Citation Nr: 21075830 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 18-19 170 DATE: December 21, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for service-connected left knee chondromalacia patella (previously rated as residuals of left knee injury), based on limitation of motion, is denied. From May 8, 2012 to January 21, 2021, entitlement to a disability rating of 10 percent for instability, left knee, is granted. From January 22, 2021 to August 28, 2021, entitlement to a disability rating in excess of 10 percent for instability, left knee, is denied. Since August 29, 2021, entitlement to a disability rating of 20 percent for instability, left knee, is granted. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran's left knee disability is manifested by limitation of motion, pain, swelling, and degenerative arthritis shown by X-ray findings and flexion of the left knee is limited to no less than 85 degrees with painful motion. 2. Since the start of the appeal period on May 8, 2012, through August 28, 2021, the Veteran's left knee disability is manifested by mild symptoms of instability and is not manifested by a complete ligament tear or patellar instability after surgical repair requiring a prescribed brace and a cane or walker. 3. Since August 29, 2021, the Veteran's left knee disability is manifested by a complete ligament tear or patellar instability after surgical repair requiring a prescribed brace. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 10 percent for service-connected left knee chondromalacia patella (based on limitation of motion) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5003-5260. 2. From May 8, 2012 to January 21, 2021, the criteria for a 10 percent rating for instability, left knee have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, DC 5257. 3. From January 22, 2021 to August 28, 2021, the criteria for entitlement to a disability rating in excess of 10 percent for instability, left knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, DC 5257. 4. The criteria for entitlement to a 20 percent disability rating since August 29, 2021 for instability, left knee, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, DC 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty from October 1979 to April 1988. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2013 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified before the undersigned Veterans Law Judge during a January 2021 virtual Board hearing. A transcript of this hearing has been associated with the claims file. By way of history, the Veteran's claim for an increased disability rating for her service-connected left knee chondromalacia patella was previously before the Board in June 2021. At that time, the Board remanded the claim to the Agency of Original Jurisdiction (AOJ) for further evidentiary development, including a new VA examination. Such development has now been completed and in consideration of this appeal, the Board finds that there has been substantial compliance with the June 2021 Board remand directives. As such, the Board will proceed with appellate review. Increased Ratings Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1. VA should interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability shall be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations apply, the higher of the two should be assigned where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. Additionally, when evaluating a musculoskeletal disability, VA must consider functional loss due to pain, weakness, excess fatigability, or incoordination. See DeLuca v. Brown, 8 Vet. App. 202, 206 (1995); 38 C.F.R. §§ 4.40, 4.45. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. The examiner should also determine the point, if any, at which such factors cause functional impairment. See Mitchell v. Shinseki, 25 Vet. App. 32, 43-44 (2011); Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017); see also 38 C.F.R. § 4.59. 1. Entitlement to a disability rating in excess of 10 percent for service-connected left knee chondromalacia patella (based on limitation of motion) is denied. 2. Entitlement to a 10 percent rating for instability of the left knee is granted from the date of claim, May 8, 2012, to January 21, 2021. 3. Entitlement to a disability rating in excess of 10 percent from January 22, 2021 to August 28, 2021 for instability, left knee, is denied. 4. Entitlement to a disability rating of 20 percent since August 29, 2021 for instability, left knee, is granted. The Veteran contends she is entitled to a disability rating greater than the currently assigned 10 percent for her left knee disability. By way of history, in a November 1988 rating decision the RO granted service connection for the Veteran's left knee disability, characterized as residuals of left knee injury, and assigned a noncompensable disability rating. In a November 2005 rating decision, the RO recharacterized the disability as left knee chondromalacia patella and increased the rating to 10 percent, effective April 15, 2005. The Veteran filed her present claim for an increased rating in May 2012. During the appeal period, the Veteran was granted a separate 10 percent disability rating for instability of the left knee in a September 2021 rating decision, effective January 22, 2021. Knee disabilities are unique in the rating code, as they are one of a few orthopedic disabilities in which a Veteran may receive multiple ratings based on separate symptoms in the same joint, as illustrated above. While the law generally prevents considering the same symptoms under various diagnoses to support separate ratings, some of the relevant DCs for the knee have been interpreted to apply to different functions of the knee, therefore warranting separate consideration. Specifically, the evidence may warrant separate ratings for limitation of flexion of the knee, limitation of extension of the knee, and lateral instability and recurrent subluxation of the knee. The Board will explore all possibilities in this case. VA recently amended the regulations for rating knee disabilities, effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76462 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Codes 5257 and 5262). The changes in DC 5257 for other knee impairment of recurrent subluxation or lateral instability, which now also adds patellar instability, is applicable to this case and is set forth below. The Veteran is entitled to application of the criteria that are most favorable to her claim, but a higher rating may not be granted under the new criteria prior to the effective date of the new criteria. 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. In this case, DC 5003-5260 and DC 5257 reflects consideration of the effects of degenerative arthritis (5003) and limited flexion (5260), and instability (5257). DC 5003 rates arthritic conditions. A 10 percent evaluation is warranted when there is x-ray evidence of involvement of 2 or more major joints or minor joint groups; a 20 percent evaluation is warranted when there is involvement of 2 or more major joints or minor joint groups with occasional incapacitating episodes. See 38 C.F.R. § 4.71a, DC 5003. Similarly, where limitation of motion is not compensable under the specific code for a joint, 38 C.F.R. § 4.59 provides for a minimum compensable rating for actually painful joints in conjunction with a diagnostic code based on limitation of motion, whether or not there is arthritis. Sowers v. McDonald, 27 Vet. App. 472, 479 (2016); Southall-Norman v. McDonald, 28 Vet. App. 346, 354 (2016). Under both sets of criteria, VA considers normal knee range of motion to be from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate I. Under DC 5260, a 10 percent rating is assigned for limitation of flexion of the leg to 45 degrees. A 20 percent rating is assigned for flexion limited to 30 degrees. A 30 percent rating is assigned for flexion limited to 15 degrees. Id. Under DC 5261, a 10 percent rating is assigned for limitation of extension of the leg to 10 degrees. A 20 percent rating is assigned for extension limited to 15 degrees. A 30 percent rating is assigned for extension limited to 20 degrees. A 40 percent rating is assigned for extension limited to 30 degrees. A 50 percent rating is assigned for extension limited to 45 degrees. Id. Where there is painful or limited motion with both flexion and extension, but the compensable criteria are not met for either flexion (DC 5260) or extension (DC 5261), only one minimum rating of 10 percent should be assigned. Separate ratings may not be assigned for painful or noncompensable limitation of motion using DC 5003 or section 4.59 in connection with 5260, and compensable limitation of extension under DC 5261. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Under the criteria effective prior to February 7, 2021, DC 5257 provides that recurrent subluxation or lateral instability will be assigned a 10 percent rating where it is mild, a 20 percent rating where it is moderate, or a maximum 30 percent rating where it is severe. 38 C.F.R. § 4.71a. Importantly, prior to the regulatory amendments outlined below, DC 5257 does not require objective medical evidence of lateral instability for a rating to be assigned and when weighing evidence to determine whether there is lateral instability, the Board cannot find objective medical evidence is automatically more probative than lay evidence. English v. Wilkie, 30 Vet. App. 347, 352-3 (2018). Under the criteria effective February 7, 2021, DC 5257 provides that recurrent subluxation or instability will be assigned a 10 percent rating 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 will be assigned if there is 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 30 percent rating requires an unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device and bracing for ambulation. Id. There are also new criteria for patellar instability under DC 5257. 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. Id. The patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Id. at Note (1). 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). Id. at Note (2). Under DC 5258, a dislocated, or torn, semilunar cartilage or meniscus, with frequent episodes of "locking," pain, and effusion into the joint will be assigned a 20 percent rating. Id. DC 5259 addresses post-surgical meniscal conditions. Id. Turning to the relevant evidence of record, the Veteran underwent a VA examination in July 2012 for her left knee disability. During the examination, the Veteran was diagnosed with chondromalacia patella, as well as posterior tibial tendonitis. During the examination, the Veteran endorsed swelling of her left knee, and stated that "[it] gives out on me when I walk up and down steps, and steps are required for me at work." The Veteran also endorsed flareups of her left knee disability. Upon range of motion testing, the Veteran's left knee flexion was 110 degrees with objective evidence of painful motion beginning at 100 degrees. Extension was not limited. Repetitive motion testing did not cause additional limitation. Instability testing in her left knee normal, although slight recurrent patellar subluxation was indicated. The Veteran denied use of any assistive devices. The VA examiner indicated that the Veteran's left knee condition results in pain with standing and walking during the workday. The Veteran underwent an additional VA examination in November 2013. During this examination, the VA examiner found that the Veteran also had degenerative joint disease of the left knee. The Veteran reported daily left knee pain and swelling, which is brought on by prolonged standing and walking. The Veteran also reported that her left knee "gives out." The Veteran stated that she has no left knee pain when she wakes up in the morning, but by the end of the day her left knee pain is at a 9 out of 10 in severity. Alleviating factors include elevating her left leg, resting, and massage. She also reported wearing a left knee brace for the past three months. The Veteran denied flare-ups of the left knee disability. Upon range of motion testing, the Veteran's left knee flexion was 120 degrees with objective evidence of painful motion beginning at 120 degrees. Extension was not limited. Repetitive motion testing did not cause additional limitation. Instability testing in her left knee was negative. The Veteran reported regular use of a left knee brace, including daily to work and any time there will be prolonged standing or walking involved in her activity. The Veteran again underwent a VA examination for her left knee in December 2017. The Veteran endorsed pain, as well as "buckling" of her left knee to the point where she has to catch herself from falling. The Veteran rates her pain as a ten out of ten during a flare-up. She also endorsed periodic swelling of her left knee. Upon range of motion testing, the Veteran's left knee flexion was 110 degrees. Extension was not limited. Pain was noted on the examination but did not result in functional loss. Repetitive motion testing did not cause additional limitation. There was no ankylosis of the left knee. Instability testing in her left knee indicated no recurrent subluxation or lateral instability, but a history of recurrent effusion was noted. The Veteran again reported regular use of a left knee brace. An August 2019 VA examination reflects the Veteran's left knee flexion was 120 degrees and extension was not limited. Pain was noted on the examination but did not result in functional loss. Repetitive motion testing did not cause additional limitation. However, the VA examiner found that pain significantly limited the Veteran's functional ability with repeated use over a period of time. The VA examiner described the limitation in terms of range of motion, with flexion limited to 100 degrees. The Veteran denied flare-ups. Instability testing was negative for the Veteran's left knee. Most recently, the Veteran underwent a VA examination in August 2021. The VA examiner diagnosed the Veteran with left knee meniscal tear, knee instability, patellar instability, degenerative arthritis, as well as chondromalacia patella of the left knee. The Veteran endorsed worsening pain with radiation down the left lower extremity. The Veteran stated that her left knee pain has gotten so bad that she often cannot sleep. Walking, standing, and bending all precipitate pain. She is also unable to sit for a prolonged period without having to readjust. The Veteran also endorsed swelling of the left knee. The Veteran denied flare-ups. The Veteran stated that her left knee limits her abilities to run, kneel, crawl, squat, stand, walk, and perform any high impact activities. The Veteran also endorsed a history of instability and recurrent subluxation of the left knee, stating that when she is walking sometimes her left knee gives out and she has to catch or grab a wall or some other object so that she does not fall. Upon range of motion testing, the Veteran's left knee flexion was 85 degrees. Extension was not limited. Pain was present on all ranges of motion and contributed to functional loss. The Veteran was able to perform repetitive use testing with at least 3 repetitions, with no additional loss of function or range of motion. The VA examiner noted no muscle atrophy as well as no ankylosis of the left knee. The VA examiner indicated that the Veteran experiences recurrent subluxation or persistent instability. Further, the VA examiner noted that the Veteran experienced an incomplete or partial ligament tear of the left knee. The Veteran has a prescription for a brace for ambulation as a result of her left knee patellar instability. VA treatment records reflect persistent complaints and treatment for pain and swelling in the Veteran's left knee. Considering the aforementioned, a rating in excess of 10 percent for the Veteran's left knee based on limitation of flexion, is not warranted at any time during the period on appeal. For a compensable rating to be assigned under DC 5260, the Veteran must have flexion limited to 45 degrees or less. 38 C.F.R. § 4.71a, DC 5260. For a disability evaluation in excess of 10 percent to be assigned under DC 5260, flexion of the knee must be limited to 30 degrees or less. Id. The evidence summarized above reflects that the Veteran had flexion in the left knee well beyond 45 degrees, even considering painful range of motion, on every occasion range of motion testing was performed during the period on appeal. VA examinations consistently noted range of motion of at least 85 degrees or more, including during times when pain was reported. There was also no additional range of motion loss with repetitive movement. Even considering the Veteran's occasional reports of flareups and additional limitations with repeated use over time, there is no evidence showing that flareups would result in a reduction of range of motion to 45 degree less. As such, the Veteran's left knee disability has manifested with painful range of motion including limitation of flexion to a noncompensable degree throughout the period at issue, hereby warranting a 10 percent disability evaluation. The Veteran's current 10 percent disability rating for her right knee disability based on limitation of flexion and painful motion takes into consideration and incorporates the functional loss and impairment due to pain. Therefore, the current functional impairment of her left knee disability and the symptoms of pain are encompassed in the 10 percent ratings assigned. As for the potential for a disability rating in excess of 10 percent for instability of the left knee, the Board finds that a 10 percent rating is warranted prior to the current effective date, January 22, 2021. Specifically, the record contains several notations of lateral instability or recurrent subluxation at times. The Veteran has consistently reported issues with balance, frequently falling, and that her left knee tends to "lock" and "give out" throughout the appeal. The Veteran has been consistent in her statements throughout the appeal about balance and feeling unstable. As noted above, knee instability is rated under 38 C.F.R. § 4.71a, DC 5257. Prior to the regulatory change, slight impairment is assigned a 10 percent rating, moderate impairment a 20 percent rating, and severe impairment a 30 percent rating. The words "slight," "moderate," and "severe," as used in the various diagnostic codes are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for "equitable and just" decisions. 38 C.F.R. § 4.6. Given the holding in English noted above, the Board finds that prior to January 21, 2021, the Veteran's reports of her knee giving out are credible, and that they support a finding of mild instability under Diagnostic Code 5257 as of the date of her claim in May 2012; however, the preponderance of the evidence is against a rating in excess of 10 percent for left knee instability until August 29, 2021. The Board has carefully considered the Veteran's reports about instability, in particular the Veteran's reports of issues with balance and instances of "locking" and "giving out" and indeed finds a rating is warranted prior to the current increased rating. Given the lack of objective evidence of instability or subluxation on testing, however, the Board finds the evidence supports mild instability only for this period. However, the Board finds that effective August 29, 2021, the Veteran meets the criteria for a 20 percent rating for left knee instability under DC 5257, under the revised criteria. While the Veteran denied use of an assistive device in the August 2019 VA examination, during the August 2021 VA examination, the VA examiner noted evidence of a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace. The Veteran underwent a left knee arthroscopy in 1984 for repair of a tendon tear. However, the Veteran has reported persistent instability, and has been prescribed a brace for regular use as a result of her left knee instability. As such, the Board finds that the Veteran is entitled to a 20 percent disability rating, but no higher, for her left knee instability effective August 29, 2021. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. M. Lowman, 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.