Citation Nr: 21023358 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 17-20 795 DATE: April 20, 2021 ORDER A separate, 10-percent rating under Diagnostic Code 5257 for right knee degenerative joint disease is granted from February 21, 2019, until February 3, 2020. A rating higher than 10 percent under Diagnostic Code 5003-5260 for right knee degenerative joint disease is denied. FINDINGS OF FACT 1. Resolving any reasonable doubt in the Veteran’s favor, the evidence is sufficient to establish that from February 21, 2019, until February 3, 2020, the Veteran’s right knee degenerative joint disease manifested in slight recurrent instability. 2. Across the appeal period, the evidence does not establish that the Veteran’s right knee degenerative joint disease manifested in flexion of the right leg limited to 45 degrees; or, in extension of the right leg limited to 10 degrees; or, in dislocated semilunar cartilage with frequent episodes of locking and effusion into the joint. CONCLUSIONS OF LAW 1. The criteria for a separate 10-percent rating under Diagnostic Code 5257 for right knee degenerative joint disease have been met from February 21, 2019, until February 3, 2020. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.71a, Diagnostic Code 5257. 2. The criteria for a rating higher than 10 percent under Diagnostic Code 5003-5260 have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5258, 5260, 5261. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1974 to February 1975. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) granting service connection for degenerative joint disease of the right knee and assigning an initial rating of 10 percent. In October 2019, the Board remanded the matter for a new VA examination. The Veteran seeks a higher initial rating for his right knee disability. Disability evaluations (ratings) are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects the Veteran’s ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Where a Veteran challenges the initial rating of a disability for which the Veteran has been granted service connection, the Board considers all evidence of severity since the effective date for the award of service connection. See Fenderson v. West, 12 Vet. App. 119 (1999). In evaluating a disability, the Board considers the current examination reports in light of the entire record to ensure that the current rating accurately reflects the severity of the condition. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s degenerative joint disease of the right knee is rated under Diagnostic Code (DC) 5003-5260. Under DC 5003, degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When the limitation of motion is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is available for each major joint or group of minor joints affected by limitation of motion objectively confirmed by findings such as painful motion, swelling, or muscle spasm. 38 C.F.R. § 4.71a. (An amendment to DC 5003 became effective February 7, 2021, but no material change was made. See 38 C.F.R. § 4.71a, DC 5003 (2019).) The applicable diagnostic codes for limitation of motion of the leg are DCs 5260 and DC 5261, for limitation of flexion and limitation of extension, or DC 5258. Currently, the Veteran’s knee limitation of motion is rated under DC 5260, in recognition of pain in the knee. 38 C.F.R. §§ 4.45, 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). Under DC 5260, where there is limitation of the flexion of the leg, a 20-percent rating is warranted where flexion is limited to 30 degrees, and a 30-percent rating, the highest rating available under this schedule, is warranted where flexion is limited to 15 degrees. Id. An additional rating is potentially available under DC 5261, where there is limitation of extension of the leg. Under DC 5261, a 10-percent rating is warranted where extension is limited to 10 degrees; a 20- percent rating is warranted where extension is limited to 15 degrees; a 30-percent rating is warranted where extension is limited to 20 degrees; a 40-percent rating is warranted where extension is limited to 30 degrees; and, a 50-percent rating, the highest rating available under this schedule, is warranted where extension is limited to 50 degrees. Id. Under DC 5258, a single rating of 20 percent rating is available where there is cartilage, semilunar, dislocated, with frequent episodes of “locking,” pain, and effusion into the joint. Id. Where there is recurrent subluxation or lateral instability of the knee, an additional separate rating is potentially available under DC 5257. Amendments to this regulation became effective February 7, 2021. 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, DC 5257). For the portion of the appeal period before that date, the Board will consider the Veteran’s claim under the previous and current regulations, applying whichever regulations are most favorable to the Veteran. See Kuzma v. Principi, 341 F.3d 1327, 1328 (2003). Under the pre-amended version of DC 5257, where there was recurrent subluxation or lateral instability, a 10-percent rating was warranted where the severity was slight, a 20-percent rating was warranted where moderate, and a 30-percent rating, the highest rating available under these criteria, was warranted where severe. 38 C.F.R. § 4.71a, DC 5257 (2019). Under the amended version of DC 5257, where there is recurrent subluxation or instability, a 10-percent rating is warranted where a sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causes persistent instability, and there is no prescription from a medical provider for an assistive device (cane, crutch, or walker) or bracing for ambulation. A 20-percent rating is warranted either (a) where the sprain, incomplete ligament tear, or repaired complete ligament tear causes persistent instability and a medical provider has prescribed a brace and/or assistive device for ambulation; or, (b) where the sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causes persistent instability and there is no prescription from a medical provider for an assistive device or bracing for ambulation. A 30-percent rating, the highest rating available under these criteria, is warranted where an unrepaired or failed repair of complete ligament tear causes persistent instability, and a medical provider has prescribed both an assistive device and bracing for ambulation. 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, DC 5257). The Board now turns to the evidence from August 1, 2013, the effective date of service connection for the right knee disability. A VA examination was provided on September 20, 2013. The Veteran was diagnosed with painful right knee degenerative arthritis since 2010. He reported that he had flare-ups upon standing up and walking and during rainy weather. Initial and repetitive use range-of-motion testing found flexion to 124 degrees and extension from 128 degrees to 0 degrees, with pain in both motions. Additional factors of disability included disturbance with locomotion and interference with sitting, standing, and weightbearing. Joint stability testing was normal and no recurrent subluxation or dislocation was noted; the Veteran reported the right knee gave out “rarely.” Functional impacts included constant pain in both knees when standing and walking. The Veteran was currently studying graphic arts and aiming to find a job that would allow him to work sitting down. A June 25, 2015 treatment note found mild tenderness over the right knee with a mobile fragment. On February 21, 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. He related that his knee used to give out “once or twice a month” but had now progressed to “once or twice a week.” The pain was continuous “but it’s getting worse and it starts to trick more often” such that he supported himself on handrails or walls. He always wore a brace on the knee, though it had been prescribed for his left knee and had not been prescribed for the right knee. Getting things from low spaces was very difficult, and he could no longer work in construction since he cannot climb up and down ladders. Following the Board’s prior October 2019 decision, a new VA examination was provided on February 3, 2020. Range of motion during flare-ups or with repeated use of over time was estimated to be 120 degrees of flexion and 140 degrees of extension. There was pain in both motions. Joint stability testing was normal, and there was no history of recurrent lateral instability or subluxation, and there was no report from the Veteran of the knee giving out. There was no history of recurrent effusion. Based on all the evidence, the Board finds that an additional rating of 10 percent is warranted from until February 21, 2019, until February 3, 2020, for recurrent instability. On February 21, 2019, the Veteran newly reported that his knee was giving out once or twice weekly, which the Board finds, resolving any reasonable doubt in the Veteran’s favor, is sufficient evidence to establish recurrent instability at a slight severity. 38 C.F.R. §§ 4.3, 4.71a, DC 5257 (2019). The Board further finds that a rating higher than 10 percent is not warranted, as this would require evidence establishing that recurrent instability was to a moderate severity, which the Board does not find is present in this record. Id. This separate 10-percent is warranted from February 21, 2019, until February 3, 2020. Regarding the beginning date of February 21, 2019, the Board acknowledges that at the September 20, 2013 VA examination the Veteran reported his knee gave out; however, he stated that it gave out “rarely,” and joint stability testing at the examination was normal. Thus, the Board does not find the evidence on this date is sufficient to establish recurrent instability at a severity more nearly approximating a slight severity. Id. As mentioned above, February 21, 2019, was the first date on which there was ascertainable evidence of a frequency of instability establishing recurrent instability at a slight severity. As to the ending date, at the February 3, 2020 VA examination joint stability testing was normal, and the examiner expressly found no recurrent instability. The Board notes that while objective medical findings regarding knee instability are not strictly more probative than a Veteran’s reports of instability, English v. Wilkie, 30 Vet. App. 347, 352 (2018), at the February 2020 examination there was no report from the Veteran that he was still having instability. Thus, the Board finds that there is not sufficient evidence from February 3, 2020, to support that the Veteran’s right knee was manifesting in recurrent instability. The Board further finds that higher ratings are not warranted under any other diagnostic codes. A rating higher than 10 percent is not warranted under DC 5260, as the evidence has not shown flexion of the right leg limited to 45 degrees. A separate rating under DC 5261 is not warranted, as the evidence has not shown extension of the right leg limited to 10 degrees. 38 C.F.R. § 4.71a. The 20-percent rating under DC 5258 is not warranted, as the evidence does not show that the Veteran has dislocated semilunar cartilage with frequent episodes of “locking” and effusion into the joint. Id. Finally, a higher rating under DC 5003 is not warranted, as there is not involvement of two or more major joints or two or more minor joint groups with occasional incapacitating exacerbations. Id. The Board notes that the 10-percent rating that is available for a major joint affected by limitation of motion where limitation of motion is noncompensable under the appropriate diagnostic code is not applicable here because the 10-percent rating already assigned was assigned under DC 5260, the code for limitation of motion, and because assigning an additional rating under DC 5003 would impermissibly award compensation twice for limitation of motion. 38 C.F.R. §§ 4.14, 4.71a. A separate 10-percent rating under DC 5257 is granted from February 21, 2019, until February 3, 2020; and, a rating higher than 10 percent under DC 5003-5260 is denied. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.71a, DCs 5003, 5257, 5258, 5260, 5261. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Davis, 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.