Citation Nr: 21065557 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 14-35 053A DATE: October 26, 2021 ORDER For the entire appellate period, a 20 percent evaluation, but no higher, for left knee instability is granted. FINDING OF FACT Throughout the appellate period, the manifestations of the Veteran's left knee disorder have most closely approximated moderate lateral instability. CONCLUSION OF LAW For the entire period on appeal, the criteria for a 20 percent rating, but no higher, for left knee instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1961 to June 1981. This case is before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the appeal in August 2018. The case returned to the Board in June 2021, at which time the Board, in pertinent part, denied a rating in excess of 10 percent for the Veteran's service-connected left knee limitation of motion but remanded the issue of entitlement to a higher rating for the left knee instability for additional development. That development having been completed, the case has once again returned to the Board. Increased Ratings VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R., Part IV. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. The percentage ratings in the Schedule for Rating Disabilities represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The schedule recognizes that disability from distinct injuries or diseases may overlap. See 38 C.F.R. § 4.14. However, the evaluation of the same disability or its manifestation under various diagnoses, which is known as pyramiding, is to be avoided. Id. Because the level of disability may have varied over the course of the claim, the rating may be "staged" higher or lower for segments of time during the period under review in accordance with such variations, to the extent the evidence shows distinct time periods where the service-connected disability has exhibited signs or symptoms that would warrant different ratings under the rating criteria. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). In increased-rating claims, where a claimant seeks a higher evaluation for a previously service-connected disability, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In such claims, VA considers the level of disability for the period beginning one year prior to the claim for a higher rating. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); Hart, 21 Vet. App. at 509. 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. 1. Entitlement to an evaluation in excess of 10 percent for left knee instability. The Veteran contends that his service-connected left knee instability is more severely disabling than reflected by the 10 percent evaluation currently assigned. The Veteran's left knee instability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5257, for other impairment of the knee. In this regard, the Board notes that the criteria for rating musculoskeletal disabilities, including Diagnostic Code 5257, have changed during the period covered by this appeal, effective February 7, 2021. See 85 Fed. Reg. 76453 (Nov. 30, 2020). When a law or regulation changes during the pendency of a Veteran's appeal, the version most favorable to the Veteran applies, absent congressional intent to the contrary. The amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change; however, the old regulations will be considered for the periods both before and after the change was made. See 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114; VAOPGCPREC 3-2000, 65 Fed. Reg. 33422 (2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Thus, the Veteran is entitled to application of the criteria that are most favorable to their claim, except that an award based on the amended regulations may not be made effective before the effective date of the change. As in effect prior to February 7, 2021, DC 5257 provides a 10 percent rating for slight recurrent subluxation or lateral instability, a 20 percent rating for moderate recurrent subluxation or lateral instability, and a 30 percent rating for severe recurrent subluxation or lateral instability. See 38 C.F.R. § 4.71a, DC 5257 (2020). 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. Objective medical evidence is not required to establish lateral knee instability under Diagnostic Code 5257, so objective medical evidence cannot be categorically found more probative than lay evidence with respect to this Diagnostic Code. See English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). From February 7, 2021, under the amended criteria for recurrent subluxation and lateral instability of the knee, a 10 percent rating is warranted 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). 38 C.F.R. § 4.71a, DC 5257 (2021). A 20 percent rating is warranted 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 an 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. Id. Lastly, a 30 percent rating is warranted for unrepaired or failed repair of a complete ligament tear causing persistent instability, and a medical provider prescribed both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. The Board notes the amended criteria has also included criteria for Patellar Instability. However, the Veteran has never been found to have patellar instability, and therefore, the criteria are not for application. Id. Initially, the Board notes that, as discussed in the introduction above, the Veteran is currently in receipt of a 10 percent evaluation for painful motion of the left knee, effective from June 5, 1987. See August 2021 Rating Decision Codesheet. In the prior June 2021 decision, the Board denied a higher rating, finding that the painful, limited left knee range of motion most nearly approximated flexion limited to 30 degrees. See June 2021 Board Decision. See also 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.59, 4.71a, DC 5260. That decision additionally determined that separate ratings under additional diagnostic codes pertinent to the knee were unwarranted. Id. Accordingly, the Board's analysis below focuses solely on the rating assigned the Veteran's left knee instability under DC 5257. The record reflects that throughout the relevant appellate period, the Veteran's left knee disorder has been manifested by additional symptoms, apart from the painful, limited motion, including tenderness or pain to palpation for joint line or soft tissues of the left knee, popping, locking, and grinding, and additional functional limitations including weakened movement, excess fatigability, incoordination, swelling, disturbance of locomotion, and interference with sitting, with intraarticular for which the Veteran has been issued a knee brace. See, e.g., November 2011 VA Knee and Lower Leg Conditions Disability Benefits Questionnaire (DBQ) (noting tenderness or pain to palpation for joint line or soft tissues of the left knee, and further reflecting the Veteran's "constant" use of a left knee brace); November 2012 Chart Notes from Dr. S.T.G. (issuing the Veteran a left knee brace); May 2014 VA Knee and Lower Leg Conditions DBQ (documenting patellar tenderness and crepitation and additional functional limitations including weakened movement, excess fatigability, incoordination, pain on movement, swelling, disturbance of locomotion, and interference with sitting); October 2020 VA Knee and Lower Leg Conditions DBQ (finding additional left knee symptoms including tenderness to palpitation and reflecting the Veteran's report of experiencing popping and locking of his left knee); June 2021 VA Knee and Lower Leg Conditions DBQ (documenting left knee swelling). Additionally, the Veteran's medical records throughout the pendency of the appeal reflect that he required intra-articular injections to temporarily alleviate his left knee symptoms and aid in ambulating. See, e.g., Procedure Notes dated from April to May 2017 from B.L.W. (reflecting a series of five left knee joint intra-articular injections). Accordingly, considering the documented left knee symptoms including crepitation, locking, and popping; given the functional limitations noted by VA examiners including incoordination, swelling, and disturbance of locomotion; in light of the bracing and intra-articular steroidal injections required; taking into account the Veteran's competent and credible assertions of experiencing left knee instability; and resolving all doubt in the Veteran's favor, the Board finds that the Veteran's service-connected left knee instability most closely approximates a moderate degree of severity. See 38 C.F.R. § 4.71a, DC 5257 (2020). See also English, 30 Vet. App. 347, 352-53 (2018) (finding that objective medical evidence of knee instability is not required and noting that objective medical evidence is not categorically more probative than lay evidence). In so finding, the Board emphasizes that the separate 10 percent rating assigned the Veteran's left knee injury residuals, addressed in the June 2021 Board Decision, is based upon the Veteran's painful, limited motion. Accordingly, the assignment of a higher 20 percent rating for instability based upon consideration of the Veteran's left knee grinding, locking, popping, incoordination, swelling, and disturbance of locomotion, as well as his intra-articular injections and his required assistive device, does not violate the rule against pyramiding, as these manifestations are not accounted for in the rating under DC 5260. See 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994) (stating that "the rating schedule may not be employed as a vehicle for compensating a claimant twice or more for the same symptomology; such a result would overcompensate the claimant for the actual impairment of his earning capacity" and would constitute pyramiding). Furthermore, a higher rating under either the old (pre-February 2021) or the new (post-February 2021) criteria under DC 5257 is unwarranted. In this regard, because the Veteran's left knee instability has not resulted in positive objective joint stability testing, the Board cannot conclude the Veteran's left knee disability has resulted in severe instability. See 38 C.F.R. § 4.71a, DC 5257 (2020) (providing for a 30 percent rating for "severe" recurrent subluxation or lateral instability). Neither is there evidence of a complete ligament tear. See 38 C.F.R. § 4.71a, DC 5257 (2021) (reflecting, in pertinent part, that a 30 percent rating is warranted for unrepaired or failed repair of a complete ligament tear causing persistent instability). Accordingly, a rating in excess of 20 percent for the Veteran's left knee instability is not warranted at any point during the appeal period. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. McCabe, 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.