Citation Nr: 21071423 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 16-51 001 DATE: November 30, 2021 ORDER An initial rating in excess of 10 percent for left knee arthritis and meniscal tear, status/post surgery prior to April 27, 2021 and beginning July 1, 2021, is denied An initial rating in excess of 10 percent for a right knee arthritis is denied. FINDINGS OF FACT 1. The Veteran served on active duty from July 1990 to January 1992. 2. The left knee disability has been manifested by subjective complaints of pain and stiffness; at worst, range of motion from 0 degrees extension to 75 degrees flexion with flare-ups causing stiffness and pain with pressure and without instability, subluxation, or loss of strength. 3. The right knee disability has been manifested by subjective complaints of pain and stiffness; at worst, range of motion from 0 degrees extension to 65 degrees flexion with flare-ups causing stiffness and pain with pressure and without instability, subluxation, or loss of strength. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for a left knee arthritis and meniscal tear, status/post surgery have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.14, 4.3, 4.7, 4.20, 4.40, 4.45, 4.59, 4.71a; Diagnostic Code (DC) 5257 (2021). 2. The criteria for an initial rating in excess of 10 percent for a right knee arthritis have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.14, 4.3, 4.7, 4.20, 4.40, 4.45, 4.59, 4.71a; DC 5003-5260 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS This appeal was 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. During the pendency of the appeal in a May 2021 rating decision, the RO assigned a temporary total rating (TTR) for the left knee following surgery to repair a torn medial meniscus, effective April 27, 2021 and ending on July 1, 2021, at which point the 10 percent rating was be resumed. Thus, the Board has limited its consideration accordingly. 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. The Veteran's left knee disability has been rated as 10 percent for the relevant time period under DC 5257, with the exception of the time he was entitled to a TTR for surgery. The right knee disability has been rated as 10 percent by analogy under DCs 5003-5260. 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. 85 Fed. Reg. 230 (Nov. 30, 2020). 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). If the amended 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 pre-amended regulation 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. Therefore, the Board will consider the claim under the pre-amended criteria prior to February 7, 2021 and both the pre-amended and amended rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. As the conditions are similar, they will be discussed jointly. 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: 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 dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint; one of the following: - 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 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 a June 2013 VA examination, the Veteran reported being unable to kneel, climb, or squat. He stated that both knees used to swell, but now there were no mechanical symptoms, just pain. He denied any surgery or treatment, instability, recent injury, flare-ups, or limitation of motion. Upon examination, he had full range of motion bilaterally, with flexion to 140 degrees or greater and extension to 0 degrees, without evidence of painful motion. He was able to perform repetitive use testing without any additional loss of range of motion. He had no cartilage or meniscal conditions, subluxation, or instability, and no tibial or fibula malunion, or shin splints. Additionally, he had no effusion, and there was no evidence of a diagnosed condition involving the patellofemoral complex with instability. At a September 2016 VA examination, the Veteran was diagnosed with bilateral osteoarthritis, patella chondromalacia, and patella tendinitis. He complained of constant pain, rated at a 5 out of 10 in intensity in both knees, which increased to an 8 out of 10 after repetitive bending, squatting, or kneeling at work. He also noted morning stiffness and pain which interfered with activities of daily living. He denied locking, but complained of occasional buckling, taking Naproxen, and using a cane and braces. Range of motion testing revealed flexion to 110 degrees and extension to 0 degrees bilaterally. Pain was noted on examination causing functional loss in the form of pain, fatigue and weakness, and there was crepitus, but there was no pain on weight bearing. He was able to perform repetitive use testing without any additional loss of range of motion. He had no cartilage or meniscal conditions, subluxation, or instability, and no tibial or fibula malunion, or shin splints. Additionally, he had no effusion, and there was no evidence of a diagnosed condition involving the patellofemoral complex with instability. There was no evidence of a sprain, incomplete ligament tear or repaired complete ligament tear which caused persistent instability and prescribed brace or assistive device. At an August 2017 VA examination, the Veteran was diagnosed with bilateral knee strains and osteoarthritis. He reported that the bilateral knee disabilities had worsened with time, and that it was hard for him to bend, and get up and down. He stated that he was always in pain, and that sometimes, it felt like the knees would give out. He reported flare-ups in the form of swelling and pain in the joints which occurred with overuse. The examiner found functional limitation in the form of bending, kneeling, climbing, or prolonged sitting. Range of motion testing revealed flexion to 130 degrees and extension to 0 degrees bilaterally, with pain noted on exam but not causing or resulting in functional loss. There was no evidence of crepitus or pain with weight-bearing. He was able to perform repetitive use testing without any additional loss of range of motion. Upon examination, the examiner found no cartilage or meniscal conditions, subluxation, or instability, and no tibial or fibula malunion, or shin splints. Additionally, he had no effusion, and there was no evidence of a diagnosed condition involving the patellofemoral complex with instability. There was no evidence of a sprain, incomplete ligament tear or repaired complete ligament tear which caused persistent instability and prescribed brace or assistive device. Imaging performed at the August 2017 VA examination revealed anterior spurs involving the patella in the right knee, but that it was otherwise normal. the left knee was also negative without any fracture, subluxation, or significant bone, joint or soft tissue abnormalities. At a December 2019 VA examination, the Veteran was diagnosed with bilateral knee tendinitis and arthritis with chondromalacia. He reported an inability to stand more than five minutes without increased knee pain. He experienced the same thing with walking and reported that pain and swelling caused limitation in range of motion and difficulty in performing daily activities. He reported flare-ups daily specifically in the right knee, which were precipitated by any activity. Range of motion testing revealed flexion to 80 degrees in the right knee and 70 degrees in the left knee. Extension was to 0 degrees bilaterally. Pain was noted on the examination which caused functional loss. There was evidence of pain on weight bearing and crepitus. He was able to perform observed repetitive use testing without any additional loss of range of motion. However, the examiner noted that regular repetitive use in daily living could potentially cause more loss of range of motion due to pain, manifesting as what would be flexion limited to 65 degrees in the right knee and 75 in the left knee. There was no additional loss of range in the form of extension. He had no cartilage or meniscal conditions, subluxation, or instability, and no tibial or fibula malunion, or shin splints. Additionally, he had no effusion, and there was no evidence of a diagnosed condition involving the patellofemoral complex with instability. There was no evidence of a sprain, incomplete ligament tear or repaired complete ligament tear which caused persistent instability and prescribed brace or assistive device. Private treatment notes from October 2019 showed that the Veteran complained of right knee pain. Imaging of the right knee revealed that the anterior and posterior cruciate ligaments, medial meniscus, and lateral meniscus were all intact. The imaging impression showed no meniscal tears, osteoarthritis of the patellofemoral compartment with cartilage loss, and fissuring of the patella, and edema. Imaging of the left knee showed a suspected small horizontal tear of the medical meniscal body, chondral fissuring at the median ridge of the patella, and a ganglion cyst. In April 2021, the Veteran underwent surgery for the left knee, and was in receipt of a TTR until July 1, 2021; thus, the May and June 2021 VA examinations discussed will only cover right knee symptomatology. In this regard, at a May 2021 VA examination, the Veteran complained of ongoing pain and stiffness in the right knee. Range of motion testing was unable to be completed. Specifically, the examiner noted that it was not advisable to test range of motion of either knee considering the recent left knee arthroscopy. However, with regard to the right knee, the Veteran had no cartilage or meniscal conditions, subluxation, or instability, and no tibial or fibula malunion, or shin splints. Additionally, he had no effusion, and there was no evidence of a diagnosed condition involving the patellofemoral complex with instability. There was no evidence of a sprain, incomplete ligament tear or repaired complete ligament tear which caused persistent instability and prescribed brace or assistive device. At a June 2021 VA examination, the Veteran continued to complain of pain in the right knee triggered by excessive activity. The examiner noted that the Veteran's knees had improved. Right knee range of motion testing revealed flexion to 125 degrees with extension to 0 degrees. Passive range of motion was the same, and there was no evidence of pain weight-bearing or nonweight-bearing, active or passive motion. There was evidence of crepitus. With regard to the right knee, the Veteran had no cartilage or meniscal conditions, subluxation, or instability, and no tibial or fibula malunion, or shin splints. Additionally, he had no effusion, and there was no evidence of a diagnosed condition involving the patellofemoral complex with instability. There was no evidence of a sprain, incomplete ligament tear or repaired complete ligament tear which caused persistent instability and prescribed brace or assistive device. The examiner noted that both knees have continued ongoing pain with age, time, use, wear and tear, and natural progression of the pre-existing arthritis conditions bilaterally on weight bearing. VA treatment records from July 27, 2021 revealed that the Veteran had some soreness in the left knee, but that he had full flexion with range of motion from 0 to 105 degrees. the left knee was noted to be stable with mild effusion. It was noted in several post-operative visits that he arrived without assistive devices and denied any difficulty in pain in either knee. Specifically, May 2021 VA treatment notes showed use of a cane which was gone by June 2021, and that he was ambulating well, without swelling or discoloration, and range of motion from 0-110 degrees. Based on the above, there is no indication that a higher rating was warranted for either knee during the relevant time periods. Specifically, while a meniscal condition was noted in the left knee, the Veteran underwent surgery and was in receipt of a TTR during that time of surgery and recovery. In this regard, no VA or private treatment provider found any evidence of subluxation, instability, dislocated semilunar cartilage, frequent episodes of locking or pain, or malunion of the tibia and fibula. Range of motion testing showed flexion to be, at worst, 65 degrees and 75 degrees in the right and left knees, with full extension. Considering the amended criteria, the medical evidence similarly failed to show a diagnosed patellofemoral complex with recurrent instability requiring medical prescriptions for assistive devices, a sprain, incomplete ligament, or complete ligament tear which required a medical prescription for an assistive device, or shin splints. Thus, the medical evidence does not support a higher rating. 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 examiner has 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.