Citation Nr: 21070360 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 17-44 218 DATE: November 23, 2021 ORDER Entitlement to a rating in excess of 10 percent for degenerative changes, left knee is denied. FINDING OF FACT Even in consideration of his complaints of pain, pain on motion, and functional loss, the Veteran's left knee disability has not manifested flexion to 30 degrees or extension to 15 degrees; dislocated or removed semi-lunar cartilage; or recurrent subluxation or instability. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for degenerative changes, left knee are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5257-5261. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the Air Force from December 1987 to February 2009. The appeal originates from a September 2014 decision of a Department of Veterans Affairs (VA) Regional Office. The Veteran appeared for a hearing before the undersigned in January 2021. The matter was remanded in May 2021 for a VA examination, which was obtained in June 2021. There has been substantial compliance with the Remand directives. Disability ratings are determined by comparing a veteran's present symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021). VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 32000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, the Board will consider the 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. In this regard, the Board observes that former regulation 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction. In Disabled American Veterans v. Sec. of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit specifically upheld the validity of 38 C.F.R. § 19.9(b)(2) (now as noted renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. As such, pursuant to 38 C.F.R. § 20.904(d)(2), the Board will proceed to adjudicate the claim. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, Diagnostic Codes 5258, 5259, 5260, and 5261 were not substantively changed. Diagnostic Code 5257 was substantively changed and is discussed in further detail below. The Veteran's left knee disability is rated under Diagnostic Code 5261 for limitation of extension of the leg. A 20 percent rating requires extension limited to 15 degrees. A 10 percent rating requires extension limited to 10 degrees. A noncompensable rating is assigned when extension is limited to 5 degrees. Diagnostic Code 5257 addresses other impairment of the knee. Prior to February 7, 2021, a 10 percent rating required slight recurrent subluxation or lateral instability. From February 7, 2021, for recurrent subluxation or instability under Diagnostic Code 5257, a 10 percent rating requires 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. From February 7, 2021, for patellar instability under Diagnostic Code 5257, a 10 percent rating requires 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. Diagnostic Code 5258 assigns a 20 percent rating for dislocated semilunar cartilage with episodes of "locking," pain, and effusion into the joint. Diagnostic Code 5259 assigns a 10 percent rating for removal of symptomatic semilunar cartilage. Diagnostic Code 5260 address limitation of flexion of the leg. A 20 percent rating requires flexion limited to 30 degrees. A 10 percent rating requires flexion limited to 45 degrees. A noncompensable rating is assigned when flexion is limited to 60 degrees. Based on the evidence, including the June 2021 examination (it is noted that he failed to appear for examinations scheduled in August 2014 and June 2017), the Veteran is not entitled to an increased rating for his left knee disability. He has not had flexion to 30 degrees or extension to 15 degrees. At worst, flexion has been limited to 110 degrees during flareups and with repeated use over time with 0 degrees of extension (normal), including consideration of repetitive and passive use. The Veteran also had a normal knee evaluation with his private provider in February 2019. Such does not approximate limitation of motion required for even a noncompensable rating based on flexion or extension. With respect to a meniscal condition, the Veteran neither contends nor has he been found to have dislocated or removed semilunar cartilage. As to subluxation or instability, he testified that he wore a brace for stability. However, he did not appear to specify actual symptoms of instability or report a history of instability at the June 2021 examination, and joint stability testing was normal. When he was examined, the Veteran reported that he used a sleeve instead of a brace. There is also no evidence that the previous use of a brace was to provide support/stability and was physician prescribed. Private treatment records from 2012 only refer to his use of a brace to assist with pain. It would therefore be speculative to assign a separate rating for instability under Diagnostic Code 5257 per the old or new rating criteria. The Board further notes that the present 10 percent rating was assigned prior to the appeal in a June 2009 rating decision based on painful motion and continued in the September 2014 rating decision. However, medical treatment records show that the Veteran consistently denied having knee pain when appearing for treatment in 2015, 2016, 2017, and 2019. While the Board will not disturb the Veteran's rating earlier in the appeal, there is clearly no basis for an increased rating. The Court of Appeals for Veterans Claims has established that reports of flareups of symptomatology must be considered. Sharp v. Shulkin, 29 Vet. App. 27 (2017). Guidance on how to evaluate flareups has not been particularly clear. However, the Board finds overall wisdom in Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Flareups must be quantifiable and 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 flareup 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. With that in mind, consideration has been given to the Veteran's reports of experiencing flareups of the left knee. He reported to the 2021 VA examiner that activities such as ascending and descending stairs, doing yard work, and squatting with his knees would cause pain, swelling, and throbbing. He said that he was limited in the amount that he could engage in such activities and that he was no longer able to run. However, the contemporaneous treatment records contain little, if any, findings pertaining to flareups much less information regarding his functional ability during a flareup or after repeated use over time. The additional limitation (functional loss) experienced by the Veteran due to pain was accounted for by the examiner when determining his ranges of motion (including during flareups and with repeated use over time). As to his reports of pain, lack of endurance, stiffness, swelling, and similar complaints, the evidence does not demonstrate additional functional limitation more closely approximating the criteria for a higher rating. Therefore, the Board finds that the currently assigned rating for the knee disability adequately contemplates the documented and reported functional limitations. Mitchell, supra. Accordingly, a rating in excess of 10 percent for degenerative changes of the left knee must be denied. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Alhinnawi 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.