Citation Nr: 21068701 Decision Date: 11/12/21 Archive Date: 11/12/21 DOCKET NO. 15-07 181 DATE: November 12, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for status of left knee post-ACL repair disability, based upon painful motion, is denied. Entitlement to a separate 10 percent rating for recurrent instability of the left knee is granted. FINDING OF FACT For the entire period on appeal, the Veteran's left knee disability has been manifested by: flexion limited to, at worst, 80 degrees; normal extension; painful motion of the knee joint; and recurrent instability due to ligament tear, but without need for the use of an assistive device. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for a left knee disability based upon painful motion are not met. 38 U.S.C. § 1155, 5107 (2018); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5260, 5261 (2020). 2. The criteria for a separate rating of 10 percent for recurrent instability of the left knee have been met. 38 U.S.C. § 1155, 5107 (2018); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257 (2020). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran had active naval service from May 1989 to August 2012. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In September 2018, the Veteran testified in a hearing before the undersigned Veterans Law Judge. A transcript of that proceeding is of record. This issue was previously before the Board on two occasions. In March 2019, the Board remanded the claim for further development. Most recently, in June 2020, the Board denied the issue of entitlement to a rating in excess of 10 percent for the Veteran's left knee status post-ACL repair disability (hereafter, left knee disability). The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a May 2021 Order, the Court granted a Joint Motion of the parties and remanded the case to the Board for action consistent with the joint motion. The case has now been returned to the Board for further appellate action. Increased Ratings Left Knee Status Post-ACL Repair The Veteran asserts that he should have a higher rating for his left knee disability as his symptoms are worse than those contemplated by the currently assigned rating, more specifically, that consideration should be given to a separate rating for knee instability. The Board notes that the Veteran's left knee disability is currently rated pursuant to Diagnostic Code 5260, for limitation of flexion and assigned a 10 percent rating for noncompensable limitation of motion with pain. See 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Codes 5260 (2020). Considering the evidence as a whole, the Board finds that the Veteran is entitled to a separate rating for recurrent instability of the joint, as consistently reported by the Veteran throughout the period on appeal. While the VA examination reports discussed below are probative, the Board finds that the Veteran's consistent and repeated reporting of instability throughout VA treatment records are equally so, and accordingly, the reasonable doubt concerning the severity of his disability is resolved in the Veteran's favor. Most recently, a December 2019 VA examination demonstrated that the Veteran's passive range of motion testing revealed full extension with flexion limited to 100 degrees. Active range of motion testing again showed full extension with flexion limited to 105 degrees. It was, however, further noted that during repeated use, repetitive testing, or during flare-ups, flexion would be limited to 80 degrees. The Veteran reported symptoms of sharp pain which created difficulty in ambulating stairs. He described daily pain which increased based upon changes in the weather and prolonged periods of standing or sitting which he treats with lidocaine patches. He further detailed periodic painful flare-ups of the left knee which were described as moderate to severe and dependent upon weather and activity level. Functional impairment was described as pain with climbing or walking for greater than 15 minutes at a time. There was no evidence of tenderness or pain on palpation of the joint. Muscle strength testing was 5/5 in both flexion and extension. No muscle atrophy, ankylosis, or joint instability was found and there was no history of subluxation noted. The Veteran was not found to require the use of any assistive devices. Overall, the examiner found that left knee pain caused decreased range of motion with pain, weakness, fatigability, or incoordination significantly limiting functional ability with repeated use over time. A May 2012 VA examination report reflects similar findings to those outlined above; however, demonstrate less severe range of motion impact from the disability. Flexion testing was to 140 degrees without any objective evidence of pain, and extension was normal. The Board does note, however, that the examination was completed prior to the holdings in Correia v. McDonald, 28 Vet. App. 158 (2016), and Sharpe v. Shulkin, 29 Vet. App. 26 (2017), both of which require specific testing and reporting when rating an orthopedic disability based on range of motion. For this reason, the Board finds that the May 2012 VA examination report provides less probative information regarding the severity of the Veteran's left knee disability. As to a rating based upon the Veteran's limited range of motion, the Board finds that there is no evidence which warrants a rating greater than 10 percent, as reflected by the current rating applied based upon painful motion of the joint. At no time during the period on appeal has the Veteran's left knee disability reflected range of motion limited to extension of 15 degrees or flexion limited to 30 degrees, to warrant a higher rating of 20 percent. As to additional symptoms, repeated VA treatment records demonstrate that the Veteran has consistently reported incidents of his knee joint locking and/ or buckling. See March 2015 and 2016, April 2019, VA Treatment records. Imaging of the knee in March 2015 showed stable postoperative changes without evidence of abnormality, fracture, or subluxation. A March 2016 MRI of the left knee showed non-displaced meniscus tears. At that time, the Veteran reported increasing pain over the course of 2 to 3 years with locking of the joint after physical activity. The records do not support that the Veteran has been diagnosed with a condition involving the patellofemoral complex or prescribed an assistive device or bracing for ambulation. The Board notes that during the pendency of this appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. 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). 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. 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. Prior to the regulatory change, Diagnostic Code 5257, used to evaluate other impairments of the knee, such as instability, provided for ratings based upon slight, moderate, or severe impairment. The Board finds that criteria is the most favorable to the Veteran, as it does not confine the categorization to specific criteria, as does the new diagnostic code. Accordingly, the Board will utilize that criteria for the full period on appeal. Pursuant to the prior version of Diagnostic Code 5257, the Board finds that the Veteran's reported "locking" of the knee joint or sporadic buckling of the knee, creating slight impairment, warranting a separate 10 percent rating. The Board has considered the functional limitations that the Veteran has reported, the symptoms, and the fact that the Veteran does not require the need for supportive devices or additional treatment for such symptoms. Moreover, the Board has also weighed the evidence for and against the claim and considers that both the VA examination findings of no such objective instability and the Veteran's reporting of such symptoms are of equal probative value in light of the Veteran's consistent and candid reporting. As such, a separate compensable rating for slight impairment from left knee instability is warranted, pursuant to Diagnostic Code 5257. Consideration has also been given to assigning the Veteran a separate compensable rating under another diagnostic code pertaining to his left knee disability, however, there is no indication from the record that the Veteran has ankylosis, impairment of the tibia or fibular, joint effusion, or genu recurvatum. As such, a separate compensable rating for the left knee under another diagnostic code is not warranted. 38 C.F.R. §§ 4.71a, Diagnostic Codes 5256, 5258, 5259, 5261, 5262, 5263 (2020). (Continued on the next page) Consideration has also been given to assigning staged ratings. However, at no time during the period in question has a disability warranted a higher schedular rating than that assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Sutherell, 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.