Citation Nr: 21062352 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 16-62 456 DATE: October 7, 2021 ORDER Entitlement to a rating of 10 percent, but no higher, for right knee instability/subluxation from January 31, 2011 to May 11, 2021, is granted. Entitlement to a rating higher than 30 percent for right knee instability/subluxation from May 11, 2021, is denied. Entitlement to a rating in excess of 10 percent for a right knee disability based on limitation of motion is denied. FINDING OF FACT 1. From January 31, 2011 to May 11, 2021, the evidence is in equipoise as to whether the right knee was manifested by slight instability. 2. Effective May 11, 2021, the Veteran's right knee disability is manifested by severe recurrent subluxation/instability. 3. The Veteran's right knee disability is manifested by complaints of pain, with flexion limited to no less than 110 degrees and extension to no greater than 5 degrees. CONCLUSION OF LAW 1. The criteria for a rating higher than 10 percent for a right knee disability, based on limitation of motion, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. 2. From January 31, 2011 to May 11, 2021, the criteria for a 10 percent disability rating, but no higher, for right knee instability/subluxation, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5257. 3. From May 11, 2021, the criteria for a disability rating higher than 30 percent for right knee instability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service with the United States Army from December 1990 to January 1991, January 2003 to January 2004, and February 2007 to January 2010, with service in South West Asia from April 2003 to February 2004. The Veteran also had an additional 21-plus years of service with a Reserve Component. In February 2020, the Veteran testified at hearing before the undersigned Veterans Law Judge and a transcript of that hearing has been associated with the record. In March 2020, the Board remanded this matter for additional development. During the pendency of the appeal, a June 2021 rating decision, granted a 30 percent rating for the Veteran's right knee instability/subluxation, effective May 11, 2021. Although the Veteran has not filed a notice of disagreement with respect to these assigned rating, the Board considers the separate rating to be part of the Veteran's increased rating claim for his right knee disability. The Board notes that the Veteran's appeal originally included the issue of entitlement to service connection for right kidney cancer status post nephrectomy. However, during the pendency of the appeal, the agency of original jurisdiction (AOJ) granted that claim in the June 2021 rating decision. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). The record currently available to the Board contains no indication that the Veteran has submitted a notice of disagreement with the initial ratings or effective dates assigned. Thus, that claim is not in appellate status. Grantham, 114 F. 3d at 1158 (holding that a separate notice of disagreement must be filed to initiate appellate review of "downstream" elements such as the disability rating or effective date assigned). Increased Rating Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2009). The assignment of a particular diagnostic code to evaluate a disability is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis, and demonstrated symptomatology. The rating of a knee problem in Veteran's Law is complicated. Traumatic arthritis shown by x-ray studies is rated based on limitation of motion of the affected joint. When limitation of motion would be noncompensable under a limitation-of-motion code, but there is at least some limitation of motion, a 10 percent disability rating may be assigned for each major joint so affected. 38 C.F.R. § 4.71a, Diagnostic Codes 5003 (degenerative arthritis) and 5010 (traumatic arthritis). Diagnostic Code 5003 states that 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. 38 C.F.R. § 4.71a, Diagnostic Code 5003. When, however, the limitation of motion is noncompensable under the appropriate Diagnostic Codes, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. In the absence of limitation of motion, x-ray evidence of arthritis involving two or more major joints or two or more minor joint groups, will warrant a rating of 10 percent; in the absence of limitation of motion, x-ray evidence of arthritis involving two or more major joint groups with occasional incapacitating exacerbations will warrant a 20 percent rating. The above ratings are to be combined, not added under Diagnostic Code 5003. 38 C.F.R. § 4.71a, Diagnostic Code 5003, Note 1. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, with or without degenerative arthritis, it is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. §§ 4.59; see Burton v. Shinseki, 25 Vet. App. 1, 5 (2011) (holding that the provisions of 38 C.F.R. § 4.59 are not limited to disabilities involving arthritis). Moreover, when evaluating musculoskeletal disabilities, VA may, in addition to applying the schedular criteria, assign a higher disability rating when the evidence demonstrates functional loss due to limited or excessive movement, pain, weakness, excessive fatigability, or incoordination, to include during flare-ups and with repeated use, if those factors are not considered in the rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202 (1995); Burton, 25 Vet. App. at 5. The Court also held in Correia v. McDonald, 28 Vet. App. 158 (2016) that the final sentence of 38 C.F.R. §§ 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Nonetheless, a disability rating higher than the minimum compensable rating is not assignable under any diagnostic code relating to range of motion where pain does not cause a compensable functional loss. Rather, the "pain must affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance," as defined in 38 C.F.R. §§ 4.40, before a higher rating may be assigned. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011) (noting that while "pain may cause a functional loss, pain itself does not constitute a functional loss," and, is therefore, not grounds for entitlement to a higher disability rating). The Veteran's service-connected right knee disability has been assigned a 10 percent disability rating for limitation of extension under Diagnostic Codes 5003-5261, and a 30 percent rating, effective May 11, 2021, for instability/subluxation under Diagnostic Code 5257. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5261, 5257. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Flexion of the leg limited to 60 degrees warrants a 0 percent rating, flexion limited to 45 degrees warrants a 10 percent rating, flexion limited to 30 degrees warrants a 20 percent rating, and flexion limited to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Extension limited to 5 degrees warrants a 0 percent rating, extension limited to 10 degrees warrants a 10 percent rating, extension limited to 15 degrees warrants a 20 percent rating, extension limited to 20 degrees warrants a 30 percent rating, extension limited to 30 degrees warrants a 40 percent rating, and extension limited to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Flexion of the knee to 140 degrees is considered full and extension to 0 degrees is considered full. See 38 C.F.R. § 4.71, Plate II. VA's General Counsel has held that separate ratings may be assigned for disability of the same joint under Diagnostic Codes 5260 (for limitation of flexion) and 5261 (for limitation of extension). VAOGCPREC 9-2004 (September 2004). In contrast, an evaluation under Code 5003 may not be combined with one under Code 5260 or Code 5261; Code 5003 does not specify the plane of limited motion considered, and so evaluation under either of the other limitation of motion Codes forecloses the possibility of multiple evaluations. See generally VAOPGCPREC 23-97 and VAOPGCREC 9-98; 38 C.F.R. § 4.14. Prior to the regulatory change, the rating schedule provided for a 10 percent rating for slight recurrent subluxation or lateral instability, a 20 percent rating for moderate recurrent subluxation or lateral instability, and a 30 percent rating for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. As of February 7, 2021, under the amended criteria for recurrent subluxation or lateral 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 (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 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. 38 C.F.R. § 4.71a, Diagnostic Code 5257. As of February 7, 2021, under the amended criteria for recurrent 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 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. 38 C.F.R. § 4.71a, Diagnostic Code 5257. For patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. 38 C.F.R. § 4.71a, Diagnostic Code 5257, Note (1). A surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). 38 C.F.R. § 4.71a, Diagnostic Code 5257, Note (2). Dislocated semilunar cartilage, with frequent episodes of "locking," pain, and effusion into the joint will be rated a maximum 20 percent disabling. 38 C.F.R. § 4.71a , Diagnostic Code 5258. Removal of the semilunar cartilage, if symptomatic, will be rated a maximum 10 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Code 5259. The Board has also considered whether separate or increased evaluations are warranted under any other Diagnostic Codes pertaining to knee disabilities that would afford the Veteran higher ratings. Here, there is no evidence of ankylosis of the knee to warrant a rating under Diagnostic Code 5256; there is no evidence of dislocated semilunar cartilage, or removal of the semilunar cartilage under Diagnostic Codes 5258, 5259; no evidence of malunion or nonunion of the tibia and fibula to warrant a rating under Diagnostic Code 5262 for impairment of the tibia, and; no evidence of genu recurvatum to warrant a rating under Diagnostic Code 5263. Hence, the Board will not discuss these Diagnostic Codes any further. Entitlement to higher disability ratings for the right knee disability The Veteran seeks higher disability ratings than those currently assigned for his right knee disability. On VA examination in November 2012, the examiner noted a diagnosis of osteoarthritis and patella alta, status post arthroscopic meniscectomy in December 2000. The Veteran was treated with physical therapy and pain medications, with no additional treatment. He described his right knee pain as 6/10 in severity. The Veteran denied flare-ups. Right knee flexion was to 130 degrees and extension was to 5 degrees with no objective evidence of pain or additional loss of motion with repetitive movement. Strength was 5/5. Stability testing was normal. There was no history of recurrent patellar subluxation or dislocation. The examiner found no evidence of knee instability. VA treatment notes in September 2014, show that the Veteran reported knee giving way and swelling. Examination showed no swelling, effusion, erythema, tenderness or gross instability. McMurray, anterior and posterior Drawer testing was negative. The Veteran had full range of motion of the right knee with discomfort on extreme of flexion. At the February 2020 Boar hearing, the Veteran knee swelling treated with Tylenol and icing. Reportedly, he could walk a quarter of a mile before his knee became stiff. On VA examination in May 2021, the examiner noted a history of arthroscopic right knee ligament repair in 2011. The Veteran described sharp pain, rated as 6/10 in severity, to medial aspect of right knee with limited range of motion. He treated his symptoms with Tylenol and Naproxen as needed. He endorsed daily flare-ups lasting approximately 30 minutes and manifested by sharp pain to medial aspect of right knee with limited range of motion. Flare-ups affected his ability to exercise, lift heavy items, climb stairs or do prolonged standing and walking. His symptoms were aggravated by prolonged standing, walking, climbing stairs and lifting items. His symptoms were alleviated by rest. The examiner noted a history of instability or recurrent subluxation of the knee. Effusion with overuse, was also noted. On active and passive range of motion right knee flexion was to 115 degrees and extension was to 0 degrees with no objective evidence of pain or additional loss of motion with repetitive movement or repeated use over time. During flare-ups, range of notion was reduced from 0 to 110 degrees. No pain was noted on weight bearing and non-weight bearing. There was no muscle atrophy. Right knee x-rays revealed osteoarthritis involving all three compartments, with mild lateral tibial subluxation, and the examiner noted lateral tibial subluxation. There was no crepitus, but the examiner noted sharp pain to the medial aspect of the right knee. There was no residual scarring visible. The Veteran used a cane and a brace for ambulation. There was a history of recurrent patellar instability. The Veteran was employed as a diet technician at a VA Hospital. Reportedly, he lost 0-1 week of work in the previous 12 months. The examiner noted difficulty with standing, walking and climbing stairs. The Board notes that Diagnostic Code 5003 cannot serve as the basis for a higher rating for the right knee disability, inasmuch as the knee is a single joint. A maximum rating of 10 percent would be assigned for the knee under Diagnostic Code 5003, therefore a higher rating is not warranted. 38 C.F.R. § 4.71a. Diagnostic Code 5003. Pertaining to limitation of motion, the Board finds that the record is adequate to address the concerns raised by the Court holdings in Sharp and Correia. Specifically, the Board finds that the post-Remand VA examination dated in 2021, provided VA with medical opinions evidence adequate to rate the Veteran's right knee when considering his complaints of pain with and without weight bearing and resistance in passive and active range of motion as well as during flare-ups because the examiner specifically addressed each of these concerns. Here, the range of motion findings detailed above, throughout the appeal, do not show limitation so severe as to meet the criteria for the next higher ratting under Diagnostic Codes 5260 or 5261. In this regard, during the course of the claim the Veteran's right knee flexion has been shown to be limited to, at worst, 110 degrees, and extension to 5 degrees. As such, the evidence does not reflect limitation of motion to a compensable level for the right knee under Diagnostic Codes 5260 and 5261, as his range of motion was beyond required flexion limited to 45 degrees and extension limited to 10 degrees, even when considering Deluca factors. 38 C.F.R. §§ 4.40 and 4.45. See DeLuca, 8 Vet. App. at 207; see also Mitchell, 25 Vet. App. at 32; Correia, 28 Vet. App. at 158; Sharp v. Shulkin, 29 Vet. App, 26 (2017). Thus, higher or separate ratings for limitation of extension and/or flexion of the right knee are not warranted. Although the Veteran has reported pain associated with his range of motion, the Court has held that "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." See Mitchell, 25 Vet. App. 32. Indeed, the Court found that nothing in its case law supports an appellant's contentions that he should be given the maximum disability ratings under Diagnostic Codes 5260 and 5261 simply because he experienced pain throughout the range of motion of the knee. Id. From January 31, 2011 to May 11, 2021, the Veteran reported knee instability and giving way, although there were no objective findings of recurrent subluxation or lateral instability. However, after examining the medical evidence, including the Veteran's statements, the Board finds that knee instability has (it appears) played a role in the knee condition. Accordingly, affording the Veteran the benefit of the doubt, the Board finds that from January 31, 2011 to May 11, 2021, a 10 percent disability rating for slight right knee instability under the rating criteria in effect prior to February 7, 2021, is warranted. There is no indication that any instability found to have been present was moderate in severity. Specifically, stability testing consistently revealed no abnormalities and muscle strength was full, with no atrophy. Additionally, there is no evidence that from January 31, 2011 to May 11, 2021 the Veteran was prescribed an assistive device for ambulation, to include a brace, cane, crutch or a walker, due to the right knee disability. Accordingly, a rating of 10 percent, but no higher, for recurrent subluxation and lateral instability of the knee is warranted from January 31, 2011 to May 11, 2021. 38 C.F.R. § 4.71a Diagnostic Code 5257. From May 11, 2021, the right knee has been assigned a 30 percent (maximum schedular) rating for instability under Code 5257. Neither the old criteria (in place prior to Prior to February 7, 2021) nor the new criteria (in place since February 7, 2021) provide for a rating in excess of 30 percent for instability. See 85 Fed. Reg. 76460, 76457 (Feb 7, 2021). Furthermore, the subluxation/instability of the Veteran's knee is not shown (or alleged) to have manifestations or to cause impairment not encompassed by the schedular criteria. Accordingly, a rating in excess of 30 percent under Code 5257 is not warranted for the right knee from May 11, 2021. Finally, it is noted that the Veteran's right knee disability involves surgical scarring and he has been assigned a separate noncompensable disability rating for his scarring. Therefore, the Board has considered whether the Veteran is entitled to a compensable rating for the scarring. VA examination reports throughout the appeal, noted that while there was surgical scarring, it was not painful or unstable, nor covering a total area greater than 39 square cm. Accordingly, a separate compensable rating is not warranted. See 38 C.F.R. § 4.118, Diagnostic Codes 7804, 7805. While the Veteran clearly has problems with his right knee (if he did not, there would be no basis for the current compensation level) the Board finds the medical evidence of record to be highly probative as to the current nature, extent, and severity of the Veteran's right knee disorder. The medical reports were based on physical examinations and provided sufficient information to allow the Board to apply the schedular criteria. Thus, although the Veteran's competent and credible reports of symptoms have been considered and are probative, the Board attaches greater probative weight to the clinical findings of skilled, unbiased professionals. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). As such, the objective medical findings and opinions provided by the VA examiners have been accorded greater probative weight and outweigh the Veteran's contentions. For all the foregoing reasons, the Board finds resolving all reasonable doubt in the Veteran's favor, from January 31, 2011 to May 11, 2021, a higher rating of 10 percent for slight right knee instability is granted. As of May 11, 2021, the preponderance of the evidence is against assignment of any higher and/or separate ratings for the right knee disability. See 38 U.S.C. § 5107 (b); Gilbert, supra. Finally, the Board does not find that this case raises a claim for a total disability evaluation based upon individual unemployability (TDIU). See Rice v. Shinseki, 22 Vet. App. 447, 454 (2009). The evidence of record, to include the treatment and examination reports, show that while the Veteran's service connected right knee disability is productive of some impairment, the Veteran remains employed full-time. Therefore, a claim for TDIU has not been raised by the record and no action pursuant to Rice is warranted. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Azizi, T. 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.