Citation Nr: 21062853 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 17-49 953 DATE: October 12, 2021 ORDER A rating higher than 10 percent for a right knee disability (limitation of flexion) is denied. A rating higher than 10 percent for right knee instability is denied. FINDINGS OF FACT 1. The Veteran's right knee limitation of flexion has not been shown to be limited to 30 degrees or less; there is no evidence of ankylosis. 2. The Veteran's right knee instability more closely approximates slight instability. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 10 percent for right knee limitation of flexion are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5260. 2. The criteria for a rating higher than 10 percent for right knee instability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1978 to November 1979. These matters have a procedural history which includes a Board Decision in October 2018 and a July 2019 Order of the Court of Appeals for Veterans Claims (Court) which enacted a Joint Motion for Partial Remand (JMR) vacating portion of the Board's October 2018 Decision regarding ratings higher than 10 percent for the Veteran's right knee limitation of flexion and instability. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The April 2021 VA examination of the Veteran's right knee did not include testing of his left knee. VA has interpreted the Court's holding in to imply that all range of motion testing must include active motion, passive motion, weight-bearing motion, and non-weight-bearing motion, and must be compared to the opposite joint, when possible. Opposite joint testing excludes opposite joint testing when the opposite joint is "damaged," meaning it has a disorder that would make it abnormal. Correia v. McDonald, 28 Vet. App. 158 (2016). The April 2021 VA examiner noted the Veteran's left knee was "damaged" thus opposite joint testing was not able to be performed. The regulations pertaining to rating musculoskeletal disabilities were revised, effective February 7, 2021. Claims, such as this, pending prior to the effective date will be considered under both old and new rating criteria from that date, and whichever criteria is more favorable to the Veteran will be applied from that date. At the outset, as the Veteran's knee disability did not result in ankylosis, impairment of the tibia and fibula, or genu recurvatum, DCs 5256, 5262, and 5263 are not for application. Further, while the evidence of record shows the Veteran has a right knee meniscal tear, the evidence does not reflect that the semilunar cartilage is dislocated with frequent episodes of locking, pain, and joint effusion or that the semilunar cartilage has been removed. Thus, ratings under DCs 5258 and 5259 are inapplicable. Right Knee Limitation of Flexion The Veteran sought a rating higher than 10 percent for his right knee limitation of flexion. His limited flexion is rated under DC 5260. DC 5260 provides for a 20 percent rating with flexion limited to 30 degrees and the highest available 30 percent rating with flexion limited to 15 degrees. DC 5260 was not subject to any changes in the 2021 revisions. Normal extension of the knee is to 0 degrees and normal flexion of the knee is to 140 degrees. 38 C.F.R. § 4.71a, Plate II. After review of the evidence, the Boar is unable to find that a rating higher than 10 percent for the Veteran's limitation of flexion of his right knee is warranted. In the JMR, the parties agreed that the prior VA examinations did not adequately address the Veteran's limitation of flexion while experiencing a flare-up. An April 2021 VA examination addressed those concerns and found that the Veteran's flare-ups would reduce his flexion to 100 degrees, which was 40 degrees less than his documented active range of motion. Throughout the course of the Veteran's claim, there are no records or other evidence which indicated that his limitation of flexion more closely approximated a limitation to 30 degrees or less. His at worst reported flexion was to 90 degrees. See January 2018 VA examination. Thus, even considering further reduction for flare-ups, using the 40 degree differential set out by the April 2021 VA examination, the Veteran's at worst flexion during a flare-up would be limited to 50 degrees which is still well short of the 30 degree or less limitation mandated by the rating criteria for a rating higher than 10 percent. The Board notes that while it has considered the Veteran's statements and other medical records of evidence, there is no evidence which contradicts the findings of the April 2021 examiner. The Veteran and his representative have not identified or introduced any evidence which contradicts the findings of the April 2021 VA examiner, indicated that the April 2021 examination was inadequate, or stated that its findings were not reflective of the degree of the Veteran's disability. See August 2021 Informal Hearing Presentation. The Board has also considered the Veteran's lay statements. While the Veteran is competent to report his symptoms, whether a disability meets the schedular criteria for the assignment of an evaluation is a factual determination by the Board based on the Veteran's complaints coupled with the medical evidence. Here, although the Veteran may believe that he meets the criteria for a higher rating, the medical findings show that he does not meet the schedular requirements for a rating higher than 10 percent, as explained and discussed above. The Board has concluded that the medical evidence, prepared by skilled professionals, is more probative regarding the Veteran's degree of disability. Right Knee Instability The Veteran's right knee instability is rated at 10 percent under DC 5257. DC 5257 was amended in 2021. Prior to the revisions, DC 5257 provided that recurrent subluxation or lateral instability which is "severe" is rated at 30 percent; "moderate" at 20 percent; and slight at 10 percent. Descriptive terms such as "slight," "moderate," and "severe" are noted defined in the Rating Schedule. The Board finds that DC 5257 prior to the 2021 revisions is more favorable to the Veteran as the revised DC criteria require diagnosis of either a sprain, incomplete ligament tear, or complete ligament tear, which is not found in the Veteran's right knee medical treatment. See April 2019 VA examination. The parties to the JMR indicated that the Board did not provide adequate reasons why the Veteran's knee instability was not assigned a rating higher than 10 percent. The Veteran underwent VA examinations in December 2015, August 2017, January 2018, and most recently in April 2021. None of these examinations found that the Veteran's right knee instability was either moderate or severe. Indeed, the December 2015, August 2017, and April 2021 examinations did not find instability of the Veteran's knee. Specifically, the April 2021 VA examination noted that the Veteran did not report any right knee instability. The Veteran, in his subsequent August 2021 IHP, has not indicated to the Board that the April 2021 VA examiner mis-represented his statements regarding his right knee stability or the severity of such a condition. The Board based its grant of a 10 percent rating for the Veteran's right knee instability on the December 2015 VA examination report, January 2016 VA treatment record, August 2017 VA examination report, and January 2018 VA examination report which noted the Veteran constantly used a cane due to the right knee disability along with the Veteran's March 2016 Notice of Disagreement and the January 2018 VA examination report, which found a positive history of slight right knee instability. There is no evidence which showed the Veteran had symptomology or medical findings indicating his instability could be characterized as moderate or severe. A February 2016 VA record showed the Veteran reported his knee did not give way. A January 2017 VA record noted no falls within the last 12 months. A September 2020 VA medical record showed the Veteran denied two or more falls within the 12 months prior as well as not having any difficulty walking or on balance. He specifically denied falls due to instability in his April 2021 examination. The Veteran has not identified any evidence which would indicate his instability was such that a characterization as "moderate" or "severe" is warranted. As such, the Board finds that there is no evidence of record which would support a rating higher than 10 percent for the Veteran's right knee instability. (Continued on the next page) The Board has again considered the lay statements of evidence and has concluded that the Veteran's statements do not warrant a rating higher than 10 percent for instability. Though the Veteran's March 2016 NOD reported his instability was "severe", as discussed above there are no medical records which show that the Veteran had such instability, that he had fallen, reported his knee giving out, or had any other complaints of instability. Additionally, the Board finds that the medical evidence, prepared by skilled professionals, is more probative regarding the Veteran's degree of disability. As the preponderance of the evidence is against the claims, the benefit-of-the-doubt rule is not for application, and the claims must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Parrish, 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.