Citation Nr: 21075306 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 17-02 454 DATE: December 20, 2021 ORDER Entitlement to a rating in excess of 10 percent for a left knee disability is denied. Entitlement to a rating in excess of 10 percent for a right knee disability is denied. FINDINGS OF FACT 1. The Veteran's right knee and left knee ranges of motion did not exhibit limitation that warranted a compensable rating, even with consideration of pain and other functionally limiting factors, and there is no X-ray evidence of arthritis. There is no additional functional loss that more nearly approximates the next level of disability. 2. The Veteran has not exhibited or more than slight lateral instability for the right or left knee during the period on appeal. The Veteran does not have any other ratable conditions of the left knee or right knee. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for a left knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5003, 52565263. 2. The criteria for a rating in excess of 10 percent for a right knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5003, 52565263. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1981 to July 2007. This case comes before the Board of Veterans' Appeals (Board) from a May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. 1. Entitlement to an increased rating in excess of 10 percent for patellofemoral pain syndrome of the left knee with degenerative joint disease 2. Entitlement to an increased rating in excess of 10 percent for patellofemoral pain syndrome of the right knee with degenerative joint disease The Veteran contends that he is entitled to ratings in excess of 10 percent for right and left knee disabilities because they are worse than contemplated by the currently assigned rating. The Veteran also stated that he experiences instability in both knees. The Veteran's residuals of left and right knee patellofemoral pain syndrome with degenerative joint disease are rated under 38 C.F.R. § 4.71a, Diagnostic Code 5010-5257. 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. The Board will consider whether the Veteran is entitled to receive higher ratings for his left knee and right knee disabilities under all applicable diagnostic codes. Diagnostic Code 5010 provides that arthritis, due to trauma, substantiated by x-ray findings are to be rated as degenerative arthritis. 38 C.F.R. § 4.71a. Degenerative arthritis is rated according to Diagnostic Code 5003. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a 10 percent rating is assigned for each major joint or group of minor joints affected by limitation of motion, to be combined, not added, under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. A rating for limitation of motion of a joint cannot be combined with a rating for arthritis of the same joint. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Disabilities of the knee are rated under Diagnostic Codes 5256 to 5263. 38 C.F.R. § 4.71a. Diagnostic Code 5260 provides that a 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. A 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a. Diagnostic Code 5261 provides that a 10 percent rating is warranted for extension 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. A 50 percent rating is warranted for extension limited to 50 degrees. 38 C.F.R. § 4.71a. Normal range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. A 10 percent rating can also be assigned for the knee joint if there is painful motion without compensable limitation of motion. 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5003; Burton v. Shinseki, 25 Vet. App. 1 (2011). During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. The amendments revised select diagnostic codes to ensure that this portion of the rating schedule used current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities. 85 Fed. Reg. 230 (Nov. 30, 2020). If 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. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the 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 are more favorable to the Veteran will be applied. Prior to the regulatory change, recurrent subluxation and lateral instability of the knee was assigned a 10 percent rating if slight, a 20 percent rating if moderate, and a 30 percent rating if severe. 38 C.F.R. § 4.71a, Diagnostic Code 5257. 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 Diagnostic Code 5257. English v. Wilkie, 30 Vet. App. 347 (2018). When the knee disability affects the meniscus, a 20 percent rating is warranted when there is dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. 38 C.F.R. § 4.71a, Diagnostic Code 5258. A 10 percent rating is warranted when there has been removal of semilunar cartilage (meniscectomy) and current residual symptoms. 38 C.F.R. § 4.71a, Diagnostic Code 5259. As of February 7, 2021, under the revised VA regulations, the amended Diagnostic Code 5257 provides ratings for other impairment of the knee based on recurrent subluxation or instability, and patellar instability. For recurrent subluxation or instability, a 10 percent rating is warranted 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 (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 20 percent rating is warranted for 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 (e.g., cane(s), crutch(es), walker) for ambulation; or (b) Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A maximum 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 (e.g., cane(s), crutch(es), walker) and bracing for ambulation. For patellar instability, a 10 percent rating is warranted 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 maximum 30 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 a brace and either a cane or a walker. Note (1) provides that, for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note (2) provides that a surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as a surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). Separate ratings can be assigned for the above knee disabilities (Diagnostic Codes 5257, 5258, 5259, 5260, and 5261) when none of the symptomatology overlaps and the separate rating is based on additional disabling symptomatology. See VAOPGCPREC 23-97, 62 Fed. Reg. 63,603 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,703 (1998); VAOPGCPREC 9-2004; 69 Fed. Reg. 59,988 (2004); Lyles v. Shulkin, 29 Vet. App. 107 (2017). Ratings can also be assigned for impairment of the tibia or fibula, genu recurvatum, or ankylosis of the knee. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5262, 5263. The Board finds that the evidence does not show and the Veteran does not allege that he has tibia or fibula impairment, genu recurvatum, or ankylosis. Therefore, those diagnostic codes are not for application. Under Diagnostic Code 5256, ankylosis of the knee in a favorable angle in full extension, or in slight flexion between 0 and 10 degrees warrants a 30 percent rating. Ankylosis of the knee in flexion between 10 and 20 degrees warrants a 40 percent rating. Ankylosis of the knee in flexion between 20 and 45 degrees warrants a 50 percent rating. Extremely unfavorable ankylosis of the knee, in flexion at an angle of 45 degrees or more warrants a 60 percent rating. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, with or without degenerative arthritis, 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. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). When evaluating musculoskeletal disabilities, VA may, in addition to applying the schedular criteria, assign a higher rating when the evidence shows functional loss due to limited or excessive movement, pain, weakness, excessive fatigability, or incoordination, to include during flare-ups and with repeated use, if those factors are not considered in the rating criteria. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). A disability rating higher than the minimum compensable rating is not assignable under any diagnostic code relating to range of motion where pain does not cause a compensable functional loss. Rather, the pain must affect some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, and endurance, as defined in 38 C.F.R. § 4.40, before a higher rating may be assigned. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). In a May 2013 VA examination, the examiner diagnosed patellofemoral pain syndrome with degenerative joint disease. The Veteran reported chronic knee pain that grew worse, and limited standing. The Veteran reported that flare-ups did not impact the function of the knee. Initial range of motion testing found right knee forward flexion to 90 degrees with objective evidence of painful motion beginning at 0 degrees; right knee extension to 0 degrees with objective evidence of painful motion beginning at 0 degrees; left knee forward flexion to 90 degrees with objective evidence of painful motion beginning at 0 degrees; and left knee extension to 0 degrees with objective evidence of painful motion beginning at 0 degrees. The Veteran was unable to perform repetitive use testing due to pain. The examiner noted that the Veteran experienced less movement than normal and pain on movement in both knees as a result of functional loss and functional impairment. There was no tenderness or pain on palpation. Muscle strength was normal. There was no instability. There were no shin splints or patellar subluxation or dislocation on examination. In a March 2017 statement, the Veteran stated that the pain in his knees grew increasingly worse and was accompanied by instability. A June 2015 medical treatment note indicated that the Veteran was given a knee brace and sleeve to help alleviate knee pain. Medical treatment records dating back to 2011 show further complaints of knee pain and the impact on his daily life, such as the inability to participate in sports. A December 2018 VA treatment note also indicated that the Veteran was given knee braces, and a medical treatment note dated May 2019 showed that the Veteran reported falling and requested a walker. The records do not show persistent falling or locking of the knees over the course of several years of records. In a December 2019 VA examination, the Veteran reported flare-ups in both knees that occurred daily, were moderate and lasted for a few hours. The flare-ups were precipitated by jogging, running, bending, and squatting. Functional loss and functional impairment included a limited range of motion, difficulty with jogging, bending, squatting, climbing stairs, running and prolonged walking. Initial range of motion testing was right and left knee flexion to 90 degrees and extension to 0 degrees; range of motion itself did not contribute to functional loss. There was evidence of pain with passive range of motion and non-weight bearing in both knees. Pain was noted on examination that caused functional loss in both knees. Pain was present in flexion, extension, and with weight bearing. There was no objective evidence of localized tenderness or pain on palpation of the knee joints during the examination. No crepitus was present on examination. X-ray examination found normal knees. Following repetitive use testing, both knees exhibited flexion to 80 degrees and extension to 0 degrees. Factors that contributed to functional loss were pain and lack of endurance. The examination was found to be medically consistent with the Veteran's statements describing functional loss with repetitive use over time and flare ups. The Veteran reported flexion in both knees that ended at 70 degrees and extension to 0 degrees. Regarding flare ups, the Veteran reported flexion in both knees that ended at 60 degrees and extension to 0 degrees. The examiner also noted less movement than normal due to ankyloses, adhesion, etc. and that an interference with sitting and standing. The examination found no muscle atrophy, reduction in muscle strength, ankylosis, recurrent subluxation, lateral instability, joint instability, recurrent effusion, shin splints, or meniscus conditions. Prior to the February 7, 2021, amended rating criteria, the Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for a right knee or left knee disability. The Board has carefully considered the Veteran's reports about instability caused by knee pain requiring the assistance of knee braces and a walker. However, overall, the lay and medical evidence indicates that the instability symptoms have varied and do not suggest the presence of symptoms more nearly approximating moderate severity due to the medical evidence of record and duration of time between reported incidents. Applying the February 7, 2021 amended criteria, the Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for a right knee and left knee disability. The Board has carefully considered the Veteran's reports about pain and instability. However, overall, the lay and medical evidence does not indicate that the Veteran had: (a) Sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation; or (b) Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation during the period on appeal. The Board has also considered the other Diagnostic Codes pertaining to the knee and leg. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. Esteban v. Brown, 6 Vet. App. 259 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017). While the Veteran has been diagnosed with degenerative joint disease, December 2019 X-rays of the knees were normal. Therefore, as the evidence does not show X-ray evidence of arthritis, a compensable rating under Diagnostic Code 5010 or 5003 is not warranted. In addition, as a compensable rating is assigned for each knee, the criteria of 38 C.F.R. § 4.59 are met as a compensable assignment is already assigned. In considering the applicability of other diagnostic codes, the Board finds that Diagnostic Code 5256 for rating ankylosis of the knee; Diagnostic Code 5258 for rating dislocation of semilunar cartilage; Diagnostic Code 5259 for rating cartilage, semilunar dislocation; Diagnostic Code 5262 for rating impairment of the tibia and fibula; and Diagnostic Code 5263 for rating genu recurvatum are not applicable, as the medical and competent lay evidence does not show that the Veteran has had any of these conditions. Accordingly, the Board finds that the preponderance of the evidence is against the claim for ratings in excess of 10 percent for a right knee and left knee disability. Therefore, the claims for increased ratings must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Cross, 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.