Citation Nr: 22014014 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 10-24 731 DATE: March 11, 2022 REMANDED Increased ratings for chondromalacia patella and lateral meniscectomy of the left knee, currently evaluated as 10 percent disabling from October 16, 2003, to October 12, 2007; 10 percent disabling from December 1, 2007, to June 23, 2009; and 30 percent disabling from September 30, 2009, to the present, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from August 1976 to August 1985 and United States Army from June 2009 to September 2009, with additional National Guard service and including foreign service. Historically, the Veteran testified during an April 2012 Travel Board hearing. A transcript of this proceeding has been included in the claims file. In May 2017, the Veteran was informed that his appointed representative was no longer accredited by VA and offered several options to proceed. He did not subsequently appoint a new representative and continues in this appeal unrepresented. These matters were most recently remanded by the Board in April 2021. The Veteran's claims folder has returned to the Board for further appellate consideration. In assessing this appeal, the Board notes that the Veteran was on active duty status with the United States Army from June 23, 2009, to September 29, 2009. As such, he is not eligible for VA compensation benefits during this time, and this period will not be considered herein. Finally, the Veteran has been in receipt of a maximum combined evaluation since September 30, 2009, and a total disability rating based on individual employability (TDIU) since July 15, 2012. As such, any future awards of service connection or increased ratings will bear no impact on his compensation payments. Higher evaluation for chondromalacia patella and lateral meniscectomy of the left knee With respect to the Veteran's claim of entitlement to an increased rating for patellofemoral pain syndrome with chondromalacia of the left knee, this disability is rated 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5014 (osteomalacia). The Board notes that the Veteran's service-connected left knee disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5261 (limitation of leg extension) and is primarily manifested by knee pain and limitation of motion. As such, the Board finds that Diagnostic Codes 5260 and 5261 which pertain to knee flexion and extension are for application. Additionally, VA General Counsel has held that a Veteran who has both arthritis and instability of a knee may be granted separate evaluations under Diagnostic Codes 5003 and 5257, respectively, without violating the rule against pyramiding in 38 C.F.R. § 4.14. However, any such separate rating must be based on additional disabling symptomatology. Additionally, under 38 C.F.R. § 4.59 (2020), it is the intention of the rating schedule to recognize actually painful joints as entitled to at least the minimum compensable rating for the joint. This applies even if arthritis is not shown. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The Board notes that the applicable rating criteria for musculoskeletal disorders, in particular knee disabilities, under 38 C.F.R. § 4.71a, Diagnostic Code 5257 were amended, effective February 7, 2021 [Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453-69 (November 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257)]. In this regard, the Board notes that significant changes were made to Diagnostic Code 5257. The Veteran's most recent VA examination for his service-connected left knee disability was in December 2019. Pertinently, at that time, he reported instability in his left knee and that he used a knee brace. As such, the Board finds that the Veteran's increased rating claim should be remanded for a VA examination that considers the current applicable diagnostic criteria. The matter is REMANDED for the following action: 1. Schedule the Veteran for appropriate VA examination(s) to assess the orthopedic manifestations of the chondromalacia patella and lateral meniscectomy of the left knee. All testing deemed necessary must be conducted and results reported in detail. Regarding the orthopedic manifestations, the examiner is asked to indicate the point during range of motion testing that motion is limited by pain. The examiner should describe in detail the presence or absence and the extent of any functional loss due to weakened movement, excess fatigability, incoordination, or pain on use, and should state whether any pain claimed by the Veteran is supported by adequate pathology. The examiner should express an opinion as to whether pain or other manifestations occurring during flare-ups or with repeated use could significantly limit functional ability of the affected part. The examiner should portray the degree of any additional range of motion loss due to pain on use or during flare-ups. The examiner should test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing for the left and right knees. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner must also address whether the Veteran's left knee disability is manifested by recurrent subluxation or instability and if so, address whether such is manifested by persistent grade 1, 2, or 3 instability and a physician prescribes an assistive device (e.g., cane(s), crutch(es), or a walker) or bracing for ambulation; persistent grade 3 instability without operative intervention, and a physician prescribes both bracing and assistive device (e.g., cane(s), crutch(es), or a walker) for ambulation; or persistent grade 3 instability despite operative intervention and physician prescribes both bracing and assistive device (e.g., cane(s), crutch(es), or a walker) for ambulation. (Continued on the next page) If the disability is manifested by patellar instability, the examiner should address whether the disability is manifested without surgical repair, recurrent instability without documented underlying anatomic abnormalities; without surgical repair, recurrent instability with one or more documented underlying anatomic abnormalities (e.g., direct damage to patellofemoral ligament complex, "flake" fractures, or abnormalities affecting the patella and/or femoral trochlea); or with documented surgical repair, persistent instability either after the primary subluxation/dislocation event or due to recurrent instability. All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached should be provided. ROBERT C. SCHARNBERGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Arif Syed, 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.