Citation Nr: 21016243 Decision Date: 03/22/21 Archive Date: 03/22/21 DOCKET NO. 11-10 549 DATE: March 22, 2021 ORDER A higher 20 percent rating, though no greater, is granted for right knee instability. Entitlement to a rating in excess of 10 percent for degenerative joint disease (i.e., arthritis) of the right knee, however, is denied. FINDINGS OF FACT 1. The Veteran has had a complete ligament tear of his right knee surgically repaired, but he still has persistent instability in this knee requiring use of a knee brace, though not a knee brace and an assistive device (e.g., cane, crutches, or walker). 2. The degenerative joint disease (arthritis) of his right knee, at most, limits the extension of this knee to 10 degrees and flexion to 75 degrees.   CONCLUSIONS OF LAW 1. The criteria are met for entitlement to a higher 20 percent rating, though no greater, for the right knee instability. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5257. 2. But the criteria are not met for entitlement to a rating higher than 10 percent for the degenerative joint disease (arthritis) of the right knee. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DCs 5003, 5010, 5260, 5261. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1991 to September 1993. This appeal to the Board of Veterans’ Appeals (Board) originated from a July 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In support of his claim for a higher rating for his right knee arthritis, the Veteran testified at a hearing at the RO in June 2013 before the undersigned Veterans Law Judge (VLJ) of the Board, i.e., at a Travel Board hearing. A transcript of the hearing is of record. The Board remanded this claim back to the RO (Agency of Original Jurisdiction (AOJ)) in September 2014 for further development and consideration – including to obtain outstanding VA treatment records relevant to this claim and then to have the Veteran reexamined to reassess the severity of his right knee disability, all components of it. This reassessment therefore would include determining whether he had instability of his right knee that, in turn, would entitle him to additional compensation, meaning a separate rating apart from the existing rating for the arthritis of this knee and consequent limitation of motion, whether on flexion, extension or both. See VAOPGCPREC 23-97 (July 1, 1997; revised July 24, 1997); VAOPGCPREC 9-98 (August 14, 1998). As well, the reassessment would allow for determining whether he also was deserving of additional compensation, again, meaning a still additional (i.e., separate) rating, under the meniscal codes – such as owing to dislocated semilunar cartilage resulting in frequent episodes of locking, pain, and effusion into the knee joint. See Lyles v. Shulkin, 29 Vet. App. 107 (2017). After considering the results of the VA examination, on remand, and other relevant evidence, a December 2014 ruling of a Decision Review Officer (DRO) at the RO granted service connection and a separate 10 percent rating for right knee instability retroactively effective from May 17, 2012. The Veteran continued to appeal for even more compensation for his right knee disability. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (receipt of a higher rating or additional compensation (here, a separate rating) for a service-connected disability does not abrogate a pending appeal unless the Veteran receives the highest possible rating for all periods at issue or expressly indicates that he is content or satisfied with the new rating or extent of additional compensation). The Board again remanded these claims back to the RO (AOJ) in August 2016 – this time, however, to obtain outstanding private and VA treatment records and then to determine whether there had been a material change in the severity of the right knee disability such that yet another VA examination was needed again reassessing the severity of this right knee disability. There also was a still additional Board remand of these claims in January 2018 to address the holdings in more recent precedent cases concerning the conducting of VA compensation examinations – including, notably, in Correia v. McDonald, 28 Vet. App. 158 (2016). A February 2019 Board decision since issued granted a separate 10 percent rating for the right knee instability even prior to May 17, 2012, so as of an earlier effective date (June 21, 2009). However, the Board denied a rating higher than 10 percent for the right knee instability and denied a rating higher than 10 percent for the separately rated right knee degenerative joint disease (arthritis).   The Veteran appealed the Board’s decision to the higher United States Court of Appeals for Veterans Claims (Veterans Court/CAVC). In a December 2019 Order, the Court granted a Joint Motion for Partial Remand (JMPR) filed by the parties, vacating the portion of the Board’s decision that had denied ratings higher than 10 percent for the right knee instability and degenerative joint disease (arthritis) and remanding these claims back to the Board for readjudication pursuant to agreement in the JMPR. Increased Ratings 1. Entitlement to a rating higher than 10 percent for right knee instability 2. Entitlement to a rating higher than 10 percent for degenerative joint disease (DJD), i.e., arthritis of the right knee Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates that rating criteria; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability is resolved in the Veteran’s favor. 38 C.F.R. § 4.3. “Staged” ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal, irrespective of whether an initial or established rating. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999) (initial rating); Hart v. Mansfield, 21 Vet. App. 505 (2007) (established rating).   The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. The Veteran’s right knee instability is rated under DC 5257. The schedular criteria for rating knee instability were amended effective February 7, 2021. See 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, DC 5257). The amendments apply to claims, such as the Veteran’s, which were pending before VA as of that date, with the provision that the more favorable of the old and new criteria are to be applied. If application of the revised regulation results in a higher rating, the effective date for the higher disability rating can be no earlier than the effective date of the change in the regulation. 38 U.S.C. § 5110(g). Prior to the effective date of the change in the regulation, the Board can apply only the original version of the regulation. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) Prior to February 7, 2021, DC 5257 provided a 10 percent rating for “slight” recurrent subluxation or lateral instability of the knee, a 20 percent rating for “moderate” recurrent subluxation or lateral instability of the knee, and a 30 percent rating for “severe” recurrent subluxation or lateral instability of the knee. These descriptive terms “slight”, “moderate”, and “severe” were not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. It should also be noted that use of terminology such as severe by VA examiners and others, although an element 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.   According to the amended version of DC 5257, a 30 percent rating is warranted for recurrent subluxation or instability of the knee when there is unrepaired or failed repair of a 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; a 20 percent rating is warranted when there is (a) a sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation (b) an 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; and a 10 percent rating is warranted for a sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, but without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. The revised DC 5257 also provides for patellar instability with a 30 percent rating 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 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 10 percent rating 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) in this revised DC explains that, for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon, and Note (2) stipulates 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).   The Veteran’s right knee degenerative joint disease (arthritis) is separately rated, in part, under DC 5010 for arthritis due to trauma, i.e., post-traumatic arthritis. DC 5010, in turn, instructs the adjudicator to rate the disability under DC 5003 as degenerative arthritis. And DC 5003, in turn, instructs the adjudicator to rate the arthritis based on the extent it causes limitation of motion of the affected joint, which, here, since the knee, implicates DCs 5260 (for limitation of flexion) and 5261 (for limitation of extension). According to DC 5260, a 0 percent (noncompensable) rating is assigned when flexion of the knee is limited to 60 degrees; a 10 percent rating is assigned when flexion is limited to 45 degrees; a 20 percent rating is assigned when flexion is limited to 30 degrees; and a 30 percent rating is assigned when flexion is limited to 15 degrees. According to DC 5261, a 0 percent (noncompensable) rating is assigned when extension of the knee is limited to 5 degrees; a 10 percent rating is assigned when extension is limited to 10 degrees; a 20 percent rating is assigned when extension is limited to 15 degrees; a 30 percent rating is assigned when extension is limited to 20 degrees; a 40 percent rating is assigned when extension is limited to 30 degrees; and a 50 percent rating is assigned when extension is limited to 45 degrees. The Veteran’s right knee was examined by VA in July 2009. He reported that the condition of his right knee had gotten progressively worse with more pain and less range of motion. He reported always using a knee brace to try and stabilize this knee. The VA examiner observed that the Veteran walked with an antalgic gait with poor propulsion with evidence of abnormal weight bearing and shoe wear patterns. The examiner found crepitus, effusion, and tenderness of the right knee. The Veteran had 100 degrees of flexion of his right knee and full extension to 0 degrees. After repetitive motion, his flexion was limited, instead, to 90 degrees (so was 10 degrees less in this circumstance).   Normal range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion. See 38 C.F.R. § 4.71, Plate II. So, to give those range-of-motion findings some context, even after repetitive-motion testing, the Veteran still had well more right knee flexion – to 90 degrees, than is required for even the most minimum 0 percent rating under DC 5260, requiring flexion limited to no more than 60 degrees. He, therefore, had 30 degrees more flexion than that and, to reiterate, he had normal (full) extension to 0 degrees. The Veteran was next examined in January 2010. He reported that his right knee condition had further deteriorated to the point the he had surgery on his right knee. (But he already consequently was granted a temporary 100 percent convalescent rating for his right knee disability from August 12, 2009 to September 30, 2009, under the provisions of 38 C.F.R. § 4.30 (“Paragraph 30”). Thus, he already has been compensated for that surgery and need to recuperate afterwards.) He reported continued pain and difficulty walking and standing. The examiner did not find any instability of the right knee. The examiner found tenderness, pain at rest, and abnormal motion of the right knee. The Veteran had 80 degrees of flexion and 10 degrees of extension of his right knee. But that extent of limitation of flexion and extension does not entitle him to a rating higher than 10 percent under either DC 5260 or 5261. The Veteran was next examined in October 2014. The examiner diagnosed internal derangement of the right knee. The Veteran reported chronic right knee strain. He also reported using a knee brace daily to support his right knee. He had 100 degrees of flexion of his right knee, with pain beginning at 100 degrees (so at the terminal end poin), and extension to 0 degrees, so full extension. He had no further loss of motion after repetitive use. He had functional loss in that there was less movement than normal, weakened movement, excess fatigability, pain on movement, swelling, disturbance of locomotion, and crepitus. He had some (1+) posterior instability of this knee. The results of that examination also do not show sufficient limitation of motion on either flexion or extension to warrant a rating higher than 10 percent under either DC 5260 or 5261, even when considering his pain and other functional loss. Also, at most, the amount of instability shown (1+) was relatively “slight” according to the former version of DC 5257, thus, at most 10-percent disabling. The Board’s January 2018 remand of these claims was partly to address the precedent intervening holdings in Correia v. McDonald, 28 Vet. App. 158 (2016). And, to this end, the Veteran had another VA examination in June 2018, on remand. But, following the Board’s subsequent partial denial of these claims in February 2019, including based on the results of that June 2018 VA examination, and the Court’s Order on appeal granting the JMPR agreeing that the June 2018 examination was inadequate, the Veteran had a still additional examination in December 2020. The examiner confirmed the diagnoses of medial lateral instability, including posterior instability, of the right knee and of degenerative joint disease (arthritis) of the right knee. The Veteran reported ongoing knee pain that is worsened by prolonged walking and standing. But he still had 75 degrees of flexion of his right knee and 10 degrees of extension of this knee. Hence, he still did not have sufficient limitation of motion of this knee on either flexion or extension to warrant a rating higher than 10 percent under either DC 5260 or 5261, even when, as required, considering the extent of his pain, including on his range of motion. The Veterans Court (CAVC) has held that the evaluation of painful motion as limited motion only applies when limitation of motion is 0-percent disabling (noncompensable) under the applicable DC. See Mitchell v. Shinseki, 25 Vet. App. 32, 42-43 (2011). The Court further explained that, although painful motion is entitled to a minimum 10 percent rating under Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991), when read together with DC 5003 concerning arthritis, it does not follow that the maximum rating is warranted under the applicable DC pertaining to range of motion simply because pain is present throughout the range of motion. See id. Thus, based on the amount of extension limitation shown, at most to 10 degrees, the Veteran is entitled to a 10 percent rating under DC 5261, and he already has this rating, so there is no additional benefit to be had – including because at all times he has had flexion of his right knee to 75 degrees or greater, therefore, not deserving of a higher or separate rating under DC 5260. Moreover, because he does not have flexion of his right knee limited to no more than 60 degrees (i.e., which is required for a 0 percent rating under DC 5260), he cannot receive separate ratings for limitation of flexion and extension. See VAOPGCPREC 9-2004 (2004). That said, when giving him the benefit of the doubt as required by 38 U.S.C. § 5107 in concert with 38 C.F.R. §§ 3.102, 4.3, 4.7, the Board finds that the Veteran is entitled to a higher 20 percent rating for his right knee instability, though no greater rating, based on the recent revisions to DC 5257 that took effect as of February 7, 2021. The Board is predicating this finding on his need for a knee brace for his right knee instability, presumably on medical prescription by a doctor since the Veteran had the surgery to repair the torn ligament. He is not entitled to an even higher 30 percent rating, however, since there is not the required prescription of both a brace and an assistive device (e.g., cane, crutches, walker). KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Baronofsky 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.