Citation Nr: A21016604 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 210903-183915 DATE: October 12, 2021 ORDER Entitlement to a separate disability rating of 10 percent for left knee instability is granted. Entitlement to a separate disability rating of 10 percent for right knee instability is granted. REMANDED Entitlement to a disability rating in excess of 10 percent for mild degenerative joint disease of the left knee, is remanded. Entitlement to a disability rating in excess of 10 percent, for mild degenerative joint disease of the right knee, is remanded. FINDINGS OF FACT 1. The Veteran's left knee disability was manifested by subjective complaints of instability throughout the claim period. 2. The Veteran's right knee disability was manifested by subjective complaints of instability throughout the claim period. CONCLUSIONS OF LAW 1. The criteria for entitlement to a separate disability rating of 10 percent for left knee instability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.17, 4.10, 4.21, 4.71a, Diagnostic Code 5257. 2. The criteria for entitlement to a separate disability rating of 10 percent for right knee instability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.17, 4.10, 4.21, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1960 to June 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2020 and October 2020 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with the Department of Veterans Affairs (VA)'s decision on their claim to seek review. This decision has been written consistent with the AMA framework. The Veteran timely appealed the September 2020 and October 2020 rating decisions in a September 2021 VA Form 10182 (Notice of Disagreement), and he selected the direct review lane. Accordingly, the Board may consider evidence of record as of the September 2020 rating decision with respect to the claims for entitlement for separate ratings for bilateral knee instability and as of the October 2020 rating decision with respect to the claims for increased ratings for the Veteran's bilateral knee disabilities. This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.902(c). Service connection for bilateral knee instability The Veteran contends that he is entitled to separate 10 percent ratings for bilateral knee instability pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5257. The Veteran is service connected for bilateral knee disabilities based on painful flexion, pursuant to Diagnostic Code 5260. As addressed in the remand portion of this decision, the claims for ratings in excess of 10 percent for the Veteran's knee disabilities pursuant to Diagnostic Code 5260 require additional development. However, the Board finds that separate disability ratings for bilateral knee instability are warranted. Separate ratings may be assigned for compensable limitation of both flexion and extension, or for limitation of motion and instability or subluxation of the knee, or meniscal pathology. However, a separate rating can only be assigned where additional compensable symptomatology is shown that is not duplicative of that used to assign another rating. 38 C.F.R. § 4.14 ; VAOPGCPREC 09-04 (2004), 69 Fed. Reg. 59990 (2004); VAOPGCPREC 23-97 (1997), 62 Fed. Reg.63604 (1997); VAOPGCPREC 9-98 (1998), 63 Fed. Reg. 56704 (1998); Lichtenfels v. Derwinski, 1 Vet. App. 484 (1991). In Lyles v. Shulkin, 29 Vet. App. 107 (2017), the Court of Appeals for Veterans Claims (Court) held that, as a matter of law, separate ratings are not precluded for limitation of motion (DCs 5003, 5260 and 5261), meniscal disability (DCs 5258 and 5259), and instability (DC 5257). Diagnostic Code 5257 covers "other impairment of the knee." The Board notes that during the pendency of this appeal, the schedule for rating musculoskeletal disabilities, including Diagnostic Code 5257, was amended, effective February 7, 2021. See 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257). Where, as here, a diagnostic code is amended while a claim is pending, VA is required to consider both versions of the code and apply the version most favorable to the Veteran. The prior version of Diagnostic Code 5257 provides a 10 percent rating for slight recurrent subluxation or lateral instability. A 20 percent rating is warranted when there is moderate recurrent subluxation or lateral instability. A 30 percent evaluation is for severe knee impairment with recurrent subluxation or lateral instability. The amended version of the Diagnostic Code rates knee instability based on the existence of ligament tears or a diagnosed condition involving the patellofemoral complex. As there is no evidence of a ligament tear or a diagnosed condition involving the patellofemoral complex in the record, the Board finds the prior version of the Diagnostic Code more favorable to the Veteran and will rate instability accordingly. As relevant here, the Veteran was afforded a VA examination for his knees in September 2020. The Veteran reported to the examiner that he felt unstable when standing and had to spread his legs more. The examiner noted that the Veteran regularly used a cane to assist walking due to unsteadiness and right lower extremity numbness. The examiner did not find any joint instability on testing. The Veteran submitted a March 2020 affidavit in support of his claim for increased disability ratings for his knees stating that his knees would buckle with weight, felt unstable and would give way without warning. The Veteran also stated that he was afraid of falling and used a cane for stability. The Board finds that the Veteran's credible reports that his knees give way and that he required assistance walking warrants separate 10 percent ratings for instability pursuant to Diagnostic Code 5257. Although the VA examiner found no instability, medical evidence is not inherently more probative than lay evidence in considering entitlement to a disability rating for knee instability pursuant to Diagnostic Code 5257. See English v. Wilkie, 30 Vet. App. 347, 352 (2018) (finding that DC 5257 does not require objective medical evidence of lateral instability for a rating to be assigned and when weighing evidence to determine whether there is lateral instability, the Board cannot find objective medical evidence is automatically more probative than lay evidence). As there is no objective evidence of instability, the Board finds that the Veteran's instability most nearly approximated the ratings for mild instability. REASONS FOR REMAND Entitlement to a disability rating in excess of 10 percent bilateral knee disabilities is remanded. The Veteran's claims for increased disability ratings for his bilateral knee disabilities require remand to correct a duty to assist error that occurred prior to the October 2020 rating decision on appeal. The Veteran asserted in his March 2020 affidavit that he experienced constant pain at the level of 3 out of 10 in his knees and that he had flareups to pain at the 10 out of 10 level. The September 2020 VA examiner determined that the Veteran did not experience flareups and thus did not address whether the Veteran experienced additional functional loss or loss of range of motion during flareups. Given the competent lay evidence that the Veteran experienced flareups, the Board concludes that the failure to address the effect of the flareups in the September 2020 VA examination constitutes a pre-decisional duty to assist error. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion it must ensure that the examination or opinion is adequate.) Accordingly, remand is warranted to obtain a new VA examination for the Veteran's knees. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to assess the nature and severity of his service-connected knee disabilities. Range of motion should be reported, including whether and the extent to which such motion is affected by pain, weakness, fatigue, lack of endurance, incoordination or other symptoms resulting in functional loss. Based upon a review of the medical records, lay statements submitted in support of the claim, and/or statement elicited from the Veteran during the examination, state whether the Veteran experiences flare-ups of his service-connected bilateral knee disabilities, and how he characterizes the additional functional loss during a flareup. The Board notes that the Veteran submitted a March 2020 affidavit stating that he experiences flareups. If the Veteran describes experiencing flareups, identify the: (a.) Frequency; (b.) Duration; (c.) Precipitating factors; and (d.) Alleviating factors (Continued on the next page) Based upon the information elicited as a result of the foregoing, state whether it is at least as likely as not (50 percent probability or more) that during a flareup, range of motion is additionally limited to 30 degrees flexion (the measurement required for the next higher rating). If the examiner cannot provide the requested opinions without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence in this case, or a lack of knowledge among the medical community at large, and not the insufficient knowledge of the individual examiner). K. A. KENNERLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Snyder, 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.