Citation Nr: 21022297 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 13-00 450A DATE: April 15, 2021 ORDER Entitlement to a separate initial 10 percent rating, and no higher, for recurrent instability of the right knee from March 30, 2010, is granted. Entitlement to an initial rating in excess of 10 percent for right knee arthritis manifested by limitation of motion prior to January 28, 2016, is denied. Entitlement to an initial rating in excess of 10 percent right knee arthritis manifested by limitation of motion from January 28, 2016, is denied. FINDINGS OF FACT 1. With resolution of reasonable doubt in the Veteran’s favor, the most probative evidence suggests that his right knee disorder has experienced recurrent slight instability for the entirety of the rating period. 2. The most probative evidence does not reach the level of equipoise as to whether the Veteran’s right knee disorder manifested functional impairment to the extent that a higher staged rating may be assigned prior to January 28, 2016. 3. The most probative evidence does not reach the level of equipoise as to whether the Veteran’s right knee disorder manifested functional impairment to the extent that a higher staged rating may be assigned from January 28, 2016. CONCLUSIONS OF LAW 1. The criteria for entitlement to a separate initial 10 percent rating, and no higher, for right knee instability from March 30, 2010, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.2, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5257. 2. The criteria for entitlement to an initial rating in excess of 10 percent for right knee arthritis prior to January 28, 2016, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5256-5263. 3. The criteria for entitlement to an initial rating in excess of 10 percent for right knee arthritis from January 28, 2016, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5256-5263. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from April 1976 to February 1980. These matters come before the Board of Veterans’ Appeals (Board) on appeal of a rating decision issued by the Department of Veterans Affairs (VA). These matters were previously before the Board in 2015, 2017, 2018, 2019, and 2020. In September 2020, the Board remanded these matters to obtain a VA examination and medical opinion addressing functional loss with flare-ups and repeated use over time. Sharp v. Shulkin, 29 Vet. App. 26 (2017). The record shows that the Veteran underwent a VA examination in December 2020. After reviewing the examination report, the Board finds that it substantially complies with the prior remand directives. As no other issues have been raised by the Veteran, his representative, or the evidence of record, the Board will adjudicate the appeal on the merits. See Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017). Legal Criteria – Rating Disabilities Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519 (2007). In rating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other 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. Pain on movement, swelling, deformity, or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing, and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that 38 C.F.R. § 4.59 applies to disabilities other than arthritis). However, painful motion alone is not a functional loss without some restriction of the normal working movements of the body. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). During the pendency of this appeal, the rating criteria for evaluating musculoskeletal disorders under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 76453 (Nov. 30, 2020). These amendments revised select diagnostic codes “to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities.” Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. 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. Increased Ratings – Right Knee The Board finds that the most probative evidence supports assignment of a separate 10 percent initial rating for right knee instability. However, the record does not support the assignment of any other higher staged ratings for a right knee disorder during the appeal period. The Veteran currently receives a 20 percent rating for right knee cartilage impairment, and a 10 percent rating for right knee arthritis manifested by limitation of motion, with both ratings effective from March 30, 2010. See Rating Decision – Codesheet, March 2018. The question for the Board is whether higher initial staged ratings may be assigned at any point during the appeal period. Under 38 C.F.R. § 4.71a, DC 5256, a 30 percent rating is assigned for favorable ankylosis in full extension, or in slight flexion between 0 and 10 degrees, a 40 percent rating is assigned favorable ankylosis in flexion between 10 and 20 degrees, a 50 percent rating is assigned for favorable ankylosis in flexion between 20 and 45 degrees, and a 60 percent rating is assigned for extremely unfavorable ankylosis in flexion at an angle of 45 degrees or more. Prior to the regulatory change, 38 C.F.R. § 4.71a, DC 5257, provided for a 10 percent rating for slight recurrent subluxation or lateral instability; a 20 percent rating is warranted for moderate recurrent subluxation or lateral instability; and a 30 percent rating is warranted for severe recurrent subluxation or lateral instability. As of February 7, 2021, under the amended regulations, DC 5257 states that a 30 percent rating is assigned for recurrent subluxation or instability with unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device and bracing for ambulation. A 20 percent rating is assigned for either 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 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. Under 38 C.F.R. § 4.71a, DC 5258, a 20 percent rating is assigned for cartilage, semilunar, dislocated, with frequent episodes of “locking,” pain, and effusion into the joint. Under 38 C.F.R. § 4.71a, DC 5259, a 10 percent rating is assigned for cartilage, semilunar, removal of, symptomatic. Under 38 C.F.R. § 4.71a, DC 5260, a 10 percent rating is warranted for flexion of the knee limited to 45 degrees; a 20 percent rating is warranted for flexion limited to 30 degrees; and a 30 percent rating is warranted for flexion limited to 15 degrees. Under 38 C.F.R. § 4.71a, DC 5261, a 10 percent rating is warranted for extension of the knee limited to 10 degrees; a 20 percent rating is warranted for extension limited to 15 degrees; a 30 percent rating is warranted for extension limited to 20 degrees; a 40 percent rating is warranted for extension limited to 30 degrees; and a 50 percent rating is warranted for extension limited to 45 degrees. Normal range of motion of the knee is 0 degrees of extension to 140 degrees of flexion. See 38 C.F.R. § 4.71a, Plate II. Even if a veteran did not have compensable limited motion of the knee under DC 5260 or 5261, a separate rating could be assigned if there was evidence of full range of motion “inhibited by pain.” Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). Separate ratings may be awarded under DC 5257, 5260, and 5261. See VAOPGCPREC 9-2004. A rating assigned under DC 5260 or 5261 does not preclude, as a matter of law, a separate evaluation under DC 5258 or 5259. Lyles v. Shulkin, 29 Vet. App. 107, 115 (2017). Initially, the Board notes that a previous decision in February 2018 provided an in-depth listing of the relevant medical evidence prior to that time. Rather than repeat such listing herein, the Board incorporates it by reference. The Veteran appeared for a VA examination in October 2019. He reported right knee pain associated with rising in the morning, kneeling, squatting, standing or walking 20 minutes, or exposure to particularly cold ambient weather conditions. Range of motion was 0 to 125 degrees flexion and 125 to 0 degrees extension. Pain causing functional loss was noted on flexion. The Veteran performed repetitive use testing without additional functional loss. Muscle strength testing was normal. There was no ankylosis or joint instability of the right knee. The Veteran underwent another VA examination in December 2020. He reported, among other things, moderate to severe flare-ups of right knee pain, sometimes occurring daily, precipitated by colder weather. Range of motion testing showed flexion 0 to 90 degrees and extension 90 to 0 degrees. The Veteran performed repetitive use testing with additional functional loss described as 0 to 85 degrees flexion and 85 to 0 degrees extension. As to repeated use over time and flare-ups, the examiner found that the Veteran would experience lost range of motion 0 to 80 degrees flexion and 80 to 0 degrees extension during both periods. Muscle strength in the right knee was active movement against some resistance. There was no ankylosis or joint instability of the right knee. The examiner noted a meniscal tear in 2013 with intermittent locking, and checked the box for “occasional” use of a knee brace. However, she clarified that the Veteran used an ace bandage during activities and he declined using a brace. There was objective evidence of pain on passive range of motion and with non-weightbearing of the right knee. The Board has reviewed the Veteran’s VA treatment records. However, such records do not show evidence of functional impairment to the extent that higher staged ratings may be assigned at any point during the rating period. After careful review of the record, the Board finds that the most probative evidence, under an equipoise standard, supports the assignment of a separate 10 percent rating for right knee instability. As noted by a Joint Motion for Partial Remand in September 2018, a VA orthopedic surgery consultation noted reports of “episodic buckling” in May 2013, an outpatient report in February 2013 recorded reports of knee buckling, and the Veteran complained of knee buckling that led to a fall “the other day” on his VA Form 9 in January 2013. A Veteran is considered competent to report symptoms that are capable of ordinary observation, and objective medical evidence is not required to establish knee instability under DC 5257. English v. Wilkie, 30 Vet. App. 347 (2018). The Board cannot see evidence in the record that contradicts or undermines the credibility of the Veteran’s reports of right knee instability. Accordingly, the Board will resolve reasonable doubt in his favor and assign an initial 10 percent rating for the entirety of the rating period. The Board has considered whether a 20 percent rating may be assigned under DC 5257. Nevertheless, the Board finds that such a rating is not supported by the evidence or applicable rating criteria before or after February 7, 2021. During the rating period, the Veteran’s instability was no more than “slight”, given that VA clinicians in February and May 2013 described the reports of buckling as “episodic” and the Veteran’s reports, including the January 2013 report of a fall “the other day”, do not reflect a symptomatic frequency, severity, or duration indicative of “moderate” instability. Also, VA examination reports during the rating period found no evidence of lateral instability. 38 C.F.R. § 4.71a, DC 5257 (2020). Since February 7, 2021, the record does not reflect that a medical provider prescribed an assistive device due to instability to the extent that a 20 percent rating may be assigned under the new regulations. 38 C.F.R. § 4.71a, DC 5257 (2021). Specifically, in December 2020, the examiner noted that the Veteran declined wearing a brace and reported using an ace bandage “during activities.” Regarding limited motion, the record does not support the assignment of higher staged ratings during the appeal period. The right knee disorder has manifested functional impairment equivalent to painful, but not otherwise compensable, range of motion. Such a level of impairment is equivalent to a 10 percent rating. See 38 C.F.R. §§ 4.59, 4.71a, DC 5260; Burton, 25 Vet. App. at 5. Specifically, the Veteran’s tested range of motion, at its lowest, was found to be 0 to 90 degrees, which does not meet the regulatory threshold for a compensable rating. As such, the most probative evidence does not support the assignment of higher ratings for limited motion during the rating period. 38 C.F.R. § 4.7. The Veteran’s reports of flare-ups and functional loss after repeated use over time have been considered. However, the December 2020 VA examiner estimated, based on her observations of the Veteran’s disorder and her medical expertise, that the Veteran would only suffer reduced range of motion to 0 to 80 degrees flexion and 80 to 0 degrees extension during such periods. Such a level of functional loss does not meet the relevant threshold required for a compensable rating for limitation of motion. See Mitchell, 25 Vet. App. at 43. The Board has considered the potential of a higher rating under the other diagnostic codes relevant to the right knee. However, the record does not support the existence of ankylosis, impairment or malunion of the tibia or fibula, or genu recurvatum to the extent that higher ratings may be assigned. 38 C.F.R. § 4.71a, DC 5256, 5262, 5263. The Board notes that the Veteran’s residuals of a right knee meniscal cartilage injury with episodes of pain, “locking”, and effusion into the knee joint has received a 20 percent rating under DC 5258 for the entirety of the rating period, which is the maximum allowed by the rating schedule. The record does not suggest, and the Veteran has not asserted, that any of his knee symptoms result in functional impairment not contemplated by the rating schedule to the extent that an extraschedular rating may be considered. In sum, the Board finds that a separate initial 10 percent rating is warranted for right knee instability, but no other higher staged ratings are appropriate. 38 U.S.C. § 5107(a) (“[A] claimant has the responsibility to present and support a claim for benefits....”). ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Reed, Associate 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.