Citation Nr: 21071131 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 16-50 177 DATE: November 29, 2021 ORDER A rating in excess of 10 percent for right knee medial meniscal tears prior to March 23, 2020, is denied. A rating in excess of 10 percent for left knee medial meniscal tears prior to March 23, 2020, is denied. A rating in excess of 20 percent for right knee medial meniscal tears since March 23, 2020, is denied. A rating in excess of 20 percent for left knee medial meniscal tears since March 23, 2020, is denied. FINDINGS OF FACT 1. The Veteran served on active duty from April 2008 to October 2008. 2. Prior to March 23, 2020, bilateral knee disabilities were manifested by subjective complaints of pain and stiffness; objective evidence showed flexion to, at worst, 80 degrees, and full extension and no instability bilaterally. 3. Since March 23, 2020, bilateral knee disabilities have been manifested by subjective complaints of pain, stiffness, and giving way; objective evidence showed flexion to, at worst, 70 degrees in the right knee and 80 degrees in the left knee, with normal extension. There was no instability, no subluxation, and no ankylosis. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for a right knee disability prior to March 23, 2020, have not been met. 38 U.S.C. §§ 1110, 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5258 (2021). 2. The criteria for a rating in excess of 10 percent for a left knee disability prior to March 23, 2020, have not been met. 38 U.S.C. §§ 1110, 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5258 (2021). 3. The criteria for a rating in excess of 20 percent for a right knee disability since March 23, 2020, have not been met. 38 U.S.C. §§ 1110, 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5258 (2021). 4. The criteria for a rating in excess of 20 percent for a left knee disability since March 23, 2020, have not been met. 38 U.S.C. §§ 1110, 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5258 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS These appeals were previously remanded by the Board in December 2018 and June 2021 for additional development. There has been substantial compliance with the remand directives, and there is no bar to proceeding with the appeal. Stegall v. West, 11 Vet. App. 268, 271. Turning to the relevant laws and regulations, disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Prior to March 23, 2020 The applicable rating criteria for the Veteran's bilateral knee disabilities were revised effective February 7, 2021. The Board will designate the regulations in effect prior to the respective changes as the pre-amended regulations and the subsequent regulations as the amended regulations. The timing of this change requires the Board to first consider the claim under the appropriate pre-amended regulations for any period prior to the effective date of the amended diagnostic codes. Thereafter, the Board must analyze the evidence dated after the effective date of the amended regulations and consider whether a rating higher than the previous rating is warranted. See VAOPGCPREC 7-2003; Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Prior to March 23, 2020, the bilateral knee disabilities were rated as 10 percent disabling each under DC 5258. The Board will also consider all potentially relevant diagnostic codes. Under the pre-amended regulations, a 20 percent rating is warranted when the objective medical evidence shows: moderate recurrent subluxation or lateral instability dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint; flexion of the leg limited to 30 degrees; extension of the leg limited to 15 degrees; or malunion of the tibia or fibula with moderate knee or ankle disability. Under the revised criteria, a 20 percent rating is warranted when the objective medical evidence shows: 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 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 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; flexion of the leg limited to 30 degrees; extension of the leg limited to 15 degrees; or MTSS, or shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, one lower extremity. Turning to the medical evidence, at an October 2013 VA examination, the Veteran was diagnosed with bilateral medial meniscal tears and proximal tibia stress fractures. He complained bilateral pain, kneeling, and an inability to sit or stand for very long. He reported that he treated his knee pain with Aleve, cold and heating pads, and massages. He described tightness and popping, as well as flare-ups. Range of motion testing showed flexion to 80 degrees bilaterally, without evidence of painful motion, and normal extension bilaterally. There was no history of subluxation or dislocation, and stability testing revealed normal results bilaterally. While there was a semilunar, or meniscal tear condition noted, it did not result in frequent episodes of locking, pain, or effusion. The examiner also found no evidence of malunion of the tibia or fibula. Additionally, while the Veteran complained of occasional instability, there was no evidence of instability as the stability testing was normal. Thus, a higher rating is not warranted under the revised criteria for a sprain or ligament tear causing persistent instability. The examiner also found no evidence of a patellofemoral complex, or MTSS or shin splints. At an October 2014 VA examination, the Veteran complained of stiffness, pain, and throbbing. He denied any episodes of locking or giving way, but instead noted he needed several doses of Advil per day to treat the pain. He noted that his pain got worse after standing for more than one hour, biking, or running, both of which caused swelling. Range of motion testing revealed right knee flexion to 120 degrees, with objective pain found at 110 degrees, with full extension, and pain beginning at 10 degrees. Left knee flexion was shown to 110 degrees, with evidence of pain at 90 degrees with full extension and pain beginning at 15 degrees. There was no history of subluxation or dislocation, and stability testing revealed normal results bilaterally. While there was a semilunar, or meniscal tear condition noted, it resulted in no symptoms. The examiner noted a stress facture of the lower legs bilaterally, with tenderness over the tibial plateau as well as a meniscal condition; however, no symptoms were relayed by the examiner suggesting moderate knee or ankle disability. Additionally, while the Veteran complained of occasional instability, there was no evidence of instability as the stability testing was normal. Thus, a higher rating is not warranted under the revised criteria for a sprain or ligament tear causing persistent instability. The examiner also found no evidence of a patellofemoral complex, or MTSS or shin splints. VA treatment notes for the relevant time period were also reviewed. Indeed, there were frequent complaints of bilateral knee pain and pressure. However, the available records did not reveal any symptomatology more severe than noted above which would support a higher rating for this period. Based on the above, the medical evidence does not support a rating in excess of 10 percent for a bilateral knee disability prior to March 23, 2020. In this regard, the medical evidence showed flexion to be, at worst, 90 degrees, extension to be, at worst, 0 degrees, and no evidence of recurrent subluxation, lateral instability, tibial or fibular impairment, MTSS, and/or shin splints. Further, while the Veteran did have a meniscal condition and tibial stress fracture, there was no evidence of either causing moderate ankle or knee disability, or frequent episodes of locking, pain, or effusion. In fact, the Veteran denied any locking or giving way at the October 2014 VA examination. Additionally, while he later noted he had instability of station, it is noteworthy that bilateral knee stability was tested twice at each VA examination, and normal results were found both times. Therefore, the medical evidence does not support a rating in excess of 10 percent prior to March 23, 2020. Since March 23, 2020 Since March 23, 2020, the bilateral knee disabilities were each rated at 20 percent disabling under DC 5258. As described above, the Board will designate the regulations in effect prior to the respective changes as the pre-amended regulations and the subsequent regulations as the amended regulations. Under the pre-amended regulations, a 30 percent rating is warranted when the objective medical evidence shows: severe recurrent subluxation or lateral instability; ankylosis of the knee with favorable angle in full extension, or in slight flexion between 0 and 10 degrees; flexion of the leg limited to 15 degrees; extension of the leg limited to 20 degrees; or malunion of the tibia or fibula with marked knee or ankle disability. Under the revised criteria, a 30 percent rating is warranted when the objective medical evidence shows: ankylosis of the knee with favorable angle in full extension, or in slight flexion between 0 and 10 degrees; 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 flexion of the leg limited to 15 degrees; extension of the leg limited to 20 degrees; or MTSS or shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, both lower extremities. Turning to the medical evidence, at a March 2020 VA examination, the Veteran reported that his symptoms of pain, stiffness, and that his right knee gave out. He stated that he had flare-ups two to three times per week, with moderate to severe pain in the right knee that was precipitated by walking or standing for too long and running. Range of motion testing revealed flexion to 80 degrees in the right knee, and extension to 0 degrees. Pain was noted on examination with crepitus. Left knee flexion was 90 degrees with extension to 0 degrees with pain noted. He was able to perform repetitive use testing, without additional loss of range of motion. The examiner noted that he had pain causing functional loss and lack of endurance, which if described in terms of range of motion would limit flexion to 70 degrees, with a normal extension in the right knee, and 80 degrees with a normal extension in the left knee. There was no history or evidence of recurrent subluxation or lateral instability, malunion of the tibia or fibula, or ankylosis bilaterally. There was also no evidence of unrepaired or failed repair of a ligament tear causing persistent instability, MTSS, or shin splints. At a July 2021 VA examination, the Veteran reported throbbing pain with prolonged standing or walking, with multiple cortisone injections in the past, a TENs unit, and Advil or Naproxen as needed. He denied any flare-ups but reported functional loss in standing, walking, bending, or kneeling. Range of motion testing showed flexion to 125 degrees and flexion to 0 degrees bilaterally. Passive range of motion was noted to be the same as active range of motion. There was evidence of pain on active and passive motion but did not cause functional loss. The Veteran was able to complete repetitive use testing, and flexion was noted to be 120 degrees bilaterally, without change to extension, but with pain causing functional loss. There was no history or evidence of recurrent subluxation or lateral instability, malunion of the tibia or fibula, or ankylosis bilaterally. There was also no evidence of unrepaired or failed repair of a ligament tear causing persistent instability, MTSS, or shin splints. Relevant VA treatment records were also reviewed but failed to show any more severe symptomatology which would support a higher rating. Based on the above, the medical evidence does not support a rating in excess of 20 percent for bilateral knee disabilities since March 23, 2020. In this regard, the medical evidence showed flexion to be, at worst, 70 degrees in the right knee and 80 degrees in the left knee, with extension to be, at worst, 0 degrees, and no evidence of recurrent subluxation, lateral instability, use of assistive devices, tibial or fibular impairment, MTSS, and/or shin splints; therefore, the medical evidence does not support a rating in excess of 20 percent since March 23, 2020. The Board has considered the Veteran's lay statements that his disabilities are worse. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of these disorders according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran's bilateral knee disabilities has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which these disabilities are evaluated. Moreover, as the examiners have the requisite medical expertise to render a medical opinion regarding the degree of impairment caused by the disabilities and had sufficient facts and data on which to base the conclusion, the Board affords the medical opinion great probative value. As such, these records are more probative than the Veteran's subjective complaints of increased symptomatology. In sum, after a careful review of the evidence of record, the benefit of the doubt rule is not applicable, and the appeals are denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (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). L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Yacoub, 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.