Citation Nr: 21014090 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 10-38 492 DATE: March 11, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for left knee degenerative joint disease (DJD) on the basis of painful motion is denied. Entitlement to a disability rating in excess of 20 percent for left knee instability is denied. Entitlement to a disability rating in excess of 10 percent for right knee DJD on the basis of painful motion is denied. Entitlement to a disability rating in excess of 20 percent for right knee instability is denied. Entitlement to a separate 20 percent rating for a right knee meniscal tear from April 4, 2020, is granted. FINDINGS OF FACT 1. The Veteran’s left knee disability manifested in, at worse, flexion to 70 degrees and extension to 5 degrees with no more than moderate instability; the evidence does not reflect a complete ligament tear or patellar instability. 2. The Veteran’s right knee disability manifested in, at worse, flexion to 70 degrees and extension to 5 degrees with no more than moderate instability; the evidence does not reflect a complete ligament tear or patellar instability. 3. From April 4, 2020, the Veteran’s right knee meniscal tear has manifested in frequent episodes of locking, pain, and effusion. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 10 percent for left knee DJD on the basis of painful motion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5010-5261. 2. The criteria for entitlement to a disability 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 5010-5257 (2020). 3. The criteria for entitlement to a disability rating in excess of 10 percent for right knee DJD on the basis of painful motion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5010-5261. 4. The criteria for entitlement to a disability rating in excess of 20 percent for right 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 5010-5257 (2020). 5. The criteria for entitlement to a separate 20 percent disability rating for a right knee meniscal tear have been met from April 4, 2020. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5258. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1979 to August 2001. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a June 2008 rating decision by a Department of Veterans Affairs (VA) regional office. In November 2018, the Board denied entitlement to a disability rating in excess of 10 percent for left knee DJD on the basis of painful motion, and entitlement to ratings in excess of 10 percent for right knee DJD on the basis of painful motion and instability. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In September 2019, the Court granted a Joint Motion for Remand (JMR) in which the parties agreed to vacate the Board’s decision and remand the matters to the Board for further action. In February 2020, the Board remanded the matters to the agency of original jurisdiction (AOJ) in order to ensure compliance with the JMR. In October 2020, the AOJ granted an increased rating of 20 percent for right knee instability and granted service connection for left knee instability and assigned a 20 percent disability rating. However, because the increased disability ratings assigned are not the maximum ratings available, the claims remain in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability ratings are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Different ratings may be assigned for different periods of time for the same disorder if the facts show distinct time periods with different levels of disability. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to 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 v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself 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.”). This appeal stems from a claim dated in January 2008. During the period on appeal, both knees have been assigned two separate disability ratings. In that regard, each knee is rated 10 percent disabling for painful motion under Diagnostic Code 5010-5261, and 20 percent disabling for instability under Diagnostic Code 5010-5257. 38 C.F.R. § 4.71a. Separate ratings can be assigned for knee disabilities when none of the symptomatology overlaps and the separate rating is based on additional disabling symptomatology; this includes separate ratings based on limitation of flexion (Diagnostic Code 5260), limitation of extension (Diagnostic Code 5261), instability and recurrent subluxation (Diagnostic Code 5257), and meniscal conditions (Diagnostic Codes 5258, 5259). See VAOPGCPREC 23-97, 62 Fed. Reg. 63,603 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,703 (1998); VAOPGCPREC 9-2004; 69 Fed. Reg. 59,988 (2004); Lyles v. Shulkin, 29 Vet. App. 107 (2017). The normal range of motion of the knee is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. Limitation of flexion warrants 10, 20, and 30 percent ratings when limitation is to 45 degrees, 30 degrees, and 15 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Limitation of extension warrants 10, 20, 30, 40, and 50 percent ratings when limitation is to 10 degrees, 15 degrees, 20 degrees, 30 degrees, and 45 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5261. A 10 percent rating can also be assigned for the knee joint if there is painful motion without compensable limitation of motion. 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5003; see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that the applicability of 38 C.F.R. § 4.59 is not limited to arthritis claims). Ratings can be assigned when a knee disability affects the meniscus, with a 20 percent rating for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint and a 10 percent rating for removal of semilunar cartilage (e.g., meniscectomy) and current residual symptoms. 38 C.F.R. § 4.71a, Diagnostic Codes 5258, 5259. Ratings can be assigned for impairment of the tibia or fibula, genu recurvatum, or ankylosis of the knee. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5262, 5263. Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). Ankylosis is also defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 93 (30th ed. 2003). In this case the evidence does not reflect and the Veteran does not allege that he has tibia or fibula impairment, genu recurvatum, or ankylosis of the knee. As such, those diagnostic codes are not for application. Ratings can be assigned for knee instability or subluxation under Diagnostic Code 5257. 38 C.F.R. § 4.71a. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a, including Diagnostic Code 5257, were amended effective February 7, 2021. 85 Fed. Reg. 76453 (Nov. 30, 2020). Prior to February 7, 2021, the Board will consider the old version of the diagnostic code only; however, for the period beginning February 7, 2021, the Board will consider both the old and amended version of the diagnostic code and rate based on whichever is most favorable to the Veteran. Prior to the regulatory change, recurrent subluxation and lateral instability of the knee warranted a 10, 20, or 30 percent rating if slight, moderate, or severe, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2020). “Slight,” as relevant to a physical condition, is defined as “small of its kind or in amount.” Merriam-Webster’s Dictionary (merriam-webster.com/dictionary, accessed February 8, 2021). It is similar to “mild,” which is defined as “not severe” or temperate; with “Temperate” being defined as “keeping or held within limits” and “not extreme or excessive.” “Moderate” is defined as “tending toward the mean or average amount,” “not violent, severe, or intense,” and “limited in scope or effect.” Id. “Severe” is defined as “very painful or harmful” or “of a great degree.” Id. Within the context of the old version of Diagnostic Code 5257, which established a successive, tiered rating structure, “severe” represented the highest or most extreme level of disability. As of February 7, 2021, Diagnostic Code 5257 contains two sections for rating other impairment of the knee. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The first is for recurrent subluxation or instability. The second is for patellar instability. Regarding recurrent subluxation and instability, a compensable rating requires persistent instability. Id.; see also 38 C.F.R. § 4.31. “Persistent” is defined as “continuing or inclined to persist in a course” with “continuing” defined as “constant” and “persist” defined as “to continue to exist.” Merriam-Webster’s Dictionary (merriam-webster.com/dictionary, accessed February 8, 2021). Under these criteria, a 30 percent rating is assigned with unrepaired or failed repair of complete ligament tear which causes persistent instability and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. A 20 percent rating is assigned with either (a) Sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device for ambulation, or (b) Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device or bracing for ambulation. 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 or bracing for ambulation. Regarding 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 warrants a 30 percent rating, which is the highest allowable rating for 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, cane, or walker warrants a 20 percent rating. 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 warrants a 10 percent rating. The patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. 38 C.F.R. § 4.71a, Diagnostic Code 5257, Note (1). 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). Id., Note (2). Range of motion testing was performed during VA examinations in February 2008, September 2016, October 2017, and April 2020, and was at worst 80 degrees of flexion and 0 degrees of extension. At the examinations, the Veteran was asked about pain, flare-ups, and functional limitations, and relevant testing was performed by the examiners, to include testing for pain and testing to reveal any additional functional limitations in certain circumstances, such as after repetitive use. At the April 2020 examination, the Veteran reported flare-ups consisting of swelling and popping with increased sharp pain. He stated that the flare-ups occurred three to four times per week and lasted up to 24 hours. At the February 2008, September 2016, and October 2017 examinations, the Veteran denied flare-ups of the disabilities. While given the opportunity to describe functional limitation related to the disabilities, the Veteran’s statements do not show the requisite limitation of motion necessary for higher or separate ratings. Notably, the examiner in April 2020 estimated range of motion during flare-up and after repetitive use over time would be at worst 70 degrees of flexion and 5 degrees of extension for the entire period on appeal; that is, the Veteran would lose 5 to 10 degrees of flexion and no more than 5 degrees of extension. Treatment records do not show greater limitation of motion than the examination findings. Given the above, a higher or separate rating is not warranted based on limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5260, 5261. Regarding instability and subluxation of the knee, throughout the period on appeal the Veteran has stated that his knees feel unstable and give way and that he has to be cautious when getting out of bed or a chair. Notably, there are specific medical tests that are designed to reveal instability of the joints. These tests were administered by medical professionals in this case in September 2016 and October 2017 and the testing revealed no instability. In April 2020, the Veteran was unable to perform the testing due to pain, but the examiner opined that the Veteran’s knee disabilities manifested in moderate instability. Given the tests performed are generally recognized in the medical community as diagnostic for instability, the results are afforded high probative value. In addition, the examination findings are given more probative weight than the Veteran’s lay statements when it comes to determining the level of severity. The examiner was aware of the Veteran’s reports of instability and interviewed and examined the Veteran when making the determination that the instability was moderate. The medical opinion was a fully informed one made based on examination of the Veteran and consideration of his statements. The findings of the April 2020 VA examiner represent the most probative evidence on this point. Regarding the version of Diagnostic Code 5257 in effect prior to February 7, 2021, a higher rating of 30 percent is not warranted as the evidence is against a finding of the presence of severe lateral instability or recurrent subluxation. Regarding the version of Diagnostic Code 5257 in effect since February 7, 2021, a higher rating for recurrent subluxation or instability is not warranted because the evidence is against a finding that the Veteran’s instability is attributable to a complete ligament tear, as is required for a higher 30 percent rating. In that regard, the Veteran is currently service connected for DJD, and the record reflects that his knee disabilities began as tendinosis and Sinding-Larsen-Johansson Syndrome, not a ligament tear. A higher rating is not warranted for patellar instability either. While the evidence reflects that the Veteran underwent a debridement of the patellar tendon, it does not demonstrate that he has patellar instability. Furthermore, while the Veteran uses a brace and a cane, it appears that the cane was prescribed as a result of his service-connected back disability and left lower extremity radiculopathy rather than his knee disabilities. Accordingly, a higher, 30 percent disability rating is not warranted for either knee under either the old or new rating criteria for instability. Finally, the Board finds that a separate 20 percent rating for a right knee meniscal tear is warranted from April 4, 2020, as the evidence demonstrates a tear with frequent episodes of locking, pain, and effusion of the joint from that date. The meniscal tear has been present throughout the period on appeal, but frequent episodes of locking, pain, and effusion were not noted on examination or in medical records prior to April 4, 2020. In that regard, while the Veteran reported episodes of locking prior to that date, examiners made specific negative findings regarding frequent episodes of effusion. As such, a compensable rating for a right knee meniscal tear is not warranted prior to April 4, 2020; a 20 percent rating is the highest available for a meniscal condition. 38 C.F.R. § 4.71a. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. D. Bruce, 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.