Citation Nr: 21013028 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 14-27 538 DATE: March 8, 2021 ORDER Entitlement to an initial disability evaluation in excess of 10 percent for a right knee disability prior to February 24, 2020, is denied. Entitlement to an increased disability evaluation in excess of 20 percent for a right knee disability from February 24, 2020, is denied. FINDINGS OF FACT 1. Prior to February 24, 2020, the Veteran’s right knee disability was manifested by a past history of a medial collateral ligament sprain with surgical arthroscopy, painful range of motion, with flexion to greater than 60 degrees, extension to less than 10 degrees, and without impairment of the tibia and fibula, ankylosis, recurrent subluxation or instability, meniscal involvement, impairment of the tibia and fibula, genu recurvatum or any incapacitating episodes. 2. From February 24, 2020, the Veteran’s right knee disability is manifested by a past history of a medial collateral ligament sprain with surgical arthroscopy, painful range of motion with extension limited to 15 degrees, but no less, with flexion to greater than 60 degrees, and without impairment of the tibia and fibula, ankylosis, recurrent subluxation or instability, meniscal involvement, impairment of the tibia and fibula, genu recurvatum or any incapacitating episodes. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial disability evaluation in excess of 10 percent for a right knee disability prior to February 24, 2020, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5260. 2. The criteria for entitlement to a disability evaluation in excess of 20 percent for a right knee disability from February 24, 2020, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5261. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1990 to October 1995. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision issued by a VA Regional Office (RO) where service connection was initially granted and the Veteran was assigned a 0 percent initial rating for his right knee, effective September 25, 2012, the date of the Veteran’s claim. Thereafter, in a May 2014 rating decision, the RO granted an increased initial rating to 10 percent under DC 5260 for the right knee disability, effective September 25, 2012. In an April 2020 rating decision, the RO granted an increased rating to 20 percent for the right knee disability under DC 5261, effective February 24, 2020. These increased ratings throughout the pendency of the appeal merely constitute partial grants of the benefit sought on appeal; therefore, the issue remains on appeal and is for consideration by the Board. See AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original or an increased rating remains in controversy when less than the maximum available benefit is awarded). The matter was previously before the Board in June 2018 at which time it was remanded for further development. Substantial compliance with the remand has been accomplished and the Board may proceed to consider the matter. See Stegall v. West, 11 Vet. App. 268 (1998). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion 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 Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 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 the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Whether the issue is one of an initial rating or an increased rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; separate ratings may be assigned for distinct disabilities resulting from the same injury only where the symptomatology for one condition is not duplicative or overlapping with the symptomatology of the other condition. See 38 C.F.R. § 4.14; see also Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of his symptoms. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). The Court, in Correia v. McDonald, 28 Vet. App. 158 (2016), held that the final sentence of 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. Thus, the Court’s holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate. Further, in evaluating joint disabilities, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court clarified that 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); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. at 592. Additionally, the Court has stated that flare-ups must be factored into an examiner’s assessment of functional loss. Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating 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. In a July 2013 rating decision, the Veteran was granted service connection for a right knee disability with an initial non-compensable evaluation effective September 25, 2012, the date the current claim was received by VA. In a May 2014 Statement of the Case (SOC) and an accompanying rating decision, the AOJ granted entitlement to an initial 10 percent evaluation based upon non-compensable painful motion, also effective September 25, 2012. See 38 C.F.R. § 4.59. In an April 2020 Supplemental SOC (SSOC) and accompanying rating decision, the AOJ increased this evaluation to 20 percent disabling based on limitation of extension, effective February 24, 2020. 38 C.F.R. § 4.71a, DC 5261. 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 after 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. 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 AOJ. 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. Under the pre-amended criteria, degenerative arthritis as shown by x-ray studies is rated based on limitation of motion of the affected joint. 38 C.F.R. § 4.71a, DC 5003. When, however, the limitation of motion is noncompensable under the appropriate diagnostic code, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion. A rating of 20 percent may be applied where there are occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, DC 5003. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. Under DC 5260, flexion of the leg limited to 60 degrees is rated non-compensable (0 percent) disabling; flexion of the leg limited to 45 degrees is rated 10 percent disabling; flexion of the leg limited to 30 degrees is rated 20 percent disabling; and flexion of the leg limited to 15 degrees is rated 30 percent disabling. Also relevant to any discussion of knee disabilities are the criteria under Diagnostic Codes 5256 through 5263. 38 C.F.R. § 4.71a. Under DC 5256, favorable ankylosis of the knee, in full extension or in slight flexion between 0 degrees and 10 degrees warrants a 30 percent disability rating; ankylosis in flexion between 10 degrees and 20 degrees warrants a 40 percent disability rating; ankylosis in flexion between 20 degrees and 45 degrees warrants a 50 percent disability rating; and extremely unfavorable ankylosis in flexion at an angle of 45 degrees or more warrants a 60 percent disability rating. Under DC 5257, slight recurrent subluxation or lateral instability will be rated as 10 percent disabling, moderate recurrent subluxation or lateral instability will be rated as 20 percent disabling, and severe recurrent subluxation or lateral instability warrants a 30 percent rating. Under DC 5258, a claimant is entitled to a 20 percent rating for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint. Under DC 5259, a 10 percent evaluation is assigned for symptomatic removal of semilunar cartilage. Under DC 5261, extension of the leg limited to 5 degrees is rated non-compensable (0 percent disabling); extension of the leg limited to 10 degrees is rated 10 percent disabling; extension of the leg limited to 15 degrees is rated 20 percent disabling; extension of the leg limited to 20 degrees is rated 30 percent disabling; extension of the leg limited to 30 degrees is rated 40 percent disabling; and extension of the leg limited to 45 degrees is rated 50 percent disabling. Under DC 5262, a 10 percent rating is warranted for malunion of the tibia and fibula with slight knee or ankle disability. A 20 percent rating is warranted for malunion of the tibia and fibula with moderate knee or ankle disability. A 30 percent rating is warranted for malunion of the tibia and fibula with marked knee or ankle disability. A maximum 40 percent rating is warranted with nonunion of the tibia and fibula, with loose motion, requiring a brace. Under DC 5263, a 10 percent rating is warranted for genu recurvatum (acquired, traumatic, with weakness and insecurity in weight-bearing objectively demonstrated). Effective February 7, 2021, 38 C.F.R. § 4.71a, DC 5257 was amended to provide ratings for recurrent subluxation or lateral instability. A 30 percent rating is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability and a medical provider prescribing both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. A 20 percent rating is warranted for either (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribing a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation; or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribing either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 10 percent rating is warranted 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(s), crutch(es), walker) or bracing for ambulation. DC 5257 also provides for ratings based on patellar instability. A 30 percent rating 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. A 20 percent rating 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 one of the following: a brace, cane, or walker. A 10 percent rating is warranted 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. Note [1] to DC 5257 states that for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note [2] to DC 5257 states that 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. Also, effective February 7, 2021, DC 5262 is amended to provide for a 40 percent rating for nonunion of the tibia and fibula, with loose motion, requiring brace. Malunion of the tibia and fibula are to be evaluated under diagnostic codes 5256, 5257, 5260, or 5261 for the knee or 5270 or 5271 for the ankle, whichever results in the highest evaluation. Separate ratings are also provided for medial tibial stress syndrome (MTSS) or shin splints. Normal ranges of motion of the knee are to 0 degrees in extension, and to 140 degrees in flexion. 38 C.F.R. § 4.71, Plate II. In April 2013, the Veteran was scheduled for a VA examination, but failed to report. VA then scheduled him for another examination in furtherance of its duty to assist Veteran’s in substantiating their claim. In May 2014, the Veteran was afforded a VA examination. At this time, VA examination resulted in assessment of a medial collateral ligament (MCL) sprain, with degenerative joint disease (DJD) documented on x-ray. The Veteran then reported daily pain and stiffness, with a baseline pain of 5/10, characterized as aching and throbbing. He described flare-ups, precipitated by prolonged standing, occurring at least once per day and lasting 30 minutes with 8-9/10 levels of pain. He reported relief with stretching and wore a soft knee sleeve on the right knee while working. Flexion of the right knee was to 140 degrees, with objective evidence of pain at that point. Right knee extension was full to 0 degrees, with no objective evidence of painful motion. Goniometric measurements of the left knee were equivalent, but the left knee did not exhibit any pain or functional loss. There was no additional loss of motion following repetitive use bilaterally. Muscle strength was 5/5 bilaterally in the knees. Each knee joint was normal on stability testing and neither knee exhibited recurrent patellar subluxation/dislocation, including by history. The Veteran had a normal gait and was able to heel/toe and tandem walk. The examiner found that the right knee disability did not impact the Veteran’s ability to work. On February 24, 2020, the Veteran was once again afforded a VA examination. At this time, the Veteran reported chronic right knee pain, varying in severity from 3-9/10. He took Motrin daily, and was on his feet working 16 hours a day, with resultant swelling of the knee. He described flare-ups resulting in 9/10 pain. With respect to repeated use over time, the Veteran described that sitting, standing, squatting or climbing stairs for extended periods caused his right knee pain to increase. Flexion of the right knee was to 95 degrees. Extension of the right knee was to 10 degrees. Pain was noted at each of these points, although the range of motion did not contribute to a functional loss. Examination showed objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue on the medial and lateral joint line, as well as the medial, inferior and lateral patella. There was evidence of pain on weight bearing, but no objective evidence of crepitus. With respect to the left knee, flexion was to 120 degrees, extension was full to 0 degrees, with no pain or functional loss. For the left knee, there was no objective evidence of localized tenderness or pain on palpation. There was also no pain with weight bearing and no objective evidence crepitus in the left knee. Bilaterally, there was no additional loss of motion following repetitive use. With respect to repeated use over a period of time, the examiner concluded that flexion was limited to 85 degrees and extension was limited to 15 degrees on the right knee. There was no additional loss of range of motion on the left knee in this regard. In terms of additional functional loss during a flare-up, the examiner found the Veteran’s statements to be neither medically consistent nor inconsistent. The examiner described range of motion in the right knee during flare-ups as resulting in flexion further limited to 85 degrees and extension limited to 15 degrees. There were no flare-ups on the left. Muscle strength was 5/5 bilaterally, with no atrophy. Joint stability tests were normal in both knees. The Veteran reported daily swelling in the right knee, i.e. recurrent effusion. There was no ankylosis, meniscal involvement or knee replacement. The Veteran continued to wear a soft knee sleeve. The Veteran reported difficulty with prolonged standing, sitting, walking, squatting and climbing stars, which resulted in increased knee pain. Passive and active range of motion were equal. There was objective evidence of pain in weight bearing on the right, but not the left, which was considered in the overall evaluation of functional impairment. 1. Entitlement to an initial disability evaluation in excess of 10 percent for a right knee disability prior to February 24, 2020 is denied. Prior to February 24, 2020, the Veteran’s right knee disability was evaluated 10 percent disabling under 38 C.F.R. § 4.71a, DC 5260. The February 2021 amendments are not for consideration because they were not yet in effect. Prior to February 24, 2020, an evaluation in excess of 10 percent is not warranted. Prior to this date, flexion was not limited to 30 degrees or less, including with consideration of repetitive use over time or flare-ups. On objective examination in May 2014, flexion was full to 140 degrees, albeit with pain on motion with x-ray evidence of arthritis warranting the 10 percent evaluation. 38 C.F.R. § 4.59. Moreover, there were no incapacitating episodes warranting a 20 percent evaluation under DC 5003. 38 C.F.R. § 4.71a. Thus, an evaluation in excess of 10 percent is not warranted prior to February 24, 2020. During the period prior to February 24, 2020, the Board has also considered rating the right knee disability under additional or alternative diagnostic codes pertaining to the knees. However, there has never been ankylosis or its equivalent, warranting consideration under DC 5256. No meniscal conditions have ever existed, with normal meniscal findings on VA examinations and, therefore, DC 5258 and DC 5259 are not applicable. Flexion has never been limited to 5 degrees or less under DC 5261. There is no competent evidence of malunion or nonunion of the tibia and fibula or genu recurvatum to warrant consideration DC 5262 and DC 5263. 38 C.F.R. § 4.71a. The Board has considered whether an additional rating is warranted under the pre-amended criteria of DC 5257 but finds that an additional rating is not merited. While the Veteran uses a soft knee brace, there is no objective evidence of instability in the right knee. Stability tests were normal during the VA examinations. Moreover, there does not appear to be functional instability based on the medical evidence of record. Functional instability is the “inability of a joint to maintain support during use.” See Dorland’s Illustrated Medical Dictionary 958 (31st ed. 2007). As noted above, clinical testing did not indicate that the right knee joint could not maintain support such that instability was found. As such, lateral instability for purposes of rating under pre-amended DC 5257 has not been demonstrated during the appeal period. Nor was there any evidence of recurrent subluxation throughout the appeal period. As such, under the pre-amended criteria of DC 5257, an additional rating is not warranted. Accordingly, the right knee disability is most appropriately at 10 percent disabling based upon non-compensable painful range of motion. No additional ratings are indicated prior to February 24, 2020. The Board recognizes the Veteran’s belief that his right knee disability merits a higher rating. However, an application of the relevant diagnostic codes and consideration of the DeLuca factors indicates that a higher evaluation is not warranted based on the evidence of record. 2. Entitlement to an initial disability evaluation in excess of 20 percent for a right knee disability from February 24, 2020, is denied. Following the Veteran’s May 2014 VA examination, the earliest evidence pertaining to the severity of the service-connected disability is the February 24, 2020, VA examination report. Indeed, this is the only evidence in the claims file pertaining to the right knee from February 24, 2020, and, therefore, only the pre-amended diagnostic criteria apply. Based upon the results of this examination, the AOJ increased the evaluation of the Veteran’s service-connected right knee disability to 20 percent disabling effective the date of the examination. The AOJ based this award on a finding of limitation of extension to 15 to 19 degrees, but no more, i.e. 20 degrees or greater. Because the Veteran’s right knee has been evaluated based upon compensable limitation of motion from February 24, 2020, the provisions of DC 5003 are inapplicable. In order to substantiate an evaluation in excess of 20 percent under DC 5261, the evidence must, at least to equipoise, indicate limitation of extension to 20 degrees or more in the right knee. At worst, extension is limited to 15 degrees, with consideration of flare-ups and repetitive use over time. Thus, an evaluation of 20 percent or more is not warranted for limitation of extension. 38 C.F.R. § 4.71a, DC 5261. With respect to DC 5261, while a separate evaluation would be warranted, there is no indication that flexion has been limited to 45 degrees or more. At worst, flexion was limited to 85 degrees. In passing, the Board notes that VA cannot award a separate 10 percent evaluation for non-compensable limitation of extension with evidence DJD on x-ray. Thus, from September 24, 2020, if the Board were to consider a separate evaluation under DC 5003, the Veteran could be compensated twice for non-compensable painful limitation of motion. He has compensable limitation of motion. The evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. The Board has considered whether rating the knee disability under additional or alternative diagnostic codes pertaining to the knees would be more appropriate or advantageous to the Veteran. However, rating either disability under DC 5256 is not indicated as there is no evidence of ankylosis. Further, the Veteran does not have any meniscal conditions warranting rating under DC 5258 or DC 5259. There is no malunion or nonunion of the tibia and fibula and no genu recurvatum indicating rating under DC 5262 and DC 5263. The Board has considered whether an additional rating is warranted under the pre-amended criteria of DC 5257 but finds that an additional rating is not merited. While the Veteran uses a soft knee brace, there is no objective evidence of instability in the right knee. Stability tests were normal during his VA examinations, and there is no functional instability based on the medical evidence of record. Functional instability is the “inability of a joint to maintain support during use.” See Dorland’s Illustrated Medical Dictionary 958 (31st ed. 2007). As noted above, clinical testing has never indicated that the right knee could not maintain support to the extent that the joint showed instability. Lateral instability for purposes of rating under pre-amended DC 5257 has not been shown during the applicable period. There is no evidence of recurrent subluxation as well. As such, under the pre-amended criteria of DC 5257, an additional rating is not warranted. The Board recognizes the Veteran’s belief that his right knee disability merits a higher rating. However, an application of the relevant diagnostic codes and consideration of the DeLuca factors indicates that a higher evaluation is not warranted based on the evidence of record. The Veteran’s right knee disability is properly rated under DC 5261, for compensable limitation of flexion warranting a 20 percent evaluation. No other diagnostic code can provide for a higher evaluation. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Joseph R. Keselyak, 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.