Citation Nr: 21064794 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 14-09 216 DATE: October 21, 2021 ORDER Entitlement to an initial evaluation in excess of 10 percent for left knee instability prior to July 30, 2014 and in excess of 30 percent from July 30, 2014 to August 27, 2020 is denied. Entitlement to a 10 percent evaluation, but no higher, for left knee instability from August 28, 2020 to February 6, 2021 is granted. Entitlement to a 30 percent evaluation, but no higher, for left knee instability from February 7, 2021 is granted. FINDINGS OF FACT 1. Prior to July 30, 2014, the medical evidence demonstrates slight left knee instability. 2. For the period from July 30, 2014 to August 27, 2020, the Veteran is assigned a 30 percent evaluation, which is the maximum schedular evaluation for recurrent instability or subluxation. 3. For the period from August 28, 2020 to February 6, 2021, the Veteran had slight instability of the left knee with use of a knee brace, but no objective evidence of left knee instability. 4. From February 7, 2021, the Veteran has had surgical repair of his left knee and his left knee was productive of lateral instability with prescribed a knee brace. CONCLUSIONS OF LAW 1. Prior to July 30, 2014, the criteria for an initial evaluation higher than 10 percent rating for left knee instability 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, DCs 5003-5257. 2. From July 30, 2014 to August 27, 2020, the criteria for increased rating for left knee instability in excess of 30 percent have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.10, 4.71a, Diagnostic Code 5257. 3. From August 28, 2020 to February 6, 2021, the criteria for a 10 percent rating for left knee instability have 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, DCs 5003-5257. 4. From February 7, 2021, the criteria for a 30 percent evaluation, but no higher, for left knee instability have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.45, 4.71a, Diagnostic Code 5003-5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1982 to July 2006. The Board of Veterans' Appeals (Board) remanded this matter for further evidentiary development in August 2016, June 2018, and May 2021. The case has returned to the Board for appellate review. 1. Entitlement to an initial evaluation in excess of 10 percent for left knee instability prior to July 30, 2014 and in excess of 30 percent from July 30, 2014 to August 27, 2020 2. Entitlement to a 10 percent evaluation for left knee instability from August 28, 2020 to February 6, 2021 3. Entitlement to a 30 percent evaluation for left knee instability from February 7, 2021 Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher rating 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. § 4.97. During an appeal of a disability rating, either from an initial rating assigned on granting of service connection or on appeal of a subsequent denial of an increased rating, it may be found that there are varying and distinct levels of disability impairment severity during an appeal. So, staged ratings (different disability ratings during various time periods) are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria."). The Board must also consider whether VA examiners have elicited information concerning the "severity, frequency, duration, or functional loss manifestations" of such flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). The United States Court of Appeals for Veterans Claims (Court) also has issued the opinion of Correia v. McDonald, 28 Vet. App. 158 (2016), which clarifies additional requirements that VA examiners should address when assessing musculoskeletal disabilities, holding specifically, that the joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. The Veteran is seeking an increased rating for his left knee disability based on instability. The Veteran is in receipt of separate evaluations for his left knee. The May 2021 Board decision denied increased evaluations for the Veteran's left knee disability, except the evaluation based on instability which was remanded. The Veteran's left knee instability is rated 10 percent to July 30, 2014; 30 percent from July 30, 2014 to August 27, 2020; noncompensable from August 28, 2020 under Diagnostic Code 5003-5257. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the rating assigned. The additional code is shown after a hyphen. 38 C.F.R. § 4.27. The Board notes that revisions to the rating schedule applicable to the musculoskeletal system went into effect on February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453 (Nov. 30, 2020). The Board may not apply a current regulation prior to its effective date unless the regulation explicitly provides otherwise. VAOPGCPREC 7-2003 (Nov. 19, 2003); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (overruling Karnas v. Derwinski, 1 Vet. App. 308 (1991) to the extent it conflicts with the precedents of the United States Supreme Court and the Federal Circuit). The changes to the rating schedule that went into effect on February 7, 2021 do not apply prior to that date. See id.; 85 Fed. Reg. 76453. The Board notes that, in relevant part, the revisions affected Diagnostic Codes 5003 and 5257. Code 5003 formerly was assigned to evaluate arthritis, degenerative (hypertrophic or osteoarthritis. 38 C.F.R. § 4.71a, Code 5257. Code 5003 is now assigned to evaluate degenerative arthritis, other than posttraumatic. The rating criteria remain unchanged; degenerative arthritis that is established by X-ray finding will be rated on limitation of motion under the appropriate Codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable, a rating of 10 percent is assigned for each major joint or group of minor joints affected by limitation of motion. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a single 10 percent rating is assigned for involvement of two or more major joints or two or more minor joint groups. 38 C.F.R. § 4.71a, Code 5003. Under the former rating criteria for Diagnostic Code 5257, which evaluates recurrent subluxation or lateral instability of a knee, a 10 percent rating is assigned for slight impairment; a 20 percent rating for moderate impairment; and a 30 percent rating for severe impairment. 38 C.F.R. § 4.71a. The terms "mild," "moderate," and "severe" are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The revised criteria for Diagnostic Code 5257, effective February 7, 2021, evaluates other impairment of the knee, to include recurrent subluxation or instability and patellar instability. Regarding recurrent subluxation or instability, 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 (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 20 percent rating is assigned for either (a) 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 (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 30 percent rating is assigned 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. Regarding patellar instability, under the revised criteria for Diagnostic Code 5257, 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. 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 30 percent disability 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 a brace and either a cane or a walker. Note (1) provides that for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. See 38 C.F.R. § 4.71a, Diagnostic Code 5257, Note (1). Note (2) provides that a surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). See 38 C.F.R. § 4.71a, Diagnostic Code 5257, Note (2). Prior to July 30, 2014 The Veteran was afforded a VA examination in January 2006, prior to separation from service. The examiner noted the Veteran's left knee meniscal surgery in 1981. The Veteran reported that he was able to resume normal activity after one year and that he had a third dislocation in 1991. An arthroscopy revealed there was too much damage to reconstruct the knee, so it was "cleaned up." The Veteran reported being told he was a candidate for knee replacement but that he was too young. Symptoms included daily pain controlled by significant management of activities, including avoidance of weight-bearing sporting activities, grinding and popping in the knee, and pain going up and down stairs. The examiner noted the Veteran's documented left knee severe degenerative joint disease and need for a joint replacement. Range of motion (ROM) of the left knee was flexion from 0 to 115 degrees and extension was normal. Crepitus was noted on ROM and knee flexion was limited secondary to pain. The examiner noted the Veteran's history of left knee significant internal derangement with bilateral meniscectomy in 1981 and anterior cruciate ligament (ACL) deficiency with subsequent instability and subsequent degenerative tricompartmental arthritis. The VA examiner further noted that this was a significant issue for the Veteran, and a recent orthopedic note discussed joint replacement and recommended a lateral unlocking brace and that this problem will continue with a joint replacement being inevitable. The Board notes that while instability was indicated during this examination, there was no description of the severity of the Veteran's left knee instability. Additionally, it does not appear that the Veteran was using a brace for instability at that time as the examiner noted that a brace was recently recommended. A May 2008 private magnetic resonance imaging (MRI) report of the left knee revealed a bucket handle tear of the posterior horn of the lateral meniscus, chronic complete ACL tear, osteoarthritic changes in the left knee and moderate joint effusion. There was no discussion or complaints of instability during this visit. The Board finds that the preponderance of the evidence is against finding an evaluation in excess of 10 percent for left knee instability prior to July 30, 2014. The Board has carefully considered the Veteran's reports about instability. English v. Wilkie, 30 Vet. App. 347, 352-53. However, overall, the lay and medical evidence indicate that the left knee instability symptoms have varied and do not suggest symptoms more nearly approximating moderate severity prior to July 30, 2014. Indeed, the January 2006 VA examinations and private medical records show the complaints of instability with a recommended use of a brace. The preponderance of the evidence is against the Veteran's claim for an initial evaluation in excess of 10 percent for left knee instability prior to July 30, 2014; thus, the benefit-of-the-doubt doctrine is not applicable, and the increased rating must be denied. 38 U.S.C. §5107; 38C.F.R. §§ 4.3, 4.7. From July 30, 2014 to August 28, 2020 The Veteran was afforded a VA examination in July 2014. The examiner noted the Veteran's diagnosis of medial meniscus tear, and osteoarthritis of left knee. No flare-ups of the left knee were reported. ROM of the left knee flexion was from 0 to 120 degrees with objective evidence of pain at 110 degrees. Additional functional loss was described as excess fatigability, pain on movement, instability of station left knee, and disturbance of left knee locomotion. Pain on palpation of both knee joints was present. Muscle strength was normal bilaterally. Anterior instability of the left knee was present 3+. There was no evidence of patellar subluxation or dislocation. The Veteran's residual symptoms of left knee meniscectomy included frequent episodes of joint pain and joint effusion. X-rays revealed severe, degenerative arthritis, both knees, worse on left. The examiner noted that despite Veteran's age, total knee arthroplasty should be considered. VA treatment records dated November 2016 reflect the Veteran's initial visit to establish care. He reported complaints of chronic bilateral knee pain. Left knee pain was described as 7 to 8 out of 10 in intensity while walking, and as 5 out of 10 at rest. The Veteran was afforded a VA examination in February 2017. The examiner noted the Veteran's bilateral knee pain, bilateral meniscal tears, and bilateral knee joint osteoarthritis. Flare-ups were reported bilaterally on weight-bearing, left worse than right. Functional loss and/or functional impairment was described as inability to run and squat, and he must ascend and descend stairs one step at time using railing or cane to steady himself. ROM of the left knee was flexion from 0 to 90 degrees and extension from 90 to 0 degrees. Pain was noted on examination and caused functional loss bilaterally. Objective evidence of pain to touch over anterior knee was noted bilaterally. Additional factors contributing to disability were less movement than normal, due to ankylosis, adhesions, swelling, disturbance of locomotion, interference with sitting, and interference with standing. Muscle strength was normal. No evidence of muscle atrophy or ankylosis was present. No history of recurrent subluxation or lateral instability was noted; a history of recurrent effusion was noted. No joint instability was present in either knee. The Veteran's history of bilateral meniscal tears was noted. Symptoms included frequent episodes of joint "locking," joint pain and joint effusion, bilaterally. Residual symptoms of left knee meniscectomy included pain and effusion. The Veteran required regular use of bilateral knee braces and a cane for assistance with ambulation. The Veteran attended physical therapy for his knees. VA treatment records reflect continued treatment for complaints of bilateral knee pain. In March 2017, an MRI of the Veteran's left knee showed tricompartmental osteoarthritis, complete chronic tear of ACL, likely partial tear at the anterior origin of the medial collateral ligament (MCL), findings suggesting tendinopathy, nondisplaced undersurface partial tear of the posterior horn of the medial meniscus. A June 2017 treatment note indicated the Veteran was given knee braces with improvement of symptoms and reported improved knee stability. A November 2017 treatment note indicated the Veteran had steroid injections in both knees two weeks earlier. VA treatment records show that in July 2018 the Veteran was fitted for bilateral knee wraps. 2019 Treatment records reflect bilateral primary osteoarthritis of the knee and bilateral knee pain. From July 30, 2014 to August 28, 2020, the Veteran's left knee stability is assigned 30 percent evaluation, which is the maximum schedular rating for recurrent instability or subluxation. See 38 C.F.R. § 4.71a, DC 5257. Instead, the Veteran has complained of left knee pain, instability, weakness, or giving way and falls that affect his daily life and ability to work. He uses a cane or brace in part for left knee pain and stability. VA examinations and treatment records do not show objective evidence of recurrent instability and patellar subluxation. A higher rating is not warranted for instability or subluxation, and the claim is denied. From August 28, 2020 to February 7, 2021 The Veteran was afforded a VA examination in August 2020. The examiner noted the Veteran's diagnosis of osteoarthritis left knee status post meniscectomy. The Veteran reported that his conditions have worsened. The Veteran did not report having flare-ups or any functional loss of the knees. ROM of the left knee was flexion from 0 to 140 degrees; extension from 140 to 0 degrees. Pain was noted on flexion and there was objective evidence of moderate pain in the medial aspect of the left knee, osteoarthritis was noted. There was no evidence of pain with weight-bearing and no evidence of crepitus. The Veteran was able to perform repetitive-use testing which did not result in additional loss of function or ROM bilaterally. No additional factors contributing to disability were noted for either knee. Muscle strength testing was normal, bilaterally. No muscle atrophy and no ankylosis was present. Joint stability test results were normal bilaterally. Residual pain was noted from the Veteran's left meniscal tear with meniscectomy. Pain and osteoarthritis were noted to be complications of the procedure. The Veteran reported constant use of a cane for his osteoarthritis of the knees. An October 2020 VA treatment note shows the Veteran complained of bilateral knee pain, left worse than right. The Veteran reported use of knee braces and a cane for support. For the period from August 28, 2020 to February 7, 2021, the Board finds that a 10 percent rating, but no higher, is warranted for slight left knee instability. In English v. Wilkie, the Court found that nothing in 38 C.F.R. § 4.71a DC 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. English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). Here, the Board acknowledges that the examination during this period failed to show objective evidence of instability of the left knee. In this case, joint stability testing in August 2020 was normal. However, the evidence of record shows that the Veteran has had to use a cane and braces for his knees for support throughout this period. Therefore, the Board finds that from August 28, 2020 to February 7, 2021, a 10 percent evaluation is warranted for slight left knee instability due to the Veteran's need to use a cane and knee braces, indicating some instability although not objectively documented. The evidence does not show that the Veteran's left knee instability was moderate or severe from August 28, 2020 to February 7, 2021, as the examination during this period failed to show objective evidence of instability of the left knee. Since February 7, 2021 As previously discussed, revisions to the rating schedule applicable to the musculoskeletal system went into effect on February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453 (Nov. 30, 2020). The Board may not apply a current regulation prior to its effective date unless the regulation explicitly provides otherwise. VAOPGCPREC 7-2003 (Nov. 19, 2003); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (overruling Karnas v. Derwinski, 1 Vet. App. 308 (1991) to the extent it conflicts with the precedents of the United States Supreme Court and the Federal Circuit). The changes to the rating schedule that went into effect on February 7, 2021 do not apply prior to that date. See id.; 85 Fed. Reg. 76453. As such, the Board has separately considered the Veteran's left knee instability under both the old and new criteria after the date of the revisions, February 7, 2021. Pursuant to the May 2021 Board remand, the AOJ obtained updated VA medical treatment records, to include any prescriptions for assistive devices such as a cane and/or knee braces. These records do not specifically note prescriptions for assistive devices; however, a July 2018 VA record shows the Veteran was prescribed bilateral knee braces for the first time. The Board notes that while the Veteran's last VA examination indicated normal stability, the Veteran has consistently reported giving way of the knees, particularly the left knee. See English v. Wilkie, 30 Vet. App. 347 (2018). Additionally, the Veteran has had surgical repairs of his left knee and VA examinations and VA treatment notes all show that the Veteran constantly uses prescribed knee braces as well as a cane for ambulation. As such, he has symptomatology consistent with the criteria for a 30 percent rating under the revised version of Diagnostic Code 5257. Such a rating is warranted from the February 7, 2021 effective date of the revised criteria. See 38 C.F.R. §§ 4.3, 4.7. In summarizing the above, the Board finds that an initial evaluation in excess of 10 percent for left knee instability prior to July 30, 2014 is not warranted under Diagnostic Code 5003-5257. From July 30, 2014 to August 27, 2020, the Veteran is assigned the highest evaluation under Diagnostic Code 5003-5257. From August 28, 2020 to February 6, 2021, a 10 percent evaluation for left knee instability is warranted. From February 7, 2021, a 30 percent evaluation is warranted under the new criteria for Diagnostic Code 5257. Emily Tamlyn Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Frazier, Associate Attorney 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.