Citation Nr: 21077095 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 15-17 174 DATE: December 28, 2021 ORDER A rating in excess of 10 percent for right knee strain with degenerative joint disease is denied. A rating in excess of 10 percent for right knee instability is denied. FINDINGS OF FACT 1. During the period on appeal, the Veteran's right knee flexion has been limited to no less than 60 degrees; his extension has been normal. 2. The Veteran does not have more than mild right knee recurrent subluxation or lateral instability. 3. The Veteran does not have dislocated or symptomatic removal of semilunar cartilage, ankylosis, malunion, tibia and fibula impairment with nonunion or malunion, or genu recurvatum. CONCLUSION OF LAW The criteria for additional compensation for service connected right knee disability, beyond the 10 percent rating assigned for right knee strain under Diagnostic Code 5260 and the 10 percent rating assigned for right knee lateral instability under Diagnostic Code 5257, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.71a, Diagnostic Codes 5010-5260, 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from February 1969 to November 1977. The Board thanks him for his service. He appeals a November 2012 rating decision, for increased compensation for his service connected right knee disabilities, based on a claim filed in March 2011. The appeals were remanded in October 2018 and November 2020, including for a VA examination in November 2020. Increased Rating Criteria Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civil occupations. 38 U.S.C. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. 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 importance. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). When determining the severity of musculoskeletal disabilities, which are at least partly rated on the basis of range of motion, VA must consider the extent of additional functional impairment a Veteran may have above and beyond the limitation of motion objectively demonstrated due to pain, limited or excess movement, weakness, incoordination, and premature or excess fatigability, etc., particularly when symptoms "flare up," to include periods of prolonged use, and assuming these factors are not already contemplated in the governing rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; Sharp v. Shulkin, 29 Vet. App. 26, 31-35 (2017); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. See 38 C.F.R. § 4.59. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Notwithstanding the above, VA is required to provide separate evaluations for separate manifestations of the same disability which are not duplicative or overlapping. Esteban v. Brown, 6 Vet. App. 259 (1994). Knee Ratings Under Diagnostic Code 5260, leg flexion limited to 60 degrees warrants a noncompensable rating. Leg flexion limited to 45 degrees warrants a 10 percent rating. Leg flexion limited to 30 degrees warrants a 20 percent rating. Leg flexion limited to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5261, leg extension limited to 5 degrees warrants a noncompensable rating. Leg extension limited to 10 degrees warrants a 10 percent rating. Leg extension limited to 15 degrees warrants a 20 percent rating. Leg extension limited to 20 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5261. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a, including Diagnostic Code 5257, were amended effective February 7, 2021. 85 Fed. Reg. 76453 (Nov. 30, 2020). Prior to February 7, 2021, the Board will consider the old version of the diagnostic codes only; however, for the period beginning February 7, 2021 the Board will consider both the old and amended version (amended code) of the diagnostic code and rate based on whichever is most favorable to the Veteran. Prior to the regulatory change, recurrent subluxation and lateral instability of the knee warranted a 10, 20, or 30 percent rating if slight, moderate, or severe, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2020). "Slight," as relevant to a physical condition, is defined as "small of its kind or in amount." Merriam-Webster's Dictionary (merriam-webster.com/dictionary, accessed February 8, 2021). It is similar to "mild," which is defined as "not severe" or temperate; with "Temperate" being defined as "keeping or held within limits" and "not extreme or excessive." "Moderate" is defined as "tending toward the mean or average amount," "not violent, severe, or intense," and "limited in scope or effect." Id. "Severe" is defined as "very painful or harmful" or "of a great degree." Id. The term "severe" is used throughout the rating schedule, including in Diagnostic Code 5257, to indicate a very great degree of the specific listed disability, in order to differentiate between lesser (or sometimes greater) cases of that same disability within the specific diagnostic code. Within the context of Diagnostic Code 5257, which establishes a successive, tiered rating structure, it represents the highest or most extreme level. As of February 7, 2021, Diagnostic Code 5257 contains two sections for rating other impairment of the knee. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The first is for recurrent subluxation or instability. The second is for patellar instability. Regarding recurrent subluxation and instability, a compensable rating requires persistent instability. Id.; see also 38 C.F.R. § 4.31. "Persistent" is defined as "continuing or inclined to persist in a course" with "continuing" defined as "constant" and "persist" defined as "to continue to exist." Merriam-Webster's Dictionary (merriam-webster.com/dictionary, accessed February 8, 2021). Under these criteria, a 30 percent rating is assigned with unrepaired or failed repair of complete ligament tear which causes 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 assigned with either (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 10 percent rating is assigned for 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 or bracing for ambulation. Lastly, regarding patellar instability, 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 warrants a 30 percent rating, which is the highest allowable rating for patellar instability. 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 warrants a 20 percent rating. 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 warrants a 10 percent rating. The patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. 38 C.F.R. § 4.71a, Diagnostic Code 5257, 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., Note (2). A knee disability can be rated for both limitation of leg flexion under Diagnostic Code 5260 and limitation of leg extension under Diagnostic Code 5261. See VAOPGCPREC 9-2004 (Sept. 17, 2004). Separate ratings may also be assigned for knee disability under Diagnostic Codes 5257 and 5003 where there is X-ray evidence of arthritis in addition to recurrent subluxation or lateral instability. See generally VAOPGCPREC 23-97 and VAOPGCREC 9-98. 1. Entitlement to a rating in excess of 10 percent for right knee strain with degenerative joint disease 2. Entitlement to a rating in excess of 10 percent for right knee instability The Veteran has a 10 percent rating for his right knee strain under Diagnostic Code 5210-5260, and a 10 percent rating for right knee lateral instability under Diagnostic Code 5257. 38 C.F.R. § 4.71a. Based on the evidence, the Board concludes that a rating in excess of 10 percent is not warranted for the Veteran's service connected right knee strain under Diagnostic Code 5260. The preponderance of the evidence, including the numerous VA examination and treatment reports, indicates that he does not have right knee flexion limited to 30 degrees, including when DeLuca, Sharp, flare-ups, and 38 C.F.R. §§ 4.40 and 4.45 are considered. We acknowledge the reports of debility, including the report at the time of the VA examination in October 2017, that the Veteran's right knee disability is painful; interferes with walking, climbing, kneeling, and running; and includes complaints of locking and joint effusion/swelling. However, the worst right knee flexion currently shown is at the time of the October 2017 VA examination, when it was to at least 60 degrees, including after 3 repetitions and with repetitive use over time, instead of to the 30 degrees or less required for a 20 percent rating. Additionally, his muscle strength was 4/5 at that time, and other muscle strengths of 5/5 are shown, including in October 2011, October 2015, and December 2020, with no muscle atrophy. The Board notes that the October 2015, October 2017, and December 2020 examinations were all conducted during flare-ups. Also, no compensable rating is warranted for limitation of leg extension under Diagnostic Code 5261, as the Veteran does not have leg extension limited to 10 degrees. The current VA examination reports show the Veteran's leg extension to be to 0 degrees. The next question, then, is whether a rating greater than 10 percent is warranted for right knee instability under Diagnostic Code 5257. The Board finds that the preponderance of the evidence indicates that a higher rating is not warranted under either the original or amended regulation. There is no evidence showing persistent or moderate recurrent subluxation or lateral instability of the right knee. The Veteran's right knee was stable in all 4 planes at the time of the December 2020 VA examination. The Veteran reported a history of only slight lateral instability on VA examination in October 2017, the right knee had only 1+ anterior and posterior instability at that time, and right knee medial and lateral stability were normal. The VA examiners in October 2011 and October 2015 VA found no right knee instability. The Board has considered whether the medical evidence of record supports ratings under 38 C.F.R. § 4.71a, Diagnostic Code 5256, 5258, 5259, 5262, and/or 5263, and finds that it does not. No evidence shows that the Veteran has ankylosis necessary for a compensable rating under Diagnostic Code 5256. His motion from 0 to 60 degrees or more contradicts ankylosis, and as late as the December 2020 VA examination, it was reported that there was no right knee ankylosis. Although the VA examination reports exams indicate a history of meniscal conditions or surgery, there is no evidence of a meniscal tear or dislocation to support a 20 percent rating under Diagnostic Code 5258, and the VA examiners in October 2017 and December 2020 indicated that the Veteran has not had a dislocated semilunar cartilage. There is no indication that the Veteran has had semilunar cartilage removed to warrant a 10 percent rating under Diagnostic Code 5259, and the VA examiner in October 2017 indicated that he has never had a meniscal tear (which sometimes results in removal). The Veteran's symptoms of painful motion, swelling, effusion, and locking are encompassed by his Diagnostic Code 5260 rating and no separate ratings are warranted under Diagnostic Code 5258 or 5259 in light of the evidence. There is no indication of tibia and fibula impairment with malunion or nonunion to permit a rating under Diagnostic Code 5262, or of genu recurvatum to permit a 10 percent rating under Diagnostic Code 5263. The Veteran noted in October 2011 that he uses pain pills and that his knee disabilities cause problems, including extra time that he has to allow for going slower at work. However, we note that his knee disability in total is now compensated as 20 percent disabling, which contemplates a 20 percent impairment in average earning capacity. (Continued on the next page) The preponderance of the evidence is against the claims and must be denied. There is no reasonable doubt to be resolved in the Veteran's favor. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1991). Nykeia F. Miller Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Lawson 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.