Citation Nr: 21075127 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 11-26 913 DATE: December 17, 2021 ORDER Entitlement to a rating in excess of 10 percent for chronic left knee sprain is denied. Entitlement to a separate 10 percent rating for instability of the left knee is granted. Entitlement to a separate 10 percent rating for symptomatic removal of a meniscus is granted. FINDINGS OF FACT 1. Even when taking into account the Veteran's complaints of pain, his left knee disability is not shown to have been manifested by flexion limited to 45 degrees or less, or extension limited to 15 degrees or more. 2. The Veteran has manifested functional impairment equivalent to slight instability of the left knee with occasional use of a brace. 3. The Veteran has symptoms of locking and effusion associated with removal of the meniscus. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 10 percent for painful limitation of flexion of the left knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5260. 2. The criteria for entitlement to a separate 10 percent rating for instability of the left knee have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5257. 3. The criteria for a rating of 10 percent for a right knee disability on the basis of the symptomatic removal of the meniscus have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.59, 4.71a, DC 5259. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1976 to September 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The matter was previously remanded by the Board in April 2020, when it was remanded to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denial and returned the case to the Board. 1. Entitlement to a rating in excess of 10 percent for chronic left knee sprain. 2. Entitlement to a separate 10 percent rating for instability of the left knee. 3. Entitlement to a separate 10 percent rating for symptomatic removal of a meniscus. Disability ratings are determined by the application of VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519 (2007). In rating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant 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. Pain on movement, swelling, deformity, or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing, and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that 38 C.F.R. § 4.59 applies to disabilities other than arthritis). However, painful motion alone is not a functional loss without some restriction of the normal working movements of the body. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). 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 the 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. VA 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). Therefore, 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. The criteria that is more favorable to the Veteran will be applied. In this regard, the Board observes that former regulation 38 C.F.R. § 19.9(b)(2) (now 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction. In Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. As such, pursuant to 38 C.F.R. § 20.904(d)(2), the Board will proceed to adjudicate the Veteran's claim. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flare ups from the veterans themselves, when a flare-up is not observable at the time of examination. Such information must be considered in rating the Veteran's functional impairment. Under 38 C.F.R. § 4.71a, DC 5256, a 30 percent rating is assigned for favorable ankylosis in full extension, or in slight flexion between 0 and 10 degrees, a 40 percent rating is assigned favorable ankylosis in flexion between 10 and 20 degrees, a 50 percent rating is assigned for favorable ankylosis in flexion between 20 and 45 degrees, and a 60 percent rating is assigned for extremely unfavorable ankylosis in flexion at an angle of 45 degrees or more. Prior to the regulatory change, 38 C.F.R. § 4.71a, DC 5257, provided for a 10 percent rating for slight recurrent subluxation or lateral instability; a 20 percent rating for moderate recurrent subluxation or lateral instability; and a 30 percent rating for severe recurrent subluxation or lateral instability. The terms "slight", "moderate", and "severe" are not defined in the regulations. Absent an express definition, it is presumed that VA regulations employ words using their ordinary dictionary meanings. "Slight" is generally defined as "small in size, degree, or amount"; "moderate" is generally defined as "of average or medium quality, amount, scope, range, etc."; and "severe" is defined as "extremely intense.'" Webster's New World Dictionary 1038, 871, 1071 (3d ed. 1988)). The Board must consider all factors that result in an equitable and just determination. As of February 7, 2021, under the amended regulations, DC 5257 states that a 30 percent rating is assigned for recurrent subluxation or instability with unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device and bracing for ambulation. A 20 percent rating is assigned for either one of the following: (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device for ambulation; 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 10 percent rating is assigned for 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 or bracing for ambulation. As to patellar instability under 38 C.F.R. § 4.71a, DC 5257, the amended criteria provide a 30 percent rating 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. A 20 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 one of the following: a brace, cane, or walker. A 10 percent rating is assigned 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. Under 38 C.F.R. § 4.71a, DC 5258, a 20 percent rating is assigned for cartilage, semilunar, dislocated, with frequent episodes of "locking," pain, and effusion into the joint. Under 38 C.F.R. § 4.71a, DC 5259, a 10 percent rating is assigned for cartilage, semilunar, removal of, symptomatic. Under 38 C.F.R. § 4.71a, DC 5260, a 10 percent rating is warranted for flexion of the knee limited to 45 degrees; a 20 percent rating is warranted for flexion limited to 30 degrees; and a 30 percent rating is warranted for flexion limited to 15 degrees. Under 38 C.F.R. § 4.71a, DC 5261, a 10 percent rating is warranted for extension of the knee limited to 10 degrees; a 20 percent rating is warranted for extension limited to 15 degrees; a 30 percent rating is warranted for extension limited to 20 degrees; a 40 percent rating is warranted for extension limited to 30 degrees; and a 50 percent rating is warranted for extension limited to 45 degrees. Normal range of motion of the knee is 0 degrees of extension to 140 degrees of flexion. See 38 C.F.R. § 4.71a, Plate II. Even if a veteran did not have compensable limited motion of the knee under DC 5260 or 5261, a separate rating could be assigned if there was evidence of full range of motion "inhibited by pain." Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). A rating assigned under DC 5260 or 5261 does not preclude, as a matter of law, a separate evaluation under DC 5258 or 5259. Lyles v. Shulkin, 29 Vet. App. 107, 115 (2017). It also noted that the revisions that went into effect on February 7, 2021 did not make any substantive changes to Diagnostic Codes 5258, 5260, and 5261. The Veteran underwent a VA examination in July 2009 at which his range of motion (ROM) was abnormal. Flexion was limited to 130 degrees, extension was normal, and there was no loss of motion noted after repeated use. No instability was noted however, the examiner noted a mild limp due to the left knee condition. A tear of the left knee meniscus was noted. In May 2010, the Veteran endorsed painful and limited range of motion. The Veteran's extension remained normal, but his flexion was further reduced to 120 degrees. No additional loss of motion was noted after repeated use. The Veteran reported that going up and down stairs causes flare-ups, but the Veteran did not describe additional loss of motion during a flare-up. The examiner noted mild limping on the left leg. A tear of the medial meniscus was noted. Just after this VA examination, the Veteran underwent surgery on his left knee. The January 2011 VA examination indicated the Veteran's flexion was limited to 70 degrees and extension limited to 10 degrees. The Veteran reported the May 2010 left knee debridement of the meniscus did not help with knee pain, but did alleviate the popping, cracking, and instability of the left knee. The Veteran reported instability, pain, stiffness, and flare-ups. The flare-ups were reported to be weekly, moderate, and last hours. Tenderness, pain at rest, abnormal motion, guarding of movement, and pain on weight-bearing were noted. A meniscus abnormality was reported, and it was noted the meniscus is surgically absent. No ankylosis was noted. The Veteran's ROM had improved at the January 2013 VA examination. Flexion was limited to 80 degrees and extension was limited to 5 degrees after repetitive use. The Veteran reported his left knee pain was aggravated by prolonged walking. He endorsed swelling, intermittent buckling, and radiating pain. The Veteran did not endorse flare-ups. Muscle strength was slightly reduced with flexion, but was normal with extension. Stability testing was normal. A meniscal tear, frequent pain and effusion were noted. Muscle atrophy of the left leg was noted. The left thigh was 2 cm smaller than the right, and the left knee was 4.25 cm smaller than the right. At the June 2014 VA examination the Veteran's worst ROM was after repetitive use. Flexion was limited to 90 degrees and extension was normal. The Veteran did not report flare-ups at this examination. There was slight loss of muscle strength. Stability testing was normal. A meniscal tear with frequent episodes of joint pain was noted. In November 2017, the Veteran reported frequent flare-ups occurring four to five times a week, lasting 12 to 18 hours, and of moderate severity. The examination was not conducted during a flare-up and the examiner indicated that estimation of loss of motion during a flare-up was not possible without mere speculation. However, the Veteran did not describe decreased ROM during a flare-up, he indicated difficulty with prolonged walking, claiming, or squatting during a flare-up. ROM testing on examination indicated, the Veteran's extension was normal and flexion was limited to 80 degrees. Slight reduction in muscle strength was noted on the left side as well as slight muscle atrophy. The left measured one centimeter smaller than the right side, the measurements were taken 10 cm above the superior pole of the patella. Ankylosis was not noted, nor was a history of recurrent subluxation, lateral instability, or recurrent effusion. Stability testing was normal. A meniscal tear with frequent episodes of joint locking and pain was noted. At the September 2019 VA examination the Veteran reported flare-ups that occur approximately three times a month, are of moderate severity, and last a couple of days. The examination was not conducted during a flare-up and the examiner did not estimate the Veteran's loss of motion during a flare-up, despite the Veteran reporting decreased ROM during a flare-up. The ROM measurements obtained from this examination were at worst flexion was limited to 110 degrees and extension was normal. Muscle strength was normal, no muscle atrophy or ankylosis was noted. No history of recurrent subluxation, lateral instability, or recurrent effusion was noted. Stability testing was noted. Shin splints were noted, but did not affect the ROM of the knee or ankle. A meniscal tear without episodes of joint locking, joint pain, or joint effusion was noted on the left knee. In September 2020, the Veteran's flexion was limited to 90 degrees and extension was normal. The Veteran reported flare-ups as constant sharp pain and it feels like he cannot walk. The Veteran's left knee limits his ability to walk, run, bend the knee, or lift. The examination was not conducted during a flare-up; however, the examiner reported that pain, fatigue, weakness, incoordination, and lack of endurance resulted in functional loss during flare-ups to the same degrees as noted on initial range of motion testing. Muscle strength testing was normal and no muscle atrophy or ankylosis was noted. No history of recurrent subluxation, lateral instability, or recurrent effusion was noted, and stability testing was normal. A meniscal tear with frequent episodes of joint pain was noted on the left side. The Board finds a rating in excess of 10 percent before or after the Veteran's knee surgery is not warranted. Simply put, flexion in the knee has exceeded 45 degrees throughout the appeal period, and limitation of extension has not exceeded 10 degrees throughout, even when accounting for episodes of flare-ups with increased pain. 38 C.F.R. § 4.71a, DCs 5260, 5261. Even in consideration of increased pain, fatiguability, and flare-ups, which the Veteran has described as increased pain without significant loss of motion, the Veteran flexion was limited to, at worst, 70 degrees. Such does not warrant a higher rating. A separate rating for limitation of extension under DC 5261 is not warranted. While the Veteran demonstrated compensable limitation of extension at the January 2011 VA examination, the Veteran's extension prior to this examination, and after this examination was noncompensable. The Veteran's extension was normal at the June 2014, November 2017, September 2019, and September 2020 VA examinations. Of note, in March 2013, the Veteran testified that limitation of extension was not an issue. As such, the Board finds compensable limitation of extension has not been demonstrated with enough consistency to warrant a separate compensable rating. The Board has considered whether the Veteran is entitled a higher or separate rating under any other diagnostic codes. The Board finds that a separate 10 percent rating is warranted under DC 5257 for the entire appeal period. In July 2009, the Veteran reported he sometimes feels like his knee is going to give out. At the January 2011 VA examination, a history of instability was noted, which had been partially alleviated by the May 2010 knee surgery. In September 2011, the Veteran reported that he did not feel unstable at the medical appointment, but that he uses a brace when he is very active. In March 2013, the Veteran testified he feels unstable on his knee and uses a brace. Objective medical evidence is not required to establish lateral knee instability under Diagnostic Code 5257, so objective medical evidence cannot be categorically found more probative than lay evidence with respect to this Diagnostic Code. See English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). In light of the foregoing, and considering the Veteran's consistent reports of knee buckling and instability, the Board affords the Veteran the benefit of the doubt and finds a 10 percent rating for instability of the left knee is warranted. A higher rating of 20 percent is not warranted as there is no evidence to support a finding the Veteran's left knee instability was moderate in severity. Stability testing was consistently normal, and the Veteran's reports of instability do not paint a picture of frequent or severe impairment caused by instability. Such tends to indicate the Veteran's disability is more accurately described by the 10 percent rating. Further, under the new DC 5257 regulation, a higher rating is not warranted as the Veteran has not been prescribed an assistive device by a medical provider. While there is evidence the Veteran uses a brace for instability, there is no indication the Veteran was prescribed the brace. As such, a higher rating under either the new or old regulations is nor warranted for instability of the left knee. The Veteran underwent a meniscectomy in 1977 and 2010. A tear of the meniscus was noted on all VA examinations throughout the period on appeal, as well as symptoms of locking and effusion associated with the condition. The January 2011 examination noted the Veteran's meniscus was "surgically absent." As the Veteran has consistently experienced symptoms associated with this condition, including effusion and locking, the Board finds a separate rating under DC 5259 for the entire period on appeal. There is no evidence at any point during the period on appeal showing ankylosis, dislocation of the meniscus, impairment of the tibia and fibula, or genu recurvatum to warrant a separate rating under DCs 5256, 5258 5262, and 5263. The Board acknowledges the Veteran's lay reports of symptoms and functional loss due to pain. However, even considering the Veteran's lay reports of symptoms and functional loss, the degree of additional limitation reflected by the statements that the Veteran had pain and limited ambulation would not result in limitation of motion more nearly approximating flexion limited to 30 degrees or extension limited to 15 degrees. The objective findings, as discussed above, do not demonstrate that pain has limited motion to the extent that a higher level of compensation is warranted under the applicable diagnostic codes. 38 C.F.R. § 4.71a. Moreover, nothing in the other evidence of record reflects the Veteran would satisfy the criteria for higher rating(s) based upon limitation of motion, to include during flare-ups and/or but for the use of medication. See Jones v. Shinseki, 26 Vet. App. 56 (2012). In summation, the Board finds that a rating in excess of 10 percent is not warranted for limitation of flexion at any time during the period on appeal, except for the period after the Veteran's knee surgery for which he is in receipt of a 100 percent rating. The Board finds that a separate 10 percent rating is warranted throughout the appeal period, except the aforementioned period following his surgery. Finally, a separate 10 percent rating is warranted for symptomatic residuals of a removed meniscus, manifesting as effusion, and locking of the left knee. Richard Kettler Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Rekowski 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.