Citation Nr: 21071934 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 17-53 945 DATE: December 1, 2021 ORDER Entitlement to a 10 percent rating for left knee osteoarthritis with instability prior to October 3, 2019 is granted, subject to the laws and regulations governing the payment of monetary awards. Entitlement to a compensable rating for mechanical derangement anserine bursitis with loose body of the right knee with degenerative arthritis prior to October 18, 2017 is denied. Entitlement to a 10 percent rating from October 18, 2017 for mechanical derangement anserine bursitis with loose body of the right knee with degenerative arthritis is granted, subject to the laws and regulations governing the payment of monetary awards. FINDINGS OF FACT 1. Prior to October 3, 2019, the Veteran's left knee disability was manifested by slight instability. 2. Prior to October 18, 2017, the Veteran's the right knee disability was not manifested by slight instability. 3. From October 18, 2017 the Veteran's right knee disability was manifested by slight instability. CONCLUSIONS OF LAW 1. Prior to October 3, 2019, the criteria for a 10 percent rating for slight instability of the left knee have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.40, 4.71a Diagnostic Code (Code) 5257. 2. Prior to October 18, 2017, the criteria for a 10 percent rating for slight instability of the right knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.40, 4.71a Diagnostic Code (Code) 5257. 3. From October 18, 2017, the criteria for a 10 percent rating for slight instability of the right knee have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.40, 4.71a Diagnostic Code (Code) 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1978 to July 1983. In March 2021, he testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the proceeding is in the record. Entitlement to a compensable disability rating for service-connected mechanical derangement anserine bursitis with loose body of the right knee with degenerative arthritis is remanded. Entitlement to a compensable disability rating for service-connected left knee osteoarthritis with instability is remanded The Board remanded the claim in May 2021. There has been substantial compliance with the remand directives and the Board will proceed to adjudication. Stegall v. West, 11 Vet. App. 268 (1998). Historically, the Veteran's service-connected left and right knee disabilities have each been assigned multiple ratings under different diagnostic codes. The appeal before the Board is limited to the ratings for instability. In an interim August 2021 rating decision, the rating for the Veteran's left knee disability was increased to 100 percent from October 3, 2019 based on a total knee replacement and assigned a 30 percent rating from December 1, 2020 under Code 5055. Accordingly, as this appeal of the Veteran's left knee disability has been limited to only the instability rating under Code 5257 the issue of a higher rating for the period from October 3, 2019 is no longer on appeal. Increase Rating The Veteran seeks a compensable ratings for the instability of his right and left knee disabilities which are rated as noncompensable (0 percent) under 38 C.F.R. § 4.71a Code 5257. He filed his claim for increased rating in December 2015. Disability ratings are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate Codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). During the pendency of the Veteran's claim and appeal, the criteria for rating musculoskeletal disabilities were changed by an amendment to the rating schedule that became effective on February 7, 2021. 85 Fed. Reg. 76, 453 (November 30, 2020). The amendments provide that the Board should apply the criteria which are more favorable to the Veteran. The amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change; however, the old regulations will be considered for the periods both before and after the change was made. See VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The February 2021 changes to the rating criteria for the knee pertain to Diagnostic Code 5257 (instability) and Diagnostic Code 5262 (impairment of the tibia and fibula). The rest of the rating criteria for the knee are unchanged. Under the older version of Code 5257, a 10 percent rating is available for slight recurrent subluxation or lateral instability. A 20 percent rating is assigned for moderate recurrent subluxation or lateral instability. A 30 percent rating is assigned for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Code 5257. Under Code 5257, as in effect after February 7, 2021, for recurrent subluxation or lateral instability, 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. A 20 percent 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 30 percent 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. For patellar instability, a 10 percent 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. A 20 percent 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 30 percent is warranted 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. On March 2016 VA knee examination, the Veteran reported that he walked with a cane, used a walker at home, and wore bilateral knee braces. He reported bilateral weakness and stiffness, and left knee instability. He reported having flare-ups consisting of increased pain, stiffness, and weakness. On joint stability testing, anterior, posterior, medial, and lateral instability testing were all normal bilaterally. In an October 2017 VA treatment note, he reported he had fallen after his right knee buckled. On May 2018 VA knee examination, the Veteran reported he had bilateral knee pain and swelling. He reported having flare-ups of increased episodes of knee pain that he described as sharp and burning in character. He reported that the flare-ups occur spontaneously with no aggravating factors. On joint stability testing, the examiner noted the Veteran had a history of recurrent effusion based on his subjective history of swelling. Anterior, posterior, medial, and lateral instability testing were all normal bilaterally. He was noted to regularly use a cane and walker for his knee issues. On August 2019 VA knee examination, the Veteran reported having flare-ups of bilateral knee pain. He reported he wore braces, and used a cane and walker. On joint stability testing, anterior, posterior, medial, and lateral instability testing were all normal bilaterally. The examiner noted there was no history of recurrent subluxation, lateral instability, or recurrent effusion. He was noted to regularly use a cane and walker for his knee issues. In a September 2019 private treatment note, the Veteran reported bilateral knee pain. He reported having popping and grinding in both knees. In October 2019, the Veteran underwent a left total knee arthroplasty. At the March 2021 hearing, the Veteran testified that his right and left knee instability had gotten worse since his last VA examination in August 2019. He testified that his right knee would just give out, that he would be walking along and it would buckle out. He also testified that his left knee would still buckle despite a knee replacement. He testified that sometimes he wore a knee brace. On June 2021 VA examination, the Veteran reported constant aching pain and weakness of his right knee and constant aching pain and popping of the left knee. He reported having flare-ups during which he could not walk and had to hop around his house, he reported that the pain becomes sharp and his knee becomes stiff. The Veteran did not report or have a history of instability or recurrent subluxation of his knees. He reported intermittent swelling of the bilateral knees. On joint stability testing, for the right knee, there was no recurrent subluxation or persistent instability; ligament tear; or patellar instability. Left Knee Based on a review of the record, the Board finds that entitlement to a 10 percent rating, but no higher, is warranted for instability of the Veteran's left knee prior to October 3, 2019. Although there is no evidence of instability on objective testing, the Veteran reported having instability of his left knee during the period on appeal, including on March 2016 VA examination, and reported a continued history of his left knee buckling and giving out before his October 2019 left knee replacement at the June 2021 hearing. The old version of 5257 does not require objective medical evidence to assign rating for instability. English v. Wilkie, 30 Vet. App. 347 (2018). Affording the Veteran the benefit of the doubt and taking into consideration of his reports of left knee instability and use of assistive devices during the period, the Board finds that his left knee disability manifested in mild instability, and no greater, for the period prior to October 3, 2019. Accordingly a higher 10 percent rating is warranted. Right Knee Based on a review of the record, the Board finds entitlement to a compensable rating is not warranted for instability of the Veteran's right knee prior to October 18, 2017, but a 10 percent rating, but no higher, is warranted from that date. For the period prior to October 18, 2017, the Board finds that a compensable rating for the instability of the Veteran's right knee is not warranted because during this period. The Veteran did not report having right knee instability and no instability was found on VA examinations or VA treatment during this period. For the period from October 18, 2017, the Board finds that a 10 percent rating, but no higher, is warranted for slight instability under the prior criteria for Code 5257, which did not require objective medical evidence to assign rating for instability. English, 30 Vet. App. at 347. The Veteran first reported his right knee buckling and causing a fall in an October 2017 VA treatment note. He continued to report having instability in his right knee as he reported having popping and grinding in a September 2019 private treatment note and at the June 2021 hearing. However, the preponderance of the objective testing results during the period on appeal more nearly approximate a finding of no instability as no left knee instability was found on March 2016, May 2018, August 2019 and June 2021 VA examinations. Affording, the Veteran the benefit of the doubt and taking into consideration of his reports of buckling, popping, and instability. and use of assistive devises during this period, the Board finds that his right knee disability manifested in mild instability, and no greater, for the period from October 18, 2017. Accordingly, a higher 10 percent rating is warranted. Additionally, a higher 20 percent rating is not warranted under the new criteria for Code 5257. The June 2021 VA examiner found no recurrent subluxation or lateral instability and no patellar instability. In deciding the claims, the Board has also considered the Veteran's lay statements that the instability of his right and left knees were worse than currently evaluated. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran's 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 the clinical records) directly address the criteria under which his disabilities are evaluated. As such, the Board finds these records to be more probative than the Veteran's subjective complaints of increased symptomatology. The Board has considered the doctrine of reasonable doubt but has determined that it is inapplicable, other than to the extent of allowing a higher 10 percent rating for the instability of Veteran's left knee prior to October 3, 2019 and for his right knee from October 18, 2017; otherwise the preponderance of the evidence is against higher ratings. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 4.3, 4.7, 4.71a. M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Eric Struening 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.