Citation Nr: 21008570 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 15-10 835 DATE: February 17, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for right knee disability is denied. Entitlement to a separate disability rating of 10 percent, but not more, for right knee disability based upon lateral instability is granted. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran’s right knee disability has been characterized by painful motion of the knee; limitation of flexion to 45 degrees, limitation of extension to 15 degrees, a combination of limitation of flexion and limitation of extension, favorable ankylosis of the knee at full extension or in slight flexion between 0 and 10 degrees, or frequent episodes of dislocation with locking pain and effusion have not been shown. 2. Throughout the period on appeal, the Veteran’s right knee disability has been characterized by pain and “slight” lateral instability; recurrent subluxation or instability that is “moderate” in nature has not been shown. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating in excess of 10 percent for right knee disability have not been met. 38 U.S.C. §§ 1155, 2103, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code (DC) 5260. 2. The criteria for entitlement to a separate disability rating of 10 percent, but not more, for right knee disability based upon "slight" lateral instability have been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, DC 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from June 1993 to June 1997, with periods of service in the Louisiana Air National Guard in January 2002 and from August 2004 to August 2005. The Board remanded the matter in December 2018 to obtain a medical opinion. The Board is now satisfied that there was substantial compliance with the remand. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-147 (1999). Increased ratings Disability evaluations are determined by applying a schedule of ratings which is based on average impairment of earning capacity based on the specific diagnostic codes identifying the various disabilities.  38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating.  38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. For musculoskeletal disabilities, a higher rating may be based on greater limitation of motion due to pain on use, including during flare-ups.  38 C.F.R. §§ 4.10, 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202 (1995). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability, and therefore, actually 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. Regarding knee claims, a claimant who has arthritis and instability of the knee may be rated separately under DCs 5003 and 5257 or 5258/5259. See VAOPGCPREC 23-97. For example, when a knee disorder was already rated under DC 5257 (addressing lateral instability), a separate rating may be warranted if the Veteran’s knee also shows limitation of motion which at least meets the criteria for a zero-percent rating under DC 5260 (flexion limited to 60 degrees or less) or 5261 (extension limited to 5 degrees or more). Moreover, a separate rating could also be warranted under 38 C.F.R. § 4.59, based on x-ray findings of arthritis with painful motion. See VAOPGCPREC 9-98; see also Degmetich v. Brown, 104 F.3d 1328, 1331 (Fed. Cir. 1997). In addition, the General Counsel has also held that separate ratings may be granted based on limitation of flexion (DC 5260) and limitation of extension (DC 5261) of the same knee joint. VAOPGCPREC 09-04. In the case of an initial rating, the entire evidentiary record from the time of a veteran’s claim for service connection to the present is of importance in determining the proper evaluation of disability. Fenderson v. West, 12 Vet. App. 119 (1999). 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. See Hart v. Mansfield, 21 Vet. App. 505 (2007).   1. Entitlement to an initial rating in excess of 10 percent for right knee disability The Veteran’s right knee disability is currently assigned 10 percent disability rating under 38 C.F.R. § 4.59, DC 5260, effective September 7, 2011. 38 C.F.R. § 4.59 allows consideration of functional loss due to painful motion to be rated at least the minimum compensable rating for a particular joint. DC 5260 is applicable to limitation of flexion of the leg. The Veteran contends that he is entitled to an increased disability rating for his service-connected right knee disability because he experiences pain and flare-ups, he requires a knee brace to help with pain and instability, and he has difficulty with squatting and climbing stairs. He reported that he frequently falls as a result of his knee instability as well. It should be noted that, during the course of this appeal, the schedular rating for evaluating other impairments of the knee has been amended. Specifically, the criteria pertaining to recurrent subluxation or lateral instability of the knee under 38 C.F.R. § 4.71a, DC 5257, was amended effective February 7, 2921. See 85 Fed. Reg. 76, 453 (November 30, 2020). Where a law or regulation changes during the pendency of a claim for increased rating, the Board should first determine whether application of the revised version would produce retroactive results. In particular, a new rule may not extinguish any rights or benefits the claimant had prior to enhancement of the new rule. VAOPGCPREC 07-03 (November 19, 2003). However, if the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of the change. 38 U.S.C. § 5110; Kamas v. Derwinski, 1 Vet. App. 308, 313 (1991), overruled in part, Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). As the Veteran’s claim was received prior to the effective date of the regulation changes, the Board must consider the Veteran’s knee disability under both the old and the revised rating criteria and must apply the old rating criteria if the result is more favorable to the Veteran. Id. Here, as the new criteria are more restrictive, only the pre-amended criteria will be applied. Range of Motion The Board first addresses the rating assigned based on painful range of motion. As an initial matter, the Veteran has been assigned a 10 percent rating for functional loss due to painful motion under 38 C.F.R. § 4.59, DC 5260. In order to warrant a rating in excess of 10 percent based solely on limitation of motion or arthritis, the evidence must show: • Limitation of flexion to 30 degrees (20 percent under DC 5260); • Limitation of extension to 15 degrees (20 percent under DC 5261); • Limitation of flexion to 45 degrees and limitation of extension to 10 degrees (two separate 10 percent ratings under DC 5260 and 5261, respectively); • Favorable ankylosis of the knee at full extension or in slight flexion between 0 and 10 degrees (30 percent under DC 5256); or, • X-ray evidence of arthritis with the involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations (20 percent under DC 5003). 38 C.F.R. § 4.71a. In this case, an initial rating in excess of 10 percent for a right knee disability is not warranted for the entire period on appeal. Specifically, in a November 2011 VA examination, the Veteran reported that he experiences popping of the knee, the knee dislocating one to three times per month, pain that is rated four out of ten, and that he has flare-ups on cold weather days that cause his pain to reach a ten and make his knee cap want to “jump out.” He also reported that he experiences more pain when he stands and then his knee “pops.” He did not report any current treatment or wearing any sort of brace. On examination, the Veteran’s range of motion was flexion to 115 degrees and extension to 5 degrees, and the Veteran reported that he has less movement than normal, pain on movement, and swelling in the right knee after repetitive use testing. The examiner also noted that there was no indication of arthritis or patellar subluxation on imaging studies of the knee. However, it was determined that the examiner did not fully comply with the requirements set forth in Correia and perform joint testing for both pain on both active and passive motion, in weight bearing and non-weight bearing, and, if possible, with range of motion measurements of the opposite undamaged joint. As a result, a second VA examination was required. The Veteran underwent a second VA examination in September 2019. He reported that he experiences increased pain with repetitive squatting and climbing stairs. Upon examination, the Veteran demonstrated full range of motion with both flexion and extension and no additional functional limitations with repetitive use over time. The Veteran also reported during the examination that he does not experience flare-ups. While the Veteran’s representative argued that wearing a knee brace to help with pain indicates flare-ups, the examiner reviewed the Veteran’s medical records, considered his reported symptoms, and noted that the Veteran did not report experiencing flare-ups. The examination also noted that a 2019 x-ray revealed no acute osseous abnormality, while a 2012 MRI demonstrated fluid collection along the medial knee lying anterior to the semimembranous tendon, which may represent a Baker cyst that is extruded anteriorly; intact ligaments and tendons; mild meniscoid degeneration of the posterior horn of the medial meniscus with no evidence of meniscal tear; subchondral cystic changes within the posterior midline tibia; and thinning of the cartilage along the medial patella. Additionally, there was no ankylosis or incapacitating episodes of arthritis found. The Veteran’s treatment records from July 2011 through September 2019 generally do not report additional limitation of motion or incapacitating episodes of arthritis that would warrant a higher rating. While treatment notes from May and July 2012 indicate a 20-degree deficit of extension with otherwise full range of motion, examinations from April 2012, July 2012, February 2013, and December 2013 denote that the Veteran has full flexion and extension in his right knee. These clinical results support the notion that the limitations in extension were not representative of the Veteran’s normal functioning. Therefore, based on the evidence of record, the Board determines that a rating in excess of 10 percent based upon right knee limitation of motion is not warranted. The Board also considered whether a higher disability evaluation is warranted on the basis of functional loss due to fatigability, incoordination, pain on movement, pain on weight-bearing, flare-ups, and weakness. 38 C.F.R. §§ 4.40, 4.45, 4.59; see Sharp v. Shinseki, 29 Vet. App. 26 (2017); Correia v. McDonald, 28 Vet. App. 158 (2016); DeLuca v. Brown, 8 Vet. App. 206. In this case, the Veteran has complained that he is limited in squatting or climbing stairs due to pain, instability, and limitation of motion. However, while the Veteran experiences the aforementioned symptoms, overall, it does not appear that these symptoms result in additional and significant functional loss, and his complaints are adequately contemplated in the ratings he currently receives. See Mitchell, 25 Vet. App. At 37-43 (2011) (pain must affect some aspect of the normal working movements of the body such as strength, speed, coordination, or endurance). Of note, while the October 2011 examiner noted that the Veteran reported additional loss of movement, pain on movement, and swelling after repetitive use, the September 2019 examiner did not find any evidence of additional loss of motion or functioning after repetitive testing, flare-ups, and/or weight-bearing that would warrant a higher rating. Additionally, to the extent that the Veteran noted that he has flare-ups during bad weather, after repetitive squatting, or while climbing stairs, there is not sufficient evidence to indicate that this occurs with the necessary frequency to impact his earning capacity as contemplated by the higher rating under the relevant diagnostic codes. Specifically, the Veteran reported in November 2011 that he works as a TV salesman, and he reported in December 2012 that he engages in running with his knee brace on. Furthermore, although the Veteran reported falls, there is no evidence in the medical record that he was ever treated for falls, and he is not prescribed any sort of assistive device other than a knee brace. Treatment for any knee symptoms has been minimal since October 2014, with the Veteran generally only seeking treatment once or twice per year to obtain new knee braces. Instability Next, the Board considers whether separate compensable ratings are warranted for the Veteran’s right knee disability based on instability or cartilage symptoms. It should be noted that, during the course of this appeal, the schedular criteria for evaluating knee instability under 38 C.F.R. § 4.71a, DC 5257, was amended effective February 7, 2021. See 85 Fed. Reg. 76,453 (November 30, 2020). Where a law or regulation changes during the pendency of a claim for increased rating, the Board should first determine whether application of the revised version would produce retroactive results. In particular, a new rule may not extinguish any rights or benefits the claimant had prior to enactment of the new rule. VAOPGCPREC 07-03 (November 19, 2003). However, if the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C.A. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991), overruled in part, Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). As the Veteran's claim was received prior to the effective date of the regulation changes, the Board must consider the Veteran's knee instability under both the old and the revised rating criteria and must apply the old rating criteria if the result is more favorable to the Veteran. Id. As a preliminary matter, the Board assigns an initial 10 percent rating for instability. While neither the November 2011 or September 2019 VA examiners found any evidence of instability, the Veteran’s treatment records show that he has consistently complained of instability in his right knee, and he has been prescribed a knee brace annually since December 2012 to treat pain and instability. Furthermore, medical records from May 2012 state that the Veteran feels like his patella moves medially and laterally. In March 2013, the Veteran was noted as having “some” instability, and it was noted that he has a high risk for having a fall. Lastly, it was noted in December 2013 that the Veteran’s patella moves laterally as he walks if he does not wear his knee brace. However, none of these records demonstrate any more than “slight” instability. Under the pre-amended criteria, in order to warrant a rating in excess of 10 percent based on knee instability or cartilage symptoms, the evidence must show: • Dislocation of the semilunar cartilage with frequent episodes of “locking,” pain, and effusion in the joint (20 percent under DC 5258); or • Recurrent subluxation or lateral instability (under DC 5257; 20 percent for “moderate” symptoms). 38 C.F.R. § 4.71a. Under the amended criteria, the next higher 20 percent rating percent is warranted when the evidence shows either: • 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 • 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), or a walker) or bracing for ambulation Diagnostic Code 5258 was also amended to add a specific rating schedule for patellar instability. Under this diagnostic code an increased rating is warranted with the evidence shows: • 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 (10 percent) • 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. (20 percent); or • 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 walker (30 percent) 38 C.F.R. § 4.71a, DC 5258 (2021) Based on the evidence, the Board determines that a rating in excess of 10 percent is not warranted based on right knee instability or cartilage symptoms under either the amended or pre-amended criteria. As noted, the November 2011 VA examiner did not find instability, nor were there symptoms of subluxation, effusion, dislocations, or malalignment noted. While the examiner indicated that the Veteran suffers frequent episodes of joint locking, this was not noted anywhere else in the record or in the September 2019 examination, suggesting that this report of locking in November 2011 was temporary and not consistent with the normal range of symptoms experienced by the Veteran. Lastly, while the Veteran reported that his knee “pops” every time he stands, the examiner noted that this does not cause an impact on his functioning because he is able to perform work as a TV salesman. This is consistent with normal findings in the September 2019 VA examination. Additionally, while the Veteran reported that he suffered a patella dislocation in 2001, it was noted during the September 2019 examination and throughout the record that his diagnosis was “self-reduced.” Furthermore, the examiner indicated that the Veteran’s right knee ligaments and menisci are within normal limits based on a review of the record, imaging studies, and examination, which was consistent with findings during the November 2011 VA examination. Similarly, there is no evidence of instability symptoms to a moderate degree in the VA and private treatment records. Of note, no weakness is noted throughout the medical record, but the Veteran reported in April and December 2012 that he experiences his right knee “popping” out of place when he walks up steps or runs, and that it gave out on him while lying in bed once. Despite reports of instability and his knee popping or giving out, he is not prescribed a cane or assistive device other than a knee brace, his treatment has been generally mild with a period of physical therapy, one steroid injection, and some pain medication, and his physical examinations have been generally normal with a normal gait, independent ambulation, mostly normal range of motion, and normal reflexes. In arriving at these conclusions, the Board has considered the Veteran’s statements, including his testimony that his left knee disability is worse than the rating he receives. As such, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. While the Veteran is competent to report symptoms of pain, limitation of motion, and instability, because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disorders according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v. Derwinski, 2 Vet. App. 24, 35 (1991). On the other hand, such competent evidence concerning the nature and extent of the Veteran’s right knee disorder have been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which the disability is evaluated. As a final matter, the Board notes the statements submitted by the Veteran’s representative noting that the examination report does not indicate what type of provider performed the September 2019 VA examination. However, the Board does not construe this statement as a challenge to the competency of the examiner. Furthermore, it is presumed that VA follows a regular process that ordinarily results in the selection of a competent medical professional. Parks v. Shinseki, 716 F.3d 581, 585 (Fed Cir. 2013). Finally, there is a presumption, absent clear evidence to the contrary, that VA employees properly discharge their official duties. Mindenhall v. Brown, 7 Vet. App. 271 (1994). Here, there has been no showing that the VA examiner was not competent or did not report accurately what he observed or found during the examination regardless of whether his title was missing from the examination report, and the examination was performed at the Southeast Louisiana Veterans Health Care System. The Board concludes that the weight of the evidence is against the claim for a rating in excess of 10 percent for limitation of motion of the right knee under DC 5260. Moreover, affording the Veteran the benefit of the doubt, the Board finds that the Veteran is entitled to a separate 10 percent rating for slight instability in his right knee under DC 5257. However, no additional ratings are warranted.   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. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Veltri, Associate Counsel