Citation Nr: 21014456 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 07-18 498 DATE: March 12, 2021 ORDER From February 3, 2006, a separate 10 percent rating for right knee instability under Diagnostic Code 5257 is granted. REMANDED From February 3, 2006, entitlement to a rating greater than 10 percent for right knee osteoarthritis with patellofemoral pain syndrome is remanded. From February 3, 2006, entitlement to a rating greater than 10 percent for right knee instability under Diagnostic Code 5257 is remanded. FINDING OF FACT From February 3, 2006, the Veteran has experienced slight instability in the right knee. CONCLUSION OF LAW From February 3, 2006, the criteria for a 10 percent rating for instability of the right knee under Diagnostic Code 5257 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1983 to September 1983, from January 1992 to May 1992, and from August 2004 to February 2006. This matter comes before the Board of Veterans' appeals (Board) on appeal from an April 2007 rating decision of an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). The undersigned concludes this based upon the Board's prior treatment of this appeal together with the AOJ's processing of it. In February 2018, the Board of Veterans' Appeals (Board) decided eight appellate issues. As relevant here, it denied service connection for a left shoulder disorder, a right shoulder disorder, Achilles tendonitis, right leg, and Achilles tendonitis, left leg. It also denied a rating greater than 10 percent for right knee osteoarthritis with patellofemoral pain syndrome from February 3, 2006. The Veteran appealed the Board's decision for the five above-referenced issues to the United States Court of Appeals for Veterans Claims (Court). In January 2019, the Court granted a Joint Motion for Partial Remand (JMPR). Pursuant to the JMPR, the Court vacated the Board's decision to the extent that it denied the four service connection issues and a rating greater than 10 percent for right knee osteoarthritis with patellofemoral pain syndrome from February 3, 2006. It remanded the matter to the Board for further proceedings consistent with the JMR. In April 2020, the Board remanded the four service connection issues and a rating greater than 10 percent for right knee osteoarthritis with patellofemoral pain syndrome from February 3, 2006 for additional development. The AOJ granted the four service connection issues in rating decisions issued in October 2020 and December 2020, so those issues are no longer on appeal. All that remains is the issue of a rating greater than 10 percent for right knee osteoarthritis with patellofemoral pain syndrome from February 3, 2006. The Veteran testified in February 2015 about the right shoulder disorder before a Veterans Law Judge who is no longer employed at the Board. On February 25, 2020, the Board informed the Veteran that he had the option to have another hearing before a Veterans Law Judge who would participate in any decision made on his appeal. It gave him 30 days to respond. To date, the Veteran has not responded, so the Board assumes the Veteran does not desire a new hearing. Issue: From February 3, 2006, whether entitlement to a separate rating for right knee instability under Diagnostic Code 5257 is warranted Increased Ratings Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted considering the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. 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. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, where the question for consideration is the propriety of the initial disability rating assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). 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. Musculoskeletal Disabilities Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. 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 innervations, or other pathology, or it 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 that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45, see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The factors involved in evaluating, and rating, disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement. 38 C.F.R. § 4.45. As such, the Veteran’s reports of pain have been considered in conjunction with the Board’s review of the limitation of motion diagnostic codes. Instability Instability, as referred to in Diagnostic Code 5257, includes patellar instability due to recurrent patellar subluxation or patellar dislocation, and/or any other instability or laxity of the knee that involves other stabilizing structure of the knee such as the collateral or cruciate ligaments. Subluxation refers to partial or incomplete dislocation of the knee joint (tibiofemoral dislocation/subluxation) or tendency for the patella to dislocate from its track (patellar dislocation/subluxation). Prior to February 7, 2021, a 10 percent disability rating under Diagnostic Code 5257 was assigned for slight recurrent subluxation or lateral instability. A 20 percent disability rating was warranted when there is moderate recurrent subluxation or lateral instability, and a 30 percent disability rating required severe recurrent subluxation or lateral instability. As the Board will be analyzing a time window prior to the revision of Diagnostic Code 5257, it must elucidate the standard imposed. The VA Schedule for Rating Disabilities did not define the words "slight," "moderate," and "severe." Rather than applying a mechanical formula, the Board must evaluate all the evidence so that its decisions are "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of such terminology by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Because Diagnostic Code 5257 did not define the terms used, one possible source for such definitions would be the dictionary. Webster's II New College Dictionary defines "slight," as relevant here, "small in size, degree, or amount." Id. at 1038. The definitions for "moderate" include "of average or medium quantity, quality, or extent." Id. at 704. Finally, definitions for "severe" include "extremely intense." Id. at 1012. Effective February 7, 2021, VA revised the portion of the Schedule for Rating Disabilities that addresses the musculoskeletal system. The amendments divided Diagnostic Code 5257 into two subsections – recurrent subluxation or instability and patellar instability, each with its own criteria. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257). For recurrent subluxation or instability, three ratings are available. A 10 percent rating is warranted for a 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. A 20 percent is warranted under one of two scenarios – 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; or 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. A 30 percent rating is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. For patellar instability, three ratings are available. 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. 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 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. Two Notes accompany the revised Diagnostic Code 5257. First, Note 1 states that for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Second, Note 2 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). Merits To frame the issue, the Board starts with the JMPR, a July 2020 statement, and insight from the Mayo Clinic. First, the JMR notes: As to entitlement to an increased rating for Appellant's right knee disability, the parties note that, during a February 2015 Board hearing, Appellant testified to experiencing instability in his knee. (R. at 1408 (Hearing Transcript, Page 17). The Board discussed the possibility of awarding additional compensation based upon instability, but it found no basis for such an award, because "none of the examinations in the record demonstrated such additional disability." (R. at 31). The Board did not, however, discuss the relative probative value of Appellant’s assertion of knee instability. This omission by the Board renders its statement of reasons or bases inadequate, which error warrants vacatur and remand of the Board’s decision to deny an initial rating in excess of 10% for osteoarthritis of the right knee with patellofemoral syndrome. See English v. Wilkie, 2018 U.S. App. Vet. Claims LEXIS 1464, at *9-10 (November 1, 2018) ("nothing in DC 5257 provides that objective medical evidence is required or is to be favored over lay evidence."). Second, the Veteran, in July 2020, stated "there remains ample evidence of record that demonstrates crepitus and instability while C&P examiners have failed to properly document from previous exams." Third, the Mayo Clinic, at https://newsnetwork.mayoclinic.org/discussion/by-itself-knee-crunching-sound-generally-not-cause-for-concern/, explains: The crunching sound from your knee is crepitus. If you do not have any other symptoms, no specific treatment is necessary for crepitus. If you develop other knee problems, however, you should see a doctor to have your knee evaluated. Crepitus is caused by the rubbing of cartilage on the joint surface or other soft tissues around the knee during joint movement. When knee snapping or catching is painful, that is usually a result of scar tissue, a meniscus tear or a tendon moving over a bony prominence within the knee joint. The patellofemoral joint — where your knee cap meets your thigh bone, or femur — is typically the source of knee crepitus. Cartilage, the smooth, elastic tissue that covers the ends of bones, normally allows the bones to glide easily in the joint. But over time, the cartilage surface may start to lose its smoothness. The crunching you hear likely is due to the cartilage in your knee becoming rough, so the bones cannot slide as easily in the joint as they normally do. Knee crepitus typically happens when the knee is bent, such as when you are squatting, going up or down stairs, or rising from a chair. By itself, crepitus generally is not a cause for concern. Once the cartilage gets rough, though, it may be at risk to begin to wear down, leading to arthritis. VA has characterized the Veteran's right knee disability as "right knee osteoarthritis with patellofemoral pain syndrome." Given the foregoing, the symptoms of crepitus and instability are part of the Veteran's disability. For the period from February 3, 2006, VA examined the Veteran seven times – November 2005, March 2009, March 2014, April 2015, December 2015, October 2016, and October 2020. None of these examiners have diagnosed the Veteran with instability through objective testing. However, the Veteran has reported crepitus and instability periodically through the appeal period to both the VA examiners and to his treating medical professionals at the Veterans Health Administration (VHA). For example, he mentioned "popping" in his 2005 VA examination, cited crepitus and instability in his 2009 VA examination, and testified to instability in February 2015 before a now-retired Veterans Law Judge. VHA also fitted him with a "right open patella knee brace" in December 2011 because of his knee pain. In a November 2020 statement, the Veteran’s spouse stated the experiences crepitus on a daily basis. Mindful of English v. Wilkie, the JMR, and the Veteran's competent, credible reports of the manifestations of his knee disability, the Board finds the Veteran has experienced instability from February 3, 2006. For purposes of measuring the severity of the instability for from February 3, 2006, the Board finds that it manifested at the "slight" level under the pre-February 7, 2021 revision of Diagnostic Code 5257. That is, when balancing the Veteran's reports of instability against the lack of objective findings of instability at his VA examinations, the Board finds that the instability manifested as "small in size, degree, or amount." Absent these objective findings – which are specifically tailored to identify instability – the Board finds the instability does not approach the "moderate" level, i.e., "of average or medium quantity, quality, or extent." For the period from February 7, 2021, the Board is also required to consider the instability under the revised Diagnostic Code 5257. However, because the Board is remanding the appeal, as described below, additional medical inquiry is required before it can adjudicate this issue. REASONS FOR REMAND Remand is warranted for two reasons. First, remand is necessary to obtain outstanding treatment records. Specifically, in Reports of General Information dated December 29, 2020 and January 8, 2021, the Veteran notified VA that he had MRI results and treatment at the VA Medical Center in Murfreesboro, Tennessee, respectively, that bear on his appeal. To date, VA has not received the MRI results, and the Board notes his VA treatment records from this facility are current as of July 2020. Second, the Board needs an addendum opinion to the October 2020 VA examination to determine whether the revisions to Diagnostic Code 5257 permit an increased rating for instability. The matters are REMANDED for the following action: 1. Attempt to obtain the MRI that the Veteran discussed in his December 29, 2020 Report of General Information. 2. Attempt to obtain the Veteran's treatment records from the VA Medical Center in Murfreesboro, TN from July 1, 2020 to present that the Veteran discussed in his January 8, 2021 Report of General Information. 3. Obtain an addendum opinion from the medical professional who examined the Veteran in October 2020 for his right knee. The examiner is advised that the Board has granted the Veteran a separate rating for instability in his right knee. The examiner MUST accept this finding and has NO discretion to change it. That said, the Board must evaluate the severity of the Veteran's instability based on Diagnostic Code 5257, which VA amended effective February 7, 2021. The amendments divided Diagnostic Code 5257 into two subsections – recurrent subluxation or instability and patellar instability, each with its own criteria. For recurrent subluxation or instability, three ratings are available. A 10 percent rating is warranted for a 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. A 20 percent is warranted under one of two scenarios – 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, or 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. A 30 percent rating is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. For patellar instability, three ratings are available. 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. 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 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. Two Notes accompany the revised Diagnostic Code 5257. First, Note 1 states that for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Second, Note 2 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). a) With that as background, is the Veteran's instability of the right knee most appropriately characterized as i) recurrent subluxation or instability, or ii) patellar instability? For whichever option is selected, explain why you selected it over the other option. b) If recurrent subluxation or instability is selected, which of the three levels of severity (10, 20, or 30 percent) most closely approximates the degree of instability? Why? c) If patellar instability is selected, which of the three levels of severity (10, 20, or 30 percent) most closely approximates the degree of instability? Why? The examiner is specifically requested to answer whether the Veteran requires the use of an assistive device (such as a brace, cane, or walker) prescribed by a medical provider. The examiner’s attention is directed to a December 2011 Orthotics Prosthetics Note indicating the Veteran had been provided a right-hinged knee brace. The examiner must provide a comprehensive report including complete rationales for all conclusions reached. Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Sopko, 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.