Citation Nr: 21072998
Decision Date: 12/07/21	Archive Date: 12/07/21

DOCKET NO. 17-35 125
DATE: December 7, 2021

ORDER

Throughout the entire period on appeal, entitlement to an initial 20 percent rating for lateral instability of the right knee, but no higher, is granted, subject to the laws and regulations governing the payment of monetary benefits.

Throughout the entire period on appeal, entitlement to a rating in excess of 10 percent for degenerative joint disease of the right knee with limitation of motion is denied.

FINDING OF FACT

Throughout the entire period on appeal, the Veteran's right knee disability characterized as ligament sprain of the right knee with degenerative joint disease was not manifested by limitation of flexion to 30 degrees, limitation of extension to 15 degrees or ankylosis, or severe instability.

CONCLUSIONS OF LAW

1. Throughout the entire period on appeal, the criteria for an initial 20 percent rating for lateral instability of the right knee, but no higher, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257.

2. Throughout the entire period on appeal, the criteria for a disability rating in excess of 10 percent for degenerative joint disease of the right knee with limitation of motion are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5010-5260.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served in the United States Army from June 1976 to June 1979.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) rating decision dated in August 2013.

In an August 2019 decision, the Board denied a claim of entitlement to an initial disability rating in excess of 10 percent for right knee arthritis.

The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In April 2020, pursuant to a Joint Motion for Remand, the Court vacated the August 2019 decision and remanded the matter to the Board for action consistent with the Joint Motion.

In December 2020, the Board remanded the appeal to the AOJ for additional development.

In July 2021, the matter was returned to the Board for further appellate action, at which time, the issues were again remanded to the AOJ for additional development.

This case has now been returned to the Board for further appellate action.

On remand, and in a March 2021 rating decision, the AOJ granted service connection for right knee instability with degenerative arthritis with a 10 percent rating effective February 5, 2021. Because the increase in evaluation of the Veteran's right knee disability does not represent the maximum evaluation available for the condition, the Veteran's claim remained in appellate status. See AB v. Brown, 6 Vet. App. 35, 38 (1993).

Increased Rating

1. Entitlement to a rating in excess of 10 percent for degenerative arthritis of the right knee

2. Entitlement to an initial rating in excess of 10 percent for instability of the right knee

Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id.

In a claim for a higher original rating after an initial award of service connection, all the evidence submitted in support of the Veteran's claim is to be considered. See Fenderson v. West, 12 Vet. App. 119, 127 (1999). Although the Veteran's entire history is reviewed when assigning a disability evaluation, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994), see also 38 C.F.R. § 4.1.

The Veteran seeks an increased rating for his right knee disability, which is rated under the schedule of ratings for the musculoskeletal system, Diagnostic Codes 5010-5260 and 5010-5257. 38 C.F.R. § 4.71a. Diagnostic Code 5010 provides ratings for post-traumatic arthritis; Diagnostic Code 5260 provides ratings for limitation of flexion of the leg; and Diagnostic Code 5257 provides ratings for recurrent instability and other knee impairments.  See 38 C.F.R. § 4.27. 

For reasons outlined below, and resolving all reasonable doubt in favor of the Veteran, lateral instability of his right knee warrants an initial 20 percent rating, but no higher, throughout the entire period on appeal; and his degenerative joint disease with limitation of motion does not warrant a rating in excess of 10 percent at any point during the period on appeal.

During the course of this appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended, effective February 7, 2021. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (codified at 38 C.F.R. § 4.71a). These amendments revised certain diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. The Board will consider the Veteran's claims under the old criteria prior to February 7, 2021, and both the old and new rating criteria from February 7, 2021, applying whichever is more favorable to the Veteran. See 38 U.S.C. § 5110(g). 

Under the former criteria in effect prior to February 7, 2021, Diagnostic Code 5010 provides that arthritis due to trauma is to be rated as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5010 (2020). The revised version of Diagnostic Code 5010 provides that post-traumatic arthritis is rated as limitation of motion, dislocation, or other specified instability under the affected joint. If there are 2 or more joints affected, each rating shall be combined in accordance with 38 C.F.R. § 4.25. Under the amendment, Diagnostic Code 5002 also was renamed from rheumatoid arthritis to multi-joint arthritis to consider all systemic arthritis (except post-traumatic and gout).

The rating criteria for Diagnostic Code 5003, which provides rating for degenerative arthritis, was not revised other than to clarify that Diagnostic Code 5003 pertains to degenerative arthritis other than post-traumatic. Formerly, this Code applied to arthritis, degenerative (hypertrophic or osteoarthritis). Under both the former and current criteria, Diagnostic Code 5003, degenerative arthritis established by x-ray findings is to be rated based on limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When the limitation of motion of the specific joint or joints involved is non-compensable (0 percent rating) under the appropriate diagnostic codes, a 10 percent evaluation is assignable to each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2020).

In the absence of limitation of motion, a 10 percent rating is assigned for x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, and a 20 percent rating is assigned for x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. Note (1) provides that the 20 percent and 10 percent ratings based on x-ray findings, above, will not be combined with ratings based on limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003.

The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, with or without degenerative arthritis, it is the intention to recognize painful, unstable, or mal-aligned 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).

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).

In Correia v. McDonald, 28 Vet. App. 158, 169-170 (2016), the Court clarified the additional requirements that VA examiners should address when assessing musculoskeletal disabilities, holding specifically, that the joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint.

In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must provide opinions regarding flare-ups based upon estimates derived from information procured from relevant sources, including lay statements, when a flare-up is not observable at the time of examination.

A review of the record reveals that, while the most recent VA examinations in October 2017, May 2018 and February 2021 satisfy the requirements of Correia, the prior VA examinations in August 2013 and January 2015 do not satisfy the requirements of Correia. Additionally, while the most recent VA examination in February 2021 satisfies the requirements of Sharp, the prior VA examinations in August 2013, January 2015, October 2017, and May 2018 do not satisfy the requirements of Sharp. Nevertheless, the Board finds that a remand to satisfy the requirements of Correia and Sharp is not warranted here, since remanding for another VA examination would not remedy the inadequacies of the evidence prior to February 2021, and there is adequate evidence of record to address the guidance in those cases. For these reasons, the Board finds that VA examinations are in substantial compliance with applicable law and regulations, and that there is no prejudice to the Veteran in proceeding to a decision without a remand under the circumstances.

Disabilities of the knee are rated under Diagnostic Codes 5256 to 5263. 38 C.F.R. § 4.71a.

Diagnostic Code 5260 provides that a 20 percent rating is warranted for flexion limited to 30 degrees; and a 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a.

Diagnostic Code 5261 provides that a 10 percent rating is warranted for extension limited to 10 degrees; a 20 percent rating is warranted for extension limited to 15 degrees; a 30 percent rating is warranted for extension limited to 20 degrees; a 40 percent rating is warranted for extension limited to 30 degrees; and a 50 percent rating is warranted for extension limited to 50 degrees. 38 C.F.R. § 4.71a.

For comparison, normal range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion. See 38 C.F.R. § 4.71, Plate II.

Under Diagnostic Code 5256, ankylosis of the knee in a favorable angle in full extension, or in slight flexion between 0 and 10 degrees warrants a 30 percent rating. Ankylosis of the knee in flexion between 10 and 20 degrees warrants a 40 percent rating. Ankylosis of the knee in flexion between 20 and 45 degrees warrants a 50 percent rating. Extremely unfavorable ankylosis of the knee, in flexion at an angle of 45 degrees or more warrants a 60 percent rating. 38 C.F.R. § 4.71a.

The Board has considered and relied on lay testimony and statements of record regarding the severity of the Veteran's right knee disability in determining the appropriate disability rating under the benefit-of-the-doubt doctrine. 38 C.F.R. §§ 4.3, 4.7.

The Veteran's spouse has stated that throughout the course of their marriage, the Veteran has suffered from chronic knee and leg problems, which included pain and limping. She stated that the Veteran repeatedly sought treatment; however, he continued to have pain and limping due to his right knee disability. In addition, the Veteran treated his symptoms with over-the-counter (OTC) medication and had been prescribed anti-inflammatory and pain medications. See August 2013 Statement.

The Veteran has stated that he consistently has had right knee pain and swelling. He asserted that the January 2015 VA examination inaccurately measured the range of motion of his right knee and stated that the amount of medication he took and the amount of rest or activity he had, would impact the amount of pain, swelling, and degrees of flexibility of his right knee. See July 2017 Correspondence.

Initially, the Board notes that the Veteran's right knee disability does not reflect findings of ankylosis at any time during the pendency of the appeal. See January 2015, October 2017, May 2018, February 2021 VA examinations. 38 C.F.R. § 4.71a, General Rating. The medical evidence of record clearly shows that the Veteran's right knee is not ankylosed at any level. Although the Veteran's right knee does manifest in some limitation of motion from pain and stiffness, it is not in a fixed position without motion at any degree or angle or manifested by the functional equivalent thereof, nor does the Veteran contend otherwise. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202 (1995); Burton v. Shinseki, 25 Vet. App. 1, 5 (2011).

VA examinations indicate that the Veteran had limitation of flexion of the right knee no worse than 75 degrees with pain, and limitation of extension no worse than 0 degrees with pain. See August 2013 VA examination (at worst flexion to 75 degrees and extension to 0 degrees after repetitive use testing). See also January 2015 VA examination (at worst flexion to 100 degrees with pain at 80 degrees and extension to 0 degrees with pain on active range of motion testing (ROM)); October 2017 VA examination (at worst flexion to 80 degrees and extension to 0 degrees with pain on active ROM testing); May 2018 VA examination (at worst flexion to 140 degrees and extension to 0 degrees with pain on active and passive ROM); February 2021 VA examination (at worst estimated flexion to 80 degrees with pain and extension to 0 degrees with pain during flareups).

Based on the evidence as outlined above, the Veteran's right knee disability does not warrant a rating in excess of 10 percent for the entire period on appeal under Diagnostic Codes 5260 because the evidence of record does not reflect findings of limitation of flexion to 30 degrees, the requirement for a 20 percent rating. In addition, the Veteran's right knee disability does not warrant an additional 10 percent rating under Diagnostic Code 5261, because the evidence of record does not reflect findings of limitation of extension to 10 degrees, the requirement for a separate 10 percent rating. For the entire period on appeal, symptoms of the Veteran's right knee disability were manifested to at worst, limitation of flexion to 75 degrees with pain; and limitation of extension to 0 degrees with pain.

VA examinations and medical evidence of record indicate that the Veteran had right knee degenerative joint disease. See August 2013, January 2015, October 2017, February 2021 VA examinations (degenerative or traumatic arthritis); January 2015 VA examination (degenerative/traumatic arthritis); see also December 2012 VA treatment record (evaluator noted x-ray revealed progression of degenerative arthritis in right knee, osteophytes seen along the margins of the patella and tibial spines of right knee, and moderate joint effusion); August 2013 private treatment record (evaluator noted x-ray revealed mild degenerative joint disease with small loose calcific body within the mid-knee joint); December 2015 private treatment record (evaluator noted x-ray revealed varus deformity, decreased medial joint space, subchondral sclerosis, osteophyte formation, loss of joint space in patellofemoral and tibiofibular.); but see May 2018 VA examination (examiner indicated that there were no prior imaging studies).

The VA examinations indicate that the Veteran's right knee disability caused functional loss. The May 2018 examiner noted that the Veteran had to limit his physical activity due to his chronic knee pain. The January 2015 VA examiner noted that the Veteran reported right knee pain, with stiffness, an occasional feeling of giving way, swelling, and clicking or popping with pain, and that he would have stiffness with prolonged sitting. The February 2021 VA examiner noted that the Veteran also reported that if he stood too long, his knees would buckle. The August 2013, October 2017, and February 2021 VA examiner's opined that the Veteran's right knee disability impacted his ability to work. But see January 2015 VA examination (no occupational impairment). The August 2013 examiner opined that the Veteran could walk 30 yards at a time, 100 feet during an 8-hour day, sit or stand for an hour at one time, and sit or stand for 2 hours during an 8-hour day. The January 2015 VA examiner opined that the Veteran was limited to walking a quarter or half a mile at one time and was limited to standing 30 minutes at one time. The October 2017 VA examiner opined that the Veteran's right knee disability caused functional loss; and noted that the Veteran reported that he had difficulty walking, tying his shoes, or walking up and down stairs. The October 2017 and February 2021 VA examiners opined that the Veteran's right knee disability impaired his ability to perform occupational tasks requiring repetitive kneeling, climbing, crawling, squatting, stair or ladder climbing, or prolonged standing and walking. The May 2018 VA examiner also noted that the Veteran reported that he could not drive a school bus because of knee pain.

The Veteran reported that he had flare-ups of pain and swelling several times a week with prolonged walking. See October 2017 VA examination. See also January 2015 VA examination. The Veteran also reported flare-ups of moderate pain after long periods of sitting too long or during cold weather. See May 2018 and February 2021 VA examinations; but see August 2013 VA examination (Veteran did not report flare-ups).

VA examinations indicate that pain, fatigability, pain on movement, and weakness significantly limited functional ability during flare-ups and with repeated use overtime. See February 2021 and October 2017 VA examinations; but see August 2013, January 2015, May 2018 VA examinations. VA examinations also indicated that the Veteran had pain on weight-bearing, non-weight bearing, on active motion, and passive motion. See January 2015, October 2017, February 2021 VA examinations. There was objective evidence of mild tenderness to palpation of anterior, medial and lateral joint. See August 2013, January 2015, October 2017 VA examinations. But see May 2018 and February 2021 VA examinations. There was also objective evidence of crepitus. See January 2015, October 2017, February 2021 VA examinations; but see May 2018 VA examination. VA examinations indicate that the Veteran had at worst active movement against gravity without muscle atrophy. See May 2018 VA examination. See also October 2017 VA examination; but see January 2015, February 2021 VA examinations. Finally, VA examinations indicated that the Veteran also had less movement than normal, pain on movement, disturbance of locomotion, and interference with sitting, standing and weight-bearing due to his right knee disability. See August 2013, January 2015, October 2017 VA examinations, but see May 2018 and February 2021 VA examinations.

Based on the evidence as outlined above, the Veteran's right knee disability does not warrant a rating in excess of 10 percent for the entire period on appeal for limitation of motion under Diagnostic Code 5260, or a compensable rating for the entire period on appeal under Diagnostic Code 5261.

VA examinations and treatment records during this appeal period have reflected limited and painful, albeit not compensable, motion. The Board notes that the Veteran's right knee disability is productive of additional functional limitation beyond what is reflected in his range of motion measurements, including reports of pain, fatigability, pain on movement, and weakness during flare-ups and with repeated use overtime. See February 2021 and October 2017 VA examinations; but see August 2013, January 2015, May 2018 VA examinations.

When there is "no actual or compensable limitation of motion," compensation for functional limitation in the form of pain is limited to a single 10 percent disability rating per joint or joint group. See Mitchell, supra. The Veteran's symptom of chronic pain, fatigability, pain on movement, and weakness are already contemplated in his 10 percent rating under Diagnostic Code 5003-5260. The Veteran cannot receive another 10 percent rating for pain under any other code contemplating limited and/or painful motion as this would result in compensating the Veteran twice for the same manifestation of his right knee disability. See 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). See 38 C.F.R. § 4.71a; Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991).

The Board has considered whether the Veteran is entitled to a higher rating under Diagnostic Code 5257, which provide ratings for recurrent subluxation and lateral instability of the knee; and whether the Veteran is entitled to an additional rating under Diagnostic Codes 5258 and 5259.

Separate ratings can be assigned for the above knee disabilities (Diagnostic Codes 5257, 5258, 5259, 5260, and 5261) when none of the symptomatology overlaps and the separate rating is based on additional disabling symptomatology. See VAOPGCPREC 23-97, 62 Fed. Reg. 63,603 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,703 (1998); VAOPGCPREC 9-2004; 69 Fed. Reg. 59,988 (2004); Lyles v. Shulkin, 29 Vet. App. 107 (2017).

Prior to February 7, 2021, recurrent subluxation and lateral instability of the knee warranted a 10, 20, or 30 percent rating if slight, moderate, or severe, respectively under Diagnostic Code 5257. 38 C.F.R. § 4.71a. The terms "slight," "moderate," and "severe" were not defined.

Under the amended diagnostic code, a 10 percent rating is warranted where a sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causes persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. Alternatively, 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. 85 Fed. Reg. at 76463.

A 20 percent rating is warranted for: (a) 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; or (b) an 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. Alternatively, 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 a brace, cane, or walker. Id.

A maximum 30 percent rating is warranted for an unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device and bracing for ambulation. Alternatively, 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. Id.

Patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Id. at Note (1) (2020). A surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). Id. at Note (2) (2020).

Diagnostic Codes 5258 and 5259, which provide ratings for semilunar cartilage conditions, remained the same under the revised criteria. When the knee disability affects the meniscus, a 20 percent rating is warranted when there is dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. 38 C.F.R. § 4.71a, Diagnostic Code 5258. A 10 percent rating is warranted when there has been removal of semilunar cartilage (e.g., meniscectomy) and current residual symptoms. 38 C.F.R. § 4.71a, Diagnostic Code 5259.

As noted, the August 2013 VA examination reflects a diagnosis of a ligament sprain of the right knee; and the December 2012 VA treatment record and the medical evidence of record indicate that the Veteran had moderate joint effusion of the right knee. See also October 2017 VA examination.

The Board has also considered the subjective evidence in this case as to whether a higher separate rating is warranted for instability of subluxation of the right knee. See English v. Wilkie, 30 Vet. App. 347 (2018). As noted, the Veteran has stated that he consistently has had right knee swelling, which was impacted by the amount of medication he took and the amount of rest or activity he had. See July 2017 Correspondence. The January 2015 VA examiner noted that the Veteran reported stiffness, an occasional feeling of giving way, swelling, and clicking or popping with pain. The February 2021 VA examiner noted that the Veteran also reported that if he stood too long, his knees would buckle; and he reported that he had flare-ups of swelling several times a week with prolonged walking. See October 2017 VA examination, see also January 2015 VA examination.

The February 2021 VA examiner noted that the Veteran had medial and lateral instability of the right knee; but see August 2013, January 2015, October 2017, May 2018 VA examinations; and the October 2017 VA examiner noted that the Veteran had a history of recurrent effusion based upon imaging and the Veteran's report; but see May 2018 VA examination.

The May 2018 VA examiner noted that the Veteran wore knee braces due to his chronic knee pain. The August 2013 VA examiner noted that the Veteran regularly used a brace due to his knee disability. See also January 2015 VA examination. The October 2017 VA examiner noted that the Veteran regularly used a cane for his bilateral knee condition, and he also used a bilateral knee brace regularly. The May 2018 VA examiner noted that the Veteran regularly used a brace for knee degenerative joint disease and pain. The February 2021 VA examiner noted that the Veteran constantly used a brace for his knee condition; and noted that the Veteran's brace was required or prescribed by a medical provider for ambulation.

Although, the Board notes that there is some conflicting medical evidence of whether the Veteran's right knee has lateral instability, the February 2021 VA examination established objective evidence of recurrent lateral instability of the Veteran's right knee requiring a knee brace. The Veteran's subjective reports of instability may also be considered in that regard. 

Resolving all reasonable doubt in favor of the Veteran, the Board finds that his right knee disability warrants a rating of 20 percent, but no higher, for the entire period on appeal under the former criteria for Diagnostic Code 5257. See August 2013, October 2017, February 2021 VA examinations. Specifically, the Board finds that the Veteran's right knee disability warrants a 20 percent rating for moderate instability of the right knee under the former criteria for Diagnostic Code 5257.

The Board finds entitlement to a 30 percent rating is not warranted for the Veteran's right knee instability. The evidence of record does not support a finding that the Veteran has severe instability under the prior rating criteria for Diagnostic Code 5257; nor would a higher rating be in order under the revised version of Diagnostic Code 5257 as the evidence of record does not support a finding that the Veteran had unrepaired or failed repair of complete ligament tear causing persistent instability or surgical repair of the patellofemoral complex. See 38 C.F.R. § 4.71a, Diagnostic Code 5257.

The Board has also considered whether the Veteran is entitled to a separate rating for any meniscal dysfunction under Diagnostic Codes 5258 or 5259. However, while the August 2013 VA examination indicates that the Veteran had a meniscus condition of the right knee with frequent episodes of joint "locking" and frequent episodes of joint pain, numerous subsequent examinations conducted over the course of many years indicate that the Veteran's service-connected right knee disability does not include meniscal disability. See January 2015, October 2017, May 2018, and February 2021 VA examinations. As such, the 2013 examination appears to be an outlier.  As such, the Board finds that the Veteran's right knee disability does not warrant a separate 20 percent rating under Diagnostic Code 5258.

The Board has also considered whether the Veteran is entitled to a higher rating under Diagnostic Codes 5262, 5263, 5256, which provide ratings for impairment of the tibia or fibula, and genu recurvatum. See 38 C.F.R. § 4.71a. However, the Board notes that the evidence in this case does not reflect, and the Veteran does not allege he has had impairment of the tibia or fibula, or genu recurvatum at any time during the pendency of the appeal. As such, those diagnostic codes are not for application.

Resolving all reasonable doubt in favor the Veteran, and with consideration of the objective medical evidence as well as the subjective lay evidence, the Board finds that a 20 percent rating, but no higher, is warranted for instability of the right knee for the entire period on appeal. Based on the evidence as outlined above, the Board also finds that the Veteran's degenerative joint disease of the right knee with limitation of motion does not warrant a rating in excess of 10 percent at any point during the period on appeal. In reaching this decision, the Board has considered the benefit of the doubt doctrine. 38 U.S.C. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

 

 

S. L. Kennedy

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	G. Johnson

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.