Citation Nr: 21001286 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 16-42 639 DATE: January 7, 2021 ORDER Entitlement to a rating in excess of 10 percent for right knee instability is denied. FINDING OF FACT For the entire period on appeal, the Veteran has had slight instability in his right knee. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for right knee instability have not been met. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5257 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from October 1982 to February 1983, and active service in the United States Marine Corps (USMC) from April 1988 to March 1991. The case comes before the Board of Veterans’ Appeals (Board) on appeal of a March 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2019, The Veteran testified before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the claims file. This case was previously before the Board in January 2020, at which time it was remanded for readjudication. The case has now been returned to the Board for further appellate action. In a September 2020 rating decision, the Veteran’s 10 percent rating for right knee instability was restored, effective July 1, 2015. However, that does not constitute a complete grant of the benefit sought on appeal. However, the Board has limited its consideration accordingly. Increased Rating – Right Knee Instability The Veteran asserts that symptoms of his right knee instability are worse than those contemplated by the currently assigned rating. In November 2014, the Veteran was afforded a VA examination. At that time, the Veteran reported that he experienced right knee pain, swelling, and that his knee would give out. He reported that he experienced difficulty walking up and down stairs. Joint stability testing revealed slight medial-lateral instability in the right knee. There was no evidence of recurrent patellar subluxation or dislocation. The Veteran was not noted to use a knee brace for assistance with ambulation. In December 2015, the Veteran reported that his knees went out on him and that he had two or more falls in the last 12 months. In July 2016, the Veteran was afforded a VA examination. At that time, the Veteran reported progressively worsening right knee pain, with greater severity during prolonged weight bearing, and difficulty with prolonged standing and walking. Joint stability testing revealed slight medial instability. There was no evidence of recurrent subluxation. The VA examiner noted that the Veteran occasionally used a right knee brace. In October 2019, the Veteran was afforded another VA examination. At that time, the Veteran reported throbbing, stiffness, soreness, and his right knee giving out. Joint stability testing revealed slight lateral instability, but there was no evidence of recurrent subluxation. Medial instability was not shown on examination at that time. In December 2019, the Veteran reported mechanical falls due to his knee giving way. The Board finds that a rating in excess of 10 percent for right knee instability is not warranted. In that regard, the stability testing conducted at the Veteran’s VA examinations reveal no more that slight instability. The Board has carefully considered the Veteran’s assertions of his knees giving out, pain, swelling, throbbing, stiffness, soreness, and difficulty with prolonged sitting and standing. However, the lay and medical evidence does not suggest the presence and frequency of symptoms that more closely approximate moderate instability. Consequently, a rating in excess of 10 percent is not warranted for instability of the right knee. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The Board acknowledges that the law allows for additional, separate ratings for knee disabilities when none of the symptomatology overlaps and the separate rating is based on additional disabling symptomatology. However, the Veteran is already in receipt of separate compensable ratings for his right knee. The only rating that was appealed to the Board was the rating assigned for right knee instability. Therefore, the Board will not address other symptomatology of the right knee in this decision. Additionally, consideration has been given to assigning staged ratings. However, at no time during the period in question has the Veteran’s right knee instability warranted a higher schedular rating that that assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). (Continued on the next page)   Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to a rating in excess of 10 percent for the Veteran’s right knee instability is not warranted. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Byrd, Associate Counsel 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.