Citation Nr: 21072554 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 16-18 090 DATE: December 3, 2021 ORDER From February 7, 2021, entitlement to an increased rating in excess of 20 percent for instability of the left knee is denied. From February 7, 2021, entitlement to an increased rating in excess of 10 percent for limitation of extension of the left knee is denied. From February 7, 2021, entitlement to a compensable rating for left knee scars is denied. FINDING OF FACT The Veteran's left knee instability is manifest by moderate instability. The Veteran's left knee exhibits painful motion, but no limitation on extension. The Veteran's left knee scars are not greater than 144 square inches, painful, or unstable. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for left knee instability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5003-5257. The criteria for a rating in excess of 10 percent for left knee limitation of extension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5003-5261. The criteria for a compensable disability rating for left knee scars have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7802. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 2007 to May 2010. This appeal comes before the Board of Veterans' Appeals (Board) from a November 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In March 2021, the Board remanded these matters for additional development. They have returned to the Board for further appellate review. As a preliminary matter, it is valuable to note that the Veteran has already been found to be 100 percent disabled by VA. The Veteran currently has a 100 percent combined disability evaluation and has been in receipt of special monthly compensation effective June 12, 2020. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Separate higher or lower compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to 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. The assignment of a particular diagnostic code to evaluate a disability is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis, and demonstrated symptomatology. As to musculoskeletal disabilities, the intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Therefore, with or without degenerative arthritis, it is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59; see Burton v. Shinseki, 25 Vet. App. 1, 5 (2011) (holding that the provisions of 38 C.F.R. § 4.59 are not limited to disabilities involving arthritis). Moreover, when evaluating musculoskeletal disabilities, VA may, in addition to applying the schedular criteria, assign a higher disability rating when the evidence demonstrates functional loss due to limited or excessive movement, pain, weakness, excessive fatigability, or incoordination, to include during flare-ups and with repeated use, if those factors are not considered in the rating criteria. See 38 C.F.R. § § 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202 (1995); Burton, 25 Vet. App. at 5. Nonetheless, a disability rating higher than the minimum compensable rating is not assignable under any diagnostic code relating to range of motion where pain does not cause a compensable functional loss. Rather, the "pain must affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance," as defined in 38 C.F.R. § 4.40, before a higher rating may be assigned. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011) (noting that while "pain may cause a functional loss, pain itself does not constitute a functional loss," and, is therefore, not grounds for entitlement to a higher disability rating). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). 1. From February 7, 2021, entitlement to an increased rating in excess of 20 percent for a left knee disability 2. From February 7, 2021, entitlement to an increased rating in excess of 10 percent for limitation of extension of the left knee 3. From February 7, 2021, entitlement to a compensable rating for left knee scars The Veteran's left knee is currently rated 20 percent under Diagnostic Codes 5003-5257for instability, 10 percent under 5003-5261 for limitation of extension, and 0 percent under DC 7802 for left knee scars. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the rating assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. The Veteran generally contends he is entitled to higher ratings. As a preliminary matter, the Board notes that VA published a final rule amending its regulations on musculoskeletal disabilities, effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020); Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 85523, 85524 (Dec. 29, 2020). Therefore, the Board will consider the Veteran's claim under the new rating criteria. Diagnostic Code 5003 provides that degenerative arthritis that is established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When there is no limitation of motion of the specific joint or joints that involve degenerative arthritis, DC 5003 provides a 20 percent rating for degenerative arthritis with x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, and a 10 percent rating for degenerative arthritis with x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. Note (1) provides that the 20 percent and 10 percent ratings based on x-ray findings will not be combined with ratings based on limitation of motion. Note (2) provides that the 20 percent and 10 percent ratings based on x-ray findings, above, will not be utilized in rating conditions listed under DCs 5013 to 5024, inclusive. When there is some limitation of motion of the specific joint or joints involved that is noncompensable (0 percent) under the appropriate diagnostic codes, DC 5003 provides a rating of 10 percent for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. When there is limitation of motion of the specific joint or joints that is compensable (10 percent or higher) under the appropriate diagnostic codes, the compensable limitation of motion should be rated under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a. Under the amended version of DC 5257 for recurrent subluxation or instability, a 10 percent rating is warranted for a 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 a sprain, incomplete ligament tear, or complete ligament tear (unrepaired, failed repair, or repaired) causing persistent instability, and a medical provider prescribes a brace and/or assistive device 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 and bracing for ambulation. 38 C.F.R. § 4.71a (2021). Under the amended version of DC 5257, patellar instability warrants a 10 percent rating 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 when there is 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 walker. 38 C.F.R. § 4.71a (2021). The Veteran underwent a VA examination in July 2021. The VA examiner noted no recurrent subluxation or instability, no ligament tears or ligament tear repairs, no prescription devices to assist with ambulation and no patellar instability or repair of the knee for a patellar instability. The Veteran also reported no instability or subluxation. VA treatment records do not contradict the findings in the July 2021 VA examination. Based on the above, the Board finds that the medical evidence of record would support a noncompensable rating for instability of the left knee under DC 5257. There is no medical evidence of instability and the Veteran reported he did not experience instability. In addition, no degenerative or traumatic arthritis was noted after x-ray, therefore, the Veteran would not be entitled to higher rating under DC 5003. As such, the Board will not disturb the current 20 percent rating, and entitlement to a rating in excess of 20 percent for instability of the left knee is denied. The Veteran is currently rated 10 percent for limitation of extension of the left knee. Limitation of extension of the knee to 10 degrees warrant a 10 percent evaluation; 15 degrees warrants 20 percent; 20 degrees warrants 30 percent; 30 degrees warrants 40 percent; 45 degrees warrants 50 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5261. At the July 2021 VA examination, the Veteran had normal extension including during flare-ups, however painful motion on extension was noted. No degenerative or traumatic arthritis was noted after x-ray. VA treatment records do not contradict the findings of the July 2021 VA examiner. The Board finds that as the Veteran's extension was not limited, a rating in excess of 10 percent is not warranted. Instead, the 10 percent rating for painful motion on extension is appropriate. Finally, the Veteran is currently rated 0 percent for his left knee scars under DC 7802. Diagnostic Code 7801 provides that scars other than on the head, face, or neck that are deep, nonlinear, and cover an area of at least 6 square inches (39 square (sq.) centimeters (cm.)) warrant a compensable evaluation. Id., Diagnostic Code 7801. A deep scar is one associated with underlying soft tissue damage. Id. Here, there are no scars with underlying soft tissue damage. Hence, Diagnostic Code 7801 is not for application. Diagnostic Code 7802 provides that scars, other than on the head, face, or neck, that are superficial and nonlinear, and cover an area of at least 144 square inches (929 sq. cm.) warrant a compensable evaluation. Id, Diagnostic Code 7802. A superficial scar is one not associated with underlying soft tissue damage. Id. In this case, the Veteran's scars do not cover a surface area of 144 square inches (929 sq. cm) or greater; therefore, a compensable rating is not available under Diagnostic Code 7802. Diagnostic Code 7804 provides a 10 percent rating for one or two scars that are unstable or painful, a 20 percent rating is warranted for three or four scars that are unstable or painful and a maximum 30 percent rating warranted for five or more scars that are either unstable or painful. The July 2021 VA examiner found that none of the Veteran's scars are unstable or painful. Therefore, a rating Diagnostic Code 7804 is not warranted. Therefore, based on the evidence of record, the Veteran is not entitled to a compensable rating for his left knee scars. The Board has also considered whether separate or increased evaluations are warranted under any other diagnostic codes pertaining to knee disabilities that would afford the Veteran higher ratings. Neither the Veteran nor his representative has identified any other rating criteria that would provide a higher rating or an additional rating. However, the potential applications of various provisions of Title 38 of the Code of Federal Regulations (2016) have been considered as required by the holding of the Court in Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Here, there is no evidence of limitation of flexion under DC 5260, ankylosis of the knee to warrant a rating under DC 5256; no evidence of dislocated semilunar cartilage with frequent locking pain and effusion to warrant a rating under DC 5258; no evidence of removal of semilunar cartilage to warrant a rating under DC 5259; and no evidence of malunion or nonunion of the tibia and fibula to warrant a rating under DC 5262 for impairment of the tibia. Accordingly, the Board finds that the preponderance of the evidence shows that the Veteran's left knee disability is not manifested by ankylosis; dislocated semilunar cartilage with frequent locking pain and effusion; removal of semilunar cartilage; malunion or nonunion of the tibia and fibula; or limitation of flexion. Therefore, from February 7, 2021, entitlement to an increased rating in excess of 20 percent for instability of the left knee, an increased rating in excess of 10 precent for limitation of extension of the left knee, and a compensable rating for a left knee scar is denied. (Continued on the next page) Regarding all the above, the Board has considered the applicability of the benefit of the doubt doctrine. Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt doctrine does not apply. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57(1990). John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Holcombe, 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.