Citation Nr: 21042795 Decision Date: 07/14/21 Archive Date: 07/13/21 DOCKET NO. 16-34 760 DATE: July 14, 2021 ORDER Entitlement to service connection for a left knee disability, to include strain and degenerative joint disease (DJD), is granted. For the entire period on appeal, entitlement to a rating of 20 percent, but no higher, for right knee instability is granted. For the entire period on appeal, a rating greater than 10 percent for symptomatic semilunar cartilage of the right knee is denied. For the entire period on appeal, entitlement to a rating of 20 percent, but no higher, for limitation of flexion of the right knee is granted. FINDINGS OF FACT 1. The Veteran's left knee disability is etiologically related to his time in active service. 2. For the entire period on appeal, the Veteran's right knee condition was manifested by moderate instability; it was not manifested by severe instability. 3. For the entire period on appeal, the Veteran's right knee disability has manifested by symptomatic removal of the semilunar cartilage and flexion limited to 40 degrees. CONCLUSIONS OF LAW 1. The criteria to establish service connection for a left knee disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. For the entire period on appeal, the criteria for a 20 percent rating for recurrent right knee instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257 (in effect prior to February 7, 2021). 3. For the entire period on appeal, the criteria for a rating greater than 10 percent for symptomatic removal of right knee semilunar cartilage were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5258, 5259. 4. For the entire period on appeal, the criteria for a 20 percent rating for right knee limitation of flexion were approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1998 to June 2002. He appealed an August 2013 rating decision by the Agency of Original Jurisdiction (AOJ) which granted service connection for a right knee disability and denied service connection for a left knee disability. In a January 2019 decision, the Board denied the Veteran's claims. The Veteran appealed that denial to the Court of Appeals for Veterans Claims (Court). In November 2019, the Court granted a Joint Motion for Partial Remand (JMPR) filed by representatives for both parties and remanded the claims to the Board for further proceedings consistent with the JMPR. The appeals were remanded by the Board in May 2020 and December 2020 for additional development. As noted in the December 2020 remand, VA attempted to obtain records from Ridgecrest Regional Hospital. However, in a June 2020 statement, the Veteran reported that those records no longer exist and that he had submitted the only records in existence from that provider. Thus, the duty to assist has been fulfilled with respect to this matter. 1. Service Connection Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran is diagnosed with left knee strain and minimal DJD. See July 2013 and February 2021 examination reports. The Veteran's service treatment records document no specific reports of left knee complaints or injuries. However, the Veteran has reported that he had left knee pain during and since service. See October 2012 statement and July 2018 VA medical record noting reported history. As to nexus evidence, there are conflicting opinions. Opinions obtained by VA in July 2013, September 2020, and February 2021 concluded that the Veteran's left knee disability was not related to service based on the absence of in-service records corroborating any left knee problems. In a March 2020 statement, Dr. M.Y. opined that the Veteran's left knee problems began with his years in service. The Board has the responsibility of weighing conflicting medical opinions and may place greater weight on one physician's opinion over another depending upon factors such as reasoning employed by the physicians and the extent to which they reviewed prior clinical records and other evidence. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (stating that factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion). The Board acknowledges that Dr. M.Y.'s March 2020 opinion does not contain a detailed rationale, but did account for the Veteran's reported history. However, the July 2013, September 2020, and February 2021 negative opinions discounted the Veteran's lay testimony in the absence of corroborating medical records. Given these facts, the Board finds that the evidence is at least in equipoise as to whether the Veteran's left knee disability is related to active service. Resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran's left knee disability originated during service. Accordingly, service connection for a left knee disability, to include strain and DJD, is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Increased Rating Disability evaluations are determined by the application of a schedule of ratings based on average impairment in earning capacity. 38 U.S.C. § 1155. Percentage evaluations are determined by comparing the manifestations of a particular disorder with the requirements contained in the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. In cases where the original rating assigned is appealed, consideration must be given to whether a higher rating is warranted at any point during the appeal period. Fenderson v. West, 12 Vet. App. 119 (1999). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Knee disabilities are generally rated under Diagnostic Codes (DC) 5256 through 5263 of 38 C.F.R. § 4.71a. DC 5256 addresses ankylosis of the knee. DC 5257 addresses recurrent subluxation or lateral instability. DC 5258 addresses dislocated semilunar cartilage in the knee manifested by frequent episodes of "locking," pain, and effusion into the joint. DC 5259 addresses symptomatic residuals related to removal of semilunar cartilage. DC 5260 addresses limitation of motion on flexion while DC 5261 addresses limitation of motion on extension. DC 5262 addresses impairment of the tibia and fibula from malunion or nonunion. DC 5263 addresses genu recurvatum. The Board must consider the Veteran's service-connected right knee disability under each DC and apply the appropriate ratings without having any of the symptomatology by duplicative or overlapping. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The Veteran cannot receive compensation under two different codes for the same manifestations of symptoms as this would constitute impermissible pyramiding under 38 C.F.R. § 4.14. The regulations pertaining to rating musculoskeletal disabilities were revised, effective February 7, 2021. Claims, such as this, pending prior to the effective date will be considered under both old and new rating criteria from that date, and whatever criteria is more favorable to the Veteran will be applied from the effective date of the change. For rating the knee, changes were made to DCs 5257 and 5262. Additionally, changes were made to DC 5055 for total knee replacement. Thus, both the old and new rating criteria for these DCs will be analyzed by the Board for the Veteran's ratings from February 7, 2021. The Veteran's right knee disability was originally rated 10 percent disabling from October 18, 2012 under DC 5259, based on symptomatic residuals of semilunar cartilage removal. In a May 2021 rating decision, the AOJ assigned a 10 percent rating for instability under DC 5257 from February 22, 2021, and a 10 percent rating for limitation of flexion under DC 5260 from February 22, 2021. With respect to the latter rating, the AOJ appears to have consolidated the Veteran's ratings based on symptomatic residuals of cartilage removal and limitation of motion into the same 10 percent rating. The Veteran contends he is entitled to a higher initial rating for his service-connected right knee disability, and that his 10 percent ratings do not adequately capture the severity of his flaring episodes and subsequent functional loss. See June 2021 Appellate Brief. Instability Under the old criteria, DC 5257 provides ratings for other knee impairments with the following ratings assigned: 10 percent for slight, 20 percent for moderate, and 30 percent for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, DC 5257. The words "slight," "moderate," and "severe" as used in the various DCs are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. 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. Under the new rating criteria for a recurrent subluxation or lateral instability of the knee, a 10 percent rating is warranted for a sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. See 38 C.F.R. § 4.71a, DC 5257. A 20 percent rating is warranted for one of the following: (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation, or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. Id. Finally, a 30 percent rating is warranted for a disability manifest as unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. Id. Objective medical evidence of knee instability is not required, and objective medical evidence is not categorically more probative than lay evidence. English v. Wilkie, 30 Vet. App. 347. The July 2013 VA examination report stated that joint stability testing was normal. The examiner noted the Veteran occasionally used a brace. VA primary care records from August 2018 note the Veteran requested a brace for his right knee and was subsequently provided a large knee brace. The September 2020 VA knee examination report indicated joint stability tests were normal. However, the examiner also noted the Veteran occasionally used a knee brace. A private treatment record from Dr. M.Y., dated November 9, 2020, noted the Veteran reported that his right knee locks up at times and he falls. The February 2021 knee examination report noted that the Veteran experienced instability, described as the knee giving out due to weakness and pain, which caused him to fall. The examiner noted the presence of recurrent subluxation or persistent instability, explaining that the Veteran had an incomplete ligament tear which underwent an unsuccessful repair. The examiner noted the Veteran was not medically prescribed any ambulatory assistance devices. The examiner stated the Veteran did not have recurrent patellar instability. Throughout the appeal period the Veteran has made use of a brace for his right knee. The use of a brace for the knee suggests the presence of instability. Given the Veteran's use of a brace and his reports of falls "at times," the evidence more closely approximates a finding of moderate instability for the entire appeal period, under the rating criteria in effect prior to February 7, 2021. The Board considered whether the Veteran may be entitled to a higher rating under either the old or new rating criteria. As noted above, the Veteran occasionally wore a knee brace and was not prescribed any other ambulatory devices. Although the Veteran reported falls due to his knee disability, he did not provide any indication of the frequency of his falls due to instability. These facts do not indicate the Veteran's instability is severe under the old diagnostic criteria. Additionally, the absence of a prescribed assistive device such as a cane, crutches, or a walker, precludes a higher rating under the new criteria. Thus, a rating greater than 20 percent for right knee instability is not warranted under either old or current criteria at any point. Semilunar Cartilage DC 5258 provides a 20 percent disability rating for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. Similarly, DC 5259 provides a 10 percent disability rating for symptomatic removal of semilunar cartilage. The July 2013, September 2020, and February 2021 examination reports all note the Veteran's reports of locking and swelling of the right knee. See also March 2020 and November 2020 records from Dr. M.Y. Although the July 2013 and September 2020 examination reports stated there were no symptoms or residuals from the Veteran's 2003 meniscectomy, the February 2021 examination report noted frequent episodes of locking. The Veteran's residuals were symptomatic throughout the appeal period and, therefore, meet the criteria for a 10 percent rating under DC 5259the highest rating available. While the Veteran has a reported history of recurrent effusion, he underwent a meniscectomy in 2003 and there is no indication he has dislocated semilunar cartilage. Moreover, to rate the Veteran under DC 5258 would compensate the Veteran for pain, which is already contemplated by the rating based on limitation of flexion discussed below. To compensate the Veteran twice for knee pain under separate DCs would constitute impermissible pyramiding. 38 C.F.R. § 4.14. For these reasons, a rating of 20 percent under DC 5258 is not warranted. Limitation of Motion Under DC 5260, a noncompensable 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. A 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. As noted above, the Veteran has a 10 percent disability rating based on limitation of motion, assigned from February 22, 2021. The July 2013 and September 2020 knee examination reports, as well as the range of motion findings from Dr. M.Y. dated in March 2020 and November 2020, indicate range of motion findings consistent with a noncompensable rating. The November 2019 JMPR and the December 2020 Board remand concluded that the July 2013 and September 2020 examination reports were inadequate in terms of range of motion testing. See Correia v. McDonald, 25 Vet. App. 158 (2016); Sharp v. Shulkin, 29 Vet. App. 26 (2017). The February 2021 knee examination report noted active and passive range of motion testing demonstrated flexion to 90 degrees and extension to 0 degrees, with pain on both flexion and extension. Repetitive use testing resulted in no additional loss of function or range of motion. The examiner estimated that with repeated use over time, flexion would be limited to 70 degrees and extension to 0 degrees. During flare-ups, in which the Veteran experienced significantly limited functional ability due to pain, fatigability, weakness, lack of endurance, and incoordination, the examiner estimated flexion would be limited to 40 degrees, and extension would be limited to 0 degrees. The Board's December 2020 remand requested that the examiner comment as to whether range of motion findings consistent with the Court's holding in Correia v. McDonald could be estimated for the July 2013 and September 2020 knee examinations. The examiner concluded it was not possible to do so without resorting to speculation. Although the examiner was not able to provide estimates regarding range of motion for the July 2013 and September 2020 knee examinations, the February 2021 examination report indicates active and passive range of motion testing was performed, with regard for weight-bearing and nonweight-bearing. Thus, these findings are sufficient to evaluate the limitation of motion of the right knee. As the February 2021 examiner's findings regarding limitation of motion are the only adequate findings of record, the Board will consider their application for the totality of the appeal period. The February 2021 examiner found the Veteran is limited to 40 degrees of flexion during flare ups and after repetitive use over time. Because of the severity of the Veteran's symptoms during flare-ups and after repetitive use over time, and as flexion would be limited to less than 45 degrees, the Board finds the evidence more closely approximates a 20 percent rating for the entire period on appeal. However, as there is no indication that the Veteran has been limited to 30 degrees of flexion or less at any time, a rating greater than 20 percent is not warranted. The Veteran's extension has not been limited to a compensable degree at any point during the period on appeal. The evidence, therefore, does not support assigning a separate rating for limitation of extension. 38 C.F.R. § 4.71a, DC 5261. The Board has also considered whether an additional or higher rating would be available under other DCs pertaining to the knee. There is no indication of ankylosis and no diagnosis of genu recurvatum. Although the September 2020 examiner observed the Veteran had a history of shin splints in high school and the military, it was noted the Veteran did not have any symptoms and that there was no effect on range of motion of the knee or ankle. As such, there is no basis for a separate evaluation under DCs 5256, 5262, or 5263. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Pelican, Luke H. 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.