Citation Nr: 21075876 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 14-07 258A DATE: December 21, 2021 ORDER Entitlement to an initial rating higher than 10 percent for a right knee strain is denied. Entitlement to an initial rating higher than 20 percent for right knee instability is denied. FINDINGS OF FACT 1. During the pendency of the appeal, the Veteran's right knee disability has been manifested by arthritis and pain with range of motion limited to no worse than 70 degrees and normal extension. 2. The Veteran's right knee disability exhibited moderate symptoms of lateral instability due to a sprain/ligament repair, which required a prescribed brace by a medical provider throughout the period on appeal, but not severe lateral instability or recurrent subluxation or unrepaired or failed repair of complete ligament tear causing persistent instability. CONCLUSIONS OF LAW 1. The criteria for an initial rating higher than 10 percent for a right knee strain are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.40, 4.45, 4.59, 4.7, 4.71a, Diagnostic Code (DC) 5010-5260. 2. The criteria for an initial rating higher than 20 percent for right knee instability are not met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, DC 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 2006 to July 2009. In March 2018, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record and has been reviewed. In November 2018 and August 2020, the Board remanded the appeal to provide the Veteran with adequate VA examinations. Increased Rating Applicable Laws and Regulations Disability evaluations are determined by comparing a veteran's present symptoms with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the Veteran. 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran's condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. When a claimant is awarded service connection and assigned an initial disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found. Where the veteran is appealing the rating for an already established service-connected condition, her present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are 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. Hart v. Mansfield, 21 Vet. App. 505 (2007). Right Knee Rating Criteria The Veteran's right knee disability is assigned a 10 percent rating pursuant to DC 5010-5260 and a 20 percent rating pursuant to DC 5010-5257. Prior to February 7, 2021, DC 5010 (traumatic arthritis) directs that arthritis be rated under DC 5003 (degenerative arthritis), which states that 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. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, x-ray evidence of arthritis involving two or more major or minor joint groups will warrant a 10 percent rating, and two or more major or minor joint groups with occasional incapacitating exacerbations will warrant a 20 percent rating. The 10 percent and 20 percent ratings based on x-ray findings will not be combined with ratings based on limitation of motion. 38 C.F.R. § 4.71a, DC 5003 Note 1. Effective February 7, 2021, DC 5010 (post-traumatic arthritis) is to be rated as limitation of motion, dislocation, or other specified instability under the affected joint. If there are 2 or more joints affected, each rating shall be combined in accordance with §4.25. Knee disabilities can be rated under Diagnostic Codes 5256, 5257, 5258, 5259, 5260, 5261, 5262, and 5263. 38 C.F.R. § 4.71a. DC 5257 provides a 10 percent rating for slight recurrent subluxation or lateral instability, a 20 percent rating for moderate recurrent subluxation or lateral instability, and 30 percent rating for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The words "slight," "moderate" and "severe" as used in various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6; Spellers v. Wilkie, 30 Vet. App. 157 (2018). Under DC 5257, effective February 7, 2021, a 10 percent rating is warranted for recurrent subluxation or instability 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 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 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 under DC 5257, 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; and a 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. DC 5258 provides a 20 percent rating may be assigned for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. 38 C.F.R. § 4.71a. DC 5259 provides for a 10 percent rating for symptomatic removal of the semilunar cartilage. 38 C.F.R. § 4.71a. DC 5260 provides for the evaluation of limitation of flexion of the knee. A non-compensable rating is warranted when leg flexion is limited to 60 degrees. A 10 percent rating is warranted when it is limited to 45 degrees, a 20 percent rating is warranted when it is limited to 30 degrees, and a 30 percent rating is warranted where flexion is limited to 15 degrees. 38 C.F.R. § 4.71a. Under DC 5261, extension limited to 5 degrees warrants a 0 percent 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, and extension limited to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a. Under DC 5263, genu recurvatum (acquired, traumatic, with weakness and insecurity in weight-bearing objectively demonstrated) warrants a 10 percent rating. 38 C.F.R. § 4.71a. Genu recurvatum is hyperextension of the knee. See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY (30th Ed. 2003) at 765. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. Where arthritis results in painful motion of the joint, the rating criteria allow for at least the minimum compensable evaluation for the joint. 38 C.F.R. § 4.59. The intent of the rating schedule is to recognize painful motion with joint or particular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or misaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Id. The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Right Knee Rating Analysis According to August 2009 VA treatment records, the Veteran had two meniscus repairs and ACL also needed a repair. At the time, the Veteran indicated that the right knee did not bother him. Examination of the knee revealed no swelling or crepitus and full range of motion. During an October 2009 compensation examination for disabilities other than the claimed knee disability, the Veteran reported that he could not stand or jog for a long time due to his right knee pain resulting from ACL and meniscal tears. He was unable to play baseball. According to October 2009 VA treatment records, the Veteran was seen for the first time to fill in paperwork for disability benefits for right knee torn meniscus. According to April 2010 VA treatment records, there was no right knee erythema, effusion, or cellulitis. Range of motion was full. Gait was within normal limits. X-rays showed status post right ACL repair with good anatomic alignment without evidence of hardware complications and mild narrowing of the right medial compartment. The assessment noted complaints of knee pain and popping. In February 2014, the Veteran underwent a knee conditions compensation examination, at which time the examiner rendered a diagnosis of right knee strain, instability, and degenerative joint disease status post ACL/meniscus reconstructive surgery. The Veteran reported that most days it felt like it was hard to do a lot because of the knee pain. Flare-ups were described as making it almost impossible to squat or walk. Upon physical examination, range of motion of the right knee revealed flexion to 120 degrees with pain and extension to 5 degrees with pain. There was no additional loss of range of motion after repetitive use testing. Functional loss was due to less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, instability of station, disturbance of locomotion, and interference with sitting, standing, and/or weightbearing. There was tenderness/pain on palpation of the right knee. Muscle strength testing revealed active movement against some resistance (4/5) for knee flexion and extension. Joint stability was abnormal on all tests showing 2+ (5-10 millimeters). There was no evidence or history of recurrent patellar subluxation/dislocation. The Veteran had meniscal condition with meniscal tear with frequent episodes of joint locking and joint pain. There were no residuals from the 2004 and 2008 meniscectomies. The Veteran regularly used a brace. According to July 2014 VA treatment records, the Veteran was prescribed a metal knee brace. During the March 2018 Board hearing, the Veteran testified that he wore a brace since his last surgery in 2010 due to knee pain. It was hard to walk during cold weather as his knee stiffened up. The right knee gave out occasionally, approximately once a month. Flare-ups occurred once or twice a week, at which time the right leg would suddenly get really weak. After a few moments of rest, he was able to walk again. Instability occurred once or twice a week; and once a month, the knee locked up. Instability lasted a minute or two but locking up required testing for five minutes and moving the knee back and forth. In September 2019, the Veteran underwent a knee compensation examination, at which time the examiner confirmed diagnoses of right knee strain status post ACL reconstruction and meniscectomy, instability, and status post ACL/meniscus reconstructive surgery. The Veteran reported pain when walking. No flare-ups or functional loss/impairment was documented. Upon physical examination, range of motion of the right knee revealed flexion to 140 degrees and extension to 0 degrees with pain. There was objective evidence of mild localized tenderness over the medial patella, which the examiner noted was a residual of the ACL surgery. There was no pain with weightbearing and no crepitus. There was no additional loss of function or range of motion after repetitive use testing. The examiner noted that the examination was medically consistent with the Veteran's statement describing functional loss after repeated use over time and that pain significantly limited functional ability after repeated use over time; however, although the examiner indicated that it was possible to describe this loss in terms of range of motion, the same initial range of motion was recorded. Notably, the examiner indicated that the Veteran was not examined immediately after repetitive use over time. Additional factors contributing to the disability included disturbance of locomotion and pain when walking. Muscle strength testing was normal with no evidence of muscle atrophy. There was no ankylosis or history of recurrent subluxation, lateral instability, or effusion. Joint stability tests were normal. The examiner noted that the Veteran had a meniscus tear with no current symptoms. The examiner noted that the Veteran used no assistive devices. In September 2021, the Veteran underwent an additional knee compensation examination, at which time the examiner confirmed diagnoses of right knee strain, arthritis, instability, and anterior cruciate ligament reconstruction and meniscotomy. The Veteran reported that the condition worsened due to pain and limited range of motion. He used a knee brace routinely. Flare-ups were described as occurring a few times a month and lasting less than a day, at which time the pain was severe with swelling, and worsening range of motion. Functional loss/impairment was described as impaired ability with weightbearing such as running, squatting, standing, using stairs, and prolonged walking. Instability of the knee was described as feeling as if the knee does not function properly and is weak. Upon physical examination of the right knee, the examiner noted that there was decreased ability to flex the knee and perform any weightbearing activities. Range of motion revealed flexion to 90 degrees and extension to 0 degrees with pain. There was evidence of pain with weightbearing and non-weightbearing, active and passive motion, and on rest/non-movement. The pain caused functional loss due to limitation in weightbearing activities that limited ability to stand, walk, run, use stairs, and squat. There was objective evidence of crepitus and moderate localized tenderness. There was no additional loss of function or range of motion after repetitive use testing. The examiner noted that pain, fatigability, weakness, and lack of endurance significantly limited functional ability with repeated use over time; and estimated that range of motion will decrease flexion to 80 degrees. During flare-ups, the reduction was estimated to 70 degrees. There was no evidence of muscle atrophy or ankylosis. There was recurrent instability of the right knee, which required the use of a knee brace. A current diagnosis of a meniscus condition was not warranted as the meniscal tear was repaired. Knee Strain Upon review of all the evidence, lay and medical, the Board finds that the criteria for a rating higher than 10 percent are not met for the right knee strain. A higher rating under DC 5010 is not warranted for either knee because the Veteran has not exhibited degenerative arthritis of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. Here, just one major joint is involved. A higher rating under DC 5261 based on limitation of extension is also not warranted. Extension has been regarded as normal (0 degrees) throughout the pendency of the appeal with one exception in February 2014 where extension was limited to 5 degrees, and as such, the criteria for even compensable rating under DC 5261 are not met or approximated. Similarly, a higher rating under DC 5260 is not warranted. Specifically, range of right knee motion was at worse limited to 70 degrees even during flare-ups and/or after repeated use over time. Even accepting the Veteran's statement of flareups and functional loss, the severity and frequency of these flare-ups, do not more nearly approximate the criteria for even a compensable rating under DC 5260 and/or 5261. As indicated, a compensable rating requires evidence of limitation of flexion to 45 degrees or limitation of extension to 10 degrees, and neither of which is more nearly approximated during the pendency of the appeal, to include during flare-ups and/or after repeated use over time. The Board concludes that the assigned 10 percent rating already compensates the Veteran for any functional loss he experiences. The Board also considered the applicability of other potential diagnostic codes during this period on appeal. As the evidence of record fails to demonstrate ankylosis; cartilage removal; meniscus impairment; impairment of the tibia or fibula; or genu recurvatum, the Veteran is not entitled to a higher or separate rating under DCs 5256, 5258, 5259, 5262, or 5263 respectively. Specifically, regarding the meniscus repair, the medical evidence demonstrated that there were no residual symptoms from the repair, or at the very least, no evidence of recurrent effusion, which is required by the rating criteria. Knee Instability (Continued on the next page) As discussed above, the Veteran is in receipt of a 20 percent disability rating for the right knee instability. On review, the Board finds that a rating higher than 20 percent is not warranted. Notably, there is no evidence of severe instability of the knee at any point during the pendency of the appeal. Specifically, the Veteran indicated that he only had to rest for a few moments when the knee felt weak or giving way, and never referred to the instability as severe. No medical professional referenced severe instability of the knee. Additionally, there is no new evidence of unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device and bracing for ambulation to warrant a 30 percent rating under the revised rating criteria. Finally, neither the Veteran nor his attorney has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Yaffe, 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.