Citation Nr: 21063336 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 11-32 584 DATE: October 14, 2021 ORDER Entitlement to a rating in excess of 10 percent for instability of the left knee is denied. Entitlement to a rating in excess of 10 percent for limitation of flexion of the left knee is denied. FINDINGS OF FACT 1. The Veteran's instability of the left knee did not manifest functional impairment equivalent to moderate instability to the extent that a higher rating may be assigned during the appeal period. 2. The Veteran's limited flexion of the left knee did not manifest functional impairment equivalent to limited to 30 degrees to the extent that a higher rating may be assigned during the appeal period. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 10 percent for instability of the left knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5257 (2020). 2. The criteria for entitlement to a rating in excess of 10 percent for limitation of flexion of the left knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 1988 to October 1992. These matters come before the Board of Veterans' Appeals (Board) on appeal of a rating decision issued by the Department of Veterans Affairs (VA). The Veteran testified before the undersigned Veterans Law Judge during a hearing in May 2016. A transcript of the hearing is associated with the claims file. These matters have a long procedural history dating back to 2009. Most recently, in March 2021, the Board remanded these matters to obtain an addendum medical opinion that reconciled the Veteran's reports of instability and other evidence of record. After reviewing the record, the Board finds that the agency of original jurisdiction (AOJ) has substantially complied with the prior remand directives. Legal Criteria Rating Disabilities Disability ratings are determined by the application of VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519 (2007). In rating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity, or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing, and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that 38 C.F.R. § 4.59 applies to disabilities other than arthritis). However, painful motion alone is not a functional loss without some restriction of the normal working movements of the body. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing the new diagnostic code applicable to plantar fasciitis from 5285 to 5269). VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. VA must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). 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. In this regard, the Board observes that former regulation 38 C.F.R. § 19.9(b)(2) (now 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction. In Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. As such, pursuant to 38 C.F.R. § 20.904(d)(2), the Board will proceed to adjudicate the Veteran's claim. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flare ups from the veterans themselves, when a flare-up is not observable at the time of examination. Such information must be considered in rating the Veteran's functional impairment. Under 38 C.F.R. § 4.71a, DC 5256, a 30 percent rating is assigned for favorable ankylosis in full extension, or in slight flexion between 0 and 10 degrees, a 40 percent rating is assigned favorable ankylosis in flexion between 10 and 20 degrees, a 50 percent rating is assigned for favorable ankylosis in flexion between 20 and 45 degrees, and a 60 percent rating is assigned for extremely unfavorable ankylosis in flexion at an angle of 45 degrees or more. Prior to the regulatory change, 38 C.F.R. § 4.71a, DC 5257, 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. The terms "slight", "moderate", and "severe" are not defined in the regulations. Absent an express definition, it is presumed that VA regulations employ words using their ordinary dictionary meanings. "Slight" is generally defined as "small in size, degree, or amount"; "moderate" is generally defined as "of average or medium quality, amount, scope, range, etc."; and "severe" is defined as "extremely intense.'" Webster's New World Dictionary 1038, 871, 1071 (3d ed. 1988)). The Board must consider all factors that result in an equitable and just determination. As of February 7, 2021, under the amended regulations, DC 5257 states that a 30 percent rating is assigned for recurrent subluxation or instability with unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device and bracing for ambulation. A 20 percent rating is assigned for either one of the following: (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device for ambulation; or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device or bracing for ambulation. A 10 percent rating is assigned 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 or bracing for ambulation. As to patellar instability under 38 C.F.R. § 4.71a, DC 5257, the amended criteria provide a 30 percent rating 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. A 20 percent rating is assigned 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 10 percent rating is assigned 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. Under 38 C.F.R. § 4.71a, DC 5258, a 20 percent rating is assigned for cartilage, semilunar, dislocated, with frequent episodes of "locking," pain, and effusion into the joint. Under 38 C.F.R. § 4.71a, DC 5259, a 10 percent rating is assigned for cartilage, semilunar, removal of, symptomatic. Under 38 C.F.R. § 4.71a, DC 5260, a 10 percent rating is warranted for flexion of the knee limited to 45 degrees; a 20 percent rating is warranted for flexion limited to 30 degrees; and a 30 percent rating is warranted for flexion limited to 15 degrees. Under 38 C.F.R. § 4.71a, DC 5261, a 10 percent rating is warranted for extension of the knee limited to 10 degrees; a 20 percent rating is warranted for extension limited to 15 degrees; a 30 percent rating is warranted for extension limited to 20 degrees; a 40 percent rating is warranted for extension limited to 30 degrees; and a 50 percent rating is warranted for extension limited to 45 degrees. Normal range of motion of the knee is 0 degrees of extension to 140 degrees of flexion. See 38 C.F.R. § 4.71a, Plate II. Even if a veteran did not have compensable limited motion of the knee under DC 5260 or 5261, a separate rating could be assigned if there was evidence of full range of motion "inhibited by pain." Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). A rating assigned under DC 5260 or 5261 does not preclude, as a matter of law, a separate evaluation under DC 5258 or 5259. Lyles v. Shulkin, 29 Vet. App. 107, 115 (2017). It also noted that the revisions that went into effect on February 7, 2021 did not make any substantive changes to Diagnostic Codes 5258, 5260, and 5261. Regarding the changes to DC 5257, the Board finds that the prior version is more favorable to the Veteran because the new version sets more criteria and qualifiers as to when disability ratings may be assigned for instability. 38 C.F.R. § 4.71a, DC 5257 (2021) (i.e., requiring a prescription for an assistive device in order to grant a 20 percent rating). The prior version will be applied to the Veteran's claim. 1. Entitlement to a rating in excess of 10 percent for instability of the left knee 2. Entitlement to a rating in excess of 10 percent for limitation of flexion of the left knee The Board notes that a previous decision provided an in-depth listing of the medical evidence prior to August 2017. See BVA Decision, August 2017. Rather than repeat such listing herein, the Board incorporates it by reference. The Veteran underwent a VA examination in October 2019. He reported feeling a numbness to his toes and that his leg gets stiff and aches. He indicated he was employed as a special educator. He denied flare-ups of left knee symptoms. Range of flexion of the left knee was 0 to 135 degrees, and extension 135 to 0 degrees. There was no evidence of pain with weightbearing or localized tenderness or pain on palpitation, but there was evidence of crepitus. The Veteran performed repetitive use testing without additional functional loss. The examiner found that the Veteran would not suffer additional functional impairment after repeated use over time. Joint stability testing was normal and there was no evidence of recurrent subluxation or lateral instability. The Veteran attended a VA examination in April 2021. He reported that his knee locks when he walks, and has pain in the front of the knee in the morning and when going upstairs. He denied flare-ups of left knee symptoms. The examiner found that the Veteran had a history of "intermittent locking" due to instability. Range of motion testing showed 0 to 100 degrees flexion and 100 to 0 degrees extension. Pain causing functional loss was noted on flexion. Passive range of motion was to 0 to 110 degrees. There was evidence of pain not causing functional loss on weightbearing and with active motion. The examiner found that the evidence did not suggest that the Veteran would be significantly limited by functional loss after repeated use over time. The examiner found recurrent subluxation or persistent instability in the left knee and a partial tear of the meniscus, with symptoms of frequent joint locking. The Veteran did not report using any assistive devices and there was no ankylosis of the knee joint. VA treatment records show that the Veteran had an orthopedic surgery video consultation in June 2020. He reported left knee pain and difficulty walking, with the knee feeling unstable, buckling, and giving out. He stated that his leg was weak and had to drag it, but the clinician noted that the Veteran was able to walk on his heels when asked. The clinician diagnosed left knee pain, with the weakness likely due to quadriceps atrophy from disuse, and discussed his findings with the Veteran. He recommended that the Veteran lose weight, practice standard conservative management for knee pain, and placed a consult for physical therapy. The Veteran appeared in a VA emergency department in July 2021. He complained of left knee pain and swelling over the past two months. The physician found that the "left knee has scars from previous surgery and mild swelling, no crepitus, mild tenderness. Left ankle has moderate swelling, mild tenderness, no crepitus, no deformity, or other signs of trauma. Otherwise, all joints and muscles are symmetric. Patient with full range of motion to the upper and lower extremities." The Veteran was discharged home and encouraged to follow-up with his doctors. Later that month, the Veteran appeared for a VA orthopedic surgery consultation. He endorsed left knee pain and tingling, and asserted that it was causing left ankle pain as well. The clinician noted that the Veteran's gait was stable without assistive devices, no effusion, range of motion 0 to 120 degrees with a 2 degree give with varus stress in extension, stable anterior and posterior and mediolateral ligaments, and tenderness to palpitation at the medial joint line. The examiner recommended weight loss and physical therapy for quad strengthening exercises. The record reflects a medical opinion from Dr. J.W. dated July 2021. After reviewing the claims file, Dr. J.W. opined that the Veteran "has not, in actuality, asserted 'throughout the appeal period that he has knee instability.' For example, Veteran specifically denied any instability at the September 2009 examination. (And the September 2009 objective findings did not actually reveal knee instability, only some instability in the left, and right medial collateral ligament MCL - and left and right lateral collateral ligament LCL - representative of MCL and LCL strain bilateral, but not specifically resulting in instability of the knee in total. MCL and LCL instability never again objectively documented for the Veteran, so clearly not a chronic or persistent issue for the left or right knee.)" She further stated that the "Veteran did not report any instability at the 6/2015 VA examination and denied weakness in the left knee 10/2016. (No joint instability identified on objective examination 6/2015 and 10/2016 as well.) Veteran also never acknowledged left knee instability at the May 2016 hearing despite multiple promptings by the Judge. (Veteran complained of pain, locking up of the left knee and difficulty with function, but specifically did not note a sense of instability for the left knee.). The June 2011 VA PT notes indicated laxity on the anterior drawer testing (and Veteran did complain here of knee feeling like will give out), but noted that the laxity was identified in BOTH right and left knees, so not necessarily pathological. Furthermore, the June 2011 PT notes otherwise indicate some weakness on examination associated with left knee, but not instability on examination. Therefore, the laxity on anterior drawer testing did not translate specifically into left (or right) knee instability overall in 2011 regardless. Thus, it can be established that Veteran did not assert consistently that he experienced left knee instability over time, and the objective records do not support any persistent left knee instability regardless." Dr. J.W. further reconciled the reports of the October 2019 VA examination with the June 2020 orthopedic note, in addition to other conflicting evidence, but found that it still would not suggest recurrent instability. She concluded that, in her medical judgment and based on the available record, the Veteran has not had persistent or even recurrent instability or subluxation of the left knee. The Board has reviewed the remainder of the Veteran's VA and private medical records. Such records do not show evidence of functional impairment to the extent that higher ratings may be assigned for the left knee. See 38 C.F.R. § 4.2. After careful review of the record, the Board finds that higher staged ratings for the Veteran's left knee disability is not warranted. Regarding range of motion, the Board observes that the Veteran's documented range of motion has not met the threshold for a compensable rating at any time during the rating period. See 38 C.F.R. § 4.71a, DC 5260-5261. He has been assigned a 10 percent evaluation based on his reports of painful, but not otherwise compensable, limitation of motion. 38 C.F.R. § 4.59; Burton, 25 Vet. App. at 5. This is the maximum rating that may be assigned based on the facts and law applicable to this case. The Veteran's reports of functional impairment with flare-ups and after repeated use over time have been considered. The Board observes that the June 2015 VA examination was conducted during a flare-up. As such, it adequately represents the picture of functional loss during such periods, and the Veteran's documented range of motion of 95 degrees flexion and 0 degrees extension does not meet the criteria for a compensable rating. 38 C.F.R. § 4.71a, DC 5260-5261. The Board notes that the 2009 and 2015 VA examiners found that the Veteran would experience functional loss after repeated use over time, but did not provide an estimate in degrees of lost motion. Here, the Board emphasizes that functional loss after repeated use over time must result in limitation of motion or function beyond that contemplated by the already provided evaluation. With that in mind, consideration has been given to the Veteran's reports, but no evidence suggests that they would warrant a higher evaluation. The Veteran's worst documented range of flexion was 0 to 95 degrees during a flare-up and he consistently performed repetitive use testing without additional functional loss. This indicates that his range of motion, even during periods of exacerbation, did not reach the threshold for a compensable rating. The Board notes that the 2019 and 2021 VA examiners found that the Veteran would not have functional loss after repeated use over time based on their findings on examination. Moreover, contemporaneous VA treatment records contain little, if any, reports pertaining to functional ability after repeated use over time. In fact, in October 2019, the Veteran reported that his left knee feels "better with walking", which does not suggest functional loss after repeated use over time. See CAPRI, July 2020 (Physical Medicine Rehab Note p.37). The rating schedule provides that the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illness proportionate to the severity of the several grades of disability. In this case, the reports of functional loss after repeated use over time are not quantifiable, not consistent, and not of sufficient duration to warrant a change in evaluation. Regarding instability of the left knee joint, the Board finds that the record does not support functional impairment greater than slight instability of the left knee joint. See 38 C.F.R. § 4.71a, DC 5257. The Veteran has reported intermittent locking and giving way of the knee. However, objective joint stability testing has repeatedly shown normal results. See C&P exam, June 2015; C&P Exam, November 2019, CAPRI, August 2021 (July 2021 Orthopedic Surgery Note p.1). As the medical evidence has repeatedly shown normal findings, it suggests that the Veteran's joint instability was no more than slight. This is confirmed by the assessment of the 2009 VA examiner, who also performed objective testing, and concluded that the left medial and lateral collateral ligaments had only "slight instability". The Board acknowledges that a veteran is considered competent to report symptoms of knee instability. English v. Wilkie, 30 Vet. App. 347 (2018). However, the Veteran's reports have not been consistent or reflective of functional impairment to the extent that a higher rating is warranted. 38 C.F.R. § 4.1. Lastly, although the parties to the June 2018 Joint Motion for Remand agreed that some medical evidence has found that the Veteran used an assistive device, the record does not suggest, and the Veteran has not asserted, that he was prescribed an assistive device by a medical professional specifically for his left knee injury. See CAVC Decision, June 2018. The Board has also reviewed the report of Dr. J.W. regarding the question of instability. She found that the Veteran's reports and history, from a medical perspective, were not indicative of recurrent instability during the rating period. Her findings are probative and made after a thorough review of the claims file, to include the Veteran's lay reports. Nevertheless, as the Veteran is considered capable of describing instability, and has been awarded a 10 percent rating for instability of the left knee joint, the Board will resolve reasonable doubt in his favor and not disturb the assigned 10 percent rating herein. 38 C.F.R. § 4.7. The Board has considered the potential of a higher rating under the other diagnostic codes relevant to the left knee. However, the record does not support the existence of ankylosis, impairment or malunion of the tibia or fibula, or genu recurvatum to the extent that higher ratings may be assigned. 38 C.F.R. § 4.71a, DC 5256, 5262, 5263. Consideration has also been given for a potential rating under DC 5258 or 5259 based on the Veteran's residuals of the 1997 meniscal injury. In that regard, the medical evidence has found that the Veteran's meniscal injury results in intermittent locking which was the basis of the grant for a 10 percent rating for recurrent instability under 5257. See C&P Exam, April 2021. A separate rating under 5258 or 5259, is not appropriate under the facts of this case as it would compensate the Veteran twice for the same functional impairment. 38 C.F.R. § 4.14. Moreover, the record does not show symptomatic removal of semilunar cartilage or that the left knee meniscal cartilage injury exhibited episodes of pain, "locking", and effusion into the knee joint, which are required for a 20 percent rating consistent with the successive criteria under DC 5258. In sum, the preponderance of the evidence does not support the claims for higher staged ratings for the left knee disability. The appeal must be denied. Finally, the Board notes that the Veteran has asserted that his left knee pain has resulted in left ankle pain. Informal claims are no longer permissible after March 24, 2015, but to the extent that the Veteran wishes to claim service connection for a left ankle disability, he may do so by filing the appropriate form. See 38 C.F.R. § 3.155. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Reed, 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.