Citation Nr: 22005158 Decision Date: 02/01/22 Archive Date: 02/01/22 DOCKET NO. 12-14 257 DATE: February 1, 2022 ORDER Entitlement to an initial rating in excess of 10 percent for right knee patellofemoral syndrome based on limitation of flexion (right knee flexion disability) from June 26, 2018, to August 13, 2018, is denied. Entitlement to an initial rating in excess of 20 percent for left knee patellofemoral syndrome based on limitation of flexion (left knee flexion disability) from June 26, 2018, to August 13, 2018, is denied. Entitlement to an initial rating in excess of 20 percent for right knee instability prior to August 13, 2018, is denied. Entitlement to an initial rating in excess of 20 percent for left knee instability prior to August 13, 2018, is denied. REMANDED Entitlement to an increased initial rating for right knee patellofemoral syndrome based on limitation of extension (right knee extension disability), currently rated 10 percent disabling prior to June 26, 2018, 20 percent disabling from June 26, 2018, to August 12, 2018, and 10 percent disabling from August 13, 2018, to the present, is remanded. Entitlement to an increased initial rating for right knee patellofemoral syndrome based on limitation of extension (right knee extension disability), currently rated 10 percent disabling prior to June 26, 2018, 30 percent disabling from June 26, 2018, to August 12, 2018, and 20 percent disabling from August 13, 2018, to the present, is remanded. Entitlement to a compensable rating for a right knee flexion disability beginning August 13, 2018, is remanded. Entitlement to a compensable rating for a left knee flexion disability beginning August 13, 2018, is remanded. Entitlement to a rating in excess of 10 percent for right knee instability beginning August 13, 2018, is remanded. Entitlement to a rating in excess of 10 percent for left knee instability beginning August 13, 2018, is remanded. Entitlement to a total disability rating based on induvial unemployability due (TDIU) to service-connected disabilities, to include on an extraschedular basis, is remanded. FINDINGS OF FACT 1. From June 26, 2018, to August 13, 2018, the Veteran's right knee flexion disability was manifested, at worst, by flexion limited to 40 degrees. 2. From June 26, 2018, to August 13, 2018, the Veteran's left knee flexion disability was manifested, at worst, by flexion limited to 30 degrees. 3. Prior to August 13, 2018, the evidence of record did not reveal that the Veteran's right knee instability was severe. 4. Prior to August 13, 2018, the evidence of record did not reveal that the Veteran's left knee instability was severe. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for a right knee flexion disability prior to August 13, 2018, have not been met. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5260 (2020). 2. The criteria for an initial rating in excess of 20 percent for a left knee flexion disability prior to August 13, 2018, have not been met. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5260 (2020). 3. The criteria for an initial rating in excess of 20 percent for right knee instability prior to August 13, 2018, have not been met. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5257 (2020). 4. The criteria for an initial rating in excess of 20 percent for left knee instability prior to August 13, 2018, have not been met. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5257 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active naval service from February 1988 to June 2010. This case comes before the Board of Veterans' Appeals (Board) on appeal of a May 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The issues on appeal were previously before that Board in February 2018 and May 2020, at which times they were remanded for additional development. This case has been returned to the Board for further appellate action. The Board observes that the RO has partially granted the Veteran's appealed issues on several occasions throughout the 10-year pendency of such; however, none of these actions resulted in a full grant of the benefits sought regarding any individual issue. Accordingly, the Veteran's appealed issues remain in appellate status and have been recharacterized to reflect the "staged" initial ratings downstream from the RO's actions. Hart v. Mansfield, 21 Vet. App. 505 (2007); AB v. Brown, 6 Vet. App. 35, 38-39 (1993). Increased Rating The Veteran asserts that her right and left knee disabilities, to include extension, flexion, and instability, warrant a higher rating than that currently assigned. Orthopedic disabilities of the knee joint are evaluated under the criteria of 38 C.F.R. § 4.71a. Under certain circumstances, a knee disability may receive separate ratings based on evidence showing limitation of motion (Diagnostic Codes 5256, 5260, and 5261) or instability (Diagnostic Codes 5257, 5262, 5263). See VAOPGCPREC 23-97 (July 1, 1997). Additionally, VA General Counsel has held that a veteran who has arthritis resulting in limited or painful motion and instability of a knee may be rated separately under diagnostic codes 5003 and 5257, cautioning that any such separate rating must be based on additional disabling symptomatology. See VAOPGCPREC 9-98 (September 1998). VA's General Counsel has further held that separate ratings under 38 C.F.R. § 4.71a, Diagnostic Code 5260 (limitation of flexion of the leg) and Diagnostic Code 5261 (limitation of the extension of the leg) may be assigned for disability of the same joint. See VAOPGCPREC 9-2004 (September 17, 2004). Moreover, an evaluation of a knee disability under Diagnostic Codes 5257, 5260, or 5261 does not preclude a separate evaluation under Diagnostic Codes 5258 or 5259. See Lyles v. Shulkin, 29 Vet. App. 107 (2017). The Board notes that effective February 7, 2021, the VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020): Correction 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021). VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. Therefore, VA must consider the claim for a higher rating pursuant to the former and revised regulations after February 7, 2021. See VAOPGCPREC 3, 2000, 65 Fed. Reg. 33, 422 (2000); see also DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). It is noted, however, that these changes included no pertinent revisions to Diagnostic Codes 5003, 5256, 5258, 5259, 5260, and 5261. Under Diagnostic Code (DC) 5256, for ankylosis of the knee, favorable ankylosis in full extension, or in slight flexion, between 0 degrees and 10 degrees warrants a 30 percent disability rating; ankylosis in flexion between 20 degrees and 45 degrees warrants a 50 percent disability rating; and extremely unfavorable ankylosis in flexion at an angle of 45 degrees or more warrants a 60 percent disability rating. Under DC 5258, dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint warrants a 20 percent disability rating. Under DC 5259, symptomatic removal of the semilunar cartilage warrants a 10 percent disability rating. Under DC 5260, for limitation of flexion, flexion of the leg limited to 60 degrees warrants a noncompensable (zero percent) rating; flexion of the leg limited to 45 degrees warrants a 10 percent disability rating; flexion of the left limited to 30 degrees warrants a 20 percent disability rating; and flexion of the left limited to 15 degrees warrants a 30 percent disability rating. Under DC 5261, for limitation of extension, extension of the leg limited to 5 degrees warrants a noncompensable disability rating; extension of the leg limited to 10 degrees warrants a 10 percent disability rating; extension of the leg limited to 15 degrees warrants a 20 percent disability rating; extension of the leg limited to 20 degrees warrants a 30 percent disability rating; extension of the leg limited to 30 degrees warrants a 40 percent disability rating; and extension of the leg limited to 45 degrees is rated as 50 percent disability rating. Under DC 5263, genu recurvatum (acquired, traumatic, with weakness and insecurity in weight-bearing objectively demonstrated) warrants a 10 percent disability rating. Prior to February 7, 2021, under DC 5257, slight recurrent subluxation or lateral instability warranted a 10 percent disability rating; moderate recurrent subluxation or lateral instability warranted a 20 percent disability rating; and severe recurrent subluxation or lateral instability warranted a 30 percent disability rating. Effective February 7, 2021, under DC 5257, incomplete ligament sprain or complete ligament tear, causing persistent instability, without a prescription from a medical provider for an assistive device or bracing for ambulation warrants a 10 percent disability rating. A sprain manifested by incomplete ligament tear, or repaired complete ligament tear, causing persistent instability, where a medical provider prescribes a brace and/or assistive device for ambulation warrants a 20 percent disability rating. Unrepaired or failed repair of a complete ligament tear causing persistent instability, where a medical provider prescribes either an assistive device or bracing for ambulation also warrants a 20 percent disability rating. Finally, recurrent subluxation or instability with unrepaired or failed repair of a complete ligament tear, causing persistent instability, where a medical provider prescribes both an assistive device and bracing for ambulation warrants a 30 percent disability rating. Additionally, effective February 7, 2021, under DC 5257, for patellar instability, a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker warrants a 10 percent disability rating. A diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace, a cane, or a walker, warrants a 20 percent disability rating. Finally, a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker, warrants a 30 percent disability rating. Prior to February 7, 2021, under DC 5262, malunion of the tibia and fibula with slight knee or ankle disability warranted a 10 percent disability rating; malunion of the tibia and fibula with moderate knee or ankle disability warranted a 20 percent disability rating; malunion of the tibia and fibula with marked knee or ankle disability warranted a 30 percent disability rating; and nonunion of the tibia and fibula, with loose motion, requiring a brace warranted a 40 percent disability rating. Effective February 7, 2021, under DC 5262, shin splints that have treatment for less than 12 consecutive months warrant a noncompensable rating. Shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to either shoe orthotics or other conservative treatment, for one or both lower extremities, warrants a 10 percent disability rating. Shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, for one lower extremity, warrants a 20 percent disability rating. Finally, shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, for both lower extremities, warrants a 30 percent disability rating. Normal ranges of motion of the knee are to 0 degrees in extension, and to 140 degrees in flexion. 38 C.F.R. § 4.71, Plate II. The Board notes that the terms "mild," "moderate," "moderately severe," and "severe," are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are just and equitable. 38 C.F.R. § 4.6 (2020). Additionally, although a medical examiner's use of descriptive terminology such as "mild" is an element of evidence considered by the Board, it is not dispositive of an issue. As such, the Board must evaluate all evidence in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (2020). In May 2010, the Veteran was afforded a general VA medical examination. At that time, the Veteran reported symptoms of pain, tenderness, swelling, fatigability, and lack of endurance of the left and right knee. The Veteran also reported that she had flare-ups as often as four times per week that were manifested by increased pain and stiffness. The VA examiner found that the Veteran's range of motion (ROM) for both knees, for initial and post-repetitive use, were within normal limits, but that she had bilateral crepitus. Additionally, the VA examiner noted that the Veteran's bilateral knee instability tests were within normal limits. Further, the VA examiner noted that the Veteran's right and left knee x-ray findings were within normal limits. An April 2012 treatment note documented the Veteran's complaint of left knee pain. Additionally, a March 2016 treatment note documented the Veteran's complaint of left knee pain. At that time, it was noted that the Veteran had a two-week history of left knee pain with prolonged walking and climbing the stairs. It was also noted that there was no locking, giving way, stiffness, and swelling, and that there was no recent trauma. The Veteran was assessed as having pain in the left knee and it was noted that she had a left knee sleeve. In January 2017, the Veteran was afforded a VA examination for knee and lower leg conditions. At that time, the Veteran reported that her left knee pain was much worse than the right knee and that she had left knee weakness, minor swelling, and clicking. Additionally, the Veteran reported that the pain around her kneecap was worse at night, after being still for an extended time, and that turning caused knee pain. The Veteran did not report any flare-ups at that time. The VA examiner found that the Veteran's ROM, both initial and post-repetitive use, were within normal limits. Additionally, the VA examiner found that there was no evidence of pain with weight bearing or bilateral instability. However, the VA examiner found that the Veteran had bilateral crepitus, and that swelling, and disturbance of locomotion contributed to her left knee disability. Further, the VA examiner noted that there was a history of recurrent effusion that was mild and intermittent on the left. The VA examiner also noted that the Veteran used a brace regularly and that an elastic sleeve had been prescribed for her left knee. A June 2018 private disability benefits questionnaire (DBQ), for knee and lower leg conditions, documented the Veteran's reports of decreased ROM, pain, and stiffness during her flare-ups. At that time, the examining physician, Dr. W. T., assessed that the Veteran's initial ROM measurements were right knee flexion limited to 120 degrees and extension was limited to 10 degrees, and left knee flexion limited to 85 degrees and extension limited to 15 degrees. Additionally, Dr. W.T. assessed that pain, swelling, excess fatigability, and weakened movement, amongst other factors, contributed to additional limitation of motion. Specifically, Dr. W.T. assessed that those limitations resulted in right knee flexion limited to 40 degrees and extension limited to 15 degrees, and left knee flexion limited to 30 degrees and extension limited to 20 degrees. Further, Dr. W.T. noted that there was moderate lateral instability in both knees and localized tenderness or pain on palpation. Dr. W.T. also noted that there was no pain in either knee when the joint was used in weight bearing or non-weight bearing, and that the Veteran used an over-the-counter brace for both knees on a regular basis. The Board finds that the Veteran's right knee flexion disability was not entitled to a rating in excess of 10 percent from June 26, 2018, to August 12, 2018. The Board also finds that the Veteran's left knee flexion was not entitled to a rating in excess of 20 percent between June 26, 2018, to August 12, 2018. In this regard, the ROM findings during that time did not reveal right knee flexion limited to 45 degrees or less, or left knee flexion limited to 15 degrees or less. As such, from June 26, 2018, to August 12, 2018, a rating in excess of 10 percent for the Veteran's left knee flexion disability and a rating in excess of 20 percent for the Veteran's left knee flexion disability are not warranted. See 38 C.F.R. § 4.71a, Diagnostic Code 5260. The Board finds that from June 26, 2018, to August 12, 2018, pain, fatigability, and weakness contributed to the Veteran's limitation of motion. However, the Board also finds that the decreased ROM that resulted from those contributing factors was contemplated by the ratings assigned at that time. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202 (1995). As such, there remains no reasonable basis for assignment of a rating in excess of those assigned for the Veteran's bilateral knee extension and flexion disabilities from June 26, 2018, to August 12, 2018. Consideration has been given to assignment of a higher, or separate, rating under another diagnostic code pertaining to the knee. However, the Board finds that there is no objective evidence that the Veteran's bilateral knee extension and flexion disabilities were productive of ankylosis, impairment of the tibia and fibula, semilunar cartilage dislocation or removal, or genu recurvatum. As such, a higher, or separate, rating for those disabilities under another diagnostic code pertaining to the knee is not warranted. See 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5258, 5259, 5262, 5263. Consideration has also been given to assigning staged ratings. However, at no time during the period in question have the Veteran's bilateral knee extension and flexion disabilities warranted a higher schedular rating than that assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). Finally, the Board finds that the Veteran's bilateral knee instability disabilities did not warrant ratings in excess of 20 percent from June 26, 2018, to August 12, 2018. In this regard, the evidence of record during that time only reflects that the Veteran had moderate instability in both knees. Moreover, there is no other medical evidence of record, nor does the Veteran otherwise assert, that the level of instability in her knees rose to the level of severe during that time. As such, a rating in excess of 20 percent for the Veteran's bilateral knee disabilities, from June 26, 2018, to August 12, 2018, is not warranted. See 38 C.F.R. § 4.71a, Diagnostic Code 5257. Accordingly, the preponderance of the evidence is against the Veteran's appealed issue for the time period from June 26, 2018, to August 12, 2018, and entitlement to the following are not warranted: a rating in excess of 10 percent for the Veteran's right knee flexion disability, a rating in excess of 20 percent for the Veteran's left knee flexion disability, a rating in excess of 20 percent for the Veteran's right knee instability disability, and a rating in excess of 20 percent for the Veteran's left knee instability disability. 38 U.S.C. § 5107(b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). REASONS FOR REMAND As stated above, the May 2010 VA examiner noted that the Veteran reported severe flare-ups of bilateral knee symptoms, resulting in increased functional impairment; however, the VA examiner did not quantify the increased limitation of motion of either joint. The Board finds that this VA examination report is inadequate for the purpose of readjudicating the Veteran's appealed issues for limitation of extension of the knees prior to June 26, 2018, to include the propriety of separate evaluations for limitation of flexion of either knee during the same period. Sharp v. Shulkin, 29 Vet. App 26, 34 (2017). In such situations, remand is necessary for retrospective findings regarding these critical matters. Chotta v. Peake, 22 Vet. App. 80 (2008). In June 2019, the Veteran was afforded a VA examination for knee and lower leg conditions. At that time, the Veteran reported that her condition had worsened, and that she had unprovoked intermittent flare-ups, pain, and swelling. The Veteran also reported that she had difficulty squatting down or kneeling onto her knees. The VA examiner assessed that the Veteran's initial ROM measurements for the right knee were flexion limited to 95 degrees and extension limited to 5 degrees. Additionally, the VA examiner found that the Veteran's initial ROM measurements for the left knee were flexion limited to 95 degrees and extension limited to 15 degrees. The VA examiner noted that pain limited the Veteran's functional ability during a flare-up but assessed that the Veteran's ROM measurements during a flare-up were the same as her initial ROM measurements. In August 2021, the Veteran was afforded another VA examination for knee and lower leg conditions. At that time, the Veteran reported pain and instability while walking, pain while standing and with weight bearing, and decreased ROM. The Veteran also reported flare-ups of pain when she was on her feet or walked for extended periods of time, and that on some days she was unable to stand and get out of bed. The VA examiner found that the Veteran's initial ROM measurements for the right knee were flexion limited to 50 degrees and extension limited to 0 degrees, and for the left knee were flexion limited to 30 degrees and extension limited to 0 degrees. However, the VA examiner assessed that the Veteran experienced no additional functional limitations with repeated use over time or during flare-ups. Further, the VA examiner provided negative responses under the joint stability section of the examination report. The Board finds that the June 2019 and August 2021 VA examinations are inadequate for adjudication purposes. In this regard, those examinations fail to incorporate the Veteran's lay statements regarding the severity of her bilateral knee disabilities, specifically in the areas of instability and decreased ROM during flare-ups and with repeated use. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). As those opinions are inadequate, another remand is necessary. The Board notes that the Veteran is competent to report the observable symptoms of her bilateral knee disabilities. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Moreover, the Board finds her credible in that respect. Accordingly, the Board finds that remand is warranted for a new VA examination that addresses the current severity of the Veteran's collective bilateral knee disabilities, to include extension, flexion, and instability. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). TDIU At the outset, the Board notes that the evidence of record has raised the issue of whether the Veteran's service-connected bilateral knee disabilities render her unemployable. Therefore, the issue of entitlement to a TDIU is on appeal, during the entire period applicable to the increased rating claims herein, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). However, entitlement to a TDIU is inextricably intertwined with the increased rating claims being remanded herein. See Harris v. Derwinski, 2 Vet. App. 180, 183 (1991). Further, more development is warranted before the Board can determine whether TDIU, on an extraschedular basis, should be referred to the Director of Compensation Service. See 38 C.F.R. § 4.16(b) (2020). Accordingly, a determination on the claim for TDIU, to include on an extraschedular basis, is deferred pending the appropriate development and final dispositions of the increased rating claims currently on appeal. The matters are REMANDED for the following actions: 1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file. 2. Then, schedule the Veteran for a VA examination by an examiner with sufficient expertise to determine the level of severity of all impairments resulting from her service-connected bilateral knee disabilities. The claims file must be made available to, and reviewed by, the examiner. All indicated tests and studies must be performed. The examiner must provide all information required for rating purposes. *In the completion of the above directive, the VA examiner is asked to provide retrospective findings for flexion and extension of the Veteran's knee during a flare-up of symptoms at the time of the May 2010 VA examination. While noting the inherent difficulty with providing such retrospective findings, the examiner is encouraged to attempt to discern such based on the medical evidence contemporaneous with the completion of the May 2010 VA examination. 3. Provide the Veteran a TDIU application, VA Form 21-8940, and advise her to complete and return it with the necessary information to assist in substantiating the TDIU claim. 4. Confirm that the VA examination report and all medical opinions provided comport with this remand, and undertake any other development found to be warranted. 5. Then, readjudicate the remaining issues on appeal. If the decision is adverse to the Veteran, issue the Veteran and his representative a copy of the readjudication and provide them an appropriate opportunity to respond. SCOTT W. DALE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Byrd, 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.