Citation Nr: 21067062 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 14-14 440 DATE: November 3, 2021 ORDER Entitlement to an initial rating in excess of 20 percent for left knee sprain with meniscal tear is denied. A separate rating of 10 percent, but no higher, for left knee instability is granted, subject to the law and regulations governing the payment of monetary awards. FINDINGS OF FACT 1. The Veteran's left knee sprain with meniscal tear is rated as 20 percent disabling, which is the maximum schedular rating permitted for dislocation of semilunar cartilage. 2. For the entire period on appeal, the Veteran demonstrated left knee instability which is slight. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for left knee sprain with meniscal tear are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5258 (2021). 2. The criteria for a separate rating of 10 percent, but no higher, for left knee instability are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1987 to August 1995. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2017, a hearing was held before the undersigned. A transcript of the hearing is of record. The case was previously before the Board in January 2018, April 2020, October 2020, and April 2021 when it was remanded for further development. Increased Rating-Left Knee Sprain with Meniscal Tear 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 percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If 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. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where entitlement to disability compensation has already been established and an increase in the assigned rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board must also consider staged ratings, which are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). 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. 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). The Veteran's left knee sprain with meniscal tear is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5258. Under Diagnostic Code 5258, a 20 percent rating is warranted for dislocation of semilunar cartilage with frequent episodes of "locking, pain", and effusion into the joint. 38 C.F.R. § 4.71a, Diagnostic Code 5258. The Board notes that portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Kuzma, 341 F. 3d 1327. 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 case, Diagnostic Code 5258 was not changed by the February 7, 2021 revisions. Looking at the evidence of record, in June 2013 VA treatment records, the Veteran complained of left knee pain, swelling, and numbness for the past 3 weeks. Pain is worse when kneeling down and better with ice. There was slight swelling, no warmth, no redness, but there was slight tenderness noted to the left knee medial side. He was able to extend and flex and there was no pain with medial and lateral stress. In July 2013, the Veteran stated that symptoms had not resolved, and he had problems ascending and descending stairs. He also endorsed loss of sensation, joint laxity, and edema. He had a stable gait, but there was visible medial mass and deformity noted. In April 2014 and July 2014, the Veteran reported to the emergency department complaining of left knee pain. The Veteran underwent a VA examination in August 2014. The Veteran reported that flare-ups impacted the function of the left knee in that he would suffer weakness 2 times a year, which would last 2 to 3 minutes and made him unable to stand or walk. Range of motion testing showed flexion to 35 degrees with painful motion and extension to 0 degrees. The Veteran was able to perform repetitive use testing and there was no additional loss of motion after three repetitions. The Veteran had functional loss and/or functional impairment, with contributing factors of disability being pain on movement, instability of station, disturbance of locomotion, and interference with standing, sitting, and weight bearing. Pain and weakness could significantly limit functional ability during flare-ups or when the joint is used repeatedly over a period of time. However, the Veteran was unable to replicate the estimated limitation at the time of the examination, so an opinion expressed in terms of degrees of additional range of motion was not feasible. The Veteran had tenderness or pain to palpation for the joint line or soft tissues. Muscle strength testing showed active movement against some resistance in the left knee. There was slight anterior instability. There was no evidence or history of recurrent patellar subluxation/dislocation. The Veteran had a meniscal tear with frequent episodes of joint locking and frequent episodes of joint pain. The Veteran had not undergone a meniscectomy. The Veteran used a left knee brace on a regular basis for support. His left knee impacted his ability to work in that he could not lift more than 50 pounds, could not walk more than 1 to 2 hours, could only walk 1 to 2 hours a time during an 8-hour day, could only stand for 2 to 3 hours, and could not sit or stand for more than 2 to 3 hours at a time. In April 2015 VA treatment records, it was noted that there was full flexion and extension of the knees in all plains, no clicking or clunking was heard or felt, and there was no joint swelling, tenderness, or obvious joint deformity. The Veteran underwent a VA examination in January 2017. The Veteran reported symptoms of pain and range of motion loss. The Veteran reported that flare-ups impacted the function of the left knee in that he would get burning sensations with prolonged walking, standing, and climbing. He also reported functional loss and functional impairment of trouble climbing and standing for a long time. Range of motion testing showed flexion to 70 degrees with painful motion and extension to 0 degrees with painful motion. Range of motion contributed to a functional loss. There was no objective evidence of localized tenderness or pain to palpation for the joint line or soft tissues. There was no evidence of pain with weight bearing, and no objective evidence of crepitus. The Veteran was not able to perform repetitive use testing as there was significant pain on initial range of motion testing. The examiner could not say without resort to mere speculation whether pain and weakness, fatigability, or incoordination could significantly limit functional ability during flare-ups or when the joint is used repeatedly over a period of time, as the Veteran was not examined immediately after repetitive use over time or during a flare-up. There were no additional contributing factors of disability. Muscle strength testing showed active movement against some resistance in the left knee. There was no muscle atrophy and no ankylosis. There was no history of recurrent subluxation, lateral instability, and recurrent effusion. Joint stability testing showed no instability. The Veteran had a meniscal tear. He had not undergone a meniscectomy or other knee surgery. His left knee impacted his ability to work in that he had difficulty climbing in and out of his truck cab. There was evidence of pain when used in non-weight bearing. Passive range of motion testing was not done because it placed the Veteran at significant risk for further injury. At his hearing before the Board in June 2017, the Veteran stated that his condition had gotten worse and would cause him incapacitation at work. He was issued knee braces for stability and strength. In October 2018 VA treatment records, it was noted that the left knee had no swelling, no ecchymosis/erythema, and no focal point tenderness. The left knee was positive for crepitus, range of motion was full but with discomfort, strength was normal, and there was a negative anterior/posterior drawer sign and a negative McMurray sign. Gait was normal. The Veteran underwent a VA examination in December 2018. The Veteran complained of a painful knee, stiffness, lack of strength and mobility, and occasional popping and grinding. The Veteran reported that flare-ups impacted the function of the left knee in that the knee would stiffen and there would be burning pain which made him unable to move. He would have flare-ups once a week, with 10/10 severity, lasting 1 to 2 days. He also reported functional loss and functional impairment of being unable to inspect or be mobile around loads. It affected climbing on top of the trailer to secure a load and he could walk about 100 feet from his truck. Range of motion testing showed flexion to 55 degrees with pain and extension to 0 degrees with pain. Range of motion did not contribute to a functional loss. There was objective evidence of localized tenderness or pain to palpation for the joint line or soft tissues. There was evidence of pain with weight bearing and crepitus. The Veteran was not able to perform repetitive use testing due to fear of pain. The examiner could not say without resort to mere speculation whether pain and weakness, fatigability, or incoordination could significantly limit functional ability during flare-ups or when the joint is used repeatedly over a period of time, as there was no conceptual or empirical basis for making such a determination without directly observing function under these conditions. There were no additional contributing factors of disability. Muscle strength testing was normal. There was no muscle atrophy and no ankylosis. There was no history of recurrent subluxation, lateral instability, and recurrent effusion. The Veteran was unable to perform joint stability testing. The examiner indicated that the Veteran had knee pain and instability testing may exacerbate his pain. The Veteran had a meniscal tear with frequent episodes of joint pain. He had not had a meniscectomy or other knee surgery. He had popping, grinding, pain, stiffness, and lack of strength and mobility. The Veteran used a brace and cane on a constant basis for bilateral knee arthritis. X-rays in June 2013 showed evidence of arthritis in the left knee. His left knee impacted his ability to work as a truck driver in that he was unable to climb on top of his trailer, unable to lift heavy objects more than 10 pounds, could only sit for 45 minutes, and could only walk from car to truck 100 feet with constant pain. There was objective evidence of pain on passive range of motion testing, and when the joint is used in non-weight bearing. In April 2019 VA treatment records, it was noted that the left knee had no swelling, no ecchymosis/erythema, and no focal point tenderness. The left knee was positive for crepitus, range of motion was full but with discomfort, strength was normal, and there was a negative anterior/posterior drawer sign and a negative McMurray sign. The Veteran was noted to have chronic left knee pain and pain was controlled. In June 2020, a VA examiner reviewed the December 2018 VA examination and indicated that pain significantly limited functional ability during flare-ups or when the joint was used repeatedly over a period of time. However, after further review of the evidence and based on the examiner's medical knowledge and expertise, the examiner concluded there remained no basis to offer additional losses of function or motion during repetitive use or during a flare-up. In an August 2020 statement, the Veteran indicated that he experienced constant pain, limited range of motion, and instability. He also indicated he was only able to handle 40 percent of his workload and experienced other health issues due to lack of mobility. The Veteran underwent another VA examination in November 2020. The Veteran complained of constant, sharp pain. The Veteran reported that flare-ups impacted the function of the left knee in that intensity of pain would increase, which would last for 3 days, occurring every few weeks. He also stated that his left knee would give out at times. He also reported functional loss and functional impairment, in that pain would occur with prolonged standing, sitting, kneeling, or squatting. He would have to stay off the left knee when pain intensified. Range of motion testing showed flexion to 100 degrees and extension to 0 degrees with pain on flexion and extension. Range of motion did not contribute to a functional loss. There was objective evidence of localized tenderness or pain to palpation for the joint line or soft tissues. There was evidence of pain with weight bearing but no objective evidence of crepitus. The Veteran was able to perform repetitive use testing and there was no additional loss of function or range of motion. Pain significantly limited functional ability during when the joint is used repeatedly over a period of time. In terms of range of motion, the examiner noted flexion would be to 100 degrees and extension would be to 0 degrees. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with flare-ups. In terms of range of motion, flexion would be to 100 degrees and extension would be to 0 degrees. There were no additional contributing factors of disability. Muscle strength testing was normal. There was no muscle atrophy and no ankylosis. There was no history of recurrent subluxation, lateral instability, and recurrent effusion. Joint stability testing was performed and there was no joint instability. The Veteran had a meniscal tear with pain and swelling during flare-ups. The Veteran used a brace on a regular basis to help with pain and swelling. The Veteran had not had a meniscectomy or other knee surgery. His left knee impacted his ability to work in that pain occurred with prolonged standing, sitting, kneeling, or squatting which impacted the physical and nonphysical nature of his work. There was objective evidence of pain when the joint is used in non-weight bearing and passive range of motion was the same as active range of motion. The Veteran underwent another VA examination in July 2021. The Veteran was also diagnosed as having degenerative arthritis. The Veteran complained of constant retropatellar pain. Exacerbating factors were walking greater than 5 minutes, sitting for more than a couple of hours, and intermittent swelling. He also indicated occasional anterior instability and giving out of the left knee. The Veteran reported that flare-ups impacted the function of the left knee which occurred 4 times in the past 6 months, that were really painful, lasting a few days, and made it hard to stand on his left knee. He also reported functional loss and functional impairment, which was as described previously. The Veteran reported a history of frequent effusion in that both of his knees would swell. Range of motion contributed to a functional loss in that it would decrease kneeling capacity. Range of motion testing showed flexion to 70 degrees and extension to 0 degrees. Passive range of motion was the same as active. There was evidence of pain with weight bearing, active motion, passive motion, and pain caused a decrease in kneeling capacity. There was objective evidence of crepitus, and localized tenderness at the medial and lateral joint line. Pain, fatigability, and weakness significantly limited functional ability during when the joint is used repeatedly over a period of time and during flare-ups. The examiner indicated that after examination of the Veteran, listening to his complete history and current subjective complaints, as well as a complete review of the available records, the examiner had no basis to offer additional losses of function or motion. It was the examiner's opinion that after consideration of all procurable data, any member of the medical community at large could not provide such an estimate without resort to speculation. Additional factors contributing to disability were interference with sitting, interference with standing, and disturbance of locomotion, all due to pain. There was no muscle atrophy and no ankylosis. The examiner indicated that there was recurrent subluxation or persistent instability. There was no ligament tear and the Veteran had not had surgical repair of the knee for patellar instability. He required a prescription for a brace on a constant basis for bilateral knee pain. There was no recurrent patellar instability. The Veteran had a meniscal tear with frequent episodes of joint pain and joint effusion. His left knee impacted his ability to work in that it may impair his capacity to perform occupational tasks that require repetitive kneeling, squatting, stair or ladder climbing, or prolonged standing and walking. The examiner also stated that the Veteran's left knee stability examination was normal and that there was no evidence of "true" joint instability and that instability the Veteran feels is likely due to intermittent weakness in the quadriceps muscle. The examiner noted that the Veteran used a left knee brace and that review of his VA treatment records reflect that it is for management of his knee pain, not for knee instability. In this case, as the Veteran is in receipt of the highest schedular rating for dislocation of semilunar cartilage under Diagnostic Code 5258, there is no basis to award a higher evaluation under that Diagnostic Code. Therefore, a rating in excess of 20 percent is denied. The Board has also considered the other Diagnostic Codes pertaining to the knee and leg. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). Separate or higher ratings are not applicable under Diagnostic Code 5256, which applies to ankylosis as ankylosis has not been shown by the evidence of record. Diagnostic Code 5259 applies to removal of the semilunar cartilage, which is also not shown by the evidence of record. Diagnostic Code 5262, both prior to and from February 7, 2021 apply to impairment of the tibia and fibula, which also has not been shown by the evidence of record. The evidence of record also does not reflect that the Veteran has genu recurvatum; therefore, Diagnostic Code 5263 does not apply in this case. Diagnostic Code 5260 and Diagnostic Code 5261 pertain to limitation of flexion and limitation of extension. These Codes were not changed after the February 7, 2021 revisions. However, the Veteran is not entitled to separate ratings under Diagnostic Code 5260 or 5261. Diagnostic Code 5258 allows for a 20 percent rating for dislocation of the semilunar cartilage with frequent episodes of joint "locking", pain, and effusion, and the Veteran was awarded the 20 percent rating in part due to painful motion. Under Diagnostic Codes 5260 and 5261, limitation of motion is encompassed by the limitation of flexion or extension, including limitation of motion due to pain. As both Diagnostic Code 5258 and Diagnostic Code 5260 and 5261 rate the Veteran based on knee pain and limitation of motion due to pain, were the Board to grant separate ratings under both the Veteran would receive compensation under two different codes for the same manifestations of pain and painful limitation of motion. See DeLuca; 38 C.F.R. §§ 4.40, 4.45, 4.59. Because such an evaluation would constitute impermissible pyramiding, the Veteran is not entitled to separate disability ratings under Diagnostic Codes 5260 and 5261 for the painful limitation of motion associated with the left knee disability. The Board acknowledges the case of Lyles v. Shulkin, 29 Vet. App. 107, that held that rating a knee disability under Diagnostic Code 5257 or 5261 or both, does not, as a matter of law, preclude the assignment of a separate rating for meniscal disability of the same knee under Diagnostic Code 5258 or 5259, or vice versa. However, the Board concludes that on the particular facts of this case, and since any separate rating under Diagnostic Code 5260 or 5261 would be based on pain that is already being compensated under Diagnostic Code 5258, such an assignment would result in pyramiding. However, the Board finds that a separate 10 percent rating is warranted for the period on appeal under Diagnostic Code 5257 for left knee instability. Prior to February 7, 2021, instability of the knee was rated under Diagnostic Code 5257, which provided ratings of 10, 20, and 30 percent for recurrent subluxation or lateral instability of the knee, which is slight, moderate, or severe, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Effective February 7, 2021, Diagnostic Code 5257 provides ratings for both recurrent subluxation or instability of the knee and for patellar instability. As it pertains to recurrent subluxation or instability of the knee, Diagnostic Code 5257 provides a 10 percent rating 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. 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, or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device or bracing for ambulation. A 30 percent rating is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device and bracing for ambulation. Objective medical evidence is not required to establish lateral knee instability under the version of Diagnostic Code 5257 applicable prior to February 7, 2021, 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). The Board finds that a separate 10 percent rating is warranted for the left knee under Diagnostic Code 5257. The August 2014 VA examiner found instability of station and slight anterior instability in the left knee. The January 2017 VA examiner and December 2018 VA examiner found instability of station. The Veteran has also credibly reported instability in the left knee and indicated that his knee gives out on occasions. While the July 2021 VA examiner indicated that there was no instability and that the occasional instability the Veteran feels is likely due to intermittent weakness in the quadriceps muscle, such conclusion still indicates that the Veteran experiences instability in the left knee. The Board finds that knee instability that causes functional impairment but is only occasionally shown on examination is best characterized as slight in nature. Accordingly, a separate 10 percent rating, but no higher, for left knee instability is warranted for the entire appeal period. Since objective medical evidence is not required prior to February 7, 2021, for the period from February 7, 2021, the Board is applying the old Diagnostic 5257 criteria as they are more favorable to the Veteran and allow for the separate 10 percent rating for instability. The revised Diagnostic Code 5257 would not afford the Veteran a rating higher than 10 percent from February 7, 2021, as the Veteran has not had unrepaired or failed repair of complete ligament tear causing persistent instability or a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription for a brace, cane, or walker. Although the Veteran has been prescribed a brace for his left knee, as noted by the July 2021 VA examiner, the brace has been prescribed for left knee pain, not left knee instability. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for a rating in excess of 20 percent for left knee sprain with meniscal tear. However, the Board finds that a separate 10 percent rating for left knee instability under Diagnostic Code 5257 is warranted for the entire period on appeal. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. M. SORISIO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Bonnie Yoon, 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.