Citation Nr: 21008781 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 16-34 019 DATE: February 18, 2021 ORDER Entitlement to a rating in excess of 10 percent for posttraumatic patellofemoral arthritis, left knee (hereafter “left knee arthritis”), is denied. Entitlement to a rating of 10 percent for lateral instability due to left knee arthritis, effective December 16, 2012, is granted. FINDINGS OF FACT 1. The Veteran’s left knee arthritis results in limitation of flexion and extension, but not to a compensable degree. 2. The Veteran’s left knee arthritis results in slight lateral instability. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for left knee arthritis have not been met. See 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.59, 4.71a, DC 5003, 5010, 5260, 5261. 2. The criteria for a rating of 10 percent for lateral instability due to left knee arthritis have been met, effective December 16, 2012. See 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.40, 4.45, 4.71a, DC 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1976 to June 1998. The matter comes to the Board of Veterans’ Appeals (Board) from a January 2015 rating decision which, in pertinent part, denied a rating in excess of 10 percent for left knee arthritis. In October 2016, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In November 2018 and September 2020, the Board remanded this claim for additional development. The Boards finds that there is substantial compliance with the September 2020 remand. The Board notes that the agency of jurisdiction readjudicated the Veteran’s claim after considering pertinent evidence following the June 2020 Supplemental Statement of the Case. Increased Rating Disability ratings are determined by applying the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. See 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. See 38 C.F.R. § 4.3. The rating criteria to evaluate a knee disability can be found in the General Rating Formula for the Musculoskeletal System. See 38 C.F.R. § 4.71a. The Veteran currently has a 10 percent rating for left knee arthritis under DC 5010. The rating criteria allow for separate disability ratings for limitation of flexion under DC 5260 and for limitation of extension under DC 5261. Under DC 5260, a 30 percent rating is warranted where flexion is limited to 15 degrees; a 20 percent rating when it is limited to 30 degrees; a 10 percent rating when it is limited to 45 degrees; and a noncompensable rating when it is limited to 60 degrees. See 38 C.F.R. § 4.71a, DC 5260. Under DC 5261, a 50 percent rating is warranted where extension is limited to 45 degrees; a 40 percent rating when it is limited to 30 degrees; a 30 percent rating when it is limited to 20 degrees; a 20 percent rating when it is limited to 15 degrees; a 10 percent rating when it is limited to 10 degrees; and a noncompensable rating when it is limited to 5 degrees. See 38 C.F.R. § 4.71a, DC 5261. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Even when these factors are relevant to evaluating a disability, the rating is based on the extent to which range of motion is limited. See 38 C.F.R. §§ 4.71a. A separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016). When the limitation of motion of the specific joint or joints involved is noncompensable under DC 5260 and 5261, a rating of 10 percent for degenerative arthritis under DC 5010 is warranted for application for each such major joint or group of minor joints affected by limitation of motion. See 38 C.F.R. § 4.71a, DC 5003, 5010. The knee is considered a major joint. See 38 C.F.R. § 4.45(f). The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. See 38 C.F.R. § 4.71a, DC 5003. When there is no evidence of limitation of motion, a 10 percent rating is warranted for x-ray evidence of involvement of two or more major joints or two or more minor joint groups. See id. A 20 percent rating is warranted for x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. See id. The rating criteria allow a disability rating for knee instability under DC 5257 in addition to the existing rating under DC 5010. See 38 C.F.R. § 4.71a. The regulations governing the rating criteria under DC 5257 were amended, effective February 7, 2021. See 85 Fed.Reg. 76453 (Nov. 30, 2020). The Board may apply whichever set of criteria is more favorable to a veteran for periods after February 7, 2021. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Prior to February 7, 2021, a 30 percent rating is warranted for severe recurrent subluxation or lateral instability; a 20 percent for moderate recurrent subluxation or lateral instability; and a 10 percent rating for slight recurrent subluxation or lateral instability. See 38 C.F.R. § 4.71a, DC 5257 (2020). Neither the Rating Schedule nor the regulations provide definitions for descriptive words such as “slight,” “moderate,” and “severe.” Rather than applying a mechanical formula, the Board must instead evaluate all the evidence to the end that its decisions are “equitable and just.” See 38 C.F.R. § 4.6. After February 7, 2021, for recurrent subluxation or instability, a 10 percent rating is warranted when there is a 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. See 38 C.F.R. § 4.71a, DC 5257 (2021). A 20 percent rating is warranted when there is (1) 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, or (2) an 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. See id. For patellar instability, a 10 percent rating is warranted when there is 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, and a 20 percent rating is warranted when there is 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. See id. Disability rating under DC 5010 At the October 2016 hearing, the Veteran reported that his left knee affected his ability to work as a police officer. He reported that he forced himself through the pain to do activities such as using the stairs to get to target areas or when on the rifle range in the prone position. He reported that his left leg wobbled from time to time and that he would overcome it by pressing on it. He reported that he caught himself from falling on one occasion. He reported that he wrapped his knee from time to time, but denied that he had been told by a physician that he needed any kind of surgery or anything. In August 2018, the Veteran reported bilateral knee pain with certain movements. A physical examination showed full range of motion with pain when flexing past 90 degrees. An x-ray of the left knee showed mild bilateral osteoarthritis. At the October 2019 VA examination, the examiner opined that the Veteran had no incapacitating exacerbations. The Veteran denied using an assistive device or a brace. A November 2019 VA treatment record stated the Veteran previously worked as a police officer and now worked as a fitness trainer. The Veteran reported no falls in the past 12 months. At the November 2019 VA examination, the Veteran reported pain in his left knee. He reported that he feels like his left knee is going to give out when he is walking. He reported that this occurred every other day for seconds and rated the severity as a 5 out of 10. The Veteran had full, but painful, range of motion with extension and flexion. There was no objective evidence of pain on passive range of motion or in nonweight-bearing. The examiner stated that pain, weakness, fatigability or incoordination did not significantly limit functional ability with repetitive use or during a flare-up. The examiner stated that, after viewing the Veteran’s records, including the order request, disability benefits questionnaire, physical exam, reported history and subjective complaints, relevant evidence of record and using medical knowledge and judgment, there was no basis to offer additional losses of function or motion with repeated use over time or during a flare-up. The Veteran denied using an assistive device or a brace. The Veteran had no ankylosis. The examiner diagnosed the Veteran with degenerative arthritis and posttraumatic patellofemoral arthritis. The examiner stated that there was no history of lateral instability, and there was no joint instability on testing. The examiner stated that the Veteran’s left knee disability did not affect his ability to work. At the July 2020 VA examination scheduled for a claim involving a right knee disability, the Veteran reported that his condition had progressed and that there was now instability along with chronic pain. The Veteran’s reported symptoms included chronic bilateral knee pain, instability, stiffness, and intermittent mild swelling. The Veteran reported difficulty with prolonged walking, standing, bending, kneeling, and standing after sitting. The Veteran had flexion of 0 to 115 degrees and extension of 115 to 0 degrees. The examiner stated that there was no objective evidence of pain on passive range of motion or in nonweight-bearing. The examiner stated that pain, weakness, fatigability or incoordination did significantly limit functional ability with repeated use and would result in flexion of 0 to 110 degrees and extension of 110 to 0 degrees. The examiner stated that pain, weakness, fatigability or incoordination did not significantly limit functional ability during a flare-up because the Veteran denied flare-ups. The Veteran denied using an assistive device or a brace. The Veteran had no ankylosis. The examiner diagnosed the Veteran with degenerative arthritis and posttraumatic patellofemoral arthritis. The examiner stated that there was no history of lateral instability, and there was no joint instability on testing. The Veteran reported that he had lost zero to one week of work in the past 12 months, and that he had difficulty getting up from a sitting to standing position or when teaching students how to use firearms in a kneeling position. The examiner stated x-rays on the day of the examination were not clinically indicated. In a December 2020 written brief, the Veteran’s representative contends that the evidence of record does not adequately reflect the Veteran’s disability because a new x-ray of the left knee is necessary. The representative stated that the Veteran reported that his knee disability had progressed at the July 2020 VA examination, but the most recent x-ray of the left knee is from 2018. The Board finds that a rating in excess of the current 10 percent evaluation under DC 5010 is not warranted. The Board notes that the evidence of record, to include the August 2018 treatment record and November 2019 and July 2020 VA examinations, does not show limitation of flexion or extension to a compensable degree. In particular, the July 2020 VA examiner accounted for additional limitation of motion or explained why such was not warranted due to pain and functional loss. As a result, the evidence of record does not show a compensable rating under DCs 5260 or 5261. The Board further notes that a higher rating under DC 5010 is not warranted. The July 2020 VA examination confirmed limitation of motion and, under DC 5010, a 10 percent rating is assessed for limitation of motion. Even if there were no limitation of motion, a 20 percent rating would not be warranted because the Veteran did not experience occasional incapacitating exacerbations. There is no evidence of any bedrest prescribed by a physician. Moreover, the October 2019 VA examiner opined that the record showed no incapacitating exacerbations, and the July 2020 VA examiner reported that the Veteran lost zero to one week of work. The Board has considered the representative’s contentions. Whether a medical test is appropriate requires medical expertise and is outside the expertise of a layperson. As a result, the Board gives probative weight to the July 2020 VA examiner’s opinion that x-rays were not clinically indicated on the day of the examination. Moreover, the August 2018 x-ray has already documented arthritis. Disability rating under DC 5257 On December 16, 2013, the Veteran filed an increased rating claim for a left knee disability. At the October 2016 hearing, the Veteran reported that his left knee affected his ability to work as a police officer. He reported that he forced himself through the pain to do activities such as using the stairs to get to target areas or when on the rifle range in the prone position. He reported that his left leg wobbled from time to time and that he would overcome it by pressing on it. He reported that he caught himself from falling on one occasion. He reported that he wrapped his knee from time to time, but denied that he had been told by a physician that he needed any kind of surgery or anything. At the October 2019 VA examination, the Veteran denied using an assistive device or a brace. A November 2019 VA treatment record stated the Veteran previously worked as a police officer and now worked as a fitness trainer. The Veteran reported no falls in the past 12 months. At the November 2019 VA examination, the Veteran reported pain in his left knee. He reported that he feels like his left knee is going to give out when he is walking. He reported that this occurred every other day for seconds and rated the severity as a 5 out of 10. The Veteran denied using an assistive device or a brace. The examiner diagnosed the Veteran with degenerative arthritis and posttraumatic patellofemoral arthritis. The examiner stated that there was no history of lateral instability, and there was no joint instability on testing. The examiner stated that the Veteran’s left knee disability did not affect his ability to work. At the July 2020 VA examination scheduled for a claim involving a right knee disability, the Veteran reported that his condition had progressed and that there was now instability along with chronic pain. The Veteran’s reported symptoms included chronic bilateral knee pain, instability, stiffness, and intermittent mild swelling. The Veteran reported difficulty with prolonged walking, standing, bending, kneeling, and standing after sitting. The Veteran denied using an assistive device or a brace. The examiner diagnosed the Veteran with degenerative arthritis and posttraumatic patellofemoral arthritis. The examiner stated that there was no history of lateral instability, and there was no joint instability on testing. The Veteran reported that he had lost zero to one week of work in the past 12 months, and that he had difficulty getting up from a sitting to standing position or when teaching students how to use firearms in a kneeling position. In a December 2020 written brief, the Veteran’s representative contends that the evidence of record does not adequately reflect the Veteran’s disability because a new x-ray of the left knee is necessary. The representative stated that the Veteran reported that his knee disability had progressed at the July 2020 VA examination, but the most recent x-ray of the left knee is from 2018. The Board notes that the Veteran is competent to describe his instability and finds that his statements of instability are credible and, thus, warrant a rating under DC 5257. See English v. Wilkie, 30 Vet. App. 347 (2018). The Board finds that the evidence of record is more consistent with a 10 percent rating for slight instability than a 20 percent rating for moderate instability. The Board notes that the Veteran’s statements regarding the frequency of the instability, to include the October 2016 testimony of from time to time and the November 2019 VA examination of a few seconds every other day, are more consistent with a slight instability. Moreover, a rating for slight instability is warranted based on the evidence showing few, if any, falls, to include the October 2016 hearing testimony and the November 2019 VA treatment record; and the Veteran’s employment in exertional jobs. In sum, the evidence of record shows that a 20 percent rating for moderate instability is not warranted. Accordingly, the Board grants a 10 percent rating for slight instability under DC 5257. The Board notes that a rating in excess of 10 percent would not be warranted under the new rating criteria. Given the July 2020 VA examiner’s diagnosis of degenerative arthritis and posttraumatic patellofemoral arthritis, the new criteria for patellar instability would be more appropriate. Here, there is no evidence of surgical repair involving the patellofemoral complex as required for a 20 percent rating. For purposes of recurrent subluxation or instability, while the Veteran testified to wrapping his knee from time to time, he denied using an assistive device or brace at the VA examinations in 2019 and 2020. Even if the Veteran’s hearing testimony was consistent with using an assistive device or brace, there is no evidence that a medical provider has prescribed such treatment as required for a 20 percent rating. The Board has considered the representative’s contentions. Whether a medical test is appropriate requires medical expertise and is outside the expertise of a layperson. As a result, the Board gives probative weight to the July 2020 VA examiner’s opinion that x-rays were not clinically indicated on the day of the examination. Moreover, as explained above, there is no evidence of surgical repair involving the patellofemoral complex or a prescription for an assistive device or brace as required for a 20 percent rating. The Board further finds that this rating is effective December 16, 2012. An effective date for a claim of an increased rating can be awarded up to one year prior to the date of claim if the evidence documents a factually ascertainable increase in disability within this one-year period. See 38 C.F.R. § 3.400(o)(1)-(2). Giving the Veteran the benefit of the doubt, the evidence of record documented a factually ascertainable increase in disability within the one-year prior to the filing of the claim. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Ormson, 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.