Citation Nr: 21075747 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 17-32 913 DATE: December 21, 2021 ORDER The issue of entitlement to a rating in excess of 10 percent for a left knee disability is denied. FINDING OF FACT The Veteran's left knee disability is manifested by flexion to 60 degrees and extension to 0 degrees at most. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for left knee disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from June 2009 to November 2016. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). It was previously before the Board in May 2021 at which time it was remanded for further development There was a March 2021 Board hearing before the undersigned Veterans Law Judge (VLJ), and the transcript is of record. The Veteran is not entitled to a rating in excess of 10 percent for his left knee disability. Disability ratings are determined by applying the rating criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule) and represent, as far as can practicably be determined, the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. §§ 4.10, 3.321. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA compensation, as well as the whole recorded history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; see generally Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question of which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating is assigned. Id. Additionally, while it is not expected that all cases will show all the findings specified, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. When assessing the severity of a musculoskeletal disability that is at least partly 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 the symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). Disabilities of the knee are generally rated under Diagnostic Codes 5256 through 5263. See 38 C.F.R. § 4.71a. During the pendency of the appeal, the Veteran's service-connected left knee meniscal tear was evaluated as 10 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5257 due to residual pain which emanated from an anterior cruciate ligament (ACL) repair surgery. See 9/12/2017 Rating Decision. A minimum compensable rating is warranted for musculoskeletal disabilities involving actual painful, unstable, or malaligned joints or periarticular regions regardless of whether the diagnostic code under which the disability was evaluated was predicated on range of motion measurements. See 38 C.F.R. § 4.59; Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). Generally, to warrant a 10 percent rating under Diagnostic Code 5257, the evidence must show recurrent subluxation or lateral instability. A 10 percent rating is assigned for slight symptoms, a 20 percent rating for moderate symptoms, and a 30 percent rating for severe symptoms. Objective medical evidence is not required to establish lateral knee instability, so objective medical evidence cannot be categorically found nor probative than lay evidence. See English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). Separate ratings for knee disabilities may be assigned for disability of the same joint if none of the symptomatology on which each rating is based is duplicative or overlapping. 38 C.F.R. § 4.14. The following additional diagnostic codes are applicable to knee disability: Diagnostic Code 5256 provides ratings for ankylosis of the knee. A 30 percent rating is warranted for a favorable angle in full extension or in slight flexion between 0 and 10 degrees. A 40 percent rating is warranted for a knee in flexion between 10 and 20 degrees. A 50 percent rating is warranted for a knee in flexion between 20 and 45 degrees. A 60 percent rating is warranted for a knee in extremely unfavorable flexion, at an angle of 45 degrees or more. Diagnostic Code 5258 provides that a 20 percent rating is warranted for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. Diagnostic Code 5259 provides that a 10 percent rating is warranted for symptomatic removal of semilunar cartilage. Diagnostic Code 5260 provides ratings based on limitation of flexion of the leg. Limitation of flexion to 60 degrees warrants a noncompensable rating. Limitation of flexion to 45 degrees warrants a 10 percent rating. Flexion limited to 30 degrees warrants a 20 percent rating. Flexion limited to 15 degrees warrants a 30 percent rating. Diagnostic Code 5261 provides ratings based on limitation of the extension of the leg. Limitation of extension to 5 degrees warrants a noncompensable rating. Extension limited to 10 degrees warrants a 10 percent rating. Extension limited to 15 degrees warrants a 20 percent rating. Extension limited to 20 degrees warrants a 30 percent rating. Extension limited to 30 degrees warrants a 40 percent rating. Extension limited to 45 degrees warrants a 50 percent rating. Diagnostic Code 5262 provides ratings for impairment of the tibia and fibula. A 10 percent rating is warranted for malunion with slight knee or ankle disability. A 20 percent rating is warranted for malunion with moderate knee or ankle disability. A 30 percent rating is warranted for malunion with marked knee or ankle disability. A 40 percent rating is warranted for nonunion, with loose motion, requiring a brace. Evaluations for knee impairment can also be assigned based on ankylosis or genu recurvatum under Diagnostic Code 5263. The Board notes, however, that the criteria for rating musculoskeletal disabilities, including disabilities of the knee, have changed once during the period covered by this appeal, effective February 7, 2021. See 85 Fed. Reg. 76453 (Nov. 30, 2020). Specifically, the amended criteria affect regulations under Diagnostic Codes 5257 and 5262. With respect to Diagnostic Code 5257, the amended regulation provides that recurrent subluxation or lateral instability with unrepaired or failed repair of complete ligament tear causing persistent instability that requires a prescription by a medical provider for both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation warrants a 30 percent rating. A sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability that requires a medical provider prescribed brace or assistive device (e.g., cane(s), crutch(es), walker) for ambulation; or an unrepaired or failed repair of complete ligament tear causing persistent instability, and either a medical provider prescribed assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation warrants a 20 percent rating. A 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 warrants a 10 percent rating. Diagnostic Code 5262 relate to impairment of the tibia and fibula and are not relevant to this case. Where, as here, a diagnostic code has been amended while a claim is pending, VA is required to consider both versions of the code and apply the version most favorable to the Veteran 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 Kuzma v. Principi, 341 F.3d 1327 (2003). During the March 2021 hearing the Veteran contended that he tired easily with activity, he was in constant pain, and his left knee was "crunchy". He also contended that his left knee disability worsened following his March 9, 2016 VA examination. Thus, he was afforded an additional examination on September 1, 2021 to assess the current status of his disability. During the September 2021 examination, the Veteran reported flare-ups with functional loss to include difficulty with prolonged walking, running, standing, and lifting items, and knee pain. Initial range of motion findings showed left knee flexion limited to 90 degrees and full extension, with painful motion on flexion and extension. Passive range of motion exhibited the same findings as active range of motion. Repetitive motion showed reduced flexion to 80 degrees with full extension and pain and lack of endurance. It was estimated that repetitive use over time would exhibit reduced flexion to 70 degrees with full extension. Finally, it was estimated that flexion would be reduced to 60 degrees with full extension during flare-ups. There was evidence of pain that did not result in functional loss on weight-bearing and active and passive motion and no evidence of crepitus or ankylosis. As a rating higher than 10 percent requires limitation of motion to a degree greater than shown, the currently assigned 10 percent rating based on painful flexion is all that is warranted. Furthermore, the Veteran indicated that he did not experience left knee instability during the Board hearing and the September 2021 examination also noted no history of instability or subluxation reported. Thus, the Board finds that a separate 10 percent rating is not warranted under the former regulations for Diagnostic Code 5257 for moderate instability. A separate rating under the amended regulations is similarly not warranted as it would require surgical repair with persistent instability and a prescribed assistive device which is not present. The Veteran is similarly not entitled to higher or separate ratings under Diagnostic Codes 5256, 5262, or 5263 because there is no evidence of ankylosis, impairment of the tibia or fibula, or genu recurvatum. With regard to functional loss, the Board finds that the Veteran's symptoms are adequately compensated under the 10 percent rating for his pain. Accordingly, a rating greater than 10 percent is denied. S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Z. Sloley, 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.