Citation Nr: 25005209 Decision Date: 04/17/25 Archive Date: 04/17/25 DOCKET NO. 17-44 907 DATE: April 17, 2025 ORDER An initial 20 percent rating, and no higher, prior to July 23, 2024 for service-connected left knee instability is granted. An initial rating in excess of 20 percent from July 23, 2024 for service-connected left knee instability is denied. REMANDED Entitlement to a separate rating prior to January 16, 2016 for service-connected right lower extremity radiculopathy is remanded. Entitlement to an initial rating in excess of 10 percent from January 26, 2016 through March 28, 2019 for service-connected right lower extremity radiculopathy is remanded. Entitlement to an initial rating in excess of 20 percent from March 29, 2019 for service-connected right lower extremity radiculopathy is remanded. Entitlement to a separate rating prior to January 26, 2016 for service-connected left lower extremity radiculopathy is remanded. Entitlement to an initial rating in excess of 10 percent from January 26, 2016 through March 28, 2019 for service-connected left lower extremity radiculopathy is remanded. Entitlement to an initial rating in excess of 40 percent from March 29, 2019 for service-connected left lower extremity radiculopathy is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDING OF FACT For the entire period of the appeal (prior to and beginning on July 23, 2024), the Veteran's service-connected left knee instability is productive of a moderate level of impairment requiring bracing for ambulation; the evidence does not show an unrepaired or failed repair of a complete ligament tear causing persistent instability or a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair. CONCLUSIONS OF LAW 1. The criteria for an initial 20 percent rating, and no higher, prior to July 23, 2024 for service-connected left knee instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (Code) 5257 (in effect prior to and from February 7, 2021). 2. The criteria for an initial rating in excess of 20 percent from July 23, 2024 for service-connected left knee instability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Code 5257 (in effect prior to and from February 7, 2021). REASONS AND BASES FOR FINDING AND CONCLUSIONS The appellant is a Veteran who served on active duty from December 1983 to February 1984, from August 2008 to September 2009, and from August 2012 to September 2013, with additional service in the Army Reserve. This case comes to the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection (and a noncompensable rating) for left knee patellofemoral pain syndrome, and granted service connection for degenerative arthritis with degenerative disc disease of the thoracolumbar spine (and a 20 percent rating), both effective September 18, 2013. An August 2019 RO rating decision granted a 10 percent rating for the left knee patellofemoral pain syndrome, effective August 8, 2019, and granted service connection for right lower extremity radiculopathy and left lower extremity radiculopathy, assigning ratings of 20 percent and 40 percent, respectively, effective March 29, 2019. In January 2022, the Veteran testified at a Board videoconference hearing before the undersigned. A June 2022 Board decision, in pertinent part, granted a 20 percent rating for the left knee patellofemoral pain syndrome as well a separate 10 percent rating for left knee instability, effective September 18, 2013; granted a 40 percent rating for the thoracolumbar spine degenerative arthritis with degenerative disc disease effective September 18, 2013, as well as a 10 percent rating each for right and left lower extremity radiculopathy, effective (for the earlier period of ) January 26, 2016 through March 28, 2019; and denied higher ratings for right and left lower extremity radiculopathy from March 29, 2019. The Veteran appealed the decision in part to the United States Court of Appeals for Veterans Claims (CAVC), specifically requesting the following: a rating in excess of 10 percent rating for left knee instability from September 18, 2013; a separate rating prior to January 26, 2016 for right and left lower extremity radiculopathy; higher ratings from January 26, 2016 through March 28, 2019 and from March 29, 2019 for right and left lower extremity radiculopathy; and a TDIU. In a July 2023 Order, the CAVC granted a July 2023 Joint Motion for Partial Remand (JMPR) of the parties, thereby vacating the Board's June 2022 decision in part and remanding the matters to the Board for action consistent with the JMPR. In January 2024, the Board remanded the case to the RO for further development of the appealed matters but also added the claim of TDIU after finding such a claim was reasonably raised as part and parcel of the increased rating claims on appeal. A January 2025 RO rating decision granted an increased rating of 20 percent (from 10 percent) for left knee instability, effective July 23, 2014. Thereafter, the RO returned the case to the Board for its further consideration. Entitlement to an initial rating in excess of 10 percent prior to July 23, 2024, and an initial rating in excess of 20 percent from that date, for service-connected left knee instability The Veteran seeks higher initial ratings in effect for his left knee instability for the period prior to and from July 23, 2024. His disability is rated under 38 C.F.R. § 4.71a, Code 5257, for other impairment of the knee, which provides that 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; and 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. Objective medical evidence is not required to establish lateral knee instability under Code 5257, 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). Effective February 7, 2021, VA amended the rating criteria for disabilities of the knee and leg. The amended Code 5257 provides ratings for other impairment of the knee based on recurrent subluxation or instability and on patellar instability. For recurrent subluxation or instability, a 10 percent rating is warranted for sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 20 percent rating is warranted for one of the following: (a) Sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation; or (b) Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A maximum 30 percent rating is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. For patellar instability, a 10 percent rating is warranted for 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. A 20 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: a brace, cane, or walker. A maximum 30 percent rating is warranted for 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. Note (1) provides that, for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note (2) provides that a surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as a surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). After review of the record, the Board finds that the evidence of record supports the assignment of a 20 percent rating, and no higher, for the Veteran's left knee instability under the pre-amended criteria for the entire period on appeal (since September 18, 2013), and to this extent, the Veteran's claim for a higher rating before July 23, 2024 is granted. However, the Board also finds that the evidence of record persuasively weighs against a rating in excess of 20 percent for the entire period on appeal, and to this extent, his claim for a higher rating from July 23, 2024 is denied. The medical records for the entire period on appeal show that the Veteran requires a left knee brace for ambulation. In a longitudinal review of the record, this need is indicative of an impairment that may be characterized as more than slight, which means small in amount, and akin to a level of disability that is moderate (meaning that which is limited in scope or effect). VA records from August 2010 to December 2010 reflect reports of chronic knee pain and weakness, and an MRI was ordered, the impression of which was status post patellar dislocation, left knee, with residual lateral mal-tracking and tilt. In other words, there was no evidence for ligamentous laxity, and he instead experienced patellar instability. (Statements of the Veteran in November 2023 to the effect that he tore his MCL and ACL ligaments while in Iraq but did not find out until his return, were not corroborated by the MRI.) It is acknowledged that on a September 2015 VA examination, there was no joint instability demonstrated, but it is not clear whether the examiner tested for both ligamental instability and patellar instability, or just the former. The examiner also indicated that the Veteran did not use any assistive devices, but the Veteran's treatment records tend to show that he has used a knee brace since October 2010 (see, for example, a January 2019 VA primary care note). A June 2019 VA examination showed a history of slight lateral instability of the left knee, despite no objective evidence of joint instability at the time, and the regular use of a brace. Again, the nature of the joint stability testing on examination did not clearly indicate if it contemplated patellar instability. A July 2024 VA examiner stated in final remarks that the Veteran did not undergo a joint stability test because he was fearful of pain, but she indicated in the report that the Veteran requires a left knee brace for left patellar instability. In hearing testimony in January 2022, the Veteran asserted that his knee gave out on him and that he used a brace. In a November 2023 statement, the Veteran described the need for a knee brace sometime after 2009 to reduce the risk of his knee "flying out of place" because he was prone to having it "'pop' laterally out of the joint." He further stated that after arthroscopic knee surgery (he did not say when this occurred), he tried to go without his brace, but as his knee kept popping out of the joint, he resumed wearing his brace. During the July 2024 VA examination, he stated his knee joint was laterally unstable without a brace. In consideration of the lay evidence that his knee stability problems required bracing and of the likelihood that joint stability testing on VA examination accounted for ligamental instability (of which there was only slight degree of impairment in 2019) and not any patellar instability (of which there was evidence of patellar dislocation and lateral mal-tracking and tilt), reasonable doubt is accorded to the Veteran, and his left knee instability is deemed to be manifested by a moderate, rather than a slight, level of impairment. The left knee instability does not more nearly approximate a severe disability level because it is not shown to be of a great degree. In terms of the range of impairment, the degree and effects of the instability are shown to be more in the middle of the disability spectrum than at the highest (severe) end. He wears a brace but has not undergone additional or invasive treatment such as surgery for his patellar instability. On treatment records and examination reports, he consistently complains of pain, swelling, and locking, but the evidence does not reflect that his knee joint dislocation/instability is a constant problem provided that he uses his brace. It is acknowledged that the VA examiner in July 2024 noted that the Veteran had a history of recurrent subluxation (moderate in degree), history of lateral instability (severe in degree), and a diagnosis of recurrent patellar dislocation (severe in degree). However, she noted she was unable to test his joint stability, and her assessments of moderate/severe were not accompanied by any explanation of how she arrived at such determinations and what evidence she relied upon to derive the conclusions. Moreover, the examiner also checked the boxes to indicate there was or has been an incomplete/partial ligament tear, when such as not been corroborated in the record as earlier discussed. Given the foregoing, the Board finds that her assessments of the level of impairment of the Veteran's left knee instability and that her finding of a history of ligament tear lack probative value and are thus not given evidentiary weight on the matter of determining the appropriate rating to assign the Veteran's left knee instability. In short, overall, the lay and medical evidence indicates that the Veteran's subluxation/instability symptoms do not suggest the presence of symptoms more nearly approximating severe recurrent subluxation or lateral instability for a 30 percent rating under the pre-amended Code 5257. In terms of the application of the amended rating criteria effective February 7, 2021, although the Veteran requires bracing for ambulation, the evidence of record is against a higher (30 percent) rating because it does not show an unrepaired or failed repair of a complete ligament tear causing persistent instability or a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair. As noted previously, the Veteran has claimed that he sustained tears of his ACL and MCL during service in Iraq in 2009 (in his hearing testimony, he said the tears were partial) and that he thereafter underwent arthroscopic surgery. The MRI in 2010 did not show a torn ligament, but it did indicate a condition involving the patellofemoral complex. A VA orthopedic surgery consult note in December 2010 suggested, based on the MRI results, that there was a plan to perform an arthroscopic lateral retinacular release, which may help center the patella and/or medial patellar plication. The Veteran wanted to give such surgery some thought, but it is unclear whether surgery was later performed. The Board remanded the case to the RO in January 2024 in part to obtain any relevant VA and private treatment records related to knee surgery, but the development did not result in securing any records that would confirm he underwent surgery to repair a ligament tear or to repair a condition involving the patellofemoral complex. Nor has the Veteran provided any additional information to enable the RO to corroborate that surgery took place to address his subluxation/instability problems. Therefore, a higher rating under the current Code 5257 is not warranted from February 7, 2021, the effective date of such code. The Board has also considered the other diagnostic codes pertaining to the knee and leg. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). The Veteran's left knee is already separately rated (at 20 percent) for patellofemoral pain syndrome under Code 5258, which contemplates frequent episodes of "locking," pain, and effusion into the joint. There are no other left knee manifestations that have not already been considered in relation to the Veteran's left knee instability disability to warrant another separate compensable rating. Further, it is noted that the June 2022 Board decision already considered higher and separate ratings for all left knee disability under the knee-related diagnostic codes, and it was knee instability that was the only manifestation that received a separate rating with which the Veteran disagreed and appealed for higher ratings. In conclusion, the Board finds that a 20 percent rating is warranted for the Veteran's left knee instability effective September 18, 2013 through July 22, 2024, and as such, his claim for a higher rating is granted. However, the evidence of record persuasively weighs against his claim for a rating in excess of 20 percent for left knee instability for the entire period on appeal (from September 18, 2013). As the evidence of record persuasively weighs against a rating in excess of 20 percent, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776 (2021). REASONS FOR REMAND 1. Entitlement to a separate rating prior to January 16, 2016 for service-connected right lower extremity radiculopathy 2. Entitlement to an initial rating in excess of 10 percent from January 26, 2016 through March 28, 2019 for service-connected right lower extremity radiculopathy 3. Entitlement to an initial rating in excess of 20 percent from March 29, 2019 for service-connected right lower extremity radiculopathy 4. Entitlement to a separate rating prior to January 26, 2016 for service-connected left lower extremity radiculopathy 5. Entitlement to an initial rating in excess of 10 percent from January 26, 2016 through March 28, 2019 for service-connected left lower extremity radiculopathy 6. Entitlement to an initial rating in excess of 40 percent from March 29, 2019 for service-connected left lower extremity radiculopathy The Veteran has undergone VA spine examinations in September 2015 and June 2019, the latter of which reflected objective findings of lower extremity neurologic manifestations of his thoracolumbar spine degenerative arthritis with degenerative disc disease. Upon review of the report, it appears that the examiner did not discount the ameliorating effects of any medications when assessing the severity of his bilateral lower extremity radiculopathy. Jones v. Shinseki, 26 Vet. App. 56, 63 (2012) (holding that when relevant rating criteria do not specifically contemplate medication use, the beneficial effects of that medication must be discounted); see also Ingram v. Collins, 2025 U.S. App. Vet. Claims LEXIS 327 (Mar. 12, 2025) (reaffirming the central holding of Jones relative to assessing the severity of musculoskeletal disability in particular). Beyond a spinal cord stimulator implant to reduce pain, his medications consisted of Tramadol and Aleve. Earlier, a private treatment record in December 2016 indicates that on a scale from 0 to 10 (with 10 being the greatest), the Veteran described his chronic pain as a 2 out of 10 without medications and 0 out of 10 with medications, and specifically reported that his medications improved his pain. He requested a refill of his Nucynta (an opioid) and stated he continued to benefit from his chronic opioid therapy in regard to functionality, activities of daily living, and overall quality of life. In a March 2019 statement, he asserted that he took Tramadol and anti-inflammatory daily for his pain. Therefore, the case will be returned to the AOJ to obtain another examination that furnishes the necessary findings to properly evaluate the Veteran's lower extremity radiculopathy for the period on appeal. Also, in January 2024, the Board remanded these claims to attempt to obtain any relevant private records concerning the Veteran's treatment for lumbar symptoms and radiculopathy at the Carolinas Pain Institute. He did not provide any information but will have an opportunity to submit any records upon remand of this case to the RO. 7. Entitlement to a TDIU The TDIU claim is inextricably intertwined with the pending claims cited above. Therefore, consideration of the TDIU claim is deferred pending resolution of those matters. Nonetheless, in accordance with Board remand instructions of January 2024, it is noted that the Veteran was requested to submit a TDIU application (VA Form 21-8940) in January 2024, and he did not respond. He will have another opportunity to submit such evidence in support of this claim. The matters are REMANDED for the following action: 1. Request the Veteran to furnish the appropriate authorization for the VA to obtain his records of treatment for lumbar and radicular symptoms, including any procedures/surgeries, from the Carolinas Pain Institute. If he does submit a medical release, obtain the records. 2. Request the Veteran to submit a TDIU application, by completing (a) VA Form 21-8940, Veterans Application for Increased Benefits Based on unemployability, and (b) VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits, for any former and/or current employers. 3. Arrange for the Veteran to undergo a VA neurological examination to assess the severity of his service-connected bilateral lower extremity radiculopathy (sciatic nerve). The claims file must be available in conjunction with the examination. The examiner is asked to provide an accurate and full description of all pertinent symptoms and their impact on his ability to function. The examiner should specifically respond to the following: (a). Describe the current level of severity of the neurological impairment pertaining to the right and left lower extremity radiculopathy, characterizing the impairment as mild, moderate, moderately severe, or severe incomplete paralysis, or as complete paralysis. In furnishing the requested findings, the examiner must discount the ameliorative effects of the Veteran's pain and anti-inflammatory medications on his lower extremity function (i.e., disregard the ameliorative effects of his medications by essentially describing how much more severe his radiculopathy symptoms would be without the relief provided by the medications). (b). Provide a retrospective opinion (since at least January 2016, or earlier if radiculopathy is ascertainable from the evidence), estimating the level of severity of the neurological impairment pertaining to the right and left lower extremity radiculopathy, characterizing the impairment as mild, moderate, moderately severe, or severe incomplete paralysis, or as complete paralysis. In furnishing the requested findings, the examiner must discount the ameliorative effects of the Veteran's pain and anti-inflammatory medications on his lower extremity function (i.e., disregard the ameliorative effects of his medications by essentially describing how much more severe his radiculopathy symptoms would be without the relief provided by the medications). In that regard, consideration should be given to VA examination reports of September 2015 and June 2019, VA outpatient records, private treatment records (see, e.g., Dr. Laguerre's June 2010 statement from Carolinas Pain Institute noting radicular symptoms, and a December 2016 record from the same facility indicating the Veteran continued to benefit from opioid therapy), and statements of the Veteran regarding radiation into his leg (see, e.g., March 2014, March 2019, and November 2023 statements). Complete rationale should accompany all opinions. If the examiner cannot provide an opinion regarding the severity of the lower extremity radiculopathy absent the ameliorative effects of medication, he/she should explain whether it is due to the limitation of the examiner's knowledge or a limitation of the knowledge in the medical community at large. L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Breitbeil, Debbie 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.