Citation Nr: 21064946 Decision Date: 10/22/21 Archive Date: 10/22/21 DOCKET NO. 10-37 787 DATE: October 22, 2021 ORDER An initial rating in excess of 10 percent for left knee instability is denied. An initial rating in excess of 10 percent for left knee anterior cruciate ligament reconstruction residuals with limitation of motion (herein after left knee limitation of motion) is denied. FINDINGS OF FACT 1. The Veteran's left knee instability is manifest by no worse than mild instability. 2. The Veteran's left knee limitation of motion is manifest by no worse than limitation of flexion to 115 degrees. CONCLUSIONS OF LAW 1. The criteria for a 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, 4.3, 4.7, 4.71a, Diagnostic Code 5257. 2. The criteria for a rating in excess of 10 percent for left knee limitation of motion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Navy from May 2004 to April 2008. These matters come before the Board of Veterans' Appeals (the Board) on appeal from an April 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the appeal in March 2014, August 2016, September 2017, July 2020, and most recently in December 2020, for additional development. The Board finds that the RO has substantially complied with the Board's prior remand directives, as the requested VA examination is adequate. Dyment v. West, 13 Vet. App. 141 (1999). 1. Entitlement to an initial rating in excess of 10 percent for left knee instability. The Veteran's representative contends that the Veteran's left knee disability is manifested by instability, locking, popping, and flare. See Appellate Brief (September 2021). The Veteran also reported continuous pain with simple activities like walking in addition to tightness and cramping. See Form 9 (September 2010). The Veteran's left knee instability was initially rated under 38 C.F.R. § 4.71a, Diagnostic Code 5257. At that time, under Diagnostic Code 5257, a 10 percent rating was warranted for slight recurrent subluxation or lateral instability; a 20 percent rating was warranted for moderate recurrent subluxation or lateral instability; and a 30 percent rating is warranted for severe recurrent subluxation or lateral instability. According to MERRIAM WEBSTER'S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), "slight" means small in amount. "Moderate" means limited in scope or effect. "Severe" means very painful or harmful or of a great degree. As indicated previously, the Veteran's instability has been rated pursuant to Diagnostic Code 5257 throughout the appeal period. 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. 76453-76469 (Nov. 30, 2020). These amendments revised select diagnostic codes "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. If a law or regulation changes during the course of 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). 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. In this instance, the former version is more favorable to the Veteran. First, the Board notes that a January 2009 VA examination report indicates that the Veteran's left knee was normal without evidence of palpable tenderness, guarding of movement, fracture, deformity, edema or effusion, heat or redness, subluxation, locking pain, or ankylosis. A contemporaneous radiology report indicates that no fracture, arthritic change, or other significant abnormality of the left knee was evident at that time. A December 2009 non-VA hospital document, labeled an "Initial Physicians Order Sheet," indicates that the Veteran was undergoing physical therapy for his left knee and was experiencing residual laxity at that time. Thereafter, a March 2017 report of VA examination shows mild positive findings for anterior instability and the examiner noted mild instability. Additionally, the examiner indicated that there was no prior history of recurrent subluxation or lateral instability at that time, and the Veteran did not use any assistive device as a normal mode of locomotion. The Board also notes that the Veteran reported that his knee was more or less the same as it was when he was examined previously. A February 2020 report of VA examination shows mild positive findings for anterior instability. In an August 2020 report, the February 2020 examiner reiterated his findings of anterior instability and reported that the results show "a small amount of anterior instability which is directly related to [the Veteran's] ACL condition." A July 2021 examiner indicated that the Veteran did not have recurrent subluxation or persistent instability of the knee. They also noted no recurrent patellar instability and indicated that posterior, medial, and lateral instability test results were normal. Further, the Veteran did not use assistive devices at that time. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for left knee instability. The Board has carefully considered the Veteran's reports about instability, locking, and popping. English v. Wilkie, 30 Vet. App. 347, 352-53. However, overall, the lay and medical evidence indicates that the instability symptoms have not varied since service connection was granted and do not suggest the presence of symptoms more nearly approximating moderate severity. VA examiners have consistently noted only mild anterior instability with normal posterior, medial, and lateral instability. Notably, the Veteran has provided no statements detailing the severity of his knee instability. Additionally, the evidence weighs against finding that instability had its onset prior to March 2017, as the January 2009 examination was negative for subluxation, the March 2017 examiner indicated that there was no prior history of recurrent subluxation or lateral instability, and the Veteran reported in March 2017 that his knee was more or less the same as it was when he was examined previously. The Board has also considered the other Diagnostic Codes pertaining to the knee and leg. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). However, the Veteran has not reported, and the medical evidence does not show, ankylosis, a semilunar condition, limitation of extension, tibia and fibula impairment, or genu recurvatum. Notably, the Veteran is currently service connected for limitation of flexion, which is discussed below. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for a rating in excess of 10 percent for left knee instability. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. In so finding, the Board also notes that it considered all potentially applicable diagnostic codes pertaining to the knee, but the evidence does not indicate that additional, separate ratings are warranted. 2. Entitlement to a rating in excess of 10 percent for left knee limitation of motion. As noted previously, the Veteran's representative contends that the Veteran's left knee disability is manifested by instability, locking, popping, and flare. See Appellate Brief (September 2021). The Veteran also reported continuous pain with simple activities like walking in addition to tightness and cramping. See Form 9 (September 2010). The Veteran's left knee limitation of motion is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5260, for limitation of flexion of the leg. Under Diagnostic Code 5260, a noncompensable rating is warranted for flexion limited to 60 degrees; a10 percent rating is warranted for flexion limited to 45 degrees; a 20 percent rating is warranted for flexion limited to 30 degrees; and a 30 percent rating is warranted for flexion limited to 15 degrees. Effective February 7, 2021, VA amended the rating criteria for disabilities of the knee and leg; however, DC 5260 was unchanged. 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; 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 criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The aforementioned January 2009 VA examination report indicates that the Veteran's left knee was normal. The Veteran also demonstrated flexion to 140 degrees and extension to 0 degrees, and his range of motion was not further limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive motion. Additionally, examination of the anterior and posterior cruciate ligaments, medial and lateral collateral ligaments, and the medial and lateral joint lines (menisci) was normal and there was no evidence of genu recurvatum. A contemporaneous radiology report indicates that no fracture, arthritic change, or other significant abnormality of the left knee was evident at that time. A March 2017 report of VA examination shows that the Veteran had full range of motion with extension to 0 degrees and flexion to 140 degrees, and the examiner noted that the Veteran did not report flare-ups, but there was evidence of pain with weight bearing and localized tenderness or pain on palpation. The Veteran also reported functional loss, explaining that he experienced painful range of motion of the left knee, and the examiner indicated that the Veteran experienced pain on flexion. Notably, however, the examiner indicated that the pain noted on examination did not result in or cause functional loss, and repetitive use testing did not result in additional functional loss or a more limited range of motion. The Veteran did not have ankylosis and there was no indication that he experienced functional ankylosis at that time. The Veteran reported that his knee was more or less the same as it was when he was examined previously. A February 2020 report of VA examination shows that the Veteran's range of motion was more limited than it was previously, with extension to 0 degrees and flexion that was limited to 120 degrees. Once again, the VA examiner indicated that the Veteran did not report flare-ups but reported functional loss due to painful range of motion. The examiner estimated that pain, weakness, fatigability, or incoordination would significantly limit the Veteran's functional ability with repeated use such that his range of motion in flexion would be limited to 115 degrees. The examiner indicated that there was no pain with non-weight bearing or with passive motion on examination. With regard to functional loss more generally, the examiner reported that the Veteran's left knee condition impacts his ability to perform physical labor such as rucking, running, walking/standing, bending/stooping, squatting, and kneeling; but does not impact his ability to perform sedentary work. A July 2021 report of VA examination shows that the Veteran's range of motion in flexion was limited to 130 degrees, and his abnormal range of motion did not contribute to functional loss. Passive range of motion was reported as the same as active. The Veteran reported that flare-ups of his left knee occur daily. The flare-ups are moderate in severity, but sometimes severe; the severe flare-ups can last a few days. He also reported that they are precipitated by physical work, walking too much, and lifting, but alleviated by stopping work or limiting himself. Notably, there was no functional loss or functional impairment of the left knee after repeated use/three repetitions. However, the examiner estimated that, with repeated use and during flare-ups, the Veteran's range of motion in flexion would be limited to 120 degrees. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for left knee limitation of motion. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to continuous pain, tightness, and cramping. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that moderate flare-ups of his left knee occur daily, and are sometimes severe, would not result in limitation of motion more nearly approximating flexion limited to 30 degrees or less. Throughout the appeal period, the Veteran's limitation of flexion was no worse than 115 degrees, which considers the additional functional loss with repeated use and during flare-ups. As noted previously, the Board considered all potentially applicable diagnostic codes pertaining to the knee, but the evidence does not indicate that additional, separate ratings are warranted. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). However, the Veteran has not reported, and the medical evidence does not show, ankylosis, a semilunar condition, limitation of extension, tibia and fibula impairment, or genu recurvatum. (Continued on the next page) In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for a rating in excess of 10 percent for left knee limitation of motion. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. M. C. WILSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Thaddaeus J. Cox, 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.