Citation Nr: 21007707 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 11-19 634 DATE: February 10, 2021 ORDER Entitlement to separate compensable rating for instability of the right knee for the entire period on appeal is denied. Entitlement to a separate disability rating for instability of the left knee prior to October 1, 2019 is denied. Entitlement to a disability rating in excess of 10 percent for instability of the left knee for the period from October 1, 2019 onward is denied. FINDINGS OF FACT 1. The weight of the evidence is against a finding that at any point during the period on appeal the Veteran’s right knee chondromalacia and degenerative joint disease manifested as recurrent subluxation or lateral instability. 2. The weight of the evidence is against a finding that during the period prior to October 1, 2019, the Veteran’s left knee chondromalacia and degenerative joint disease manifested as recurrent subluxation or lateral instability. 3. The weight of the evidence is against a finding that the Veteran’s left knee chondromalacia and degenerative joint disease manifested as moderate or severe lateral instability or recurrent subluxation at any point during the period on appeal. CONCLUSIONS OF LAW 1. The criteria for entitlement to separate compensable rating for instability of the right knee have not been met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.7, 4.71a. 2. The criteria for entitlement to separate compensable rating for instability of the left knee prior to October1, 2019 have not been met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.7, 4.71a. 3. The criteria for entitlement to a rating in excess of 10 percent for instability of the left knee from October 1, 2019 onward have not been met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.7, 7.71a. REASONS AND BASES FOR FINDING AND CONCLUSIONS Entitlement to a separate compensable rating for instability of the right knee for the entire period on appeal; a separate compensable rating for instability of the left knee prior to October 1, 2019; and a disability rating in excess of 10 percent for instability of the left knee for the period from October 1, 2019 onward are denied. The Veteran had active service from December 1972 to December 1976. These matters come before the Board of Veterans’ Appeals (Board) on appeal of a March 2010 Department of Veterans Affairs (VA) Regional Office (RO) rating decision that denied a January 2010 claim for a disability rating in excess of 10 percent for the Veteran’s bilateral knee disability (chondromalacia with degenerative joint disease), then rated under Diagnostic Code 5260 based on limitation of flexion. The Veteran ultimately appealed this issue to the Court of Appeals for Veterans Claims (CAVC). In August 2018 CAVC granted a Joint Motion for Remand (JMR) by the Veteran and VA, remanding the Veteran’s claims to the Board for adjudication of the limited question of whether the Veteran was entitled to a separate compensable rating for instability of the left and right knees under diagnostic code 5257. In May 2019 the Board remanded the Veteran’s claim to obtain a VA examination that specifically addressed the issue of instability, to include instability testing of the bilateral knees and addressing the Veteran’s lay reports of instability. A remand by the Board confers on the Veteran, as a matter of law, the right to substantial compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran was afforded a VA examination in October 2019, and addendum opinions were obtained from the October 2019 examiner in June 2020 and November 2020. As discussed further below, the October 2019 VA examiner addressed the issue of instability by performing joint stability testing and discussing the Veteran’s lay reports of instability. The Board therefore finds that there has been substantial compliance with its May 2019 remand directives. Following the October 2019 VA examination, in November 2020 the RO granted the Veteran a separate compensable rating for instability of the left knee, with an effective date of October 1, 2019. As the highest possible rating has not been assigned for the period on appeal, the appeal continues. See AB v. Brown, 6 Vet. App. 35 (1993). A November 2020 supplemental statement of the case (SSOC) reflects that the RO confirmed its denial of the Veteran’s claim for a separate rating for instability of the right knee. Thus, the issues currently before the Board are entitlement to separate compensable rating for instability of the right knee; entitlement to a separate disability rating for instability of the left knee prior to October 1, 2019; and entitlement to a disability rating in excess of 10 percent for instability of the left knee for the period from October 1, 2019 onward. Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability; resolving any reasonable doubt regarding the degree of disability in favor of the claimant; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person’s ordinary activity. See 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.10; see also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Instability of the knee is rated under Diagnostic Code 5257. Diagnostic Code 5257 provides for a 10 percent rating for “slight” recurrent subluxation or lateral instability; 20 percent for “moderate” recurrent subluxation or lateral instability; and a 30 percent rating for “severe” recurrent subluxation or lateral instability. A July 2014 VA examiner documented normal results across all stability tests (anterior, posterior, and medial lateral). A January 2015 VA examiner documented instability of station, but also documented no history of recurrent subluxation or lateral instability, and reported that joint stability testing was not performed because it was not indicated. At two separate June 2017 VA examinations, the examiners documented no history of history of recurrent subluxation or lateral instability and reported testing showed no joint instability in either knee. An October 2019 VA examiner performed joint stability testing and documented mild left knee joint instability, but no instability of the right knee. The Veteran has contended throughout the period on appeal that he experiences instability of both knees, resulting in falls. Laypeople are competent to report symptoms and experiences observable by their senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). In his June 2011 Form 9, the Veteran reported that he experienced falls because of his bilateral knee disabilities. A June 2013 VA treatment note reflects that the Veteran requested a walker, stating that his legs would “give out.” In November 2013 the Veteran testified at his Board hearing that his knees would “give out,” causing him to fall. In a May 2014 written statement to VA the Veteran again reported falling after his legs went “numb.” In July 2015 the Veteran reported that “sometimes both legs go out and I’m on the ground.” In October 2016 correspondence to VA the Veteran stated that he has trouble walking and standing, and that he falls, and that his legs “go numb.” The October 2019 VA examiner’s November 2020 addendum opinion reflects the Veteran’s statement that he fell at church when he felt a sudden numbness in his right and left knees. The Veteran is competent to report feelings of instability and a history of falls. However, VA must consider all medical and lay evidence of record and make appropriate determinations of competence, credibility, and weight. 38 U.S.C. § 5107; Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Statements made for the purpose of medical diagnosis or treatment are exceptionally credible because the declarant has a strong motive to tell the truth in order to receive proper medical care. See White v. Illinois, 502 U.S. 346, 356 (1992). VA treating providers recorded fall risk assessments throughout the period on appeal, including inquiries as to whether the Veteran had experienced any falls in the previous three to twelve months. The Veteran denied any such history of falls in March 2009, April 2009, May 2009, June 2009, July 2009, August 2009, September 2009, October 2009, December 2009, January 2010, February 2010, March 2010, April 2010, June 2010, October 2011, November 2011, January 2012, June 2012, July 2012, March 2013, May 2014, October 2014, December 2014, January 2015, March 2015, April 2015, May 2015, June 2015, July 2015, September 2015, October 2015, November 2015, December 2015, January 2016, February 2016, March 2016, April 2016, and May 2016. During an inpatient stay in June 2016 the Veteran reported having fallen within the last three months, but on the subsequent day denied any falls within the previous three months. The Veteran denied a history of falls in December 2016, but reported to a different provider during the same visit that he had fallen because his knees went numb. At a subsequent December 2016 visit the Veteran again denied having fallen within the previous twelve months. In January 2017 the Veteran reported one fall with no injury in the past twelve months, but reported to a different provider that he had not had any falls within the past twelve months. In March 2017 the Veteran again denied having fallen within the past twelve months. At the October 2019 VA examination, the Veteran reported having fallen at church on April 19, 2015, and stated that he presented to providers for fall-related injuries on April 20, 2015. There is a primary care note dated April 20, 2015, which documents the patient’s complaint of pain and swelling in his left lower extremity for the previous 6 weeks. The Veteran did not report any fall to providers at that time. At a subsequent April 2015 visit, nursing staff documented the Veteran’s denial of any falls within the previous 12 months. The Veteran also stated to the October 2019 VA examiner that he fell again while at home in September 2017. As noted above, the Veteran was granted a 10 percent rating for instability of the left knee on the basis of the October 2019 VA examination clinical findings, effective the date of the October 2019 VA examination. Subsequently, the RO requested an addendum opinion from the October 2019 VA examiner, specifically directing their attention to the Board’s directive that “in the event that the VA examiner determines that there is no instability shown in the veteran’s knees, a complete discussion of the cause and nature of the veteran’s falls should be provided.” Given that the October 2019 VA examiner found no instability of the right knee, they were requested to opine as to the role of the Veteran’s left and right knees, respectively, in the Veteran’s reported falls. The VA examiner stated as follows: “It is at least as likely as not that the left knee instability has led to his falls. The lateral and anterior instability of the left knee is as likely as not causing pain which would cause a body imbalance causing the veteran to fall forward. The knee would “give” when he stands. The lateral instability causes instability towards the veteran side, however due to body mechanics this would translate into a forward fall thereby causing the veteran to fall on his arms.” The RO requested that the VA examiner more directly address the Veteran’s right knee in another addendum opinion. Internal email correspondence dated October 2020 reflects that the examiner determined a follow up in-person evaluation was needed to attain information to inform the requested addendum report. An addendum report was obtained in November 2020. In the November 2020 addendum opinion, the VA examiner provided a review of the Veteran’s joint stability testing results from throughout the period on appeal, as well as a thorough discussion of the biomechanical dynamics of falls due to knee instability generally. The examiner then discussed the specific case of the Veteran, noting that at the time of the follow-up evaluation, the only fall the Veteran identified was a single fall at church. The Veteran denied any falls outside of church. The Veteran did not respond, or responded that he did not know, to questions concerning whether his church had a ramp or stairs, or whether entering the church involved traversing an elevated grade or a level grade, information that the examiner identified as necessary to determine the cause of the Veteran’s reported falls. Based on the principles of falls due to knee instability outlined earlier in their November 2020 addendum opinion, and relating to the new information obtained from the Veteran regarding the circumstances of his falls, the VA examiner stated that it was less likely than not that any reported falls were proximately due to or the result of any instability of the Veteran’s right or left knees. In reviewing the evidence of record, the Board finds the following: while the Veteran made multiple statements to VA that he experienced falls throughout the period on appeal, these statements are inconsistent with other evidence of record. The Veteran has only reported any falls to treating providers in June 2016, December 2016, and January 2017; it is unclear whether these were reports of a single fall, or multiple falls. However, these reports were contradicted by subsequent statements to treating providers in the same months. The Veteran reported two falls to the October 2019 VA examiner: one in April 2015 while at church, and another in September 2017 while at home. The Veteran reported having sought treatment for the April 2015 fall on April 20, 2015, but VA treatment records from this date do not reflect any reports of falls or fall-related injuries. In his November 2020 follow up evaluation with the October 2019 VA examiner, the Veteran denied any falls other than the fall at church. With respect to joint stability testing results, July 2014 and two separate June 2017 VA examination reports reflect no showings of right or left knee instability following joint stability testing. A January 2015 VA examiner noted “instability of station” but nonetheless concluded that joint stability testing was not indicated for either knee. The October 2019 VA examiner performed joint stability testing and found no instability of the right knee, and “mild” instability of the left knee. In the November 2020 addendum opinion, based on a thorough review of the biomechanical principles of falls related to knee instability and a follow-up interview with the Veteran, the October 2019 VA examiner opined that it was less likely than not that the Veteran’s reported falls were the result of right or left knee instability. 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. 38 C.F.R. § 4.7. Here, the Board finds that the weight of the evidence is against the award of a separate compensable rating for instability of the right knee for the entire period on appeal; a separate compensable rating for instability of the left knee for the period prior to October 1, 2019; and/or a rating in excess of 10 percent for instability of the left knee for the period from October 1, 2019 onward; thus, there is no question to resolve and the lower rating is appropriate. Id. In light of the foregoing, the award of a separate compensable rating for instability of the right knee for the entire period on appeal; a separate compensable rating for instability of the left knee for the period prior to October 1, 2019; and/or a rating in excess of 10 percent for instability of the left knee for the period from October 1, 2019 onward is not warranted. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.7, 4.71a. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. C. Sametshaw 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.