Citation Nr: 21064161 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 10-34 986 DATE: October 19, 2021 ORDER Entitlement to an initial rating higher than 20 percent for right knee degenerative joint disease (right knee DJD) based on limitation of flexion with residual scar is denied. Entitlement to an initial rating higher than 20 percent for left knee degenerative joint disease (left knee DJD) based on limitation of flexion with spur formation is denied. Entitlement to a separate 10 percent rating for limitation of extension for right knee DJD with residual scar is granted, subject to the laws and regulations governing the award of monetary benefits. Entitlement to a separate 10 percent rating for limitation of extension for left knee DJD with spur formation is granted, subject to the laws and regulations governing the award of monetary benefits. Entitlement to an initial rating higher than 10 percent for right knee instability is denied. Entitlement to an initial rating higher than 10 percent for left knee instability is denied. FINDINGS OF FACT 1. The Veteran's bilateral knee symptoms do not more nearly approximate flexion limited to 15 degrees, including consideration of functional loss due to flareups. 2. The Veteran's bilateral knee symptoms most nearly approximate extension limited to 10 degrees, to include consideration of functional loss due to flareups. 3. The Veteran's bilateral knee disability does not more nearly approximate moderate recurrent subluxation or instability or patellar instability. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 20 percent for left knee DJD based on limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.20, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5260. 2. The criteria for an initial rating in excess of 20 percent for right knee DJD based on limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.20, 4.40, 4.45, 4.59, 4.71a, DC 5260. 3. The criteria for an additional 10 percent rating for left knee extension have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.20, 4.40, 4.45, 4.59, 4.71a, DC 5261. 4. The criteria for an additional 10 percent rating for right knee extension have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.20, 4.40, 4.45, 4.59, 4.71a, DC 5261. 5. The criteria for an initial rating in excess of 10 percent for left knee instability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.10, 4.40, 4.45, 4.59, 4.71a, DC 5257. 6. The criteria for an initial rating in excess of 10 percent for right knee instability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.10, 4.40, 4.45, 4.59, 4.71a, DC 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Navy from May 1967 to February 1971. These matters initially came before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In that decision, the RO granted service connection for left and right knee disabilities and assigned initial ratings of 10 percent for each disability. The Veteran timely appealed the initial ratings assigned, and after Board remands in June 2014, May 2017 and December 2017, the Board granted initial 20 percent ratings for the Veteran's bilateral knees based on limitation of flexion and separate 10 percent ratings for bilateral knee instability in September 2019. In an October 2020 Order, the Court of Appeals for Veterans' Claims (the Court) granted an October 2020 Joint Motion for Remand (JMR) by counsel for VA and the Veteran. In the JMR, the parties agreed not to disturb the Board's grant of initial 20 percent ratings for left and right knee DJD and separate 10 percent ratings for left and right knee instability. The Court granted the JMR to the extent the parties requested vacatur of the denial of initial ratings higher 20 percent for bilateral knee DJD and higher than 10 percent for bilateral knee instability that were granted. Consistent with the instructions of the parties to the JMR, discussed in more detail below, the Board remanded the claims in January 2021 and again in March 2021. For reasons discussed below, the agency of original jurisdiction substantially complied with the Board's remand instructions. In February 2013, the Veteran testified before the undersigned Veterans Law Judge; a transcript of the hearing is of record. Increased Ratings Disability ratings are determined by comparing a Veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. When evaluating musculoskeletal disabilities, VA must consider granting a higher rating in cases in which the Veteran experiences functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination (to include during flareups or with repeated use), and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2017); DeLuca v. Brown, 8 Vet. App. 202, 204-07 (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. Johnson v. Brown, 9 Vet. App. 7 (1996). When considering separate ratings under different diagnostic codes generally, VA must avoid pyramiding, i.e., evaluating the same disability under different diagnostic codes or evaluating the same manifestation under different diagnostic codes. 38 C.F.R. § 4.14. With regard to rating disabilities of the knee, however, VA's general counsel (GC) has issued two opinions indicating that a Veteran who has limitation of motion and instability of the knee may be evaluated separately under separate diagnostic codes provided additional disability is shown. VAOPGCPREC 23-97; 62 Fed. Reg. 63604 (1997); VAOPGCPREC 9-98; 63 Fed. Reg. 56704 (1998). In VAOPGCPREC 9-98, GC found that limitation of motion is a relevant consideration under DC 5259. Separate ratings may be assigned under DCs 5260 and 5261, where there is compensable limitation of flexion and extension. VAOPGCPREC 9-2004 (2004). Bilateral Knee Flexion The Veteran's service-connected left knee DJD and right knee DJD are each currently rated at 20 percent for limitation of flexion under DC 5010-5260. DC 5260 provides the rating criteria for limitation of flexion of the leg. Under this DC, flexion that is limited to 60 degrees is noncompensable; flexion that is limited to 45 degrees warrants a 10 percent disability rating; flexion that is limited to 30 degrees warrants a 20 percent disability rating; and flexion that is limited to 15 degrees warrants a 30 percent disability rating. 38 C.F.R. § 4.71a, DC 5260. Normal range of knee motion is 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. Turning to the record, following the December 2017 Board remand, the Veteran was afforded a new VA examination in March 2018. The VA examiner tested the Veteran's range of motion and found flexion of 0 to 75 degrees in both knees. After considering additional functional loss due to symptoms such as pain, repetitive motion and flareups, the Board in September 2019 granted initial 20 percent ratings to account for this additional motion loss. In the October 2020 JMR, however, the parties agreed that the March 2018 VA examination only contained one set of range of motion measurements for each knee and the VA examiner did not express evidence of pain noted on passive range of motion testing in terms of degrees of motion as directed in the December 2017 Board remand. Therefore, the parties to the JMR agreed that the Veteran must be afforded an adequate VA examination that conducts testing pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016) (to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of § 4.59). The Veteran was afforded a June 2021 VA examination where the VA examiner measured flexion in both knees to 110 degrees on both active and passive range of motion, thereby complying with Correia. The examiner also noted bilateral difficulty bending, stooping and crawling. The Veteran stated at the examination that he couldn't walk, run, kneel, swim or bend both his knees without some kind of pain. Similarly, as it related to his job as a brick mason and truck driver, the Veteran has difficulty standing and walking for long periods of time, bending, stooping, crawling, or lifting without great difficulty due to the pain. Importantly, though, the June 2021 VA examiner noted that the Veteran experienced no flareups. While this conflicts with prior VA examinations which indicated varying levels of flareup severity during the appeal period, the finding of no flare-ups resulted in an opinion not being expressed as to functional loss during flare-ups. This substantially complied with the Board's remand instructions, which implicitly indicated that such an opinion be expressed only if flare-ups were found. Given the multiple prior remands, and the evidence below, the Board finds that the evidence is sufficient to decide the claim. Looking at the Veteran's examinations over the course of the appeal period, his bilateral knee flexion frequently measured above 100 degrees: flexion to 110/120 (R/L) degrees in December 2008, flexion to 125/140 degrees in February 2010, flexion to 120/130 degrees in April 2010, full flexion to 140 degrees bilaterally in August 2011, flexion to 110/120 degrees in January 2015, flexion to 85 degrees bilaterally in June 2017, flexion to 75 degrees bilaterally in March 2018, and flexion to 110 bilaterally in June 2021. The range of motion associated with a 20 percent disability rating, the Veteran's current rating for flexion in his knees, is flexion to 30 degrees. The Veteran's flareups were considered in the grant of an initial 20 percent rating in September 2019. Thus, the functional loss and additional symptoms, including his difficulty walking, running, kneeling, standing for long periods of time, bending, stooping, crawling and lifting, are contemplated by the Veteran's current disability rating. There is no indication in the medical or lay evidence of record that the additional loss of motion would result in symptoms more nearly approximating limitation of flexion to 15 degrees. For the foregoing reasons, an initial rating in excess of 20 percent for the Veteran's bilateral knee flexion is not warranted and the claims must be denied. As the preponderance of the evidence is against any higher rating, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Bilateral Knee Extension The parties to the October 2020 JMR specifically found that the Board failed to address whether the evidence of painful motion on extension for each knee beginning at 10 degrees warrants an award of a separate rating for limitation of extension for both knees. The Board will do so below. DC 5261 provides the rating criteria for limitation of extension of the leg. Under this DC, extension that is limited to 5 degrees is noncompensable; extension that is limited to 10 degrees warrants a 10 percent disability rating; and extension limited to 15 degrees warrants a 20 percent disability rating. Extension limited to 20 degrees warrants a 30 percent disability rating; extension limited to 30 degrees warrants a 40 percent disability rating; and extension limited to 45 degrees warrants a 50 percent disability rating. 38 C.F.R. § 4.71a, DC 5261. Normal range of knee motion is zero degrees of extension. 38 C.F.R. § 4.71, Plate II. Turning to the record, the March 2018 VA examiner tested the Veteran's range of motion and found extension to 0 degrees in both knees after three repetitions. This range of motion finding does not approximate the criteria for a compensable rating under DC 5261. Moreover, from 2008 to 2015, his range of motion measurements for extension was never measured above 0 degrees in either knee. This continued to be the case after the October 2020 JMR when the Veteran was afforded a June 2021 VA examination. However, in a January 2015 VA examination report, the VA examiner noted painful motion on extension in both of the Veteran's knees at 10 degrees. The Board must also consider additional functional loss due to symptoms such as pain, repetitive motion, and flareups. In an April 2010 VA examination, the Veteran noted flareups once a day lasting for up to 16 hours with a severity of 16 on a scale of one to ten. These flareups limited his ability to walk, run, stand, play sports or exercise his legs. During a January 2015 VA examination, the Veteran noted that if the flareup hits when he is walking, the pain is so severe and intense that he would tumble. Similarly, the Veteran reported during a June 2017 VA examination that his pain during flareups is more intense. During his March 2018 VA examination, the Veteran provided competent and credible reports of moderate to severe pain of daily duration at least twice a month due to flareups, particularly in the cold weather. Lastly, during the June 2021 VA examination, the VA examiner and the Veteran described the list of functional impairments due to his knee disabilities as noted in the previous section. The parties to the JMR indicated that objective evidence of painful motion on extension for both knees beginning at 10 degrees could warrant a separate 10 percent rating for limitation of extension. While such a rating could in some circumstances constitute pyramiding, 38 C.F.R. § 4.14, based on the statement of the parties to the JMR and the above evidence, a separate rating of 10 percent for limitation of extension under DC 5261 is warranted for each knee. A rating in excess of 10 percent for limitation of extension is not warranted because the additional loss of motion from flareups and functional loss does not more nearly approximate 15 degrees extension. For the foregoing reasons, separate 10 percent ratings based on limitation of extension are warranted for each knee. As the preponderance of the evidence is against any higher or separate rating, the benefit of the doubt doctrine is not otherwise for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Bilateral Knee Instability The Veteran's service-connected bilateral knees are currently rated 10 percent disabling for instability. 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 DC's "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. DC 5257, regarding knee instability, was one of the DC's affected by the change in criteria. If a law or regulation changes during 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); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). 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; Kuzma, 341 F. 3d 1327. 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. Prior to the regulatory change, under DC 5257, recurrent subluxation or lateral instability is rated as 10 percent disabling when slight, 20 percent disabling when moderate, and 30 percent disabling when severe. See 38 C.F.R. § 4.71a, DC 5257. Descriptive words "slight," "moderate" and "severe" as used in the various DCs are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all the evidence for "equitable and just decisions." See 38 C.F.R. § 4.6. It should also be noted that use of terminology such as "severe" by VA examiners and others, although an element to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. As of February 7, 2021, under the amended criteria, DC 5257 now provides for a 30 percent rating 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; a 20 percent disability rating for either 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 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; and a 10 percent rating for a 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. Turning to the evidence, a July 2008 treatment record noted that the Veteran reported weakness, swelling and giving way of the right knee, as well as pain on a consistent basis. An April 2010 VA examination noted both of the Veteran's knees gave way. Similarly, the January 2015 VA examiner noted the Veteran experienced pain, weakness, fatigability, incoordination and an increased likelihood of giving way and falling. During the March 2018 VA examination, the Veteran reported he experiences sharp pains when he walks in both his knees. He further elaborated instability of station, disturbance of locomotion, and difficulty walking long distances, providing the example of walking from the parking lot to the VAMC. While stability testing was normal, DC 5257 does not "speak to the type of evidence required and, thus, objective medical evidence [is not] required to establish lateral knee instability under that DC." English v. Wilkie, 30 Vet. App. 347, 349 (2018). Moreover, "[t]he Board [cannot] categorically find objective medical evidence more probative than lay evidence with respect to [DC 5257] without supporting its conclusion with an adequate statement of reasons or bases." Id. On the June 2021 VA examination, the diagnoses were right knee status post contusion and early degenerative joint disease with residual scar, right knee instability, left knee early degenerative joint disease with spur formation, and left knee instability. The date of diagnosis was 1969. There was also a diagnosis of status post right tib-fib fracture, with a date of diagnosis of August 22, 2011, which is discussed below. The record, to include the June 2021 VA examination report, reflects that the Veteran suffers from a recurrent subluxation or persistent instability in both of his knees and difficulty standing for long periods of time. However, there is no evidence that the Veteran underwent surgery to repair a complete ligament tear, has a complete ligament tear that requires repair, or has an incomplete ligament tear sprain and at no point during the exam was the use of a brace, cane, crutch or walker identified as required assistive devices. Moreover, the record, to include the June 2021 VA examination report, does not indicate that the Veteran suffers from a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider, as required for a 20 percent under the amended criteria. As a result, the Veteran does not warrant a rating in excess of 10 percent under the amended DC 5257 criteria for his bilateral knee instability. Looking to the old criteria, given the normal stability findings on multiple examinations over the course of the appeal period and the lack of evidence indicating worsening instability in the June 2021 VA examination, the symptoms do not more nearly approximate moderate recurrent subluxation of instability warranting a 20 percent rating for either knee under DC 5257. Therefore, entitlement to a disability rating in excess of 10 percent for bilateral knee instability is not warranted under the old criteria either, and the claim must be denied. As the preponderance of the evidence is against any higher or separate rating, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Other Potential Knee Ratings There are other DC's that allow for compensation of symptoms of the knee. DC 5256 provides a 30 percent rating for knee ankylosis with a favorable angle in full extension or in slight flexion between 0 degrees and 10 degrees, a 40 percent rating for knee ankylosis in flexion between 10 degrees and 20 degrees, a 50 percent rating for knee ankylosis in flexion between 20 degrees and 45 degrees, and a 60 percent rating for knee ankylosis that is extremely unfavorable in flexion at an angle of 45 degrees or more. DC 5258 provides for a single 20 percent rating for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. DC 5259 provides a single 10 percent rating for removal of symptomatic semilunar cartilage. Moreover, there is no prohibition of separate evaluation under 38 C.F.R. § 4.71a, DC 5257 or 5261 and a meniscal DC, i.e., DCs 5258 or 5259. Lyles v. Shulkin, 29 Vet. App. 107 (2017). DC 5262 provides a noncompensable rating for impairment of the tibia and fibula with treatment less than 12 consecutive months of one or both lower extremities, a 10 percent rating for impairment of the tibia and fibula requiring treatment for no less than 12 consecutive months and unresponsive to either shoe orthotics or other conservative treatment in one or both lower extremities, a 20 percent rating for impairment of the tibia and fibula requiring treatment for no less than 12 consecutive months and unresponsive to surgery and either shoe orthotics or other conservative treatment in one lower extremity, a 30 percent rating for impairment of the tibia and fibula requiring treatment for no less than 12 consecutive months and unresponsive to surgery and either shoe orthotics or other conservative treatment in both lower extremities, and a maximum 40 percent rating for nonunion of the tibia and fibula with loose motion requiring a brace. Lastly, DC 5263 provides a single 10 percent rating for acquired traumatic genu recurvatum with weakness and insecurity in weight-bearing objectively demonstrated. Turning to the record, the Veteran does not presently have nor has the Veteran ever had a meniscus condition, to include a meniscectomy. Thus, a separate rating under DC 5258 is not warranted. Similarly, there is no evidence of amylosis in either knee, arthritis, or genu recurvatum. As a result, separate ratings under DCs 5256, 5003 and 5263 are not warranted either. The June 2021 VA examiner noted an August 2011 diagnosis of status post right tibia-fibula fracture following an x-ray. The examiner described it as an old well-healed fracture of the distal tibia and fibula. The examiner concluded towards the end of the examination that while there is a history of distal healed tibia and fibula fractures noted on x-ray imaging from August 2011, it is unrelated to the Veteran's current knee diagnoses of right knee status post contusion and early DJD with residual scar, right knee instability, left knee early DJD with spur formation and left knee instability. As the Veteran's tibia-fibula fracture was described as old and well-healed, and there is no evidence that he requires treatment of no less than 12 consecutive months or is unresponsive to either shoe orthotics or other conservative treatment, a separate rating for impairment of the Veteran's tibia and fibula is not warranted under DC 5262. Conclusion For the foregoing reasons, the preponderance of the evidence is against any separate ratings or rating higher than assigned herein. The benefit of the doubt doctrine is therefore not otherwise for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. The Board has considered the Veteran's claims and decided entitlement based on the evidence. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claims. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (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). Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board JR Cummings, 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.