Citation Nr: 21063526
Decision Date: 10/14/21	Archive Date: 10/14/21

DOCKET NO. 10-33 825
DATE: October 14, 2021

ORDER

Entitlement to an initial rating in excess of 10 percent for left knee patellofemoral syndrome with limitation of motion is denied.

Entitlement to an initial rating in excess of 10 percent for right knee patellofemoral syndrome with limitation of motion prior to January 13, 2017, is denied.

Entitlement to a 20 percent rating for a right knee meniscus condition from January 13, 2017, is granted.

Entitlement to a separate 10 percent rating for right knee instability from August 12, 2020, is granted.

Entitlement to a separate 10 percent rating for left knee instability from August 12, 2020, is granted.

FINDINGS OF FACT

1. For the entire period on appeal, the Veteran's left knee patellofemoral syndrome has been manifested by flexion that has been limited to 90 degrees at worst; extension to 0 degrees; no meniscal condition; no locking; no ankylosis; no tibia or fibula impairment or genu recurvatum; and with functional loss due to pain. 

2. Prior to January 13, 2017, the Veteran's right knee patellofemoral syndrome was manifested by flexion that has been limited to 100 degrees at worst; extension to 0 degrees; no meniscal condition; no locking; no ankylosis; no tibia or fibula impairment or genu recurvatum; and with functional loss due to pain.

3. From January 13, 2017, the Veteran's right knee disability most nearly approximated a disability manifested by symptoms of frequent episodes of locking, pain, and effusion into the joint, but no compensable limitation of flexion or extension; no ankylosis; no tibia or fibula impairment or genu recurvatum; and functional loss due to pain.

4. Prior to August 12, 2020, there was no indication of instability of the right knee; from August 12, 2020, the Veteran's right knee instability manifested as no more than slight.

5. Prior to August 12, 2020, there was no indication of instability of the left knee; from August 12, 2020, the Veteran's left knee instability manifested as no more than slight.

CONCLUSIONS OF LAW

1. The criteria for entitlement to an initial rating in excess of 10 percent for left knee patellofemoral syndrome with limitation of motion have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.25, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5260-5003.

2. Prior to January 13, 2017, the criteria for entitlement to an initial rating in excess of 10 percent for right knee patellofemoral syndrome with limitation of motion have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.25, 4.40, 4.45, 4.59, 4.71a, DC 5260-5003.

3. From January 13, 2017, the criteria for entitlement to a 20 percent rating for a right knee meniscus condition have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.25, 4.40, 4.45, 4.59, 4.71a, DC 5258.

4. From August 12, 2020, the criteria for entitlement to a separate 10 percent rating for right knee instability have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§  .1, 4.7, 4.10, 4.25, 4.40, 4.45, 4.59, 4.71a, DC 5257.

5.  From August 12, 2020, the criteria for entitlement to a separate 10 percent rating for left knee instability have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.25, 4.40, 4.45, 4.59, 4.71a, DC 5257.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Army from April 1995 to July 2001. 

These matters come before the Board of Veteran's Appeals (Board) from a May 2009 rating decision of the Agency of Original Jurisdiction. 

In a March 2017 decision, the Board denied the instant claims for higher ratings. The Veteran subsequently appealed these denials to the United States Court of Appeals for Veterans Claims (Court). In a May 2018 Amended Joint Motion for Remand (JMR), the Court vacated the Board's March 2017 decision and remanded the claims to the Board for further adjudication. 

Most recently, the Board remanded these claims in October 2020 to obtain adequate VA examinations. Specifically, to address the Court's holding in Sharp v. Shulkin, stating that the "an examination is inadequate when an examiner declines to offer an opinion without resorting to speculation, even when the examiner acknowledges that a veteran was not suffering from flare-ups on examination, and "fail[s] to ascertain adequate information i.e., frequency, duration, characteristics, severity, or functional loss regarding flares by alternative means." Id. at 34-35. The Veteran was afforded new VA knee examinations in April 2021 and June 2021. The Board finds the June 2021 VA examination is adequate. Accordingly, the Board finds there has been substantial compliance with its October 2020 remand directives and a new examination is not required. See Stegall v. West, 11 Vet. App. 268, 271 (1998).

Entitlement to increased initial disability ratings for bilateral knee patellofemoral syndrome

The Veteran seeks increased initial ratings for bilateral knee patellofemoral syndrome, each rated as 10 percent disabling from February 28, 2006.

Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). The Veteran's entire history is reviewed when making disability evaluations. See generally, Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. Where, as in the case of the issue on appeal, the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of staged ratings are required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Further, "[w]here 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."38C.F.R. § 4.7 (2017).

In addition, when assessing the severity of a musculoskeletal disability that is rated on the basis of limitation of motion, VA must also consider the extent that the veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when her symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination. See DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59.

When evaluating musculoskeletal disabilities, VA must consider whether a higher evaluation is warranted, where the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups. See 38 C.F.R. § § 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). Nevertheless, pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Moreover, functional impairment must be supported by adequate pathology. Id.; Johnson v. Brown, 9 Vet. App. 7, 10 (1996) (both citing to 38 C.F.R. § 4.40).

The Board acknowledges that the ratings criteria for the musculoskeletal system was updated during the appeal period, effective February 7, 2021; that new criteria will be address in a separate section below.

The Veteran's bilateral patellofemoral syndrome is presently rated under Diagnostic Code 5260-5003, which compensates for limitation of flexion of the knee. Under the assigned diagnostic criteria, a noncompensable rating is assigned for limitation of flexion to 60 degrees. A 10 percent rating is assigned for limitation of flexion to 45 degrees. A 20 percent rating is assigned for limitation of flexion to 30 degrees. Finally, a 30 percent rating is assigned to limitation of flexion to 15 degrees or less. 38 C.F.R. § 4.71a, DC 5260.

Normal range of motion of the knee is to 0 degrees extension and to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II.

The Board observes that when a rating based on limitation of motion is noncompensable, but pain is evident, a 10 percent rating is appropriate for the joint in question. 38 C.F.R. § 4.71a, DC 5003. 

A separate rating may be assigned for knee disabilities based on limitation of flexion as well as limitation of extension of the knee. Likewise, separate ratings may be assigned based on limitation of motion, as well as instability or subluxation, if found. See VAOPGCPREC 23-97 (Multiple Ratings for Knee Disability). Diagnostic Code 5257 provides ratings of 10, 20, and 30 percent for recurrent subluxation or lateral instability of the knee, which is slight, moderate, or severe, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5257. For purposes of the analyses below, the Board observes that the terms "slight," "moderate" and "severe" are not defined in VA regulations, and the Board must arrive at an equitable and just decision after having evaluated the evidence. 38 C.F.R. § 4.6.

DC 5258 assigns a 20 percent rating based on dislocation of semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. 38 C.F.R. § 4.71a, DC 5258. DC 5259 assigns a 10 percent rating based on symptomatic removal of semilunar cartilage. 38 C.F.R. § 4.71a, DC 5259.

Disabilities of the knees may also be granted for ankylosis, impairment of the tibia or fibula, or genu recurvatum. However, the medical evidence of record does not support any such pathology.

The Board also notes that the Veteran is separately rated for scars associated with his right knee disability, and that rating is not on appeal. As such, the Board will not discuss the Veteran's knee scars or rating criteria pertaining to scars.

Factual background

Turning to the evidence, the Veteran underwent a VA examination in April 2009. The Veteran reported flare-ups marked by worsening symptoms with walking, climbing stairs or bending down. Bilaterally, active and passive flexion were limited to 130 degrees with extension to 0. There was no change with repetition. Pain was noted on exam, and the examiner found it was conceivable that pain could further limit function but did not attempt to express any of this in terms of additional limitation of motion because it could not be determined with any degree of medical certainty. The examiner found no erythema or effusion. Both knees were stable to varus and valgus stress, instability testing was negative. The examination was positive for patella grind. The Board previously found this examination inadequate as the examiner did not comment on the effects of weight bearing and non-weightbearing on the knee. Additionally, the examiner's failure to elicit adequate information regarding flares rendered the examination insufficient as to functional loss.   

VA treatment records from June 2011 reveal mild changes of degenerative arthritis in the left knee. No fracture or dislocation was noted. No effusion and no joint line tenderness were noted. There was evidence of crepitus in both knees with the right knee worse than the left. In August 2012, a VA physician noted medial tenderness of the knees and slight laxity noted medially with the right knee. December 2013 records not osteoarthrosis involving the knees with chronic flare-ups. 

The Veteran underwent a second VA examination in April 2014. The Veteran reported pain with activity, especially deep knee bending. He described flare-ups as causing swelling and pain when walking or standing. Range of motion testing revealed bilateral flexion limited to 115 degrees with full extension. There was no objective evidence of painful motion and no additional functional loss of change of range of motion with repetitive use testing. There was pain on movement with repetitive use and pain on palpation. Muscle strength was normal, there was no history of instability or recurrent patellar subluxation. The examiner noted the presence of shin splints. The were no meniscal conditions noted on exam and the Veteran did not report using assistive devices. The examiner noted the Veteran may be limited in heavy physical labor and deep knee flexion such as lunging or squatting. 

October 2016 VA Primary Care records note the Veteran complained of worsening bilateral knee pain. The Veteran's gait was steady without assistive devices, but he was slow to rise from a seated position. Examination of the knees revealed mild pain along lateral and medial areas of both knees on palpation, no swelling or fluid collections, mild pain with movement of the legs, tight patella, and popping with rising to standing position. 

In December 2016 correspondence, the Veteran reported that he misunderstood the instructions at previous exams. He noted the examiner told him to bend his knee until it hurts which the Veteran understood to mean until he could not bear the pain. The Veteran explained that he did not need to bend his knees to experience pain because they hurt all the time. The Veteran also contended that his knee should be rated under DC 5257 because he had been informed by his physician that x-rays showed his "kneecaps are missing cartilage and are loose and this movement has made [his] knees less stable than they should be." 

In January 2017, the Veteran was treated for worsening right knee pain. Treatment records show the Veteran's pain increased with weight bearing. The right knee was tender and painful over the medial meniscus. The lateral meniscus and cruciate and collateral ligaments were intact. Pleural effusion was noted on examination. Exam was suggestive of medial meniscal tear, so an MRI was ordered which showed a tear in the posterior horn of the medial meniscus with minimal associated effusion. The Veteran underwent a right knee arthroscopy with debridement in February 2017. 

The Veteran underwent another VA examination in October 2019. As noted above, the examination was found inadequate. However, the Veteran reported weekly flare-ups lasting a day. The Veteran described his knee disability as resulting in inability to ride a bike, and difficulty climbing stairs quickly, kneeling, squatting, sitting for more than 5 minutes, standing for more than 10 minutes, or walking for more than 2 blocks. Flexion was limited to 100 degrees on the right and 90 degrees on the left with extension to 0. Pain in flexion and extension was noted on exam as causing functional loss. Examination revealed subpatellar tenderness on palpation and objective evidence of crepitus. There was no additional functional loss after 3 repetitions.  The examiner noted that pain significantly limited functional ability with repeated use over time and flare-ups. However, the examiner did not describe the loss in terms of range of motion and did not provide an adequate reason for failing to do so. Additional contributing factors to the disability included swelling. The knees showed normal muscle strength, no atrophy, and no ankylosis, and no instability. The examiner noted a history of bilateral daily effusion and recorded a right-side meniscus condition with frequent episodes of joint pain and joint effusion. Passive range of motion and pain were unchanged from active range of motion. Additionally, non-weight bearing range of motion and pain were unchanged from weight bearing range or motion. Finally, the October 2019 examiner opined that the Veteran's current bilateral knee degenerative joint disease, patellofemoral syndrome and status post right knee degenerative meniscus tear were the result of his military service as they were consistent with the nature progression of his service-connected bilateral knee conditions. 

In July 2020, the October 2019 examiner again failed to provide estimates of the additional loss of range of motions or other imitations during flare-ups. In August 2020, the Veteran described difficulty standing for any length of time during flare ups. He noted that walking any distance was a challenge and that sometimes his knees would give out as he walked up stairs. He also reported that he could not ride a bike. 

The Veteran underwent another VA examination in April 2021. The Veteran reported flare-ups about 7-8 times per month resulting in elevated knee pain. He noted that "lots of up and down", "being more active" and ascending and descending stairs, and long drives elevated his knee pain. Flexion was limited to 115 degrees on the right and 120 degrees on the left with extension to 0. There was evidence of pain with passive motion, objective evidence of crepitus, objective evidence of localized tenderness or pain on palpation of the medial and lateral joint line bilaterally. The Veteran was able to perform repetitive use testing without additional loss of function. The examiner found pain, fatigability, weakness, lack of endurance, or incoordination did not significantly limit functional ability with repeated use over time or flare ups. The Veteran reported functional loss. However, the examiner found that the Veteran had no functional loss because he negotiated stairs, worked with kids, and drove and sometimes avoided rest, even when in pain, due to life commitments. The examiner found the Veteran did not report or have a history of instability, recurrent subluxation, or frequent effusion of the knees. The knees showed normal muscle strength, no atrophy, no ankylosis, and no instability. The examiner noted a right-side meniscus condition repaired by meniscectomy in 2017. The Board finds this examination is inconsistent with the lay and medical evidence of record and thus is inadequate for rating purposes. 

The Veteran was afforded another VA examination in June 2021. The examiner found that pain and weakness significantly limited functional ability with flare ups of the right knee. In the left knee, pain, weakness, and lack of endurance significantly limited functional ability during flare ups. The examiner estimated that during a flare up flexion would be limited to 120 degrees bilaterally with full extension. The Veteran reported that his knee disability interfered with walking, prolonged standing, knee bending, using stairs, seating, driving, and kneeling. The Veteran did not report a history of instability, recurrent subluxation, or frequent effusion of the knee. Range of motion testing revealed flexion limited to 130 degrees bilaterally with extension to 0. Pain in flexion and extension was noted on exam as causing functional loss. Passive range of motion was the same as active range of motion. There was evidence of pain with weight bearing, non-weight bearing, active motion, and passive motion.  Examination revealed tenderness on palpation and objective evidence of crepitus. There was no additional functional loss after 3 repetitions.  There were no additional contributing factors to the disability. The knees showed normal muscle strength, no atrophy, and no ankylosis, and no instability. The Veteran had not been prescribed any assistive devices and there was no medical evidence of recurrent subluxation. The examiner noted a right-side meniscus condition with frequent episodes of joint pain and joint effusion requiring arthroscopic repair in 2017. Residuals of the surgery included pain and limited range of motion. 

Left Knee Analysis

From the date of service connection, the Veteran's left knee disability is assigned a 10 percent rating for functional loss due to painful motion pursuant to 38 C.F.R. § 4.59. Under the provisions of 38 C.F.R. § 4.59, the lowest compensable rating available for limitation of motion for a joint is allowed if there is acknowledged painful motion even if the range of motion is not limited to the lowest compensable level under the applicable diagnostic code. Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). During the appeal period, the record reflects that the Veteran experiences functional loss due to pain on motion for his left knee. As such, the lowest compensable rating for limitation of motion of the knee, which is 10 percent under Diagnostic Code 5260, is warranted. See 38 C.F.R. § 4.71a; DeLuca v. Brown, 8 Vet. App. 202 (1995). As for additional compensation for functional loss, throughout the appeal period the Veteran has reported and been noted to have pain on use of his knee, but not other functional loss of his knee. His difficulty with stairs, squatting, etc., are contemplated in his 10 percent rating for painful motion. In the absence of additional evidence of functional loss of the left knee, a higher rating is not warranted.

However, a higher rating is not warranted. Under Diagnostic Code 5260, a 20 percent rating requires flexion limited to 30 degrees. Throughout the appeal period, the record reflects that the Veteran's most limited range of motion for flexion of the left knee was 0 to 90 degrees (October 2019 VA examination).

The Board has also considered a higher rating under other potentially applicable diagnostic codes. As to Diagnostic Code 5261, a 20 percent rating requires limitation of extension of 15 degrees. During the appeal period, the record reflects that the Veteran has always had full extension of the left knee.

The Veteran first contended that he should be assigned a separate rating under DC 5257 in December 2016. However, he did not report any symptoms of instability in the referenced correspondence. Instead, the Veteran argued that he had been told by his physician that he had lost cartilage in his knees and this would make his knees less stable than normal. The Board notes that cartilage conditions are rated under DC 5258 and 5259. Moreover, the Veteran's VA treatment records and VA examinations do not support that the Veteran experienced instability or loss of cartilage in the left knee. 

On August 12, 2020, the Veteran reported that his knees began to give out when he tried to walk up and down the stairs. The Board acknowledges the CAVC decision in English v. Wilkie in which the Court found that nothing in 38 C.F.R. § 4.71a Diagnostic Code 5257 "provides that objective medical evidence is required or is to be favored over lay evidence" and that lay evidence is not "categorically less probative than medical evidence" on the question of knee instability. 30 Vet. App. 347, 352-53 (2018). The Veteran competently reported symptoms of lateral instability in his August 2020 correspondence. Therefore, despite the absence of medical findings of instability for this period, the Board resolves all reasonable doubt in favor of the Veteran and finds that a separate 10 percent rating for slight left knee instability is warranted from August 12, 2020. A higher rating is not warranted given there is no objective evidence of instability and there is no indication that the Veteran ever needed to use assistive devices to stabilize his knee.

Right Knee Analysis

Turning to the right knee, the Veteran's disability is assigned a 10 percent rating for functional loss due to painful motion pursuant to 38 C.F.R. § 4.59. Prior to January 13, 2017, the record reflects that the Veteran experienced functional loss due to pain on motion for his right knee. As such, the lowest compensable rating for limitation of motion of the knee, which is 10 percent under Diagnostic Code 5260, is warranted. See 38 C.F.R. § 4.71a; DeLuca v. Brown, supra.

Prior to January 13, 2018, a higher rating is not warranted. Under Diagnostic Code 5260, a higher 20 percent rating requires flexion limited to 30 degrees. Throughout the appeal period, the record reflects that the Veteran's most limited range of motion for flexion of the left knee was 0 to 100 degrees (October 2019 VA examination). As to Diagnostic Code 5261, a 20 percent rating requires limitation of extension of 15 degrees. During the appeal period, the record reflects that the Veteran has always had full extension of the right knee.

Beginning on January 13, 2017, the Veteran's VA treatment records and examinations reveal frequent episodes of recurrent effusion in the right knee. Although the Veteran began experiencing increased pain in October 2016, the medical record does not reveal any evidence of right knee effusion until the January 13, 2017 treatment record. In fact, testing from October 2016 to January 2017 was negative for effusion. Since January 2017, VA examiner's have consistently noted the Veteran's right knee meniscus condition and have noted that he continues to experience frequent episodes of pain and effusion even after surgical repair. Accordingly, the Board finds that a 20 percent rating under Diagnostic Code 5258 for pain, locking and effusion of the meniscal cartilate is warranted as of January 13, 2017. 38 C.F.R. § 4.71a, Diagnostic Code 5258.

As noted, the record indicates that the Veteran's right knee disability manifests in limitation of flexion to 100 degrees and limitation of extension to 0 degrees with painful motion. Under DC 5261, the Veteran would not be entitled to a compensable rating for limitation of extension. Under diagnostic code 5260, the Veteran would be entitled to a 10 percent rating for limitation of flexion. The Board notes that, application of DC 5260 results in a lower rating for the Veteran's right knee disability than application of DC 5258 and, "[w]here 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". 38C.F.R. § 4.7 (2017).

Further, the Board has considered whether, after January 13, 2017, a separate compensable rating is appropriate based on limitation of flexion of the right knee. However, the Board finds that the Veteran may not be assigned a separate rating under DC 5260 as this would constitute pyramiding under 38 C.F.R. § 4.14. The Veteran's painful limitation of motion is contemplated and compensated as part of the 20 percent rating under DC 5258. Therefore, assigning a separate rating under DC 5260 in combination with the Veteran's current rating under DC 5258 would violate the prohibition against pyramiding. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 261 (1994) (the critical element is that none of the symptomatology for any condition is duplicative of or overlapping with the symptomatology of the other condition). Consequently, a separate rating under DC 5260 is not warranted for the right knee after January 13, 2017. 

The Veteran first contended that he should be assigned a separate rating under DC 5257 in December 2016. However, he did not report any symptoms of instability in the referenced correspondence. Instead, the Veteran argued that he had been told by his physician that he had lost cartilage in his knees and this would make his knees less stable than normal. The Board notes that cartilage conditions are rated under DC 5258 and 5259, as discussed above. The Board notes that the August 2012 examiner noted slight laxity of the right knee, however, the Veteran did not report any instability of the knee at that time and the Veteran's VA treatment records and other VA examinations do not support that the Veteran experienced instability of the right knee prior to August 12, 2020. The Veteran did not use an assistive device at any time during the appeal period.

It was not until August 12, 2020, that the Veteran reported that his knees began to give out when he tried to walk up and down the stairs. Thus, at this time the Veteran competently reported experiencing actual symptoms of lateral instability. Therefore, despite the absence of medical findings of instability for this period, the Board resolves all reasonable doubt in favor of the Veteran and finds that a separate rating for right knee instability is warranted from August 12, 2020. See English v. Wilkie, supra. A higher rating is not warranted given there is no objective evidence of instability and there is no indication that the Veteran ever needed to use assistive devices to stabilize his knee.

New Regulations Effective February 7, 2021

The Board notes that the criteria for knee disabilities have changed during the period covered by this appeal, effective February 7, 2021. See 85 Fed. Reg. 75453 (November 30, 2020). When a law or regulation changes during the pendency of a Veteran's appeal, the version most favorable to the Veteran applies, absent congressional intent to the contrary. The amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change. However, the old regulations will be considered for the periods both before and after the change was made. See 38U.S.C. §5110  (g); 38C.F.R. §3.114; VAOPGCPREC 3-2000, 65 Fed. Reg. 33422 (2000); Kuzma v. Principi, 3541 F.3d 1327 (Fed. Cir. 2003). Thus, the Veteran is entitled to application of the criteria that are most favorable to his claim, except that an award based on the amended regulations may not be made effective before the effective date of the change.

The Board has considered these changes and finds that the new criteria respecting evaluations of knee disabilities are not as advantageous to the Veteran in this case, and that the Veteran does not meet the criteria for a higher evaluation. 

Diagnostic Code 5003, effective February 7, 2021, is substantively unchanged. To this point, the Board notes that Diagnostic Code 5003 was revised to reflect that this Diagnostic Code only applies to degenerative arthritis. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76460 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5003).

Changes were made to Diagnostic Code 5257 governing instability, which added the requirement of either (1) sprain of or tear (either complete or incomplete) of a knee ligament causing persistent instability, or (2) a diagnosed condition of the patellofemoral complex with recurrent instability (with or without surgical repair); and (3) assistive devices or bracing (either by prescription or not) to the criteria, which were not present in the old pre-February 7, 2021 criteria. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38C.F.R. §4.71a, Diagnostic Code 5257).

Because the new criteria under Diagnostic Code 5257 require more specific criteria than the old criteria, they are less advantageous to the Veteran. The Veteran is already in receipt of 10 percent ratings for instability of the right and left knee under the prior version of rating schedule and a higher rating under the new criteria is not warranted. While the record demonstrates that the Veteran has sustained a ligament tear of the right knee, it does not demonstrate that he has persistent or recurrent instability, as required under the new criteria. As noted, all of the VA examiners have concluded that there is no evidence of recurrent subluxation or lateral instability and stability testing has been normal in both knees. Furthermore, the Veteran has only reported giving way "sometimes when climbing the stairs". Accordingly, the Board does not find that higher ratings for instability are warranted for the period beginning February 7, 2021, when contemplating the new Rating Schedule criteria effective that date.

Further, neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record, with regard to the initial rating claims addressed herein. See Doucette v. Shulkin, 28 Vet. app.366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

In sum, the Board finds that the weight of the evidence supports initial evaluations of 10 percent, but no higher, for the Veteran's left and right knee disabilities under DC 5260-5003. From January 13, 2017, the evidence supports a rating of 20 percent for the right knee disability under diagnostic code 5258. Finally, from August 12, 2020, the preponderance of the evidence supports separate 10 percent ratings for instability of the right and left knee under DC 5257.  38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.7, 4.71a.

 

 

GAYLE STROMMEN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	C. Sherman 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.