Citation Nr: 21076379 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 08-13 236A DATE: December 23, 2021 ORDER Entitlement to a rating of 20 percent for left knee recurrent lateral instability is granted throughout the appeal. FINDING OF FACT The Veteran's left knee strain is manifest by moderate recurrent lateral instability throughout the appeal. CONCLUSION OF LAW The criteria for a rating of 20 percent, but no greater, for left knee recurrent instability have been met throughout the appeal. 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 from April 1982 to May 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2016, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the proceeding is associated with the electronic claims file. This matter was previously remanded by the Board in October 2017 for further development. In an October 2020 decision, the Board granted a 20 percent rating, effective August 20, 2007, under 38 C.F.R. § 4.71a, Diagnostic Code 5260 limitation of flexion of the knee, for the Veteran's left knee disability. The Board stated that it had considered whether higher ratings or additional separate ratings were warranted under other diagnostic codes at any time during the appellate period, but found that the evidence of record did not support higher or additional ratings. The Board noted that although the Veteran reported subjective feelings of giving way, the weight of the probative evidence demonstrated no left knee lateral instability or subluxation and his VA and private medical records indicated that his reported instability/giving way is due to his service-connected hip disabilities. The Veteran appealed the Board's decision that a separate rating under 38 C.F.R. § 4.71a, Diagnostic Code 5257 was not warranted to the United States Court of Appeals for Veterans Claims (Court). In June 2021, pursuant to a Joint Motion for Partial Remand (JMPR), the Court vacated the Board's October 2020 decision insofar as it denied entitlement to a rating in excess of 20 percent for a left knee disability to the extent that the Board failed to adequately address whether a separate rating under 38 C.F.R. § 4.71a, Diagnostic Code 5257 was warranted, and remanded for readjudication consistent with the terms of the JMPR. The Court also determined that the Board failed to provide an adequate statement of reasons or bases as to whether the evidence was in equipoise and whether the benefit of the doubt applied. 38 U.S.C. § 5107(b). The Court found that on remand, the Board must discuss the balance of the evidence and determine whether it is in equipoise; if so, it must apply the benefit of the doubt. The case has since been returned for appellate review. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.201; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Entitlement to a Separate Rating for Left Knee Recurrent Lateral Instability Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate Diagnostic Codes (DCs). 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. It is possible for a Veteran to have separate and distinct manifestations from the same injury that would permit rating under several diagnostic codes; however, 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 conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); 38 C.F.R. § 4.14. As the June 2021 JMPR solely concerns whether a separate rating under 38 C.F.R. § 4.71a, DC 5257 is warranted for the Veteran's left knee disability, the Board will only consider and address whether a separate rating is warranted under DC 5257 in this decision. The other DCs applicable to knee disability will not be addressed herein. The Board notes that during the pendency of the Veteran's appeal, VA amended the criteria for rating musculoskeletal disabilities. The new regulation applies to claims received on or after February 7, 2021 or previously filed claims that are pending on February 7, 2021 if the new regulation will render more favorable result for the Veteran. As such, the Board will evaluate the Veteran's disability under both the old and new regulations for the entire appeal period and choose the more favorable result. The Board finds that a rating of 20 percent under DC 5257 is warranted. The Board finds that the preponderance of the evidence is against a higher rating under DC 5257. In denying this rating, the Board finds that the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. The Veteran contends that his left knee will give out during flare-ups and sometimes randomly for no reason, which has resulted in multiple falls. The new regulation for rating musculoskeletal disabilities revises the criteria for DC 5257. Under the new regulation, a 30 percent is warranted for recurrent subluxation or instability 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 recurrent subluxation or instability if either of the following criteria are met: (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. (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 10 percent rating is warranted for recurrent subluxation or instability if there is 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. Regarding patellar instability, a 30 percent 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. A 20 percent 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, cane, or walker. 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. Note (1): For patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note (2): 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). Under the old regulation, slight recurrent subluxation or lateral instability warrants a 10 percent rating, moderate recurrent subluxation or lateral instability warrants a 20 percent rating, and severe recurrent subluxation or lateral instability warrants a 30 percent rating. 38 C.F.R. § 4.71a. The words "slight," "moderate," and "severe" as used in the various DCs are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. 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. Objective medical evidence is not required to establish lateral knee instability under Diagnostic Code 5257, so 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). The Board finds that Veteran meets the criteria for a 20 percent rating, but no higher, under both the old and new criteria for left knee recurrent lateral instability. The Board has carefully considered the Veteran's reports about instability, to include medical history provided by the Veteran during his July 2014 and April 2019 VA examinations. However, overall, the lay and medical evidence indicates that the instability symptoms have varied and do not suggest the presence of symptoms more nearly approximating severe recurrent subluxation or instability. Further, the Veteran does not have an unrepaired or failed repair of complete ligament tear of his left knee, nor a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair. In a January 2008 Compensation and Pension Note, the Veteran reported left knee instability, and that his left knee would give way. He stated that he was only able to stand for 15 to 30 minutes and only able to walk for a quarter of a mile. He intermittently and occasionally used a cane for walking. The Veteran was prescribed and fitted for a wrap around knee brace with Velcro and patella cut-outs with B hinges on medial/lateral knee joint in May 2012. The Veteran reported that he wore the brace when walking. It was noted that the Veteran did not have or use an assistive device, such as a cane or walker. In an August 2013 private report of consultation and examination, the Veteran reported that his left knee gave out randomly and unpredictably, and caused multiple falls. The examiner noted marked lateral instability with a mild drawer sign. He further noted that the Veteran had been prescribed and issued a cane and a brace for this condition by his VA physician. The examiner opined that due to the instability of his left knee, the knee will not reasonably rehabilitate and would benefit from consultation with a Board certified orthopedic surgeon to determine if there was a surgical remedy, including joint replacement surgery, available to him. In a November 2013 Function Report submitted to the Social Security Administration, the Veteran reported that with his knees, it is difficult to walk or stand for a prolonged time and that when he does, he uses a cane to help him. He also reported that he wore braces on both knees. In a July 2014 VA examination, the Veteran reported regular use of a cane for stability and as an assistive device. He added that he occasionally uses a walker if walking long distances. The examiner determined that joint stability testing could not be conducted. In July 2017, the Veteran was fitted for new Coreflex knee braces to provide support and pain relief. In an April 2019 VA examination, the Veteran reported that since his last examination, the pain in his left knee had worsened and that it would give out during a flare-up. Upon examination, joint stability testing revealed normal anterior instability, posterior instability, medial instability, and lateral instability. The examination report noted that the Veteran did not use any assistive devices as a normal mode of locomotion. Though the April 2019 VA examination found no history of lateral instability, the Veteran's VA treatment records and the August 2013 private opinion he submitted reflect consistent reports and findings of instability, as well as reports made by the Veteran that his knee gives way during flare-ups and sometimes randomly for no reason. Further, the Veteran is prescribed a knee brace for his left knee. Moreover, the Veteran has consistently reported that he uses a cane to help him walk and stand for prolonged periods. During the July 2014 examination, he also reported using a walker when walking long distances. Thus, the Board finds the April 2019 VA examination's findings regarding instability are inconsistent with the other medical and lay evidence in the claims file. Accordingly, resolving doubt in favor of the Veteran, the Board finds that the evidence reveals moderate lateral instability warranting a 20 percent rating, but no higher. In denying a rating greater than 20 percent, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Nathaniel Doan Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Fairlie, 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.