Citation Nr: 21022772 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 15-07 381 DATE: April 19, 2021 ORDER A rating in excess of 10 percent for limitation of flexion of the right knee is denied. A rating in excess of 10 percent for meniscal symptoms of the right knee is denied. FINDING OF FACT 1. The Veteran’s right knee disability has not resulted in 30 degrees of flexion or fewer, an impairment of extension, ankylosis, impairment of the tibia and fibula, or genu recurvatum. 2. The Veteran’s right knee disability has resulted in a removal of the semilunar cartilage with subjective complaints of buckling and locking, but it has not resulted in a dislocation of the semilunar cartilage or symptoms of slight instability, persistent instability, or recurrent patellar instability.   CONCLUSION OF LAW 1. The criteria for a rating in excess of 10 percent for a right knee disability based on an impairment of flexion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5003-5260. 2. The criteria for a rating in excess of 10 percent for symptoms of right knee instability or meniscal symptoms have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5257-59. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1990 to August 2010. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2013 rating decision granting service connection for a right knee disability and assigning an initial 10 percent rating based on an impairment of motion. A November 2020 rating decision granted a separate 10 percent rating based on meniscal symptoms. The Veteran participated in a hearing before the undersigned in May 2018, and a transcript of this hearing has been associated with the record. This matter was previously before the Board in October 2018, at which time it remanded the Veteran’s claim in order to afford her with an additional VA examination. The Veteran underwent such an examination in November 2020. The Board finds that there has been substantial compliance with its remand directives, and it will proceed to a decision.   Increased Rating The Veteran’s right knee disability is currently rated 10 percent disabling based on a limitation of flexion and 10 percent disabling based on meniscal symptoms. Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). VA’s General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). 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. In this regard, the Board observes that former regulation 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction. In Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9(b)(2) (now as noted renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. As such, pursuant to 38 C.F.R. § 20.904(d)(2), the Board will proceed to adjudicate the Veteran’s claim. The Board will first address whether greater ratings are warranted based on limitation of motion of the right knee.  Separate evaluations may be assigned for limitation of flexion and extension of the same knee joint. Limitation of flexion to 30 degrees warrants a 20 percent rating, and limitation to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Limitation of extension to 15 degrees warrants a 20 percent rating, limitation to 20 degrees warrants a 30 percent rating, limitation to 30 degrees warrants a 40 percent rating, and limitation to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5261.  Aforementioned changes to musculoskeletal regulations did not make any changes to Diagnostic Codes 5260 or 5261, In this case, by way of history, in 2007, the Veteran underwent an arthroscopic debridement of the right knee with lateral release and medial meniscal repair. The Veteran filed her underlying claim for service connection in May 2010. In July 2012, a clinician noted that the Veteran had a range of motion from 0 degrees to 90 degrees, with tenderness to palpation over the medial patella and over the medial joint line. The Veteran underwent a VA examination in February 2013, at which time the Veteran complained of right knee pain and stiffness. The Veteran reported experiencing flare-ups that limited her ability to engage in prolonged walking, prolonged standing, prolonged sitting, squatting, using stairs, jogging, jumping, lifting, and carrying. The Veteran had right knee flexion to 120 degrees with pain and extension to 0 degrees without pain. Repetitive motion testing did not result in an additional loss of motion or other functional limitation. The examiner noted that the Veteran experienced functional impairment in the form of less movement than normal and painful movement. The Veteran had tenderness or pain to palpation for the joint line or soft tissues of the knee. No findings were provided to quantify any loss of function do flare up. Service connection for the right knee disability was granted in a March 2013 rating decision. A 10 percent rating was assigned based on painful motion. See 38 C.F.R. § 4.59. The Veteran appealed the assigned rating. During the Veteran’s May 2018 hearing, the Veteran stated that she could not stand, climb, or walk more than one block. The Veteran underwent an additional examination in November 2020, at which time the Veteran complained of achy pain in her right knee that had a current severity of 7/10; the Veteran stated that her right knee pain could be as low as 5/10 and as great as 10/10. The Veteran used ice, heat, Biofreeze, and Tylenol in treatment of her right knee pain. The Veteran experienced functional loss in the right knee with the avoidance of prolonged walking or running. The Veteran had right knee flexion to 60 degrees with pain and extension to 0 degrees pain. There was evidence of pain with passive range of motion testing and when the joint was used in weight-bearing and non-weight bearing. Repetitive motion testing did not result in an additional loss of motion or other functional limitation. Repetitive use of the right knee over time resulted in right knee flexion to 40 degrees and extension to 0 degrees as the result of factors such as pain, weakness, fatigability, or incoordination. The Veteran denied experiencing flare-ups of symptoms in the right knee. A November 2020 x-ray of the right knee showed mild to moderate osteoarthritis changes. Turning to an analysis of this evidence, the Veteran’s right knee disability is rated 10 percent disabling on the basis of impaired flexion. With regard to a greater rating based on an impairment of flexion, the Veteran’s right knee has never shown flexion limited to 30 degrees or fewer, even when taking factors such as pain into consideration, or when considering the Veteran’s motion upon repeated use or repeated use over time. Indeed, as previously noted, the assigned 10 percent rating for loss of motion was based primarily on the Veteran’s report of pain on motion and functional loss. The Board thus finds that a rating in excess of the currently assigned 10 percent rating for the Veteran’s right knee disability based on a limitation of flexion is unwarranted. See 38 C.F.R. § 4.71a, Diagnostic Code 5260.  Similarly, with regard to a separate rating based on an impairment of extension, the Veteran’s right knee has never shown a limitation of extension, even when taking factors such as pain into consideration, or when considering the Veteran’s motion upon repeated use or repeated use over time. The Board thus finds that a compensable rating for the Veteran’s right knee disability based on a limitation of extension is unwarranted. See 38 C.F.R. § 4.71a, Diagnostic Code 5261.  The Board must additionally consider functional loss due to pain and weakness that causes additional disability beyond that which is reflected on range of motion measurements. 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202 (1995).  The Board must consider the effects of weakened movement, excess fatigability and incoordination. 38 C.F.R. § 4.45.  VA examiners have noted the Veteran’s complaints such as pain, and the Board has taken those complaints into consideration in its above discussion.  The Board finds that the evidence does not support a finding that the Veteran’s functional loss causes disability beyond the above discussed range of motion testing.  The Board accepts the credible contentions of the Veteran that her right knee disability causes her to experience pain, and these contentions have, in part, formed the basis of the Veteran’s existing ratings for her right knee disability.  The Board has also considered the effects of flare-ups on the Veteran’s functioning. See Sharp v. Shulkin, 29 Vet. App. 26 (2017); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Such flare-ups must be quantifiable and result in a limitation of motion or function beyond that contemplated by the already provided evaluation. In addition, because there is a regulation addressing stabilization of ratings, the flare-up must be of a sufficient length to establish a greater severity of overall impairment, rather than a brief snapshot in time. The Board’s above analysis considers the Veteran’s reports of the nature and extent of her flare-ups of right knee symptoms and finds that such reports do not warrant greater ratings than those currently assigned.  Indeed, at the Veteran’s most recent examination in November 2020, the Veteran denied experiencing flare-ups of right knee symptoms at all. Consideration has been given to the Veteran’s report at her earlier VA examination of experiencing flare-ups that limited her ability to engage in prolonged walking, prolonged standing, prolonged sitting, squatting, using stairs, jogging, jumping, lifting, and carrying. Such would not warrant a higher evaluation. The reported flare-ups are not shown to additionally limit function in a quantifiable way and are not of such length or duration that a staged rating would not violate the rule regarding stabilization of ratings. The contemporaneous treatment records contain little, if any, findings pertaining to flare-ups much less information regarding the Veteran’s functional ability during a flare-up or after repeated use over time. Again, there were no reports of flare-ups when the Veteran was examined in 2020. The Board will next consider whether the Veteran is entitled to a separate rating under Diagnostic Code 5257, applicable to instability of the knee. In this regard, consideration will be given to whether the Veteran is entitled to a separate rating under Diagnostic Code 5257 under the old criteria before February 7, 2021 and both the old and new rating criteria on and after February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Ratings can be assigned for knee instability or subluxation under Diagnostic Code 5257.  38 C.F.R. § 4.71a.  Before the regulatory change, recurrent subluxation and lateral instability of the knee warranted a 10, 20, or 30 percent rating if slight, moderate, or severe, respectively.  38 C.F.R. § 4.71a, Diagnostic Code 5257 (2020).  “Slight,” as relevant to a physical condition, is defined as “small of its kind or in amount.”  Merriam-Webster’s Dictionary (merriam-webster.com/dictionary, accessed February 8, 2021).  It is similar to “mild,” which is defined as “not severe” or temperate; with “Temperate” being defined as “keeping or held within limits” and “not extreme or excessive.”  “Moderate” is defined as “tending toward the mean or average amount,” “not violent, severe, or intense,” and “limited in scope or effect.”  Id.  “Severe” is defined as “very painful or harmful” or “of a great degree.”  Id.  Within the context of the old version of Diagnostic Code 5257, which established a successive, tiered rating structure, “severe” represented the highest or most extreme level of disability.  As of February 7, 2021, Diagnostic Code 5257 contains two sections for rating instability of the knee.  38 C.F.R. § 4.71a.  The first is for recurrent subluxation or instability.  The second is for patellar instability.  Regarding recurrent subluxation and instability, a compensable rating requires persistent instability.  Id.; see also 38 C.F.R. § 4.31.  “Persistent” is defined as “continuing or inclined to persist in a course” with “continuing” defined as “constant” and “persist” defined as “to continue to exist.”  Merriam-Webster’s Dictionary (merriam-webster.com/dictionary, accessed February 8, 2021).  Under these criteria, a 30 percent rating is assigned with unrepaired or failed repair of complete ligament tear which causes 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 assigned with either (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.  Regarding patellar instability, 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 warrants a 30 percent rating, which is the highest allowable rating for patellar instability.  A diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace, cane, or walker warrants a 20 percent rating.  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 warrants a 10 percent rating.  The patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon.  38 C.F.R. § 4.71a, Diagnostic Code 5257, Note (1).  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).  Id. Note (2).  Turning to the facts in this case, in August 2011, the Veteran stated that her right knee gave out occasionally. A clinician noted no tenderness, swelling, or dislocation. In July 2012, the Veteran stated that her right knee buckled. A clinician noted patellofemoral crepitus. Instability testing was normal, and the Veteran had no meniscal tearing. In October 2012, the Veteran stated that her right knee buckled often; in a separate record from October 2012, the Veteran stated that she experienced two falls as a result of knee buckling. The Veteran underwent an examination in February 2013, at which time joint stability testing was normal, and there was no history of recurrent patellar subluxation or dislocation. The examiner noted that the Veteran had undergone a meniscectomy with a meniscal tear, and frequent episodes of joint locking, pain, and effusion. The Veteran occasionally used a brace and regularly used a cane. During the Veteran’s May 2018 hearing before the undersigned, the Veteran stated that her right knee had been subluxating and dislocating. The Veteran reported that she had fallen approximately twice a month as the result of her knee giving out. The Veteran otherwise described a sensation of her knee bending backwards, and she stated that she had experienced increased instability. The Veteran underwent an additional VA examination in November 2020, at which time the examiner did not observe crepitus. The examiner noted no history of recurrent subluxation or lateral instability of the right knee, and joint stability testing was normal. The examiner stated that the Veteran experienced recurrent effusion based on the Veteran’s report of experiencing swelling of the right knee after walking. The Veteran had not experienced recurrent patellar dislocation. The examiner noted that the Veteran had experienced a meniscal tear that resulted in frequent episodes of joint pain, but no episodes of joint locking. Turning to an analysis of these facts, the Board will first address whether the Veteran’s right knee warrants a separate rating on the basis of instability under the rating criteria under Diagnostic Code 5257 that were in effect before February 7, 2021. The weight of the evidence is against a finding that the right knee has shown symptoms of even slight instability at any time. In making this determination, the Board acknowledges that the Veteran has subjectively complained of symptoms such as buckling, and she has stated that she has experienced falls as a result of her right knee instability. With that said, clinicians and examiners have consistently found joint stability testing of the Veteran’s right knee to be normal. With consistently normal joint stability test findings appearing in multiple VA examinations, the Board finds that a compensable rating based on instability of the right knee is unwarranted under the provisions of Diagnostic Code 5257 that were in effect before February 7, 2021. Having determined that the Veteran’s right knee does not warrant a compensable rating under the rating criteria under Diagnostic Code 5257 that were in effect before February 7, 2021, the Board will next address whether the Veteran’s right knee warrants a separate rating on the basis of instability under Diagnostic Code 5257 that are effective on and after February 7, 2021. Under these new criteria, a compensable rating based on recurrent subluxation or instability of the right knee is unwarranted under the new criteria because, for the reasons set forth above, the right knee has not shown “persistent instability” at any time. Similarly, a compensable rating based on patellar instability is unwarranted because the Veteran’s right knee has not shown “recurrent instability” of the patellofemoral complex at any time. Having determined that the Veteran’s right knee does not warrant a compensable rating based on instability under either the old or new criteria established under Diagnostic Code 5257, the Board notes that the Veteran’s right knee is otherwise in receipt of a maximum 10 percent rating under Diagnostic Code 5259, applicable to the symptomatic removal of the semilunar cartilage. No changes were made to this diagnostic code with respect to the previously referenced changes to the musculoskeletal regulations. Diagnostic Code 5258, applicable to the dislocation of the semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint, provides for a greater 20 percent rating. 38 C.F.R. § 4.71a. This diagnostic code also underwent no changes in the revision to the musculoskeletal regulations. The Veteran indeed underwent a removal of the semilunar cartilage at the time of her 2007 arthroscopic surgery, and the Veteran has subjectively complained of symptoms such as locking, swelling, and buckling as a result of such removal. While these subjective complaints, as discussed above, do not themselves warrant a compensable rating based on the rating criteria applicable to instability of the knee, they indeed support the award of a separate 10 percent rating based on the symptomatic removal of the semilunar cartilage. See 38 C.F.R. § 4.71a, Diagnostic Code 5259. A rating under Diagnostic Code 5258, applicable to dislocation of the semilunar cartilage, is, however, unwarranted. While the Veteran experienced symptoms based on a partial removal of the meniscus (semilunar cartilage), the medical evidence demonstrates that the Veteran has not experienced a dislocation of the meniscus at any time. As such, a rating under Diagnostic Code 5258, based on dislocation of the semilunar cartilage, is unwarranted at any time. See 38 C.F.R. § 4.71a, Diagnostic Code 5258. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.A. Flynn, 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.