Citation Nr: 21023033 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 16-56 464 DATE: April 20, 2021 ORDER Entitlement to a separate initial 20 percent rating, but no higher, for right knee instability is granted, subject to controlling regulations governing the payment of monetary awards. FINDING OF FACT The Veteran’s right knee symptoms have more nearly approximating moderate, but not severe, instability, throughout the appeal period. CONCLUSION OF LAW The criteria for a separate initial 20 percent rating, but no higher, for right knee instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.71a, Diagnostic Code (DC) 5257. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1986 to February 2011. This case initially came before the Board of Veterans’ Appeals (Board) on appeal of a June 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) which granted entitlement to service connection for osteoarthritis of the right knee, and assigned an initial rating of 10 percent under Diagnostic Code 5260-5003, effective March 1, 2011. In a December 2018 decision, the Board denied an initial rating in excess of 10 percent based on limitation of motion for right knee osteoarthritis, chondromalacia, internal derangement and status post reconstruction surgery. The Board granted a separate 10 percent rating for residuals of a torn meniscus, status-post surgical repair, in the right knee under Diagnostic Code 5258. The Veteran appealed the December 2018 Board decision to the United States Court of Appeals for Veterans Claims (Court). In October 2019, counsel for VA and the Veteran agreed to a Stipulated Agreement of Settlement, a Joint Motion to Partially Terminate the Appeal and a Joint Motion for Partial Remand. In the Stipulated Agreement of Settlement, VA agreed to award the Veteran a 20 percent rating for his dislocated cartilage under Diagnostic Code 5258 and the parties agreed that the appeal as to this issue would be terminated with prejudice. In the Joint Motion to Partially Terminate the Appeal, the parties agreed to move to partial termination of the appeal as a stipulated settlement agreement had been entered. In the Joint Motion for Partial Remand, the parties agreed to vacate the Board’s decision as to the denial for an increased rating for right knee instability under Diagnostic Code 5257 and waived any appeal of the Board’s denial of an increased rating for right knee limitation of motion under Diagnostic Code 5260. In an October 2019 rating decision, the RO implemented the Stipulated Agreement of Settlement and assigned a 20 percent rating for residuals of a torn meniscus, status-post surgical repair, right knee under Diagnostic Code 5258, effective March 1, 2011. As the terms of the Stipulated Agreement of Settlement have been implemented by VA, this aspect of the appeal is no longer before the Board for its consideration. In April 2020, the Board remanded the remaining matter for further evidentiary development, specifically for a VA examination to determine the severity of the Veteran’s right knee instability. The examination was conducted and, for the reasons indicated in the discussion below, was adequate to decide the claim. The agency of original jurisdiction therefore complied with the Board’s remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Right Knee Instability Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Separate diagnostic codes identify the various disabilities. Id. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran’s favor. 38 C.F.R. § 4.3. If there is a question as to which disability rating to apply to the Veteran’s disability, the higher rating 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. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Fenderson v. West, 12 Vet. App. 119 (1999). During the pendency of the Veteran’s appeal, the criteria for rating musculoskeletal disabilities were changed by an amendment to the rating schedule that became effective on February 7, 2021. 85 Fed. Reg. 76, 453 (November 30, 2020). The amendments provide that the Board should apply the criteria which are more favorable to the Veteran. The amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change; however, the old regulations will be considered for the periods both before and after the change was made. See VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Under the prior version of DC 5257, a 10 percent rating is available for slight recurrent subluxation or lateral instability. A 20 percent rating is assigned for moderate recurrent subluxation or lateral instability. A 30 percent rating is assigned for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, DC 5257. Under the revised version of DC 5257, for recurrent subluxation or lateral instability, a 30 percent rating 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. 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; (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 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 (e.g., cane(s), crutch(es), walker) or bracing for ambulation. 38 C.F.R. § 4.71a, DC 5257 (2021). In cases of patellar instability, a 30 percent rating is warranted for 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 is warranted 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, cane, or walker. A 10 percent rating is warranted 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. Under Note (1): For patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Per Note (2): 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). 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2021). In a March 2021, Appellate Brief, the Veteran’s representative asserts that a separate 20 percent rating for right knee moderate lateral instability under Diagnostic Code 5257 is warranted. For the following reasons, the Veteran’s right knee instability more nearly approximate the criteria for an initial separate 20 percent rating. Throughout out the entire period on appeal, the Veteran’s has reported that his right knee gives way. He has consistently reported that he constantly wears a knee brace for stability. For example, a January 2011 VA examination report shows the Veteran reported right knee giving way, pain, and utilization of brace. No flareup or instability of right knee was noted. In a July 2011 private treatment record, the Veteran exhibited a new injury when right knee “gave out” and he fell on knee. A November 2020 VA examination report shows the Veteran reported right knee pain and that he wears off-loader brace on right knee at all times to try to preserve cartilage and stability. He noted that when he walks for a short period of time, his right knee becomes very unstable and tends to “give way”, and without the brace he would fall. The Veteran further noted that after any period weight-bearing, knee becomes more unstable. Joint stability testing revealed normal anterior and posterior instability of right knee. He exhibited 1+ (0-5 millimeters) medial and lateral instability of right knee. Significantly, the examiner checked the box indicating that there was a history of moderate right knee instability and later noted that right knee instability is mild to moderate and would become more pronounced with increased use over time and was noted on examination and resulted in functional impairment. Given the Veteran’s consistent statements regarding instability throughout the appeal period, see English v. Wilkie, 30 Vet. App. 347 (2018) (prior version of Diagnostic Code 5257 does not require objective medical evidence to assign a rating for instability) and the examiner’s specific references to a history of and current moderate instability, the evidence is at least evenly balanced as to whether the Veteran’s right knee symptoms have more nearly approximated moderate recurrent subluxation or lateral instability throughout the appeal period. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to a separate initial 20 percent rating is warranted under the prior version of DC 5257 for right knee lateral instability throughout the appeal period. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3; Swain v. McDonald, 27 Vet. App. 219, 224 (2015) (“effective date should not be assigned mechanically based on the date of a diagnosis. Rather, all of the facts should be examined to determine the date that [the veteran’s disability] first manifested”). The evidence has not, however, more nearly approximate severe right knee instability under either the prior or revised version of DC 5257 at any point during the appeal period. The examination findings showing at most moderate instability along with the Veteran’s statements describing giving way and use of a brace, do not reflect symptoms more nearly approximating severe recurrent subluxation or lateral instability under either version of DC 5257 at any point during the appeal period. (Continued on the next page)   For the foregoing reasons, a separate initial 20 percent rating, but no higher, for right knee instability is warranted. As the preponderance of the evidence is against any higher rating, the benefit of the doubt doctrine is not otherwise for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Walker, 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.