Citation Nr: 21066771 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 15-09 110 DATE: November 2, 2021 ORDER A 20 percent rating, but not higher, for left knee instability is granted. A rating in excess of 10 percent for left knee degenerative arthritis and limitation of motion is denied. FINDING OF FACT 1. Resolving all doubt in the Veteran's favor, the record shows that she suffers from moderate instability in her left knee. 2. Throughout the appeal, the Veteran's left knee condition does not show flexion limited to 45 degrees or less, limitation of extension of 15 degrees or more. CONCLUSION OF LAW 1. The criteria for a 20 percent rating, but not higher, for left knee instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.71a, DC 5257. 2. The criteria for a rating in excess of 10 percent for left knee arthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.71a, DC 5003-5260. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from November 1996 to September 1998. In August 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. This issue was previously before the Board in August 2020 and it was remanded for further development. Increased Rating Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. 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 will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2009). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104 (a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). 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). Therefore, 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. The criteria that is more favorable to the Veteran will be applied. In this regard, the Board observes that former regulation 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction. In Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9(b)(2) (now as noted renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. As such, pursuant to 38 C.F.R. § 20.904(d)(2), the Board will proceed to adjudicate the Veteran's claim. Left knee The Veteran is currently rated at 10 percent under DC 5003-5257 for left knee instability and degenerative joint disease. The Veteran reports that a higher rating is warranted due to her pain, swelling, instability and flareups. In support, the Veteran and husband provided lay statements explaining the grave impact of the Veteran's left knee conditions on their daily life. See Veteran's and husband statements (May 2021). Under DC 5257, recurrent subluxation or lateral instability, other impairment of the knee, a 10 percent rating requires for the condition to be slight, 20 percent for moderate and 30 percent for severe. On August 2020, the Board remanded this issue to determine the current severity of the Veteran's left knee condition. Subsequently, the Veteran was afforded a VA examination in December 2020 and April 2021. The April 2021 VA examination report shows pain, moderate instability, flare ups, functional impairment, abnormal range of motion, and the use of cane and brace. See VA medical examination (April 2021). The Board finds that the Veteran's left knee condition more nearly approximates a 20 percent rating, but not higher. Indeed, her medical record shows the continuous knee problems, painful motion and medical treatments. In fact, her VA medical record shows complaints of painful motion, flare ups, swelling and moderate instability. See VA medical examination (April 2021). However, the medical and lay evidence, including the latest VA examinations do not indicate that the Veteran's suffers from severe instability. In light of the foregoing and resolving all doubt in the Veteran's favor, the Board finds that the evidence shows that the Veteran's left knee condition more nearly approximates a 20 percent rating. Thus, a rating of 20 percent, but not higher, for left knee instability is warranted. Additionally, the Veteran seeks a higher rating than 10 percent for her service-connected left knee degenerative arthritis and limitation of motion. The Veteran is currently rated at 10 percent under DC 5003-5260 for left knee degenerative arthritis. The RO granted a 10 percent rating due to painful motion and evidence of traumatic arthritis. The Veteran seeks a higher rating than 10 percent. The Veteran was afforded VA examinations on December 2020 and April 2021. See VA medical examinations (December 2020 and April 2021). Under Diagnostic Code 5003, degenerative arthritis established by x-ray findings will be rated based on limitation of motion under the appropriate Diagnostic Codes for the specific joint or joints involved (DC 5200 etc.). Id. When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Id. A 20 percent rating is warranted for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. Additionally, under DC 5260, limitation of flexion of a leg to 60 degrees warrants a zero percent rating. A 10 percent rating requires that flexion be limited to 45 degrees. A 20 percent rating requires that flexion be limited to 30 degrees. A 30 percent is warranted when flexion is limited to 15 degrees. The normal range of motion of the knee is from zero degrees extension to 140 degrees flexion. See 38 C.F.R. § 4.71, Plate II. The Board finds that the Veteran's left knee condition more nearly approximates no more than a 10 percent rating. Indeed, her medical record shows the continuous knee problems, painful motion and medical treatments. In fact, her VA medical examination shows complaints of painful motion and arthritis. See VA medical examination (April 2021). However, a higher evaluation is not warranted since there is no indication in the record of flexion limited to 31 to 45 degrees, limitation of extension of 15 degrees or more. Additionally, the record does not show degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. Therefore, no more than a 10 percent rating is warranted for her left knee limitation of motion and degenerative arthritis. Given the foregoing, the Board finds the preponderance of the evidence is against the claim for a rating in excess of 10 percent for the Veteran's left knee arthritis. As such, this issue must be denied. As a final note, at the August 2019 Board hearing, in response to a question by the undersigned Veterans Law Judge as to whether she has locking in her left knee, the Veteran responded that he left knee "popped out of place." Further, there is no medical evidence of left knee locking. As such, a separate rating for left knee locking is not warranted. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Alvarado- 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.