Citation Nr: 21075793 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 17-47 679 DATE: December 21, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for a right knee disability based on limitation of flexion is denied. Entitlement to a separate 10 percent rating, but no higher, for slight instability of the right knee since October 4, 2021 is granted. FINDINGS OF FACT 1. The Veteran's service-connected right knee disability has been manifested by painful motion; flexion limited to 30 degrees or less was not shown. 2. Since October 4, 2021, instability of the Veteran's right knee is shown to be manifested by slight impairment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for a right knee disability based on limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260. 2. Since October 4, 2021, the criteria for a separate 10 percent rating, but no higher, for slight instability of the right knee have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1982 to January 1990. This matter is before the Board of Veterans' Appeals (Board) on appeal of an October 2016 rating decision of the Department of Veterans Affairs (VA). The Veteran appeared at a hearing before the undersigned Veterans Law Judge in June 2021. Later that same month, the Board remanded the case for further development. Stegall v. West, 11 Vet. App. 268, 271 (1998). Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, multiple ("staged") ratings may be assigned for different periods of time during the pendency of the appeal. See generally Fenderson v. West, 12 Vet. App. 119 (1999). Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. See generally Hart v. Mansfield, 21 Vet. App. 505 (2007). 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 will be assigned. See 38 C.F.R. § 4.7. Limitation of motion of the knee is rated under Diagnostic Code 5260 (limitation of flexion) and Diagnostic Code 5261 (limitation of extension). The Veteran's service-connected right knee disability is evaluated as 10 percent disabling under Diagnostic Code 5260. Under Diagnostic Code 5260, flexion limited to 60 degrees is rated zero percent. The criterion for a 10 percent rating is flexion limited to 45 degrees. The criterion for the next higher rating, 20 percent, is flexion limited to 30 degrees. The criterion for the next higher rating, 30 percent, is flexion limited to 15 degrees. Under Diagnostic Code 5261, extension limited to 5 degrees is rated zero percent. The criterion for a 10 percent rating is extension limited to 10 degrees. The criterion for the next higher rating, 20 percent, is extension limited to 15 degrees. The criterion for the next higher rating, 30 percent, is extension limited to 20 degrees. A 40 percent rating is assigned with extension limited to 30 degrees. The highest 50 percent rating is assigned with extension limited to 45 degrees. Normal knee motion is from zero degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. 38 C.F.R. § 4.71a. Under 38 C.F.R. § 4.71a, there are other diagnostic codes that may potentially be employed to evaluate impairment resulting from service-connected knee disorders. Additional rating criteria are found under Diagnostic Codes 5256 (ankylosis of the knee), Diagnostic Code 5257 (recurrent subluxation or lateral instability), 5258 (dislocation of semilunar cartilage), 5259 (removal of semilunar cartilage), 5262 (impairment of the tibia and fibula), and 5263 (genu recurvatum acquired, traumatic, with weakness and insecurity in weight-bearing objectively). Effective February 7, 2021, during the pendency of this appeal, VA's Schedule, 38 C.F.R. Part 4, was amended with regard to rating musculoskeletal disabilities. 85 Fed. Reg. 76453 (Nov. 30, 2020). VA's General Counsel, in a precedent opinion, has held that when a new regulation is issued while a claim is pending before VA, unless clearly specified otherwise, VA must apply the new provision to the claim from the effective date of the change as long as the application would not produce retroactive effects. VAOPGCPREC 7-03; 69 Fed. Reg. 25179 (2003). The amended versions may only be applied as of their effective date. Before that time, only the former version of the regulation may be applied. VAOPGCPREC 3-00; 65 Fed. Reg. 33422 (2000). Importantly, the former version remains for consideration throughout the rating period on appeal, both prior to and after the effective date of the change. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The periods relevant to this decision are prior to and after the February 7, 2021, amendments. The revisions to the regulations have a limited impact in that they have only been in effect since February 7, 2021. Diagnostic Codes 5258, 5259, 5260 and 5261 were not changed by the February 7, 2021, amendments. Effective February 7, 2021, Diagnostic Code 5003 was revised only insofar as it was renamed to make clear that this diagnostic code only applies to degenerative arthritis. See 85 Fed. Reg. 76453 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5003). The revisions to the regulations do change how instability and subluxation of the knee are rated. That is, the descriptor terms of slight, moderate, and severe have been removed, and replaced with detailed descriptions of levels of impairment resulting from recurrent subluxation or instability, or from patellar instability. Regarding recurrent subluxation or lateral instability, a 10 percent rating is assigned for 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. A 20 percent rating is assigned with 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 30 percent rating is assigned 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. Regarding patellar instability, 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. 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 30 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 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 surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). 85 Fed. Reg. 76453, 76463. A claimant who has limitation of motion and instability of a knee, may be rated separately under Diagnostic Codes 5260 and 5257. Any separate rating must be based on additional disabling symptomatology that meets the criteria for a compensable rating. VAOPGCPREC 23-97 (1997); VAOPGCPREC 9-98 (1998). Separate ratings under Diagnostic Code 5260 for limitation of flexion and Diagnostic Code 5261 for limitation of extension, may be assigned for disability of the same knee; however, any separate rating must be based on additional disabling symptomatology that meets the criteria for a compensable rating. VAOGCPREC 9-2004 (2004). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis. However, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the United States Court of Appeals for Veterans Claims (Court) held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." 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 flares from the veterans themselves, when a flare-up is not observable at the time of examination. The Board has reviewed all relevant evidence, to include lay statements, the Veteran's June 2021 Board hearing testimony, and VA medical records, with particular attention to the VA examinations from September 2016 and October 2021. Given the evidence of record, the Board finds the 10 percent rating currently assigned to the Veteran's service-connected right knee disability under Diagnostic Codes 5260 to be adequate. The possible basis for an increase to a 20 percent rating, taking into account DeLuca factors, under Diagnostic Code 5260 would be a showing of limitation of flexion of the knee to 30 degrees. At no time during this period on appeal has the Veteran's flexion been limited to 30 degrees. The September 2016 VA examination report reflects that his right knee flexion was to 140 degrees, with pain. The October 2021 VA examination report reflects the Veteran's right knee flexion was to 90 degrees, with objective pain. It was noted that over repeated use and during a flare-up, his right knee flexion would be measured to 85 degrees. Accordingly, a higher disability rating is not warranted under Diagnostic Code 5260. The criteria for a higher or separate rating under Diagnostic Code 5261, for limited extension, have also not been met. The September 2016 VA examination report reflects that right knee extension was to 0 degrees, with pain. The October 2021 VA examination report reflects that right knee extension was to 5 degrees, with pain. The VA examiner also noted that over repeated use and during a flare-up, right knee extension would be measured to 10 degrees. The Board notes that the Veteran's right knee extension shows the minimum compensable evaluation over repeated use and during a flare-up. However, the Board also notes that the Veteran is already in receipt of a compensable rating due to a limitation of motion, for flexion under Diagnostic Code 5260 when the Veteran has in fact not exhibited a compensable degree of limitation for that movement. Therefore, the Board does not find that a separate rating for symptomatology of limitation of extension is warranted, since there is no finding of compensable limitation of extension and compensable limitation of flexion. As such, a separate or higher rating, based on limitation of extension is not warranted. Next, as noted above, the former version of a changed regulation remains for consideration throughout the rating period on appeal, both prior to and after the effective date of the change. Kuzma, supra. Diagnostic Code 5257, which contemplates knee impairment with recurrent subluxation or lateral instability, was amended by the new regulations effective February 7, 2021. In this case, a review of the record shows that the use of the prior version of the Diagnostic Code 5257 is favorable to the Veteran. Under the former regulation, a 10 percent rating is assigned when there is slight recurrent subluxation or lateral instability under the old criteria. Under the new criteria, recurrent subluxation, or instability due to sprains or ligament tears; or patellar instability, defined as a diagnosed condition involving the patellofemoral complex with recurrent instability is needed. Since the new code is less favorable, based on the evidence of record, the Board will only discuss the prior version. The September 2016 VA examination report reflects no subluxation or instability upon testing. The October 2021 VA examination report reflects that the VA examiner noted that, upon examination, there were findings of joint instability of the right knee. The right knee anterior and posterior instability test results were normal; however, the right knee medial and lateral instability test results were both 1+. Therefore, a separate rating for slight instability of the knee under Diagnostic Code 5257 is granted effective October 4, 2021, the first time the record showed findings of instability. The Board has considered whether there is any other schedular basis for granting a higher rating, but has found none. There is no competent evidence of right knee ankylosis, dislocation of semilunar cartilage, symptomatic removal of semilunar cartilage, impairment of the tibia and fibula, or genu recurvatum on any of the VA examination reports. Accordingly, Diagnostic Codes 5256, 5258, 5259, 5262, and 5263 are not for application. The Veteran is competent to report on factual matters for which he had firsthand knowledge, and the Board finds that his reports concerning symptomatology have been credible. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Veteran has asserted that his right knee disability is more severe than is reflected by the current evaluation. While the Veteran is competent to observe his knee disability symptoms, to include pain, stiffness, swelling, and difficulty bending, he does not have the training or credentials to determine the current nature, extent, and severity of those symptoms. Additionally, he does not have the training or credentials to determine the proper disability evaluation concerning knee disability symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In reaching this determination, the Board notes that the United States Court of Appeals for Veterans Claims has held that entitlement to a total disability rating based on individual unemployability (TDIU) is an element of all appeals for a higher rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to TDIU is raised when a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. The September 2016 VA examination report shows that the VA examiner noted that the Veteran's condition would impact his ability to walk for extended periods of time and standup after sitting for an extended period of time. The October 2021 VA examination report reflects that the VA examiner noted that the impact the Veteran's condition would have on his employment was pain with prolonged standing, walking, and running longer than 10 minutes continuously. Also, repetitive kneeling, squatting, and stairs would be impacted. While the Veteran experiences some limitation in motion, there is no evidence to suggest that his disability renders him unemployable. Accordingly, a TDIU claim has not been raised, and no action pursuant to Rice is necessary. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Evans, A-L 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.