Citation Nr: 21011359 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 16-63 057 DATE: March 1, 2021 ORDER Entitlement to a 20 percent disability rating for left knee instability is granted prior to February 7, 2021. Entitlement to a 30 percent disability rating for left knee instability is granted from February 7, 2021. REMANDED Entitlement to a disability rating in excess of 10 percent for left knee arthritis is remanded. FINDINGS OF FACT 1. Prior to February 7, 2021, the evidence shows moderate instability of the Veteran’s left knee. 2. From February 7, 2021, the evidence shows a failed repair of complete ligament tear of the left knee causing persistent instability with prescribed cane and bracing for ambulation. CONCLUSIONS OF LAW 1. Prior to February 7, 2021, the criteria for a disability rating of 20 percent for left knee persistent instability have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5257 (2020). 2. From February 7, 2021, the criteria for a disability rating of 30 percent for left knee persistent instability have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5257 (85 Fed. Reg. 76453 (Nov. 30, 2020)). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1988 to December 1991 and from April 1997 to March 2008. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of an April 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In September 2019, the Veteran testified during a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. In a November 2019 decision the Board denied disability ratings in excess of 10 percent for left knee instability and left knee arthritis. The Veteran appealed the November 2019 Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In August 2020, the Court granted a Joint Motion for Partial Remand (JMPR) filed by representatives for both the Veteran and the VA Secretary, vacating the Board’s decision as to denials of increased ratings for left knee instability and left knee arthritis, and remanding the claims to the Board for further proceedings consistent with the JMPR. Increased Rating Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Rating Schedule is primarily a guide in rating disability resulting from all types of diseases and injuries encountered as a result of or incident to service. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from diseases and injuries and their residual conditions in civil occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. For the application of the schedule, accurate and fully descriptive medical examinations are required, with emphasis upon the limitation of activity imposed by the disabling condition. Over a period of many years, a Veteran’s disability claim may require ratings in accordance with changes in laws, medical knowledge, and physical or mental condition. It is thus essential, both in the examination and in the rating of disability, that each disability be viewed in relation to its history. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Regarding rating claims involving the musculoskeletal system, a finding of dysfunction due to pain must be supported by, among other things, adequate pathology. 38 C.F.R. § 4.40. The factors of disability reside in reductions of normal excursion of movements in different planes and ratings should consider (a) less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.), (b) more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.), (c) weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.), (d) excess fatigability, (e) incoordination or impaired ability to execute skilled movements smoothly, and (f) pain on movement, swelling, deformity or atrophy of disuse and instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing. 38 C.F.R. § 4.45. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov 30, 2020). These amendments revised select diagnostic codes “to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities.” Id. If a law or regulation changes during a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110 (g); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). 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 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; Kuzma, 341 F. 3d 1327. Therefore, the Board will consider the Veteran’s claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Prior to the regulatory change, under DC 5257, recurrent subluxation or lateral instability is rated as 10 percent disabling when slight, 20 percent disabling when moderate, and 30 percent disabling when severe. See 38 C.F.R. § 4.71a, DC 5257. Descriptive words “slight,” “moderate” and “severe” as used in the various DCs are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all the evidence for “equitable and just decisions." See 38 C.F.R. § 4.6. As of February 7, 2021, under the amended criteria, DC 5257 now provides for a 30 percent rating for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation; and a 20 percent disability rating for 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), walker) or bracing for ambulation. Left knee instability The Veteran reports instability, popping, catching, clicking and swelling. The Veteran also reports difficulty with prolonged standing, walking, stair climbing/descending. The Veteran wears a brace and uses a cane. March 2015 VA treatment notes show that the Veteran reported persistent rotatory instability of the left knee. The Veteran reported wearing a left knee brace the last three years, but it has become loose and he required a new fitting. The VA provider ordered a prosthetics consultation to provide a new knee brace to help stabilize the Veteran’s knee and improve his symptoms. The December 2016 and November 2018 VA examiners found some left knee joint instability after testing. Specifically, stability testing was performed and was normal except for 1+ (0 to 5mm) anterior instability in December 2016 and 2+ (5 to 10mm) anterior instability in November 2018. Lateral, posterior, and medial instability was not shown, and the degree of anterior instability was mild to moderate. Constant brace wearing on left knee was reported in December 2016 and regular brace and cane use was reported in November 2018. The July 2018 and June 2019 VA examiners found no left knee joint instability after testing. Regular use of a left knee brace was reported at the July 2018 and June 2019 VA examinations. While the July 2018 and June 2019 VA examinations did not show left knee instability, the December 2016 and November 2018 VA examinations showed mild to moderate left knee anterior instability. The use of a left knee brace is shown to have been used at least regularly throughout the appeal, and the Veteran has consistently and credibly reported persistent rotatory instability throughout the appeal. After considering the Veteran’s statements, his persistent usage of a brace, and the findings of moderate left knee anterior instability in the November 2018 VA examination, the Board resolves all reasonable doubt in favor of the Veteran and finds an increased 20 percent evaluation for left knee instability is warranted under DC 5257 rating criteria prior to the February 7, 2021 amendments. A higher 30 percent rating is not warranted prior to February 7, 2021 because there is no lay or medical evidence to support a finding that severe instability of the knee is shown. When considering the Veteran’s claim under the amended DC 5257, the evidence shows the Veteran suffers from a failed repair of complete ligament tear in the left knee causing persistent instability. The March 2015 VA treatment notes shows an intact graft; however, the graft placement is not correctly situated, causing rotatory instability. The evidence also shows a medical provider prescribed both an assistive device and bracing for ambulation, which the Veteran has used regularly. Accordingly, the maximum 30 percent disability rating for left knee instability is warranted. While both the prior and revised ratings apply to the time period, both versions of Diagnostic Code provide for a maximum schedular 30 percent rating, which is now assigned. REASONS FOR REMAND Increased rating for left knee arthritis is remanded The Veteran seeks entitlement to a disability rating in excess of 10 percent for left knee arthritis. The Veteran was most recently provided a VA examination as to his left knee condition in June 2019. VA has a duty to ensure that any medical examination or opinion it provides is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). A medical opinion is adequate where it is based upon consideration of the full medical history and describes a disability in sufficient detail so that the Board’s evaluation will be fully informed. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The December 2016, July 2018, November 2018, and the June 2019 VA examinations each found that Veteran experienced pain on range of motion that resulted in functional loss, but none of the examiners specified exactly where Veteran’s pain began on range of motion testing. These examinations are inadequate given this Court’s finding that the “examiner must note whether and at what point during the range of motion the [veteran] experience[s] any limitation of motion that [is] specifically attributable to pain.” Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011) (emphasis added). Additionally, the June 2019 VA examiner and the November 2018 VA examiner noted flare-ups but could not describe such flare-ups in terms of functional loss for range of motion, without resorting to mere speculation. Pursuant to Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), the Board may “accept a VA examiner’s statement that he or she cannot offer an opinion without resorting to speculation, but only after determining that this is not based on the absence of procurable information or on a particular examiner’s shortcomings or general aversion to offering an opinion on issues not directly observed.” Sharp, 29 Vet. App. at 33 (emphasis added) (citing Jones v. Shinseki, 23 Vet. App. 382, 390 (2010)). Given the Court’s holding in Sharp, none of the referenced examiner’s explanations (or lack thereof), are adequate. The matter is REMANDED for the following action: 1. Schedule the Veteran for an examination to determine the current severity of his service-connected left knee arthritis. (a.) The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. Specifically note whether, and at what point during range of motion, the Veteran experienced any limitation of motion that was specifically attributable to pain. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (b.) The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. St. Laurent, 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.