Citation Nr: 21023225 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 13-35 298 DATE: April 20, 2021 ORDER Entitlement to an initial rating for right knee medial-lateral instability in excess of 10 percent before March 15, 2018, and in excess of 20 percent thereafter is denied. Entitlement to an initial rating for right knee degenerative joint disease (DJD) status post chondroplasty and meniscectomy in excess of 10 percent is denied. Entitlement to a separate disability rating of 10 percent for symptomatic removal of semilunar cartilage of the right knee is granted. FINDINGS OF FACT 1. Before March 15, 2018, the Veteran’s right knee medial-lateral instability is manifested by slight instability. 2. From March 15, 2018, the Veteran’s right knee medial-lateral instability is manifested by moderate instability. 3. The Veteran’s right knee flexion is not limited to 30 degrees or less. 4. Throughout the appeal period, the Veteran’s degenerative joint disease (DJD) status post chondroplasty and meniscectomy is manifested by symptomatic removal of semilunar cartilage. CONCLUSIONS OF LAW 1. Before March 15, 2018, the criteria for a rating in excess of 10 percent for right knee medial-lateral instability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5257. 2. From March 15, 2018, the criteria for a rating in excess of 20 percent for right knee medial-lateral instability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5257. 3. The criteria for an initial rating in excess of 10 percent for right knee degenerative joint disease (DJD) status post chondroplasty and meniscectomy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5260. 4. The criteria for a separate rating of 10 percent for the Veteran’s right knee disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5259. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1974 and October 1976. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a July 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2014, the Decision Review Officer (DRO) noted on the appeal certification form that the Veteran requested a Board hearing at a local VA office. The Veteran later withdrew his request. 38 C.F.R. § 20.704. In May 2016 and October 2017, the Board remanded the Veteran’s claim for additional development. Following the June 2019 Supplemental Statement of the Case (SSOC), new VA medical records were associated with the claims file. However, in February 2021, the Veteran waived his right to have the case remanded to the RO for review of the additional evidence. 38 C.F.R. § 20.1305(c). The case is once again before the Board. 1. Entitlement to an initial rating for right knee medial-lateral instability in excess of 10 percent before March 15, 2018, and in excess of 20 percent thereafter is denied. 2. Entitlement to an initial rating for right knee degenerative joint disease (DJD) status post chondroplasty and meniscectomy in excess of 10 percent is denied. The Veteran is currently in receipt of a 10 percent disability rating for degenerative arthritis with noncompensable limited flexion of the right knee under Diagnostic Code (DC) 5003-5260. 38 C.F.R. §§ 4.27, 4.71a. In addition to degenerative arthritis, he is also in receipt of a staged disability rating for right knee lateral instability. 38 C.F.R. §§ 4.27, 4.71a, DC 5003-5257. Before March 15, 2018 (the first stage), his right knee was rated 10 percent disabling for slight lateral instability. Beginning March 15, 2018 (the second stage), the RO increased the Veteran’s rating to 20 percent disabling for moderate lateral instability. During the appeal period, the Veteran underwent three VA joint examinations: April 2012, September 2016, and March 2018. At the first examination, the Veteran exhibited flexion to 130 degrees with objective evidence of painful motion at that point and extension to 0 degrees with no objective evidence of painful motion. Subjectively, he reported experiencing knee pain 1 or 2 times a week. Following repetitive-use testing, the Veteran showed no change in range-of-motion; however, the examiner indicated he experienced functional loss with less movement than normal, pain on movement, swelling, instability of station, and interference with sitting, standing, and weight-bearing. The Veteran reported flare-ups twice a month, causing swelling, increased pain, and decreased walking endurance. Muscle strength and joint stability were normal, except the Veteran exhibited medial-lateral instability of 0-5 millimeters. The examiner found no evidence of a meniscal dislocation but acknowledged he had a meniscectomy and residual pain and decreased range-of-motion from surgery. Imaging studies documented degenerative arthritis but no evidence of patellar subluxation. Lastly, the Veteran regularly used a knee brace for assistance with his knee problems. Four-plus years later, the Veteran reported daily knee pain with swelling, stiffness, popping, and cracking. He displayed the same range of motion: flexion to 130 degrees and extension to 0 degrees. This time, the examiner noted pain during flexion and with weight-bearing. The examiner detected a grinding sound (crepitus) and found objective evidence of pain on palpation. As before, the Veteran showed no change in range-of-motion following repetitive-use testing. Flare-ups were again reported. Precipitating factors are standing or walking too long. During a flare, pain increases from its usual level of 3 or 4 to an 8 to 10 and lasts up to two days. While the examination was not conducted during a flare-up or after repetitive use over time, the examiner found the results medically consistent with the Veteran’s statements describing functional loss during a flare-up and with repeated use over time. However, she could not say without mere speculation whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over time or flare-ups. Muscle strength and joint stability were normal. The examiner found no evidence of a meniscal dislocation but noted his meniscectomy and his residual pain and decreased range-of-motion from surgery. The Veteran increased his knee brace use from regular to constant. Functionally, the Veteran described his knee disability as limiting his ability to run, ascend or descend stairs and stand or walk for prolonged periods. At the last examination, the Veteran reiterated the same complaints as before—daily knee pain with swelling, stiffness, popping, and cracking—and added that his knee pain and stability had worsened. Initial range-of-motion measurements showed flexion to 130 degrees and extension to 5 degrees with pain during flexion, extension, and weight-bearing. The examiner detected a grinding sound (crepitus) and found objective evidence of pain on palpation. After repetitive-use testing, the Veteran showed no additional functional loss or range-of-motion change. He reported flare-ups and reiterated the same complaints as before. Although the examination was not conducted during a flare-up or after repetitive use over time, the examiner found the exam to be medically consistent with the Veteran’s statements describing functional loss with repetitive use over time or flare-ups. She also found that the Veteran’s knee pain decreased his endurance and limited his activity daily. Muscle strength remained normal with no atrophy observed. The examiner noted a history of moderate lateral instability. Joint stability testing showed medial and lateral instability of 0 to 5 millimeters. The examiner found no evidence of meniscal dislocation but noted his meniscectomy and his residual pain, swelling, and antalgic gait. The Veteran continued to constantly use his knee brace for his stability and pain problems. The examiner also noted that he received steroid injections for his knee pain. Functionally, the Veteran’s complaints remained the same—decreased ability to stand, sit or walk for prolonged periods. Lastly, the examiner noted no objective evidence of pain with passive range-of-motion or with non-weight bearing. During the appeal period, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended, effective February 7, 2021. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76,453 (Nov. 30, 2020). These amendments revised the rating criteria “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 a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by the amendment’s effective date. 38 U.S.C. § 5110(g); see also Kuzma v. Principi, 341 F.3d 1327, 1328 (Fed. Cir. 2003). If the amended version is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the amendment’s effective date. If the former version is more favorable, VA can apply the earlier version of the regulation for the period before and from the change’s effective date. Therefore, the Board will consider the Veteran’s claim under the old criteria before February 7, 2021, and both the old and the new rating criteria from February 7, 2021. The criteria that are more favorable to the Veteran will apply. Before the regulatory change, DC 5257 provided a 10 percent rating for “slight” recurrent subluxation or lateral instability, 20 percent when it is “moderate,” and 30 percent when the condition is “severe.” 38 C.F.R. § 4.71a (2019). The rating schedule does not define “recurrent,” “slight,” “moderate,” or “severe.” Where the terms are not defined in the regulation, courts presume those terms carry their ordinary dictionary meaning. Holmes v. Wilkie, No. 19-2495, 2020 U.S. App. Vet. Claims LEXIS 2131, at *9 (Nov. 25, 2020). The dictionary defines “recurrent” as returning or happening time after time, “slight” as small in amount, “moderate” as limited in scope or effect, and “severe” as very painful or harmful or of a great degree. MERRIAM WEBSTER’S COLLEGIATE DICTIONARY (11th ed. 2007). Effective February 7, 2021, DC 5257 provides a 30 percent rating for recurrent subluxation or instability and patellar instability where, among other things, a medical provider prescribes an assistive device (cane, crutch, walker, etc.) and a brace. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. at 76,463. As noted, the Veteran is currently in receipt of a 10 percent rating for slight lateral instability before March 15, 2018, and a 20 percent rating for moderate lateral instability after that. Prior to the change in regulations DC 5257 didn’t “speak to the type of evidence required and thus, objective medical evidence isn’t required.” English v. Wilkie, 30 Vet. App. 347, 349 (2018). Before March 15, 2018, the April 2012 examiner found the Veteran experienced functional loss, which included instability of station, and noted that he regularly used a brace. There was no evidence or history of recurrent patellar subluxation, and joint stability was normal, except he exhibited medial-lateral instability of 0-5 millimeters. In January 2014, the Veteran’s healthcare provider noted that the Veteran has a history of his knee giving out. In February 2015, he tripped on a mat at work and sprained his knee. The following April, joint stability testing was negative (i.e., normal) during a physical therapy consult. As before, the September 2016 examiner found no history of recurrent subluxation, and testing showed normal joint stability. She also detected a grinding sound (crepitus). The Veteran continued to use a knee brace but increased his frequency of use from regular to constant. In October 2017, the Veteran reported a history of falls, with his most recent being a month ago when he fell because his knee buckled. Based on the foregoing, the Board finds an initial disability rating higher than 10 percent for medial-lateral instability during the first stage of the appeal not warranted. In the last remand, the Board directed the examiner to comment on the Veteran’s improved joint instability testing results from the September 2016 examination. After reviewing the evidence, the March 2018 examiner reconciled the results by explaining that his physical therapy from 2015 had improved his muscle tone and decreased his instability. The joint stability testing results support the examiner’s opinion. The Veteran went from medial-lateral instability of 0-5 millimeters in April 2012 to normal in April 2015 and September 2016. From March 15, 2018, the examiner found no history of recurrent subluxation but a history of moderate lateral instability. He exhibited normal anterior and posterior instability and medial and lateral instability of 0 to 5 millimeters. He continued to use his knee brace constantly to treat his knee pain. In September 2019, the Veteran reported another fall. This time, he injured his right knee carrying groceries up some stairs and fell. The Board also finds an initial rating higher than 20 percent for medial-lateral instability during the second stage of the appeal not warranted under the old and new criteria. The March 2018 examiner opined that the Veteran’s knee instability had worsened since the last examination and characterized his history of lateral instability as moderate. Relying on this finding, the RO increased the Veteran’s disability rating from slight to moderate to reflect this worsening. The Board acknowledges that the Veteran constantly wears a knee brace and that his medical records reflect another fall during this period. However, the Board concludes that the Veteran’s knee instability is not very harmful or of a great degree (“severe”). And lastly, there’s no evidence from the last examination or the Veteran’s subsequent medical records that he uses anything but a knee brace, ruling out a 30 percent rating under the new rating criteria. Moving on to the Veteran’s degenerative joint disease (DJD) status post chondroplasty and meniscectomy, he is currently in receipt of a 10 percent disability rating for degenerative arthritis with noncompensable limited flexion of the right knee. The next higher rating is warranted when knee flexion is limited to 30 degrees or less. A veteran may, however, be entitled to a higher disability rating than that supported by mechanical application of the rating schedule where there is evidence that his disability causes additional functional loss—“the inability . . . to perform the normal working movements of the body with normal excursion, strength, fatigability, or coordination and endurance”—including as due to pain. 38 C.F.R. § 4.40. A higher disability evaluation may also be awarded where there is a reduction of a joint’s normal excursion of movement in different planes, including changes in the joint’s range of movement, strength, fatigability, or coordination. 38 C.F.R. § 4.45. However, the veteran’s functional loss must limit motion sufficient to satisfy the next disability rating to be entitled to a higher disability rating under §§ 4.40 and 4.45. See Thompson v. McDonald, 815.3d 781, 785-86 (Fed. Cir. 2016). Unlike DC 5257, DC 5260 was not changed when VA revised the rating criteria for evaluating musculoskeletal disabilities. Shortly before and during the appeal period, the Veteran’s displayed the following range-of-motion for knee flexion: 100 degrees (October 2010), 115 degrees (Novembers 2010), 130 (April 2012), 117 degrees (April 2015), 130 degrees (September 2016), “near [full range-of-motion]” (September 2017), and 130 degrees (March 2018). In March and December 2015, he displayed 125 and 135 degrees of passive range-of-motion, respectively. None of the evidence of record shows knee flexion limited to 30 degrees or less. Therefore, the Board finds that the preponderance of the evidence is against a rating higher than 10 percent for the Veteran’s degenerative arthritis. The Board acknowledges that certain activities (using the stairs, walking, or standing too long, etc.) cause flare ups, which increase knee pain and swelling, and limit the Veteran’s ability to run, ascend and descend stairs, stand for more than 10 minutes, or walk more than 50 yards. But even considering the Veteran’s functional loss during flare-ups or repeated use over time, the evidence does not show that the Veteran’s knee flexion would be limited to 30 degrees or less. Although a higher rating is not warranted for leg flexion or instability, separate disability ratings are potentially available. “[E]valuation of a knee disability under DC 5260 does not preclude . . . separate evaluation of a meniscal disability of the same knee under DC 5258 or 5259.” Lyles v. Shulkin, 29 Vet. App. 107, 109 (2017). The former provides a 20% evaluation for dislocation of semilunar cartilage (meniscus) with frequent episodes of locking, pain, and effusion into the joint and the latter provides a 10% evaluation for removal of semilunar cartilage. 38 C.F.R. § 4.71a. Here, no examiner found evidence of meniscal dislocation, ruling out DC 5258. However, the Veteran underwent an arthroscopic meniscectomy in September 2010 for a meniscal tear. During the operation, the surgeon resected the anterior horn of the lateral meniscus. Accordingly, a 10 percent rating for removal of symptomatic semilunar cartilage is warranted throughout the appeal period. To summarize, the Board makes the following findings: the preponderance of the evidence is against (1) an initial disability higher than 10 percent for the Veteran’s degenerative arthritis, (2) an initial disability rating higher than 10 percent for medial-lateral instability before March 15, 2018, or (3) higher than 20 percent after that. However, the Board concludes a separate disability rating of 10 percent for removal of symptomatic semilunar cartilage is warranted throughout the appeal period. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Canedy, 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.