Citation Nr: 21073961 Decision Date: 12/13/21 Archive Date: 12/13/21 DOCKET NO. 17-66 858 DATE: December 13, 2021 ORDER 1. Entitlement to a 20 percent rating for a left knee disability prior to April 1, 2018, is granted. 2. Entitlement to a rating in excess of 20 percent for a left knee disability from April 1, 2018, to November 10, 2020, excluding the periods during which a temporary total rating was in effect, is denied. 3. Entitlement to a compensable rating for limitation of extension prior to April 27, 2018, for a left knee disability is denied. 4. Entitlement to a rating greater than 10 percent for limitation of extension of the left knee, for the period from April 27, 2018 to November 10, 2020, is denied. 5. Entitlement to a separate 10 percent rating for left knee instability prior to November 10, 2020, is granted. FINDINGS OF FACT 1. For the period prior to November 10, 2020, the date of his total knee replacement, The Veteran's left knee disability most nearly approximated a disability manifested by symptoms of frequent episodes of locking, pain, and effusion into the joint, but no compensable limitation of flexion; no ankylosis; no tibia or fibula impairment, no genu recurvatum impairment, and no additional functional loss. 2. Prior to April 27, 2018, the Veteran's extension of the left knee was limited to no worse than 3 degrees. 3. From April 27, 2018, to November 10, 2020, the Veteran's left knee extension was limited to no worse than 10 degrees. 4. The Veteran's left knee instability manifested as no more than slight for the period prior to his total knee replacement on November 10, 2020. CONCLUSIONS OF LAW 1. Prior to April 1, 2018, the criteria for entitlement to a 20 percent rating for a left knee disability have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.25, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5258. 2. From April 1, 2018, to November 10, 2020, the criteria for entitlement to a rating in excess of 20 percent for a left knee disability have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.25, 4.40, 4.45, 4.59, 4.71a, DC 5258. 3. Prior to April 27, 2018, the criteria for a compensable rating for limitation of left knee extension have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.25, 4.40, 4.45, 4.59, 4.71a, DC 5261. 4. From April 27, 2018, the criteria for a rating greater than 10 percent for limitation of left knee extension, have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.25, 4.40, 4.45, 4.59, 4.71a, DC 5261. 5. The criteria for entitlement to a separate 10 percent rating for left knee instability have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.25, 4.40, 4.45, 4.59, 4.71a, DC 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from December 1971 to April 1972 and from March 1974 to June 1974. The Veteran testified before the undersigned Veterans Law Judge in August 2021. A transcript of that hearing is of record. The Board notes that the Veteran is in receipt of a total rating for his left knee under 38 C.F.R. § 4.71a, Diagnostic Code 5055, from November 10, 2020, to January 1, 2022. As this is the highest rating available, there is no case or controversy for the Board to address regarding the rating for his left knee after November 10, 2020, given that at the time of this decision, December 2021, the Veteran is still in receipt of a total rating. If the Veteran wishes to challenge the rating that goes into effect on January 1, 2022, he should file a claim for an increase at that time. 1. Entitlement to an increased rating for a left knee disability The Veteran seeks an increased rating for his left knee disability. The Veteran contends that his left knee disability is worse than is contemplated by the 10 percent rating assigned prior to April 1, 2018, and the 20 percent rating based on frequent episodes of locking and effusion with a separate10 percent rating based on limitation of extension assigned thereafter. Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). The Veteran's entire history is reviewed when making disability evaluations. See generally, Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. Where, as in the case of the issue on appeal, the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of staged ratings are required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Further, "[w]here there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned."38C.F.R. § 4.7 (2017). In addition, when assessing the severity of a musculoskeletal disability that is rated on the basis of limitation of motion, VA must also consider the extent that the veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when her symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination. See DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. When evaluating musculoskeletal disabilities, VA must consider whether a higher evaluation is warranted, where the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). Painful motion is an important factor of disability, and it is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. See 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). Nevertheless, pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Moreover, functional impairment must be supported by adequate pathology. Id.; Johnson v. Brown, 9 Vet. App. 7, 10 (1996) (both citing to 38 C.F.R. § 4.40). The Board acknowledges that the ratings criteria for the musculoskeletal system was updated during the appeal period, effective February 7, 2021; that new criteria will be address in a separate section below. Prior to April 1, 2018, the Veteran's left knee disability was rated under Diagnostic Code 5003-5260, which compensates for degenerative arthritis and limitation of flexion of the knee for painful motion that does not meet the criteria for compensable limitation of motion. See Burton, supra; 38 C.F.R. § 4.59. Under Diagnostic Code 5260, a noncompensable rating is assigned for limitation of flexion to 60 degrees. A 10 percent rating is assigned for limitation of flexion to 45 degrees. A 20 percent rating is assigned for limitation of flexion to 30 degrees. Finally, a 30 percent rating is assigned to limitation of flexion to 15 degrees or less. 38 C.F.R. § 4.71a, DC 5260. Under Diagnostic Code 5261, a noncompensable rating for extension limited to 5 degrees, a 10 percent rating is assigned for extension limited to 10 degrees, a 20 percent rating for extension limited to 15 degrees, a 30 percent rating for extension limited to 20 degrees, a 40 percent rating for extension limited to 30 degrees, and a 50 percent rating for extension limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Normal range of motion of the knee is to 0 degrees extension and to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. The Board observes that when a rating based on limitation of motion is noncompensable, but pain is evident, a 10 percent rating is appropriate for the joint in question. 38 C.F.R. § 4.71a, DC 5003. A separate rating may be assigned for knee disabilities based on limitation of flexion as well as limitation of extension of the knee. Likewise, separate ratings may be assigned based on limitation of motion, as well as instability or subluxation, if found. See VAOPGCPREC 23-97 (Multiple Ratings for Knee Disability). Diagnostic Code 5257 provides 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. For purposes of the analyses below, the Board observes that the terms "slight," "moderate" and "severe" are not defined in VA regulations, and the Board must arrive at an equitable and just decision after having evaluated the evidence. 38 C.F.R. § 4.6. DC 5258 assigns a 20 percent rating based on dislocation of semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. 38 C.F.R. § 4.71a, DC 5258. The Veteran's left knee disability was rated under DC 5258 from April 1, 2018 to November 10, 2020. DC 5259 assigns a 10 percent rating based on symptomatic removal of semilunar cartilage. 38 C.F.R. § 4.71a, DC 5259. Disabilities of the knees may also be granted for ankylosis, impairment of the tibia or fibula, or genu recurvatum. However, the medical evidence of record does not support any such pathology. Thus, these provisions will not be considered. During the pendency of this appeal, the Veteran underwent a total knee replacement on November 10, 2020, he was assigned a 100 percent rating as of this date, until January 1, 2022, then rated 30 percent disabling under DC 5055 for knee replacement. 38 C.F.R. § 4.71a, DC 5055 (2016). The Board is remanding the rating for this period, so for the period from January 1, 2022, is addressed in the remand portion of the decision. The Board acknowledges the Veteran has been awarded a temporary total disability rating for the left knee from August 26, 2016 to December 1, 2016, from December 19, 2017 to April 1, 2018, from April 16, 2019 to June 1, 2019, and from November 10, 2020 to January 1, 2022. As the Veteran is in receipt of the highest available rating for these dates, the Board will not address these periods further. The Board also notes that the Veteran is separately rated for scars associated with his right knee disability, and that rating is not on appeal. As such, the Board will not discuss the Veteran's knee scars or rating criteria pertaining to scars. Factual background The Veteran filed his claim for an increased rating on September 14, 2016. Therefore, the period on appeal begins September 14, 2015. Turning to the evidence, VA treatment records from December 2015 reveal evidence of small knee joint effusion, articular cartilage defects and left knee meniscal tears with tibial malunion. In August 2016, a VA physician noted flexion on passive range of motion was limited to 125 degrees with full extension. The Veteran underwent knee surgery in August 2016. In October 2016, range of motion testing revealed flexion limited to 131 degrees. The Veteran underwent a VA examination in December 2017. The examiner noted the Veteran had outward bowing of the left leg as a result of a fracture deformity of the left tibia with upcoming corrective surgery. The Veteran reported flare-ups marked by pain in the left knee and in the mid tibia. He reported functional loss int the form of trouble walking and bending. Active range of motion was limited to 100 degrees with extension to 0. Pain was noted on examination with flexion and caused functional loss. There was evidence of pain with weight bearing. There was no evidence of localized tenderness or pain on palpation, pain with weight bearing, pain with passive motion or objective evidence of crepitus. There was no additional loss of function or range of motion after repetitive use testing. Pain was noted to significantly limit functional ability with flare ups and repeated use over time. However, the examiner did not provide a description in terms of range of motion and did not provide an adequate reason for failing to do so. Interference with standing was noted as an additional contributing factor of disability. Left knee muscle strength was normal. There was no evidence of muscle atrophy or ankylosis. The examiner did not find a history of recurrent subluxation or effusion. Joint stability testing was normal. The examiner indicated the Veteran had no history of recurrent patellar dislocation, shin splints, stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairments. The examiner noted the Veteran had no history meniscus conditions. However, the examiner went on to indicate the Veteran had a meniscectomy in 2016. The examiner noted the Veteran constantly used a cane and would be unable to perform manual labor due to his disability. VA treatment records from April 5, 2018 reveal extension limited to 3 degrees and flexion to 120 degrees. There was no joint effusion or warmth. There was mild swelling near the site of the tibia deformity correction but no erythema. The Veteran underwent a second VA examination on April 27, 2018. The Veteran described flare-ups marked by selling and locking of the knee. The examiner document functional loss in that the Veteran was unable to climb stairs, kneel, or squat. The Veteran also reported he was unable to sit or stand for long periods of time. Range of motion testing revealed flexion limited to 60 degrees with extension to 5 degrees. Abnormal range of motion contributed to the Veteran's inability to climb stairs. There was objective evidence of painful motion with flexion and extension. There was objective evidence of localized tenderness over the entire knee and objective evidence of crepitus. Additionally, the examination revealed pain with weight bearing, non-weight bearing and passive motion. The Veteran was able to perform repetitive use testing without additional loss of function. Pain significantly limited functional ability with flare ups and repeated use over time. The examiner estimated range of motion would be limited to 50 degrees of flexion and 10 degrees of extension. The examiner noted less movement than normal, weakened movement, instability of station, disturbance of locomotion and interference with sitting as additional contributing factors of disability. Muscle strength was diminished but there was no evidence of muscle atrophy. There was no evidence of ankylosis, and stability tests were normal. The examiner noted a history of recurrent effusion. The examiner indicated the Veteran had no history of recurrent patellar dislocation, shin splints, stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairments. The examiner documented a meniscal tear, frequent episodes of joint locking and effusion after the Veteran's knee surgery in 2014. The Veteran reported occasional use of a wheelchair and crutches and regular use of a cane and walker. The examiner found functional impairment of an extremity such that no effective functions remained other than that which would be equally well served by an amputation with prosthesis. The examiner noted the Veteran needed a total knee replacement. May 2018 VA treatment records note the Veteran complained of persistent swelling in both lower legs and sporadic left knee locking. June 2019 records document the Veteran's reports of worsening pain. A VA physician noted mild dependent edema. Range of motion testing showed extension limited to 10 degrees and flexion to 110 degrees. There was no effusion or warmth. The Veteran underwent another VA examination in August 2019. The Veteran described flare-ups marked by additional pain. The examiner document functional loss in that the Veteran had pain with walking, standing, or sitting too long. Range of motion testing revealed flexion limited to 100 degrees with extension to 0 degrees. The Veteran was unable to perform passive range of motion testing due to pain. There was objective evidence of painful motion with flexion and extension. There was no objective evidence of localized tenderness nor objective evidence of crepitus. The Veteran was able to perform repetitive use testing without additional loss of function. Pain significantly limited functional ability with flare ups and repeated use over time. The examiner estimated range of motion would be limited to 90 degrees of flexion with full extension. The examiner noted interference with standing as an additional contributing factor of disability. Muscle strength was normal there was no evidence of muscle atrophy. There was no evidence of ankylosis, and stability tests were normal. The examiner noted a history of recurrent effusion. The examiner indicated the Veteran had no history of recurrent patellar dislocation, shin splints, stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairments. The examiner documented a meniscal tear. The Veteran reported occasional use of a walker and regular use of a cane. The Veteran testified at a hearing before the Board in August 2021. The Veteran reports it was hard for him to sit, stand, or walk. He testified that he used a can for short distances and a walker for long distances. He reported that he had a total knee replacement in November 2020. The Veteran testified that prior to the surgery, his knee gave out causing him to fall on a few occasions. Additionally, the Veteran testified that his knee was occasionally warm to the touch and would lock up on him. He reported flare ups marked by additionally pain, coloration of the knee and burning in the knee. Analysis for the period prior to November 10, 2020 For the period prior to April 1, 2108, excluding periods during which a total disability rating was in effect, the Veteran's disability was assigned a 10 percent rating under DC 5003-5260 for functional loss due to painful motion pursuant to 38 C.F.R. § 4.59. From April 1, 2018, the Veteran's left knee disability was assigned a 20 percent rating under DC 5258 for pain, locking and effusion of the meniscal cartilage. From April 27, 2018 the Veteran is in receipt of a separate 10 percent rating for limitation of extension under DC 5261. For the period prior to April 1, 2018, at his August 2021 hearing, the Veteran testified that he experienced frequent episodes of locking in the left knee for the entire period on appeal. The record supports the Veteran's testimony. Although the Veteran began experiencing increased pain in April 2018, VA treatment records reveal the Veteran experienced episodes of locking and effusion prior to that date. In fact, the April 2018 VA examiner found evidence of a meniscal tear and frequent episodes of joint locking and effusion immediately after the Veteran's knee surgery in 2014. Thus, the Board finds that a 20 percent rating for pain, locking and effusion of the meniscal cartilage is appropriate for the period prior to April 1, 2018. 38 C.F.R. § 4.71a, Diagnostic Code 5258. For the period prior to April 27, 2018, the Board has considered whether, a separate compensable rating is appropriate based on limitation of flexion or extension of the left knee but finds that no separate ratings are warranted. Prior to April 27, 2018, the Veteran's left knee disability was manifested by flexion limited to 100 degrees at worst and extension to 0 degrees at worst. Therefore, the Veteran does not meet the criteria for a compensable rating under either DC 5260 or DC 5261 based solely on limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Codes 5261, 5261. Given that the Veteran's painful motion is compensated in the newly assigned 20 percent rating under Diagnostic Code 5258, assigning separate ratings for noncompensable painful limitation of motion would be prohibited pyramiding. 38 C.F.R. § 4.14. For the period from April 1, 2018 and April 27, 2018, as noted, the record indicates the Veteran's left knee disability was manifested by flexion limited to 50 degrees with extension to 10 degrees from April 27, 2018. Under DC 5260, the Veteran would not be entitled to a compensable rating for limitation of flexion for this period. Under diagnostic code 5261, a separate compensable rating was assigned based on limitation of extension of the left knee. A higher evaluation of 20 percent is not warranted after April 27, 2018 as there is no evidence that extension of the left knee is limited to 15 degrees as required for a higher rating. Thus, a rating greater than 20 percent under Diagnostic Code 5258 and a rating greater than 10 percent under Diagnostic Code 5261, are not warranted for this period. The Board has also considered a separate rating under DC 5257 for instability of the left knee. The Veteran testified that his knee gave out a few times causing him to fall. Thus, at this time the Veteran competently reported experiencing actual symptoms of lateral instability. Therefore, despite the absence of medical findings of instability for this period, the Board resolves all reasonable doubt in favor of the Veteran and finds that a separate rating for left knee instability is warranted for the entire period on appeal. See English v. Wilkie, supra. A higher rating is not warranted given there is no objective evidence of instability and there is no indication that the Veteran ever needed to use assistive devices to stabilize his knee. New Regulations Effective February 7, 2021 The Board notes that the criteria for knee disabilities have changed during the period covered by this appeal, effective February 7, 2021. See 85 Fed. Reg. 75453 (November 30, 2020). When a law or regulation changes during the pendency of a Veteran's appeal, the version most favorable to the Veteran applies, absent congressional intent to the contrary. The amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change. However, the old regulations will be considered for the periods both before and after the change was made. See 38U.S.C. §5110 (g); 38C.F.R. §3.114; VAOPGCPREC 3-2000, 65 Fed. Reg. 33422 (2000); Kuzma v. Principi, 3541 F.3d 1327 (Fed. Cir. 2003). Thus, the Veteran is entitled to application of the criteria that are most favorable to his claim, except that an award based on the amended regulations may not be made effective before the effective date of the change. The Board has considered these changes and finds that the new criteria respecting evaluations of knee disabilities are not as advantageous to the Veteran in this case, and that the Veteran does not meet the criteria for a higher evaluation. Diagnostic Code 5003, effective February 7, 2021, is substantively unchanged. To this point, the Board notes that Diagnostic Code 5003 was revised to reflect that this Diagnostic Code only applies to degenerative arthritis. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76460 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5003). Changes were made to Diagnostic Code 5257 governing instability, which added the requirement of either (1) sprain of or tear (either complete or incomplete) of a knee ligament causing persistent instability, or (2) a diagnosed condition of the patellofemoral complex with recurrent instability (with or without surgical repair); and (3) assistive devices or bracing (either by prescription or not) to the criteria, which were not present in the old pre-February 7, 2021 criteria. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38C.F.R. §4.71a, Diagnostic Code 5257). Because the new criteria under Diagnostic Code 5257 require more specific criteria than the old criteria, they are less advantageous to the Veteran. The Veteran is already in receipt of 10 percent rating for instability of the left knee under the prior version of rating schedule and a higher rating under the new criteria is not warranted. While the record demonstrates that the Veteran has sustained a ligament tear of the left knee, it does not demonstrate that he has persistent or recurrent instability, as required under the new criteria. As noted, all of the VA examiners have concluded that there is no evidence of recurrent subluxation or lateral instability and stability testing has been normal in both knees. Furthermore, the Veteran has only reported his knee giving way "a few times". Accordingly, the Board does not find that higher ratings for instability are warranted for the period beginning February 7, 2021, when contemplating the new Rating Schedule criteria effective that date. In sum, the Board finds that the weight of the evidence supports an evaluation of 20 percent, but no higher, for the left knee disability under diagnostic code 5258 prior to November 10, 2020, excluding period during which a total disability rating was in effect. Finally, the preponderance of the evidence supports a separate 10 percent rating for instability of the left knee under DC 5257. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.7, 4.71a. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Sherman Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.