Citation Nr: 21072103 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 10-33 055 DATE: December 2, 2021 ORDER Evaluation in excess of 10 percent for left knee strain, limitation of flexion, from February 25, 2008 is denied. Evaluation in excess of 20 percent for left knee strain, limitation of extension, from September 29, 2015 to June 10, 2016 is denied. Evaluation in excess of 10 percent for left knee strain, limitation of extension, from September 20, 2018 to May 16, 2021 is denied. Evaluation in excess of 50 percent for left knee strain, limitation of extension, from May 17, 2021 is denied. Evaluation in excess of 10 percent for left knee recurrent subluxation (instability) from May 15, 2009 to February 6, 2021 is denied. Evaluation in excess of 20 percent for left knee recurrent subluxation (instability) from February 7, 2021 is denied. FINDINGS OF FACT 1. Throughout the period of appeal, the Veteran's left knee strain, limitation of flexion, was not limited to flexion of less than 45 degrees. 2. The Veteran's left knee strain, limitation of extension, was not limited to greater than 15 degrees from September 29, 2015 to June 10, 2016. 3. The Veteran's left knee strain, limitation of extension, was not limited to greater than 10 degrees from September 20, 2018 to May 16, 2021. 4. The Veteran's left knee strain, limitation of extension, is rated as 50 percent disabling from May 17, 2021, which is the maximum schedular rating permitted for limitation of extension of the leg. 5. The Veteran experienced slight left knee recurrent subluxation (instability) from May 15, 2009 to February 6, 2021. 6. The Veteran experienced moderate left knee recurrent subluxation (instability) from February 7, 2021. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for left knee strain, limitation of flexion, from February 25, 2008 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5260. 2. The criteria for a rating in excess of 20 percent for left knee strain, limitation of extension, from September 29, 2015 to June 10, 2016 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5261. 3. The criteria for a rating in excess of 10 percent for left knee strain, limitation of extension, from September 20, 2018 to May 16, 2021 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5261. 4. The criteria for a rating in excess of 50 percent for left knee strain, limitation of extension, from May 17, 2021 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5261. 5. The criteria for a rating in excess of 10 percent for left knee recurrent subluxation (instability) from May 15, 2009 to February 6, 2021 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. 6. The criteria for a rating in excess of 20 percent for left knee recurrent subluxation (instability) from February 7, 2021 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from July 1998 to December 1998 and from March 2003 to July 2004. This matter comes before the Board of Veterans Appeals (Board) on appeal from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This matter was most recently before the Board in March 2021 when it was remanded to the Agency of Original Jurisdiction (AOJ) for additional VA examinations. The Board has reviewed all of the evidence of record, with an emphasis on the evidence relevant to the Veteran's claims. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the Veteran's claims. Increased Rating Disability ratings are assigned in accordance with VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from a disability. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. When a question arises as to which of two ratings shall be applied under a particular Diagnostic Code, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The evaluation of the same "disability" or the same "manifestations" under various diagnoses is prohibited. 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993) (interpreting 38 U.S.C. § 1155). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, if a veteran has separate and distinct manifestations attributable to the same injury, they may be compensated under different diagnostic codes (DCs). See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993). Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitation, and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of the examination. Where the rating appealed is the initial rating assigned with a grant of service connection, the entire appeal period is for consideration, and separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Moreover, adjudication of a claim for a higher initial disability rating should include specific consideration of whether staged ratings are appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999). A veteran may receive more than one compensable rating for different conditions of the same knee. Thus, the Board will discuss all applicable rating criteria for the knees. See VAOPGCPREC 09-04; VAOPGCPREC 23-97. Effective February 7, 2021, VA revised the portion of the Rating Schedule that addresses the Musculoskeletal System and Muscle Injuries. See 85 Fed. Reg. 76,453, 76,463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a). These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after February 7, 2021. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021, and the criteria that is more favorable to the Veteran will be applied. For rating purposes, normal range of motion in a knee joint is from 0 to 140 degrees. 38 C.F.R. § 4.71, Plate II. Diagnostic Codes 5260 and 5261 have not been revised during the pendency of this claim. Limitation of flexion of a leg warrants a 10 percent evaluation if flexion is limited to 45 degrees and a 20 percent evaluation is assigned if flexion is limited to 30 degrees. Flexion that is limited to 15 degrees is evaluated as 30 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Limitation of extension of a leg warrants a 10 percent evaluation when it is limited to 10 degrees and a 20 percent evaluation when it is limited to 15 degrees. A 30 percent evaluation is warranted where extension is limited to 20 degrees; a 40 percent evaluation is warranted for extension limited to 30 degrees; and the highest schedular rating of 50 percent is warranted where extension is limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. To the extent Diagnostic Code 5257 is applicable in this case, the rating criteria were revised February 7, 2021. Under the former rating criteria prior to February 7, 2021, DC 5257 rates impairment based on recurrent subluxation or lateral instability of the knee, and provides a 10 percent evaluation where there is evidence of slight recurrent subluxation or lateral instability of a knee; a 20 percent rating with evidence of moderate recurrent subluxation or lateral instability; and a 30 percent rating with evidence of severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Under the revised rating criteria effective February 7, 2021, Diagnostic Code 5257, removes the "severe," "moderate," and "slight" language for recurrent subluxation or lateral instability and adds rating for patellar instability. For recurrent subluxation or instability, a 10 percent rating 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 rating is warranted for 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. 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. For patellar instability, 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. 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 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. As the former diagnostic criteria for 5257 did not require objective evidence of instability, the Board finds the prior version of Diagnostic Code 5257 more favorable to the Veteran and as such will apply only the former criteria. When assessing the severity of musculoskeletal disabilities that are, at least partly, rated on the basis of limitation of motion, VA also must consider the extent that a veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when a veteran's symptoms are most prevalent ("flare-ups") due to the extent of his or her pain (and painful motion), weakness, premature or excess fatigability, and incoordination, assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59. 1. Evaluation in excess of 10 percent for left knee strain, limitation of flexion, from February 25, 2008 The Veteran is currently service connected for left knee strain, limitation of flexion. She is currently rated at 10 percent under DC 5260. As noted above, limitation of flexion of a leg warrants a 10 percent evaluation if flexion is limited to 45 degrees and a 20 percent evaluation is assigned if flexion is limited to 30 degrees. Flexion that is limited to 15 degrees is evaluated as 30 percent disabling. Flexion is measured from 0 to 140 degrees. 38 C.F.R. § 4.71a, DC 5260. The Veteran was afforded multiple VA examinations during the period on appeal. A March 2009 VA examination revealed left knee flexion to 75 degrees. A November 2009 VA examination reflected left knee flexion to 105 degrees. In September 2015 a VA examiner determined the Veteran's initial left knee flexion was to 90 degrees and to 85 degrees after observed repetitive use. In June 2016 the VA examiner found the Veteran's left knee flexion was limited to 60 degrees. An October 2017 VA examination showed flexion to 70 degrees. A September 2018 examination revealed flexion to 80 degrees. An October 2019 VA examination found left knee flexion to 140 degrees. In May 2021 the Veteran's left knee flexion was limited to 60 degrees after repeated use over time and during flare-ups. A June 2021 addendum examination revealed left knee flexion limited to 60 degrees for weight bearing and non-weight bearing, and active and passive range of motion. The Board has considered the Veteran's reported impairment of function, such as pain, and has considered additional limitations of motion due to pain. Even considering additional limitation of motion or function of the left knee due to pain or other symptoms such as weakness, fatigability, weakness, or incoordination (see 38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca), the evidence does not show that the left knee strain, limitation of flexion, more nearly approximate the criteria for any higher rating for any period on appeal. Even taking into account the DeLuca factors, there is no objective evidence of flexion limited to 30 degrees or less at any time during the period on appeal that would give rise to an evaluation of more than 10 percent under DC 5260. Additionally, there is also no evidence of ankylosis (DC 5256), dislocated semilunar cartilage (DC 5258) and genu recurvatum (DC 5263). As such a rating higher than 10 percent is not warranted for left knee strain, limitation of flexion, at any point during the period on appeal. 2. Evaluation in excess of 20 percent for left knee strain, limitation of extension, from September 29, 2015 to June 10, 2016 3. Evaluation in excess of 10 percent for left knee strain, limitation of extension, from September 20, 2018 to May 16, 2021 4. Evaluation in excess of 50 percent for left knee strain, limitation of extension, from May 17, 2021 The Veteran is currently service connected for left knee strain, limitation of extension under DC 5261. Limitation of extension of a leg warrants a 10 percent evaluation when it is limited to 10 degrees, a 20 percent evaluation when it is limited to 15 degrees, a 30 percent evaluation when it is limited to 20 degrees, a 40 percent evaluation when it is limited to 30 degrees, and a 50 percent evaluation when it is limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Extension is measured from 140 to 0 degrees. As previously noted, the Veteran was afforded multiple VA examinations during the period on appeal. In September 2015, a VA examiner determined the Veteran's initial left knee extension was limited to 10 degrees and to 15 degrees after observed repetitive use. In June 2016, the VA examiner found the Veteran's left knee extension was full, to 0 degrees. An October 2017 VA examination showed full extension to 0 degrees. A September 2018 examination revealed extension to 10 degrees. An October 2019 VA examination found full left knee extension to 0 degrees. In May 2021 the Veteran's initial left knee extension endpoint was 10 degrees and was limited to 60 degrees after repeated use over time and during flare-ups. A June 2021 addendum examination revealed left knee extension limited to 10 degrees for non-weight bearing active and passive range of motion and 20 degrees for weight bearing active and passive range of motion. The evidence of record does not support a rating in excess of 20 percent for left knee strain, limitation of extension form September 29, 2015 to June 10, 2016; in excess of 10 percent from September 20, 2018 to May 16, 2021; and in excess of 50 percent after May 17, 2021. Here, for the period from September 19, 205, to June 11, 2016, the Veteran's left knee extension was limited to, at worst, 15 degrees after repetitive use. This warrants no more than the 20 percent rating assigned for that time. For the period from September 20, 2018 to May 16, 2021, the Veteran's left leg extension was limited to no worse than 10 degrees; this warrants no more than the 10 percent assigned for that period. Finally, the Board finds that a rating in excess of 50 percent as of May 17, 2021, is not warranted. As the maximum schedular rating of 50 percent for the limitation of extension of the knee under DC 5261 has already been assigned, a higher schedular rating is not available for this period. In sum, the Veteran's claim for higher ratings for left knee strain, limitation of extension must be denied. See Sabonis v. Brown, 9 Vet. App. 426, 430 (1994). 5. Evaluation in excess of 10 percent for left knee recurrent subluxation (instability) from May 15, 2009 to February 6, 2021 6. Evaluation in excess of 20 percent for left knee recurrent subluxation (instability) from February 7, 2021 The Veteran is currently service connected for left knee recurrent subluxation (instability) under DC 5257. The Veteran was afforded multiple VA examinations during the period on appeal. In a March 2009 VA examination, the Veteran denied instability. A November 2009 VA examination revealed the Veteran endorsed instability and wore a knee brace to stabilize her knee. In September 2015, a VA examiner determined the Veteran experienced moderate recurrent patellar dislocation, slight recurrent subluxation, recurrent effusion, and regularly used a knee brace. In June 2016, the VA examiner found the Veteran did not experience any joint instability or recurrent subluxation. An October 2017 VA examination showed severe recurrent subluxation and severe recurrent patellar dislocation. A September 2018 examination revealed a history of slight lateral instability and severe recurrent patellar dislocation. The Veteran endorsed constant use of a brace and occasional cane use. An October 2019 VA examination found slight recurrent subluxation, slight lateral instability, and slight recurrent patellar dislocation along with occasional knee brace use. In May 2021, the found the Veteran experienced recurrent subluxation, recurrent patellar instability and dislocation, and a partial ligament tear. The Veteran also endorsed using a knee brace and a cane. Reviewing the evidence, the Board finds that the overall disability picture for the Veteran's left knee disability does not more closely approximate a higher rating under DC 5257. The Board finds the evidence most nearly approximates a 10 percent, but no higher rating for the period of May 15, 2009 to February 6, 2021 and 20 percent, but no higher, rating from February 7, 2021. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Here, the Veteran's instability and subluxation were noted to be no more than slight for the period prior to February 7, 2021, including as documented by multiple VA examiners. Additionally, on two occasions during this period she specifically reported experiencing no instability or subluxation in the knee. The Board thus finds that the evidence overall does not support a finding of instability or subluxation in the knee that was more than slight for the period prior to February 7, 2021. In so finding, the Board acknowledges the October 2017 VA examination recording severe subluxation but finds that this level of severity is not substantiated by the weight of the evidence of record, which overall does not support that the Veteran experienced consistent severe, or even moderate, instability in the knee for this period. In May 2021, she was again found to have recurrent subluxation and patellar instability and reported using a brace and a cane. The Board finds this level of severity to approximate most closely a moderate level of severity; thus, it is properly compensated by the 20 percent rating currently assigned. In sum, higher ratings are not warranted under DC 5257. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Javed, Associate 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.