Citation Nr: 21073804
Decision Date: 12/10/21	Archive Date: 12/10/21

DOCKET NO. 13-28 207A
DATE: December 10, 2021

ORDER

The reduction of a separate 10 percent rating for instability of the right knee effective December 21, 2015, was proper.  

Entitlement to a rating of 40 percent, but no higher, for limitation of extension of the left knee prior to April 14, 2014 is granted.

Entitlement to a rating in excess of 30 percent for status post left knee replacement since April 14, 2014 is denied, excluding the periods for which temporary total ratings pursuant to 38 C.F.R. § 4.30 have been established.

Entitlement to a rating in excess of 10 percent for instability of the left knee is denied.

Entitlement to a rating in excess of 40 percent, but no higher, for limitation of extension of the right knee prior to December 21, 2015, is granted.

Entitlement to a rating in excess of 10 percent for instability of the right knee prior to December 21, 2015, is denied.

Entitlement to an increased rating in excess of 10 percent for Wolff-Parkinson White syndrome is denied.  

FINDINGS OF FACT

1. The RO reduced the Veteran's separate 10 percent instability of the right knee in a March 2016 rating decision.  

2. However, the reduction was proper as the evidence fails to show the Veteran suffers from objective evidence of instability or subluxation either prior to or since December 21, 2015, and the evidence at the time of the reduction, demonstrated that the Veteran's right knee disability had materially improved, to include improvement in the ability to function under the ordinary conditions of life and work.

3. For the period prior to April 14, 2014, the Veteran's extension of the left knee has been limited to 35 degrees.  

4. Since April 14, 2014, the Veteran's left knee disability is manifested by decreased motion and pain, with flexion limited to, at most, 90 degrees, but there is no evidence of ankylosis at any point during the appeal, which results in an overall disability picture of intermediate degrees of residual weakness, pain, or limitation of motion.

5. The Veteran's left knee is characterized by slight instability.

6. For the period prior to December 21, 2015, the Veteran's extension of the right knee has been limited to 40 degrees.  

7. Prior to December 21, 2015, the Veteran's right knee is characterized by slight instability.

8. The evidence shows the Veteran's Wolff-Parkinson White syndrome is characterized by one to four episodes per year of paroxysmal atrial fibrillation.  There is no indication that he suffers from paroxysmal atrial fibrillation or other supraventricular tachycardia, with more than four episodes per year.

CONCLUSIONS OF LAW

1. The reduction of the separate 10 percent rating for instability of the right knee was proper.  38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.105(e), 3.344, 3.951(b)4.7, 4.71a; Diagnostic Code 5257.

2. For the period prior to April 14, 2014, the criteria for a rating of 40 percent for the left knee disability on the basis of limitation of extension, but no higher, have been met.  38 U.S.C. § 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5261.

3. Since April 14, 2014, the criteria for a rating in excess of 30 percent for the left knee disability have been met.  38 U.S.C. § 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5055.

4. The criteria for a rating in excess of 10 percent for instability of the left knee have been met.  38 U.S.C. § 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5257 (in effect prior to and since February 7, 2021).

5. For the period prior to December 21, 2015, the criteria for a rating of 40 percent for the right knee disability on the basis of limitation of extension, but no higher, have been met.  38 U.S.C. § 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5261.

6. For the period prior to December 21, 2015, the criteria for a rating in excess of 10 percent for instability of the right knee have been met.  38 U.S.C. § 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5257.

7. The criteria for a rating in excess of 10 percent for Wolff-Parkinson White have not been met.  38 U.S.C. §§1155, 5103, 5103A, 5107; 38 C.F.R. §§4.1, 4.2, 4.7, 4.104, Diagnostic Codes 7010.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from January 1980 to January 1984 and from September 1989 to January 1992.  

In September 2018, the Veteran testified in a videoconference hearing before the undersigned Veterans Law Judge of the Board.  A copy of the transcript has been associated with the claims file.  

In April 2019, the Board issued a decision denying the claims pertaining to the knees presently on appeal.  The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court) and, in a June 2020 Joint Motion for Partial Remand (JMPR), the claims were remanded to the Board by mutual agreement between the Secretary and the Veteran, on the basis that the Board failed to provide sufficient reasons and bases for the findings contained in the April 2019 decision.  The Board will specifically address each issue in turn below, including the reasons for the prior JMPR.  

With respect to the Wolff-Parkinson White syndrome increased rating claim, in February 2020, the Board denied entitlement to an increased rating for Wolff-Parkinson White syndrome in excess of 10 percent pursuant to Diagnostic Code 7010 for the period prior to June 28, 2016 and granted a higher rating of 30 percent under Diagnostic Code 7011 for the period from June 28, 2016. 

In a January 27, 2021 Order, pursuant to the January 21, 2021 Joint Motion for Partial Remand (JMPR), the United States Court of Appeals for Veterans Claims (Court) vacated the February 2020 Board decision to the extent that it denied a rating higher than 10 percent for Wolff-Parkinson White syndrome for the period prior to June 28, 2016, and remanded both claims back to the Board for further development. 

In June 2021, the Board remanded the Wolff-Parkinson White syndrome increased rating claim for development in accordance with the JMPR.  The requested development has been completed and the appeal is now returned before the Board. 

During the course of the appeal, in a rating decision, the Regional Office (RO) also separately granted service connection for valvular heart disease, and assigned a 30 percent rating effective June 27, 2016, and in excess of 60 percent from July 2, 2021, pursuant to Diagnostic Code 7000.

Propriety of Reduction

1. Right Knee Instability 

By way of procedural history, the Veteran was granted service connection for a right knee condition with recurrent subluxation and degenerative changes, which stemmed from his service-connected disability of the left knee in a February 1996 rating decision.  A subsequent January 2006 rating decision decreased the rating for the right knee to 0 percent, effective from April 1, 2006.  In a September 2009 Board decision, the Board determined the reduction was improper and restored the 10 percent rating for the right knee, effective from April 1, 2006.  

Thereafter, in relevant part, a March 2016 rating decision awarded the Veteran a temporary 100 percent rating following his total knee replacement, and assigned a 30 percent rating from February 1, 2017.  That same rating also noted the rating for instability of the right knee was 10 percent from January 2, 1996 to December 21, 2015.  The Veteran does not have a separately assigned rating for instability of the right knee after December 21, 2015.  

However, the Board notes that the Veteran's service connection of the right knee disability was not discontinued/severed.  Instead, the symptomatology changed and it was appropriately rated under a different diagnostic code.  "[S]ervice connection for a 'disability' is not severed simply because the situs of a disabilityor the [DC] associated with itis corrected to more accurately determine the benefit to which a veteran may be entitled for a service[-]connected disability."  Read v. Shinseki, 651 F.3d 1296, 1302 (Fed. Cir. 2011).

Nonetheless, a disability rating may be reduced.  However, the circumstances under which rating reductions can occur are specifically limited and are carefully circumscribed by regulations promulgated by the Secretary of VA.  Dofflemyer v. Derwinski, 2 Vet. App. 277, 280 (1992).  The procedural framework set forth in 38 C.F.R. § 3.105 (e) governing rating reductions is required to be followed by VA before it issues any final rating reduction.  See Brown v. Brown, 5 Vet. App. 413, 418 (1993).  When an RO reduces a rating without following the applicable regulations, the reduction is void ab initio.  Greyzck v. West, 12 Vet. App. 288, 292 (1999).

VA regulations provide that where a reduction in evaluation of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance is to be prepared setting forth all material facts and reasons.  38 C.F.R. § 3.105(e).  The beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor, and will be given 60 days for the presentation of additional evidence to show that compensation should be continued at the present level.  Unless otherwise provided in paragraph (i) of this section, if VA does not receive additional evidence within that period, it will take final rating action and reduce the award effective the last day of the month following 60 days from the date of notice to the beneficiary of the proposed reduction.  Id.  The beneficiary will also be informed that he or she will have an opportunity for a predetermination hearing.  38 C.F.R. § 3.105(i).

In cases where a rating has been in effect for five years or more, the rating agency must make reasonably certain that the improvement will be maintained under the conditions of ordinary life even if material improvement in the physical or mental condition is clearly reflected.  Kitchens v. Brown, 7 Vet. App. 320 (1995).  A rating that has been in effect for five years or more may not be reduced on the basis of only one examination in cases where the disability is the result of a disease subject to periodic or episodic improvement.  38 C.F.R. § 3.344(a) (2020).  The five-year period is calculated from the effective date of the rating to the effective date of the reduction.  Brown v. Brown, 5 Vet. App. 413 (1993).  If doubt remains, after according due consideration to all the evidence, the rating agency will continue the rating in effect.  38 C.F.R. § 3.344(b) (2020). 

Further, pursuant to 38 C.F.R. § 3.951(b), a disability which has been continuously rated at or above any evaluation of disability for 20 or more years for compensation purposes under laws administered by VA will not be reduced to less than such evaluation except upon a showing that such rating was based on fraud.  The 20-year period will be computed from the effective date of the evaluation to the effective date of the reduction of evaluation.  38 C.F.R. § 3.951(b) (emphasis added). 

The Board observes that the basis for the June 2020 JMPR regarding the reduction of the right knee disability rating based on instability of the right knee is that the Board erred by not addressing the applicability 38 C.F.R. § 3.951(b), "given Appellant's rating for a right knee instability was first granted effective January 2, 1996, and the initial rating for right decision reducing the rating was issued in March 2016."  Given such, the Board has readdressed the applicability of 38 C.F.R. § 3.951(b).

Here, the Veteran was awarded a 10 percent rating for right knee instability, effective January 2, 1996.  The effective date of the reduction of the evaluation was December 21, 2015, as determined in the March 2016 rating decision.  As the time from the effective date of service connection (January 2, 1996) to the effective date of the reduction (December 21, 2015) is not 20 years or more; thus, this rating is not protected under 38 C.F.R. § 3.951.  This is consistent with 38 C.F.R. § 3.951(b), which requires that "[t]he 20-year period will be computed from the effective date of the evaluation to the effective date of the reduction."  The "will be" language is mandatory.  See Turco v. Brown, 9 Vet. App. 222, 224 (1996) (noting that "will be" in a regulation makes the action that follows mandatory).

However, while the Veteran may not be afforded the protections as found in 38 C.F.R. § 3.951, the Board observes that the provisions of 38 C.F.R. § 3.344 (a) and (b) are applicable to the right knee disability rating because the 10 percent rating for instability was in effect for more than five years, effective from January 2, 1996 to December 21, 2015.  

Pursuant to 38 C.F.R. § 3.344 (a) and (b), disability ratings which have continued for long periods of time at the same level (5 years or more) may not be reduced without the following: review of the entire record of examinations and the medical-industrial history to ensure that the current examination is full and complete, the examination must be as full and complete as the examination upon which the original award was based, ratings on account of diseases subject to temporary or episodic improvement (e.g. many skin diseases) will not be reduced on any one examination, except where all of the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated, ratings on account of disease which become comparatively symptom free after prolonged rest will not be reduced on examinations reflecting the result of bed rest, and where material improvement is shown, consideration must be given to whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life.  If doubt remains, the rating will be continued subject to reexamination within a specified period of time (18, 24, or 30 months).

Moreover, it is well established in the case law of the United States Court of Appeals for Veterans Claims (Court) that VA cannot reduce a Veteran's disability evaluation without first finding, inter alia, that an improvement has actually occurred in the Veteran's service-connected disability and it has improved to the point that he or she is now better able to function under the ordinary conditions of life and work.  See Murphy v. Shinseki, 26 Vet. App. 510, 517 (2014); Brown, 5 Vet. App. at 421.  Care must be taken to ensure that a change in an examiner's evaluation reflects an actual change in the Veteran's condition, and not merely a difference in the thoroughness of the examination or in descriptive terms, when viewed in relation to the prior disability history.  See 38 C.F.R. §§ 4.1, 4.2, 4.13; see also Brown, 5 Vet. App. at 420-22.

Significantly, in a rating reduction case, VA has the burden of establishing that the disability has improved.  A rating reduction case focuses on the propriety of the reduction and is not the same as an increased rating issue.  See Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991).

As noted above, the Veteran is asserting that the RO improperly reduced his rating for instability of the right knee in a March 2016 rating decision, when his 10 percent evaluation under Diagnostic Code 5257 was discontinued on December 21, 2015 and a 30 percent evaluation under Diagnostic Code 5055 was assigned on February 1, 2017, following the necessary periods of convalescence as directed in the rating code.  

As an initial matter, the Board notes that neither the March 2016 rating decision nor the accompanying notification letter included a discussion as to why the 10 percent rating was discontinued, or information regarding the Veteran's appellate rights in the context of a reduction in his combined rating or the reduction in the 10 percent rating for instability of the right knee.  While, generally, the failure of the RO to provide sufficient notice would render the reduction void ab initio, the plain language of section § 3.105(e) requires that there must not only be a reduction in evaluation of a service-connected disability or employability status, but also a reduction and discontinuance of compensation payments currently being made.  

In the present case, the Veteran's overall disability rating was not reduced with the reduction of the right knee disability rating, and, as such, the rating is not considered void ab initio pursuant to 38 C.F.R. § 3.105(e).  See VAOPGCPREC 71-91 (Nov. 1991); Stelzel v. Mansfield, 508 F.3d 1345, 1347-49 (Fed. Cir. 2007) (holding that provisions of §3.105(e) do not apply when there is no change in the overall disability rating).  

Thus, consideration must turn to whether the evidence at the time of the reduction demonstrated that the Veteran's right knee disability had materially improved, to include improvement in the ability to function under the ordinary conditions of life and work.  Based on the evidence below, the Board finds that the RO's reduction of the separate 10 percent rating for instability of the right knee, effective from December 21, 2015, was proper and restoration is not warranted.

In relevant part, Diagnostic Code 5257 governs other impairments of the knee.  38 C.F.R. § 4.71a.  A 10 percent rating is appropriate for slight recurrent subluxation or lateral instability of the knee.  Id.  A 20 percent rating is assigned for moderate recurrent subluxation or lateral instability of the knee.  Id.  A 30 percent rating is assigned for severe recurrent subluxation or lateral instability of the knee.  Id.

During the pendency of the appeal, the Veteran was scheduled for VA examinations to assess the severity of his right knee disability in June 2011, December 2012, February 2013, June 2016, and June 2015.  

During the June 2011 VA examination, the Veteran reported that the right knee swells, locks, buckles, pops, and grinds, which requires the use of braces.  He also reported that he is unable to sit still with his knee bent for more than 30 minutes, he is unable to bend his knee to dress, he is unable to stand more than 20 minutes, walk more than 14 mile, and unable to stand from a sitting position without the use of his arms.  However, he denied flare-ups.  Upon physical examination, there was no evidence of instability, tenderness, crepitus, or warmth.  

The Veteran was next examined in December 2012.  The Veteran reported flare-ups in the right knee after sitting, climbing, or crawling, which resulted in pain and stiffness.  Again, there was no objective evidence of instability, or subluxation, tibia or fibula impairments.  It was noted that the Veteran required the occasional use of a cane.  

The Veteran was next examined by VA in February 2013.  This examination was conducted in connection with a claim for service connection for pain in the lower extremities.  There was no objective evidence of instability or subluxation in the right knee.  The regular use of braces and canes was noted.  

Following the reduction of the separate 10 percent rating, the Veteran was examined by VA in June 2016.  The Veteran reported continued pain and stiffness in the right knee.  He denied flare-ups but reported functional impairment in walking, climbing steps, driving, prolonged standing, squatting, and bending.  There was no evidence of ankylosis, instability, or subluxation.  Further, the Veteran no longer required the use of assistive devices.  

Finally, in a June 2021 VA Medical Opinion, the VA examiner specifically stated there is no right instability noted prior to December 21, 2015.  See June 2021 VA Medical Opinion.

Also of record are significant VA and private treatment records that show the Veteran continues treatment for his right knee disability, to include the surgical reports of the knee replacement surgery conducted in December 2015.  However, these treatment records do not contain any objective evidence of instability of the right knee prior to December 21, 2015. 

Based on the evidence above, the Board finds that the RO's reduction of the separate 10 percent rating for instability of the right knee, effective from December 21, 2015, was proper as the evidence at the time of the reduction demonstrated that the Veteran's right knee disability had materially improved, to include improvement in the ability to function under the ordinary conditions of life and work.  Specifically, there is simply no objective evidence of instability of the right knee, either prior to or since the reduction, as evidenced by VA examinations of record.   

In reaching such decision, the Board has considered the Veteran's consistent reports of pain associated with his knee, both before and after his surgeries.  He also reported buckling and giving way in a May 2011 statement.  While the Board does not doubt the severity of the Veteran's right knee disability, the objective evidence of record is more probative in determining whether the Veteran's separate 10 percent rating was warranted and, here, the evidence shows that the reduction was proper.  

For the reasons set forth above, the Board finds that the reduction in the rating from 10 percent to 0 percent for service-connected instability of the right knee, effective from December 21, 2015, was proper.  Accordingly, as the preponderance of the evidence is against the restoration of the 10 percent rating for the right knee disability, the benefit-of-the-doubt rule is not for application, and the claim must be denied.  38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

Increased Ratings

Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities.  The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations.  Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability.  38 U.S.C. § 1155 (West 2012); 38 C.F.R. § 4.1 (2020). 

Separate diagnostic codes identify the various disabilities and the criteria for specific ratings.  If two disability evaluations are potentially applicable, 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 (2020).  Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran.  38 C.F.R. § 4.3 (2020).  

A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made.  Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided.  38 C.F.R. § 4.14 (2020).  The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability.  See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994).

Musculoskeletal Disabilities 

The Veteran is seeking entitlement to higher ratings for his variously diagnosed left and right knee disabilities.  For the sake of brevity, the Board will provide all the legal criteria before addressing the factual evidence of record.  Then, the Board will provide an analysis of all ratings on appeal as it applies to the both the left and right knees.

Legal Criteria

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance.  Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion.  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  38 C.F.R. § 4.40. 

In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part.  Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion.  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy.

A Veteran may be entitled to a higher disability evaluation for a musculoskeletal disability than that supported by mechanical application of the rating schedule where there is evidence that his or her disability causes additional functional loss, such as the inability... to perform the normal working movements of the body with normal excursion, strength, speed, coordination[,] and endurance, including as due to pain. 38 C.F.R. § 4.40 (2020); see Lyles v. Shulkin, 29 Vet. App. 107, 117 (2017).  A higher disability evaluation may also be awarded where there is a reduction of a joint's normal excursion of movement in different planes, including changes in the joint's range of movement, strength, fatigability, or coordination.  38 C.F.R. § 4.45 (2020).  However, the veteran's functional loss must result in limitation of motion sufficient to satisfy the next disability rating allowable for that particular disorder to be entitled to a higher disability rating under §§ 4.40 and 4.45.  See Thompson v. McDonald, 815 F.3d 781, 785-86 (Fed. Cir. 2016).

Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint.  This regulation also requires that, whenever possible, the joints involved are tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.  See Correia v. McDonald, 28 Vet. App. 158, 168 (2016).

Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered.  DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995).  Within this context, a finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant.  Johnston v. Brown, 10 Vet. App. 80, 85 (1997).  Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45, but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance.  Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011).

Effective February 7, 2021, VA's Schedule, 38 C.F.R. Part 4, was amended with regard to rating musculoskeletal disorders.  Fed. Reg. 76453 (November 30, 2020) (codified at 38 C.F.R. § 4.71a ).

When a law or regulation changes during the course of a claim or an appeal, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment in question.  VAOPGCPREC 3-2000 ; Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003).  The revised musculoskeletal regulations do not provide for retroactive application; thus, the amendments may be applied as of, but not prior to, February 7, 2021.  Hence, VA has made clear that its intent is that the 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. For applications filed on or after the effective date, only the new criteria will be applied.  As the Veteran's claim was pending prior to February 7, 2021, the Board will consider entitlement under the prior regulations as well as the revised regulations beginning February 7, 2021, applying the most favorable criteria for the Veteran.

The schedular criteria for evaluating disabilities of the musculoskeletal system, including the knee, have undergone revision during the pendency of this appeal. Specifically, and as relevant to this case, revisions to Diagnostic Codes 5003, 5010, and 5257 were made effective February 7, 2021.  See 85 Fed. Reg. 76460, 76457 (Feb 7, 2021).

When a law or regulation changes during the course of a claim or an appeal, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment in question.  VAOPGCPREC 3-2000 ; Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003).  The revised musculoskeletal regulations do not provide for retroactive application; thus, the amendments may be applied as of, but not prior to, February 7, 2021.  Hence, VA has made clear that its intent is that the 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.  For applications filed on or after the effective date, only the new criteria will be applied.  As the Veteran's claim was pending prior to February 7, 2021, the Board will consider entitlement under the prior regulations as well as the updated regulations from February 7, 2021 forward, applying the most favorable criteria for the Veteran.

Prior to February 7, 2021, Diagnostic Code 5010, instructed the rater to rate traumatic arthritis as degenerative arthritis under Diagnostic Code 5003.

Under the revised criteria, Diagnostic Code 5010 applies only to post-traumatic arthritis, which is to be 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 § 4.25.

Under both the earlier and revised rating criteria, degenerative arthritis is rated under Diagnostic Code 5003.  Under this code, arthritis established by X-ray findings is 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, to be combined and not added, under Diagnostic Code 5003.  For purpose of rating disability from arthritis, the hip is considered a major joint.  38 C.F.R. § 4.45 (f).

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.

The Rating Schedule provides for ratings of 0, 10, 20, or 30 percent where there is limitation of flexion of the leg to 60, 45, 30, or 15 degrees, respectively, and for ratings of 0, 10, 20, 30, 40, or 50 percent for limitation of extension of the leg to 5, 10, 15, 20, 30, or 45 degrees, respectively.  38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261.

VA's General Counsel has held that separate ratings are available for limitation of flexion and limitation of extension under Diagnostic Codes 5260 and 5261.  VAOPGCPREC 9-2004 (2004).

As it pertains to recurrent subluxation or instability of the knee, revisions to Diagnostic Code 5257 were made effective February 7, 2021.  See 85 Fed. Reg. 76457 (Feb 7, 2021).  As these changes took effect during the pendency of the Veteran's appeal, both the former and revised criteria will be considered, however, application of the new criteria prior to the effective date of the amended regulation is not allowed.  See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003).

Prior to February 7, 2021, instability of the knee was rated under Diagnostic Code 5257, which provided ratings of 10, 20, and 30 percent for recurrent subluxation or lateral instability of the knee, which is slight, moderate, or severe, respectively.  38 C.F.R. § 4.71a, Diagnostic Code 5257.

Effective February 7, 2021, Diagnostic Code 5257 provides ratings for both recurrent subluxation or instability of the knee and for patellar instability.  As it pertains to recurrent subluxation or instability of the knee, Diagnostic Code 5257 provides a 10 percent rating 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 either (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device, or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device 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 and bracing for ambulation.

As it pertains to patellar instability of the knee, Diagnostic Code 5257 provides 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 assigned 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.

Note (1): For patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon.

Note (2): 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).  See DC 5257 (Effective February 7, 2021).

Diagnostic Code 5258 provides a 20 percent rating may be assigned for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint.

Diagnostic Code 5259 provides for a 10 percent rating for symptomatic removal of the semilunar cartilage.

Finally, Diagnostic Code 5055 provides for ratings following total knee replacement surgery.  Diagnostic Code 5055 provides that a 100 percent evaluation is assigned for one year following the implantation of the prosthesis.  A 60 percent evaluation is assigned for a prosthetic replacement of the knee joint with chronic residuals consisting of severe painful motion or weakness in the affected extremity.  The minimum rating for a prosthetic replacement of the knee joint is 30 percent.  Intermediate ratings between 30 and 60 percent may also be assigned by analogy if evidence shows that such a rating is warranted under Diagnostic Codes 5256, 5261, or 5262.  38 C.F.R. § 4.71a, Diagnostic Code 5055 (2020).

In the present case, the Board notes that consideration of other Diagnostic Codes for rating knee disabilities (5256, 5258, 5259, 5262, 5263) is inappropriate as the Veteran's bilateral knee disabilities do not include the pathology required in the criteria for those Diagnostic Codes (ankylosis, symptomatic dislocated semilunar cartilage, malunion or nonunion of tibia or fibula, or genu recurvatum).  38 C.F.R. § 4.71a.

Factual Evidence

The Veteran filed his claim for increased ratings for the right and left knee disabilities in May 2011.  Therefore, the relevant temporal focus pertaining to the right and left knee disabilities is from May 2010 to the present.  See 38 C.F.R. § 3.400.  

During the pendency of the appeal, the Veteran was scheduled for VA examinations to assess the severity of his right and left knee disabilities in June 2011, December 2012, February 2013, June 2016, and June 2021.  

During the June 2011 VA examination, the Veteran reported the right and left knees swell, lock, buckle, pop, and grind, which requires the use of braces.  He also reported that he is unable to sit still with his knees bent for more than 30 minutes, unable to bend his knees to dress, unable to stand more than 20 minutes, walk more than 14 mile, and unable to stand from a sitting position without the use of his arms.  He denied flare-ups.  

Upon physical examination, range of motion testing in the left knee was extension to 25 degrees and flexion to 60 degrees.  In the right knee, extension was to 10 degrees and flexion to 80 degrees.  Pain was noted in both knees.  The examiner stated both knees were without diminution on repetitive testing and no DeLuca criteria was present.  Further, there was no evidence of instability, tenderness, crepitus, or warmth.  

The Veteran was next examined in December 2012.  The Veteran reported flare-ups in either knee after sitting, climbing, or crawling, which result in pain and stiffness.  Range of motion testing for the right knee revealed flexion to 120 degrees, with pain at 100 degrees; and, extension to 40 degrees, with pain at 30 degrees.  For the left knee, flexion was found to be 115 degrees, with pain at 105 degrees; and, extension to 35 degrees, with pain at 30 degrees.  Upon repetitive use testing, flexion in the right knee was found to be to 120 degrees, and extension to 40 degrees.  In the left knee, flexion was found to be 115 degrees, and extension to 35 degrees.  No additional limitation of motion was noted upon repetitive testing.  However, additional function impairment and loss were noted in the form of pain, weakened movement, less movement, and excess fatiguability, bilaterally.  There was no objective evidence of instability, or subluxation, tibia or fibula impairments.  The examiner noted the Veteran previously underwent a meniscectomy in the left knee after a meniscal tear resulting in pain and locking.  There was no indication the previous meniscal tear was currently symptomatic.  Further, the Veteran required the occasional use of a cane.  

The Veteran was next examined by VA in February 2013.  This examination was conducted in connection with a claim for service connection for pain in the lower extremities.  At that time, the VA examiner noted range of motion testing in the right knee revealed flexion to be 100 degrees and extension to 0 degrees (full extension), with no objective evidence of pain.  In the left knee, flexion was found to be to 60 degrees and extension to 0 degrees, with no objective evidence of pain.  The Veteran was able to perform repetitive testing with no additional limitation of motion noted.  Additional functional limitation and loss was noted in the left as excess fatiguability, less movement than normal, disturbance of locomotion, and interference with sitting, standing, and weight bearing.  Pain was noted as a functional impairment in both the right and left knees.  There was no objective evidence of instability or subluxation, bilaterally.  The examiner again noted the prior meniscectomy in the left knee, but there were no additional residuals found upon examination.  Finally, the regular use of braces and canes, bilaterally, was noted.  

The Veteran was next examined by VA in June 2016 following the left and right knee replacement surgeries in April 2014 and December 2015, respectively.  The Veteran reported continued pain and stiffness, bilaterally.  He denied flare-ups but reported functional impairment in walking, climbing steps, driving, prolonged standing, squatting, and bending.  Range of motion testing for the right and left knees revealed flexion to 100 degrees and extension to 0 degrees, bilaterally.  The Veteran reported pain, but there was no evidence of pain on weight-bearing or crepitus in either knee.  The Veteran was able to perform repetitive motion testing with no additional functional loss or decreased range of motion.  There was no evidence of ankylosis, instability, or subluxation.  There were no current symptoms associated with the prior meniscectomy, and no other objective medical findings pertaining to either knee.  The Veteran no longer required the use of assistive devices.  

The Veteran was most recently evaluated by VA in June 2021.  The examiner noted that the right knee diagnoses included limitation of motion, degenerative joint disease, and total knee arthroplasty.  The left knee diagnoses included posterior lateral rotary instability, with chondromalacia and degenerative changes.  He reported flare-ups of both knees.  The Veteran stated the flare-ups occur a few times a week, are described as moderate to severe, lasting all day, and are precipitated by walking, riding, playing and overuse.  Concerning functional loss or impairment, the Veteran reported pain, stiffness, limited range of motion, difficulty with bending, prolong standing, walking, or climbing stairs.  He denied instability or recurrent subluxation, or experiencing frequent effusion.  

Range of motion testing for the right and left knees revealed flexion to 90 degrees and extension to 0 degrees, bilaterally, with pain at the endpoints.  The Veteran reported pain, with evidence of pain on weight-bearing, active motion, passive motion, and resulting in functional loss, bilaterally.  The functional impact described by the Veteran includes pain, stiffness, limited range of motion, difficulty with bending, prolong standing of 1 hour or more, walking 2 miles or more, or climbing stairs.  There was no evidence of crepitus in either knee, or localized tenderness or pain on palpation.  The Veteran was able to perform repetitive use testing, with additional loss in range of motion.  Following repetitive use testing, flexion was found to be limited to 80 degrees, and extension to 0 degrees, bilaterally.  Pain and lack of endurance were noted as factors contributing to functional loss.  Concerning an estimated repeated use over time, the examiner found an additional 10 degree loss in flexion, bilaterally, resulting in flexion limited to 70 degrees and extension to 0 degrees.  Concerning flare-ups, the examiner estimated flexion limited to 60 degrees and extension to 0 degrees, bilaterally.  

Also on examination, there was no evidence of muscle atrophy, ankylosis, recurrent subluxation or persistent instability, recurrent patellar instability, ligament tear, recurrent patellar dislocation, shin splints (medial tibial stress syndrome), stress fractures, or any other tibial or fibular impairment.  There is also no indication the Veteran has been prescribed any ambulatory aids due to patellar instability.  However, it was noted the Veteran does use bilateral knee braces and a cane regularly.  

Pertaining to the left knee instability, the examiner noted the left knee anterior instability, medial instability, and later instability test results were all normal.  The left knee posterior instability test results were 1+.  Further, there were no findings of chronic exertional compartment syndrome of the right lower extremity.  There are no findings of chronic exertional compartment syndrome of the left lower extremity.  

As it pertains to right knee instability prior to December 21, 2015, the June 2021 VA examiner specifically stated there is no right instability noted prior to December 21, 2015.  See June 2021 VA Medical Opinion. 

Also of record are significant VA and private treatment records that show the Veteran continuous treatment for his right and left knee disabilities, to include the surgical reports of the knee replacements conducted in April 2014 and December 2015.  However, these treatment records do not contain any objective evidence not already discussed or materially different from that contained in the multiple VA examinations of record.  Specifically, a November 2011 private treatment record noted range of motion for the right knee to be from 0 to 120 degrees, and the left to be 5 to 10 degrees extension and 90 degrees flexion.  Thereafter, a January 2012 private treatment record noted left knee range of motion to be from 0 to 135 degrees.  An October 2016 private treatment record shows the Veteran's report of left knee pain and instability.  It was noted by the private physician that the left knee hyperextends when ambulating.  There are no additional treatment records that include objective findings materially different from those addressed above.  

Additionally, the Board notes the Veteran's consistent reports of pain associated with his knees, both before and after his surgeries.  He reported buckling and giving way in a May 2011 statement.  In a statement dated January 2017 (received by the Board in February 2017), the Veteran stated that his left knee is loose and is "having much instability." 

 

2. Left knee

Limitation of Motion of the Left Knee

By way of history and as relevant to the temporal focus of this appeal, the Veteran was rated at 30 percent for the left knee disability, pursuant to Diagnostic Code 5010-5261, prior to April 14, 2014.  Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating.  38 C.F.R. § 4.27.  Here, the hyphenated diagnostic code indicates that the Veteran's knee disability is rated, by analogy, under the criteria for limitation of extension (Diagnostic Code 5261).

In April 2014, the Veteran underwent knee replacement surgery.  Thereafter, he was assigned a temporary 100 percent rating pursuant to the provisions of 38 C.F.R. § 4.30, for the period from April 14, 2014 through May 31, 2015.  Effective from June 1, 2015, the Veteran was assigned a 30 percent rating pursuant to Diagnostic Code 5055.  The Veteran was again assigned a temporary 100 percent rating pursuant to 38 C.F.R. § 4.30 from January 30, 2017 to April 30, 2017.  Effective from May 1, 2017, the 30 percent rating pursuant to Diagnostic Code 5055 was reinstated.  The Veteran is seeking ratings higher than 30 percent prior to April 14, 2014 pursuant to Diagnostic Code 5010-5061, and for the periods from June 1, 2015 to January 29, 2017, and since May 1, 2017 pursuant to Diagnostic Code 5055.  As the Veteran is already in receipt of 100 percent ratings pursuant to the provisions of 38 C.F.R. § 4.30 for the other periods identified, the Board need not discuss whether he is entitled to higher ratings for those periods.  Similarly, the evidence of record for the periods in which the 100 percent rating are assigned will not be considered.

Prior to April 14, 2014

For the period prior to April 14, 2014, the Board finds that a rating of 40 percent for the left knee is warranted.  As noted, pursuant to Diagnostic Code 5261, a 40 percent evaluation is warranted when extension is limited to 30 degrees, and a 50 percent evaluation is warranted when extension is limited to 45 degrees.  In this respect, the December 2012 VA examiner found extension to be to 35 degrees, with pain at 30 degrees.  Despite the June 2011 and February 2013 VA examinations showed extension to 25 degrees and 0 degrees (i.e., full extension), respectively, the Board finds the benefit of the doubt must go with the Veteran.  A rating in excess of 40 percent is not warranted as the Veteran's extension has been found to be, at most, limited to 35 degrees.  See December 2012 VA Examination.  

The Board has also considered whether a separate rating based on limitation of flexion pursuant to Diagnostic Code 5260 may be warranted for the period prior to April 14, 2014.  For a 10 percent evaluation, flexion must be limited to 45 degrees.  Here, the Veteran's flexion was found to be limited to, at most, 60 degrees, with no pain on motion.  See June 2011 and February 2013 VA examinations.  Therefore, a separate 10 percent rating is not warranted.  38 C.F.R. § 4.71a, Diagnostic Code 5260. 

Finally, as to whether the Veteran is entitled to a 20 percent rating pursuant to Diagnostic Code 5010 for the regulations in effect prior to February 7, 2021, the evidence does not show that he suffers from periods of occasional incapacitating episodes as a result of his left knee.  See June 2011, December 2012, and February 2013 VA examinations.

For the regulations in effect since February 7, 2021, Diagnostic Code 5010 is to be rated as limitation of motion, dislocation, or other specified instability under the affected joint.  Thus, referring back to the applicability of Diagnostic Codes 5261 and 5260, his left knee has been compensated accordingly.  See id.  

Additionally, whether the Veteran's left knee disability resulted in a level of functional loss greater than that already contemplated by the now assigned rating of 40 percent based on limitation of extension at any point prior to April 14, 2014 also been considered.  DeLuca v. Brown, 8 Vet. App. 202, 206 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59.  Here, the VA examinations and treatment records note the left knee disability was characterized by pain and limitation of extension.  However, the rating schedule is intended to allow for compensation for painful motion of a joint.  38 C.F.R. § 4.59 ; Burton v. Shinseki, 25 Vet. App. 1 (2011).

Moreover, the Veteran previously argued that his then assigned 30 percent rating did not consider functional loss due to pain.  The Board agrees and has considered the finding of the December 2012 VA examiner noting extension to 35 degrees, with pain beginning at 30 degrees, in so finding a 40 percent rating is warranted for the period prior to April 14, 2014.  

However, a rating in excess of 40 percent pursuant to Diagnostic Code 5261 is not warranted even when considering pain on motion as his extension has been limited, at most, 35 degrees.  See December 2012 VA Examination.  Further, a separate rating based on limitation of flexion is not warranted as his flexion has never been limited to more than 60 degrees (see again June 2011 and February 2013 VA examinations), which is significantly greater than is required for a noncompensable evaluation pursuant to Diagnostic Code 5260.  In fact, his currently assigned 40 percent rating specifically contemplates the noted presence of pain and any functional limitations resulting from this disability for the period prior to April 14, 2014.  

Period Since April 14, 2014

Based on the evidence as noted above, the Board finds that the Veteran is not entitled to a rating in excess of the 30 percent currently assigned for residuals of his total left knee replacement, effective from April 14, 2014.  This is based on the provisions of Diagnostic Code 5055, which provides for a minimum rating of 30 percent.  The evidence shows limitation of left knee flexion to 60 degrees during a flare-up, which corresponds to a noncompensable rating under Diagnostic Code 5260.  See June 2021 VA examination.  Further, there is no indication of extension limited to 30 degrees (as was the case prior to his total knee replacement surgery), which would warrant a higher 40 percent rating under Diagnostic Code 5261.  See 38 C.F.R. §§ 4.10, 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). 

As the Veteran's limitation of flexion and extension are both noncompensable, the only appropriate compensable rating based on limitation of motion is the 30 percent rating provided for in Diagnostic Code 5055.  38 C.F.R. § 4.71a, Diagnostic Code 5055.  Additionally, there is no indication of ankylosis of the left knee.  Therefore, a rating in excess of the 30 percent rating already assigned is not for application pursuant to Diagnostic Code 5256. 

There are no other pertinent diagnostic codes that would afford the Veteran a rating in excess of this 30 percent rating.  A 60 percent rating based on severe painful motion or severe weakness under Diagnostic Code 5055 is not warranted.  The findings of the June 2016 VA examiner of flexion to 100 degrees and 0 degrees for extension, and June 2021 VA examiner of flexion to 60 degrees (during a flare-up) and 0 degrees would not constitute severe painful motion as the codes pertaining to limitation of motion provide for higher ratings that the Veteran's measured ranges do not nearly approximate; in fact, his limitation of flexion, as noted above, does not even warrant a compensable rating and thus could not be considered severe, even considering his complaints of constant pain and stiffness.  

The Veteran is certainly competent to report knee pain and there is no doubt that he experiences this as he does have some limited motion as shown on the examinations summarized above; however, these symptoms are contemplated by the ratings currently assigned.  As noted above, the medical evidence of record does not result in a disability picture manifested by chronic severe pain and weakness. 

Additionally, whether the Veteran's knee disability resulted in a level of functional loss greater than that already contemplated by the assigned ratings for the period since April 14, 2014, has also been considered.  DeLuca v. Brown, 8 Vet. App. 202, 206 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59.  Following his surgery, the Veteran noted functional impairment of the left knee characterized by pain and stiffness.  However, the rating schedule is intended to allow for compensation for painful motion of a joint.  38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011).  Thus, the evidence does not reflect functional loss that is not already contemplated by the assigned rating of 30 percent since April 14, 2014.  A rating in excess of 30 percent is not warranted for the left knee on the basis of functional loss under the aforementioned regulations. 

In reaching the above conclusions, the Board has not overlooked the Veteran's statements with regard to the severity of his left knee disability.  In this regard, the Veteran is competent to report on factual matters of which he had firsthand knowledge, e.g., experiencing chronic pain in his knee.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  The Veteran has provided lay evidence through written statements throughout the course of his appeal with respect to the presence of pain.  He is competent to provide such statements, and the Board finds that the Veteran's statements and those of lay witnesses to be credible.  The Veteran's reported symptomatology has been noted in the rating decisions above, and the Board has considered the Veteran's reports with respect to pain in evaluating his assigned ratings.  

Correia and Sharp Considerations

In addressing the findings of the May 2020 JMPR that the Board previously failed to adequately discuss the Veteran's pain and presence of flare-ups, the Board notes that the cases of Correia and Sharp discussed and clarified, to the extent there was pain on weight-bearing or non-weight bearing, and functional limitations during flare-ups, the Diagnostic Code currently specifically encompasses this consideration in assigning the 40 percent rating based on limitation of extension for the period prior to April 14, 2014.  Here, the Board notes that the Veteran denied experiencing flare-ups of the left knee during every examination of record, except the December 2012 VA examination.  He did, however, consistently report pain and functional limitations of the left knee.  Therefore, in assigning the 40 percent rating based on limitation of extension for the period prior to April 14, 2014, the Board has specifically considered the Veteran's reported pain and functional limitations described in the examinations of record, even without any express statements that he suffered from flare-ups.  See June 2011 December 2012, and February 2103 VA examinations.

For the period since April 14, 2014, the Board has also considered whether pain or the presence of flare-ups warrants a higher rating.  Here, even during a flare-up, the Veteran's left knee extension was found to be to 0 degrees, i.e., full extension, and his flexion to 60 degrees, at most.  See June 2021 VA Examination.  The Board also notes that at no point during the appeals period do the range of motion findings of the numerous VA examiners more nearly approximate the findings as required for a separate or compensable rating based on limitation of flexion, even without consideration of pain on weight-bearing/ non weight-bearing.  Therefore, while the Board acknowledges the objective findings of pain on weight bearing with respect to the left knee throughout the appeals period and the Veteran's reported functional limitations during flare-ups, the evidence of record does not support a finding that the Veteran's left knee disability warrants a rating higher than 40 percent pursuant to Diagnostic Code 5261 prior to April 14, 2014, or higher than 30 percent since, pursuant to Diagnostic Code 5055. 

Accordingly, as the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not for application, and the claim must be denied.  38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

Left Knee Instability

The Veteran is also in receipt of a separate rating of 10 percent for instability of the left knee pursuant to Diagnostic Code 5271.  He is seeking a higher rating.  

Based on the evidence as discussed above, the record does not support a finding that the Veteran's instability of the left knee may be considered moderate or severe in nature at any point during the appeals period.  In fact, aside from the Veteran's own statements, the only VA examiner to find an objective indication of instability or subluxation was the June 2021 VA examiner who noted the left knee anterior instability, medial instability, and later instability test results were all normal.  The left knee posterior instability test results were 1+, which is indicative of slight instability.  

Applying the regulations in effect since February 7, 2021, there is no evidence of 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 prescription from a medical provider for either an assistive device or bracing for ambulation, or 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.  See June 2021 VA Examination.  

There is also no evidence of a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that requires a prescription by a medical provider for an ambulatory device, as is required for the next higher 20 and 30 percent ratings under Diagnostic Code 5257 (Effective February 7, 2021).  See id.

The Board has considered the Veteran's reports of buckling, giving way, and loosening.  See May 2011 and February 2017 Statements in Support of Claim.  Further, an October 2016 private treatment record notes the Veteran's reports of instability and hyperextension when ambulating.  However, no objective indications that either of these occurrences were recorded by the treating physician.  Similarly, the VA examinations have consistently found there is no evidence of lateral instability or subluxation to warrant a higher rating.  See English v. Wilkie, 30 Vet. App. 347, 349 (2018) (holding that the Board may weigh competent lay evidence of lateral knee instability and is free to discount lay evidence provided it supports its conclusion with an adequate statement of reasons or bases).  As such, the Board finds the lack of objective evidence in the VA examinations, VA treatment records, and private treatment records outweighs the Veteran's statements.  Thus, a rating in excess of 10 percent is not warranted.

Accordingly, as the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not for application, and the claim must be denied.  38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

3. Right knee 

Limitation of Motion Prior to December 21, 2015

By way of history and as relevant to the temporal focus of this appeal, the Veteran was rated at 10 percent for the right knee disability, pursuant to Diagnostic Code 5010-5261, prior to December 21, 2015.  Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating.  38 C.F.R. § 4.27.  Here, the hyphenated diagnostic code indicates that the Veteran's knee disability is rated, by analogy, under the criteria for limitation of extension (Diagnostic Code 5261).

As was agreed upon in the May 2020 JMPR, the Veteran did not contest the Board's prior denial of a rating in excess of 30 percent, effective from December 21, 2015.  Therefore, the Board will limit its discussion to only a rating in excess of 10 percent for the right knee prior to December 21, 2015 on the basis of limitation of motion.  

For the period prior to December 21, 2015, the Board finds that a rating of 40 percent for the right knee is warranted.  As noted, pursuant to Diagnostic Code 5261, a 40 percent evaluation is warranted when extension is limited to 30 degrees, and a 50 percent evaluation is warranted when extension is limited to 45 degrees.  In this respect, the December 2012 VA examiner found extension to be to 40 degrees, with pain at 30 degrees.  Despite the June 2011 and February 2013 VA examinations showed extension to 10 degrees and 0 degrees (i.e., full extension), respectively, the Board finds the benefit of the doubt must go with the Veteran.  A rating in excess of 40 percent is not warranted as the Veteran's extension has been found to be, at most, limited to 40 degrees.  See December 2012 VA Examination.  

The Board has also considered whether a separate rating based on limitation of flexion pursuant to Diagnostic Code 5260 may be warranted for the period prior to April 14, 2014.  For a 10 percent evaluation, flexion must be limited to 45 degrees.  Here, the Veteran's flexion was found to be limited to, at most, 100 degrees, with no pain on motion.  See February 2013 VA examination.  Therefore, a separate 10 percent rating is not warranted.  38 C.F.R. § 4.71a, Diagnostic Code 5260. 

Finally, as to whether the Veteran is entitled to a 20 percent rating pursuant to Diagnostic Code 5010 for the regulations in effect prior to February 7, 2021, the evidence does not show that he suffers from periods of occasional incapacitating episodes as a result of his right knee.  See June 2011, December 2012, and February 2013 VA examinations.

For the regulations in effect since February 7, 2021, Diagnostic Code 5010 is to be rated as limitation of motion, dislocation, or other specified instability under the affected joint.  Thus, referring back to the applicability of Diagnostic Codes 5261 and 5260, his right knee has been compensated accordingly.  See id.  

Additionally, whether the Veteran's right knee disability resulted in a level of functional loss greater than that already contemplated by the now assigned rating of 40 percent based on limitation of extension at any point prior to December 21, 2015 also been considered.  DeLuca v. Brown, 8 Vet. App. 202, 206 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59.  Here, the VA examinations and treatment records note the right knee disability was characterized by pain and limitation of extension.  However, the rating schedule is intended to allow for compensation for painful motion of a joint.  38 C.F.R. § 4.59 ; Burton v. Shinseki, 25 Vet. App. 1 (2011).

Moreover, the Veteran previously argued that his then assigned 10 percent rating did not consider functional loss due to pain.  The Board agrees and has considered the finding of the December 2012 VA examiner noting extension to 40 degrees, with pain beginning at 30 degrees, in so finding a 40 percent rating is warranted for the period prior to December 21, 2015.  

However, a rating in excess of 40 percent pursuant to Diagnostic Code 5261 is not warranted even when considering pain on motion as his extension has been limited, at most, 40 degrees.  See December 2012 VA Examination.  Further, a separate rating based on limitation of flexion is not warranted as his flexion has never been limited to more than 60 degrees (see again June 2011 and February 2013 VA examinations), which is significantly greater than is required for a noncompensable evaluation pursuant to Diagnostic Code 5260.  In fact, his currently assigned 40 percent rating specifically contemplates the noted presence of pain and any functional limitations resulting from this disability for the period prior to December 21, 2015.

In reaching the above conclusions, the Board has not overlooked the Veteran's statements with regard to the severity of his right knee disability.  In this regard, the Veteran is competent to report on factual matters of which he had firsthand knowledge, e.g., experiencing chronic pain in his knee.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005).  The Veteran has provided lay evidence through written statements throughout the course of his appeal with respect to the presence of pain.  He is competent to provide such statements, and the Board finds that the Veteran's statements and those of lay witnesses to be credible.  The Veteran's reported symptomatology has been noted in the rating decisions above, and the Board has considered the Veteran's reports with respect to pain in evaluating his assigned ratings.  

Correia and Sharp Considerations

In addressing the findings of the May 2020 JMPR that the Board previously failed to adequately discuss the Veteran's pain and presence of flare-ups, the Board notes that the cases of Correia and Sharp discussed and clarified, to the extent there was pain on weight-bearing or non-weight bearing, and functional limitations during flare-ups, the Diagnostic Code currently specifically encompasses this consideration in assigning the 40 percent rating based on limitation of extension for the period prior to December 21, 2015.  Here, the Board notes that the Veteran denied experiencing flare-ups of the right knee during every examination of record, except the December 2012 VA examination.  He did, however, consistently report pain and functional limitations of the right knee.  Therefore, in assigning the 40 percent rating based on limitation of extension for the period prior to December 21, 2015, the Board has specifically considered the Veteran's reported pain and functional limitations described in the examinations of record, even without any express statements that he suffered from flare-ups.  See June 2011, December 2012, and February 2103 VA examinations.

Accordingly, as the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not for application, and the claim must be denied.  38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

Right Knee Instability Prior to December 21, 2015

The Veteran is also in receipt of a separate rating of 10 percent for instability of the right knee pursuant to Diagnostic Code 5271 prior to December 21, 2015.  He is seeking a higher rating.  

Based on the evidence as discussed above, the record does not support a finding that the Veteran's instability of the right knee may be considered moderate or severe in nature for the period prior to December 21, 2015, thereby warranting a higher rating.  

Based on the evidence as discussed above, the record does not support a finding that the Veteran's instability of the right knee may be considered moderate or severe in nature at any point during the appeals period.  In fact, after a review of the evidence of record, there was no indication of instability of the right knee in any of the examinations prior to December 21, 2015.  See June 2011, December 2012, and February 2013 VA examinations.  These findings (i.e., lack of objective findings of instability/ subluxation) were confirmed in a June 2021 VA medical opinion.  See June 2021 VA Medical Opinion. 

The Board has considered the Veteran's reports of buckling, giving way, and loosening.  See May 2011 Statement in Support of Claim.  However, as no objective indications of these occurrences were recorded in the record, the Board does not find evidence to support a rating in excess of 10 percent.  Similarly, the VA examinations have consistently found there is no evidence of lateral instability or subluxation to warrant a higher rating.  See English v. Wilkie, 30 Vet. App. 347, 349 (2018) (holding that the Board may weigh competent lay evidence of lateral knee instability and is free to discount lay evidence provided it supports its conclusion with an adequate statement of reasons or bases).  As such, the Board finds the lack of objective evidence in the VA examinations, VA treatment records, and private treatment records outweighs the Veteran's statements.  Thus, a rating in excess of 10 percent is not warranted for the right knee prior to December 21, 2015.

Accordingly, as the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not for application, and the claim must be denied.  38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

4. Wolff-Parkinson White Syndrome

The Veteran's heart disorder is rated as 10 percent disabling under 38 C.F.R. § 4.104, Diagnostic Code 7010 which governs ratings of supraventricular arrhythmias.  The Veteran filed his claim for an increased rating for this disability on July 11, 2011.  Therefore, the applicable appeals period is from July 11, 2010, one year prior to the date of receipt of the claim.

When evaluating disabilities of the cardiovascular system under diagnostic codes 7000-7007, 7011, and 7015-7020, it must be ascertained in all cases whether or not cardiac hypertrophy or dilatation (documented by electrocardiogram (EKG), echocardiogram (ECG), or X-ray) is present and whether or not there is a need for continuous medication.  38 C.F.R. § 4.100 (2020).  METs testing is also required in all cases except: (1) when there is a medical contraindication; (2) when the left ventricular ejection fraction has been measured and is 50% or less; (3) when chronic congestive heart failure is present or there has been more than one episode of congestive heart failure within the past year; (4) when a 100% evaluation can be assigned on another basis.  Id.  If left ventricular ejection fraction (LVEF) testing is not of record, the cardiovascular disability must be evaluated based on the alternative criteria unless the examiner states that the LVEF test is needed in a particular case because the available medical information does not sufficiently reflect the severity of the veteran's cardiovascular disability.

Diagnostic Code 7010 provides a 10 percent rating for permanent atrial fibrillation (one atrial fibrillation), or; one to four episodes per year of paroxysmal atrial fibrillation or other supraventricular tachycardia documented by echocardiography (ECG) or Holter monitor.  A 30 percent rating is assignable for paroxysmal atrial fibrillation or other supraventricular tachycardia, with more than four episodes per year documented by ECG or Holter monitor.  

In connection with this appeal, the Veteran was scheduled for a VA examination in June 2016.  The VA examiner confirmed the long-standing diagnosis of Wolff-Parkinson White syndrome with supraventricular arrhythmia.  The Veteran was noted to require the use of continuous medication for his heart disability.  As to the frequency of the Veteran's atrial fibrillation, it was noted to be intermittent with no episodes in the past 12 months, so from June 2015 to June 2016.  As for supraventricular tachycardia, it was also noted be intermittent, with 1 to 4 episodes in the past 12 months.  

A physical examination was conducted and noted to be normal.  There was no indication of any other physical findings, complications, conditions, signs, symptoms and scars.  The examiner reviewed the findings of a February 2015 EKG, conducted by the Veteran's private physician, which showed left ventricular ejection fraction (LVEF) of 60 percent and frequent premature atrial contractions, but no atrial fibrillation.  The examiner also noted a stress conducted in February 2015 revealed 7.2 metabolic equivalents (METs), with no evidence of ischemia.  In comparison, the June 2016 examiner performed an interview-based stress test which revealed METs between 5 and 7, with dyspnea and shortness of breath.  

The Veteran was reexamined by VA in July 2019.  The examiner noted the Veteran did not require the constant use of medication for his heart disability.  As to the frequency of the Veteran's atrial fibrillation, it was noted to be intermittent with 1 to 4 episodes in the past 12 months, so from July 2018 to July 2019.  No other physical findings were noted.  Further, an EKG revealed ECG without significant abnormalities and a chest x-ray showed aortic calcification.  A stress conducted in August 2018 revealed LVEF of 63 percent.  The examiner performed an interview-based stress test during which the Veteran denied experiencing symptoms attributable to a cardiac condition with any level of physical activity.  Consequently, a METs level was not provided. 

A stress test and EKG were conducted in June 2021, which revealed LVEF of 55 percent.  

Thereafter, the Veteran was reexamined again by VA in July 2021.  The examiner noted the Veteran's current symptoms are intermittent feeling of fluttering, tightness, shortness of breath, fatigue, and dizziness.  The examiner stated that the Veteran's heart disability requires the constant use of medication (asprin).  As to the frequency of the Veteran's atrial fibrillation, it was noted to be intermittent with 1 to 4 episodes in the past 12 months, so from July 2020 to July 2021.  During the interview-based METs test, the Veteran reported symptoms of dyspnea, fatigue, angina, and dizziness.  METs level was found to be greater than 3 but less than 5, and was consistent with activities such as light yard work (weeding), mowing lawn (power mower), and brisk walking (4mph).  The METs level provided is due solely to the Veteran's heart condition.  Finally, the VA examiner also included a diagnosis of valvular heart disease that likely developed from the strain on his heart from years of the service-connected Wolff-Parkinson White Syndrome with atrial fibrillation.  The examiner stated that the service-connected disability can weaken the heart valves and cause regurgitation to occur and is a direct progression of the service connected disability.  

In the accompanying July 2021 VA opinion, the VA examiner opined that the Veteran's severity of the Wolff-Parkinson White Syndrome with rapid atrial fibrillation for the period from July 11, 2010 was moderate.  Prior to 2011, he was able to perform most activities without symptoms.  However, the VA examiner also stated that since then, he has had to reduce his activities.  See July 2021 VA addendum opinion. 

Further, it was again noted that the echo performed with the July 2021 VA examination shows the development of valvular heart disease in addition to the already service connected disability, which is a progression and worsening of the heart disability and is more likely than not why his symptom frequency and severity has increased.  

In an August 2021 VA addendum opinion, the July 2021 VA examiner noted that a METs exercise test was not able to be performed because it would have been medically unsafe for the Veteran.  The Veteran reported dyspnea and fatigue on the exam from walking up 2 flights of stairs to the office where the exam was performed, and performing exercise testing on the already symptomatic Veteran would have been very difficult and unsafe for the Veteran.  The examiner noted that, during the interview based METs testing, she was able to determine that light activity, such as a slow walk can trigger the symptoms of dyspnea, fatigue, and dizziness to occur.  

Finally, another August 2021 VA addendum opinion, in relevant part, noted that Wolff-Parkinson White Syndrome with rapid atrial fibrillation is a congenital abnormality that, in this case, started mild and has progressed to a moderate level.

Also of record are VA and private treatment records that show the Veteran has received consistent treatment for his Wolff-Parkinson White syndrome and associated heart disabilities.  However, these records do not contain any additional objective medical findings materially different from the findings as noted in the June 2016, July 2019, and July 2021 VA examinations. 

After reviewing the evidence, the Board finds that the Veteran is not entitled to a disability rating in excess of 10 percent for his heart disability pursuant to Diagnostic Code 7010.  The weight of the evidence demonstrates that the Veteran's heart disability does not fulfill the criteria for a disability rating of 30 percent, which is the next highest rating under Diagnostic Code 7010. 

In this respect, a higher 30 percent disability rating requires evidence of paroxysmal atrial fibrillation or other supraventricular tachycardia, with more than 4 episodes per year documented by an ECG or Holter monitor.  The VA examinations conducted during the appeals period failed to reveal evidence of supraventricular tachycardia or paroxysmal atrial fibrillation with more than 4 episodes a year.  In fact, the June 2016 VA examination indicated there was no evidence of intermittent arrythmia within the past 12 months.  The July 2019 and July 2021 VA examinations noted episodes occurring 1 to 4 times a year.  

Thus, given that the Veteran's symptoms do not fulfill the criteria warranting a 30 percent rating under Diagnostic Code 7010, a rating in excess of 10 percent under this diagnostic code is not warranted at any point during the appeals period.  

The Board also considered alternative diagnostic codes which may be applicable to the Veteran's heart disability.  The Board notes that the RO granted the Veteran a separate rating of 30 percent under Diagnostic Code 7000 for valvular heart disease, effective from June 27, 2016, and a rating of 60 percent thereafter.  However, as the Veteran has not appealed this separate and distinct heart disability, the Board does not have jurisdiction to evaluate the ratings assigned.  See August 2021 Rating Decision. 

The only other potentially applicable diagnostic code is 7011 for ventricular arrhythmias.  The evidence of record does not otherwise show the Veteran has endocarditis, pericarditis, pericardial adhesions, syphilitic heart disease, arteriosclerotic heart disease, myocardial infarction, hypertensive heart disease, hyperthyroid heart disease, atrioventricular block, a heart valve replacement, a coronary bypass surgery, implantable cardiac pacemakers, cardiac transplantation, or cardiomyopathy.  See 38 C.F.R. § 4.104, Diagnostic Codes 7001-7008, 7015-7020 

The facts of the case, however, do not support application of Diagnostic Code 7011.  As noted, the Veteran is already in receipt of a 30 percent rating under Diagnostic Code 7000 for valvular heart disease, effective from June 27, 2016, and a rating of 60 percent thereafter.  This Diagnostic Code includes consideration of diagnostic findings of cardiac hypertrophy and left ventricular dysfunction and evaluates the Veteran's disability based on METs resulting in dyspnea, fatigue, and angina.  The Veteran may not be compensated twice for the same symptomatology; as this would result in pyramiding in violation of 38 C.F.R. § 4.14 (2020).  Thus, the Veteran's Wolff-Parkinson White syndrome is appropriately rated under Diagnostic Code 7010 and a disability rating under Diagnostic Code 7011 is not permissible.  See Butts v. Brown, 5 Vet. App. 532, 538 (1993). 

In reaching the above conclusions, the Board has considered the Veteran's statements in support of his claim dated in December 2016, August 2017, and October 2019 that indicate it is his belief he suffers from more than 4 episodes of atrial fibrillation in a 12 month period.  In fact, it has been his contention throughout the entire appeals period that he suffers more than 4 episodes a year.  The Veteran reiterated these statements in his September 2018 Board hearing.  The Veteran is also certainly competent to report how he believes his heart disability has affected his life, including describing his observable symptoms.  Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009).  The Board finds the VA examinations are reflective of the symptoms as noted in these statements and include competent and credible the medical opinions, as discussed above, in rendering a decision as to the severity of the Veteran's disability.  Moreover, the objective medical evidence, such as episodes of atrial fibrillation have not been documented by either ECG or Holter monitors as required under the diagnostic criteria.  

Therefore, the Board finds a rating in excess of 10 percent for Wolff-Parkinson White syndrome is not warranted.  See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991).

 

 

YVETTE R. WHITE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	T. Berry, 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.