Citation Nr: 21031115 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 17-14 898 DATE: May 20, 2021 ORDER 1. Entitlement to a disability rating in excess of 20 percent prior to April 21, 2015 for left knee traumatic arthritis with limitation of flexion is denied. 2. Entitlement to a compensable disability rating prior to April 21, 2015 for left knee traumatic arthritis with limitation of extension is denied. 3. Entitlement to a disability rating in excess of 10 percent prior to April 21, 2015 for left knee instability is denied. FINDINGS OF FACT 1. Prior to April 21, 2015, the Veteran's left knee disability resulted in flexion functionally limited to 30 degrees. 2. Prior to April 21, 2015, the Veteran's left knee disability resulted in extension functionally limited to 5 degrees. 3. Prior to April 21, 2015, the Veteran had instability of the left knee that was no more than slight. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 20 percent prior to April 21, 2015 for left knee traumatic arthritis with limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260. 2. The criteria for a compensable disability rating prior to April 21, 2015 for left knee traumatic arthritis with limitation of extension have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5261. 3. The criteria for a disability rating in excess of 10 percent prior to April 21, 2015 for left knee instability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1983 to March 1985. The Department of Veterans Affairs (VA) is grateful for his service. The appeal initially originated from a June 2013 VA Regional Office (RO) decision addressing a claim for increased rating for right knee disability. The Veteran was hospitalized for a left total knee replacement on April 21, 2015. The total knee replacement effectively closed out the previous left knee ratings under the diagnostic codes pertaining to the knees and his left knee was then rated under Diagnostic Code (DC) 5055, effective the date of the total knee replacement. As such, the issues pertaining to the left knee have been characterized as set forth above. The Board of Veterans' Appeals (Board) by an April 2019 decision denied the above-listed claims for increased ratings for left knee disabilities prior to April 21, 2015. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In April 2020, the Veteran and VA's Office of General Counsel filed a Joint Motion for Partial Remand (Joint Motion), in which both parties to the Joint Motion, in pertinent part, requested that the Court vacate and remand the Board's April 2019 decision with respect to the issues concerning higher disability ratings for the Veteran's left knee disabilities prior to April 21, 2015. The Board then remanded these issues in December 2020 for additional development, and they now return to the Board for further review. (An issue of entitlement to an earlier effective date for service connection for right lower extremity femoral nerve radiculopathy, while also denied by the Board and then vacated by the Joint Motion in April 2020, was resolved with an earlier effective date grant by the Board in its December 2020 decision.) Increased Rating Disability ratings are determined by application of the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Because varying, distinct degrees of disability may have been experienced over the course of the claim, the rating may be "staged" higher or lower for segments of time during the period under review in accordance with such variations. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Id. at 505. Also, separate ratings for distinct disabilities resulting from the same injury or disease can be assigned so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. See Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009). However, the evaluation of the same disability or its manifestations under various diagnoses, which is known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. The primary concern in a claim for an increased evaluation for service-connected disability is the present level of disability over the rating period in question. While the entire recorded history of a disability is important for more accurate evaluations, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 1. Entitlement to a disability rating in excess of 20 percent prior to April 21, 2015 for left knee traumatic arthritis with limitation of flexion 2. Entitlement to a compensable disability rating prior to April 21, 2015 for left knee traumatic arthritis with limitation of extension 3. Entitlement to a disability rating in excess of 10 percent prior to April 21, 2015 for left knee instability The ratings at issue herein are those assigned for the left knee prior to that date (which is the date he underwent a total left knee replacement). Prior to April 21, 2015, the Veteran was in receipt of a 20 percent rating for left knee limitation of flexion, a 10 percent rating for left knee instability, and a noncompensable rating for left knee limitation of extension. The Veteran asserts that his knee disabilities warrant ratings in excess of those assigned. The Board herein determines that higher ratings are not warranted and denies the claims for higher ratings. Under Diagnostic Code DC 5260, which contemplates limitation of leg flexion, a 0 percent rating is warranted for flexion limited to 60 degrees; a 10 percent rating is warranted for flexion limited to 45 degrees; a 20 percent rating is warranted for flexion limited to 30 degrees; and a 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. Under DC 5261, which contemplates limitation of extension of the leg, a 0 percent rating is warranted for extension limited to 5 degrees; a 10 percent rating is warranted for extension limited to 10 degrees; a 20 percent rating is warranted for extension limited to 15 degrees; a 30 percent rating is warranted for extension limited to 20 degrees; a 40 percent rating is warranted for extension limited to 30 degrees; and a 50 percent rating is warranted for extension limited to 45 degrees. 38 C.F.R. § 4.71a, DC 5261. Under DC 5257, which pertains to recurrent subluxation or lateral instability of the knee, slight recurrent subluxation or lateral instability is rated as 10 percent disabling. Moderate recurrent subluxation or lateral instability is rated as 20 percent disabling. Severe recurrent subluxation or lateral instability is rated as 30 percent disabling. 38 C.F.R. § 4.71a, DC 5257. VA treatment records within the claim period prior to the Veteran's knee replacement in April 2015 generally reflect full range of motion but with pain upon motion. A February 2012 treatment noted that the left knee exhibited no erythema, mild effusion and swelling superior to the joint, crepitus, and mild pain on passive range of motion. An August 2012 treatment noted that the left knee was stable with no significant joint line tenderness, with range of motion from 0 to 120 degrees, stability to varus and valgus stress, and the knee neurovascularly intact distally. A March 2013 treatment noted absence of effusion or erythema, but pain present at 75 degrees flexion. (While the treatment record says 75 degrees extension, this is clearly a misstatement, since the contemporaneous VA examination in May 2013 found pain at 75 degrees flexion and other records do not reflect such a degree of limitation of extension). An August 2013 treatment shows the Veteran had full active and passive range of motion with flexion, extension, and internal and external rotation, but with pain present upon each of these motions. Upon VA examination in May 2013, the examiner diagnosed the Veteran with left knee degenerative joint disease. The Veteran reported having four knee scopes following an injury in service. He reported he wore a brace daily. He denied any flare-ups. During the examination, the Veteran's range of motion for his left knee was documented as flexion to 90 degrees with pain at 75 degrees. His left knee extension was to 5 degrees with no painful motion documented. Upon repetitive use testing, flexion was to 100 degrees and extension remained at 5 degrees. Functional loss in the left knee included less movement than normal, incoordination, pain on movement, swelling, disturbance of locomotion, and interference with sitting, standing, and weight-bearing. The examiner noted that joint stability testing could not be performed due to too much pain with stress maneuver testing. However, the examiner reported that the Veteran did not have any objective evidence of recurrent patellar subluxation/dislocation. The Veteran had full muscle strength with both flexion and extension and no muscle atrophy. Upon a VA orthopedic surgery consultation in June 2013, the Veteran complained of pain extending on the left side from the hip down to the medial knee and to the lateral two toes of the foot. The clinician did not indicate that this reflected knee disability, but rather noted that an MRI of the back showed lateral recess stenosis. The clinician did note the presence of advanced arthritis in the left knee. The Veteran was reported to walk with a cane "even around the house" due to knee instability. However, the Veteran did not report falls due to instability and the clinician did not otherwise address the severity of instability. Upon a February 2021 retrospective records-based examination addressing the knee for disability prior to total knee replacement in April 2015, the examiner noted severe degenerative changes shown on x-rays in August 2014, though without significant interval changes from prior scans in November 2013. The Veteran was noted to have initially been scheduled for a left knee replacement in December 2012, but he postponed the operation for several unrelated reasons. The examiner noted the May 2013 examination findings were reviewed. The February 2021 examiner estimated that the Veteran's left knee range of motion was the same for active, passive, weight-bearing and non-weight-bearing conditions. (While the examiner listed these estimates as for the right knee, this was clearly a misstatement because it followed a description of left knee findings, and the examiner subsequently noted that the right knee was asymptomatic and provided other findings for the right knee distinct from those just stated regarding active, passive, weight-bearing and non-weight-bearing conditions (attributed to the left knee).) The Board finds that the February 2021 examiner's retrospective opinion substantially complied with the Board's December 2020 remand directives, as the examiner estimated the Veteran's range of motion in active, passive, weight-bearing and nonweight-bearing for both the left knee and the right knee. He also addressed whether the Veteran experienced recurrent subluxation and/or lateral instability and its severity. Accordingly, the Board accords high probative value to the examiner's findings and conclusions. In short, the weight of the evidence including treatment records from the time interval in question, and the Veteran's reported symptoms at that time, are generally consistent with and supportive of the findings of the May 2013 examiner and the estimations of the February 2021 retrospective examiner. These reflect severe arthritis in the knee manifested by limitation of motion principally due to pain with motion, with motion including consideration of pain and impact on functioning equivalent to no more than limitation of flexion to 30 degrees, thus warranting the already assigned 20 percent rating for arthritis of the knee with limitation of flexion. The weight of the evidence reflects that arthritis with pain was not shown to significantly affect limitation of extension beyond the 5 degrees reduction of extension observed in May 2013, with painless extension. Additional limitations of flexion and extension with prolonged or repetitive use were not shown, and flare-ups were not reported. Hence the preponderance of the evidence is against assignment of higher rating for limitation of flexion than the 20 percent assigned and is against assignment of higher rating for limitation of extension than the zero percent assigned under DCs 5260 and 5261, respectively, with the preponderance of the evidence against in each case. The actual measured limitation of flexion was in the zero percent disability range and identified pain onset with flexion did not begin until 75 degrees, also reflecting a noncompensable limitation of flexion under DC 5260. The assigned 20 precent rating for limitation of flexion is an equivalence for the recognized limitation of functioning as reported by the Veteran, including due to pain with motion and use of the knee resulting in reported limited standing, sitting, and walking due to knee pain. These impairments are appropriately compensated by the ratings assigned. The Veteran had full muscle strength with flexion and extension and no atrophy, which is evidence against severe muscle weakness to warrant a higher rating. Staged ratings have been considered, but the record does not support the presence of distinct intervals of higher levels of disability for arthritis with limitation of flexion or for limitation of extension than those assigned for the rating period interval prior to April 21, 2015, with the preponderance of the evidence against. Hart, 21 Vet. App. at 509-510. As to instability, the examiner found that the Veteran did not have lateral subluxation or instability. The examiner noted that the Veteran's complaints involving the left knee were consistently of pain during the 2013-2015 period. The examiner recognized that the Veteran had been issued a brace for his knee on October 19, 2009 and noted that the brace prescribed was a "Medial Bledsoe Thruster Knee Orthosis" and was also prescribed a lateral heel lift at the same time. The examiner explained the purpose of these interventions was to take pressure off the medial aspect of his knee, where the most significant arthritis was. He further explained this was done to forestall the need for total knee replacement and not because of any instability. The examiner's finding is supported by the facts. First, the Board notes that the Veteran was seen regularly for left knee pain during the appeal period prior to the knee replacement surgery, and while he consistently reported pain, he was not reporting instability in his left knee. When the knee brace was prescribed on October 19, 2009, the examiner documented contemporaneously that the anterior drawer sign was negative. The left knee was examined again in December 2009, and was found to be stable to varus/valgus and Lachman's testing. An August 2012 VA treatment record shows that the Veteran was seen for his left knee pain. The examiner evaluated the Veteran's knee for stability and found that it was stable to varus/valgus stress. The VA treatment records between the August 2012 record and the Veteran's left knee replacement in April 2015, do not document either the Veteran reporting instability in his left knee or a medical professional documenting clinical findings of instability or subluxation of the left knee. The Board notes that the need to use a cane does not of itself reflect more than slight instability, since any amount of instability may result in a perception of lack of complete stability and cause an individual to use a cane for a greater sense of security when standing or walking. The Veteran's authorized representative in an April 2021 statement argued that this June 2013 orthopedic surgery consultation note indicated a greater severity of instability, warranting "at least" 30 percent for left knee instability for the rating interval that is the subject of the appeal. However, the Board notes that the 30 percent rating is the maximum rating under applicable Diagnostic Code 5257 for "severe" instability, which the preponderance of the evidence is against such level of severity, notwithstanding the Veteran's report at the June 2013 orthopedic surgery visit that he used a cane even around the house. The representative also then called attention to the May 2013 VA examiner's inability to test the Veteran's knee for instability due to knee pain. However, the medical record does not indicate that the Veteran's left knee pain is due to instability, and rather indicates that the pain is due to arthritis, for which the Veteran is separately rated including based on pain and limitation of flexion. While the representative would seek to ascribe pain in the knee as an indicator of instability, such a question is beyond lay competence, and no medical evidence has been presented to support this speculative assertion. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Absent medical support, the Board will not attribute as a sign of instability pain in the knee which has already been attributed by examiners and treating clinicians to the Veteran's knee arthritis. Additionally, to attribute the Veteran's arthritic knee pain as a basis for rating under Diagnostic Code 5257 for instability would amount to impermissible pyramiding, or rating the same disability under multiple diagnostic codes. 38 C.F.R. § 4.14. The Board observes that the Veteran did not report falls or impaired functioning due to instability in the course of treatment or upon examination prior to his knee replacement in April 2015, nor did he report anxiety and fearfulness about falls associated with instability during that interval. Rather, his complaints in the interval were primarily focused on pain and limited functioning including limited stand, sitting, and walking due to knee pain. The Board has considered the Veteran's use of a knee brace and a cane prior to April 2015, but finds that, absent other documentation of more significant impairment due to knee instability, the evidence preponderates against the Veteran having more than slight instability in the left knee prior to April 21, 2015. The Board has considered staged ratings but does not find evidence to support intervals of greater instability so as to support staged ratings prior to April 21, 2015. Because the preponderance of the evidence is against the claims for higher ratings for left knee disabilities other than those assigned for the rating interval prior to April 21, 2015, the benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102 (2019); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Schechter 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.