Citation Nr: 21069747 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 15-29 849 DATE: November 19, 2021 ORDER A disability rating in excess of 10 percent for degenerative arthritis of the right knee from January 25, 2011 is denied. A disability rating for degenerative arthritis of the left knee in excess of 10 percent from January 25, 2011 to April 30, 2012, 20 percent from May 1, 2012 to August 6, 2019, and 10 percent from August 6, 2019 is denied. An initial disability rating in excess of 10 percent for instability of the right knee from May 1, 2012 is denied. FINDINGS OF FACT 1. The Veteran did not manifest ankylosis, genu recurvatum, a tibial or fibular impairment, a cartilage condition, a flexion limited to 30 degrees, an extension limited to 15 degrees, or a flexion limited to 45 degrees and an extension limited to 10 degrees of the right knee. 2. The Veteran did not manifest ankylosis, genu recurvatum, a tibial or fibular impairment, a cartilage condition, a flexion limited to 30 degrees, an extension limited to 15 degrees, a flexion limited to 45 degrees and an extension limited to 10 degrees, slight, moderate, or severe instability, or recurrent subluxation or lateral instability bilaterally, did not have any ligament tears, did not require any assistive devices, and did not have any patellar instability of the left knee. 3. The Veteran did not manifest moderate or severe instability of the right knee, and the Veteran did not manifest recurrent subluxation or lateral instability bilaterally, did not have any ligament tears, did not require any assistive devices, and did not have any patellar instability of the right knee. CONCLUSIONS OF LAW 1. The criteria for disability rating in excess of 10 percent for degenerative arthritis of the right knee from January 25, 2011 have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5256, 5258-5263. 2. The criteria for disability rating for degenerative arthritis of the left knee in excess of 10 percent from January 25, 2011 to April 30, 2012, 20 percent from May 1, 2012 to August 6, 2019, and 10 percent from August 6, 2019 have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5256-5263. 3. The criteria for an initial disability rating in excess of 10 percent for instability of the right knee from May 1, 2012. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Army from 1981 to October 1985. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This appeal is being adjudicated under the legacy appellate framework. The Veteran did not desire a personal hearing before the Board. These matters were previously before the Board, and, in January 2019 and June 2021, the Board remanded this matter for further development. Further development in substantial compliance with the Board's previous remand instructions has been completed. 1. A disability rating in excess of 10 percent for degenerative arthritis of the right knee from January 25, 2011 is denied. 2. A disability rating for degenerative arthritis of the left knee in excess of 10 percent from January 25, 2011 to April 30, 2012, 20 percent from May 1, 2012 to August 6, 2019, and 10 percent from August 6, 2019 is denied. 3. An initial disability rating in excess of 10 percent for instability of the right knee from May 1, 2012 is denied. At issue is whether the Veteran is entitled to increased disability ratings for bilateral knee disabilities. The weight of the evidence indicates that the Veteran is not entitled to an increased disability rating. In November 2011, the RO granted service connection for degenerative arthritis of the bilateral knees and assigned a disability rating of 10 percent for each knee effective January 25, 2011. In September 2012, the RO assigned a disability rating of 20 percent for degenerative arthritis of the left knee effective May 1, 2012; a disability rating of 10 percent for instability of the right knee effective May 1, 2012; and continued the remaining knee disability ratings. In June 2014, the Veteran filed an increased rating claim, and, in November 2014, the RO denied the Veteran's increased rating claims and proposed to decrease several of the Veteran's knee disability ratings. The Veteran appealed. The Veteran's rating reduction claims were disposed of in a January 2019 Board decision, but the Veteran's increased rating claims are still before the Board. Currently, the Veteran has been assigned the following disability ratings of the knees: 10 percent for degenerative arthritis of the right knee from January 25, 2011; a staged disability rating for degenerative arthritis of the left knee (10 percent from January 25, 2011 to April 30, 2012; 20 percent from May 1, 2012 to August 5, 2019; and 10 percent from August 6, 2019); and 10 percent for instability of the right knee from May 1, 2012. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Disability ratings for the knees are evaluated pursuant to Diagnostic Codes 5003 & 5256-5263. Diagnostic Code 5003 is not raised by the record, because the maximum disability rating under Diagnostic Code 5003 is 20 percent for arthritis of two major joints or minor joint groups. The Veteran has already been assigned compensable disability ratings for both knees and thus has a combined disability rating of knees of 20 percent or more throughout the period on appeal, and, therefore, Diagnostic Code 5003 does not provide an adequate basis for increasing the Veteran's disability rating. Diagnostic Codes 5256 (ankylosis), 5258 (dislocated semilunar cartilage), 5259 (removal semilunar cartilage), 5262 (tibial or fibular impairment), 5263 (genu recurvatum) are not raised by the record, because the Veteran has not manifested ankylosis, cartilage conditions, a tibial or fibular impairment, or genu recurvatum throughout the period on appeal. The Board notes that VA amended the criteria for rating for recurrent subluxation or lateral instability effective. These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after February 7, 2021. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The Board, however, is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. Under the old criteria for Diagnostic Code 5257, a disability rating of 10 percent is assigned for slight recurrent subluxation or lateral instability, and a disability rating of 20 percent is assigned for moderate recurrent subluxation or lateral instability; and a disability rating of 30 percent is assigned for severe recurrent subluxation or moderate instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2020). Under the new criteria for Diagnostic Code 5258, a disability rating of 10 percent is assigned 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; or 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 disability rating of 20 percent is assigned 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; or 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 an 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 disability rating of 30 percent 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, or an 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. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Under Diagnostic Code 5260, a disability rating of 10 percent is assigned for a flexion limited to 45 degrees, and a disability rating of 20 percent is assigned for a flexion limited to 30 degrees; and a disability rating of 30 percent for a flexion limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5261, a disability rating of 10 percent is assigned for an extension limited to 10 degrees, and a disability rating of 20 percent is assigned for an extension limited to 15 degrees. A disability rating of 30 percent is assigned for an extension limited to 20 degrees, and a disability rating of 40 percent is assigned for an extension limited to 30 degrees; and a disability rating of 50 percent is assigned for an extension limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. The Veteran's treatment records indicate that the Veteran manifested bilateral knee symptoms throughout the period on appeal. The Veteran underwent a VA examination in October 2014. The Veteran reported pain in both knees which she alleged had recently increased in severity. The Veteran also indicated that she manifested flare-ups after prolonged standing or walking; frequent stooping or kneeling; and repetitive climbing of stairs and ladders. The Veteran's flexion was to 110 degrees bilaterally, and the Veteran's extension was to zero degrees bilaterally. The Veteran was able to perform repetitive range of motion testing without additional loss of range of motion. The examiner noted that the Veteran manifested additional functional loss due to less movement than normal and pain on motion. Joint stability testing was normal. The Veteran did not manifest ankylosis, cartilage conditions, a tibial or fibular impairment, or genu recurvatum. The Veteran underwent another VA examination in June 2016. The Veteran reported that she has pain and cannot squat to work in the garden, go up or down stairs unless she goes sideways, run, or stay on her feet for a long time. The Veteran denied flare-ups. The Veteran's flexion was to 90 degrees bilaterally, and the Veteran's extension was to zero degrees bilaterally. The Veteran was able to perform repetitive range of motion testing without additional loss of range of motion. The examiner estimated that additional functional impairment reduced the Veteran's flexion to 80 degrees bilaterally. Joint stability testing was normal. The Veteran did not manifest ankylosis, cartilage conditions, a tibial or fibular impairment, or genu recurvatum. The Veteran underwent another VA examination in August 2019. The Veteran reported pain in both knees after weight bearing for 10 minutes or stairs or squatting. The Veteran denied flare-ups, but the Veteran indicated that she cannot squat and is limited in her ability to walk. The Veteran's flexion was to 140 degrees bilaterally, and the Veteran's extension was to zero degrees bilaterally. The Veteran was able to perform repetitive range of motion testing without additional loss of range of motion. Even after taking additional functional impairment into consideration, the examiner opined that the Veteran's range of motion was unaffected. Joint stability testing was normal. The Veteran did not manifest ankylosis, cartilage conditions, a tibial or fibular impairment, or genu recurvatum. The Veteran underwent another VA examination in September 2021. The Veteran reported that the left knee is the worse than the right knee, and that it aches medially and some kind of shooting pain down the medial thigh and popliteal area. The Veteran stated that the pain is aggravated by daily chores, standing too long or even when sitting, and that it occurs even when sleeping, but that cold helps temporarily. The Veteran claimed that she sleeps with a pillow between the knees, and that she is supposed to avoid the stairs which will cause popping. The Veteran claimed that if kneeling the pain is over the patella and that she goes up and down stairs sideways. She reported flare-ups of the right knee every several years and flare-ups of the left knee every several months. The Veteran's flexion was to 130 in the right knee and 120 in the left, and the Veteran's extension was to zero degrees. The Veteran was able to perform repetitive range of motion without additional loss of range of motion. After taking additional functional loss into consideration, the examiner opined that the Veteran's flexion of the left knee was reduced to 60 degrees but otherwise there was no loss of range of motion. The examiner indicated that the Veteran did not manifest recurrent subluxation or lateral instability bilaterally, did not have any ligament tears, did not require any assistive devices, and did not have any patellar instability. The Veteran did not manifest ankylosis, cartilage conditions, a tibial or fibular impairment, or genu recurvatum. The weight of the evidence indicates that the Veteran is not entitled to a disability rating in excess of 10 percent for instability of the right knee or a separate compensable disability rating for instability of the left knee. Throughout the period on appeal, joint stability testing was normal. In the most recent VA examination, the examiner opined that the Veteran did not manifest recurrent subluxation or lateral instability bilaterally, did not have any ligament tears, did not require any assistive devices, and did not have any patellar instability. Therefore, the Veteran did not meet the criteria for an increased disability rating for instability of the knees under either the old or the new criteria. At issue is whether the Veteran is entitled to an increased disability rating for the bilateral knees. The range of motion of the Veteran's knees were evaluated multiple times during the period on appeal, and the Veteran did not meet the criteria for an increased disability rating. Therefore, the Veteran is not entitled to an increased disability rating for arthritis of either knee. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss may be due to due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. Weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse are relevant factors in regard to joint disability. 38 C.F.R. § 4.45. Even if range of motion was slightly limited by pain however, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id. The weight of the evidence indicates that the Veteran is not entitled to an increased disability rating for limitation of range of motion of the knees even after taking additional functional impairment into consideration. The Veteran clearly manifested additional functional impairment. Even after taking additional functional impairment into the consideration however, the reduced range of motion estimates are still well in excess of the limitation of motion required for an increased disability rating for either knee. Therefore, an increased disability rating based on limitation of either knee is denied even after taking additional functional impairment into consideration. Here, the weight of the probative evidence of record simply fails to demonstrate that the Veteran is entitled to an increased disability rating for either knee. Therefore, the evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As such, an increased disability rating for either knee is denied. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David R. Seaton, 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.