 2015, there is no evidence of malunion of the tibia and fibula. As such, an increased rating is not warranted under Diagnostic Code 5262. The Board notes that a separate 10 percent rating has been assigned for the Veteran's left knee disability on the basis of limitation of flexion; as this issue is being remanded, the Board will address whether an increase is warranted on the basis of limitation of flexion, limitation of extension, and ankylosis when it is returned to the Board after additional development is completed. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for a rating in excess of 20 percent for left knee laxity prior to May 2015. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 1. Entitlement to service connection for a lumbar spine disability As noted above, in September 2019, the Board remanded the case for additional development. With respect to the Veteran's lumbar spine, the Board directed that the Veteran be scheduled for a VA examination to determine the etiology of any low back/spine disorder. The Board specifically directed, In rendering this opinion, the VA examiner should address whether the Veteran's in-service duties in his military occupational specialty (MOS) as a construction mechanic in the Navy and Navy Reserve from 2004 to 2012 caused low back pain to develop over time from the type of work duties he engaged in and from repetitive basic training exercises such as sit-ups. The Veteran underwent VA examination in January 2020 at which time he was diagnosed as having degenerative arthritis of the spine. The examiner opined that the Veteran's lumbar spine disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. Unfortunately, the examiner did not address whether the Veteran's in-service duties in his military occupational specialty (MOS) as a construction mechanic in the Navy and Navy Reserve from 2004 to 2012 caused low back pain to develop over time from the type of work duties he engaged in and from repetitive basic training exercises such as sit-ups. As there was not substantial compliance with the Board's remand directive, an additional opinion is required. 2. Entitlement to a compensable rating for left knee instability since May 26, 2015 3. Entitlement to an initial rating in excess of 10 percent for left knee strain VA treament record dated in January 2020 indicates that the Veteran stated that he had an upcoming appointment with a non-VA provider for his knee. As the Veteran identified relevant outstanding private treatment records, a remand is required to allow VA to obtain authorization and request these records. 4. Entitlement to a TDIU Finally, because a decision on the remanded issues could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined. As such, a remand of the TDIU issue is required. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for the non-VA provider identified in the January 2020 VA record. 2. Send the Veteran the appropriate notice as to how to substantiate his request for a TDIU, and send him a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, for completion. 3. Obtain an addendum opinion from an appropriate examiner regarding whether the Veteran's current lumbar spine disorder at least as likely as not had its onset during service or is in any way related to his service. In rendering this opinion, the VA examiner should address whether the Veteran's in-service duties in his military occupational specialty (MOS) as a construction mechanic in the Navy and Navy Reserve from 2004 to 2012 caused low back pain to develop over time from the type of work duties he engaged in and from repetitive basic training exercises such as sit-ups. (Continued on the next page) 4. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to a TDIU. C. J. McEntee Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Olson, Patricia 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.