Citation Nr: 22016116 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 14-23 032 DATE: March 21, 2022 ORDER Beginning July 2, 2010, a 10 percent evaluation for the Veteran's right knee laxity under Diagnostic Code 5010-5257 is granted. REMANDED Entitlement to an evaluation in excess of 10 percent for the Veteran's right knee arthritis is remanded. Entitlement to an initial evaluation in excess of 10 percent for the Veteran's right knee laxity is remanded. FINDING OF FACT Effective July 2, 2010, the Veteran's right knee was manifested by slight lateral instability. See VA Treatment Records dated April 2013 and August 2015 and September 2010 VA Medical Opinion. CONCLUSION OF LAW The criteria for a disability rating of 10 percent for instability of the right knee are met, effective from July 2, 2010, onward. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5010-5257. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1977 to May 1985. This matter comes before the Board of Veteran's Appeal (Board) on appeal from a May 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In February 2021, the Board denied an increased rating in excess of 10 percent for right knee arthritis, a rating in excess of 10 percent for right knee laxity, and a compensable rating for right knee laxity prior to September 18, 2020. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In October 2021, the Veteran and VA's Office of General Counsel filed a Joint Motion for Remand (JMR) requesting that the Court vacate the Board's decision and remand the case for readjudication. The Court granted the JMR and returned the case to the Board for further development and readjudication in compliance with the directives specified. The Veteran seeks an increased rating in excess of 10 percent for his right knee arthritis, a rating in excess of 10 percent for his right knee laxity, and a compensable rating for his right knee laxity prior to September 18, 2020. Increased Rating The Veteran's entire history is reviewed when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Disability evaluations are determined by comparing a Veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a Veteran's service-connected disability. 38 C.F.R. § 4.14 (2017); see Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Rating Schedule. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. When evaluating a disability based upon limitation of motion, the Board must also consider, in conjunction with the otherwise applicable diagnostic codes, any additional functional loss the Veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy from disuse. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the Veteran. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). The intent of the schedule is to recognize painful motion with joint or particular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the Veteran or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). Effective July 2, 2010, a 10 percent evaluation for the period for the Veteran's right knee laxity is granted. As indicated above in the Conclusions of Law section, the Board finds that the Veteran is entitled to an increased rating of 10 percent for his right knee laxity disability beginning July 2, 2010. Although this decision represents a partial grant of the benefits sought on appeal, the Board recognizes that further disposition of this issue would be premature. Accordingly, additional evidentiary development is necessary and is outlined in the Remand portion of the decision below. During the pendency of the Veteran's claim and appeal, the criteria for rating musculoskeletal disabilities were changed by an amendment to the rating schedule that became effective on February 7, 2021. 85 Fed. Reg. 76, 453 (November 30, 2020). Diagnostic Code 5257 was amended. Claims pending prior to the effective date of the new rating criteria will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. Accordingly, the Board will consider the claim under both versions of the rating criteria, to extent there is any substantive difference between them. In the instant case, the Board finds the pre-2021 amendment criteria more favorable to the Veteran. Accordingly, it will apply them for the entirety of the claim period, i.e., from July 2, 2010, onward. The Veteran is currently in receipt of a 10 percent rating for right knee laxity under Diagnostic Codes (DC) 5010-5257 effective September 18, 2020. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. In the selection of code numbers assigned to disabilities, injuries will generally be represented by the number assigned to the residual condition on the basis of which the rating is determined. The hyphenated code in this case indicates that traumatic arthritis DC 5010 is the service-connected disability and that his right knee laxity under DC 5257 is the residual disability. 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. 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. Accordingly, objective medical evidence was not required to establish lateral knee instability under Diagnostic Code 5257 prior to February 7, 2021, 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). Turning to the relevant evidence, the VA treatment records indicate a history of right knee instability, as reported by the Veteran. See VA Treatment Records dated September 2010, April 2013, May 2013, and June 2015. Specifically, the Veteran's VA treatment records reveal that he reported that his right knee was "giving out," and even reported that he has fell due to instability. See VA Treatment Records dated September 2010, April 2013, May 2013, and June 2015. Further, at the Veteran's September 2010 VA examination, he reported issues with instability as well. See September 2010 VA Medical Opinion. The Veteran also reported that he used a cane for balance because his right leg gives out. See June 2015 VA Treatment Record. In contrast, at the September 2010 VA examination, the examiner noted that the Veteran had right knee weakness and edema but found that the Veteran did not have instability. See September 2010 VA Medical Opinion. Additionally, at the Veteran's March 2017 VA examination, the examiner confirmed that the Veteran osteoarthritis in his right knee, but also found that there was no recurrent subluxation or instability found. See March 2017 VA Medical Opinion. Here, the Board finds that the Veteran is entitled to a 10 percent rating, effective July 2, 2010, based on his subjective reports of right knee instability. Since the time period at issue predated the amendments to DC 5257, the Board finds that DC 5257's amendments are inapplicable to the appeal period from July 2, 2010, to February 6, 2021, the day before the effective date of the new DC 5257. Further, the Board finds that objective medical evidence was not required to establish lateral knee instability under the previous Diagnostic Code 5257. See English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). Moreover, as a layperson, the Veteran is competent to report on all things which he has personal knowledge derived from his own senses, including his reports of his right knee instability. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Board also finds the Veteran's reports of his right knee instability to be credible in the instant case. Accordingly, based on the Veteran's lay testimony and the evidence of record, the Board that an increased rating of 10 percent for the Veteran's right knee laxity is warranted. REASONS FOR REMAND 1. Entitlement to an initial evaluation in excess of 10 percent for the Veteran's right knee laxity is remanded. Although the Board regrets the delay, the Board finds that remand is warranted for a new VA examination. In December 2021, the Veteran was afforded a VA examination and an addendum opinion was added to the record in January 2022. The December 2021 examiner noted that the Veteran did not have recurrent subluxation, persistent instability, or a ligament tear. See December 2021 VA Medical Opinion. Additionally, the January 2022 examiner noted that the Veteran's right knee anterior, posterior, and medial stability testing results were normal. See January 2022 VA Medical Opinion. However, neither examiner considered nor addressed the Veteran's July 2015 MRI, which showed a small tear of the medial meniscus. Further, neither examiner addressed the Veteran's reports of episodes of locking, pain, and swelling. See VA Treatment Records dated September 2010, June 2015, and August 2015. Moreover, a September 2015 rheumatologist noted that there was perhaps effusion posteriorly on the right knee. See September 2015 VA Treatment Record. Therefore, the Board finds that the December 2021 and January 2022 VA medical opinions are inadequate because the examiners failed to address all relevant medical and lay evidence of record. Accordingly, the Board finds that a new VA examination is warranted. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The VA examiner should ascertain whether the Veteran's 2015 VA treatment records demonstrate that the Veteran had a meniscus tear with locking and effusion. 2. Entitlement to an evaluation in excess of 10 percent for the Veteran's right knee arthritis is remanded. Furthermore, the Board finds that the issues of the propriety of the Veteran's claim for an evaluation in excess of 10 percent for his right knee arthritis is inextricably intertwined with the remanded claim herein for an increased rating of the Veteran's right knee laxity disability. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter). Therefore, adjudication of such claims must be deferred pending the outcome of the aforementioned claim remanded herein. In ordering a remand in the instant case, the Board is not making a preliminary formal finding as to the credibility of the Veteran's lay reports. Rather, the Board is merely requesting that the examiner on remand consider the Veteran's own descriptions of the history of his right knee conditions. See Smith v. Wilkie, 32 Vet. App. 332, 33-39 (2020). The matters are REMANDED for the following action: Schedule the Veteran for a VA examination by an appropriate examiner so as to determine the nature and severity of his service-connected right knee disabilities. The VA examiner is directed to conduct range of motion testing and provide commentary regarding symptoms including painful motion, functional loss due to pain, excess fatigability, weakness, and additional disability during flare-ups. All indicated tests and studies, to include MRI testing unless contraindicated, should be performed and the results reported in detail. If MRI testing is deemed to be contraindicated, the examiner should explain why. 1. Any additional loss of motion or function (decreased or abnormal excursion, strength, speed, coordination, or endurance) with repetitive movement must be noted. 2. Any range of motion testing should be conducted in both active and passive range of motion, as well as in weightbearing and non-weightbearing conditions. The examiner must inquire as to periods of flare-up and following repeated use over time, and note the frequency of duration of any such flare-ups. The examiner must also estimate the additional loss of function, expressed in degrees of motion, during such flare-ups, to the extent possible. The VA examiner should comment on how and to what extent these manifestations affect the Veteran. If the severity of these manifestations cannot be quantified, the examiner must so indicate and fully explain the reasons therefore, and what additional evidence would be necessary before an opinion could be rendered. 3. If the examiner opines that the Veteran does not have a meniscal tear accompanied by locking and effusion, the examiner must reconcile that finding with the following: 1. the August 2015 VA treating physician note that the July 2015 MRI showed meniscal degenerative change, worse medially, with a small tear of the medial meniscus; 2. the September 2015 treating physician's note that there was evidence a small effusion posterior on the right knee; and 3. the Veteran's statements that he experienced popping, locking, and swelling in his right knee. See VA Treatment Records dated September 2010, June 2015, and August 2015. In answering all questions, please articulate the reasons underpinning your conclusions. That is, (1) identify what facts and information, whether found in the record or outside the record, support your opinion, and (2) explain how that evidence justifies your opinion. A report of the examination should be prepared and associated with the Veteran's VA claims file. In offering any opinion, the clinician should consider medical and lay evidence dated both prior to and since the filing of the claim. The clinician should provide a complete rationale for any opinion rendered. If he or she cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why that is so. M. BILSTEIN Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Foster, 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.