Citation Nr: 21069734 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 18-30 300 DATE: November 19, 2021 ORDER For the period prior to April 23, 2021, entitlement to a rating in excess of 20 percent for instability of the postoperative posterior cruciate ligament (PCL) and anterior cruciate ligament (ACL) of the left knee is denied. For the period beginning April 23, 2021, entitlement to a 30 percent evaluation for instability of the postoperative PCL and ACL of the left knee is granted. FINDING OF FACT 1. Prior to April 23, 2021, the Veteran's PCL and ACL of the left knee is manifested by moderate instability with no evidence of both a prescribed assistive device and bracing for ambulation. 2. The Veteran's PCL and ACL of the left knee is manifested by severe instability. CONCLUSION OF LAW 1. For the period prior to April 23, 2021, the criteria for entitlement to a rating in excess of 20 percent evaluation for instability of the PCL and ACL of the left knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. 2. For the period beginning April 23, 2021, the criteria for entitlement to a 30 percent evaluation for instability of the PCL and ACL of the left knee have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty from February 1978 to September 1998. This matter comes before the Board of Veterans' Appeals (Board) from a July 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran filed a Supplemental Claim for Compensation in August 2014 within one year of October 2013 rating decision which denied a higher evaluation than 10 percent left knee instability. The parties agreed in the June 2020 Joint Motion for Partial Remand that the Board must consider if this August 2014 supplemental claim for compensation constitutes new and material evidence that would relate back to his October 2011 increased rating claim and have a bearing on the finality of the October 2013 rating decision. The Board finds that the August 2014 supplemental claim constituted new and material evidence that would relate back to his October 2011 increased rating claim. In August 2014, the Veteran filed a claim for service connection for left knee pain syndrome. The Veteran had not reported pain in the left knee in the September 2013 Knee examination. The Board will consider all evidence beginning in October 2011. 1. For the period prior to April 23, 2021, entitlement to a rating in excess of 20 percent for instability of the postoperative posterior cruciate ligament (PCL) and anterior cruciate ligament (ACL) of the left knee is denied. 2. For the period beginning April 23, 2021, entitlement to a 30 percent evaluation for instability of the postoperative posterior cruciate ligament (PCL) and anterior cruciate ligament (ACL) of the left knee is granted. The Veteran contends that he is entitled to a higher rating because he has severe instability of his left knee. The Veteran's postoperative PCL and ACL of the left knee is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5257, for other impairment of the knee. Under Diagnostic Code 5257, a 10 percent rating is warranted for slight recurrent subluxation or lateral instability. A 20 percent rating is warranted for moderate recurrent subluxation or lateral instability. A 30 percent rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. According to MERRIAM WEBSTER'S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), "slight" means small in amount. "Moderate" means limited in scope or effect. "Severe" means very painful or harmful or of a great degree. Objective medical evidence is not required to establish lateral knee instability under Diagnostic Code 5257, 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). Effective February 7, 2021, VA amended the rating criteria for disabilities of the knee and leg. The amended Diagnostic Code 5257 provides ratings for other impairment of the knee based on recurrent subluxation or instability, and patellar instability. For recurrent subluxation or instability, a 10 percent rating 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 warranted 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; or (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 maximum 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 (e.g., cane(s), crutch(es), walker) and bracing for ambulation. For patellar instability, 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. 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 one of the following: A brace, cane, or walker. A maximum 30 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 and either a cane or a walker. Note (1) provides that, for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note (2) provides that a surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as a surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). For the period prior to April 23, 2021, the Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for postoperative PCL and ACL of the left knee. The Board has carefully considered the Veteran's reports about subluxation and instability. English, 30 Vet. App. 347, 352-53. However, overall, the lay and medical evidence indicates that the instability symptoms have varied and do not suggest the presence of symptoms more nearly approximating severe recurrent subluxation or lateral instability. During the September 2013 Knee and Lower Leg Conditions DBQ, the Veteran's left knee showed no instability. The examiner diagnosed the Veteran with gout in both lower extremities. During the December 2014 Knee and Lower Leg Conditions DBQ, the Veteran reported that he had not worn his brace on his left knee for many years. The examiner opined that the Veteran would benefit from a hinged knee brace. Instability was noted during posterior instability and anterior instability testing. 2+ was noted for the anterior instability on the left and 1+ noted for posterior instability on the left. In September 2015, the Veteran reported that his ACL and PCL tear and instability caused constant pain. He reported taking six ibuprofen per day in an effort to function at work and combat the pain. A March 2016 private treatment record noted the Veteran's report of buckling in the knee. Upon examination, ligament stability was excellent in all planes of motion. In April 2018, the Veteran was afforded a knee examination. Joint stability testing indicated no instability or recurrent subluxation, but the Veteran did wear a brace regularly for stability and support. For these reasons, preponderance of the evidence is against the finding that a rating higher than 20 percent for postoperative PCL and ACL of the left knee prior to April 23, 2021 is warranted. Beginning April 23, 2021, the Veteran's left knee instability is manifested by severe symptoms due to daily severe flare-ups. Therefore, a 30 percent rating under the former DC 5257 is warranted. As the former criteria for instability is more favorable to the Veteran's claim, the former criteria will be applied to the period after February 7, 2021, the date when VA amended the rating criteria for instability. The April 23, 2021 examination revealed that the Veteran had recurring buckling which needed the use of a brace on the left knee all of the time. The Veteran reported daily severe flare-ups lasting one to two hours with sharp throbbing sensation. During the flare-ups, the Veteran was unable to stand or put weight on his knee. Upon examination, the examiner noted subluxation or persistent instability of the left knee due to incomplete/partial ligament tear which was not repaired. The examiner did not find that the Veteran had a prescription for a cane, walker, crutches, or brace. The examiner did not find that the Veteran had a prescription for any of the devices due to patellar instability. The Veteran's meniscal tear was manifested by frequent episodes of joint "locking," joint pain, and joint effusion. The Veteran had difficulty with stability, with walking up and down stairs, and with recurring effusion, locking, swelling and pain of the left knee. The examiner noted that the Veteran wore a brace constantly on the left knee for ACL/PCL and meniscal tear. A higher rating for instability is not warranted under the amended criteria for instability. Applying the amended criteria for instability effective February 7, 2021 would not result in a rating in excess of 20 percent for postoperative PCL and ACL of the left knee. Under the new criteria, a maximum 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 (e.g., cane(s), crutch(es), walker) and bracing for ambulation. Although the Veteran has an unrepaired ligament tear, the evidence does not show that a medical provider prescribed both an assistive device and bracing for ambulation. The April 2021 examiner indicated that the Veteran used only a brace, and noted that the Veteran had no prescription for a brace. The Board also considered whether the Veteran has patellar instability. The April 2021 examination noted knee meniscal tear as the diagnosis of the Veteran's left knee and not patellar instability. Although the examiner noted that the Veteran had an incomplete or partial ligament tear of the left knee, the examiner found that the Veteran did not have recurrent patellar instability and the Veteran did not require a prescription of any devices for ambulation due to patellar instability. As noted above, due to the Veteran's daily severe flare-ups, the Board finds that the Veteran's instability is severe in nature and a 30 percent evaluation is warranted under the former DC 5257. 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). The Veteran' left knee disability is already assigned a 10 percent rating for degenerative arthritis of the left knee. A 10 percent rating is assigned under DC 5260 and DC 5010. The Board does not find that any other diagnostic code is applicable to the Veteran's left knee disability. In conclusion, the Board finds that the preponderance of the evidence is against the finding of a rating in excess of 20 percent for postoperative PCL and ACL of the left knee prior to April 23, 2021. Beginning April 23, 2021, the Board finds that a 30 percent evaluation is warranted for postoperative PCL and ACL of the left knee under the former DC 5257. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Tahirih S. Samadani, 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.