Citation Nr: 21074164 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 17-50 253A DATE: December 14, 2021 ORDER Entitlement to a noninitial disability rating in excess of 10 percent for right knee degenerative joint disease (DJD) manifested by painful limitation of extension is denied. Entitlement to a noninitial disability rating in excess of 10 percent for left knee DJD manifested by painful limitation of extension is denied. Since August 14, 2017, a separate initial 10 percent rating, but no higher, for right knee DJD manifested by painful limitation of flexion is granted. Since August 14, 2017, a separate initial 10 percent rating, but no higher, for left knee DJD manifested by painful limitation of flexion is granted. Since August 14, 2017, a separate initial 10 percent rating, but no higher, for slight right knee instability is granted. Since August 14, 2017, a separate initial 10 percent rating, but no higher, for slight left knee instability is granted. REMANDED Entitlement to an initial disability rating in excess of 10 percent prior to November 2, 2017 and in excess of 20 percent thereafter for a service-connected lumbar spine disability is remanded. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran's bilateral knee DJD has been manifested by painful limitation of extension to zero degrees. 2. Throughout the appeal period, the Veteran's bilateral knee DJD has been manifested by painful limitation of flexion to at most 120 degrees. 3. Throughout the appeal period, the Veteran's bilateral knee disability has been manifested by slight instability. CONCLUSIONS OF LAW 1. The criteria for a noninitial disability rating in excess of 10 percent for right knee DJD manifested by painful limitation of extension are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.71a, Diagnostic Code (DC) 5261. 2. The criteria for a noninitial disability rating in excess of 10 percent for left knee DJD manifested by painful limitation of extension are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.71a, DC 5261. 3. Since August 14, 2017, a separate initial 10 percent rating, but no higher, for right knee DJD manifested by painful limitation of flexion are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.71a, DC 5260. 4. Since August 14, 2017, a separate initial 10 percent rating, but no higher, for left knee DJD manifested by painful limitation of flexion are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.71a, DC 5260. 5. Since August 14, 2017, the criteria for a separate initial 10 percent rating for slight right knee instability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.71a, DC 5257. 6. Since August 14, 2017, the criteria for a separate initial 10 percent rating for slight left knee instability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.71a, DC 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1985 to October 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from July 2015 (lumbar spine) and November 2017 (bilateral knee) rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). Of note, in the September 2018 VA form 9, Substantive Appeal, the Veteran declined an optional Board hearing on this claim. In the April 2019 Board decision, it denied service connection for tinnitus, referred the claims of entitlement to service connection for a right shoulder disability and a petition to reopen a previously denied claim of entitlement to service connection for a skin disability to the RO for appropriate action, and remanded the claims for increased ratings for the lumbar spine and bilateral knee disabilities. Increased Ratings 1. Entitlement to a noninitial disability rating in excess of 10 percent for right knee DJD manifested by painful limitation of extension is denied. 2. Entitlement to a noninitial disability rating in excess of 10 percent for left knee DJD manifested by painful limitation of extension is denied. 3. Since August 14, 2017, a separate initial 10 percent rating, but no higher, for right knee DJD manifested by painful limitation of flexion is granted. 4. Since August 14, 2017, a separate initial 10 percent rating, but no higher, for left knee DJD manifested by painful limitation of flexion is granted. 5. Since August 14, 2017, a separate initial 10 percent rating, but no higher, for slight right knee instability is granted. 6. Since August 14, 2017, a separate initial 10 percent rating, but no higher, for slight left knee instability is granted. General Rating Principles Disability ratings are determined by the application of rating criteria set forth in the VA Schedule for Rating Disabilities (38 C.F.R. Part 4) based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation of parts of the system, to perform the normal working movements of the body with normal excursion, strength, coordination, and endurance. 38 C.F.R. § 4.40. The functional loss may be due to the loss of part or all of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervations, or other pathology, or it may be due to pain, supported by adequate pathology, and evidenced by visible behavior of the claimant undertaking the motion. Id. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. Other important factors include excess fatigability, or incoordination (to include during flare-ups or with repeated use), and those factors are not contemplated in the relevant rating. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged ratings" is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Additionally, the primary concern for an increased rating for a service-connected disability is the present level of disability. Although the overall history of the disability is to be considered, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In all claims for an increased disability rating, VA has a duty to consider the possibility of assigning staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. Where 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 is assigned. 38 C.F.R. § 4.7. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided. 38 C.F.R. § 4.14. Rating Criteria Under DC 5260, a 10 percent disability rating is assigned for flexion limited to 45 degrees, a 20 percent disability rating is assigned for flexion limited to 30 degrees, and a 30 percent disability rating is assigned for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. Under DC 5261, a noncompensable rating is warranted for limitation of extension to 5 degrees, a 10 percent rating is warranted for limitation of extension to 10 degrees, a 20 percent rating is warranted for limitation of extension to 15 degrees, a 30 percent rating is warranted for limitation of extension to 20 degrees, a 40 percent rating is warranted for limitation of extension to 30 degrees, and a 50 percent rating is warranted for limitation of extension to 45 degrees. 38 C.F.R. § 4.71a, DC 5261. Pursuant to 38 C.F.R. § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in. Pettiti v. McDonald, 27 Vet. App. 415, 425 (2015) (holding that § 4.59 serves as a bridge linking painful motion and limitation of motion, such that a claimant with painful motion is deemed to have limited motion under DC 5003 even though actual motion is not limited). Moreover, the provisions of 38 C.F.R. § 4.59 relating to painful motion are not limited to arthritis, so must be considered when raised by the claimant or reasonably by the record, even in non-arthritis contexts. See Burton v. Shinseki, 25 Vet. App. 1 (2011). To this end, 38 C.F.R. § 4.59 allows consideration of functional loss due to painful motion to be rated to at least the minimum compensable rating for a particular joint. DC 5257 evaluates recurrent subluxation or lateral instability of a knee, and provides a 10 percent rating for slight impairment, a 20 percent rating for moderate impairment, and a 30 percent rating for severe impairment. 38 C.F.R. § 4.71a. The words "slight", "moderate", and "severe" used in DC 5257 are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The Board does note, for reference and illustrative purposes only, that the definitions for "mild" includes not very severe. WEBSTER'S II NEW COLLEGE DICTIONARY at 694 (1995). A synonym for "mild" is "slight," which is defined as small in size, degree, or amount. Id. at 1038. The definitions for "moderate" include of average or medium quantity, quality, or extent. Id. at 704. Finally, definitions for "severe" include extremely intense. Id. at 1012. DC 5258 provides a 20 percent rating for cartilage, semilunar, dislocated, with frequent episodes of "locking," pain, and effusion into the joint. 38 C.F.R. § 4.71a, DC 5258. This is the only rating available under this DC. Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Thus, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. Bilateral Knees The Veteran is in receipt of a 10 percent rating from June 22, 2011, for right knee and left knee left knee DJD manifested by painful limitation of extension. As this is a noninitial increased rating claim, the period on appeal is from August 14, 2017, the date the Veteran filed his intent to file (October 2017 is when he filed the claim on the prescribed form, within a year of the intent to file), plus the one-year "look back" period. Gaston v. Shinseki, 605 F.3d 979, 982 Fed. Cir. (2010). In affording the benefit of the doubt to the Veteran, since August 14, 2017, he has complained of chronic pain, instability, and limited range of motion in his right and left knees. He also reported occasional use of a knee brace and a cane to steady himself. See September 2017 Private treatment note; November 2017 VA examination; January 2020 VA examination. A September 2017 private treatment record noted the Veteran has stiffness, decreased range of motion, instability, difficulty bearing weight, and that his symptoms were worsening. The Veteran was afforded a VA examination in November 2017. The Veteran reported no flare-ups. There was functional loss noted in that he has problems with prolonged standing, walking, and sitting; has to walk slowly, as his knees "lock up" on him; and he has pain ascending and descending the stairs. Examination revealed ranges of motion to 120 degrees of flexion and zero degrees of extension in the right and left knees and objective evidence of painful motion on flexion and extension that causes functional loss. There was no additional loss after repetitive use. Although the Veteran was not examined immediately after repetitive use over time, the examiner found that that bilaterally, DeLuca factors did not significantly limit functional ability, and there were no additional contributing factors of the bilateral disability. There was no ankylosis, subluxation, joint instability, history of recurrent effusion, recurrent patellar dislocation, "shin splints", stress fractures, chronic exertional compartment syndrome, or any other tibial and/or fibular impairment indicated. It was noted the Veteran occasionally uses a knee brace for added support due to his knee condition. There was functional impact on his current employment in that he may miss work at times whenever his pain intensifies because he has difficulty sitting for prolonged periods of time. In the Veteran's July 2018 VA Form 9, he stated that he cannot walk for long distances due to pain and instability; has flare-ups; has lots of pain in both knees; he experiences extreme discomfort when walking up the stairs and his knees "give out;" and on occasion, bending his knees can be very painful. The Veteran was afforded another VA examination in January 2020. Again, the Veteran reported no flare-ups. There was functional loss of the bilaterally knees noted as mild and deep aching, using a cane, and difficulty with climbing; however, he denied "locking" or crepitus. Examination revealed normal initial ranges of motion for both knees. There was also functional loss reported in that his left knee "gives out." Of note, all of the foregoing results are for both knees where applicable. There was no evidence of pain with weight bearing. There was objective evidence of pain of localized tenderness or pain on palpation of the medial joint line with minimal tenderness. There was no objective evidence of crepitus. The Veteran was able to perform repetitive use testing with at least three repetitions and there was no additional loss or range of motion after three repetitions. The Veteran was examined immediately after repetitive use over time and pain, weakness, fatigability or incoordination did not significantly affect functional ability with repeated use over time. Disturbance of locomotion was noted as an additionally contributing factor to the disability. There was no muscle atrophy, ankylosis, recurrent subluxation, history of lateral instability, or history of recurrent effusion. There was no recurrent patellar dislocation, "shin splints", stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment. There were no meniscal conditions noted. There was functional impact with his current employment in that he has difficulty with climbing. As such, given the totality of the evidence, when considering the Veteran's lay statements and the medical evidence of record including DeLuca factors (with the Board emphasizing the Veteran's non reporting of flare-ups although indicated otherwise in the record) and functional loss with repeated use over time, the Board finds that a rating in excess of 10 percent for limitation of extension for the right and left knees are not warranted at any time during the appeal period, as limitation of extension was to no more than zero degrees, consistent with a 10 percent rating, or the minimum rating for painful motion under §4.59. However, a separate 10 percent rating is warranted for right and left knee limitation of flexion limited to, at most, 120 degrees from August 14, 2017 for painful limitation of flexion, warranting a minimum 10 percent rating under § 4.59. Moreover, when considering the Veteran's competent and credible statements and the other medical evidence of record, the Board finds that a 10 percent rating for slight subluxation or lateral instability under DC 5257 is warranted for the entire appeal period for his right and left knees based on evidence of slight instability including the Veteran's complaints of occasional buckling, instability, giving way, and use of a knee brace and cane. A rating in excess of 10 percent is not warranted, as moderate or severe instability is not shown at any time during the appeal period. Specifically, all joint stability testing was normal throughout the appeal period and none of the above-cited evidence points towards symptomatology that is closer to average (moderate) or intense (severe) instability. The Veteran's condition has been consistently reflected by slight instability based on normal joint stability findings by the November 2017 and January 2020 VA examiners, and the objective evidence and lay statements of record support the examiner's findings in this regard. Additionally, the Board has considered whether higher or separate ratings are warranted under alternate diagnostic codes. However, there is no indication of ankylosis, removal of semilunar cartilage, tibia and fibula impairment, or genu recurvatum. As such, ratings under DCs 5256, 5259, 5262, and 5263 are precluded. To this end, the Board notes the Veteran's assertions that his knees lock up, pop, and/or grind as he walks. See September 2017 private treatment note; September 2017 VA examination; July 2018 VA Form 9. However, an award for these ailments would need to be reflected by a cartilage issue or meniscal condition and the required level of severity, which is not present in this case. See September 2017 Private treatment record (noting the meniscus is intact with no evidence of tear). Thus, an award under DCs 5258 and 5259 is not available. Finally, though new criteria for rating musculoskeletal disabilities recently became effective February 7, 2021, there is no evidence dated after the criteria became effective, and the Board may not apply the new regulations to evidence dated prior to February 7, 2021. In this regard, the Board emphasizes that employing the former criteria for knee instability is much more favorable to the Veteran. REASONS FOR REMAND 7. Entitlement to an initial disability rating in excess of 10 percent prior to November 2, 2017 and in excess of 20 percent thereafter for a service-connected lumbar spine disability is remanded. The Veteran was afforded VA examinations in June 2011, March 2015, November 2017, and January 2020; however, these reports are insufficient in light of the recent decisions of the Court of Appeals for Veteran's Claims (Court) in Correia v. McDonald, 28 Vet. App. 158 (2016), and Sharp v. Shulkin, 29 Vet. App. 26 (2017), warranting a new examination on remand. Updated treatment records should also be secured. Additionally, the Board finds that there is evidence of neurologic disorders, specifically, bilateral radiculopathy, which should be addressed on remand. See June 2017 Private treatment note; December 2018 Private treatment note. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any outstanding relevant private treatment records. 3. Then schedule the Veteran for a VA examination with an examiner other than the June 2011, March 2015, November 2017, and January 2020 examiners, to determine the current nature and severity of his lumbar spine disability. The claims file, to include a copy of this remand must be made available to and be reviewed by the examiner. All findings should be reported in detail. The examiner is asked to address the following: (a.) Full range of motion testing must be performed where possible. The joint involved should be tested in (1) active motion, (2) passive motion, (3) in weight-bearing, (4) in non-weight-bearing. Please specify range of motion measurements in all areas outlined above. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. (b.) Considering the Veteran's reported history, please also provide an opinion describing functional impairment of the Veteran's low back disability due to flare-ups, accounting for pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report such impairment in terms of additional degrees of limitation of motion. Please address the Veteran's statements of flare-ups in his back and pain radiating down his legs. If the examiner is unable to provide such an opinion without resort to speculation, the examiner must provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician's Guide to estimate, "per [the] veteran," what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. The examination should be based on the entire appeal period commencing in August 2010. A complete rationale shall be given for all opinions and conclusions expressed. L. BARSTOW Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. J. Rogers, 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.