Citation Nr: 21009073 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 17-17 464 DATE: February 18, 2021 ORDER Entitlement to an evaluation in excess of 10 percent for left knee chondromalacia, based on instability, is denied. FINDING OF FACT The Veteran’s service-connected left knee instability is not manifest by symptomatology which more closely approximates “moderate” subluxation or lateral instability of the left knee. Ligament tear with surgical intervention contemplated has not been shown/ CONCLUSION OF LAW The criteria for an initial evaluation in excess of 10 percent for left knee chondromalacia based on instability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from June 1955 to June 1976. A hearing was conducted by video conference in April 2019 before the undersigned Veteran’s Law Judge, at which the Veteran and the Veteran’s spouse testified; a transcript is of record. An August 2019 Board decision denied an evaluation in excess of 10 percent for left knee chondromalacia based on instability. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court), which remanded that decision in a September 2020 Order, based upon a Joint Motion for Partial Remand (JMPR). Specifically, the JMPR requires the Board to consider and discuss the Veteran’s lay statements with respect to his left knee disability. Also, the JMPR requires the Board to further explain what evidence approximates “moderate” instability. Entitlement to an evaluation in excess of 10 percent for left knee chondromalacia based on instability Disability evaluations 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 his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Schedule). 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify various disabilities and the criteria for specific ratings. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. §§ 4.7 and 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Evidence to be considered in the appeal of an initial assignment of a disability rating is not limited to that reflecting the then-current severity of the disorder. Fenderson v. West, 12 Vet. App. 119 (1999). In cases where an initially assigned disability evaluation has been disagreed with, it is possible for a veteran to receive a staged rating. That is, it is possible to be awarded separate percentage evaluations for separate periods, based on the facts found during the appeal period. Id. at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007) (in determining the present level of a disability for any increased evaluation claim, the Board must consider staged ratings). At the outset it is noted that a separate evaluation has been assigned for painful limitation of motion of the knee and that matter is not under review at this time. The appeal currently before the Board is based on instability of the knee, as discussed in detail below. The Veteran’s left knee chondromalacia has a current evaluation of 10 percent disabling under Diagnostic Code 5257. However, the Veteran asserts that an evaluation in excess of 10 percent is warranted for this disability. With respect to instability and subluxation of the knee, Prior to February 7, 2021, Diagnostic Code 5257 provides for a 10 percent evaluation where there is mild recurrent subluxation or lateral instability, a 20 percent evaluation is assigned where there is moderate recurrent subluxation or lateral instability, and a 30 percent evaluation where there is severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2019). As of February 7, 2021, Diagnostic Code 5257 concerning recurrent subluxation or lateral instability was revised. A 10 percent rating is warranted for 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., canes(s), crutch(es), walker) or bracing for ambulation. A 20 percent rating is warranted for 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. In such cases, the Board will apply the criteria most favorable to the Veteran, with the proviso that the new criteria may not be applied before the effective date. Here, as the is no evidence of ligament tear with attempted or unattempted repair, the old criteria is deemed more favorable, and the discussion below will concern primarily that criteria. Turning to the record, the Veteran was afforded a VA examination in April 2014. The Veteran reported left knee pain and limited mobility such that it inhibited his ability to walk. The Veteran reported flare ups that occurred with walking or standing for long periods of time. Range of motion testing revealed that left knee flexion ended at 90 degrees and that painful motion began at 45 degrees. The examiner reported that the Veteran had functional loss due to his left knee disorder including: weakened movement; excess fatigability; swelling; and instability of station, among other contributing factors. The Veteran’s strength testing and joint stability testing were normal bilaterally. There was no evidence of recurrent patellar subluxation/dislocation. The Veteran reported regular use of assistive devices, such as a knee brace and a walker. Diagnostic testing revealed that the Veteran had degenerative traumatic arthritis in his left knee. In November 2016, the Veteran was afforded another VA examination to determine the severity of his left knee disorder. The Veteran reported constant pain in his left knee with flare-ups occurring 2-3 times a week. Range of motion testing in the left knee was abnormal with flexion and extension limited to 75 degrees. The Veteran demonstrated pain on weight bearing, but there was no evidence of tenderness on palpation. Nor was there any crepitus reported. The examiner reported that the Veteran had functional loss due to his left knee disorder, including: less movement than normal; weakened movement due to muscle or peripheral nerve injury; and swelling, among other contributing factors. Muscle strength testing was reduced in the left knee to active movement against some resistance. There was no evidence of atrophy or ankylosis. Further joint stability testing revealed slight (0-5 millimeters) medial and lateral instability. Anterior and posterior instability testing was normal. The Veteran reported using assistive devices constantly. During the April 2019 hearing, the Veteran testified that his left knee gives out on him when he walks. Also, the Veteran testified that he was issued a walker and a cane from the VA doctors for his left knee disorder. The Veteran testified that he receives physical therapy from the VA for his left knee disorder. Having considered the entire evidence of record, including the Veteran’s lay statements and testimony, the Board finds that an increased evaluation is not warranted based on instability of the left knee. In considering whether a higher evaluation is warranted based on instability, the Board acknowledges the Veteran’s subjective complaints of instability, including that his knee gives out on him and his use of assistive devices. However, there is no objective evidence of symptomatology which more closely approximates “moderate” subluxation or instability, of the left knee at any point during the appeal period. Specifically, both the April 2014 and November 2016 VA examinations reports reflect there is no history of recurrent subluxation or lateral instability, and joint stability testing performed both times found no evidence of significant instability of the left knee joint. In particular, the November 2016 VA examination found only slight medial and lateral instability, and no evidence of anterior or posterior instability. Furthermore, VA and private treatment records are silent regarding objective evidence of instability or subluxation of the left knee that would more closely approximate “moderate” symptomatology sufficient to warrant an increased evaluation. Consequently, the Board concludes the subjective and objective evidence more closely approximates “slight” instability of the left knee throughout the appeal period. The Board acknowledges the Veteran’s contentions that his service-connected left knee disability warrants an increased evaluation. Lay people are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Veteran is competent to provide statements of symptoms which are observable to his senses and there is no reason to doubt his credibility. However, the Board must emphasize that the Veteran is not competent to interpret accurately clinical findings pertaining to musculoskeletal disorders, to include a left knee disability, as this requires highly specialized knowledge and training. 38 C.F.R. § 3.159 (a)(1) (2018). See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Furthermore, the opinions and observations of the Veteran alone cannot meet the burden imposed by the rating criteria under 38 C.F.R. § 4.71a with respect to determining the severity of his service-connected left knee disability. See Moray v. Brown, 5 Vet. App. 211, 214 (1993); see also Davidson v. Shinseki, 581 F.3d 1313 (2009). The Veteran’s statements are consistent with the ratings assigned. The occurrence of pain and increased difficulty while performing physical activities are not additional symptoms, but rather the practical effect of the symptoms of instability which have been clinically observed and measured in the Veteran’s medical records. Consequently, the Board finds examinations conducted by trained medical professionals are more probative in determining the severity of the Veteran’s service-connected left knee disability, given their expertise in evaluating musculoskeletal disorders. In light of the above, the Board finds that the Veteran is not entitled to an evaluation in excess of 10 percent based on instability of the left knee at any point during the appeal period. The Board has considered whether the benefit of the doubt rule applies to this appeal. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). As a preponderance of the evidence is against an increased evaluation at any point during the appeal period this rule does not apply, and the appeal must be denied. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Scanlan, 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.