Citation Nr: A21020530 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 200526-87995 DATE: December 27, 2021 ORDER A rating in excess of 10 percent for left knee chondromalacia is denied. A rating in excess of 10 percent for left knee instability is denied. A rating in excess of 10 percent for right knee osteoarthritis is denied. A rating in excess of 10 percent for right knee instability is denied. A compensable rating for a right ring finger disability is denied. REMANDED Entitlement to a compensable rating for right knee partial meniscectomy scars, is remanded. FINDINGS OF FACT 1. The Veteran's bilateral knee disabilities did not result in ankylosis; dislocated or removed meniscus; flexion functionally limited to 60 degrees or less; extension functionally limited to 5 degrees or more; impairment of the tibia and fibula; or genu recurvatum. 2. The Veteran's bilateral knee instability has not resulted in moderate or severe instability or subluxation, persistent instability, nor has the Veteran been prescribed a cane for ambulation by a medical provider. 3. The Veteran's right ring finger disability is manifested by pain, swelling, and stiffness; without any evidence of an actual amputation, without an indication that he would be equally well served by an amputation, or unfavorable ankylosis. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for left knee chondromalacia have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5256-5263. 2. The criteria for a rating in excess of 10 percent for right knee osteoarthritis have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5256-5263. 3. The criteria for a rating in excess of 10 percent for left knee instability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257. 4. The criteria for a rating in excess of 10 percent for right knee instability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257. 5. The criteria for a compensable rating for a right ring finger disability have not been met. 38 U.S.C. §§ 1155, 5107, 38 C.F.R. §§ 4.1, 4.71a, Diagnostic Code 5230. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1979 to May 1995. The rating decision on appeal was issued in January 2020 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. The Veteran appealed this decision by filing a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD). In doing so, the Veteran elected the Direct Review option; therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.3. The Board notes, however, that consideration of whether an increase in severity occurred is limited to the one-year period prior to the Veteran's October 10, 2019 Fully Developed Claim. The Board further notes that additional evidence, to include VA treatment records, was received outside the time periods during which the Board can consider evidence. Consequently, the Board cannot consider this evidence. The Veteran may, however, at any time, file a supplemental claim with the AOJ after receiving this decision and the additional evidence will be considered in connection with the supplemental claim. 38 U.S.C. § 5104C(a)(1)(B), (b); 5108; 38 C.F.R. §§ 3.2501, 20.1105(a). If filed within one year, this supplemental claim will preserve the date of the claim denied herein as the effective date of the grant of the benefit or benefits sought. 38 U.S.C. § 5110(2)(B); 38 C.F.R. § 3.2500(h). Increased Ratings Disability ratings are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical, as well as, industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). 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. Separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Reasonable doubt regarding the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. 1. Entitlement to a rating in excess of 10 percent for left knee chondromalacia. 2. Entitlement to a rating in excess of 10 percent for right knee osteoarthritis. The Veteran asserts that he is entitled to higher ratings for his bilateral knee disability and bilateral knee instability. Specifically, he reports that he needs a cane to keep his balance. He also reported that each service-connected knee aggravates the opposite knee because of over-compensation. The Veteran's left knee chondromalacia and right knee osteoarthritis have been evaluated under Diagnostic Code 5003-5260. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the rating assigned. The additional code is shown after a hyphen. 38 C.F.R. § 4.27. Diagnostic Code 5003 rates degenerative arthritis. 38 C.F.R. § 4.71a. Diagnostic Codes 5260 and 5261 rate limitation of knee flexion and knee extension, respectively. A noncompensable rating may be assigned where either knee flexion is limited to 60 degrees or knee extension is limited to 5 degrees. A 10 percent rating is assigned for either flexion limited to 45 degrees or extension limited to 10 degrees. A 20 percent rating is assigned for either flexion limited to 30 degrees or extension limited to 15 degrees. Of note, separate compensable ratings may be assigned for limitation of flexion and for limitation of extension, without violating the rule against pyramiding. See 38 C.F.R. § 4.14. Diagnostic Code 5256 evaluates ankylosis of the knee. The record contains no evidence of knee ankylosis. As such, this Diagnostic Code is not applicable. Diagnostic Code 5262 evaluates impairment of the tibia and fibula. The record contains no evidence of an impairment of the tibia and fibula. As such, this Diagnostic Code is not applicable. Diagnostic Code 5263 evaluates genu recurvatum. The record contains no evidence of genu recurvatum. As such, this Diagnostic Code is not applicable. Normal ranges of motion of the knee are to 0 degrees in extension, and to 140 degrees in flexion. 38 C.F.R. § 4.71, Plate II. It is noted that on February 7, 2021, during the course of this appeal, revisions to the Schedule for Rating Disabilities that addresses the musculoskeletal system went into effect. The United States Supreme Court has held that statutes generally may not be construed to have retroactive effect unless their language requires that result. See Landgraf v. USI Film Products, 511 U.S. 244 (1994). In Karnas, the United States Federal Circuit held that the more favorable regulations should apply to the Veteran. See Karnas v. Derwinski, 1 Vet. App. 308 (1991). However, the Federal Circuit overruled Karnas to the extent that it allowed for retroactive application and conflicted with U.S. Supreme Court and Federal Circuit precedents. Specifically, in Kuzma, the Federal Circuit held that the Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Thus, Karnas allows the old criteria to be applied before and after the effective date of the amendment, if such is more favorable to the Veteran. But, in light of Kuzma, the amended regulation cannot be applied prior to the effective date unless it explicitly provides otherwise. In other words, the old and new regulations are for consideration with regard to rating the Veteran's disability, and he is entitled to the more favorable regulation; however, if the revised criteria are more favorable to the Veteran and provide for an increased rating, that award may not be made effective before the effective date of the change. See 38 U.S.C. § 5110 (g); VAOPGCPREC 3-00. Here, the amendments to the rating schedule do not have any retroactive application. The Board notes that a new General Rating Formula for knee disabilities applies to Diagnostic Code 5257, which contemplates recurrent subluxation or lateral instability. See 85 Fed. Reg. 76453 (Nov. 30, 2020). Prior to February 7, 2021, 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. 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 May 5, 2021). Under these criteria regarding recurrent subluxation and instability, 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. 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 30 percent rating is assigned with unrepaired or failed repair of complete ligament tear that causes 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 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. 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 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. 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). The Board also notes that Diagnostic Code 5262 has also changed regarding impairment of the tibia and fibula. However, the record contains no evidence of an impairment of the tibia and fibula. As such, the change in this Diagnostic Code does not affect the way his knees will be evaluated. A review of the evidence shows the Veteran was afforded a VA examination in October 2019. The Veteran reported having a right knee surgery in 2018 that resolved his stabbing pains; however, the aching pain remained. He reported that his left knee continued to swell with occasional activity. He further reported having flare-ups of the knees and described that his knees hurt a lot more when he is very active. He stated that when he overdoes it, he has to be less active for a day to recover. On examination, he showed flexion limited to 110 degrees in his right knee and 120 degrees in the left knee. He showed full extension in both knees. There was pain noted on examination for both knees, but pain did not result in functional loss. There was no evidence of pain with weight-bearing in either knee. The Veteran was able to perform repetitive use testing with no additional loss in terms of range of motion. After repeated use over time, the examiner found that pain limited functional ability in the right and left knee; however, there was no loss in motion. Regarding flare-ups, the examiner found that pain would limit right knee flexion to 100 degrees and left knee flexion to 110 degrees, with full extension in both knees. Muscle strength testing showed normal strength in both knees, in all planes of motion. There was no evidence of ankylosis. The examiner indicated that there was no history of recurrent subluxation or lateral instability. Joint stability testing was performed, but there was no evidence of joint instability. The examiner indicated that the Veteran had a right knee partial meniscectomy in April 2018, and he did not have any residual signs or symptoms due to the meniscotomy. The Board notes that there are no other records for consideration during the appeal period except for treatment records which do not contain range of motion testing or any other findings consistent with a higher rating for a knee disability. Therefore, based on the above and remaining evidence, the Board finds a higher rating is not warranted for limitation of flexion or extension. In so finding, the Board notes that the objective evidence of record shows the Veteran exhibited flexion in both knees to well over 60 degrees, which is the minimum limitation required for a noncompensable rating. At worst, the October 2019 VA examiner found that the Veteran's right knee flexion would be limited to 100 degrees and left knee flexion would be limited to 110 degrees during flare-ups, which still would not warrant a higher rating. It is also worth noting that the Veteran was capable of performing repetitive motion testing without any additional limitation of motion, suggesting that while flare-ups might have caused an increase in symptoms, they did not lead to significant additional functional limitation. Moreover, pain, fatigue, weakness, lack of endurance, or incoordination did not cause functional loss after repetitive use for either knee. Although the examiner noted that pain would cause functional loss after repeated use over time, there was no decrease in range of motion for the right or left knee. Therefore, even considering functional loss, the preponderance of evidence is against finding an increased rating for limitation of flexion is warranted for the right or left knee. Turning to limitation of extension, the Veteran showed full extension (0 degrees) in both knees at the October 2019 VA examination. Even considering repetitive use over time and flare-ups, the examiner found that he would retain full extension. Therefore, a separate rating for limitation of extension for the right or left knee is not warranted. With regard to separate compensable ratings, there is no evidence of ankylosis, impairment of the tibia and fibula, or genu recurvatum; therefore, a separate rating is not warranted under Diagnostic Codes 5256, 5262, or 5263. The Board recognizes that the Veteran was found to have a meniscal tear in his right knee; however, there was no evidence of locking or effusion that would warrant a separate rating under diagnostic Code 5258. Moreover, his right knee symptoms are compensated in his assigned 10 percent rating, and thus, a separate rating for a symptomatic meniscal condition under Diagnostic Code 5259 would be prohibited pyramiding. See 38 C.F.R. § 4.14 (2016); see Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). For these reasons, the Board finds the preponderance of evidence is against the claims and the benefit-of-the-doubt doctrine is inapplicable. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Accordingly, the claim for increased ratings for left knee chondromalacia and right knee osteoarthritis are denied. 3. Entitlement to a rating in excess of 10 percent for left knee instability. 4. Entitlement to a rating in excess of 10 percent for right knee instability. Regarding knee instability, the Board will consider both the old and new regulations. The October 2019 VA examination revealed no instability in either knee. A review of the Veteran's post-service treatment records does not reveal any clinical findings of moderate knee instability in either knee at any time during the appeal period. The Board acknowledges the numerous lay statements provided by the Veteran's co-workers, many of whom reported that the Veteran used a cane to assist him in walking. However, the objective medical evidence of record does not show that the Veteran's knees exhibited any instability. Furthermore, when asked about his current symptoms, the Veteran specifically reported that he has not received any care for his left knee symptoms and merely noted that his left knee continues to swell with occasional activity. Similarly, he reported right knee stabbing pain that resolved with surgery, and merely noted that joint area aching pain remains present. Notably, the Veteran did not report right or left knee instability. Therefore, the Board finds that any instability the Veteran may have experienced is no more than slight as there is no evidence that would suggest the Veteran's right or left knee exhibited instability that would equate to moderate or severe. Thus, a rating in excess of 10 percent for right and left knee instability is not warranted under the old regulation. When considering the new regulation, the Board also finds that a rating in excess of 10 percent for bilateral knee instability is not warranted. The record clearly shows that the Veteran uses a cane for ambulation. However, as explained above, the Veteran has not been shown to have persistent instability, in either knee. Further, the Veteran did not appear to endorse symptoms of instability at the October 2019 VA examination. Lastly, the Veteran's treatment records are silent for any medical providers prescribing either an assistive device or bracing for ambulation, or worse. As such, the Board finds the preponderance of evidence is against the claims, and ratings in excess of 10 percent for bilateral knee instability are denied. 5. Entitlement to a compensable rating for a right ring finger disability. The Veteran asserts that he is entitled to a compensable rating for his right ring finger disability. The Veteran's representative appears to assert that the Veteran may be entitled to an extra-schedular rating for his right ring finger disability. See Appellate Brief dated September 23, 2020. The disability is currently rated under Diagnostic Code 5230. As previously noted, there were revisions to the regulations regarding the musculoskeletal system. However, the revisions to the regulations have a limited impact because they do not substantively change how digits of the hand are rated. Thus, the regulations prior to February 7, 2021 are for application in this appeal. Under Diagnostic Code 5230, a noncompensable (0 percent) disability rating is assigned for any limitation of motion of the ring or little finger for both the major and minor finger; no higher disability ratings are available. 38 C.F.R. § 4.71a, Diagnostic Code 5230. If there is limitation of motion of two or more digits, evaluate each digit separately and combine the evaluations. See 38 C.F.R. § 4.71, Diagnostic Codes 5216-5230, Note 5. The Veteran was afforded a VA examination in October 2019. The Veteran reported that his ring finger is sore when it bends, that his ring finger swells on occasion, and that his keyboard typing is affected by the ring finger. The examiner indicated that the Veteran's right hand is the dominant hand. The Veteran did not report having flare-ups in the right hand. On examination, the range of motion in his right ring finger was: MCP PIP DIP Max Extension 0 (0 Degrees) 0 (0 Degrees) 0 (0 Degrees) Max Flexion 90 (90 Degrees) 100 (100 Degrees) 40 (70 Degrees) There was no pain noted on examination. The Veteran was able to perform repetitive use testing with no additional loss in terms of range of motion. The examiner opined that after repetitive use over time, the Veteran would not lose any range of motion in the ring finger. There were no additional contributing factors of disability noted by the examiner. Muscle strength testing showed normal strength in the right hand and there was no sign of muscle atrophy. There was no evidence of ankylosis in the right ring finger. The examiner indicated that the right ring finger disability was not so functionally impaired that he would be equally well served by an amputation. There was no evidence of pain on non-weight-bearing. Here, Diagnostic Code 5230 clearly states that a noncompensable rating is assigned for any limitation of motion of the ring or little finger for both the major and minor finger; and that no higher disability ratings are available. Given such, the Board has looked to other Diagnostic Codes to determine whether a compensable rating is warranted; and whether extraschedular consideration is warranted. However, the Board finds that a compensable rating is not warranted and that extraschedular consideration is not warranted. The Board has considered whether Diagnostic Code 5155 is warranted. A compensable rating is warranted under Diagnostic Code 5155, for an amputation of the ring finger. However, the Veteran's ring finger has not been amputated and the VA examiner reported that the right ring finger disability was not so functionally impaired that he would be equally well served by an amputation. As such, Diagnostic Code 5155 is inapplicable. The Board has also considered whether referral for extraschedular consideration is warranted. An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321 (b)(1); see Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for that service-connected disability are inadequate. Second, if the schedular rating does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether the Veteran's disability picture requires the assignment of an extraschedular rating. Here, the Board finds that referral for an extraschedular rating is not warranted. The Veteran reported that his ring finger was sore when it was bent, that he experienced swelling, and had typing issues. He was also shown to have slightly limited range of motion in the ring finger. A review of the Veteran's post-service treatment records does not reveal any symptoms not previously discussed in this decision. The Board finds that the Veteran's presentation of symptoms, in conjunction with the clinical evidence of record does not present such an exceptional disability picture that the available schedular ratings for that service-connected disability are inadequate. Here, the Veteran has reported pain and swelling in his finger. Based on the three-step inquiry, under Thun v. Peake, the Board finds that referral to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service is not warranted. The Board acknowledges the Veteran's report that his right ring finger disability affects the way he types, and the Board does believe that this causes the Veteran impairment. However, the Board is bound by the regulations of the Department, instruction of the Secretary, and the precedent opinions of the General Counsel, see 38 U.S.C. § 7104 (c), as well as the laws of the United States and the precedent decisions of courts of superior jurisdiction. Here, Diagnostic Code 5230 simply does not allow for a compensable rating; and the evidence does not indicate that an amputation occurred, or that one would equally serve the Veteran, such that another Diagnostic Code would be applicable. As such, although the Board acknowledges the impairment caused by the right ring finger disability, the claim must be denied as a matter of law. Accordingly, a compensable rating for the right ring finger disability is denied. REASONS FOR REMAND 1. Entitlement to a compensable rating for right knee partial meniscectomy scars, is remanded. The Board finds remand is warranted to correct a pre-decisional duty to assist error. In his October 2019 VA examination, the examiner noted that the Veteran had three scars associated with the Veteran's right knee surgery, located at the lower patellar pole, the upper lateral peripatellar, and the medial lower peripatellar. The examiner indicated on the examination report that the three scars were painful, but in the narrative section, the examiner described the pain as "itching that occurs off and on throughout the day." The Board notes that a compensable rating may be warranted for painful scars; however, the Board finds that itching is not equivalent to pain. Therefore, the AOJ should have obtained a clarifying medical opinion to determine whether the Veteran's scars were painful. (Continued on the next page) The matter is REMANDED for the following action: 1. Obtain a new medical opinion to determine the severity of the Veteran's scars. The examiner should specifically clarify whether the Veteran's scars are characterized by pain or itchiness. K. R. Laffitte Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Fu, 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.