Citation Nr: 22018352 Decision Date: 03/29/22 Archive Date: 03/29/22 DOCKET NO. 05-01 048 DATE: March 29, 2022 ORDER Entitlement to a rating in excess of 20 percent for left knee disability (meniscectomy/instability) prior to August 30, 2018 is denied. Entitlement to a rating in excess of 10 percent for left knee traumatic arthritis prior to August 30, 2018 is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to August 31, 2020 is remanded. FINDINGS OF FACT 1. Even in consideration of his complaints of pain, pain on motion, and functional loss, the Veteran's left knee disability did not manifest flexion to 15 degrees or extension to 20 degrees; dislocated or removed semi-lunar cartilage; or severe recurrent subluxation or instability prior to August 30, 2018. 2. The Veteran had one major joint with X-ray evidence of arthritis involvement and noncompensable limitation of motion prior to August 30, 2018. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for left knee disability (meniscectomy/instability) prior to August 30, 2018 are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5257-5261. 2. The criteria for a rating in excess of 10 percent for left knee arthritis prior to August 30, 2018 are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5257-5261. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the Army from February 1989 to August 1990. The appeal originates from July 2004 and March 2010 decisions of a Department of Veterans Affairs (VA) Regional Office. The matter was remanded in March 2012, July 2014, and June 2019 for a hearing and to obtain private treatment records and a VA examination. The Veteran appeared for a hearing before the undersigned in February 2014. In August 2019, VA requested that the Veteran complete a Form 21-4142 to obtain treatment records from the Florida Department of Prisons, but no such form was completed and submitted by the Veteran. VA made multiple requests in February 2020 for private treatment records from Sacred Heart Hospital but did not receive a response. In March 2020, the Veteran submitted some of these records and requested that the Board proceed with adjudication. He has been afforded numerous VA examinations (as recently as April 2021). There has been substantial compliance with the Remand directives. As discussed in the June 2019 Remand, the appeal concerning the Veteran's left knee has been recharacterized to reflect changes to the Veteran's left knee disability. The Veteran underwent a total left knee arthroplasty on August 30, 2018, which resulted in the assignment of a temporary 100 percent rating under Diagnostic Code 5055, effective from August 30, 2018 through October 31, 2019. A 60 percent rating for the residuals of the total knee arthroplasty has been assigned from November 1, 2019. A December 2018 rating decision indicated that the assignment of a separate 10 percent rating for arthritis of the left knee under Diagnostic Code 5261 would be discontinued. 1. Entitlement to a rating in excess of 20 percent for left knee meniscectomy/instability prior to August 30, 2018. 2. Entitlement to a rating in excess of 10 percent for left knee arthritis prior to August 30, 2018. Disability ratings are determined by comparing a veteran's present symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Prior to his left total knee replacement in August 2018, the Veteran's left knee meniscectomy/instability was rated under Diagnostic Code 5257 for other impairment of the knee. A 30 percent rating required severe recurrent subluxation or lateral instability. Diagnostic Code 5010 addresses traumatic arthritis and was previously rated as degenerative arthritis under Diagnostic Code 5003 (prior to February 7, 2021). Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (DC 5200 etc.). When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, rate as follows. A 20 percent rating requires X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. Diagnostic Code 5258 assigned a 20 percent rating for dislocated semilunar cartilage with episodes of "locking," pain, and effusion into the joint. Diagnostic Code 5259 assigned a 10 percent rating for removal of symptomatic semilunar cartilage. Diagnostic Code 5260 addresses limitation of flexion of the leg. A 30 percent rating required flexion limited to 15 degrees. Diagnostic Code 5261 addresses limitation of extension of the leg. A 30 percent rating required extension limited to 20 degrees. Based on the evidence, including the June 2004, October 2017, December 2018, September 2019, and April 2021 examinations and the October 2019 examination with opinion, the Veteran is not entitled to a rating in excess of 20 percent for left knee meniscectomy/instability prior to August 30, 2018. The record does show that he had left knee instability with use of a brace and at times, a cane (he was issued a walker in August 2018 but this was for use following his upcoming surgery.) However, it is not clear that such instability was severe. The Veteran was found to have slight instability on examination in June 2004 and reported a feeling of giving way, but he did not report any actual falls. Medical treatment records show his continued complaints of instability but without detailed information as to the frequency, duration, and severity of symptoms. At the April 2014 hearing, inquiries were made with respect to symptoms of instability. The Veteran did not offer any specific information, vaguely replying that his knee "gives way" if "[he's] not really paying attention to it" or the knee will "come up" when turning in bed. He confirmed that he was able to walk a quarter mile without rest. On examination in November 2017, he reported that his left knee had given out "several times" but the timeframe and ultimate frequency in which this occurred is unclear. He offered additional history of instability at the September and October 2019 examinations, but this was apparently following his total left knee replacement and not indicated to be for the period prior to August 30, 2018. The evidence is, at most, unclear as to whether the Veteran had severe lateral instability prior to August 30, 2018. There is little information in the examinations, treatment records, and lay evidence as to the frequency, severity, and duration of instability symptoms. It appears that the Veteran had sensations of instability and giving out and instances of falling at times, but such is too vague to support the assignment of an increased rating at any time during the appeal. Consideration is given to the left knee arthritis and whether a higher rating is warranted under any other diagnostic code for either left knee disability. With respect to flexion and extension, the Veteran had, at worst, flexion limited to 85 degrees (per an April 2004 treatment record) and extension to 5 degrees (on examination in November 2017). Such does not warrant a noncompensable rating for flexion or more than a noncompensable rating for extension. In addition, there is no increased rating available under Diagnostic Code 5010 (rated under Diagnostic Code 5003). The Veteran is already in receipt of a 10 percent rating for arthritis of a single major joint (the knee) with noncompensable limitation of motion. As his disability does not involve arthritis of two or more major or minor joint groups, a 20 percent rating is precluded under Diagnostic Code 5003. The Veteran was also not shown to have dislocated or removed semilunar cartilage such as to warrant a separate rating under Diagnostic Codes 5258 and 5259. It is recognized that he was previously service connected for a meniscectomy. However, the November 2017 and December 2018 examiners clarified that this was for ACL reconstruction rather than removal of symptomatic semilunar cartilage. The Veteran has not been found to have dislocated semilunar cartilage on any examination or in treatment records. The Board notes the Veteran's contention that the June 2004 examiner bent his knee to obtain measurements less favorable to him for rating purposes. See January 2011 NOD. However, the examination measurements (flexion to 100 degrees with discomfort at 90 and normal extension) are similar to ones taken in April 2004 (flexion to 85 degrees and full extension) and more favorable for rating purposes than those taken at other times when he does not claim duress. He was found to have flexion to 130 degrees and full extension in January 2004 and flexion to 110 degrees and full extension in December 2004. The Court of Appeals for Veterans Claims has established that reports of flareups of symptomatology must be considered. Sharp v. Shulkin, 29 Vet. App. 26 (2017). Guidance on how to evaluate flareups has not been particularly clear. However, the Board finds overall wisdom in Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Flareups must be quantifiable and result in limitation of motion or function beyond that contemplated by the already provided evaluation. In addition, because there is a regulation addressing stabilization of ratings, the flareup must be of such length as to establish that the overall impairment is more severe than currently evaluated, rather than a brief snapshot in time. With that in mind, consideration has been given to the Veteran's reports of experiencing flareups at the November 2017 examination. The Board remanded the matter in June 2019 to address these flareups. The October 2019 examiner provided measurements as to range of motion and functional ability during flareups based on the Veteran's reporting, finding that flexion would be limited to 90 degrees and extension to 0 degrees (normal). Based on the examiner's opinion suggesting that this limited range of motion may have been present earlier, the Board has afforded the Veteran the benefit of the doubt and considered these findings in the above analysis, which did not demonstrate entitlement to an increased rating at any time prior to August 30, 2018. As to other evidence, the contemporaneous treatment records contain little, if any, findings pertaining to flareups, functional ability during a flareup, or after repeated use over time. The additional limitation (functional loss) experienced by the Veteran due to pain was accounted for by the examiners when determining his ranges of motion (including during flareups). As to his reports of pain, stiffness, and similar complaints, the evidence does not demonstrate additional functional limitation more closely approximating the criteria for a higher rating. Therefore, the Board finds that the assigned ratings for the left knee disabilities adequately contemplate the documented and reported functional limitations. Mitchell, supra. Accordingly, the claims for increased ratings for left knee meniscectomy/instability and arthritis prior to August 30, 2018 must be denied. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder is remanded. The Veteran contends that he has a mental disorder secondary to his service-connected left knee disability. See February 2014 Hearing Transcript. He was afforded a VA examination in October 2017. The examiner diagnosed adjustment disorder with depressed mood and provided a negative opinion as to secondary service connection. The examiner found that the mental disorder appeared to be related to guilt arising from murder of a friend for which the Veteran was convicted and incarcerated. However, while the examiner did offer a conclusion as to aggravation, the rationale of the opinion does not appear to actually address aggravation. The Veteran underwent another examination in October 2019 and was diagnosed with unspecified depressive disorder. The examiner provided a negative opinion addressing causation under secondary service connection but not aggravation. As such, remand is required for an addendum. 2. Entitlement to TDIU prior to August 31, 2020 is remanded. The Veteran contends that he is unable to work due to his service-connected left knee disability. See November 2020 VA 21-8940. A May 2021 rating decision granted TDIU effective August 31, 2020, leaving the period prior for consideration. He does not appear to have met the schedular criteria for TDIU prior to November 1, 2019. As the claim for an acquired psychiatric disorder may impact his schedular eligibility during that period, the Board will defer adjudication of the issue at this time. The matters are REMANDED for the following action: Request an addendum from the October 2019 psychiatric examiner. The examiner is asked to address the following: 1. Is it at least as likely as not that a mental disorder was proximately caused by the service-connected left knee disability? 2. Is it at least as likely as not that a mental disorder underwent any incremental increase in disability, regardless of its permanence, due to the service-connected left knee disability? MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Alhinnawi 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.