Citation Nr: 21012599 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 11-20 002 DATE: March 4, 2021 ORDER Entitlement to a rating in excess of 20 percent for left knee instability from March 14, 2008, is denied. Entitlement to a rating in excess of 10 percent for left knee limitation of motion prior to August 20, 2014 is denied. FINDINGS OF FACT 1. The Veteran does not have severe left knee instability. 2. During the period on appeal prior to August 20, 2014, the Veteran’s left knee disability was productive of extension limited to no more than 10 degrees, but was not productive of compensable limitation of flexion, ankylosis, locking, symptoms associated with the removal of semilunar cartilage, impairment of the tibia and fibula, or genu recurvatum CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for left knee instability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. 2. The criteria for a rating in excess of 10 percent for left knee limitation of motion (extension/flexion) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5260, 5261. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1985 to April 1994. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2009 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented sworn testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in July 2013. This appeal was previously before the Board in September 2014, at which time it was remanded for additional development. In October 2015, the Board issued a decision in which it (1) denied a rating in excess of 10 percent for chondromalacia of the left knee, status post arthroscopy, for the period on appeal before August 20, 2014; (2) granted a separate 10 percent rating for instability of the left knee for the period from May 7, 2014, to August 19, 2014; and (3) granted a 60 percent rating for chondromalacia of the left knee, status post total knee replacement, for the period on appeal from October 1, 2015. The Veteran appealed the October 2015 denial of a rating in excess of 10 percent for chondromalacia of the left knee, status post arthroscopy, for the period on appeal before August 20, 2014, to the United States Court of Appeals for Veterans Claims (Court). In February 2017, the Court issued a Memorandum Decision in which it vacated and remanded the part of the October 2015 Board decision that denied a rating in excess of 10 percent for chondromalacia of the left knee, status post arthroscopy, for the period on appeal before August 20, 2014. In vacating the noted portion of the October 2015 decision, the Court indicated that the Board erred by failing to explain how the Veteran’s rating during the applicable period contemplated her limitation of motion and functional limitations, to include those documented in June 2014 VA treatment records. The Veteran also asserted that the Board failed to provide an adequate statement of reasons and bases for discounting the Veteran’s statements regarding left knee instability prior to May 2014. In August 2017, the Board granted a 10 percent rating for left knee instability effective, March 14, 2008 and denied a rating in excess of 10 percent for left knee limitation of flexion prior to August 10, 2014. The Veteran appealed this decision and the Court set aside the August 2017 Board decision. See December 2018 Court decision. The Board remanded these issues for additional development in July 2019. The RO determined that the Veteran’s left knee instability more nearly approximated 20 percent during the period on appeal. Increased Rating The Veteran seeks an increased rating for her left knee disability. Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155. Where there is a question as to which of two disability evaluations shall be applied the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. However, pyramiding, or evaluating the same manifestation of a disability under different diagnostic codes, is to be avoided. See 38 C.F.R. § 4.14. Thus, separate ratings under different diagnostic codes are only permitted if, those separate ratings are assigned based on manifestations of the Veteran's disability that are separate and apart from manifestations for which the Veteran has already been rated. See Esteban v. Brown, 6 Vet. App. 259, 261 (1994). Separate ratings may be awarded so long as assignments of separate ratings would not result in compensating the Veteran twice for the same symptom. Lyles v. Shulkin, 29 Vet. App. 107 (2017). When evaluating musculoskeletal disabilities based on limitation of motion, the Veteran is entitled to at least the minimum compensable evaluation if motion is accompanied by pain. See 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). Additionally, pain is also relevant to assignment of a rating in excess of the minimum compensable rating, but only if that pain results in demonstrated functional impairment. Mitchell v. Shinseki, 25 Vet. App. 32, 37–38 (2011); see 38 C.F.R. §§ 4.40, 4.45. Functional impairment as contemplated by 38 C.F.R. §§ 4.40 and 4.45 includes 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, 25 Vet. App.at 44. Joint pain alone, without evidence of decreased functional ability, does not warrant a higher rating. See generally Mitchell, 25 Vet. App. at 32. Moreover, the Board must consider functional loss caused by pain or other factors listed in 38 C.F.R. §§ 4.40 and 4.45 that could occur during flare-ups or after repeated use and, therefore, may not be reflected on range-of-motion testing. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell, 25 Vet. App. at 44. Nonetheless, despite the relevance of the background factors delineated in § 4.40 or 4.45 when evaluating a disability, the rating to be assigned is based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); therefore, a separate or higher rating predicated solely on §§ 4.40 or 4.45 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 [or § 4.73] criteria.”). Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). VA’s General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). 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. In this regard, the Board observes that former regulation 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction. In Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9(b)(2) (now as noted renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. As such, pursuant to 38 C.F.R. § 20.904(d)(2), the Board will proceed to adjudicate the Veteran’s claim. Instability - DC 5257 from March 14, 2008 The Veteran seeks a rating in excess of 20 percent under DC 5257 for her left knee disability. Previously, the Court also found that the Board failed to adequately discuss why a rating in excess of 10 percent for left knee instability was not warranted. More specifically, the Court concluded that the Board failed to consider favorable lay statements in assessment of the degree of her instability. Under the old criteria, DC 5257 provides a 10 percent rating or slight, a 20 percent rating for moderate, and a 30 percent rating for severe recurrent subluxation or lateral instability. The new criteria under DC 5257 state the following: 5257 Knee, other impairment of: Recurrent subluxation or instability: 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 30 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 20 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 10 Patellar instability: 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 30 A diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: A brace, cane, or walker 20 A diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker 10 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). It is immediately apparent that the Veteran does not meet the requirements of the new criteria for a rating in excess of 20 percent. She does not have evidence of patellar instability, 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. She also does not have 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. As a result, the Board will evaluate the Veteran’s claim under the former criteria set forth in DC 5257. The evidence of record shows that the Veteran complained of left knee pain and falls as result of injury to her left knee. See March 2004 VA treatment record. She reports falling down stairs resulting in exacerbations of her left knee. See April 2009 VA treatment record. She also reports that she had 7 months of treatment for left knee issues at which time she was given a cane to assist her with walking. See November 2009 correspondence. In March 2014, she fell as a result of her unbalanced step. At her March 2013 Board hearing, she indicated that she had numerous falls because her knee gave out. VA treatment records also indicate that the Veteran has a history of dizziness that also she contributes to her imbalance and results in falls. See June 2008 VA treatment records; see also February 2014 Correspondence. Throughout the appeal period, VA examinations have not noted objective evidence of instability. The Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for her left knee instability. The Board has carefully considered the Veteran’s reports about instability. English, 30 Vet. App. 347, 352-53. The Board accepts as competent and credible the Veteran’s statements regarding her lateral instability. Still, the evidence, including her lay statements does not show that her left knee instability more nearly approximated severe instability. Overall, the lay and medical evidence still indicates that the instability symptoms have varied and do not suggest the presence of symptoms more nearly approximating severe severity. The December 2020 VA examiner evaluated the medical evidence and Veteran’s lay statements. Based on this, the VA examiner opined that the Veteran’s left knee instability more nearly approximated moderate severity. Looking at the episodes of instability, the Veteran has described, the Veteran agrees that the criteria for severe lateral instability have not been met. Here, throughout the appeal period there has been no objective evidence of knee instability. While, this objective finding is not dispositive for determining the presence of lateral knee instability, it does provide some indication that the Veteran’s instability severity does not warrant positive objective medical test findings. The instances the Veteran describes where her knee gives way appear to be episodic, in that they mainly indicate intermittent instability not a more constant instability state. Notably, a number of her instability episodes occur in proximity to stairs. Thus, based on the frequency, intermittent episodic nature, and severity of the lateral instability, the Board finds a rating in excess of 20 percent is not warranted. Limitation of Motion - DC 5260 prior to August 20, 2014 As noted in the previous Board decision, the Court found that the Board failed to adequately discuss why a rating in excess of 10 percent for left knee limitation of motion was not warranted given a June 2014 report that noted her inability to fully extend knee, and aggravation resulting from squatting, standing, going down stairs, prolonged walking and pivoting. The Board notes that the criteria for a rating under DC 5260 and 5261 remains the same despite the change in regulation. Under Diagnostic Code 5260, a noncompensable rating is warranted for flexion limited to 60 degrees. A 10 percent rating is warranted for flexion limited to 45 degrees. 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, Diagnostic Code 5260. Under Diagnostic Code 5261, a noncompensable rating is warranted for extension limited to 5 degrees. A 10 percent rating is warranted for extension limited to 10 degrees. 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. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Throughout the appeal, the Veteran reported that she has chronic pain in her left knee and swelling. In addition, she reported that she cannot walk unassisted and requires the use of a cane. In statements that were received in November 2009, the Veteran reported that she had an episode where she was not able to walk without pain and reported that she was in treatment for more than seven months for severe debilitating knee and joint pain, which necessitates the use of a special parking pass at work. She also reported that she can no longer walk or exercise due to her condition. March 2008 VA physical therapy consult notes document range of motion from -5 to 120 degrees and laxity in the left knee. An October 2008 VA physical therapy consult documents the Veteran’s report that she had periods of severe pain during which she “cannot walk,” activity does not increase pain, and medications decrease pain. Notably, the Veteran had full range of motion, mild discomfort when fully extended, and her lower extremity strength was 5/5. November 2008 VA physical therapy notes document the Veteran’s intermittent left knee pain. At the December 2009 VA examination the Veteran reported that she was unable to walk more than a few yards. She demonstrated normal extension (0 degrees) and flexion to 100 degrees; and there was no objective evidence of pain with active motion. October 2013 VA treatment records show the Veteran reports left knee pain after running. At that time, she reported that she would be running a 5k several days later. See October 2013 VA treatment record. May 2014 records indicate that the Veteran re-injured her left knee in October 2013 when she attempted to stand, and she felt a pop in her knee at that time. The reviewing clinician noted that the Veteran was given a brace to stabilize her knee until surgery. In May 2014, the Veteran demonstrated -10 degrees of extension and 112 degrees of flexion June 2014 VA physical therapy consult notes document the Veteran’s report that she was unable to fully extend her knee, but also document a finding of-10 degrees of extension and 92 degrees of flexion. She denied locking and her anterior drawer, posterior drawer, varus deformity, valgus deformity, and McMurray tests were all negative. She also reported crepitus, but no crepitus was felt under the patella with extension. The reporting clinician documented a laterally-tracking patella and noted that the Veteran had symptoms consistent with meniscal tear. At that time, she reported that her symptoms were aggravated by squatting, standing, going down steps, prolonged walking, and pivoting. The Board finds, even looking at the June 2014 reports, the preponderance of the evidence is against a rating in excess of 10 percent for limitation of motion of the Veteran’s left knee. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain. More specifically, above she asserts being unable to fully extend her knee. Notably, she denied other symptoms like locking. She also stated that functional movements aggravated her pain. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that she was unable to fully extend her knee would not result in limitation of motion more nearly approximating flexion limited to 30 degrees. A December 2020 VA addendum opinion specifically considered whether, based on the evidence of record, the Veteran’s disability more nearly approximated the criteria for extension limited 10 degrees or flexion limited to 45 degrees, thus warranting a 20 percent rating. This VA examiner highlighted that even given the Veteran’s symptoms and the notation indicting that the range of motion was -10 degrees to 92 degrees, the criteria for a higher rating was not met. Notably, despite the pain the Veteran experienced, it is noted that her VA examination was still negative for myriad of symptoms indicating a higher rating was warranted. The evidence prior to the June 2014 treatment record also support that a rating in excess of 10 percent was not warranted. While the Board notes the Veteran’s, various lay statements outlining the impact of her knee pain on her daily functioning, the Board notes that the question of to what degree the disability impacts motion is a medical one. This is especially true here, where there is a history of consistent medical evidence indicating that the Veteran did not have limitation of motion that is recognized as compensable under DC 5260 and 5261. While the Veteran’s report of knee pain is credible, it is not competent to the extent that she asserts that a worsening of symptoms upon functional movement results in a specific degree of limited motion. As a result, the objective medical evidence is more probative here because it is competent, credible, based on a review of all the medical evidence in the record, and uses appropriate medical expertise to issue an opinion as to the approximate degree of limitation. The Board has also considered the other Diagnostic Codes pertaining to the knee and leg. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). Nonetheless, additional ratings are not warranted under the other knee diagnostic codes because the Veteran does not have ankylosis, symptomatic semilunar removal, and tibia and fibula impairment. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 10 percent for her left knee disability. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.