Citation Nr: 21070945 Decision Date: 11/27/21 Archive Date: 11/27/21 DOCKET NO. 18-46 732 DATE: November 27, 2021 ORDER Entitlement to an initial 20 percent rating, but not higher, for moderate left knee instability for the period prior to February 7, 2021, is granted. Entitlement to a rating in excess of 20 percent for left knee instability from February 7, 2021, is denied. FINDING OF FACT 1. Prior to February 7, 2021, the Veteran's left knee disability was manifested by moderate instability, rather than slight instability. 2. From February 7, 2021, the Veteran's left knee instability has not been severe or manifested by an unrepaired or failed repair of a complete ligament tear causing persistent instability, with a medical provider-prescribed assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. CONCLUSION OF LAW 1. The criteria for an initial 20 percent rating for the period prior to February 7, 2021, for moderate left knee instability, are met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, DC 5257. 2. The criteria for a rating in excess of 20 percent for the period from February 7, 2021, for left knee instability, are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, DC 5257 (revised, effective February 7, 2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1976 to December 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in June 2021, May 2019, and April 2018. The Board notes that the Veteran filed for reconsideration of the February 2016 rating decision in the form of a new claim in July 2016. See July 2016 VA Form 21-526EZ. This matter was then readjudicated in an August 2016 rating decision, where the RO proposed to reduce the initial 10 percent rating for left knee instability to a noncompensable or 0 percent rating. After sending out a notice letter informing the Veteran of the proposed reduction, the RO effectuated the 0 percent rating in a December 2016 rating decision, effective March 1, 2017, to which he then appealed to the Board. Based on this procedural history, the Board has characterized the appeal as an initial rating claim. See 38 C.F.R. § 3.156(b). While on remand, the RO restored the initial 10 percent evaluation in an April 2020 rating decision, effective March 1, 2017. While this rating restored the prior reduction, it does not constitute a full grant of the benefits sought. Therefore, the claim remains on appeal and is treated as a claim for a higher initial rating. AB v. Brown, 6 Vet. App. 35, 38 (1993). The Board has recharacterized this issue to reflect the restored rating, as well as the subsequent increase to 20 percent effectuated as of February 7, 2021. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), 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. In this case, the Veteran asserts that he is entitled to increased ratings for his left knee instability, as the condition is worse than what the current ratings reflect. The Board notes that service connection was separately in effect for degenerative arthritis of the left knee from January 11, 2016 to October 14, 2021, but the assigned 10 percent rating was never on appeal. This rating was replaced on October 14, 2021 rating by a 20 percent rating for a left knee semilunar cartilage disorder. That 20 percent evaluation is the maximum available under the applicable diagnostic criteria (Diagnostic Code 5258) for left knee semilunar cartilage, and the Veteran has not since asserted that a higher evaluation for this particular disorder is warranted under other diagnostic codes. Accordingly, this matter is not currently on appeal, and the sole focus of the Board will be whether a higher rating is warranted for the service-connected left knee instability. Service connection for left knee instability was granted in a February 2016 rating decision, and the RO assigned an initial 10 percent rating, effective January 11, 2016, the date of claim, under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5257. The Board notes that changes to the Schedule of Ratings for the Musculoskeletal System, which included the rating criteria for knee instability, went into effect on February 7, 2021. Diagnostic Code 5257 now reads as follows, as to recurrent subluxation or instability: A 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. 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. (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 10 percent 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. As to patellar instability: A 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. 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 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. The Board will first address the period prior to February 7, 2021, during which the recent changes to the rating criteria for knee instability are not applicable. Period Prior to February 7, 2021. Prior to the February 7, 2021, regulatory revisions, under DC 5257, recurrent subluxation or lateral instability is rated as 10 percent disabling when slight, 20 percent disabling when moderate, and 30 percent disabling when severe. 38 C.F.R. § 4.71a. The words "slight, "moderate" and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for "equitable and just decisions." 38 C.F.R. § 4.6. Turning the evidence of record, for the period prior to February 7, 2021, and beginning on January 11, 2016, the date of claim, VA examinations from February 2016 and October 2019 show joint instability in the left knee was found upon testing. The February 2016 examination notes a +1 (0-5mm) in the anterior and posterior. In the October 2019 examination, it notes a +1 (0-5mm) in the anterior, posterior, medial, and lateral. The July 2016 VA knee examination does not indicate objective findings of left knee instability. However, the Veteran used a left knee brace and cane on a constant basis due to his left knee issues. Furthermore, VA treatment records dating back to June 2013 show that the Veteran ambulates with a cane and wears a knee brace on his left knee. In addition, symptoms in his left knee are noted throughout the VA medical record in the period prior to February 7, 2021, including pain, swelling, tenderness, locking up, difficulty getting up from a sitting position and putting weight on legs, as well as an inability to squat. Based on the foregoing, the Board finds a rating of 20 percent for moderate left knee instability is warranted for the period prior to February 7, 2021. The Board notes that regarding the Veteran's instability, there is some disparity in the record between the Veteran's lay statements and objective physical/testing findings. The February 2016 and October 2019 VA examiners found that the Veteran had instability of only 0-5mm, a finding that could most accurately be characterized as slight instability; the July 2016 VA examiner did not find any instability. However, the Veteran has a long history of subjective complaints of left knee symptoms, as well as using a cane and left knee brace for his instability. See English v. Wilkie, 30 Vet. App. 347, 353 (2018). Attempting to reconcile this evidence, the Board finds that a higher 20 percent disability evaluation under DC 5257 is warranted for the period prior to February 7, 2021, to account for the Veteran's subjective complaints of instability. As the objective medical evidence appears to be more consistent with only slight or no instability, a 30 percent evaluation for severe instability is not warranted for the period prior to February 7, 2021. As such, entitlement to an initial 20 percent rating for left knee instability for the period prior to February 7, 2021 is warranted. To this extent, the appeal is granted. Period from February 7, 2021. As noted above, changes were made to the rating criteria for knee instability, effective February 7, 2021. In this case, the Board finds that a rating in excess of 20 percent for the period from February 7, 2021, is not warranted based on either the old or the new criteria. August 2021 and October 2021 VA examinations show findings that are inconsistent with the rating criteria required for a 30 percent rating. Neither examination shows that the Veteran has left knee patellar instability that would warrant a 30 percent rating under patellar instability under DC 5257, nor is there a showing of instability that is severe in nature. In addition, the August 2021 and October 2021 VA examinations note that the Veteran has a partial/incomplete ligament tear in the left knee, not 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), or a walker) and bracing for ambulation, as is required for a 30 percent rating under recurrent subluxation or instability under DC 5257. As such, the Board finds that a rating in excess of 20 percent for left knee instability from February 7, 2021 is not warranted. Finally, the Board has considered a total rating based on individual unemployability due to service-connected disability (TDIU), pursuant to Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). However, absent any indication or allegation that the Veteran is unemployable as a result of his service-connected left knee instability, consideration of TDIU is not warranted. In this case, VA examinations throughout the record note that the Veteran is retired and previously worked in housekeeping and maintenance. However, there is no indication that he was unemployable or had to retire due to his service-connected disability. As such, the record does not reasonably raise the issue of TDIU. Id. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ariasaif, Mary 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.