Citation Nr: 21010781 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 18-31 926 DATE: February 25, 2021 ORDER Entitlement to an increased rating greater than 10 percent for a right knee partial lateral collateral ligament (LCL) tear prior to August 15, 2016, and from October 1, 2016 is denied. FINDINGS OF FACT 1. Prior to August 15, 2016, right knee disability was not manifested by limitation of flexion of the knee to 30 degrees. 2. From October 1, 2016, right knee disability was not manifested by limitation of flexion of the knee to 30 degrees. CONCLUSIONS OF LAW 1. The criteria for an initial increased rating in excess of 10 percent for right knee disability prior to August 15, 2016 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5259-5260. 2. The criteria for an initial increased rating in excess of 10 percent for right knee disability from October 1, 2016 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5259-5260. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1997 to June 1998. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for a right knee partial LCL tear assigning a 10 percent disability rating prior to August 15, 2016, and from October 1, 2016. In April 2019 and June 2020, the Board remanded the Veteran’s increased-rating claim to provide him with an examination. The most recent examination was completed in November 2020. The claim is back before the Board for further appellate proceedings. Increased Rating Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38U.S.C. § 1155; 38 C.F.R. § 4.1. Reasonable doubt as to the degree of the disability will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. Entitlement to an increased rating greater than 10 percent for a right knee partial LCL tear prior to August 15, 2016, and from October 1, 2016 The Veteran contends that his right knee disability should be rated higher than the currently-assigned 10 percent disability rating prior to August 15, 2016, and from October 1, 2016. In an April 2017 rating decision, the Veteran was granted service connection for a right knee partial LCL tear and assigned a 10 percent evaluation, effective August 2, 2016. A November 2019 rating decision granted a temporary 100 percent evaluation, effective August 15, 2016 through September 30, 2016, based on surgery the Veteran underwent on his knee. See 38 C.F.R. § 4.30 (temporary total rating based on convalescence for a service-connected disability). A 10 percent rating was continued thereafter. As the Veteran is in receipt of the highest schedular rating from August 15, 2016, to September 30, 2016, this period of time is not part of the claim for increase. The Veteran’s right knee disability is rated under DC 5259-5260. Under DC 5259, symptomatic removal of the semilunar cartilage in the knee warrants a 10 percent rating. See 38 C.F.R. § 4.71a, DC 5259. Under DC 5260, limitation of flexion of the knee to 45 degrees warrants a 10 percent rating. Limitation of flexion of the knee to 30 degrees warrants a 20 percent rating. Limitation of flexion of the knee to 15 degrees warrants a 30 percent rating. See 38 C.F.R. § 4.71a, DC 5260. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the award of an increased rating in excess of 10 percent for a right knee disability. The reasons follow. The evidence shows that the Veteran’s right knee disability is manifested with pain and limitation of motion, but does not result in limitation of flexion of the right knee to 30 degrees to warrant a 20 percent rating under DC 5260. At worst, the Veteran’s right knee flexion was limited to 90 degrees, as documented in the March 2017 VA examination report. VA examinations from August 2019 and November 2019 found right knee flexion limited to 120 degrees. A November 2020 VA examination found right knee flexion limited to 100 degrees. At the November 2020 VA examination, the Veteran reported flare-ups, and the examiner noted that the flare-ups resulted in additional loss of range of motion with right knee flexion limited to 95 degrees. The November 2020 VA examiner also noted that during flare-ups, the Veteran’s right knee flexion was limited to 95 degrees. The VA examiner noted the Veteran’s flare-ups caused functional loss, and he showed pain with weight bearing, crepitus, and tenderness to palpation. The Board notes that the November 2020 VA examination was conducted in accordance with Correia v. McDonald, 28 Vet. App. 158 and Sharp v. Shulkin, 29 Vet. App. 26. In Correia, the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 4.59 requires that VA examinations include certain range of motion testing whenever possible in cases of joint disabilities, including testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Additionally, in Sharp, the Court held that VA examiners of musculoskeletal disabilities must inquire about the severity, frequency, and duration of any flare-ups, including precipitating and alleviating factors, and estimate, according to the relevant sources (including the Veteran’s subjective lay statements) to what extent any flare-ups affect functional impairment. As such, the Board’s June 2020 remand directed that VA obtain a retrospective medical opinion addressing the severity of the Veteran’s right knee disability in accordance with Correia and Sharp. Given the above, the Board finds that there has been substantial compliance with the June 2020 Board remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). At the March 2017 VA examination, the Veteran stated he had knee pain that was aggravated by prolonged standing and he could not crawl, kneel, or squat. He contended he had flare-ups a lot of days and especially during cold weather or when it is raining. In October 2018 VA treatment records, the Veteran contended he woke up every morning in severe knee pain and could barely walk, and in January 2019 VA treatment records he stated his right knee gives out when walking. The Veteran stated in a November 2019 VA examination that he experienced limited mobility, limited range of motion in the right knee, tightness/locking of the knee, popping, a burning sensation, pain at a level of 8 out of 10, and was limited in standing, bending, and sitting. The Veteran further contended at the November 2019 VA examination that his weather-related flare-ups are moderate, and they also happen when he walks for 10 minutes or sits for 20-30 minutes. As previously noted, in January 2020, the Veteran reported to urgent care with a chief complaint of “increase in chronic right knee pain” and noted limp, and he reported a pain level of “10” that lasted over 2 days. In August 2019 and November 2020 VA examinations, the Veteran contended his right knee flare-ups occur every day and last all day. Despite these contentions, the Veteran showed mostly normal findings in physical examinations throughout the record. August 2016 VA treatment records prior to his August 2016 surgery, physical examination findings noted no tenderness, no swelling, and only mild synovitis and decrease in range of motion of the right knee. Another physical examination from a VA treatment record prior to his August 2016 surgery noted normal range of motion, normal strength, no tenderness, no swelling, and normal gait. While exams throughout the record noted pain with range of motion, that finding is already accounted for in the Veteran’s 10 percent rating under 5259-5260. Examinations throughout the record further noted a steady gait, and the volume and consistency of these findings weighs against the Veteran’s contentions prior to January 2020 that he could barely walk. VA examinations also consistently noted full strength in the knee, no ankylosis, no subluxation, and no instability. Regarding the Veteran’s reported increase of right knee pain in January 2020, the November 2020 VA examiner did find reduced range of motion compared to the November 2019 examination. The November 2019 VA examiner found right knee flexion limited to 120 degrees, while the November 2020 VA examiner found right knee flexion limited to 100 degrees. Additionally, the November 2020 VA examiner also noted that during flare-ups, the Vet’s right knee flexion was further limited to 95 degrees. The VA examiner found the Vet’s flare-ups caused functional loss, and he showed pain with weight bearing, crepitus, and tenderness to palpation. Though the November 2020 VA examiner did show worsened findings from the prior VA examination, these findings did not result in limitation of flexion of the right knee to 30 degrees to warrant a 20 percent rating. The Board has considered the effects of the Veteran’s symptoms, including pain and functional loss, and the Board concludes that the preponderance of the evidence is against a finding of limitation of flexion of the right knee to 30 degrees, which is the criteria needed for a 20 percent rating under DC 5259-5260. Examination results throughout the appeal period show that the Veteran had normal muscle strength and joint stability testing results in his right knee, and had flexion between 90 and 120 degrees. Taking into account the evidence of record indicating the Veteran’s regular complaints of pain and other findings of functional loss, the Board finds that the evidence does not reflect that such pain and functional limitations resulted in limitation of flexion of the right knee to 30 degrees, which would be required for a finding that the Veteran was entitled to a 30 percent disability rating. Thus, a higher rating under the provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59 criteria is not approximated in the Veteran’s disability picture for this appeal period. The Board considered DC 5261. Under DC 5261, a noncompensable evaluation is assigned for extension limited to 5 degrees, and a 10 percent disability evaluation is contemplated for extension limited to 10 degrees. When there is limitation of extension to 15 degrees, a 20 percent evaluation is warranted. A 30 percent rating will be assigned for extension limited to 20 degrees, and a 40 percent rating is contemplated for limitation of extension to 30 degrees. A 50 percent disability evaluation is warranted for extension limited to 45 degrees. In order for the Veteran to be entitled to a separate compensable rating for limitation of extension (as he is already receiving a compensable rating for limitation of flexion), the Veteran’s extension would need to reach a compensable level, which would be extension limited to 10 degrees. VA examinations throughout the appeal period consistently found right knee extension to 0 degrees. Thus, the preponderance of the evidence is against the award of a separate rating for limitation of extension under DC 5261. The Board considered DC 5258, under which dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint warrants a 20 percent rating. See 38 C.F.R. § 4.71a, DC 5258. The Board notes that the Veteran contended he experienced locking of his knee at the November 2019 VA examination. However, this is the only instance of the Veteran stating he had locking in the record, and the preponderance of the evidence is against the Veteran having locking on a regular basis. Thus, the preponderance of the evidence is against finding that the Veteran’s locking was frequent as needed to meet the requirements of DC 5258. Right knee effusion was also noted in a November 2016 VA treatment record and the March 2017 VA examination. Since right knee effusion was only found on two occasions during the relevant period of over four years, the preponderance of the evidence is also against finding that right knee effusion was frequent. The Board has considered DC 5257, which is appliable when there is recurrent subluxation or instability, or patellar instability. The Board notes that there was a very recent change to DC 5257 in February 2021, and consideration of this DC includes both the former and the current versions. However, the Board finds that DC 5257 does not apply in the present case because the preponderance of the evidence weighs against finding the Veteran has recurrent subluxation or instability, or patellar instability. Regarding right knee subluxation, December 2017 VA treatment records noted no subluxation. There was also no reported history of subluxation in VA examinations from March 2017, August 2019, November 2019, or November 2020. Regarding instability, a more thorough discussion is warranted and follows. The Board acknowledges that the Veteran as a layperson is competent to testify to factual matters of which he has first-hand knowledge such as experiencing pain, perceiving instability in a joint, or witnessing actually observed symptoms such as swelling. See Washington v. Nicholson, 19 Vet. App. 362, 368 (discussing competence to report experienced or witnessed symptoms versus incompetent to offer render a medical diagnosis or identify the etiology of disease or injury that require medical knowledge). The Board has considered the Veteran’s statements describing a history of right knee instability and giving way. The Board recognizes that when considering whether lay evidence is competent the Board must determine on a case by case basis whether a veteran’s particular disability is the type of disability for which lay evidence may be competent. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Here, the Board finds the Veteran is competent to describe many symptoms of his right knee disability, such as perceived instability and pain. See Jandreau, 492 F.3d at 1376 (lay witness capable of diagnosing dislocated shoulder); Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay person competent to testify to pain and visible flatness of his feet); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis). The Board also finds his December 2017 statement about his knee giving way generally credible because he made it to a VA medical provider while seeking treatment. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made for the purposes of medical treatment may be afforded greater probative value because there is a strong motive to tell the truth to receive proper care). Here, he reported his right knee gave out during physical therapy in December 2017. He also endorsed a history of slight right knee instability during an August 2019 VA examination. To the extent, however, that VA medical personnel used specific clinical tests to assess the stability of the Veteran’s right knee, the Board finds the objective medical evidence is more probative than the lay evidence on the issue of instability because the clinical assessment of knee instability made by performing particular joint stability tests falls outside the realm of common knowledge of laypersons. Here, since receipt of the increased rating claim in August 2016, competent medical evidence has consistently documented that the Veteran’s right knee joint was stable to anterior testing (Lachman test), posterior testing (posterior drawer test), medial testing (valgus stress testing), and to lateral testing (varus stress testing). In Jandreau v. Nicholson, 492 F.3d 1372 (2007), the United States Court of appeals for the Federal Circuit (Federal Circuit) held that “[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when…lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Jandreau, 492 F.3d at 1977. The issue of whether the Veteran’s perceived symptom of right knee instability is competent and sufficient to establish that he has actual instability of the knee sufficient to warrant a separate disability rating under DC 5257 is analogous to the situation described in Jandreau. In this case, the Veteran described his perception of right knee instability at one VA examination, and he reported his right knee gave out when he underwent physical therapy in December 2017. The August 2019 and November 2019 examiners noted the Veteran used a right knee brace for support. The VA examiners in March 2017 and November 2020 also noted the use of a right knee brace. He was further noted to use a right knee brace in VA treatment records from July 2018, December 2018, February 2019, May 2019, June 2019, September 2019, and January 2020. However, numerous medical professionals have tested his right knee for instability during the pendency of his appeal and none has found even slight instability on anterior, posterior, medial, or lateral stability testing. For example, right knee stability testing was performed at VA examinations in March 2017, August 2019, November 2019, and November 2020. Additionally, a December 2017 VA treatment record noted two forms of stress testing were performed on the right knee and no instability was found. Because the Veteran’s perceived symptom of right knee instability has repeatedly not been demonstrated or confirmed on clinical testing by numerous independent medical professionals, his lay statements are insufficient to establish the presence of anterior, posterior, medial, or lateral instability sufficient to warrant separate disability rating. In English v. Wilkie, 30 Vet. App. 347 (2018), the Court held that the Board cannot find objective medical evidence categorically more probative than lay evidence without explaining why that is the case. To be clear, the Board finds the objective medical evidence more probative than the Veteran’s reports of perceived right knee instability for two reasons. First, the clinical findings from the December 2017 VA treatment records involved varus and valgus stress testing to assess the stability of the right knee joint, and no instability was found. The VA examinations in March 2017, August 2019, November 2019, and November 2020 included Lachman and posterior drawer tests in addition to varus and valgus stress testing to assess right knee stability, and no instability was found. Here, each of the five examinations included either two or four forms of stability testing and none of the examinations demonstrated right knee instability. The thorough, repeated stability testing, which did not reveal instability, supports the conclusion that the Veteran’s perceived knee instability is not due to anterior, posterior, medial, or lateral knee joint laxity. Second, the five examinations conducted between March 2017 and November 2020 were performed by four, different medical professionals, each performed joint stability testing, and each documented the right knee was stable to stability testing. The internal consistency among the four independent examiners bolsters the conclusion that their findings of no right knee joint instability were accurate. For these reasons, the Board finds that the objective medical evidence is more probative than the Veteran’s lay statements. In sum, the preponderance of the evidence is against a disability rating in excess of 10 percent for right knee disability. As the preponderance of the evidence is against the claim for a higher rating, the benefit of the doubt doctrine is not for application, and the Veteran’s claim for an increased rating is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Patton 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.