Citation Nr: 21012741 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 13-21 627A DATE: March 5, 2021 ORDER 1. An initial rating in excess of 10 percent prior to January 25, 2005, and in excess of 20 percent thereafter, for left knee limitation of extension is denied. 2. An initial rating in excess of 10 percent for right knee degenerative joint disease (DJD) is denied. 3. An initial rating in excess of 20 percent for left knee instability is denied. 4. An initial rating in excess of 20 percent for right knee instability is denied.   FINDINGS OF FACT 1. Prior to January 25, 2005, the Veteran’s left knee disability was manifested by painful motion, limitation of motion, weakness, and crepitus, but not flexion limited to 30 degrees or less or extension limited to 15 degrees or more. 2. Since January 25, 2005, the Veteran’s left knee disability has manifested by painful motion, limitation of motion, weakness, and crepitus, but not flexion limited to 15 degrees or less or extension limited to 10 degrees or more. 3. The Veteran’s right knee disability has manifested by painful motion, limitation of motion, weakness, and crepitus, but not flexion limited to 30 degrees or less or extension limited to 15 degrees or more. 4. Since June 29, 2011, the Veteran’s left knee has resulted in moderate instability, but not severe instability, patellar instability, or the need for surgical repair. 5. Since June 29, 2011, the Veteran’s left knee has resulted in moderate instability, but not severe instability, patellar instability, or the need for surgical repair. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent prior to January 25, 2005, or in excess of 20 percent thereafter, for a left knee disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5260. 2. The criteria for an initial rating in excess of 10 percent for a right knee disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, DC 5003. 3. The criteria for a rating in excess of 20 percent for left knee instability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.71a, DC 5257 (2020); 4.71a, DC 5257 (2021). 4. The criteria for a rating in excess of 20 percent for left knee instability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.71a, DC 5257 (2020); 4.71a, DC 5257 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1977 to February 1979 and from February 1991 to March 1991, with additional National Guard service. The case is on appeal from a May 2010 rating decision. In April 2015, the Veteran testified at a Board hearing. In a June 2017 decision, the Board remanded the claims on appeal for additional development and a higher initial rating for sleep apnea for issuance of a statement of the case (SOC). The RO issued an SOC for the sleep apnea claim in August 2017. The Veteran subsequently filed a timely VA Form 9 to appeal such claim and request a Board hearing. As he requested a hearing, the sleep apnea claim will be the subject of a future Board decision, if in order. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008).   Increased Ratings 1. An initial rating in excess of 10 percent prior to January 25, 2005, and in excess of 20 percent thereafter, for left knee limitation of extension. 2. An initial rating in excess of 10 percent for right knee DJD. 3. An initial rating in excess of 20 percent for left knee instability. 4. An initial rating in excess of 20 percent for right knee instability. Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. 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. 38 C.F.R. § 4.1. Disabilities of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Veteran’s left knee is rated under DC 5260. Limitation of motion of the knee is contemplated in 38 C.F.R. § 4.71a, DCs 5260 and 5261. DC 5260 provides for a noncompensable rating for limitation of flexion limited to 60 degrees; a 10 percent rating is warranted for limitation of flexion limited to 45 degrees; a 20 percent rating is warranted for limitation of flexion limited to 30 degrees; and a 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. Ratings for limitation of extension of the knee are under 38 C.F.R. § 4.71a, DC 5261. DC 5261 provides for a noncompensable rating for limitation of extension limited to 5 degrees; a 10 percent rating is warranted for limitation of extension limited to 10 degrees; a 20 percent rating is warranted for limitation of 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; and a 50 percent rating is warranted for extension limited to 45 degrees. 38 C.F.R. § 4.71a, DC 5261. The Veteran’s right knee disability is rated under DC 5003. DC 5003 provides that degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate DCs for the specific joints involved. 38 C.F.R. § 4.71a, DC 5003. When, however, the limitation of motion of the specific joints involved is noncompensable under the appropriate DCs a 10 percent rating is for application for each major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent evaluation is warranted if there is x-ray evidence of involvement of two or more major joints or two or more minor joint groups, and a 20 percent evaluation is authorized if there is x-ray evidence of involvement of two or more major joints or two or more minor joint groups and there are occasional incapacitating exacerbations. Arthritis established by x-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. In addition, since June 29, 2011, the Veteran’s knees are both assigned 20 percent ratings for instability under DC 5257. Under DC 5257, a 10 percent rating is warranted for either slight recurrent subluxation or slight lateral instability; a 20 percent rating is warranted for moderate recurrent subluxation or moderate lateral instability; and a 30 percent rating is warranted for severe recurrent subluxation or severe lateral instability. 38 C.F.R. § 4.71a, DC 5257. Merriam-Webster dictionary defines “moderate” as tending toward the mean or average amount or dimension and “severe” is “of a great degree.” See https://www.merriam-webster.com/dictionary/moderate; www.merriam-webster.com/dictionary/severe. Effective February 7, 2021, the criteria to knee instability were amended. See 82 Fed. Reg. 76453 (Nov. 30, 2020); 38 C.F.R. § 4.71a, DC 5257. Under the new criteria for DC 5257, a 10 percent rating is assigned for 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, crutch, walker) or bracing for ambulation; a 20 percent rating is assigned for sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace or assistive device (e.g., cane, crutch), 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, crutch, walker) or bracing for ambulation; and a 30 percent rating is assigned for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane, crutch, walker) and bracing for ambulation. Furthermore, under the new criteria separate ratings may also be assigned for patellar instability. For patellar instability a 10 percent rating assigned for 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; a 20 percent rating is assigned for 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; and a 30 percent rating is assigned 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. Id. NOTE 1 following the criteria provides, for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. NOTE 2 following the criteria provides 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). The Board also notes that, as the February 7, 2021 rating criteria change did not specify that it was to have a retroactive effect, the prior criteria and the new criteria will both be considered for the later rating period and the rating assigned based on the criteria most favorable to the Veteran. However, an award warranted under the revised criteria cannot be effective prior to February 7, 2021. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Additionally, DCs 5258 and 5259 are potentially applicable to rating knee disabilities. DC 5258 provides for a 20 percent evaluation for semilunar, dislocated cartilage with frequent episodes of “locking,” pain, and effusion into the joint. 38 C.F.R. § 4.71a, DC 5258. DC 5259 provides for a 10 percent rating for symptomatic removal of semilunar cartilage. 38 C.F.R. § 4.71a, DC 5259. Staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). An effective date for an increased rating should not be assigned mechanically based on the date of a diagnosis. Rather, all of the facts should be examined to determine the date that the disability first manifested. Accordingly, the effective date for an increased rating-as well as for an initial rating or for staged ratings-is predicated on when the increase in the level of disability can be ascertained. Swain v. McDonald, 27 Vet. App. 219, 224 (2015); DeLisio v. Shinseki, 25 Vet. App. 45, 56 (2011). In determining when an increase is “factually ascertainable,” all of the evidence must be looked to, including testimonial evidence and expert medical opinions, and an effective date must be assigned based on that evidence. See McGrath v. Gober, 14 Vet. App. 28, 35-36 (2000); VAOPGCPREC 12-98. Thus, “it is the information in a medical opinion, and not the date the medical opinion [that] was provided that is relevant when assigning an effective date.” Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010); see also Young v. McDonald, 766 F.3d 1348 (Fed. Cir. 2014). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Factual History The Veteran is seeking higher initial ratings for his service-connected bilateral knee disabilities. In an August 2011 statement, the Veteran reported using VA issued knee braces due to bilateral instability. During the April 2015 Board hearing, the Veteran reported knee range of motion limited to 90 degrees and loss of strength. He also reported difficulty standing up and doing chores and being unable to run, walk excessively, and climb stairs. In an October 2015 statement, the Veteran requested 30 percent ratings for bilateral knee instability. He stated that he experiences instability in the front and back of his knees due to weakness and pain and that his knees can buckle with minor stress. He also stated that he requires help getting up due to knee weakness and pain. The Veteran’s knees were first examined by VA in March 2004. The Veteran reported experiencing daily knee pain made worse by walking and after standing for 15 minutes. He also reported avoiding running. He denied taking medication for treatment. The examiner reported full range of motion in both knees. The examiner denied the presence of pain on palpation and signs of pathology and inflammation. The examiner diagnosed the Veteran with bilateral knee strains. The Veteran was afforded another VA knee examination in March 2009. The Veteran reported experiencing knee pain, but denied experiencing flareups, instability, weakness, stiffness, incoordination, symptoms of inflammation, and locking episodes. The examiner reported left knee range of motion from zero degrees to 110 degrees and right knee range of motion from zero degrees to 120 degrees. She also reported objective evidence of bilateral pain on motion, crepitus, and guarding. She denied additional loss of range of motion on 3 repetitions of testing and the presence of instability, grinding, and patellar or meniscus abnormality. She found knee x-rays showed bilateral DJD, but not effusion. The examiner concluded that the Veteran’s knee conditions result in moderate effects on activities of daily living, exercise, shopping, chores, recreation, and driving. The Veteran’s VA treatment records show that, on June 29, 2011, he initially reported using knee braces due to bilateral knee instability. The Veteran was referred for knee braces with external stabilizers. In January 2013, the Veteran submitted a private treatment record from December 2012. The Veteran reported experiencing bilateral knee pain and that his legs give out on him at times. The private physician reported full left knee extension, but also stated full extension on the left is “-5” degrees. He also reported right knee extension to approximately 5 to 10 degrees. He further reported pain and crepitus on flexion and extension. The physician recommended left knee replacement, but the Veteran declined. He prescribed injections and physical therapy. The Veteran underwent another VA knee examination in August 2015. The Veteran reported being unable to walk or stand for long due to knee pain and experiencing flareups. The examiner reported left knee range of motion from zero degrees to 30 degrees and right knee range of motion from zero degrees to 50 degrees with bilateral pain on flexion causing functional loss. The examiner also reported bilateral objective evidence of pain with weight-bearing, interference with standing, and crepitus. The examiner found that it is not possible to estimate range of motion over time or during flareups based on subjective data without resorting to mere speculation. The examiner further reported occasional use of knee braces and a cane and moderate bilateral instability, with testing showing moderate instability on left knee anterior and lateral testing, but no instability on right knee testing or on left knee posterior and medial testing. The examiner denied additional loss of range of motion on 3 repetitions of testing, loss of muscle strength, atrophy, ankylosis, meniscus conditions, and a history of surgical procedures. The examiner concluded that the knee conditions limit the Veteran to sedentary work. The Veteran was again afforded a VA knee examination in October 2017. He reported functional impairment of trouble standing, walking, squatting, and climbing as well as flareups of increased pain. The examiner reported left and right knee range of motion from zero degrees to 90 degrees with pain on flexion, pain with weight-bearing, and crepitus. He found that it is not possible to estimate range of motion during flareups because the examination was not conducted during a flareup. He further reported normal bilateral knee stability test results and regular use of a cane. The examiner denied additional loss of range of motion on 3 repetitions of testing, loss of muscle strength, atrophy, ankylosis, meniscus conditions, history of surgical procedures, recurrent effusion, recurrent subluxation, and lateral instability. He concluded that the knee conditions result in limited standing, walking, squatting, and climbing. Pursuant to the Board’s June 2017 remand, the Veteran underwent another knee examination in July 2018. The Veteran reported difficulty walking, climbing stairs, and balancing due to knee weakness and pain. He also reported falling often due to knee symptoms. He further reported experiencing flareups due to climbing stairs or walking 3 to 4 times per week with pain 8 to 10 out of 10 in severity lasting 2 to 4 hours each. The examiner reported left knee range of motion from zero degrees to 100 degrees and right knee range of motion from zero degrees to 120 degrees with bilateral knee pain on flexion, with weight-bearing and nonweight-bearing, and on passive range of motion as well as crepitus. She found that it is not possible to estimate range of motion on repeated use over time or during flareups without resorting to speculation because there is no conceptual or empirical basis for making such a determination without directly observing function under these conditions. The examiner noted constant use of a cane for stability, but also found all knee stability testing normal and denied the presence of recurrent subluxation, lateral instability, and knee instability. She also denied the presence of loss of muscle strength, atrophy, ankylosis, meniscus conditions, and a history of surgical procedures. The examiner noted that the Veteran reported losing 1 to 2 weeks from work over the prior 12 months and found that he is unable to stand or walk more than 50 feet and has handicap tags for special parking due to the knee disabilities. Analysis The Board finds higher ratings for the Veteran’s knee disabilities are not warranted. The Veteran’s left knee disability did not result in flexion limited to 30 degrees or less prior to January 25, 2005, or flexion limited to 15 degrees or less or extension limited to 10 degrees or more at any time during the appeal period. See 38 C.F.R. § 4.71a, DCs 5260, 5261. In addition, his right knee disability has not resulted in flexion limited to 30 degrees or less or extension limited to 10 degrees or more at any time during the appeal period. Id. Furthermore, the August 2015 and July 2018 examiners explained that estimation of ranges of motions during flareups cannot be estimated without speculation. The Veteran has reported flareups resulting in increased pain, but has not indicated that they result in decreased range of motion indicative of separate or higher ratings for either knee. Thus, a left knee initial rating in excess of 10 percent prior to January 25, 2005, in excess of 20 percent thereafter, or an initial right knee rating in excess of 10 percent is not warranted as the currently assigned ratings already contemplate his symptoms of painful motion, limitation of motion, weakness, and crepitus and resultant functional loss. See 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DCs 5003, 5260; DeLuca, 8 Vet. App. at 202. The Board also finds that higher ratings are not warranted for knee instability. In this regard, the April 2010 examiner denied the presence of knee instability. The Veteran initially reported this symptom during VA treatment on June 29, 2011. See Swain, 27 Vet. App. at 224; DeLisio, 25 Vet. App. at 56. The August 2015 VA examiner denied the presence of recurrent subluxation and reported all knee stability testing normal except for moderate left knee instability on anterior and lateral testing. The October 2017 and July 2018 examiners denied the presence of recurrent subluxation and lateral instability and reported all knee stability testing was normal. The examiners objective findings and testing does not indicate severe instability, unrepaired or failed repair of a ligament tear, or patellar instability. Therefore, the evidence of record does not support a rating in excess of 20 percent or a separate patellar instability rating for the left or right knee under either the pre-February 7, 2021 or post-February 7, 2021 rating criteria. 38 C.F.R. § 4.71a, DC 5257. While the Veteran has reported falling due to his knee disabilities, the Veteran has not shown to have the medical expertise necessary to determine whether his falls are due to knee severe instability as opposed to weakness, fatigability, or other symptoms already compensated by the assigned ratings under DC 5003 and DC 5260. See 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DCs 5003, 5260; DeLuca, 8 Vet. App. at 202. Therefore, greater evidentiary weight is placed on the examiners’ findings in regard to the severity of the bilateral knee instability. See English v. Wilkie, 30 Vet. App. 347 (2018). (Continued on the next page)   In addition, the Board also considered whether the Veteran is entitled to a separate rating under DCs 5258 and 5259 for dislocated or removed cartilage. While the Veteran experiences bilateral crepitus, the evidence of record shows the he has not been treated for or diagnosed with a semilunar cartilage condition in either knee. 38 C.F.R. § 4.71a, DCs 5258, 5259. The preponderance of the evidence shows that the Veteran’s left knee disability has manifested by painful motion, limitation of motion, weakness, and crepitus, but not flexion limited to 30 degrees or less or extension limited to 15 degrees or more prior to January 25, 2005 or flexion limited to 15 degrees or less or extension limited to 10 degrees or more since January 25, 2005. In addition, the preponderance of evidence shows that his right knee disability has manifested by painful motion, limitation of motion, weakness, and crepitus, but not flexion limited to 30 degrees or less or extension limited to 15 degrees or more. Furthermore, his bilateral knee instability is shown to manifest in right and left knee moderate instability, but not severe instability, patellar instability or the need for surgical repair. As there is no reasonable doubt to be resolved, the benefit-of-the-doubt rule is not applicable and higher ratings for the Veteran’s left and right knee disabilities are not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Jimerfield 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.