Citation Nr: 21011750 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 16-63 928 DATE: March 2, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for left knee strain, limitation of flexion is denied. Entitlement to an initial compensable rating prior to September 23, 2019 for left knee strain, limitation of extension is denied. Entitlement to a rating in excess of 20 percent from September 23, 2019 for left knee strain, limitation of extension is denied. Entitlement to an initial compensable rating prior to September 23, 2019 for left knee instability is denied. Entitlement to a rating in excess of 20 percent from September 23, 2019 for left knee instability is denied. FINDINGS OF FACT 1. The Veteran’s left knee strain has been manifested primarily by pain and decreased flexion to no less than 45 degrees. 2. Prior to September 23, 2019, the Veteran’s left knee disability was not manifested by objective evidence of extension limited to 10 degrees or more. 3. From September 23, 2019, the Veteran’s left knee disability was not manifested by objective evidence of extension limited to 20 degrees or more. 4. Prior to September 23, 2019, the Veteran’s left knee disability demonstrated normal stability. 5. From September 23, 2019, the Veteran’s left knee disability has not been demonstrated by severe lateral instability; unrepaired or failed repair of complete ligament tear causing persistent instability, nor a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair requiring a prescription by a medical provider for a brace and either a cane or a walker. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for left knee strain have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5260. 2. Prior to September 23, 2019, the criteria for an initial compensable rating for left knee strain, limitation of extension have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.71a, DC 5261. 3. From September 23, 2019, the criteria for a rating in excess of 20 percent for left knee strain, limitation of extension have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.71a, DC 5261. 4. Prior to September 23, 2019, the criteria for an initial compensable rating for left knee instability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.71a, DC 5257. 5. From September 23, 2019, the criteria for a rating in excess of 20 percent for left knee instability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.71a, DC 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 2008 to August 2008, December 2009 to August 2010, December 2010 to October 2011, April 2012 to September 2012, and May 2013 to December 2013. In April 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. In October 2019, the Board remanded the claim for further development. The Board also remanded the Veteran’s claim for entitlement to service connection for right knee disability. In an August 2020 rating decision, the agency of original jurisdiction (AOJ) granted service connection for the Veteran’s right knee disability. This represents a full grant of benefits with regard to that claim. Accordingly, this issue is no longer before the Board. See AB v. Brown, 6 Vet. App. 35 (1993). Entitlement to an initial rating in excess of 10 percent for left knee stain Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 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 their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If two 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. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be “staged.” Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service-connected disability exhibits symptoms that would warrant different ratings.); see also Fenderson v. West, 12 Vet. App. 119, 126 (2001). A disability may require re-evaluation in accordance with changes in a veteran’s condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. The Veteran’s left knee disabilities are rated under DC 5260, 5257, and 5261. The Board notes that during the pendency the Veteran’s appeal, VA amended the criteria for rating musculoskeletal disabilities. The new regulation applies to claims received on or after February 7, 2021 or previously filed claims that are pending on February 7, 2021 if the new regulation will render more favorable result for the Veteran. As such, the Board will evaluate the Veteran’s disability under both the old and new regulations for the entire appeal period and choose the more favorable result. Relevant to evaluation, the new regulation revises the rating criteria for DC 5257. Under the new regulation, a 30 percent is warranted for recurrent subluxation or instability 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 along with one of the following: (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. (b) 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 warrants a 20 percent rating. 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 warrants a 10. Regarding patellar instability, a 30 percent is warranted for 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. Note (1): For patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note (2): A surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). Under the old regulation, slight recurrent subluxation or lateral instability warrants a 10 percent rating, moderate recurrent subluxation or lateral instability warrants a 20 percent rating, and severe recurrent subluxation or lateral instability warrants a 30 percent rating. 38 C.F.R. § 4.71a. The words “slight,” “moderate,” and “severe” as used in the various DCs are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. The Board notes that DCs 5268, 5269, 5260, and 5261 remain unchanged. Under DC 5260, limitation of flexion, flexion limited to 30 degrees warrants a 20 percent rating and flexion limited to 15 degrees warrants a 30 percent rating. See 38 C.F.R. § 4.71a, DC 5260. Under DC 5261, limitation of extension, extension limited to 15 degrees warrants a 20 percent rating; extension limited to 20 degrees warrants a 30 percent rating; extension limited to 30 degrees warrants a 40 percent rating; and extension limited to 45 degrees warrants a 50 percent rating. See 38 C.F.R. § 4.71a, DC 5261. Under Diagnostic Code 5258, a 20 percent rating is assigned for a knee with dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. 38 C.F.R. § 4.71a. DC 5259 provides a 10 percent evaluation for symptomatic removal of semilunar cartilage. Id. The normal range of motion (ROM) of the knee is 0 degrees of extension and 140 degrees of flexion. See 38 C.F.R. § 4.7, Plate II. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Although pain may cause functional loss, pain itself does not constitute functional loss. Rather, pain must affect some aspect of “the normal working movements of the body,” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40). 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). Analysis The Veteran contends that her left knee disabilities are more severe than the ratings depict. In February 2016, the Veteran was afforded a VA examination to determine the nature and etiology of her bilateral knee disability. She reported having left knee strain with persistent symptoms. The examiner diagnosed the Veteran with left knee strain. The Veteran did not report flare-ups of the knee. She did not report having any functional loss or functional impairment. Her bilateral knee range of motion (ROM) was normal, i.e., flexion was from zero to 140 degrees and extension from 140 degrees to zero. Pain was not noted on the exam. There was no evidence of pain with weight bearing and no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. There was also no objective evidence of crepitus. Bilaterally, the Veteran was able to perform repetitive use testing with at least three repetitions. The examiner noted that there was no additional functional loss or ROM after three repetitions. The Veteran was examined immediately after repetitive use over time. The examiner noted that neither pain, weakness, fatigability, nor incoordination significantly limited functional ability with repeated use over a period of time. There were no other additional contributing factors of disability. The Veteran’s bilateral muscle strength testing was normal. There was no reduction in muscle strength and no muscle atrophy. She did not have ankylosis, a history of recurrent subluxation, a history of lateral instability, or recurrent effusion. The Veteran did not now have or had ever had recurrent patellar dislocation, “shin splints” (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome, or any other tibial and/or fibular impairment. Additionally, she did not now have or had ever had a meniscus (semilunar cartilage) condition. There were no other pertinent physical findings, complications, conditions, scars, signs, and/or symptoms related to the Veteran’s knee disability. She did not use an assistive device as a normal mode of locomotion, and functioning was not so diminished that amputation with prosthesis would equally serve the Veteran. The Veteran’s disability did not have an impact on her ability to perform any type of occupational task. In April 2019, the Veteran was seen for a physical therapy consult for her bilateral knee pain. The therapist diagnosed the Veteran bilateral knee pain. The Veteran stated that her bilateral knee condition had gotten worse. She was not very active because she was afraid that her knee would pop out of place. She rated her right knee pain as 4/10 and her left knee pain as 6/10. To help relieve the pain, she took ibuprofen. The Veteran’s right knee flexion was WFL (within full limits), and her left knee flexion was limited to 90 degrees due to pain. Her right knee extension was WFL and her left knee extension was -5 degrees. The Veteran appeared apprehensive with manual muscle testing due to fear that her knee would pop and hurt more. Her bilateral knee flexion muscle strength testing was 3+/5 and extension was 3+4-/5. The Veteran had an apprehensive but independent gait pattern. She did not use an assistive device. In September 2019, the Veteran submitted a Knee Disability Benefits Questionnaire (DBQ). The Veteran’s left knee condition began in the military. The condition persisted and had gotten worse. In order to sleep at night, she took medication for the pain. The examiner confirmed the Veteran’s left knee strain diagnosis. The Veteran reported flare-ups, to include pain and swelling which reduced the ROM of her knee. She reported functional loss or functional impairment, i.e., she was unable to live a normal live, unable to run or be physically active, and unable to perform certain activities of daily living. The Veteran’s right knee ROM was normal. Her left knee flexion was from zero to 95 degrees and extension was from 95 to five degrees. The abnormal ROM contributed to functional loss. The Veteran was able to perform repetitive-use testing. The examiner noted no change in ROM after repetitive testing. The Veteran’s right knee ROM movements were not painful on active, passive, and/or repetitive use testing, and there was no pain when the joint was used in weight-bearing or non-weight-bearing. However, the examiner noted painful ROM movements on active, passive, and/or repetitive use testing of the left knee. There was also pain when the joint was used in weight-bearing or non-weight-bearing. Bilaterally, the Veteran did not experience localized tenderness or pain to palpation of the joint. There was no objective evidence of crepitus. The examiner noted functional loss and additional limitation of ROM of the Veteran’s left knee which included less movement than normal; weakened movement; excess fatigability; incoordination, impaired ability to execute skilled movements smoothly; pain on movement; swelling, instability of station; disturbance of locomotion; and interference with sitting and standing. The examiner stated that some of the factors were associated with limitation of motion. Regarding her right knee, the Veteran did not experience, pain, weakness, fatigability, or incoordination that significantly limited functional ability during flare-ups or when the joint was used repeatedly over a period of time. However, the Veteran experienced left knee pain, weakness, fatigability, or incoordination that significantly limited functional ability during flare-ups or when the joint was used repeatedly over a period of time. His left knee flexion was reduced to 45 degrees and extension to 15 degrees. Muscle strength testing, i.e., right knee flexion and extension, and left knee extension were normal. Left knee muscle strength testing, i.e., flexion, was abnormal. The Veteran’s left knee reduction in muscle strength was due to her disability. She did not experience muscle atrophy. She did not have ankylosis, and she did not have a history of recurrent subluxation. The Veteran did not have a history of right knee lateral instability; however, she had moderate left knee lateral instability. She had recurrent effusion that limited ROM. Joint stability testing in the right knee revealed normal stability. Left knee anterior instability testing revealed 1+, and her posterior, medial, and lateral instability testing revealed 2+. She did not now have or had ever had recurrent patellar dislocation, “shin splints”, stress fractures, chronic exertional compartment syndrome, or any other tibial and/or fibular impairment. Additionally, she did not now have or ever had a meniscus condition. There were no other pertinent physical findings, complications, conditions, scars, signs, and/or symptoms related to her knee disability. She did not used an assistive device as a normal mode of locomotion, and functioning was not so diminished that amputation with prosthesis would equally serve the Veteran. The Veteran’s disability had an impact on her ability to perform any type of occupational task, i.e., she was unable to stand or walk for extended periods of time. She was also unable to squat, kneel, lift heavy objects, or lift large objects off the ground. In October 2019, the Board remanded the claim for further development. The Board noted that the February 2016 VA examiner noted that joint stability testing was conducted. However, the examiner did not provide a response of the result. Based on this, the Board determined that the February 2016 examination was inadequate for the purpose of assessing an increased rating claim. In January 2020, the Veteran was afforded a VA examination to determine the severity of her left knee disability. The Veteran stated that her left knee disability had worsened. She stated that her knee locked to the point where she had fallen a few times. She reported excruciating pain in her left knee that was soothed with a hot bath. She also reported swelling on a regular basis. The Veteran took anti-inflammatory medication for relief. The examiner confirmed the Veteran’s left knee strain. The Veteran did not report flare-ups of the knee. She reported functional loss or functional impairment of the knee, to include being unable to run and walk long distances. The Veteran’s initial ROM was abnormal. Left knee flexion was from zero to 100 degrees and extension was from 100 degrees to zero. Right knee flexion was from zero to 110 degrees and extension was from 110 degrees to zero. Bilaterally, ROM itself did not contribute to functional loss. Pain was noted on both flexion and extension but did not result in/cause functional loss. Bilaterally, there was no evidence of pain with weight bearing. The examiner noted objective evidence of localized tenderness to palpation of the medial and lateral joint line. There was no objective evidence of crepitus in the right knee; however, the examiner noted objective evidence of crepitus in the left knee. Bilaterally, the Veteran was able to perform repetitive use testing with at least three repetitions. There was no additional functional loss or ROM after three repetitions. The Veteran was examined immediately after repetitive use over time. The examiner noted that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time. There was evidence of pain on passive ROM testing. There was no evidence of pain when the joint was used in non-weight-bearing, and the opposing joint was undamaged. There were no other additional contributing factors of disability. Bilateral muscle strength testing was normal. There was no reduction in muscle strength testing and no muscle atrophy. The Veteran did not have ankylosis, joint instability, or a history of recurrent subluxation, or recurrent effusion. She did not now have or had ever had recurrent patellar dislocation, “shin splints”, stress fractures, chronic exertional compartment syndrome, or any other tibial and/or fibular impairment. Additionally, she did not now have or ever had a meniscus condition or genu recurvatum in either knee. There were no other pertinent physical findings, complications, conditions, scars, signs, and/or symptoms related to her knee disability. She used a brace on a regular basis as a normal mode of locomotion. Functioning was not so diminished that amputation with prosthesis would equally serve the Veteran. The Veteran’s disability had an impact on her ability to perform any type of occupational task, i.e., she was unable to stand for long periods and was unable to walk long distances. Based on the evidence of record, the Board finds that a rating in excess of 10 percent for the Veteran’s left knee limitation of flexion is not warranted. There is no evidence that the Veteran has had limitation of flexion to 30 degrees or less. The record shows that, at worse, her left knee flexion was to no less than 45 degrees. As such, the criteria for a disability rating in excess of 10 percent under DC 5260 is not met. Regarding the Veteran’s limitation of extension, the Board finds that a rating in excess of 20 percent is not warranted. The Board notes that the September 2019 DBQ stated that due to pain, weakness, fatigability, or incoordination, the Veteran’s left knee extension was limited to 15 degrees. There is no evidence that the Veteran has had limitation of extension to 20 degrees or more. As such, from September 23, 2019, the criteria for a rating in excess of 20 percent under DC 5261 is not met. The Board finds that prior to the September 23, 2019, the Veteran’s extension was not limited to 10 degrees. Prior to September 23, 2019, the Veteran’s left knee extension was, at worst, five degrees. Therefore, an initial compensable rating is not warranted. Regarding the Veteran’s instability, the Board finds that a rating in excess of 20 percent is not warranted under the old regulation. The September 2019 DBQ examiner noted that the Veteran’s left knee anterior instability testing revealed 1+, and her posterior, medial, and lateral instability testing revealed 2+. The Board notes that the examiner provided options of 1+, 2+, and 3+ for assessing the severity of the lateral severity. The Board interprets those options as corresponding to slight, moderate, and severe instability, respectively, under DC 5257. Here, at worst, the Veteran’s instability testing revealed 2+, i.e., moderate instability. Thus, from September 23, 2019, a disability rating in excess of 20 percent for the left knee instability under DC 5257 is not warranted. The Board finds that prior to September 23, 2019, the Veteran’s instability testing was normal. as such, prior to September 23, 2019, an initial compensable rating under the old regulation is not warranted. Regarding the new regulation, the evidence does not demonstrate recurrent subluxation or instability for unrepaired or failed repair of complete ligament tear causing persistent instability, and has not shown that a medical provider prescribed both an assistive device and bracing for ambulation. Additionally, the evidence does not demonstrate that the Veteran has 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. Therefore, the Board finds that an initial compensable rating based on left knee instability prior to and a rating in excess of 20 percent from September 23, 2019, is not warranted under the new regulation. The Board recognizes that, under DeLuca v. Brown, 8 Vet. App. 202 (1995), VA must consider “functional loss” of a musculoskeletal disability separately from consideration under the DCs. “Functional loss” may occur as a result of weakness or pain on motion. Here, the evidence shows that pain has been a constant and predominant symptom. The pain affected her ability to run, walk long distances, be physically active, and perform certain activities of daily living. The Board notes that the September 2019 examiner noted objective evidence of pain with weight bearing and non-weight-bearing, objective evidence of pain on active and passive ROM testing, and/or repetitive use testing of the left knee. Pain was also noted on flexion and caused functional loss. The Veteran also experienced weakened movement; excess fatigability; incoordination, impaired ability to execute skilled movements smoothly; swelling; instability of station; and disturbance of locomotion. However, given the extent of left knee motion, there is no evidence of a disability picture that is commensurate to a limitation of flexion or extension to the extent necessary to establish entitlement to a higher disability rating, even after taking her reported pain into full consideration. See DeLuca, 8 Vet. App. at 204 -07; 38 C.F.R. §§ 4.40, 4.45, 4.71a, DC 5260. Further, the Board has considered the potential application of the other provisions of 38 C.F.R., Parts 3 and 4. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The Board notes that other criteria for rating knee disabilities are provided under DCs 5256 (ankylosis), 5258 (dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint), 5259 (cartilage, semilunar, removal of, symptomatic), 5262 (impairment of the tibia and fibula), and 5263 (genu recurvatum or traumatic genu recurvatum). The evidence does not show that the Veteran’s left knee disability manifestations has included ankylosis, a meniscus condition, a meniscus condition, shin splints, or genu recurvatum. Therefore, the Board finds that separate or higher ratings under DCs 5256, 5258, 5259, 5262, and 5263 are not warranted. Additionally, the Veteran did not have scars related to her disability. Therefore, separate ratings under DC 7800-7805 are not warranted. The Board has considered the Veteran and her representative’s statements regarding the severity of the Veteran’s left knee disability. However, as lay persons, they do not have the training or expertise to render a competent opinion which is more probative than the VA examiners’ opinions on this issue, as this is a medical determination that is complex. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994)). Thus, the lay opinions by themselves are outweighed by the VA examiners’ findings and the other evidence of record. See id.; see also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court’s conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert’s opinion more probative on the issue of medical causation). In sum, the preponderance of the evidence is against the assignment of increased ratings for the Veteran’s left knee disabilities. As such, the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Moore 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.