Citation Nr: 21065717 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 07-36 523 DATE: October 27, 2021 ORDER Entitlement to a rating in excess of 10 percent for residuals of left knee surgery manifested by painful limitation of flexion is denied. Entitlement to a rating in excess of 10 percent for left knee instability is denied. FINDINGS OF FACT 1. Since June 13, 2005, the Veteran's left knee disability has been manifested by painful limitation of flexion to no less than 95 degrees, even when considering Deluca factors and during flare-ups. 2. Since June 13, 2005, the Veteran's left knee disability has been manifested by no more than slight instability. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for residuals of left knee surgery manifested by painful limitation of flexion are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.71a, Diagnostic Code (DC) 5260. 2. The criteria for a rating in excess of 10 percent for left knee instability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.71a, DC 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from March 1991 to June 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for residuals of left knee surgery and assigned a noncompensable rating effective June 13, 2005. In September 2011, June 2014 and September 2017, the Board remanded the appeal for further development. In July 2012, the RO increased the rating for residuals of left knee surgery to 10 percent, effective October 20, 2011. In an August 2020 decision, the Board granted a 10 percent rating for residuals of left knee surgery manifested by painful limitation of flexion, effective June 13, 2005 and a separate 10 percent rating for left knee instability, also effective June 13, 2005. The Veteran timely appealed the August 2020 Board decision to the United States Court of Appeals for Veterans Claims (Court). In an April 2021 Order, pursuant to a Joint Motion for Partial Remand (JMPR) submitted by counsel for the Veteran and VA, the Court vacated the August 2020 Board decision as to the issues of whether a rating in excess of 10 percent was warranted for residuals of left knee surgery manifested by painful limitation of flexion and for left knee instability and remanded this matter to the Board for action consistent with the JMPR. The Court noted that the favorable findings of awarding the 10 percent ratings for the entire appeal period should not be disturbed. Increased Ratings 1. Entitlement to a rating in excess of 10 percent for residuals of left knee surgery manifested by painful limitation of flexion is denied. 2. Entitlement to a rating in excess of 10 percent for left knee instability is denied. I. General Rating Principles Disability ratings are determined by the application of rating criteria set forth in the VA Schedule for Rating Disabilities (38 C.F.R. Part 4) based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation of parts of the system, to perform the normal working movements of the body with normal excursion, strength, coordination, and endurance.38 C.F.R. § 4.40. The functional loss may be due to the loss of part or all of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervations, or other pathology, or it may be due to pain, supported by adequate pathology, and evidenced by visible behavior of the claimant undertaking the motion. Id. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. Other important factors include excess fatigability, or incoordination (to include during flare-ups or with repeated use), and those factors are not contemplated in the relevant rating. See DeLuca v. Brown, 8 Vet. App. 202(1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged ratings" is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Additionally, the primary concern for an increased rating for a service-connected disability is the present level of disability. Although the overall history of the disability is to be considered, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In all claims for an increased disability rating, VA has a duty to consider the possibility of assigning staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. 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 is assigned. 38 C.F.R. § 4.7. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided. 38 C.F.R. § 4.14. II. Rating Criteria Under DC 5260, a 10 percent disability rating is assigned for flexion limited to 45 degrees, a 20 percent disability rating is assigned for flexion limited to 30 degrees, and a 30 percent disability rating is assigned for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. A noncompensable rating is warranted for limitation of extension to 5 degrees, a 10 percent rating is warranted for limitation of extension to 10 degrees, a 20 percent rating is warranted for limitation of extension to 15 degrees, a 30 percent rating is warranted for limitation of extension to 20 degrees, a 40 percent rating is warranted for limitation of extension to 30 degrees, and a 50 percent rating is warranted for limitation of extension to 45 degrees. 38 C.F.R. § 4.71a, DC 5261. Pursuant to 38 C.F.R. § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in. Pettiti v. McDonald, 27 Vet. App. 415, 425 (2015) (holding that § 4.59 serves as a bridge linking painful motion and limitation of motion, such that a claimant with painful motion is deemed to have limited motion under DC 5003 even though actual motion is not limited). Moreover, the provisions of 38 C.F.R. § 4.59 relating to painful motion are not limited to arthritis, so must be considered when raised by the claimant or reasonably by the record, even in non-arthritis contexts. See Burton v. Shinseki, 25 Vet. App. 1 (2011). To this end, 38 C.F.R. § 4.59 allows consideration of functional loss due to painful motion to be rated to at least the minimum compensable rating for a particular joint. DC 5257 evaluates recurrent subluxation or lateral instability of a knee, and provides a 10 percent rating 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 words "slight", "moderate", and "severe" used in DC 5257 are not defined in the Rating 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 Board does note, for reference and illustrative purposes only, that the definitions for "mild" includes not very severe. WEBSTER'S II NEW COLLEGE DICTIONARY at 694 (1995). A synonym for "mild" is "slight," which is defined as small in size, degree, or amount. Id. at 1038. The definitions for "moderate" include of average or medium quantity, quality, or extent. Id. at 704. Finally, definitions for "severe" include extremely intense. Id. at 1012. 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. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Thus, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. III. Analysis The Veteran is currently in receipt of a 10 percent rating from June 13, 2005 for residuals of left knee surgery manifested by painful limitation of flexion under DC 5260 and a 10 percent rating from June 13, 2005 for left knee instability under DC 5257. The current appeal period before the Board is from June 13, 2005, the date of award of service connection for his residuals of left knee surgery. Throughout the appeal period, the Veteran has complained of chronic left knee pain, swelling, and weakness that causes functional impairment and limits his range of motion, as well as flare-ups. See August 2006 VA treatment record, June 2007 Notice of Disagreement (NOD), November 2007 VA Form 9, April 2010 Correspondence, and October 2011 and April 2016 VA examination reports. As a preliminary matter, the Board notes that although the Veteran presented for VA examinations in August 2006, October 2011, and March 2016, none of the examinations are compliant with the requirements set forth by Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). However, following the Board's most recent remand in September 2017, the RO attempted to schedule the Veteran for a new VA examination to appropriately address the current severity of his left knee disability. Subsequently, in July 2019 email correspondence, the Veteran notified the RO that he was unable to attend a VA examination anytime soon, as he currently resides in Ireland, and instructed the Board to decide his case based on the current evidence of record. See July 2019 Email Correspondence. Thus, the Board will proceed with adjudication based on the Veteran's wishes and take all medical and lay evidence of record into consideration. In this regard, the Board emphasizes that the record reflects his last known address to indicate he still lives in Ireland and therefore is unavailable to present himself for an updated VA examination that could potentially result in evidence for higher ratings, and as detailed below the Board finds the current evidence does not support ratings in excess of the 10 percent ratings as currently assigned. During the August 2006 VA examination, the Veteran reported flare-ups of pain during weather changes or prolonged walking more than a mile, occasional stiffness, and occasional use of a knee brace. He denied instability, weakness, or swelling. Objective findings revealed range of motion to 135 degrees of flexion without pain and zero degrees of extension without pain. No additional loss during flare-ups or after repetitive use was found. Lachman's and McMurray signs were negative. No Deluca factors including painful motion, weakness, fatigability, incoordination, or instability were indicated. The examiner noted a 3 cm x .5 cm scar that was not painful or unstable. In his June 2007 NOD, the Veteran reported pain and weakness in his left knee from time to time. In his November 2007 VA Form 9, he reported use of a knee brace for any activity including exercise, hiking, and walking and that his knee was sore and swells. In April 2010 Correspondence, the Veteran reported having to wear a brace for an any activity due to soreness, swelling, and weakness including prolonged standing. The Veteran was afforded another VA examination in October 2011. There he reported flare-ups that could last up to two hours described as increased pain, stiffness, and difficulty with movement with no loss of range of motion. Examination revealed flexion to 105 degrees with pain at 95 degrees and extension to zero degrees with no objective painful motion. No additional loss of range of motion was found with repetitive use and the examiner did not opine on DeLuca factors with repeated use over time and during flare-ups and did not describe them in terms of range of motion, in violation of Sharp. The examiner noted additional factors contributing to functional loss including less movement than normal, pain on movement, and interference with sitting, standing, and weight-bearing. Muscle strength testing was normal (5/5), joint stability testing was normal, and no subluxation/dislocation was indicated. The examiner indicated a meniscus cartilage condition and endorsed symptoms of frequent episodes of joint pain. Left knee joint stability testing was normal, with the exception of medial-lateral instability, which was 1+. The examiner noted a constant use of a knee brace and indicated the Veteran's ability to work is impacted in that his job as a warehouse transportation manager requires him to frequently walk in the building, which can be more difficult due to his knee pain. No scars were indicated. Most recently, the Veteran submitted a Disability Benefits Questionnaire (DBQ) in March 2016 completed by one of his providers. The Veteran reported less frequency of flare-ups of knee pain and some stiffness. Examination revealed full flexion and extension with pain on palpation with no functional loss. No additional loss was found with repetitive use. The examiner noted Deluca factors would significantly limit functional ability with repeated use over time including discomfort with flexion; but did not comment on Deluca factors with respect to flare-ups or describe them in terms of range of motion, in violation of Sharp. Muscle strength testing was normal (5/5) and no muscle atrophy or ankylosis was found. The examiner indicated no history of lateral instability, recurrent subluxation, or recurrent effusion. Joint stability testing was normal. The examiner noted no meniscus cartilage condition, no assistive devices, and no scars. The examiner indicated his ability to work was impacted due to problems with prolonged standing and walking. As such, given the totality of the evidence, when considering the Veteran's lay statements and the medical evidence of record including DeLuca factors and functional loss with repeated use over time and during flare-ups, the Board finds that a rating in excess of 10 percent for limitation of flexion is not warranted at any time during the appeal period as limitation of extension was to no more than 95 degrees, consistent with a 10 percent rating, or the minimum rating for painful motion under § 4.59. To this end, the Board emphasizes that it can only use the medical evidence of record in its possession and that as noted above, the Veteran was unable to attend a new VA examination. Thus, even when considering the Veteran's representative's contentions in the JMPR regarding analysis under 38 C.F.R. §§ 4.40, 4.45 and Deluca, the Board's hands are tied as it is restricted to making a determination based on the medical evidence of record which unfortunately does not allow for a rating in excess of 10 percent. Moreover, even when considering the Veteran's competent and credible statements and the other medical evidence of record, the Board also finds that a rating in excess of 10 percent rating for left knee instability under DC 5257 is not warranted at any time during the appeal period as the evidence demonstrates no more than slight instability. Specifically, during the August 2006 VA examination, the Veteran denied instability, but reported occasional use of a left knee brace. The October 2011 VA examination report showed objective findings of instability, with joint stability testing being normal except for 1+ medial-lateral instability, and constant use of a left knee brace. Lastly, the March 2016 DBQ, provided by one of the Veterans providers, showed normal joint stability testing and no use of any assistive devices. The Board finds that the findings in the VA examination reports coupled with the Veteran's competent and credible reports of continuous left knee weakness and use of a knee brace over the appeal period warrant a 10 percent rating for slight (mild) left knee instability as currently assigned. A rating in excess of 10 percent is not warranted, as moderate or severe instability is not shown at any time during the appeal period. Specifically, all joint stability testing was normal, except during the October 2011 VA examination which showed mild medial-lateral instability of 1+, throughout the appeal period and none of the above-cited evidence points towards symptomatology that is closer to average (moderate) or intense (severe) instability. The Veteran's condition has been consistently reflected by slight (mild) instability based on the Veteran's denial of instability altogether during August 2006 examination, slight medial-lateral instability (1+) during the October 2011 examination, and normal joint stability findings by the March 2016 provider, and the other objective evidence and lay statements of record support the examiners' findings in this regard. Lastly, as previously noted, the Board is bound by the current evidence of record that is available and finds the evidence does not support a rating in excess of 10 percent for left knee instability for reasons outlined above. Additionally, though new criteria for rating musculoskeletal disabilities recently became effective February 7, 2021, there is no evidence dated after the criteria became effective, and the Board may not apply the new regulations to evidence dated prior to February 7, 2021. In this regard, the Board emphasizes that employing the former criteria for knee instability is much more favorable to the Veteran. The Board acknowledges the concerns outlined by the parties to the JMPR regarding the prior assessment of the Veteran's left knee disability, in that the Board did not adequately explain why the Veteran's disability did not warrant ratings in excess of 10 percent for left knee painful limitation of flexion and instability. However, given that the Board has previously awarded 10 percent ratings throughout the appeal period, and the Veteran's left knee disability is not of the severity of that associated with ratings in excess of 10 percent as detailed above, the parties' concerns need not be further addressed herein. (Continued on the next page) Finally, the parties have identified no other deficiencies in the Board's analysis of these issues. Therefore, the Board need not address other applicable diagnostic codes for the left knee, including any associated left knee scars. The Court has stated that advancing different arguments at successive stages of the appellate process does not serve the interests of the parties or the Court, and that such a practice hinders the decision-making process and raises the undesirable specter of piecemeal litigation. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) ("Court will [not] review BVA decisions in a piecemeal fashion"); see also Fugere v. Derwinski, 1 Vet. App. 103, 105 (1990), aff'd, 972 F.2d 331 (Fed. Cir. 1992) ("[a]dvancing different arguments at successive stages of the appellate process does not serve the interests of the parties or the Court"). The Board is therefore confident that if the Court had any additional concerns regarding the Board's findings in the analysis of the Veteran's claims, such concerns would have surfaced in the JMPR or the accompanying Court Order. Marissa Caylor Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Asante, Ruby 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.