KNEE IMPAIRMENT OF

Summary

The veteran, who served in the United States Army from August 1972 to May 1979 and again from February 1981 to February 1984, appeals a February 2010 rating decision that terminated a 20 percent rating for left knee instability. The Board of Veterans' Appeals (Board) found that the veteran was entitled to the restoration of this 20 percent rating under Diagnostic Code 5257, as it had been in effect for over 20 years and was protected under the precedent set in Murray v. Shinseki. The Board noted that the RO's change in diagnostic code and discontinuation of the instability rating was an impermissible reduction. The Board also remanded several other issues for further development, including increased ratings for left and right knee degenerative joint disease, right knee chondromalacia, left knee instability, and entitlement to TDIU. The remands were necessitated by inadequate VA examinations that failed to provide sufficient detail on functional loss, range of motion, and flare-up severity, and a lack of development on the TDIU claim despite the veteran's assertion of unemployability.

Rationale

Original rating under DC 5257 protected due to being in effect for over 20 years.; RO's change in DC and termination of instability rating was impermissible reduction.; Murray v. Shinseki precedent applied, distinguishing knee laxity/instability from loss of range of motion.

Full Decision Text

Citation Nr: 22037799
Decision Date: 06/30/22	Archive Date: 06/30/22

DOCKET NO. 11-18 950
DATE: June 30, 2022

ORDER

Restoration of a separate 20 percent rating for left knee instability under Diagnostic Code 5257 is granted.

REMANDED

Entitlement to a disability rating in excess of 20 percent for left knee degenerative joint disease is remanded.

Entitlement to a disability rating in excess of 10 percent for right knee degenerative joint disease is remanded.

Entitlement to a disability rating in excess of 10 percent for right knee chondromalacia is remanded.

Entitlement to a disability rating in excess of 20 percent for left knee instability is remanded.

Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded.

FINDING OF FACT

The 20 percent rating for left knee instability under Diagnostic Code 5257 had been in effect for over 20 years when it was terminated by the RO in February 2010. 

CONCLUSION OF LAW

The criteria for a restoration of a separate 20 percent rating for left knee instability under Diagnostic Code 5257, have been met at all times from February 14, 1984. 38 U.S.C. § 1155; 38 C.F.R. § 3.951(b). 

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Army from August 1972 to May 1979, and then from February 1981 to February 1984.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee.  

The Veteran presented sworn testimony at a hearing before the undersigned in January 2013.

The remanded these matters for further development in April 2015, March 2018, and January 2020.  The Board finds that there has not been substantial compliance with its previous remand directives and another remand is required.  Stegall v. West, 11 Vet. App. 268, 271 (1998)

1. Entitlement to a separate disability rating for left knee instability.

Effective February 14, 1984, the Veteran was service connected for left knee chondromalacia at 20 percent under Diagnostic Code (DC) 5257.  In a February 2010 rating decision, the RO changed the DC for the Veteran's left knee disability, now listed as left knee degenerative joint disease, to 5003-5257 and continued the 20 percent rating, noting that instability was not present.

Although his Diagnostic Code has since been changed, his initial rating under Diagnostic Code 5257 was in effect more than 20 years at the time the current claim was filed (September 17, 2009).  In Murray v. Shinseki, 24 Vet. App. 420 (2011), a veteran who had been in receipt of a rating for more than 20 years when the RO changed the Diagnostic Codes under which the disability was rated and discontinued the original.  The Court held that the original rating was protected, and the RO's actions constituted an impermissible reduction in a protected rating.

In essence, the holding in Murray establishes that ratings under Diagnostic Codes 5003-5010 and 5257 represent distinct knee disabilities.  Consistent with established precedent regarding ratings for knee disabilities, ratings for laxity, or more specifically, lateral instability, do not contemplate loss of range of motion, and ratings for loss of range of motion do not contemplate lateral instability.  Thus, the RO's action in February 2010 was to terminate the rating for lateral instability, which had been in effect for more than 20 years, and to establish a new disability (functional loss due to painful motion) which was assigned a rating on the basis of limitation of motion.  Therefore, consistent with the holding in Murray, the Board finds that the separate 20 percent rating for instability must be restored.

REASONS FOR REMAND

1. Entitlement to a disability rating in excess of 20 percent for left knee degenerative joint disease is remanded.

2. Entitlement to a disability rating in excess of 10 percent for right knee degenerative joint disease is remanded.

3. Entitlement to a disability rating in excess of 10 percent for right knee chondromalacia is remanded.

A Board remand confers upon an appellant the right to compliance with that order.  Stegall v. West, 11 Vet. App. 268, 271; D'Aries
.  Therefore, consistent with the holding in Murray, the Board finds that the separate 20 percent rating for instability must be restored.

REASONS FOR REMAND

1. Entitlement to a disability rating in excess of 20 percent for left knee degenerative joint disease is remanded.

2. Entitlement to a disability rating in excess of 10 percent for right knee degenerative joint disease is remanded.

3. Entitlement to a disability rating in excess of 10 percent for right knee chondromalacia is remanded.

A Board remand confers upon an appellant the right to compliance with that order.  Stegall v. West, 11 Vet. App. 268, 271; D'Aries v. Peak, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand).  When VA undertakes to provide a Veteran with an examination, that examination must be adequate for VA purposes.  Barr v. Nicholson, 21 Vet. App. 303 (2007).

The Board remanded these matters in January 2020 for a VA examination to determine the current severity and manifestation of the Veteran's bilateral knee disabilities.  

While the record contains a contemporaneous March 2020 VA examination, the examination does not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017).  The examiner indicated that the Veteran's description of his functional loss with repeated use over time and during flare ups was neither consistent nor inconsistent with the physical examination and did not provide any estimates for range of motion.  As such, a remand for a new examination is required.

4. Entitlement to a disability rating in excess of 20 percent for left knee instability is remanded.

The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his left knee instability.

5. Entitlement to a TDIU is remanded.

In a June 2016 correspondence, the Veteran stated that due to the functional impairment of his knees and hips, he had not been able to work for 9 years.  As such, the Board finds the issue of entitlement to a TDIU has been raised by the record.  See, Rice v. Shinseki, 22 Vet. App. 447 (2009).

However, the Veteran has not submitted any VA Form 21-8940 (Application for Increased Compensation Based on Unemployability) and has not otherwise provided a detailed history of his employment.  The RO has not undertaken development related to this issue.

The matters are REMANDED for the following action:

1. Obtain the Veteran's VA treatment records for the period from December 2020 to the present.

2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left and right knee disabilities.  The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria.  

In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing.  If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training).  

In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups.  If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements.  If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training).

3. Solicit a completed VA Form 21-8940 (Application for Increased Compensation Based on Unemployability) from the Veteran, in addition to any other evidence relevant to the issue of entitlement to a TDIU.

 

 

C. TRUEBA

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Keeley, Brian

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
 due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training).

3. Solicit a completed VA Form 21-8940 (Application for Increased Compensation Based on Unemployability) from the Veteran, in addition to any other evidence relevant to the issue of entitlement to a TDIU.

 

 

C. TRUEBA

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Keeley, Brian

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.