Citation Nr: 21065137 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 10-30 241 DATE: October 25, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for the Veteran's service-connected left knee arthritis for the period on appeal prior to September 29, 2011, is denied. FINDING OF FACT For the period on appeal prior to September 29, 2011, the Veteran's left knee disability more closely approximated the symptomatology considered for a 10 percent disability rating. CONCLUSION OF LAW The criteria for establishing entitlement to a disability rating in excess of 10 percent for the Veteran's service-connected left knee arthritis for the period on appeal prior to September 29, 2011, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DC) 5010, 5260. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from August 1976 to August 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2015, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge (VLJ). This case was remanded by the Board in December 2015, in December 2018, and most recently, when this case was last before the Board in February 2021, it was remanded for additional development. Specifically, in the February 2021 remand, the RO was instructed to obtain a retrospective medical opinion regarding the severity of the Veteran's left knee condition prior to his left knee replacement. A relevant medical opinion was obtained. As such, the Board finds that the AOJ substantially complied with the directives in the February 2021 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased RatingLegal Criteria Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of the 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. See 38 C.F.R. § 4.7. In both initial rating claims and normal increased rating claims, the Board must discuss whether "staged ratings" are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must weigh against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. At 54). Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. Here, because the entirety of the period on appeal is prior to the effective date of the revised rating criteria, the Board will solely be applying the old criteria to the issue on appeal. Left KneeLegal Criteria Separate ratings can be assigned for knee disabilities when none of the symptomatology overlaps and the separate rating is based on additional disabling symptomatology; this includes separate ratings based on limitation of flexion (Diagnostic Code 5260), limitation of extension (Diagnostic Code 5261), instability and recurrent subluxation (Diagnostic Code 5257), and meniscal conditions (Diagnostic Codes 5258, 5259). See VAOPGCPREC 23-97, 62 Fed. Reg. 63,603 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,703 (1998); VAOPGCPREC 9-2004; 69 Fed. Reg. 59,988 (2004); Lyles v. Shulkin, 29 Vet. App. 107 (2017). Diagnostic Code 5256 evaluates ankylosis of the knee, Diagnostic Code 5262 evaluates impairment of the tibia and fibula, and Diagnostic Code 5263 evaluates genu recurvatum. The medical record does not document any of these other conditions in the Veteran's left knees. Therefore, these Diagnostic Codes are not applicable and will not be discussed further. In this regard, the evidence preponderates against finding left knee ankylosis at any time during the period on appeal. The Board has considered whether the requirement of ankylosis can be met with evidence of the functional equivalent of ankylosis (i.e. functional immobility of the joint) during a flare-up. Chavis v. McDonough, 34 Vet. App. 1 (2021). However, the evidence does not indicate immobility of the left knee. On all recorded assessments, the Veteran was noted to retain some range of knee motion even during flare ups. The Board finds that the requirement of ankylosis cannot be met with evidence of the functional equivalent of ankylosis in this particular case. Diagnostic Code 5260 evaluates limitation of knee flexion. A noncompensable rating is assigned for flexion limited to 60 degrees, a 10 percent rating is assigned for flexion limited to 45 degrees, a 20 percent rating is assigned for flexion limited to 30 degrees, a 30 percent rating is assigned flexion limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Limitation of knee extension is evaluated by Diagnostic Code 5261. A noncompensable rating is assigned for extension limited to 5 degrees, a 10 percent rating is assigned for extension limited to 10 degrees, a 20 percent rating is assigned for extension limited to 15 degrees, a 30 percent rating is assigned for extension limited to 20 degrees, a 40 percent rating is assigned for extension limited to 30 degrees, and a 50 percent rating is assigned for extension limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Of note, separate compensable ratings may be assigned for limitation of flexion and for limitation of extension, without violating the rule against pyramiding. See 38 C.F.R. § 4.14. Period on Appeal Prior to September 29, 2011Analysis Upon review of the record, the Board finds that a rating in excess of 10 percent for the Veteran's left knee arthritis for the period on appeal prior to September 29, 2011, is not warranted. The record contains a June 2008 VA examination regarding the Veteran's left knee disability; however, this examination does not comply with the requirements of Correia v. McDonald, 28 Vet. App. 158, 168 (2016) and Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). As such, in a February 2021 decision, the Board remanded the Veteran's claim for a retrospective medical opinion to address the severity of the Veteran's left knee disability for the period on appeal prior to September 29, 2011, which complied with Correia and Sharp. In response to the Board's February 2021 Remand, the Veteran was provided with a June 2021 retrospective medical opinion. The examiner indicated that he undertook a complete review of the Veteran's records in proffering his opinion. Here, the examiner estimated that for the period on appeal prior to September 29, 2011, the Veteran's left knee range of motion was, at its worst during a flare up, 40 degrees flexion and 0 degrees extension. Pain was noted on weight-bearing, non-weight-bearing, active motion, passive motion, and on rest/nonmovement; however, the examiner reported that it did not result in additional functional loss. The examiner noted that the Veteran had difficulty walking, running, bending, lifting, squatting, going up and down stairs, and standing for long periods of time. Passive range of motion was reported to be the same as active range of motion, and no ankylosis of the Veteran's knee was reported. The Veteran's treatment records during the period on appeal contain treatment for the Veteran's left knee, but they do not contain specific findings which would warrant increased disability ratings for his knee condition. The Board has carefully considered the evidence of record. The Board notes that the June 2021 VA examiner is a medical professional, competent to measure motion, determine physical characteristics and deformities, and opine as to the severity of the Veteran's left knee disability. There is no evidence that the VA examiner is not credible. Moreover, the examiner provided an analysis based upon both subjective and objective information to form an opinion based upon medical expertise. The Board particularly finds the June 2021 examiner persuasive as he reviewed the complete record and provided the most thorough analysis regarding the Veteran's knees for the period prior to September 29, 2011. The Board notes that while the June 2021 examination documents the most restrictive range of motion findings, including as estimated during flare ups or with repeated use over time, it still does not provide evidence that the Veteran is entitled to a higher disability rating for his service-connected left knee disability. Further, the Board has considered the lay statements of the Veteran and finds the lay statements are competent insofar as they report observable symptoms, such as pain. However, to the extent the Veteran asserts that her disability entitled her to a higher disability rating during the period on appeal, such statements are less probative than, the objective medical evidence of record. This medical evidence preponderates against the notion that the Veteran's limited motion warrants higher ratings than those currently assigned. Regarding the Veteran's left knee arthritis, the Veteran was limited to 40 degrees of flexion, as evidenced on the June 2021 VA examination. However, under DC 5260, this would only entitle the Veteran to a 10 percent disability rating, and no higher, which she is already in receipt of for her left knee during this period. As such, the Veteran's limitation of flexion would not have entitled her to a higher disability rating, and it would be impermissible pyramiding to assign her a separate rating under limitation of motion and painful motion of the same joint. See 38 C.F.R. § 4.14; see also Lyles v. Shulkin, 29 Vet. App. 107 (2017). Given the totality of the evidence, the Board finds that the preponderance of the evidence is against the Veteran's claims for a disability rating in excess of 10 percent for her service-connected left knee arthritis during the period prior to September 29, 2011. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claims, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Gresham 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.