Citation Nr: 21067306 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 17-47 590 DATE: November 3, 2021 ORDER 1. Entitlement to an increased separate 10 percent rating for right knee chondromalacia patella, with traumatic arthritis under the criteria for arthritis with limited motion is denied. 2. Entitlement to an increased separate 20 percent rating for right knee chondromalacia patella, with traumatic arthritis under the criteria for recurrent subluxation or lateral instability is denied. FINDING OF FACT 1. The Veteran's right knee chondromalacia patella, with traumatic arthritis and limited motion has been manifested primarily by pain, decreased flexion no less than 90 degrees, and extension of no less than 5 degrees. 2. The Veteran's right knee chondromalacia patella, with traumatic arthritis is also manifested by, at worst, moderate instability, with a diagnosed condition involving the patellofemoral complex with recurrent instability without history of surgical repair requiring a doctor prescribed cane. CONCLUSION OF LAW 1. The criteria for entitlement to an increased initial rating in excess of 10 percent for right knee chondromalacia patella, with traumatic arthritis and limited motion have not been met. 38 U.S.C. § 1155 ; 38 C.F.R. §§ 3.321, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5260, 5261. 2. The criteria for increased rating in excess of 20 percent for right knee chondromalacia patella, with traumatic arthritis based on instability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5257. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1977 to July 1981. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this matter in May 2019 for further development. Such has been completed and this matter is returned for further consideration. The Board notes that the March 2016 rating on appeal had granted service connection for right knee chondromalacia patella with traumatic arthritis (also claimed as right knee condition has worsened/surgery since initial evaluation) with an initial evaluation of 10 percent effective the December 23, 2015 date of claim. This 10 percent rating was a separately assigned disability rating under Diagnostic Code 5010-5260, in addition to a 20 percent rating already in effect under Diagnostic Code 5257 from April 26, 1994 for a right knee chondromalacia patella with traumatic arthritis. After the Veteran filed a timely notice of disagreement in March 2017 with this rating, the RO issued a statement of the case (SOC) in July 2017 which addressed the knee disability rated 10 percent rating under Diagnostic Code 5010-5260. However, the SOC analysis included some discussion of whether there was recurrent subluxation or ligament instability, which would be in the purview of the criteria under Diagnostic Code 5257. After the Veteran perfected this appeal in September 2017 the Board remanded this matter but worded the issue as "entitlement to a disability rating in excess of 20 percent for right knee chondromalacia patella with traumatic arthritis." Based on the procedural history showing the appeal stemming from March 2016 grant of a separate 10 percent rating based under the criteria for arthritis (5010-5260), the Board shall decide all issues pertaining to the severity of the right knee disability. Right knee disability legal criteria and factual background Disability evaluations are determined by applying a schedule of ratings which is based on average impairment of earning capacity based on the specific diagnostic codes identifying the various disabilities. 38U.S.C. §1155; 38 C.F.R. Part 4. Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38C.F.R. §4.7. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. For musculoskeletal disabilities, a higher rating may be based on greater limitation of motion due to pain on use, including during flare-ups. 38C.F.R. §§4.10, 4.40, 4.45; see also DeLuca v. Brown,8 Vet. App. 202 (1995). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability, and therefore, actually painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. See38C.F.R. §4.59. Pursuant to Diagnostic Code 5010, arthritis, due to trauma, substantiated by X-ray findings is to be rated as arthritis, degenerative. Pursuant to Diagnostic Code 5003, arthritis, degenerative (hypertrophic or osteoarthritis), established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint or joints involved. 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. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, x-ray evidence of involvement of 2 or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations warrants a 20 percent evaluation. X-ray evidence of involvement of 2 or more major joints or 2 or more minor joints warrants a 10 percent evaluation. See 38 C.F.R. § 4,71a , Diagnostic Code 5003. The Board notes that the criteria for rating musculoskeletal disabilities were amended during the pendency of the appeal, effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020). Diagnostic Code 5010 was revised to contemplate post-traumatic arthritis, which is to be rated as limitation of motion, dislocation, or other specified instability under the affected joint. If there are 2 or more joints affected, each rating shall be combined in accordance with § 4.25. Part 4 - Schedule for Rating Disabilities, § 4.71a Schedule of ratings musculoskeletal system, 85 Fed. Reg. 230, 76460 (November 30, 2020). Effective February 7, 2021, Diagnostic Code 5003 was revised as follows: Degenerative arthritis, other than post-traumatic: Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (DC 5200 etc.). 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. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, a 20 percent disability rating is warranted. With X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, a 10 percent disability rating is warranted. Note (1): The 20 percent and 10 percent ratings based on X-ray findings, above, will not be combined with ratings based on limitation of motion. Note (2): The 20 percent and 10 percent ratings based on X-ray findings, above, will not be utilized in rating conditions listed under Diagnostic Codes 5013 to 5024, inclusive. 38 CFR Part 4, Schedule for Rating Disability: Musculoskeletal System and Muscle Injuries; Correction, 85 Fed. Reg. 249, 85523 (December 29, 2020). Regarding knee claims, a claimant who has arthritis and instability of the knee may be rated separately under DCs 5003 and 5257 or 5258/5259. See VAOPGCPREC 23-97. For example, when a knee disorder was already rated under DC 5257 (addressing lateral instability), a separate rating may be warranted if the Veteran's knee also shows limitation of motion which at least meets the criteria for a zero-percent rating under DC 5260 (flexion limited to 60 degrees or less) or 5261 (extension limited to 5 degrees or more). Moreover, a separate rating could also be warranted under 38C.F.R. §4.59, based on x-ray findings of arthritis with painful motion. See VAOPGCPREC 9-98; see also Degmetich v. Brown, 104 F.3d 1328, 1331 (Fed. Cir. 1997). In addition, the General Counsel has also held that separate ratings may be granted based on limitation of flexion (DC 5260) and limitation of extension (DC 5261) of the same knee joint. VAOPGCPREC 09-04. The Board notes that the criteria for rating musculoskeletal disabilities were amended during the pendency of the appeal, effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020). When a law or regulation changes during the pendency of an appeal, the version most favorable to the Veteran applies, absent congressional intent to the contrary. See VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (May 23, 2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change; however, the old regulations will be considered for the periods both before and after the change was made. See 38 U.S.C. § 5110 (g); 38 C.F.R. § 3.114; VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (May 23, 2000); Kuzma, 341 F.3d 1327. Evidence throughout the pendency of this claim includes multiple VA examinations of the knee undertaken in February 2016 (entered in the claims file March 2016), June 2017 (entered in the claims file July 2017) and December 2019. All the examinations showed the same findings regarding the right knee of fully normal joint stability tests, no history of recurrent subluxation or lateral instability, no ankylosis and no need for assistive devices for the right knee. There was also no history of recurrent subluxation or lateral instability for the right (or left) knees. No additional issues such as recurrent patellar dislocation, "shin splints" (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome or any other tibial or fibular impairment were noted in these examinations. Muscle strength of the right knee was normal 5/5 in the examination except for the December 2019 examination, showing 4/5 strength. All three examinations diagnosed right knee chondromalacia patella with traumatic arthritis. In the February 2016 VA examination, the Veteran reported daily pain and on standing up, treated with Motrin. She had trouble sitting in a car or walking for long distances. She also had flareups of pain with prolonged bending, sitting, using stairs, or running. She had no issues with the contralateral left knee which was also examined. On examination her initial range of motion was from 0-130 degrees, with pain noted with flexion and extension and lateral medial right mild in nature. There was no change after 3 repetitions. However, the estimated range of motion after repetitive use over time due to pain would be 5 degrees extension to 125 degrees flexion. Also, pain during flareups would further reduce her motion to 5 degrees extension and 120 degrees flexion. In the June 2017 VA examination the Veteran continued to report trouble with stairs; limping by the time she walks around the block; being unable to kneel anymore, and pain with prolonged sitting. On examination her initial range of motion was from 0-140 degrees, with pain noted on flexion, extension, and moderate direct pain on inferior and medial patellar margins with palpation. She was able to perform repetitive use without additional loss of range of motion. There was evidence of pain on weight bearing and crepitus noted. The examiner was unable to state whether pain, weakness, fatigability, or incoordination significantly limits functional ability with repeated use over a period of time; as repetitive use not observed on exam; so any statement regarding repetitive use on symptoms would be speculative. The Veteran did not report flareups, so the examiner indicated that functional ability was not limited by pain, weakness, fatigability, or incoordination by flareups. She did have disturbance of locomotion and interference with standing of the right knee. Functional impact from the knee disability included difficulty negotiating stairs; cannot squat or knee; difficult sitting for long periods making traveling difficult; can only walk about 4 blocks without having to stop. There was evidence of pain in non-weight bearing and on passive range of motion, although passive motion was the same as active motion. The report of a December 2019 VA examination revealed symptoms of pain all the time. Additionally, she now had pain in the left knee now due to compensating for the pain in the right knee. Flareups included increased pain and the Veteran reported pain with standing, or going up and down stairs. On examination, her right knee initial range of motion was from 0-120 degrees with no functional loss. There was no additional LOM after 3 repetitions. There was objective evidence of localized moderate tenderness or pain on palpation. There was also evidence of pain with weight bearing and objective evidence of crepitus. The estimated range of motion after repetitive use over time due to pain and also during flareups would be 0-110 degrees flexion. The examiner further noted a history of right sided arthroscopic surgery 1987, with a scar right knee 1 cm x 0.2 cm. This was not painful or unstable; have a total area equal to or greater than 39 square cm (6 square inches); or are located on the head, face, or neck. The examiner further noted that there was objective evidence of pain when the right knee is used in non-weight bearing. There was no change in motion caused by non-weight bearing and passive range of motion was the same as active range of motion. An addendum in December 2019 confirmed that there were objective findings of pain on motion, weakness, excess fatigability, or incoordination associated with the use of the right knee. This resulted in reduced flexion and extension. To the extent that pain was expressed in terms of additional degrees of limited motion, it was estimated that the Veteran would have 120 degrees flexion on the right knee versus 130 degrees on the left. This same limited motion was the same on weight bearing and non-weight bearing. Treatment records from the pendency of this appeal revealed treatment for right knee complaints with injections, medication and home strengthening as shown in May 2018, June 2018, August 2018, December 2018, and February 2019. X-ray results confirmed tricompartmental arthritis in May 2018. A June 2018 record documenting a knee injection for right knee pain noted findings of a range of motion of 0-125 degrees with full 5/5 muscle strength. She had no erythema, lesions, or masses, although she did have swelling and joint line tenderness. The examination was not clear about stability testing. On followup in August 2018, she complained of anterior knee pain. She had monovisc injections in June which helped for several weeks but the pain has recurred. She took NSAIDs and still did home strengthening. On examination she had slight effusion bilateral knees, with skin intact. Her range of motion was ROM 0-130 degrees bilaterally with crepitus. There was no medial/lateral joint line tenderness. She was diagnosed with bilateral patellofemoral osteoarthritis being managed conservatively. She wanted to try injections again. On followup in December 2018, she was noted to have had about a month relief with the injections and still was working physical therapy exercises at home. She reported that her knee had improved overall and had pain relief. On examination her range of motion was 0-135 degrees. She had tenderness to palpation over her lateral patellofemoral joint with tight lateral retinaculum. She had no medial or lateral joint line tenderness to palpation and no laxity with varus or valgus stress at 0 and 30°. She had negative Lockman's, negative posterior drawer and mild right knee effusion. She had significant patellofemoral crepitus with knee range of motion. Prior radiographs demonstrated right knee osteoarthritis predominantly patellofemoral. She was diagnosed with right knee predominantly patellofemoral osteoarthritis, and underwent another right knee monovisc injection in clinic. On followup in February 2019 she continued to have bilateral knee pain on ibuprofen. The Veteran continued to treat with injections for her knees in February 2020 but complained that although they helped, her knees continued to worsen, saying that stairs have become increasingly more difficult. She has not had recent imaging of her knees. Physical examination of the right knee reveals no erythema, lesions, or masses. There was a small amount of swelling about the knee. patella joint line tenderness. There was a negative Lachman's and anterior drawer test. There was no laxity with varus or valgus stress. Crepitus was felt. Range of motion was 0-120 degrees, but with reduced strength on knee flexion and extension of 3/5. Muscle strength was appropriate and equal bilaterally. She was diagnosed with bilateral patellofemoral osteoarthritis. She was administered bilateral knee injections. 1. Right knee chondromalacia patella, with traumatic arthritis Throughout the pendency of this appeal the Veteran's right knee disability based on limited motion has been evaluated under the criteria governing limited motion to include a 10 percent rating under 38 C.F.R. § 4.71a, Diagnostic Code 5260 for limitation of flexion, with consideration of functional loss due to painful motion under 38 C.F.R. § 4.59. The Veteran has limitation of motion and the basis for his compensation is DC 5260 and 5261, which were unchanged in the new regulations. Under Diagnostic Code 5261, a noncompensable rating is warranted for extension limited to 5 degrees. A 10 percent rating is warranted for extension limited to 10 degrees. A 20 percent rating is warranted for extension limited to 15 degrees. A 30 percent rating is warranted for extension limited to 20 degrees. A 40 percent rating is warranted for extension limited to 30 degrees. A 50 percent rating is warranted for extension limited to 45 degrees. 38 C.F.R. § 4.71a , Diagnostic Code 5261. Under Diagnostic Code 5260, leg flexion limited to 60 degrees warrants a noncompensable rating. Leg flexion limited to 45 degrees warrants a 10 percent rating. Leg flexion limited to 30 degrees warrants a 20 percent rating. Leg flexion limited to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a , DC 5260. Normal flexion of the knee is to 140 degrees, and normal extension of the knee is to 0 degrees. 38 C.F.R. § 4.71, Plate II. 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. See 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). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for the right knee disability manifested by arthritis and limited motion. The Board acknowledges the evidence including subjective complaints reported in treatment records and the VA examination findings show that there was functional loss due to pain, weakened movement, excess fatigability, incoordination, repetitive use, pain during flare-ups, and pain during repetitive use over time, etc. However, even considering the symptoms and noted functional loss, the degree of additional limitation reflected would not result in limitation of motion more nearly approximating flexion limited to 30 degrees or extension limited to 15 degrees. The ranges of motion shown in the examinations performed in February 2016, June 2017, and December, 2019 with the latter two examinations factoring passive and active motion and weightbearing versus non-weightbearing, were all well within the noncompensable ranges for flexion and extension. Although pain was noted in some of these motions, there were no changes in the ranges of motion that would equate to a compensable loss of motion either on flexion or extension, even when factoring in functional loss and any changes estimated after multiple repetitions. At worst, the February 2016 VA examination showed an extension limited to 5 degrees when factoring flareups/repeated use over time, which is noncompensable under Diagnostic Code 5261. The Board does note that a knee disability can be rated for both limitation of leg flexion under DC 5260 and limitation of leg extension under DC 5261. See VAOPGCPREC 9-2004 (Sept. 17, 2004). Here, however, there is no compensable loss of motion in both flexion and extension and thus separate ratings are not warranted. Regarding flexion, all the examinations showed flexion to be over 100 degrees even when considering functional loss, with the worst motion noted in the January 2019 examination to be 110 degrees. The pain noted on motion was already factored into the 10 percent rating. Regarding the other medical evidence, many of the treatment records either showed full ranges of motion, with extension repeatedly at 0 percent, or mild limited motion with flexions consistently over 100 degrees, or described a limited motion without providing adequate findings to make a determination as to the extent of the loss of motion. While they showed that she had painful function and at times required physical therapy via home exercises and repeated injections, the evidence in these records fail to show the Veteran to have such limited function due to pain to the extent that a higher evaluation is more nearly approximated. The Board has considered the DeLuca criteria. However, a rating higher than 10 percent for left knee arthritis is also not warranted based on functional loss due to pain, weakness, premature or excess fatigability, and incoordination, causing additional disability beyond that reflected in range of motion measurements. 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 206 - 07. The evidence shows that the Veteran's left knee disabilities are not manifested by weakness on range of motion testing and there are no additional limitations of motion on repeat testing. The Court has established that flare-ups must be considered. Sharp v. Shulkin, 29 Vet. App. 26 (2017). Guidance on how to evaluate flare-ups has not been particularly clear. However, the Board finds overall wisdom in Mitchell. Flare-ups must be quantifiable and must result in limitation of motion or function beyond that contemplated by the already provided evaluation. In addition, because there is a regulation addressing stabilization of ratings, the flare-up must be of such length as to establish that the overall impairment is more severe than currently evaluated, rather than a brief snapshot in time. In sum, 38 C.F.R. § 4.1 provides that the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illness proportionate to the severity of the several grades of disability. Here, there is not shown to be evidence of exacerbation or flare-ups of such severity or of sufficient duration to warrant a change in evaluation without violating the spirit of Mitchell, the spirit of 38 C.F.R. § 4.1 and the rule regarding stabilization of ratings. The Board has considered whether a higher disability rating is warranted based on functional loss due to pain or weakness, fatigability, incoordination, or pain on movement of a joint. The Board observes, however, that the current 10 percent ratings for the left knee arthritis under Diagnostic Code 5260 contemplates the effects of any complaints of pain, fatigue, swelling, weakness, or lack of endurance. Even considering the Veteran's subjective complaints and the objective findings of functional loss due to pain, this limitation of flexion does not approximate flexion limited to 45 degrees, which is required for a higher 20 percent rating under Diagnostic Code 5260. Accordingly, consideration of other factors of functional limitation does not support the grant of a rating in excess of the 10 percent rating. See 38 C.F.R. §§ 4.40, 4.45, DeLuca, supra. As previously noted, the evidence fails to show that a separate compensable rating for limited extension is appropriate in this matter where the evidence consistently shows full extension, or at worst a noncompensable limitation of extension. Thus, the preponderance of the evidence does not reflect that a rating in excess of 10 degrees is warranted for the right knee disability based on arthritis with limited motion. 2. Entitlement to an increased separate rating for right knee meniscal tear, post trauma, manifested by instability rated 10 percent as of April 26, 2021 The Veteran's right knee instability is evaluated under Diagnostic Code 5257, contemplating recurrent subluxation or lateral instability (DC 5257). Although a separate 10 percent rating has been assigned since April 26, 2021, the Board shall consider whether a compensable rating is warranted prior to that date. DC 5257 addresses lateral instability of the knee. Ratings at 10, 20, or 30 percent are assigned for slight, moderate, and severe impairment, respectively. Descriptive terms such as "slight," "moderate," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. Effective February 7, 2021, the rating criteria for musculoskeletal disabilities were amended. Under the revised version of DC 5257, for recurrent subluxation or lateral instability, a 30 percent rating is assigned for 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. A 20 percent rating is assigned for one of the following: (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. A 10 percent rating is assigned for 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. 38 C.F.R. § 4.71a , DC 5257 (2021). In cases of patellar instability, a 30 percent rating is warranted for 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. A 20 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace, cane, or walker. A 10 percent rating is warranted for 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. Under Note (1): For patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Per 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). 38 C.F.R. § 4.71a , DC 5257 (2021). In this matter the Board notes that a 20 percent rating is presently in effect for the right knee disability throughout the pendency of this appeal. This contemplates a moderate level of recurrent subluxation or lateral instability under the old criteria under Diagnostic Code 5257 or under the revised criteria effective February 7, 2021, involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace, cane, or walker. However, the evidence does not show the Veteran's right knee disability to more closely resemble a severe recurrent subluxation or lateral instability or under the revised criteria effective February 7, 2021 recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. The VA examinations of February 2016, June 2017 and December 2019 consistently show fully normal joint stability tests, no history of recurrent subluxation or lateral instability, and no need for assistive devices for the right knee. Likewise, the treatment records are noted to not show evidence of instability of the knee, nor the need for assistive devices, although she admittedly had severe chronic pain requiring treatments including multiple injections. Her muscle strength was noted to generally be 5/5 or at worst 4/5, which further supports a finding that the criteria for a rating in excess of 20 percent disabling is not warranted under the criteria of Diagnostic Code 5257. In sum, the preponderance of the evidence is against a finding of a right knee disability warranting a rating in excess of 20 percent disabling based on recurrent subluxation or lateral instability. Other considerations for the knee Consideration has also been given to other potentially applicable diagnostic codes. In this regard, the Board notes that the Veteran is already in receipt of separate ratings for right knee instability (DC 5257). The Veteran clearly does not have ankylosis to warrant a separate rating under Diagnostic Code 5256 (ankylosis), and there is no evidence of dislocated cartilage with frequent episodes of "locking" pain, limitation of extension, malunion of the tibia and fibula, or genu recurvatum to warrant separate ratings under Diagnostic Codes 5258 (dislocated cartilage with frequent episodes of "locking" pain), 5261 limitation of extension, 5262 (malunion of the tibia and fibula), or 5263 (genu recurvatum). These were repeatedly not shown in the VA examination reports throughout the pendency of this appeal, nor were they shown otherwise in the treatment records. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Eckart 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.