Citation Nr: 21073721 Decision Date: 12/10/21 Archive Date: 12/10/21 DOCKET NO. 16-14 583 DATE: December 10, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for a service-connected left knee disability is denied. FINDING OF FACT The preponderance of the evidence shows that the Veteran's left knee disability is not manifested by ankylosis; symptomatic removal of semilunar cartilage; dislocated semilunar cartilage; malunion or nonunion of the tibia and fibula; genu recurvatum; or limitation of flexion to 30 degrees or limitation of extension to 15 degrees. CONCLUSION OF LAW The criteria for entitlement to a disability rating in excess of 10 percent for a service-connected left knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a. DC 5260. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from February 2008 to February 2012. This matter was previously before the Board in February 2020, at which time it was remanded to the Department of Veterans Affairs (VA) Regional Office (RO) for further development. The RO most recently readjudicated the appeal in an August 2021 supplemental statement of the case. The Board finds that VA has substantially complied with the February 2020 Board remand. In an August 2021 rating decision, the RO granted entitlement to SMC based on 38 U.S.C. § 1114, subsection (s) and 38 C.F.R. § 3.350(i) on account of generalized anxiety and panic disorder rated 100 percent and additional service-connected disabilities of left knee osteoarthritis status post anterior cruciate ligament (ACL) tear repair with scar and obstructive sleep apnea, independently ratable at 60 percent or more. The decision assigned an effective date of October 22, 2013, the earliest date available for the benefit. Accordingly, the Board finds that the Veteran's appeal as to this issue has been rendered moot, as the benefits sought on appeal have been fully granted. Notwithstanding the 100% and SMC finding, the Board must address the final issue before the Board. Entitlement to a disability rating in excess of 10 percent for a service-connected left knee disability The Veteran contends that his service-connected left disorder is more severely disabling than represented by his currently assigned 10 percent disability rating. In this regard, 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 a Diagnostic Code. 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 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 current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). 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, 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. Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Veteran's left knee disorder is rated as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5260. The Board notes that during the pendency of the appeal VA amended some of its' criteria for rating musculoskeletal disabilities effective February 7, 2021. See 85 Fed Reg 76453 (November 30, 2020); 85 Fed Reg 85523 (December 29, 2020); 86 Fed Reg 8142 (February 4, 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 cannot apply a current regulation prior to its effective date unless the regulation explicitly provides otherwise. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). In this case, the regulation does not provide for retroactive application. 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a). Moreover, the Board finds that none of the amendments change how this Veteran's left and right knee disorders are rated. See Owens, supra. The Board has reached this conclusion because the specific rating criteria were not amended or because the Veteran's disabilities are not ratable under the amended criteria. 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). These amendments revised select 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. However, the Board finds that none of the ways the Veteran's bilateral knee disabilities are rated are impacted by this change in law except Diagnostic Code 5010 is now rated under Diagnostic Code 5003. Moreover, while the new criteria materially changed Diagnostic Code 5257 and Diagnostic Code 5262, as explained below the Veteran's disabilities are not manifested by subluxation, instability, malunion/nonunion of the tibia/fibula. See Owens, supra. Therefore, the Board finds that the Veteran will not be prejudiced by adjudicating his appeal at this time. Under the old 38 C.F.R. § 4.71a, Diagnostic Code 5010 traumatic arthritis is rated under Diagnostic Code 5003 as degenerative arthritis. Under new and old 38 C.F.R. § 4.71a, Diagnostic Code 5003 degenerative arthritis 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, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion. A rating of 20 percent is assigned for each such major joint or group of minor joints, with occasional incapacitating exacerbations, affected by limitation of motion. 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. Under 38 C.F.R. § 4.71a, Diagnostic Code 5256, ankylosis at a favorable angle in full extension or in slight flexion between 0 degrees and 10 degrees warrants a 30 percent rating; ankylosis with flexion between 10 degrees and 20 degrees warrants a 40 rating; ankylosis with flexion between 20 degrees and 45 degrees warrants a 50 rating; and extremely unfavorable ankylosis (flexion at an angle of 45 degrees or more) warrants a 60 percent rating. Under the old 38 C.F.R. § 4.71a, Diagnostic Code 5257, slight recurrent subluxation or lateral instability will be rated as 10 percent disabling. Moderate recurrent subluxation or lateral instability will be rated as 20 percent disabling. Severe recurrent subluxation or lateral instability warrants a 30 percent rating. The terms "mild," "moderate," "moderately severe" and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The use of terminology such as "mild" or "moderate" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Under new 38 C.F.R. § 4.71a, Diagnostic Code 5257, 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 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) 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 severe 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. Id. In addition to the above, the amended rating criteria under Diagnostic Code 5257 also provides ratings specific to patellar instability, a diagnosed condition involving the patellofemoral complex with recurrent instability. A 10 percent rating is warranted for patellar 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 patellar 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 patellar instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. Id. For patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Id. at Note 1. Under 38 C.F.R. § 4.71a, Diagnostic Code 5258, dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint warrants a 20 percent rating. Under 38 C.F.R. § 4.71a, Diagnostic Code 5259, removal of the semilunar cartilage when symptomatic warrants a 10 percent rating. Under 38 C.F.R. § 4.71a, Diagnostic Code 5260, if flexion of the knee is limited to 45 degrees a 10 percent rating is in order. If flexion of the knee is limited to 30 degrees a 20 percent rating is in order. If flexion of the knee is limited to 15 degrees a 30 percent rating is in order. Under 38 C.F.R. § 4.71a, Diagnostic Code 5261, if extension of the knee is limited to 10 degrees a 10 percent rating is in order. If extension of the knee is limited to 15 degrees a 20 percent rating is in order. If extension of the knee is limited to 20 degrees a 30 percent rating is in order. If extension of the knee is limited to 30 degrees a 40 percent rating is in order. If extension of the knee is limited to 45 degrees a 50 percent rating is in order. Full range of motion of the knee is from 0 to 140 degrees. 38 C.F.R. § 4.71, Plate II. Under old 38 C.F.R. § 4.71a, Diagnostic Code 5262, impairment of the tibia and fibula with slight knee or ankle disability warrants a 10 percent rating; with moderate knee or ankle disability warrants a 20 percent rating; with marked knee or ankle disability warrants a 30 percent rating; and with nonunion (loose motion requiring brace) warrants a 40 percent rating. Under 38 C.F.R. § 4.71a, Diagnostic Code 5263, Genu recurvatum (acquired, traumatic, with weakness and insecurity in weight-bearing objectively demonstrated) warrants a 10 percent rating. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2016); DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court has clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Therefore, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis, and must be considered when raised by the claimant or when reasonably raised by the record. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Moreover, the United States Court of Appeals for Veterans Claims (Court) in Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (2016) held that the provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to the evaluation of musculoskeletal disabilities under Diagnostic Codes predicated on range of motion measurements. In Burton v. Shinseki, 25 Vet. App. 1 (2011), the Court held that 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. Furthermore, in Jones v. Shinseki, 26 Vet. App. 56, 61-63 (2012) the Court held that the Board may not deny entitlement to an increased rating on the basis of relief provided by medication when those effects are specifically contemplated by the rating criteria. In Esteban v. Brown, 6 Vet. App. 259, 261 (1994), that Court held that in cases where the record reflects that the appellant has multiple problems due to service-connected disability, it is possible for an appellant to have "separate and distinct manifestations" from the same injury, permitting separate disability ratings. The critical element is that none of the symptomatology for any of the conditions is duplicative or overlapping with the symptomatology of the other conditions. Id. In this regard, VA General Counsel has held that separate ratings may be assigned in cases where a service-connected knee disorder includes both a compensable limitation of flexion under Diagnostic Code 5260, and a compensable limitation of extension under Diagnostic Code 5261 provided that the degree of disability is compensable under each set of criteria. VAOPGCPREC 9-2004; 69 Fed. Reg. 59990 (2004). The basis for the opinion was a finding that a limitation in planes of movement were each compensable. Id. VA General Counsel has also held that separate ratings may be assigned in cases where the service-connected knee disorder includes both arthritis and instability, provided of course, that the degree of disability is compensable under each set of criteria. VAOPGCPREC 23-97 (July 1, 1997). Following the February 2020 Board remand, the Veteran underwent a VA examination of his left knee in August 2021 in which the examiner saw the Veteran in person and reviewed his record. The examiner diagnosed the Veteran with left knee osteoarthritis, residuals of a left knee ACL tear and repair and a left knee meniscal tear. The Veteran did not report flare-ups. The Veteran's left knee flexion was to 130 degrees with extension to 0 degrees with pain noted on examination that did not result in functional loss. There was evidence of pain with active motion but no objective evidence of crepitus. After repetitive use testing, there was no additional loss of range of motion. The examiner opined that repetitive use over time would not lead to additional loss of range of motion. Despite the Veteran's reports of occasional instability, joint stability testing found no recurrent subluxation or persistent instability of the left knee, no ligament tear, no assistive devices, and no recurrent patellar instability. The examiner opined the Veteran did not have ankylosis in the left knee. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for the Veteran's left knee disability. The Board finds that even when considering functional limitations due to pain with and without weight bearing and resistance in passive and active range of motion as well as during flare-ups and the other factors identified in 38 C.F.R. §§ 4.40, 4.45, 4.59 as well as the Court's holdings in Correia, Sharp, Mitchell, Burton, Southall-Norman, and DeLuca, and when considering the appellant's competent reports of his observable adverse symptomatology (see Davidson, supra), his functional losses do not equate to the criteria required for at least a 20 percent rating because flexion of the left and right knee is not limited to 30 degrees because it was 120 degrees or higher at all of his VA examinations. Therefore, the Board finds that the criteria for increased ratings for the left knee disorder due to lost flexion under Diagnostic Code 5260 have not been met. See 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.71a; Hart, supra; Fenderson, supra. Moreover, while the Veteran's treatment records document his complaints and treatment for right knee problems, the Board finds that above VA examiners ranges of motion are not contradicted by any other medical evidence of record because treatment records never document less flexion in either knee. 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.71a; Hart, supra; Fenderson, supra, Colvin, supra. 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. Here, there is no evidence of ankylosis of the knee to warrant a rating under Diagnostic Code 5256; no evidence of joint instability to warrant a rating under Diagnostic Code 5257; no evidence of malunion or nonunion of the tibia and fibula to warrant a rating under Diagnostic Code 5262 for impairment of the tibia, and no evidence of genu recurvatum to warrant a rating under Diagnostic Code 5263. Hence, the Board will not discuss these Diagnostic Codes any further. This does not suggest that the Veteran is having no problems with his left knee, simply that the current knee problem is being addressed by the current disability evaluation of the problem. The question is only the degree of the problem based on the multifaceted criteria cited above for knee problems. (Continued on the next page) In reaching all of the above conclusions, the Board has not overlooked the claims from the Veteran regarding his adverse symptomatology. See Davidson, supra. However, the Board finds the examiners opinions as to the Veteran's adverse symptomatology more probative than the lay claims from the appellant to the contrary even though his symptomatology is observable by a lay person because the examiners have medical training. See Black, supra. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board V. Woehlke 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.