Citation Nr: 22017305 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 16-34 931 DATE: March 24, 2022 ORDER Entitlement to an initial rating greater than 20 percent for the service-connected left knee torn medial meniscus and patellofemoral syndrome is denied. Effective February 16, 2012, a separate initial rating of 10 percent for service-connected left knee limitation of extension motion is granted. Effective September 9, 2021, a separate initial rating of 10 percent for service-connected left knee limitation of flexion motion with clinical findings of arthritis is granted. FINDINGS OF FACT 1. The 20 percent rating assigned for service-connected left knee torn medial meniscus and patellofemoral syndrome is the highest evaluation afforded under Diagnostic Code (Code 5258); a higher evaluation under Code 5258 cannot be assigned. 2. Beginning February 16, 2012, the service-connected left knee disability is manifested by range of motion at 10 degrees extension to 110 degrees flexion at its most limited; and is without findings of ankylosis, subluxation or lateral instability, nonunion or malunion of the tibia and fibula, or genu recurvatum. 3. Beginning September 9, 2021, the service-connected left knee disability is manifested by range of motion at 100 degrees flexion at its most limited; and is without findings of ankylosis, subluxation or lateral instability, nonunion or malunion of the tibia and fibula, or genu recurvatum. 4. The Veteran is diagnosed with arthritis by clinical findings dated September 9, 2021. CONCLUSIONS OF LAW 1. The criteria for an evaluation greater than 20 percent for service-connected torn medial meniscus and patellofemoral syndrome have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.41, 4.45, 4.59, 4.71A, Diagnostic Code (Code) 5258. 2. Beginning February 16, 2012, the criteria for a separate initial rating of 10 percent and no greater for service-connected left knee limitation of extension motion have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.41, 4.45, 4.59, 4.71A, Codes 5261; see also Codes 5256, 5257, 5259, 5260, 5262, 5263. 3. Beginning September 9, 2021, the criteria for a separate initial rating of 10 percent and no greater for service-connected left knee limitation of extension motion have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.41, 4.45, 4.59, 4.71A, Code 5260; see also Codes 5256, 5257, 5259, 5260, 5262, 5263. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the U.S. Army on active service from July 1969 to July 1971. In a May 2013 rating decision, the agency of original jurisdiction (AOJ) granted service connection for the left knee, and evaluated the disability as 20 percent disabling, effective February 16, 2012. The Veteran appealed the evaluation initially assigned. In a July 2014 rating decision, the AOJ also granted service connection for the right heel and foot callus with skin breakdown, evaluating the disability as noncompensable. The Veteran appealed the evaluation assigned. In the July 2016 substantive appeal submitted in support of the claim for an initial higher rating for his left knee, the Veteran stated his disagreement with the initial evaluation assigned his service-connected right heel and foot callus with skin breakdown. In a May 2021 remand, the Board directed the AOJ to provide the Veteran with a statement of the case as to this issue. The AOJ did so in November 2021; however, the Veteran did not submit a timely substantive appeal as to this issue. It is therefore not on appeal. In his July 2016, the Veteran asked to appear and testify before a Veterans Law Judge of the Board of Veterans Appeals (Board). However, in August 2019, he withdrew his request. This case was remanded in May 2021 for additional development and examination. Additional VA examination was afforded in September 2021. The VA examiner again did not perform right knee joint range of motion testing, but explained that doing so was not possible as the right knee joint was damaged. In addition, the 2021 examiner provided estimation of additional disability on flare-ups. Because the examiner explained the inability to test right knee range of motion and because the examiner considered the Veteran's lay statements concerning additional symptoms on flare-ups and provided an estimate of how such symptoms would further impact range of motion of the left knee, the 2021 examination provides sufficient evidence to correct the previous omissions concerning Correia v. McDonald, 28 Vet. App. 159 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017). As such, additional remand is not required. Increased Ratings Disability evaluations (ratings) 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 the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (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. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 38 C.F.R. §§ 4.1, 4.2, 4.10. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). When evaluating a musculoskeletal disability based upon range of motion, consideration is given to the degree of any additional limitation upon motion due to functional loss. DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). This includes the analysis of additional functional impairment above and beyond the limitation of motion objectively demonstrated involving such factors as painful motion, weakness, incoordination, and fatigability, etc., particularly during times when these symptoms "flare-up," such as during prolonged use, and assuming these factors are not already contemplated in the governing rating criteria. See 38 C.F.R. §§ 4.40, 4.45 and 4.59. Separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In this case, service connection for left knee torn meniscus and patellofemoral syndrome was granted in a May 2013 rating decision, and assigned a 20 percent rating, effective on February 16, 2012, under Code 5258. The Veteran appealed the evaluation assigned. The Veteran argues a higher initial evaluation is warranted for his left knee and reports difficulty walking, standing, and running productive of greater functional loss than is represented in the current rating. The evidence supports his claim. The 20 percent evaluation in effect was assigned under Code 5258 for semilunar dislocated cartilage with frequent episodes of locking, pain and effusion into the joint where surgery had not yet been performed. This is the highest evaluation afforded by the Code, and there is no higher evaluation available for these symptoms. However, the medical evidence reflects that the Veteran's range of left knee joint motion is limited to 10 degrees extension and 100 degrees flexion at its most limited during the appeal period. See 2012 and 2021 VA Examinations for Knee and Lower Leg. This range of motion includes consideration of limited motion after repetitive motion and on flare-ups. Code 5261 provides a 10 percent rating for left knee extension limited to 10 degrees. Because the left knee extension is limited 10 degrees, a separate 10 percent rating is warranted for this manifestation of left knee disability. A higher rating is not warranted, as the medical evidence does not show limitation greater than 10 degrees extension in the left knee at any time during this appeal with consideration of pain, weakness, and other symptoms of productive of functional impairment on active and passive movement, after repetitive motion, and on flare-ups. See 2012 and 2021 VA Examinations for Knee and Lower Leg. It is noted that left knee flexion is also limited, but to a noncompensable range of motion. In addition, the 2021 VA examiner diagnosed osteoarthritis in the left knee by 2021 X ray results dated September 9, 2021. VA General Counsel has held that separate evaluations under Code 5261 (limitation of extension of the leg) and Code 5260 (limitation of flexion of the leg) may be assigned for disability of the same joint, providing they may not be so assigned when limitation of motion is noncompensable in both joints, as to do so would essentially be pyramiding in violation of 38 C.F.R. § 4.14. See VAOGCPREC 9-2004, 69 Fed. Reg. 59990, September 17, 2004. Here, the limitation of flexion motion is clearly distinguishable from the limitation in motion for extension. The 10 percent for limitation of extension motion in the left knee is assigned for limitation of extension from 10 degrees, and is compensable under Code 5261, as discussed immediately above. Beginning September 9, 2021, the Veteran's left knee is also manifested by clinical findings of arthritis with limitation of motion in flexion motion to 100 degrees at its most limited with consideration of repetitive motion and increased functional impairment due to pain, lack of endurance, interference with standing, disturbance of locomotion, and additional limitation of motion on flare-ups. See 2021 VA Examinations for Knee and Lower Leg. Such limitation of flexion motion, although noncompensable under the Code 5260, meets the requirements for the assignment of a separate 10 percent rating for noncompensable limitation in the left knee joint with arthritis under Code 5003-5260. Thus, an initial separate rating of 10 percent is warranted, effective the date clinical findings show arthritis under Code 5003-5260. A higher rating under Code 5003-5260 is not warranted because the medical evidence does not show limitation of left knee motion to 30 degrees or less at any time during the appeal period. In addition, the 10 percent rating under 5003-5260 cannot be assigned any earlier than September 9, 2021, because the medical evidence does not show that arthritis was manifested by clinical evidence prior to then, even though flexion motion was limited to 110 degrees in the 2012 VA examination. Specifically, the 2012 VA examination documents that clinical findings did not show arthritis in the left knee. See 2012 VA Examination for Knee and Lower Leg. The Board has considered whether a higher rating or other separate compensable ratings may be available under other Codes for evaluating knee disabilities. However, the left knee disability has not been shown to manifest ankylosis, subluxation or lateral instability, malunion or nonunion of the tibia and fibula, or genu recurvatum during the appeal period. Thus, Codes 5256, 5257, 5252, and 5263 are not for application. Code 5259, which also concerns symptomatic cartilage., concerns symptomatic cartilage after removal. The medical evidence does not show that the Veteran has yet undergone surgery to remove or repair cartilage in the left knee at any time prior to or during the appeal period. Thus, Code 5259 is also not for application. The Veteran is competent to report his symptoms. And by this decision, given his report and the observations and clinical findings in private treatment records and in the 2012 and 2021 VA examinations, the Board has assigned separate 10 percent ratings under Codes 5261 from February 16, 2012, and under 5003-5260 from September 9, 2021. The Board accepts the veracity of the Veteran's statements as to his pain and functional limitation due to his left knee. Such are supported by the observations of VA examiners discussed above. Notwithstanding, the evidence does not show the Veteran is a medical expert with the ability to diagnose the nature and extent of his left knee disability. Jandreau v. Nicholson, 492 F.3d 1872, 1877 (Fed. Cir. 2007). Thus, his lay statements do not have as much probative weight as the totality of the medical evidence of record. Regulations for rating disabilities of the knee were revised during the pendency of the Veteran's appeal, effective February 7, 2021. See 38 C.F.R. § 4.71a (2021). Where the law or regulations governing a claim are changed while the claim is pending, the version most favorable to the claimant is applied. While the new version of the regulations may apply only from the effective date of change, here February 7, 2021, the old version of the regulations may apply both prior to the change in regulation and after the change in regulation. Karnas v. Derwinski, 1 Vet. App. 308 (1991); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Here, the old criteria are the more favorable. DCs 5256, 5258, 5259, 5260, 5261, and 5263 were not changed by the revision. Codes 5262 and 5257 are changed, but do not apply, as the Veteran does not have impairment of the tibia or fibula, or recurrent subluxation or lateral instability. Code 5003 and 5010 are changed, but the new Code 5010 requires that post-traumatic arthritis be rated as limitation of motion, dislocation, or other instability under the affected joint. In addition, the grant of a higher and/or separate evaluation is uncertain. In any event, the revised regulations would not apply until February 2021, when they came into effect. Given the limited applicability of the new regulations, the Board finds the old criteria is more favorable. The Board has thus not applied the new regulations in the present case. Accordingly, an initial rating higher than 20 percent under Code 5258 is not warranted, as a higher rating is not afforded under this Code. Beginning February 16, 2012, a separate initial 10 percent rating and no greater is warranted for left knee extension motion limited to 10 degrees under Code 5261. Beginning September 9, 2021, a separate initial 10 percent rating and no greater is warranted for noncompensable limitation of left knee flexion motion with clinical findings of arthritis under Code 5260. R.R. WATKINS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Bakke, Lila J. 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.