Citation Nr: 21067495 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 16-46 077 DATE: November 4, 2021 ORDER A disability rating greater than 10 percent prior to February 25, 2019 for residuals of left calf with knee tendonitis/tendinosis is denied. A disability rating of 20 percent for left knee subluxation prior to February 25, 2019 is granted. FINDINGS OF FACT 1. The Veteran's left knee disability is manifest by pain on flexion. 2. The Veteran's left knee subluxation is manifest moderate recurrent subluxation. CONCLUSIONS OF LAW 1. The criteria for A disability rating greater than 10 percent prior to February 25, 2019 for residuals of left calf with knee tendonitis/tendinosis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5260. 2. The criteria for a disability rating of 20 percent for left knee subluxation prior to February 25, 2019 have been 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 FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty in the United States Army from November 1964 to November 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision. The Veteran testified before the undersigned in July 2019. A transcript of this hearing is of record. In November 2020, the Board issued a decision denying the above claims. The Veteran appealed this decision to the United Stated Court of Appeals for Veterans Claims (Court). In a June 2021 Order, the Court endorsed a joint motion for partial remand (JMPR), vacated the Board's November 2020 decision, and remanded the case for further action consistent with the terms of the joint motion. Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. The Board may consider whether separate ratings may be assigned for separate periods of time - a practice known as "staged ratings," - whether or not the claim concerns an initial rating. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Left Knee Disability The Veteran contends that his left knee disability warrants a higher rating. His left knee disability was assigned a 10 percent rating prior to February 25, 2019 under DC 5260. After review of the record, the Board finds that the preponderance of the evidence is against assigning a higher rating. The regulations pertaining to musculoskeletal disabilities were revised effective February 7, 2021. Claims, such as this, pending prior to the effective date will be considered under both old and new rating criteria from that date, and whichever criteria is more favorable to the Veteran will be applied from that date. The rating criteria for DC 5260 were not changed when the regulations pertaining to musculoskeletal disabilities were revised. DC 5260 addresses limited flexion of the knee. A 10 percent rating is warranted when flexion is limited to 45 degrees. A 20 percent rating is warranted when flexion is limited to 30 degrees. A 30 percent rating is assigned when flexion is limited to 15 degrees. The Veteran then underwent a July 2015 VA examination, the Veteran reported pain in his left knee at rest. He did not report flare-ups of the knee. However, the Veteran did report having functional loss or functional impairment of the joint. Specifically, the Veteran reported being impaired with prolonged standing, managing stairs, and he admits to not being able to run. His range of motion was flexion to 105 degrees of the left knee and extension was noted to 0 degrees. The examiner noted no pain on weight-bearing with pain on rest, flexion, and extension. Further, the examiner noted that there was no additional loss of function after repetitive use. The Veteran underwent another VA examination in November 2016. He showed flexion limited to 80 degrees of the left knee with noted pain on exam. Although there was pain on examination, it was found to not cause any functional loss. The Board notes that at this examination the Veteran did not report any flare-ups of his left knee. As such, consideration of range of motion during a flare-up is not necessary. As to repeated use over time, the Veteran was not examined immediately after repetitive use over time; however, examiner found that the examination is medically consistent with the Veteran's statements describing functional loss with repetitive use over time. The examiner noted that pain significantly limited functional ability with repeated use over time. A rating higher than 10 percent is only available to the Veteran if his left knee shows limitation of flexion to 30 degrees or less. There are no records which indicate or show that the Veteran's knee disability reached such a limitation. His at worst range of motion throughout the appeal period was flexion to 80 degrees. Even factoring in the Veteran's pain and functional limitations, the evidence does not support finding that an additional 50 plus degree limitation was manifested by his pain or functional loss. Therefore, a higher rating under DC 5260 for limitation of motion of his right knee is not warranted. Neither the Veteran nor his representative have identified or introduced any evidence which supports a finding that the Veteran's knee limitation was commiserate with a limitation of flexion to 30 degrees or more. The Board has again considered the Veteran's statements and the doctrines of benefit of the doubt and reasonable doubt. As discussed above, there is no evidence in the record, or identified by the Veteran or his representative, which indicated the Veteran's limitation met those mandated necessary for higher ratings. There is no doubt or reasonable doubt to resolve to the Veteran's benefit or in his favor as the evidence of record does not support a higher rating. Separate evaluations under other potentially applicable diagnostic codes have been considered. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). The evidence of record does not show that the Veteran has other such impairments that additional ratings pursuant to other diagnostic codes are warranted. Left Knee Instability 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. As noted above, effective February 7, 2021, the rating criteria for musculoskeletal disabilities were amended. Under the new rating criteria, a 10 percent rating for recurrent subluxation or instability is warranted 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. A 20 percent rating is assigned for either (a) sprain, incomplete ligament tear, or complete ligament tear causing persistent instability and a medical provider prescribes a brace and/or assistive device for ambulation; 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 maximum 30 percent rating is assigned unrepaired or failed repair of complete ligament tear causing persistent instability and a medical provider prescribes both an assistive device and bracing for ambulation. See 85 Fed. Reg. 76453 (Nov 30, 2020). The Board finds that prior to February 25. 2019, a 20 percent rating for left knee subluxation is warranted. As noted above, the Veteran has undergone multiple VA examinations for his left knee. At his July 2015 VA examination the examiner noted that the Veteran was issued a knee brace in April 2015. Further, the examiner noted that the Veteran is unable to do prolonged standing, stairs are problematic, and he is unable to run. In November 2016, the examiner noted that the Veteran uses a cane constantly for his left knee. Further, the Veteran reported that he has left knee pain on an intermittent basis. This pain is 2-3 times per week and the aching will last all day when present. When the pain is present the Veteran can only walk short distances. The Veteran also reported that he still had difficulty with prolonged standing, walking, and climbing stairs. Additionally, at the July 2019 Board hearing, the Veteran testified that his knee goes out and he is unable to run as he would trip over it. The Veteran is competent to report instability he experiences in his knee, and the Board finds his lay statements to be credible and affords them great probative weight. The Board finds this sufficient to establish moderate impairment of the left knee, consistent with a 20 percent rating. (Continued on the next page) Therefore, the Board finds a rating of 20 percent for left knee subluxation is granted. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jorge Barroso, 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.