Citation Nr: 21070634 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 17-09 789 DATE: November 24, 2021 ORDER Entitlement to an increased rating higher than 10 percent for right knee strain is denied. Entitlement to an increased rating higher than 10 percent for left knee strain is denied. FINDINGS OF FACT 1. The Veteran's right knee strain symptomatology does not more nearly approximate flexion limited to 30 degrees, or extension limited to 15 degrees, to include during flare-ups. 2. The Veteran's left knee strain symptomatology does not more nearly approximate flexion limited to 30 degrees, or extension limited to 15 degrees, to include during flare-ups. CONCLUSIONS OF LAW 1. The criteria for a rating increase higher than 10 percent for the Veteran's right knee strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, diagnostic code (DC) 5260. 2. The criteria for a rating increase higher than 10 percent for the Veteran's left knee strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 2005 to August 2009. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which, inter alia, continued a 10 percent disability rating for both left and right knee strain. In October 2017, the Veteran filed his notice of disagreement with, among one other thing, the 10 percent disability rating for both the right and left knee disabilities, was issued a statement of the case, and in December 2017 perfected his appeal to the Board. In an April 2019 decision, the Board, among other things, remanded the Veteran's claims for ratings higher than 10 percent for right and left knee disabilities for a VA examination to determine the severity of his disabilities. In October 2020, the RO continued the denial of the Veteran's claims, notifying the Veteran in a supplemental statement of the case. In a July 2021 decision, the Board again remanded the Veteran's claim for a new VA examination with x-ray testing, and in September 2021, the RO again denied the Veteran's claims, notifying him in another supplemental statement of the case. For the reasons indicated in the discussion below, the examinations that the Board instructed the agency of original jurisdiction (AOJ) to obtain were in fact obtained and are adequate to decide the claims on appeal. Thus, the AOJ complied with the Board's remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). INCREASED RATING Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2008). In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. This regulation also requires that, whenever possible, the joints involved are tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45, but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination, or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). Right and Left Knee Strain The Veteran's right and left knee strain are each currently rated as 10 percent disabling under DC 5260. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Thus, the Board has considered the propriety of assigning a higher, or separate, rating under another diagnostic code. Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). The Board notes that during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 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); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). 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; Kuzma, 341 F. 3d 1327. Therefore, the Board will consider the Veteran's claim under the former criteria prior to February 7, 2021 and both the former and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. DC 5256 assigns a 30 percent evaluation for knee ankylosis with a favorable angle in full extension, or in slight flexion between 0 and 10 degrees; a 40 percent rating for knee ankylosis in flexion between 10 and 20 degrees; a 50 percent rating for knee ankylosis in flexion between 20 and 45 degrees; and a 60 percent rating for extremely unfavorable knee ankylosis in flexion at an angle of 45 degrees or more. Prior to February 7, 2021, DC 5257 assigns a 10 percent evaluation for slight recurrent subluxation or lateral instability; a 20 percent evaluation for moderate recurrent subluxation or lateral instability; and a 30 percent evaluation for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a. Words such as "moderate," "moderately severe," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Use of terminology such as "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. As of February 7, 2021, under the amended criteria, DC 5257 assigns a 10 percent rating for recurrent subluxation or instability for sprain, incomplete ligament tear, or complete ligament tear causing persistent instability, without a prescription from a medical provider for an assistive device, or bracing for ambulation; a 20 percent evaluation for sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device for ambulation, or unrepaired or failed repair of complete ligament tear causing persistent instability, and medical provider prescribes either an assistive device or bracing for ambulation; and a 30 percent evaluation for unrepaired or failed repair of complete ligament tear causing persistent instability and a medical provider prescribes both an assistive device and bracing for ambulation. Under DC 5258, a 20 percent evaluation is assigned for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. 38 C.F.R. § 4.71a. Under DC 5259, a 10 percent evaluation is assigned for removal of semilunar cartilage which is symptomatic. 38 C.F.R. § 4.71a. Under DC 5260, limitation of flexion of the leg is noncompensable where flexion is limited to 60 degrees. A 10 percent evaluation is warranted where flexion is limited to 45 degrees; a 20 percent evaluation is warranted where flexion is limited to 30 degrees; and a 30 percent evaluation is warranted where flexion is limited to 15 degrees. 38 C.F.R. § 4.71a. Under DC 5261, limitation of extension of the leg, a 20 percent rating is warranted where extension is limited to 15 degrees; a 30 percent rating is warranted where extension is limited to 20 degrees; a 40 percent rating where extension is limited to 30 degrees; and a 50 percent rating is warranted where extension is limited to 45 degrees. 38 C.F.R. § 4.71a. VA General Counsel provided guidance in VAOPGCPREC 23-97 (July 1997) that a veteran who has arthritis and instability of the knee may be rated separately under DCs 5003 and 5257, provided that a separate rating must be based upon additional disability. When a knee disorder is already rated under DC 5257, the Veteran must also have limitation of motion under DC 5260 or 5261 in order to obtain a separate rating for arthritis. If the Veteran does not at least meet the criteria for a zero percent rating under either of those codes, there is no additional disability for which a rating may be assigned. In VAOPGCPREC 9-98, General Counsel also clarified, if a Veteran has a disability rating under DC 5257 for instability of the knee, and there is also x-ray evidence of arthritis, a separate rating for arthritis could also be based on painful motion under 38 C.F.R. § 4.59. Given the findings of osteoarthritis, the General Counsel stated that the availability of a separate evaluation under DC 5003 in light of sections 4.40, 4.45, 4.59 must be considered. Absent x-ray findings of arthritis, limitation of motion should be considered under DCs 5260 and 5261. The claimant's painful motion may add to the actual limitation of motion so as to warrant a rating under DCs 5260 or 5261. In addition, the VA General Counsel has held that separate ratings may be assigned under DC 5260 and DC 5261 for disability of the same joint. VAOPGCPREC 9-2004. Id. Specifically, where a Veteran has both a limitation of flexion and a limitation of extension of the same leg, the limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg. The limitation of flexion and extension must be compensable in both planes in order to warrant separate ratings. Id. There is no prohibition of separate evaluation under 38 C.F.R. § 4.71a, Diagnostic Code 5257 or 5261 and a meniscal Diagnostic Code, i.e., Diagnostic Codes 5258 or 5259. Lyles v. Shulkin, 29 Vet. App. 107 (2017). An October 2016 VA examination report reflects that the Veteran reported that his knees become tight and that he walks "stiff-legged" when he is outside in cold/damp weather. He stated that he does not have flare-up pain when he is inside or when the weather is warm. He reported mild pain below the patellas accompanied by a random sharp pain in both knees when sitting. For both knees, flexion was to 120 and extension to 0 degrees, no pain was noted on examination, there was no pain with weight bearing, no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue, no objective evidence of crepitus, and no additional functional loss or range of motion with repetitive use testing. The examiner noted that the examination was not conducted during a flare-up, but indicated that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with flare-ups. The examination report indicated that there was no reduction in muscle strength, no muscle atrophy or ankylosis, no history of recurrent effusion, recurrent subluxation, or lateral instability, and no joint instability was noted in either knee. The examiner noted that the Veteran had not had recurrent patellar dislocation, "shin splints" stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibula impairment, had never had a meniscus condition, but audible crepitus was noted in both knees. The Veteran did not use an assistive device, and imaging studies did not reflect degenerative or traumatic arthritis. A July 2020 disability benefits questionnaire (DBQ) reflects that the Veteran reported trouble getting up from kneeling or getting out of a chair, and popping and mild pain in both knees. The Veteran did not report flare-ups, or functional loss or impairment of the knees, and while pain was noted with flexion and extension, range of motion was normal, and there was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. The DBQ indicates that there was evidence of pain with weight bearing, but no evidence of crepitus in both knees, and no additional loss of function or range of motion after three repetitions. The examiner noted that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time. The examiner reported no reduction in muscle strength, muscle atrophy, or ankylosis in either knee, and there was no history of recurrent subluxation, lateral instability, recurrent effusion, and no joint instability in either knee. The examiner noted that the Veteran had not had recurrent patellar dislocation, "shin splints" stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibula impairment, and had never had a meniscus condition. The Veteran did not use an assistive device, and imaging studies did not reflect degenerative or traumatic arthritis. The DBQ reflected no objective evidence of pain on passive range of motion, or with non-weight bearing in either knee. An October 2020 DBQ reflects that the Veteran reported flare-ups of his knees precipitated by cold and damp weather. He stated that his knee flare-ups are moderate to lightly severe, and alleviated by Icy Hot, CBD cream, hot baths, and Ibuprofen. His bilateral knee range of motion was normal, with pain noted on rest, there was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue over the tibial tendon with mild severity, but no objective evidence of crepitus. There was no additional functional loss or loss of range of motion with repetitive use testing noted, but pain significantly limited functional ability with repeated use over a period of time, and with flare-ups, and while the DBQ was not conducted during a flare-up, the additional functional losses were described in terms of range of motion as flexion to 130 degrees, and extension to 0 degrees in both knees. The examiner reported no muscle atrophy, no reduction in muscle strength, and no ankylosis in either knee. There was no history of recurrent subluxation, lateral instability, recurrent effusion, or joint instability, and the examiner noted that the Veteran had not had recurrent patellar dislocation, "shin splints" stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibula impairment, and had never had a meniscus condition. The DBQ indicated that there was no evidence of pain on passive range of motion, or with non-weight bearing testing of either knee. The examiner noted that the Veteran should avoid work environments that require squatting, stooping, climbing, or walking on rough terrain to avoid aggravation of pain. In a September 2021 VA examination report, the examiner noted that the Veteran did not report flare-ups of his knee disabilities, did not have any functional loss or impairment, and did not have a history of instability, recurrent subluxation, or frequent effusion of the knees. Range of motion for both knees was normal, with flexion to 140 degrees, and extension to 0 degrees including with passive range of motion, with no range of motion exhibiting pain. There was no evidence of pain noted, no objective evidence of crepitus, or objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. The examiner noted no additional functional loss, or range of motion with repetitive use testing in either knee, no muscle atrophy, ankylosis, recurrent subluxation, persistent instability, ligament tear, or recurrent patellar instability of either knee, and the Veteran had not had surgical repair of the knee for patellar instability. The examiner reported that the Veteran had not had recurrent patellar dislocation, "shin splints" stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibula impairment, and had never had a meniscus condition in either knee. The Veteran did not require use of an assistive device, and there was no evidence of pain on passive range of motion testing, or with non-weight bearing. Based on the foregoing, the Board finds that a rating higher than 10 percent for either the Veteran's right or left knee strain is not warranted at any point during the appeal period. In this case, the examination reports show that the Veteran's range of motion of both knees was at or near normal, with flexion to between 130 and 140 degrees, and extension to 0 degrees, to include with repetitive use testing, and considering the Veteran's functional impairment during a flare-up. The examination reports complied with Sharp v. Shulkin, 29 Vet. App. 26 (2017) because the Veteran either did not report flare-ups or, as on the October 2020 VA examination, the additional functional loss was described in terms of range of motion by the examiner. The examination reports also complied with Correia, supra, because the knees were tested for pain on both active and passive motion and in weight-bearing and nonweight-bearing on the July 2020, October 2020, and September 2021 VA examinations. Accordingly, the 10 percent rating contemplates the Veteran's symptoms as a 20 percent rating would require flexion limited to 30 degrees, and extension limited to 15 degrees. Although mild pain was noted including with weight-bearing, repeated use, and with flare-ups, the preponderance of the evidence nonetheless supports the conclusion that the Veteran's symptoms most closely approximate the criteria for a 10 percent rating for right and left knee strain. In this regard, the weight of the evidence shows that even considering the indications of decrease in quality of life due to knee pain, the Veteran's symptoms were not shown to be so disabling to result in limitation of flexion actually, or effectively to 30 degrees or less, or limitation of extension to 15 degrees or greater. Moreover, the DBQs and examination report show that the Veteran did not have ankylosis of either knee. Thus, a rating higher than 10 percent is not warranted under DC 5260, 5261, or 5256. The evidence of record reflects that the Veteran has not had a meniscus condition in either knee, the Veteran has not described any signs or symptoms of a meniscus condition, the DBQs and examination report reflect no joint instability, and the Veteran has not otherwise described right or left knee instability. Thus, the Veteran's right and left knee strain symptomatology does not more nearly approximate recurrent subluxation or instability, dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint, or symptomatic removal of semilunar cartilage, and separate ratings under DCs 5257, 5258, and 5259 are not warranted under either the old or revised criteria. The Board has considered the Veteran's claim and decided entitlement based on the evidence. Neither the Veteran nor his attorney has raised any other related issues, nor have any other such issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. at 369-70 (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). For the foregoing reasons, the preponderance of the evidence reflects that the symptoms of the Veteran's right and left knee strain do not include or more nearly approximate the criteria for a rating higher than 10 percent under DC 5260 or DC 5261. Therefore, a rating higher than 10 percent for either right or left knee strain is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Maddox, 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.