Citation Nr: 21021057 Decision Date: 04/09/21 Archive Date: 04/09/21 DOCKET NO. 12-20 516 DATE: April 9, 2021 ORDER Entitlement to an increased evaluation in excess of 10 percent for right knee instability is denied. FINDING OF FACT The Veteran’s right knee instability is not manifested by a sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability. More than slight instability has not been demonstrated. CONCLUSION OF LAW The criteria for an increased evaluation in excess of 10 percent for right knee instability are not met. 38 U.S.C. §§ 1155, 5107; 38C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had a period of active duty service from March 1990 to September 1992. The Veteran testified at a Board hearing in August 2017. Several issues were decided in a Board decision of November 2019. Included in that decision was a denial of the issue herein discussed. That decision was appealed to the Court of Appeals for Veterans Claims, which vacated the Board’s decision as to this issue in a Joint Motion. This matter was returned to the Board. In a December 2020 decision, the Board remanded the Veteran’s claim for additional development. The Board finds that there was substantial compliance with the December 2020 remand for the issue decided herein. See Stegall v. West, 11 Vet. App. 268, 271. It is noted that the Veteran is separately service connected for arthritis of the right knee with a separate rating assigned for limitation of motion. The only issue currently before the Board concerns the instability of the right knee. Increased Rating 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. § 4.1. 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 for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. A Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in 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. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.” Rather, pain may result in functional loss, but only if it limits the ability “to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance.” Id. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. In Burton v. Shinseki, 25 Vet. App. 1, 5 (2011), the Court found that, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. Prior to February 7, 2021, the Veteran’s right knee instability was evaluated under Diagnostic Code 5257 for knee instability. A 10 percent evaluation was assigned for slight recurrent subluxation or lateral instability. A 20 percent evaluation was assigned for moderate recurrent subluxation or lateral instability. A 30 percent evaluation was assigned for severe recurrent subluxation or lateral instability. After February 7, 2021, the Veteran’s right knee instability is evaluated under a revised Diagnostic Code 5257. A 10 percent evaluation was assigned 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 evaluation is assigned for one of the following: (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) 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 evaluation 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(s), crutch(es), walker) and bracing for ambulation. The Board will review the findings under both criteria, but the new criteria are not for application earlier than the effective date of the change in regulation. Entitlement to an increased evaluation in excess of 10 percent for right knee instability The Veteran contends that he is entitled to an evaluation in excess of 10 percent for right knee instability. In an October 2010 VA examination, the examiner diagnosed the Veteran with chondromalacia of the right knee. The Veteran reported pain, weakness, stiffness, swelling, instability, giving way, locking, and a lack of endurance. He reported using braces. There was painful motion but instability testing results revealed no objective findings of instability. In an April 2012 VA examination, the examiner diagnosed severe osteoarthritis of the right knees. Regarding his right knee, the Veteran's range of motion was noted at 0 to 95 degrees with pain at 75 degrees. The Veteran was able to perform repetitive use testing with no additional limitations in range. The Veteran reported weakened movement, excess fatigability, and pain on movement. The Veteran had tenderness to palpation of the joint line or soft tissue. Muscle strength testing was 4 out of 5 for flexion and extension. Stability testing was normal and there was no evidence of recurrent patellar subluxation or dislocation. The examiner found no tibial or fibular impairment and no meniscal impairment of the right knee. Regarding functional and occupational impairment, the examiner noted that the Veteran is a corrections officer for the state of Ohio, who occasionally calls off as he does not like to go into the cell and subdue inmates because his right knee may give out. In a July 2012 statement, the Veteran reported that his right knee is very unstable, and he wears a knee brace and uses a cane to walk. In a September 2015 VA knee conditions examination, the examiner diagnosed the Veteran with of osteoarthritis of the right knee. The Veteran reported pain and flare-ups after increased activity. Muscle strength was 4 out of 5 with no atrophy. Joint stability tests were normal and no history of instability or recurrent effusion was noted. In an April 2018 VA examination, the examiner again noted a diagnosis of osteoarthritis of the right knee. Muscle strength testing was normal with no atrophy. Joint stability testing was normal with no history of lateral instability or recurrent effusion noted. April 2019 VA outpatient treatment records reveal that the Veteran underwent an orthopedic consultation. The Veteran reported right knee pain with constant swelling. In a December 2020 VA knee conditions examination, the examiner diagnosed the Veteran with right knee joint osteoarthritis and chondromalacia with laxity of the right knee. The Veteran reported flare-ups of the right knee. The examiner found the Veteran’s right knee as negative for recurrent subluxation or instability. Pain on passive motion testing was noted with no evidence of the opposing joint being damaged. The Veteran reported the use of a cane constantly and a right knee brace constantly for his right knee pain. Imaging findings revealed degenerative arthritis of the right knee. Concerning functional and occupational limitations, the examiner noted that the Veteran’s right knee pain limits his ability to stand for long periods of time and descend stairs. Testing did not reveal instability, muscle atrophy, or subluxation. The Board has reviewed and carefully considered the Veteran’s lay statements asserting that the severity of his right knee disorder has increased. Lay people are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Veteran is competent to provide statements of symptoms which are observable to his senses and there is no reason to doubt his credibility. However, the Board must emphasize that the Veteran is not competent to interpret accurately clinical findings pertaining to a right knee disorder, as this requires highly specialized knowledge and training. 38 C.F.R. § 3.159 (a)(1). See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). After a thorough review of the record, the Board concludes that the current evidence does not provide a basis for granting a 20 percent rating for the Veteran’s right knee instability. As determined by the December 2020 examination, although there were findings of right knee pain, there were no findings of an incomplete ligament tear, or repaired complete ligament tear causing persistent instability to warrant a 20 percent evaluation. Although the Veteran reported the constant use of a cane and right knee brace, the examiner diagnosed the Veteran as negative for any right knee instability or recurrent subluxation. The Board finds that a 20 percent evaluation is not warranted for the Veteran’s right knee instability as there is no evidence of one of the following: (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) 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. Moreover, while the Veteran has reported instability in the right knee, essentially all examination findings are negative for instability or subluxation. Thus, the Board finds there is no evidence that supports a finding of more than slight knee impairment under the old provisions of Code 5257. Even considering the Veteran’s complaints, and his use of a brace, there is no atrophy, muscle weakness, or other signs that would suggest more than slight knee impairment. The Board finds that based on the evidence of the claims file, the 10 percent evaluation currently assigned better approximates the impairment caused by the Veteran’s current right knee instability. As the Board reviewed the Veteran’s records and determined that they do not support an increased disability rating in excess of 10 percent for this disorder, the evidence for this period preponderates against an increase so reasonable doubt provisions are inapplicable. 38 C.F.R. § 4.3. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Harris, Michael E. 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.