Citation Nr: 21011221 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 14-26 138 DATE: March 1, 2021 ORDER A 20 percent rating for right knee laxity prior to March 21, 2014 is granted. A rating in excess of 20 percent for right knee laxity from March 21, 2014 is denied. A 20 percent rating for right knee degenerative joint disease (DJD) with semilunar cartilage disability is granted. A rating in excess of 40 percent for right knee limited extension from August 10, 2016 is denied. FINDINGS OF FACT 1. Prior to March 21, 2014, the Veteran’s right knee produced moderate instability. 2. The preponderance of the evidence is against finding the Veteran’s right knee produced severe instability during the appeal period. 3. The preponderance of the evidence shows the Veteran’s right knee DJD with semilunar cartilage disability produced frequent locking, pain, and effusion. 4. From August 10, 2016, the preponderance of the evidence is against finding right knee extension limited to 45 degrees. CONCLUSIONS OF LAW 1. The criteria for a rating of 20 percent for right knee laxity prior to March 21, 2014 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5257. 2. The criteria for a rating in excess of 20 percent for right knee laxity from March 21, 2014 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5257. 3. The criteria for a rating of 20 percent for right knee DJD with semilunar cartilage disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5258. 4. The criteria for a rating in excess of 40 percent for right knee limited extension from August 10, 2016 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5261. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1988 to March 1992. Increased Ratings 1. A rating in excess of 10 percent for right knee laxity prior to March 21, 2014 2. A rating in excess of 20 percent for right knee laxity from March 21, 2014 3. A rating in excess of 10 percent for right knee DJD prior to August 10, 2016 4. A rating in excess of 40 percent for right knee DJD from August 10, 2016 The Veteran contends entitlement to an increased rating for his service-connected right knee disability. A review of the relevant evidence shows a July 2008 statement reported his right knee was getting worse. A January 2010 private treatment visit reported right knee pain, especially when twisting. Physical examination showed effusion, ligamentous instability laterally, and pain with extreme flexion. The clinician assessed internal knee derangement. At a February 2010 VA examination, the Veteran reported right knee pain, worsened with exposure to cold, using stairs, and standing more than 15 minutes. The Veteran reported locking with stiffness and an inability to fully extend his knee. He did not use a cane or crutches for ambulation. He reported occasionally using a right knee brace. Range of motion testing showed flexion to 115 degrees and normal extension. Medial and lateral ligaments were noted to be intact with mild laxity. The clinician denied additional limitation of function or impairment due to flare-ups such as pain, weakness, fatigue, or incoordination. At a March 2014 VA examination, the Veteran reported constant knee pain, crepitus, laxity, and locking. He reported difficulty with stairs. He described flare-ups as increased pain, occurring 5 to 6 times a month, lasting 15 to 20 minutes. Range of motion testing showed right knee flexion to 110 degrees and normal extension. After repetitive use testing, the Veteran’s flexion was limited to 100 degrees and extension remained normal. Joint stability testing showed anterior instability at 2+, posterior instability at 1+, and medial-lateral instability at 1+. The clinician noted a history of meniscus (semilunar cartilage) condition with frequent locking, pain, and effusion. The clinician noted constant use of a knee brace for right knee instability. The clinician stated the impact on his ability to work was limited standing, walking, bending, and carrying. The clinician noted the Veteran could not walk on uneven ground without having increased right knee laxity. An August 2016 VA examination noted flare-ups of the right knee described as increased pain. He reported functional loss of needing to sit, rest, and elevate leg. Range of motion testing showed flexion to 110 degrees and extension to 5 degrees. After repetitive use testing, flexion was reduced to 100 degrees and extension was reduced to 15 degrees. The examiner opined that pain, weakness, and lack of endurance would limit functional ability with repeated use over a period of time, resulting in flexion to 100 degrees and extension to 15 degrees. The examiner opined that pain, fatigue, weakness, and lack of endurance would limit functional ability with flare-ups, resulting in flexion to 90 degrees and extension to 30 degrees. Joint stability testing showed medial instability of 1+. Anterior instability testing, posterior instability testing, and lateral instability testing were normal. The clinician noted a history of recurrent effusion. An October 2019 VA examination reported increased knee pain. He described flare-ups occur 3 to 4 times a year, requiring he take 2 to 3 days off work. He reported the functional impact of difficulty standing, walking, running, kneeling, bending, and squatting. Range of motion testing showed flexion to 100 degrees and normal extension. The examiner opined pain would not significantly limit the Veteran’s functional ability with flare-ups or repeated use over time. The clinician explained there would be no further range of motion loss anticipated during these scenarios, only increased pain. Joint stability testing was normal. The clinician noted evidence of recurrent effusion. Regarding right knee laxity, the Veteran is assigned a rating for recurrent instability under DC 5257. The Board notes VA recently enacted amendments to the musculoskeletal system rating schedule, to include changes to DC 5257, effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257). The Board will apply the old rating criteria prior to February 7, 2021 and consider whether the new rating criteria would be more favorable to the Veteran after February 7, 2021. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Under the old criteria, DC 5257 provides a 20 percent rating for moderate recurrent subluxation or lateral instability and 30 percent rating for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a. The words “slight,” “moderate,” and “severe” as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all the evidence, to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. Prior to March 21, 2014, resolving reasonable doubt in favor of the Veteran, the Board finds the Veteran’s right knee laxity produced moderate instability. The Veteran contended his 20 percent rating for right knee laxity should date back to his claim date. See July 2014 VA Form 9. Looking to the evidence, the July 2008 claim reported his right knee was getting worse. A January 2010 private treatment visit noted ligamentous instability laterally. An August 2010 NOD reported difficulty with balance on stairs, requiring a railing or elevator for even a flight of stairs. The March 2014 VA examination noted laxity and abnormal joint stability testing. The Veteran reported stairs were difficult. The examiner noted constant use of a knee brace for right knee instability. The examiner stated walking on uneven ground would increase his right knee laxity. The preponderance of the evidence is against finding the Veteran’s right knee laxity produced severe instability at any point during the appeal period. The Veteran reported using a right knee brace occasionally to constantly during the appeal period, but did not require a cane, crutches, walker or wheelchair. The evidence does not support frequent falls. The Veteran was able to perform a full-time job that required limited standing and walking. The Board finds the lay and medical evidence indicates the Veteran’s right knee instability most closely approximated moderate severity during the entire appeal period. The Board considered whether the Veteran would be entitled to a higher rating under the new DC 5257 rating criteria. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257). To warrant a 30 percent rating for instability under the new criteria, the evidence must show (1) unrepaired or failed repair of complete ligament tear causing persistent instability and a medical provider prescribing both an assistive device (e.g., cane, crutches, walker) and bracing for ambulation, or (2) 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 a walker. The evidence does not support the Veteran’s right knee laxity met the criteria for a 30 percent rating under the new criteria. As such, the Board finds a 20 percent rating, no higher, for right knee laxity is warranted for the entire appeal period. Regarding right knee DJD, the Veteran is assigned a 10 percent rating under DC 5260-5010 prior to August 10, 2016 and a 40 percent rating under DC 5261 from August 10, 2016. Under DC 5260, a 20 percent rating is warranted for flexion limited to 30 degrees. A 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a. Under DC 5261, a 20 percent rating is warranted for extension limited to 15 degrees. A 30 percent rating is warranted for extension limited to 20 degrees. A 40 percent rating is warranted for extension limited to 30 degrees. A 50 percent rating is warranted for extension limited to 45 degrees. Id. 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 and, therefore, not be reflected on range-of-motion testing. 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). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 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) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one disorder is not duplicative of the symptomatology of the other disorder. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Separate ratings require separate compensable symptomatology. VAOPGCPREC 9-98 (1998), 63 Fed. Reg. 56,704 (Oct. 22, 1998); VAOPGCPREC 23-97 (1997), 62 Fed. Reg. 63,604 (Dec. 1, 1997); see also Lyles v. Shulkin, 29 Vet. App. 107 (2017). Prior to August 10, 2016, the Veteran was assigned a 10 percent rating for right knee DJD with painful noncompensable range of motion. Instead, the Board finds a rating under DC 5258 would better reflect the symptoms manifested by the Veteran’s right knee disability. Under DC 5258, a 20 percent rating is warranted for dislocation of semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. The preponderance of the evidence supports finding the Veteran has a semilunar cartilage disability. See May 2004 MRI, January 2010 private treatment note, and March 2014 VA examination. More importantly, the preponderance of the evidence shows the Veteran experienced frequent episodes of locking, pain, and effusion. See January 2010 private treatment note, February 2010 VA examination, August 2010 NOD, March 2014 VA examination, August 2016 VA examination, and October 2019 VA examination. As such, the Board finds a 20 percent rating for right knee DJD with semilunar disability under DC 5258 is warranted for the entire appeal period. The Board still considered whether the Veteran had compensable reduced range of motion to warrant a separate rating under DC 5260 or 5261. Prior to August 10, 2016, the evidence would need to show right knee flexion limited to 30 degrees or extension limited to 15 degrees. Prior to August 10, 2016, the evidence shows right knee flexion at worst to 100 degrees and normal extension. Even considering the Veteran’s lay reports of symptoms and functional loss, the degree of additional limitation reflected by the statements would not result in limitation of motion more nearly approximating flexion limited to 30 degrees or extension limited to 15 degrees. For the period from August 10, 2016, the Veteran is assigned a 40 percent rating for right knee limited extension. To warrant an increased rating, the evidence would need to show right knee flexion limited to 30 degrees or extension limited to 45 degrees. From August 10, 2016, the evidence shows flexion at worst to 90 degrees and extension at worst to 30 degrees. Even considering the Veteran’s lay reports of symptoms and functional loss, the degree of additional limitation reflected by the statements would not result in limitation of motion more nearly approximating flexion limited to 30 degrees or extension limited to 45 degrees. In conclusion, a rating of 20 percent for right knee laxity prior to March 21, 2014 is granted. A rating in excess of 20 percent for right knee laxity from March 21, 2014 is denied. A rating of 20 percent for right knee DJD with semilunar cartilage disability is granted for the entire appeal period. A rating in excess of 40 percent for right knee limited extension from August 10, 2016 is denied. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Winkler, 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.