Citation Nr: 21064360 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 14-02 823 DATE: October 19, 2021 ORDER Entitlement to an increased rating in excess of 20 percent for left knee strain with instability since February 7, 2021 is denied. FINDING OF FACT The evidence of record does not show the Veteran with a left knee sprain or ligament tear. CONCLUSION OF LAW The criteria for an increase evaluation in excess of 20 percent for left knee strain with instability since February 7, 2021, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.40, 4.45, 4.59, 4.7, 4.71a, Diagnostic Code (DC) 5257. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in active-duty service from October 1974 to October 1975. This matter is on appeal from a March 2012 rating decision. The Veteran was afforded an August 2016 hearing before the undersigned Judge; a transcript of the hearing has been associated with the claims record. The Board remanded this appeal in November 2016, September 2018 and March 2021 for additional development. Increased Rating Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The Board will consider whether separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 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. If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Left knee strain with instability The Veteran is currently service connected for left knee strain with instability evaluated at 20 percent under Diagnostic Code (DC) 5257. The Board notes that a disability rating that has been continuously rated at or above a certain percentage for at least 20 years is a protected rating. A protected rating cannot be reduced, let alone eliminated, absent a showing of fraud. 38 C.F.R. § 3.951. Because the Veteran received the 20 percent evaluation for his left knee strain with instability, effective January 12, 1981, more than 20 years ago, the rating is protected. The United States Court of Appeals for Veterans Claims (Court) clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath, at 592. Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. § 4.40 ), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45 ). A disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in 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. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Under 38 C.F.R. § 4.59, "the trigger for a minimum disability rating is an actually painful, unstable, or malaligned joint." 38 C.F.R. § 4.59 speaks to both painful motion of joints and actually painful joints. Petitti v. McDonald, 27 Vet. App. 415 (2015). For purposes of 38 C.F.R. § 4.59, objectively confirmed limitation of motion must be corroborated by a person, either lay or medical professional, and may not be satisfied by the Veteran's own observations. Id. The Board notes that VA amended the criteria for rating musculoskeletal disabilities effective February 7, 2021. These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after February 7, 2021. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. The Board cannot apply a current regulation prior to its effective date unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. For claims filed prior to February 7, 2021, DC 5257, knee impairment with recurrent subluxation or lateral instability is rated 10 percent when slight, 20 percent when moderate, and 30 percent when severe. 38 C.F.R. § 4.71 (a), DC 5257. For claims filed on or after February 7, 2021, DC 5257 provides that a knee impairment with recurrent subluxation or lateral instability is rated 10 percent 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 or bracing for ambulation, 20 percent for either a sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability and a medical provider prescribes a brace and/or an assistive device for ambulation or an unrepaired or failed repair of a complete ligament tear causing persistent instability and a medical provider prescribes either an assistive device or brace for ambulation, and 30 percent for an unrepaired or failed repair of a complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device and a brace for ambulation. 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a , DC 5257). For claims filed on or after February 7, 2021, DC 5257 also provides that a knee impairment with patellar instability is rated 10 percent for a diagnosed condition involving the patellofemoral complex with recurring instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane or walker, 20 percent for a diagnosed condition involving the patellofemoral complex with recurring instability after surgical repair that requires a prescription from a medical provider for a brace, cane or walker and 30 percent for a diagnosed condition involving the patellofemoral complex with recurring instability after surgical repair that requires a prescription from a medical provider for a brace, and either a cane or a walker. Id. Review of the evidence of record shows in a May 2011 VA examination, the Veteran reported undergoing a 2008 arthroscopy of the left knee. The Veteran initially stated that he also underwent meniscal repair, but later in the examination reported that this was "probable." X-ray testing of the left knee did not find any acute fracture, dislocation, or other soft tissue abnormality. In May 2011 VA requested records from the Veteran's identified hospital where he reported undergoing the 2008 surgical procedure for the left knee. In a June 2011 response from the hospital, the hospital reported that there were no records found relating to the Veteran or his reported surgery in 2008. In a January 2014 VA examination, X-ray testing of the left knee found normal osseous structure. When asked about surgical procedures, the Veteran only reported receiving injections for his knees up to 8 times a year. The Veteran also reported having occasional use of the cane and regular use of the brace. In an August 2017 VA examination, the examiner did not find any meniscal or semilunar condition or additional physical impairment. The Veteran did not report any surgical procedure performed on the left knee and the examiner did not find any scars. The Veteran reported occasional use of braces and regular use of a cane. In an October 2020 VA examination, the Veteran did not report any surgical procedure or surgery on the left knee. The examiner did not find any left knee meniscal condition or physical impairment or complication relating to the left knee. The Veteran reported occasional use of the cane. The Veteran was afforded a June 2021 VA examination. The Veteran denied any knee injections or visits to the emergency room or urgent care in the past 24 months. The Veteran did not report any flareups and reported functional loss where he was unable to get onto ladders or walk prolonged periods due to knee pain. The examiner did not find a history of instability, recurrent subluxation or effusion. Upon physical examination, the Veteran's range of motion (ROM) of the left knee was measured at 120 degrees flexion with no limitation to extension. Pain was noted on flexion and with active and passive motion, but no pain with weight-bearing. The Veteran was able to perform repetitive testing with no loss of motion. The examiner found no evidence of ankylosis. The examiner did not find the Veteran with ligament tear or sprain in the left knee; no patellar instability or surgical repair in the left knee; no other physical impairment; and no prescription from a medical provider for assistive devices. The Veteran separately reported occasional use of knee braces. In an August 2021 statement, the Veteran's representative stated that at the June 2021 VA examination the Veteran reported to the examiner that he was unable to sit for long periods which would cause his knees to lock up as well as having limited flexibility and range of motion in the left knee. The representative also stated that the Veteran also reported use of a cane and knee braces while walking and that the VA examiner "only focused on the fact that [the Veteran] was not wearing a medical brace or cane during this examination." The representative later stated that the Veteran had independently purchased his knee braces to use when necessary. After review of the record, the Board finds that an increase evaluation in excess of 20 percent for the Veteran's left knee disability from February 7, 2021 is not warranted. As addressed above, after February 7, 2021, DC 5257 provides a 30 percent rating for a knee impairment with recurrent subluxation or lateral instability that is either a sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability and or an unrepaired or failed repair of a complete ligament tear causing persistent instability requiring a brace and prescribed assistive device for ambulation. There is no evidence that the Veteran has or had either a knee sprain or a ligament tear of his left knee or a failed repair that required a prescription for an assisted device. Accordingly, under DC 5257 post February 7. 2021 a rating in excess of 20 percent for left knee strain with instability is also not warranted. DC 5257 also provides a 30 percent rating for a diagnosed condition involving the patellofemoral complex with recurring instability after surgical repair that requires a prescription from a medical provider for a brace and a cane or walker. The Board finds the evidence of record does not show a diagnosed condition involving the patellofemoral complex with recurring instability; or medical evidence which suggested that the Veteran, underwent or required surgery for the condition and as discussed above, there is no evidence of joint instability. Therefore, a 30 percent rating for a knee condition involving patellofemoral complex pursuant to this provision of the diagnostic code is not warranted. The Board also notes the Veteran has also reported using knee braces or a cane to assist with ambulation; however, review of the evidence of record does not show that a medical provider has issued a prescription for the Veteran to use these braces or cane. The Veteran in August 2021 also reported that he independently bough the knee braces for assistance. Although the Veteran in May 2011 VA examination reported a 2008 surgical procedure for the left knee, the Veteran indicated that this was a "probable" meniscal repair and did not report any surgical procedures in the January 2014, August 2017, October 2020, and June 2021 VA examination. The Board notes that requests made to the identified hospital where the Veteran reported his surgery found no records relating to any surgical procedure for the left knee. The Veteran has not provided any medical records relating to any claimed left knee surgery to be associated with the claims record. The Board must also consider increased evaluations under other potentially applicable DCs. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); cf. 38 C.F.R. § 4.14 ; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). After careful evaluation of the Veteran's claims file, the Board finds that DC 5256 is not applicable because the evidence does not show ankylosis of either knee. There is no allegation to the contrary. Diagnostic Code 5262 is not applicable for either knee because it did not involve the impairment of the tibia or the fibula. There is no allegation to the contrary. There is no evidence of nonunion or malunion of the knee or ankle. There is no allegation to the contrary. Furthermore, without the showing of genu recurvatum (acquired, traumatic, with weakness and insecurity in weight-bearing), a disability rating under Diagnostic Code 5263 is not warranted. There is no allegation to the contrary. Under DC 5259, a disability rating of 10 percent is assigned for manifestations symptomatic of the removal of semilunar cartilage, and under DC 5258, a disability rating of 20 percent is assigned for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. 38 C.F.R. § 4.71a , DC 5258, 5259. Although the Veteran has reported symptoms of "locking" in his knees, the VA examiners did not find the Veteran with a meniscal or semilunar condition of the left knee. Limitation of motion of the knee is contemplated in 38 C.F.R. § 4.71a, DCs 5260 and 5261. Under Diagnostic Code 5260, a noncompensable rating is warranted when flexion of the leg is only limited to 60 degrees. A 10 percent rating is assigned when flexion is limited to 45 degrees. A 20 percent evaluation is warranted when flexion is limited to 30 degrees. A 30 percent rating is assigned when flexion is limited to 15 degrees. Id. Under DC 5261, a noncompensable rating is warranted when extension of the leg is limited to 5 degrees. A 10 percent disability rating is assigned when extension is limited to 10 degrees. A 20 percent disability rating is warranted when extension is limited to 15 degrees. A 30 percent disability rating is assigned when the evidence shows extension limited to 20 degrees. A 40 percent disability rating is warranted when extension is limited to 30 degrees. A 50 percent disability rating is assigned when extension is limited to 45 degrees. Id. The Board notes that the Veteran is already separately service connected for a left knee disability for limitation of flexion under Diagnostic code 5260 for 30 percent, the maximum evaluation under this DC. At the June 2021 VA examination, the Veteran demonstrated flexion to 120 degrees with no limitation to extension. Accordingly, a rating under DC 5261 is not warranted. The Board recognizes under DeLuca v. Brown, 8 Vet. App. 202 (1995) VA must consider "functional loss" of a musculoskeletal disability separately from consideration under the DCs. "Functional loss" may occur as a result of weakness or pain on motion. Here, the evidence shows that the Veteran pain on movement; disturbance of locomotion; and interference with sitting, standing, and weight-bearing. However, the Board finds that given the extent of the Veteran's knee motion and the extent of functional and occupational impairment indicated in the record, there is no evidence of a disability picture that is commensurate to a limitation of flexion to the extent necessary to establish entitlement to a higher disability rating, even after taking his functional loss into full consideration. See DeLuca, 8 Vet. App. at 204-07 ; 38 C.F.R. §§ 4.40, 4.45, 4.71a, DC 5260. In this regard, the Board emphasizes that the separate 30 percent disability rating under DC 5260 already contemplates an otherwise non-compensable degree of limitation of motion verified by objective evidence of symptoms such as painful motion. The Board has considered the Veteran and his representative's statements regarding the severity of the Veteran's left knee disability. However, as lay persons, the Veteran and his representative do not have the training or expertise to render a competent opinion which is more probative than the VA examiner's opinion on this issue, as this is a medical determination that is complex. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994)). Thus, the lay opinions by themselves are outweighed by the VA examiner's findings. See id. ; see also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). Accordingly, as the preponderance of the evidence is against the claims for an evaluation in excess of 20 percent for service-connected left knee strain with instability since February 7, 2021, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Yang, Attorney-Advisor 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.