Citation Nr: 21022489 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 15-28 106 DATE: April 15, 2021 ORDER Entitlement to an increased, 20 percent disability evaluation for left knee instability for the rating period prior to June 15, 2015, is granted. Entitlement to an increased disability evaluation for left knee instability, rated as 20 percent disabling for the rating period since June 15, 2015, is denied. Entitlement to an increased disability evaluation for osteoarthritis of the left knee with limitation of motion, initially rated as 10 percent disabling, is denied. FINDINGS OF FACT 1. For the entire rating period on appeal, the Veteran’s left knee is productive of moderate lateral instability due to an unrepaired anterior cruciate ligament tear; the Veteran requires a brace for ambulation. 2. The Veteran’s osteoarthritis of the left knee with limitation of motion is manifested by limitation of flexion; remaining functional flexion was better than 45 degrees and extension was full; there was no indication of locking, tibia or fibula impairment, genu recurvatum, or ankylosis, of additional functional loss warranting greater compensation. CONCLUSIONS OF LAW 1. The criteria for a 20 percent disability rating for left knee instability, for the rating period prior to June 15, 2015, have been met. 38 U.S.C. § §§ 1155, 5103A, 5107(b); 38 C.F.R. § § 3.102, 3.159, 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257 (2020); 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020). 2. The criteria for a disability rating in excess of 20 percent for left knee instability have not been met. 38 U.S.C. § §§ 1155, 5103A, 5107(b); 38 C.F.R. § § 3.102, 3.159, 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257 (2020); 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020). 3. The criteria for a disability rating in excess of 10 percent for left knee osteoarthritis with limitation of motion have not been met. 38 U.S.C. § §§ 1155, 5103A, 5107(b); 38 C.F.R. § § 3.102, 3.159, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 2560 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from September 1984 through September 1992. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. During the pendency of the appeal, in a June 2017 rating decision, the Veteran was awarded an increased, 20 percent disability evaluation for her left knee instability, effective June 15, 2015. In addition, the Veteran was awarded a separate 10 percent disability evaluation for her osteoarthritis of the left knee with limitation of motion; an effective date of March 23, 2012 was assigned. As the Veteran has not been granted the maximum benefits allowed, the claims of entitlement to increased disability ratings for her left knee instability and osteoarthritis with limitation of motion remain on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In March 2019, the Board remanded the case to the Agency of Original Jurisdiction (AOJ). A supplemental statement of the case was most recently issued in July 2020. The case has since been returned to the Board for appellate review. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2020). The VCAA requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of the evidence that is necessary in substantiating their claims, and provide notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006). Neither the Veteran nor her representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Rating Disability evaluations are determined by application of the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In addition, when assessing the severity of a musculoskeletal disability that is rated on the basis of limitation of motion, VA must also consider the extent that the veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when her symptoms are most prevalent (“flare-ups”) due to the extent of her pain (and painful motion), weakness, premature or excess fatigability, and incoordination. See DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. When evaluating musculoskeletal disabilities, VA must consider whether a higher evaluation is warranted, where the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups. See 38 C.F.R. § § 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). Nevertheless, pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Moreover, functional impairment must be supported by adequate pathology. Id.; Johnson v. Brown, 9 Vet. App. 7, 10 (1996) (both citing to 38 C.F.R. § 4.40). Notably, during the appeal period, changes were made to 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5257, 5262. Effective February 7, 2021, VA amended its regulations governing the schedule of rating musculoskeletal disabilities. 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, Diagnostic Codes 5003, 5257, 5262). Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). 1. Entitlement to an increased disability evaluation for left knee instability, rated as 10 percent disabling for the rating period prior to June 15, 2015. 2. Entitlement to an increased disability evaluation for left knee instability, rated as 20 percent disabling for the rating period since June 15, 2015. The Veteran is currently assigned a 10 percent disability rating for her left knee instability for the rating period prior to June 25, 2015 and a 20 percent disability evaluation thereafter, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5257. Under the prior rating criteria for Diagnostic Code 5257, an evaluation of 10 percent is assigned for slight recurrent subluxation or lateral instability, an evaluation of 20 percent is assigned when the impairment is moderate, and an evaluation of 30 percent is assigned when the impairment is severe. Under the amended rating criteria for Diagnostic Code 5257, effective February 7, 2021, a 10 percent rating is 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 rating 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; or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es) walker) or bracing for ambulation. A 30 percent rating is assigned for an 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 new rating criteria for Diagnostic Code 5257 also indicates that for patellar instability, a 10 percent rating is assigned 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 assigned 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 assigned for a diagnosed condition involving the patella femoral 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. Note (1) indicates for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note (2) indicates 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). 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, Diagnostic Code 5257). The Board finds that the weight of the evidence demonstrates that the symptoms of the Veteran’s service-connected left knee instability most closely approximates the criteria for a 20 percent disability rating, under both the old and new rating criteria, for the entire rating period on appeal. In this regard, the Board observes that the Veteran has an unrepaired anterior cruciate ligament tear of the left knee, and for the duration of the rating period, the Veteran has required a brace for ambulation. Moreover, the Veteran’s June 2012, January 2015, August 2015, March 2017, and November 2019 VA examination reports consistently demonstrated that the Veteran has symptoms reflecting mild to moderate instability; a May 2019 Disability Benefit Questionnaire, provided by the Veteran, reflects that the Veteran had moderate anterior and posterior instability and moderate subluxation of the left knee. The Board acknowledges that the November 2019 VA examination report reflects that the Veteran now used a walker for her left knee instability; however, the VA examination report reflects that the Veteran no longer utilizes a brace for her left knee. As such, the criteria for a higher, 30 percent disability evaluation are not met under the revised rating criteria. Therefore, the 20 percent rating for instability of the left knee compensates her for the extent of her instability. As the Board is unable to ascertain an exact date as to when the Veteran became entitled to an increased, 20 percent disability rating for her left knee instability, the Board will assume that the Veteran’s left knee instability met the criteria for the entire rating period on appeal. For these reasons, the Board finds that the evidence supports a finding of a 20 percent evaluation, but no higher, for the entire rating period on appeal. 38 C.F.R. §§ 4.3, 4.7. 3. Entitlement to an increased disability evaluation for osteoarthritis of the left knee with limitation of motion, initially rated as 10 percent disabling. The Veteran is currently assigned a 10 percent rating for her service-connected osteoarthritis of the left knee with limitation of motion pursuant to the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5003 – 5260. See 38 C.F.R. § 4.20. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. The Board notes that the amended Diagnostic Code 5003, effective February 7, 2021, is substantively unchanged. To this point, the Board notes that Diagnostic Code 5003 was revised to reflect that this Diagnostic Code only applies to degenerative arthritis. Diagnostic Code 5003 provides that degenerative arthritis substantiated by x-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When limitation of motion is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each major joint or group of minor joints affected by limitation of motion. A 20 percent evaluation is warranted for x-ray evidence of involvement of 2 or more major or minor joints, with occasional incapacitating exacerbations. See 38 C.F.R. § 4.71a, Diagnostic Code 5003. However, the Veteran has not reported experiencing any incapacitating exacerbations with regard to her left knee. The appropriate diagnostic codes for the knee joint are Diagnostic Codes 5260 and 5261, applicable to limitation of flexion and extension of the leg, respectively. Under Diagnostic Code 5260, limitation of flexion of a leg warrants a noncompensable rating when flexion is limited to 60 degrees. A 10 percent rating is warranted if flexion is limited to 45 degrees, and a 20 percent rating is warranted if flexion is limited to 30 degrees. Flexion that is limited to 15 degrees warrants a 30 percent rating. Under Diagnostic Code 5261, limitation of extension of a leg is noncompensable when extension is limited to 5 degrees, warrants a 10 percent rating when it is limited to 10 degrees, a 20 percent rating when it is limited to 15 degrees, a 30 percent rating when limited to 20 degrees, a 40 percent rating when limited to 30 degrees, and a 50 percent rating when limited to 45 degrees. Normal range of motion of the knee is to 0 degrees extension and to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. VA’s General Counsel has held that separate ratings may be warranted for limitation of flexion and extension when the criteria for compensable ratings are met for such limitation under Diagnostic Codes 5260 and 5261. VAOPGCPREC 9-2004 (2004). In VAOGCPREC 23-97 (July 1, 1997; revised July 24, 1997), VA’s General Counsel held that a claimant who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257, respectively. As previously discussed, the Veteran is in receipt of a separate evaluation for left knee instability pursuant to Diagnostic Code 5257. Thus, the Board will not consider Diagnostic Code 5257 here. The Board finds that the weight of the evidence demonstrates that the symptoms of the Veteran’s service-connected osteoarthritis of the left knee with limitation of motion most closely approximate the diagnostic criteria for the currently assigned 10 percent rating. With regard to limitation of motion, the Veteran has not demonstrated that her left knee have compensable limitation of flexion or extension. The Board observes that the Veteran, at her VA examinations, had flexion of the left knee to no worse than 90 degrees, with extension to no worse than 5 degrees. Nevertheless, the Veteran reported that she experienced pain on motion, weakness, and fatigability based on the duration of repeated use over time. Likewise, she had tenderness to palpation of the patella of the left knee. A higher, 20 percent rating would require flexion of 30 degrees and/or extension of 15 degrees. In the absence of this level of limited motion, a higher rating based on limitation of motion is not warranted. 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. Further, there is no evidence of ankylosis, dislocation of the semilunar cartilage, or locking of the left knee, tibia or fibula impairment, or genu recurvatum, at any time during the rating period on appeal. Thus, a higher rating for the left knee based on Diagnostic Codes 5256, 5258, 5259, 5262, and 5262 is not warranted. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5258, 5259, 5262, and 5262. Finally, with regard to functional loss, the Veteran’s current evaluation contemplates pathology productive of painful motion. The evaluation is consistent with the functional equivalent of limitation of flexion to 45 degrees. In order to warrant a higher evaluation, there must be the functional equivalent of limitation of flexion to 30 degrees (Diagnostic Code 5260) or extension to 15 degrees (Diagnostic Code 5261). The Board accepts the lay evidence that the Veteran experiences pain. Similarly, the Board accepts the evidence that she has limitation of flexion and pain upon extension. However, the limitation of motion due to pain is contemplated in the current evaluation that recognizes her painful motion. Although the Veteran has pain, such pain does not functionally limit flexion to less than 45 degrees or functionally limit extension; estimated range of motion during a flare-up is 60 degrees flexion. There is no indication that she has additional functional impairment, above and beyond the 10 percent level for her service-connected osteoarthritis of the left knee with limitation of motion which would support a higher rating. In this regard, the Board acknowledges that the VA examination reports reflect complaints of pain and weakness; however, there was no objective evidence of deformity or reduced muscle strength. See DeLuca, citing 38 C.F.R. §§ 4.40, 4.45, and 4.59. Here, neither the medical nor lay evidence suggests that her limitation of motion approximated 30 degrees of flexion or 15 degrees extension for the left knee. Moreover, the available medical findings do not show that painful motion, limitation of motion on repetitive use testing, or pain or limitation of motion on active motion/passive motion/in weight-bearing/nonweight-bearing resulted in functional loss warranting the assignment of any higher evaluation for the left knee during the entire appeal period. See Correia v. McDonald, 28 Vet. App. 158 (2016). The Board acknowledges that the Veteran has consistently had to use assistive devices to ambulate during the appeal period, including a brace or walker, however, the evidence indicates that the use of these devices is due to her service-connected instability. Accordingly, while there is functional loss it is not attributable to solely to her osteoarthritis of the left knee with limitation of motion. Therefore, the Board finds that the evidence does not support a disability evaluation in excess of 10 percent for the Veteran’s service-connected osteoarthritis of the left knee with limitation of motion for the entire rating period on appeal. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Hallie E. Brokowsky, 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.