Citation Nr: 18151298 Decision Date: 11/19/18 Archive Date: 11/16/18 DOCKET NO. 09-04 594 DATE: November 19, 2018 ORDER A separate compensable evaluation for instability of the right knee for the period prior to September 13, 2013, is denied. A separate compensable evaluation for instability of the left knee for the period prior to September 13, 2013, is denied. FINDINGS OF FACT For the period prior to September 13, 2013, the Veteran’s bilateral knee disabilities are not shown to have slight recurrent subluxation or lateral instability. CONCLUSIONS OF LAW 1. The criteria for a separate compensable evaluation for instability of the right knee for the period prior to September 13, 2013, are not met. 38 C.F.R. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257. 2. The criteria for a separate compensable evaluation for instability of the left knee for the period prior to September 13, 2013, are not met. 38 C.F.R. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from April 1987 to April 2007. This matter comes before the Board of Veterans’ Appeals (Board) from an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In January 2017, the Board denied the claims for entitlement to a rating in excess of 10 percent for right knee disability prior to September 14, 2013, entitlement to a rating in excess of 10 percent for left knee disability prior to September 14, 2013, entitlement to assignment of a separate rating for instability of the right knee prior to September 14, 2013, and entitlement to assignment of a separate rating for instability of the left knee prior September 14, 2013. The Board also remanded the claims for entitlement to an initial rating higher than 10 percent for right knee disability for the period since September 14, 2013, and for entitlement to an initial rating higher than 10 percent for right knee disability for the period since September 14, 2013. The Board notes that the September 14, 2013 should have read September 13, 2013 in that decision. The Veteran appealed the Board’s January 2017 decision to the U.S. Court of Appeals for Veterans Claims (Court). The Court, in an April 2018 Memorandum Decision, dismissed the appeal of the Board’s decision denying entitlement to a rating in excess of 10 percent for the right and left knee disabilities prior to September 14, 2013, on a schedular basis. The Court also vacated and remanded the Board’s decision denying separate disability ratings for instability of the right and left knees prior to September 14, 2013, including the Board’s refusal to refer his claims for disability ratings in excess of 10 percent for the right and left knees prior to September 14, 2013, for extraschedular consideration. The Court cited inadequate reasoning by the Board as the reason for its decision. Specifically, because the Board found the Veteran competent to report knee instability, the Court found that the Board’s evidentiary findings were unsupported by sufficient reasons or bases to understand why the Board assigned greater probative value to the VA examinations and why there was no factual basis for the assignment of a separate disability rating considering the Veteran’s competent, and presumably credible, statements of knee instability. In August 2017, the Board denied the claims of entitlement to a rating in excess of 10 percent for right and left knee disability since September 13, 2013, and entitlement to assignment of a separate rating for instability of the right and left knee since September 13, 2013. The Board also corrected the date to be used for the rating period based on procedural history and the actual factual findings from September 14, 2013 to September 13, 2013. As the Veteran did not appeal the Board’s August 2017 decision, the claims related to the period after September 13, 2013 are not on appeal and therefore will no longer be discussed in this decision. Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45, but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). At issue in this case is whether, for the period prior to September 13, 2013, the Veteran warrants a compensable evaluation for his bilateral knee disabilities under Diagnostic Code 5257. Slight recurrent subluxation or lateral instability warrants a 10 percent disability rating. A 20 percent rating requires moderate recurrent subluxation or lateral instability. A 30 percent rating requires severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Turning to the evidence of record for the period prior to September 13, 2013, in July 2007, the Veteran stated that there is “no swelling, heat, redness, weakness, instability, or giving way” in his knees. During a hearing in October 2008, the Veteran only described pain and “popping” in his knees, with the left knee worse than his right knee. On August 31, 2011, a VA physical therapist noted that the Veteran’s left knee was measured to be smaller in girth than his right knee, and the physical therapist set a treatment goal to have the Veteran’s left knee girth to be equal to his right knee. Additionally, the Veteran was “fitted with a hinged brace” on his left knee by an orthotist at that time related to chronic left knee pain. Examination noted that his knee and knee brace were stable at that time. The Board specifically notes that when the Veteran was issued a left knee brace there was no mention or notation that such was due to instability of the left knee. In a September 2011 VA examination, the Veteran stated that he had three episodes of his left knee “only” giving out. Joint instability testing was performed on both knees and no joint instability was found. No evidence or history of recurrent patella subluxation or dislocation was found. No diagnosis other than knee strain was made. In a September 2013 VA examination, the Veteran again stated that “the left knee does feel like it buckles at times.” Joint instability testing was performed on both knees and no joint instability was found. No evidence or history of recurrent patella subluxation or dislocation was found. The only diagnosed disability was osteoarthritis in both knees. Based on the foregoing evidence, the Board finds that a separate compensable evaluation under Diagnostic Code 5257 is not warranted for the Veteran’s right knee disability. Specifically, throughout the appeal period, the Veteran’s right knee is not shown to have any recurrent subluxation or lateral instability during testing in any physical examination. Moreover, the Veteran’s own lay statements indicate that his right knee did not buckle, give way, or in any other way was instable throughout the appeal period. In short, there is no evidence of any recurrent subluxation or lateral instability of the right knee during the appeal period, and the Veteran consistently reported that it was only his left knee that gave out or buckled. Accordingly, the Board cannot find that there is slight recurrent subluxation or lateral instability of the Veteran’s right knee at any time during the period prior to September 13, 2013, and a separate compensable evaluation for instability of the right knee must be denied based on the evidence of record at this time. See 38 C.F.R. §§ 4.7 4.71a, Diagnostic Code 5257. Turning to the left knee, the Board acknowledges that the Veteran is competent to state that his left knee buckled, gave way, or otherwise felt instable during the appeal period. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). The Board further acknowledges that it appears that the Veteran’s left knee was given a left knee brace during the appeal. However, despite the Veteran’s competent and credible statements regarding instability of the left knee during the period prior to September 13, 2013 and the issuance of a brace for his left knee, the Board finds that a separate evaluation for recurrent subluxation or lateral instability of the left knee under Diagnostic Code 5257 is not warranted in this case. Specifically, the Board notes that the evidence demonstrates that the Veteran’s brace was issued because of chronic knee pain and not because of any of the Veteran’s claimed instability symptoms; the orthotist and the physical therapist who issued the brace to the Veteran did not mention any instability of the left knee in issuing the knee brace to the Veteran. Additionally, the Board finds that the Veteran’s statements regarding instability, giving way, and buckling of his left knee were considered and noted by the VA physicians and examiners during the appeal period in this case. Those examiners contemplated the Veteran’s reported medical history and, after performing the appropriate medical testing, determined that the Veteran’s left knee did not demonstrate any recurrent subluxation or lateral instability at any time during the appeal period. The Board finds that the findings and conclusions of the VA physicians and examiners in this case is the most probative evidence of record in this case with regards to whether there is any recurrent subluxation or lateral instability of the Veteran’s left knee during the period prior to September 13, 2013; such evidence outweighs the probative value of the Veteran’s lay reports—which were contemplated by each of those physicians and examiners during their examinations—of instability, buckling or giving way. See Guerrieri v. Brown, 4 Vet. App. 467 (1993) (the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches.); Owens v. Brown, 7 Vet. App. 429 (an opinion that is based on review of the entire record may be more probative than an opinion that is based on reported history); Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the Veteran); see also English v. Wilkie, No. 17-2083, 2018 U.S. App. Vet. Claims LEXIS 1464 (November 1, 2018) (objective medical evidence is not categorically more probative than lay evidence, particularly respecting the presence of lateral instability of the knee). In short, even though the Veteran competently and credibly stated that his left knee was instable, buckled, or gave out during the period prior to September 13, 2013, the VA physicians and examiners findings that there was no recurrent subluxation or lateral instability of the left knee is more probative than the Veteran’s lay complaints in this case. Accordingly, the Board also cannot find that there is slight recurrent subluxation or lateral instability of the Veteran’s left knee at any time during the period prior to September 13, 2013, and therefore a separate compensable evaluation for instability of his left knee is not warranted based on the evidence of record at this time. See 38 C.F.R. §§ 4.7 4.71a, Diagnostic Code 5257. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD H. Yun, Associate Counsel