Citation Nr: 21066032 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 15-16 970 DATE: October 28, 2021 ORDER A disability rating of 10 percent, but no higher, effective September 9, 2019, for right knee instability is granted. An increased disability rating in excess of 20 percent for limited extension of the right knee throughout the claim period is denied. Prior to June 5, 2019, an increased disability rating in excess of 10 percent for limited flexion of the right knee is denied. From June 5, 2019, a disability rating in excess of 20 percent for limited flexion of the right knee is denied. FINDINGS OF FACT 1. From September 9, 2019, the Veteran's right knee disability exhibited slight instability. 2. The Veteran's right knee disability did not manifest as limited extension to 30 degrees or more throughout the claim period. 3. Prior to June 5, 2019, the Veteran's right knee did not manifest as limited flexion to 30 degrees or less. 4. From June 5, 2019, the Veteran's right knee did not manifest as limited flexion to 15 degrees or less. CONCLUSIONS OF LAW 1. Prior to September 9, 2019, the criteria for a compensable disability rating for right 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 (in effect prior to February 7, 2021). 2. From September 9, 2019, the criteria for a 10 percent disability rating, but no higher, for right 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 (in effect prior to February 7, 2021). 3. The criteria for a disability rating in excess of 20 percent for limitation of right knee extension have not been met throughout the claim period. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5261. 4. Prior to June 5, 2019, the criteria for a disability rating in excess of 10 percent for limitation of right knee flexion 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. 5. From June 5, 2019, the criteria for a disability rating in excess of 20 percent for limitation of right knee flexion 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 United States Army from April 1966 until his honorable discharge in March 1968. This appeal is being treated expeditiously on the Board of Veterans' Appeals' (Board) docket pursuant to 38 U.S.C. §§ 5109B, 7112 and 38 C.F.R. § 20.902(d). This case comes before the Board on appeal from a November 2013 rating decision by the Regional Office of the United States Department of Veterans Affairs (VA). In March 2018, the Veteran and his spouse testified at a Board hearing before the undersigned Veterans Law Judge. By way of background, the Veteran became service connected for a right knee disability in March 1968. At that time, his disability was labeled, "laceration traumatic lateral aspect distal right thigh and knee area well healed with limited range of flexion of the knee and limited extension." March 1968 Rating Decision. He was assigned an initial 20 percent disability rating. Relevant to this case, he filed his claim for an increased disability rating for his right knee on April 3, 2013. His 20 percent disability rating had been in effect for more than 20 years. When a specific disability rating for compensation purposes has been in effect for at least 20 years, it is "preserved" and may not be "reduced" except upon a showing that such rating was based on fraud. 38 U.S.C. § 110; 38 C.F.R. § 3.951(b); see Murray v. Shinseki, 24 Vet. App. 420, 421, 42326 (2011). In a January 2020 decision, the Board assigned the Veteran separate ratings for his right knee's limited flexions and extension. It assigned a 10 percent disability rating effective April 3, 2013, for limited flexion and assigned a 20 percent disability rating effective June 5, 2019 for limited flexion. The Board denied an increased rating in excess of 20 percent for limited extension, and because it was protected, the Board did not reduce the rating. The Veteran subsequently appealed the Board's January 2020 decision to the United States Court of Appeals for Veterans Claims (Court). Based on a Joint Motion for Partial Remand submitted by the parties, the Court entered an order in March 2021 vacating the Board's decision in in part and remanding the case to the Board for readjudication. In July 2021, consistent with the Court's order and the parties Joint Motion for Partial Remand, the Board remanded the case to the VA Regional Office for further development. Specifically, the Board directed the VA Regional Office to attempt to obtain outstanding VA and private medical records and to obtain a new VA examination assessing the Veteran's right knee disability. On review, the Board finds the VA Regional Office substantially complied with the Board's directives on remand, and the Veteran has conceded the same. October 2021 Appellate Brief. Evidentiary Standards In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. VA is required to give due consideration to all pertinent medical and lay evidence when rating disabilities. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 C.F.R. § 4.3. To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). An initial rating is one assigned at the time service-connection is granted. Generally, the effective date of an initial rating is the date of receipt of the claim or request or the date entitlement arose, whichever is later. 38 U.S.C.§ 5110(a); 38 C.F.R. § 3.400(o)(1); see Sutton v. Nicholson, 20 Vet. App. 419, 422 (2006). When an initial rating decision is on appeal, evidence contemporaneous with the claim and with the initial rating decision granting service connection would be most probative of the degree of disability existing at those times and should be the evidence used to decide whether an original rating was erroneous. Fenderson v. West, 12 Vet. App. 119, 126 (1999). A claim for an increased rating is a new, distinct claim. See Suttman v. Brown, 5 Vet. App. 127, 136 (1993) (a claim for an increase is "based upon facts different from the prior claim"). An increased disability rating is generally assigned based on a showing that a service-connected disability has worsened. The Board is to consider each disability in relation to the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999); 38 C.F.R. § 4.1. The Board must also determine if it is factually ascertainable that the disability worsened within one year preceding the filing of the claim because an earlier effective date for an increased disability rating may be warranted. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). Separate ratings can be assigned for separate periods of time based on the facts founda practice known as "staged" ratings. Id. at 126. A staged rating is a rating that looks backwards and retroactively assigns specific ratings to discrete periods. See Reizenstein v. Shinseki, 583 F.3d 1331, 1337 (Fed. Cir. 2009). This practice accounts "for the possible dynamic nature of a disability while the claim works its way through the adjudication process." O'Connell v. Nicholson, 21 Vet. App. 89, 93 (2007); see also 38 C.F.R. § 4.1. The effective date for a staged rating is when it is factually ascertainable that a particular rating is warranted. Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). In cases where staged ratings are appropriate, it is necessary to consider all "the evidence of record from the time of the veteran's application." Fenderson, 12 Vet. App. at 127. The law requires the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 12829 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claims. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Diagnostic codes are assigned to individual disabilities. Diagnostic codes provide rating criteria specific to a particular disability. If two diagnostic codes are applicable to the same disability, the diagnostic code that allows for the higher disability rating applies. 38 C.F.R. § 4.7. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Id. Separate ratings can be assigned for knee disabilities when none of the symptomatology overlaps and the separate rating is based on additional disabling symptomatology. 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).VAOPGCPREC 9-2004. VA General Counsel precedential opinions are binding on the Board. 38 U.S.C. § 7104(c); 38 C.F.R. § 14.507. 1. An initial disability rating of 10 percent, but no higher, effective September 9, 2019, for right knee instability is granted. Rating Criteria Right Knee Instability Knee instability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5257. Prior to February 7, 2021, Diagnostic Code 5257 provided as follows: Rating (%) Knee, other impairment of: Recurrent subluxation or lateral instability: Severe 30 Moderate 20 Slight 10 VA regulations did not define the terms "slight," "moderate," or "severe." Absent an express definition, it is presumed that VA regulations employ words using their ordinary dictionary meanings at the time the regulations were promulgated. See Nielson v. Shinseki, 607 F.3d 802, 80506 (Fed. Cir. 2010). "Slight," as an adjective, is defined as "small of its kind or in amount." Slight, Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/slight, Definition 2, (last visited Oct. 16, 2021). "Moderate," as an adjective, is defined as "not violent, severe, or intense"; "limited in scope or effect." Moderate, Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/moderate, Definitions 3 and 5 (last visited Oct. 16, 2021). "Severe," as an adjective, is defined as "causing discomfort or hardship"; "very painful or harmful"; "of a great degree." Severe, Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/severe, Definitions 6a, 6b, and 8 (last visited Oct. 16, 2021). Using the above definitions as guidance, the Board must arrive at an equitable and just decision based on an evaluation of all relevant evidence. 38 C.F.R. §§ 4.2, 4.6. It should also be noted that use of terminology such as "slight," "moderate," and "severe" by VA examiners or other physicians, although an element of evidence to be considered by the Board, is not dispositive of an issue. In addition, objective evidence is not required to assign a disability rating under DC 5257. See English v. Wilkie, 30 Vet. App. 347, 353 (2018) ("[N]othing in DC 5257 provides that objective medical evidence is required or is to be favored over lay evidence . . . . '[I]t certainly does not, by its terms, restrict evidence to "objective" evidence.'" (quoting Petitti v. McDonald, 27 Vet. App. 415, 427 (2015))). VA amended numerous Diagnostic Codes, including 5257, as of February 7, 2021. Because the Veteran's appeal was pending prior to these amendments, the Board is required to analyze his claim under both versions of Diagnostic Code 5257, and whichever criteria is more favorable to the Veteran will be applied as of February 7, 2021, forward. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (discussing the effect of changes in law or regulation during the pendency of an appeal). Diagnostic Code 5257, effective February 7, 2021, now provides: Rating (%) Knee, other impairment of: Recurrent subluxation or lateral instability: 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. 30 One of the following: 20 (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. (b) 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. 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. 10 Patellar instability: 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. 30 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. 20 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. 10 Note (1): For patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note (2): 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). Analysis In a September 22, 2021, rating decision, the VA Regional Office assigned the Veteran an initial 10 percent disability rating for right knee instability, effective September 16, 2021. The VA Regional Office assigned this initial rating on remand from the Board's July 2021 order in association with his claims for an increased rating for his right knee flexion and extension. Even though the Veteran did not appeal this initial rating decision, the Board finds it is properly before the Board for consideration because it is part of the Veteran's claim for increased ratings for his right knee disability. Morgan v. Wilkie, 31 Vet. App. 162 (2019) (VA has a duty to maximize benefits and consider issues raised by the record). From September 9, 2019 On September 9, 2019, the Veteran's VA medical records indicate he was seen for an orthotics prosthetics consult in relation to his right knee. The medical professional who assessed the Veteran documented that the Veteran would benefit from a knee brace to provide "support/stability" and help decrease his pain. He was fitted with a right knee brace. The Veteran has continued to use assistive devices, such as a knee brace since September 2019. The Board finds the Veteran's statements to medical professionals are credible as they relate to his right knee instability. The medical professional's assignment of a knee brace to the Veteran is further evidence of the Veteran's right knee instability. There is a lack of evidence indicating the exact severity of the Veteran's right knee instability as of September 9, 2019. Resolving reasonable doubt in the Veteran's favor, the Board finds, at the least, the need for him to wear a knee brace indicates slight instability based on the statements offered by the Veteran and the medical professional's opinion to assign him a brace. There is a lack of evidence that his right knee instability affected him to the point where he was limited in daily activities to a moderate degree, such as interfering with work, routine activities, or otherwise requiring additional assistance to stabilize his knee. The Board has considered whether the Veteran's right knee exhibited any degree of instability prior to September 9, 2019. On review of the lay and medical evidence, the Board finds that it is not factually ascertainable that the Veteran's right knee exhibited instability for VA rating purposes prior to September 9, 2019. A March 2015 VA Emergency Department Note documented that the Veteran's right was stable. A February 2016 VA Orthopedic Surgery Note documented that the Veteran's right knee was stable. A March 2016 VA examination did not note right knee instability. A June 2019 VA examination did not note right knee instability. The Board finds these medical records are the most probative evidence of the Veteran's right knee stability prior to September 9, 2019. Accordingly, an initial 10 percent disability rating for right knee instability from September 9, 2019, is warranted. And a disability rating is not warranted prior to September 9, 2019. From February 7, 2021 As noted, there are new regulations that went into effect on February 7, 2021, under Diagnostic Code 5257. The Board has considered the revisions to that Diagnostic Code but finds a higher disability rating is not warranted. To warrant a 20 percent disability rating under Diagnostic Code 5257 (effective February 7, 2021), the regulation has two alternative prerequisites (in addition other criteria): The Veteran must have suffered a right knee "sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability"; or "unrepaired or failed repair of complete ligament tear causing persistent instability." Here, the Veteran has not suffered any of the foregoing injuries to his right knee. A September 2021 VA-contracted examiner specifically endorsed that the Veteran did not suffer from any of the foregoing injuries. The Veteran's medical records, VA and private, also do not document such injuries. A 20 percent disability rating is also available when the Veteran's right knee disability involves 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. The September 2021 VA-contracted examiner specifically found that the Veteran right knee disability did not involve the patellofemoral complex with recurrent instability after surgical repair. The Board finds no evidence in the Veteran's medical records or lay statements that contradict this finding. Accordingly, the Veteran's right knee instability does not meet the rating criteria to receive a 20 percent disability rating as of February 7, 2021, or later. 2. An increased disability rating in excess of 20 percent for limited extension of the right knee is denied. 38 C.F.R. § 4.71a, Diagnostic Code 5261 (limited extension) provides: Rating (%) Leg, limitation of extension of: Extension limited to 45° 50 Extension limited to 30° 40 Extension limited to 20° 30 Extension limited to 15° 20 Extension limited to 10° 10 Extension limited to 5° 0 The normal range of motion of the knee is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. The Veteran is currently in receipt of a "protected" 20 percent disability rating. Therefore, in order to receive a 30 percent disability rating or higher, his right knee extension must be limited to 20 degrees or more. During the entire claim period, and the year preceding the Veteran's filing of his claim for an increased rating, the Veteran's right knee did not exhibit extension limited to 20 degrees or more. The Veteran received three examinations during the appeal period addressing his right knee. A February 2016 VA examiner recorded that the Veterans' right knee extension was limited to 10 degrees. A June 2019 VA-contracted examiner recorded that the Veteran's right knee extension was not limited. A September 2021 VA-contracted examiner documented that the Veteran's right knee extension was limited to 15 degrees. The Board acknowledges that the parties stipulated at the Court that the June 2019 VA-contracted examination was inadequate. Nevertheless, the documented extension measurement is still credible and probative despite the examinations inadequacies as those inadequacies did not affect the provided measurement. Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) ("[E]ven if a medical opinion is inadequate to decide a claim, it does not necessarily follow that the opinion is entitled to absolutely no probative weight."). Furthermore, the Board finds no evidence within the Veteran's VA or private medical records that his right knee extension was limited to 20 degrees or more. Accordingly, a disability rating in excess of 20 percent disability is not warranted one year prior to the filing of the April 13, 2013, claim or during the claim period. The Veteran is entitled to retain his 20 percent protected rating despite evidence indicating his extension does not meet the 20 percent rating criteria. 38 U.S.C. § 110; 38 C.F.R. § 3.951(b). 3. Prior to June 5, 2019, an increased disability rating in excess of 10 percent for limited flexion of the right knee is denied. 4. From June 5, 2019, a disability rating in excess of 20 percent for limited flexion of the right knee is denied. 38 C.F.R. § 4.71a, Diagnostic Code 5260 (limited flexion) provides: Rating (%) Leg, limitation of flexion of: Flexion limited to 15° 30 Flexion limited to 30° 20 Flexion limited to 45° 10 Flexion limited to 60° 0 (Continued on the next page) The Veteran received three examinations during the appeal period addressing his right knee. A February 2016 VA examiner recorded that the Veterans' right knee flexion was limited to 100 degrees. A June 2019 VA-contracted examiner recorded his right knee flexion was limited to 60 degrees on initial range of motion testing, 40 degrees following repetitive use over time, and limited to 30 degrees during flare-ups. A September 2021 VA-contracted examiner documented that the Veteran's right knee flexion was limited to 95 degrees on initial measurement and 90 degrees following repetitive use over time and during flare-ups. The Board acknowledges that the parties stipulated at the Court that the June 2019 VA-contracted examination was inadequate. Nevertheless, the documented flexion measurements are still credible and probative despite the examinations inadequacies as those inadequacies did not affect the provided measurements. Monzingo, 26 Vet. App. at 107. Furthermore, the Board finds no evidence within the Veteran's VA or private medical records that his right knee flexion was limited to 30 degrees or less prior to June 5, 2019, and 15 degrees or less as of June 5, 2019. Accordingly, a disability rating in excess of 10 percent prior to June 5, 2019, and in excess of 20 percent from June 5, 2019, is not warranted. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. F. Sawka, 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.