Citation Nr: 21075438 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 13-34 134A DATE: December 20, 2021 ORDER Entitlement to a compensable disability rating of 10 percent prior to August 9, 2014, for right knee degenerative arthritis, status-post arthroscopic surgery with residual scars is granted. Entitlement to a disability rating in excess of 10 percent for right knee degenerative arthritis, status-post arthroscopic surgery with residual scars is denied. Entitlement to a compensable rating of 10 percent prior to August 4, 2021, for a meniscal condition with joint effusion of the right knee is granted. FINDINGS OF FACT 1. Prior to August 9, 2014, the Veteran experienced pain on motion of the right knee. 2. The Veteran's right knee degenerative arthritis, status-post arthroscopic surgery with residual scars, has resulted in flexion to 90 degrees or greater and extension to 10 degrees or greater, without recurrent subluxation or lateral instability. 3. The Veteran's meniscal condition of the right knee has resulted in joint pain and locking for the entirety of the appeal period. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating of 10 percent prior to August 9, 2014, for right knee degenerative arthritis, status-post arthroscopic surgery with residual scars, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5256-63. 2. The criteria for entitlement to a disability rating in excess of 10 percent for right knee degenerative arthritis, status-post arthroscopic surgery with residual scars, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5256-63. 3. The criteria for a separate compensable rating of 10 percent prior to August 14, 2021, for a symptomatic meniscal condition of the right knee have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5259. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1985 to November 1989, November 1995 to July 2011. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran was afforded a virtual hearing before the undersigned Veterans Law Judge in May 2021. A transcript of the hearing is associated with the claims file. This appeal was previously presented to the Board in July 2021, at which time it was remanded for additional development. 1. Entitlement to an increased disability rating for right knee degenerative arthritis status-post arthroscopic surgery with residual scars The Veteran seeks increased ratings for his service-connected right knee disabilities. He asserts these disabilities have worsened in severity, and an increased rating is therefore warranted. The Veteran has been granted a noncompensable initial rating prior to August 9, 2014 and a 10 percent rating thereafter for his degenerative arthritis of the right knee, status-post arthroscopic surgery. Effective August 4, 2021, he has also been granted a separate rating of 10 percent under Diagnostic Code 5259 for a meniscal disability of the right knee. 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. 85 Fed. Reg. 230 (Nov 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a law or regulation changes during 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); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). 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; Kuzma, 341 F. 3d 1327. 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 the present case, the Veteran's knee disability was initially evaluated under Diagnostic Codes (DC) 5003-5260. More recently, it was evaluated under DC 5261. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned. The additional code is shown after a hyphen. 38 C.F.R. § 4.27. DC 5003, for the evaluation of degenerative arthritis, provides for evaluation of a service-connected disability based on limitation of motion of the affected joint. 38 C.F.R. § 4.71a, DC 5003. Limitation of motion of the knee is evaluated under DC 5260 and 5261. Under DC 5260, a noncompensable rating is assigned for limitation of flexion to 60 degrees, a 10 percent rating is assigned for flexion limited to 45 degrees, a 20 percent rating is assigned for flexion limited to 30 degrees, and a 30 percent rating is assigned for flexion limited to 15 degrees. Pursuant to DC 5261, a noncompensable rating is assigned for limitation of extension to 5 degrees, a 10 percent rating will be assigned for extension of the knee limited to 10 degrees, a 20 percent rating is assigned for extension limited to 15 degrees, a 30 percent rating for limitation to 20 degrees, and a 40 percent rating for limitation to 30 degrees. 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. The Board must also consider other applicable rating criteria for disabilities of the knee joint. In adjudicating the present claim, the Board has also considered VA General Counsel Opinion (VAOPGCPREC) 23-97, which interprets that in certain cases where the Veteran has both limitation of motion due to arthritis, instability, and/or meniscal impairment of the affected knee joint, a separate compensable rating may be assigned without violating 38 C.F.R. § 4.14, the regulation against pyramiding. See VAOPGCPREC 9-98. The Board next notes that on September 17, 2004, the VA General Counsel issued VAOPGCPREC 9-2004, which interprets that a Veteran can receive separate ratings under DC 5260 (limitation of flexion), and DC 5261 (limitation of extension) for disability of the same joint if both extension and flexion of the knee are impaired to a compensable degree. VAOPGCPREC 9-2004 (2004). Prior to the regulatory change, DC 5257 awarded a 10 percent rating for slight recurrent subluxation or lateral instability; a 20 percent rating for moderate recurrent subluxation or lateral instability; and a maximum 30 percent rating for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Prior to the regulatory change, the Rating Schedule did not define "slight," "moderate," or "severe;" however, according to MERRIAM WEBSTER'S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), "slight" means small in amount. "Moderate" means limited in scope or effect. "Severe" means very painful or harmful or of a great degree. The Court held that objective medical evidence is not required to establish lateral knee instability under the previous version of DC 5257; thus, 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). As of February 7, 2021, under the amended criteria, DC 5257 evaluates recurrent subluxation and instability, as well as patellar instability. For recurrent subluxation or instability, a maximum 30 percent rating is awarded 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. A 20 percent rating is warranted for one of the following: (a) sprain with 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 awarded for a sprain with 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. For patellar instability, a maximum 30 percent rating is awarded 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 or either a cane or a walker. A 20 percent rating is awarded 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 awarded for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without a history of surgical repair) that does not require a prescription by a medical provider for a brace, cane, or walker. During the pendency of this appeal, the Veteran was afforded VA examinations in May 2011, August 2014, and August 2021. VA and private outpatient treatment records have also been obtained and reviewed. On initial VA examination in May 2011, the Veteran reported crepitation and degenerative changes of the right knee. Reported symptoms included pain, tenderness, and giving way, worsening with use. The Veteran reported arthroscopic surgery of the right knee in 1999. Range of motion testing indicated flexion to 130 degrees and extension to 0 degrees. Repetitive motion did not result in any additional limitation of motion. No additional limitation of motion was noted to result due to such factors as pain, fatigue, weakness, incoordination, or lack of endurance. Medial and lateral collateral ligaments stability tests were all within normal limits, as were anterior and posterior cruciate ligament stability tests and medial and lateral meniscus tests. X-rays of the right knee confirmed moderate osteoarthritis. Osteoarthritis with degenerative changes of the right knee was diagnosed. On VA examination in August 2014, the Veteran reported a history of a right knee arthroscopic surgery in August 1999, with findings of lateral and medial meniscus tears, chondrosis, plica, synovitis, and a medial meniscal cyst. Currently, he used a brace for the right knee 3-4 times per week, and experienced constant aching. Pain was also reported with use, and he felt like his knee wanted to buckle when descending stairs. On physical examination, he had flexion to 140 degrees and extension to 0 degrees. No evidence of painful motion was observed. Repetitive motion did not result in any additional limitation of motion. No additional limitation of motion due to pain on motion, weakness, fatigability, or incoordination was noted. Muscle strength testing on flexion and extension were 5/5 and joint stability testing of the knee was within normal limits. No history of patellar dislocation or subluxation was noted. He was also without a history of shin splints, stress fractures, chronic exertional compartment synovitis, or any other tibial or fibular impairment. A history of a meniscal condition, characterized by joint pain and locking, was reported. More recently, a VA examination was afforded the Veteran in August 2021. He reported a worsening of his right knee pain, especially with use, but also when sitting for extended periods. On range of motion testing, he had flexion to 110 degrees and extension to 0 degrees. Range of motion was the same for both passive and active motion. Pain was reported across all ranges of motion, and the examiner stated pain would limit extension to 10 degrees and flexion to 90 degrees. Mild tenderness was present at the anterior right knee. Neither repetitive motion nor flare-ups resulted in additional limitation of motion, according to the examiner. No muscle atrophy was observed. Neither ankylosis of the right knee joint nor tibial or fibular impairment were present. Joint stability testing was negative for recurrent subluxation or persistent instability. An assistance device was not required by prescription due to the right knee disability. A history of a meniscal condition, with frequent episodes of joint pain and effusion, was noted. On review of an October 2018 MRI, the examiner noted severe tricompartmental degenerative changes of the right knee joint. For the period prior to August 9, 2014, a noncompensable initial rating has been assigned the Veteran's right knee disability. While the Veteran had neither extension nor flexion limited to a compensable degree, the Veteran did report pain on motion of the right knee. The Board notes 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, DC 5003; see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that the applicability of 38 C.F.R. § 4.59 is not limited to arthritis claims). Thus, the Board finds a compensable rating of 10 percent is warranted under DC 5003 for the period prior to August 9, 2014. The Board must next consider entitlement to a disability rating in excess of 10 percent. Considering DC 5260, the Veteran has displayed, at worst, flexion to 90 degrees on VA examination in August 2021. As such, the Veteran has not demonstrated sufficient limitation of flexion to warrant a separate disability rating. Even factoring in the additional limitation of motion during flare-ups or due to such factors as weakness, lack of endurance, or fatigability, the Veteran's right knee flexion does not approach 45 degrees or less. As such, the Board finds that a separate compensable rating is not warranted under DC 5260 because the Veteran does not meet the rating criteria. Regarding his reported extension, the Veteran was noted in August 2021 to have extension limited to 10 degrees due to pain. As the Veteran has not displayed extension limited to 15 degrees at any time during the pendency of this appeal, a disability rating of 20 percent is not warranted under DC 5261 at any time during the pendency of this appeal for this limitation of extension. To the extent the Veteran has reported, and objective evidence has demonstrated, pain associated with range of motion of the right knee, the compensable ratings already assigned contemplate painful motion. See 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). Therefore, higher ratings in excess of those already assigned are not warranted by the record. Considering next entitlement to a higher or separate rating under DC 5257, the various VA examination reports have repeatedly found the Veteran was without recurrent subluxation or lateral instability. Anterior, posterior, lateral, and medial instability were also not present. The Board has considered the Veteran's statements of knee instability but finds that, in this case, the Veteran's lay evidence is outweighed by the VA examination reports which repeatedly examined his knee and found that instability was not present. The Board notes that medical evidence of instability is not categorically more probative than lay evidence as discussed in English v. Wilkie, 30 Vet. App. 347 (2018), but medical evidence is not irrelevant. The Veteran's lay evidence is outweighed by competent and credible medical evidence that evaluates the true extent of the knee impairment based on objective data coupled with an assessment of his lay complaints. The VA examiners have the training and expertise necessary to administer the appropriate tests for a determination of the type and degree of the impairment associated with the Veteran's complaints. For these reasons, greater evidentiary weight is placed on the examination findings in regard to the type and degree of impairment. Thus, entitlement to a separate compensable rating for instability of the right knee is denied. As such, a compensable rating under DC 5257 is not warranted under either the former or current version of DC 5257. Regarding other diagnostic criteria for the knee joint, the Board notes that several of the VA examination reports noted a history of a meniscal tear of the right knee. In such situations, evaluation of a knee disability based on limitation of motion "does not preclude... separate evaluation of a meniscal disability of the same knee under DC 5258 or 5259." See Lyles v. Shulkin, 29 Vet. App. 107, 109 (2017). The former provides a 20 percent evaluation for dislocation of semilunar cartilage (meniscus) with frequent episodes of locking, pain, and effusion into the joint and the latter provides a 10 percent evaluation for removal of semilunar cartilage. 38 C.F.R. § 4.71a, DCs 5258-9. Here, no examiner found evidence of meniscal dislocation, ruling out DC 5258. Additionally, the Veteran has already been awarded a 10 percent rating for symptomatic removal of the semilunar cartilage, but effective only from August 4, 2021. As the August 2014 examination report also indicated the Veteran had symptoms such as joint pain and locking due to his meniscal condition, the Board finds a separate compensable rating of 10 under DC 5259 is warranted for the entirety of the appeals period. As the Veteran is without impairment of the tibia or fibula, evaluation under DC 5262, to include both the former and current versions of this DC, is also not warranted. Finally, the Veteran has already been granted a separate rating for his surgical scar of the right knee. Finally, the Veteran has testified, and submitted lay statements in support thereafter, that his limited mobility adversely affects his occupational functioning. He has also asserted that pain from his right knee disability interferes with his sleep, also causing occupational impairment. The Board acknowledges the Veteran's assertions but notes he remains employed at the present time, according to the evidence of record. The record also does not suggest that the rating system, as a whole, is incapable of assessing the Veteran's symptomatology. See Long v. Wilkie, 33 Vet. App. 167 (2020). Regarding the Veteran's assertion of loss of sleep, he has already been granted a separate rating for a sleep disorder which contemplates his symptoms. In conclusion, the Board finds the evidence supports a separate disability rating of 10 percent and no higher prior to August 14, 2021 under DC 5259. Additionally, a 10 percent rating is warranted under DC for the period prior to August 9, 2014. A disability rating in excess of 10 percent for limitation of extension of the knee, or on any other basis, is not warranted. In denying any additional increased ratings, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Thomas D. Jones, 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.