Citation Nr: 21023466 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 16-55 340 DATE: April 20, 2021 ORDER Effective October 31, 2016, entitlement to a separate 10 percent rating for right knee instability is granted. Effective December 28, 2020, entitlement to a separate rating of 20 percent for right knee instability is granted. FINDINGS OF FACT 1. From October 31, 2016, the Veteran’s right knee disability was manifested by slight instability. 2. From December 28, 2020, the Veteran’s right knee disability is manifested by moderate instability. CONCLUSIONS OF LAW 1. Effective October 31, 2016, the criteria for a separate 10 percent rating for right knee instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5257. 2. Effective December 28, 2020, the criteria for separate 20 percent rating for right knee instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.40, 4.45, 4.59, 4.71a, DC 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from March 1990 to July 2012, including service in Afghanistan. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In November 2018, the Board granted a 10 percent disability rating for pain associated with the Veteran’s right knee patellofemoral pain syndrome but denied separate ratings under other knee related diagnostic codes, including one for lateral instability. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In September 2019, the Court granted the parties’ Joint Motion for Partial Remand (JMPR), remanding the Veteran’s claim to the Board. Specifically, the parties agreed that the Board erred when it provided an inadequate statement of reasons or bases for its weighing of medical evidence against the Veteran’s lay statements in determining whether the Veteran’s experiences lateral instability in his right knee. Accordingly, the Veteran’s claim returned to the Board for the limited consideration of whether a separate disability rating for lateral instability of the right knee under Diagnostic Code 5257 is warranted. This matter was previously before the Board in February 2020 and November 2020 and was remanded for additional development. In a January 2021 rating decision, the RO granted a separate rating of 10 percent for lateral instability of the right knee effective December 28, 2020. The Veteran has not expressed satisfaction with the separate 10 percent rating for lateral instability of the right knee and he is presumed to be seeking the maximum benefit allowed by law and regulation; thus, the matter remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). Increased Rating Entitlement to a separate 10 percent rating for right knee instability. 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. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The percentage ratings in VA’s Schedule for Rating Disabilities (Rating Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. 38 C.F.R. § 4.1. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). The Veteran contends that he is entitled to an initial increased rating for instability of the right knee. The Veteran’s right knee instability is rated 10 percent disabling under Diagnostic Code (DC) 5257 for slight subluxation or lateral instability, effective December 28, 2020. Under the former VA regulations, 38 C.F.R. § 4.71a, DC 5257, slight recurrent subluxation or lateral instability was rated as 10 percent disabling, moderate recurrent subluxation or lateral instability rated as 20 percent disabling, and severe recurrent subluxation or lateral instability warranted a 30 percent rating. The terms “mild,” “moderate” and “severe” were not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board was to evaluate all of the evidence to the end that its decision is “equitable and just.” 38 C.F.R. § 4.6. Pursuant to the revised regulations, effective February 7, 2021, 38 C.F.R. § 4.71a, DC 5257 under recurrent subluxation or instability, a 10 percent rating is warranted 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. A 20 percent rating is warranted for (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device 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 30 percent rating is warranted 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. Regarding recurrent patellar instability, 10 percent disability 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. A 20 percent disability 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 one of the following: A brace, cane, or walker. A 30 percent disability 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 and either a cane or a walker. Note (1): For patellar instability, the patellofemoral medial complex consists of the quadriceps tendon, the patella, and the patellar tendon. After a review of the evidence of record, the Board finds that under DC 5257, a separate 10 percent rating for slight right knee instability is warranted from October 31, 2016, and a 20 percent rating for moderate right knee instability is warranted from December 28, 2020. Service treatment records (STRs) indicate no lateral or medial instability of the right knee. See April 2012, STR. Post-service medical treatment records indicate the Veteran was not prescribed any assistive devices for locomotion and has not had surgery on his right knee. A November 2019 MRI revealed a horizontal cleavage plane tear of the posterior horn of the medial meniscus intersecting the superior articular surface. Upon examination, the Veteran’s ligaments were stable and musculoskeletal instability was absent. See VA treatment records from November 2016 to December 2020; November 2019, Private treatment record. On October 31, 2016, the Veteran indicated he has lateral instability in his right knee when standing from a sitting or squatting position but did not describe the extent of his lateral instability. See October 2016, VA Form 9. The Veteran was provided three VA examinations for his knees. In the June 2012 a and July 2020 examinations, right knee joint stability tests were normal. In December 2020, a VA examiner diagnosed right knee instability and patellofemoral pain syndrome. The Veteran reported lateral instability that causes his right knee to frequently lock up on him, collapse laterally, and difficulty bending, squatting, or walking up and down stairs. The Veteran further stated his right knee is so unstable he has to hold onto walls to prevent falls. Joint stability testing indicated lateral instability of 1+ (0-5 millimeters) but normal anterior, posterior, and medial stability. The examiner noted the Veteran does not use any assistive devices as a normal mode of locomotion. The examiner opined that the Veteran’s right knee instability was slight in October 2016 but has now increased to mild instability as of the date of the examination (i.e., December 28, 2020). The examiner further stated the Veteran “cannot tell [] how long the right knee instability has been present (but) it has been gradually getting worse for the past several months.” The examiner found the instability is a progression from the Veteran’s original patellofemoral pain syndrome injury. See VA examinations dated June 2012, July 2020, and December 2020. In applying the former VA Musculoskeletal System and Muscle Injuries Schedule for Rating Disabilities, prior to February 7, 2021, the December 2020 VA examiner, based on the Veteran’s competent and credible lay statements, found the Veteran began to exhibit slight lateral instability of the right knee as of October 31, 2016. See Swain v. McDonald, 27 Vet. App. 219, 224 (2015) (holding that the effective date for an increased rating is predicated on when the increase in the disability can be ascertained); December 2020, VA examination; see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As the parties noted in the JMPR, objective medical evidence is not required to establish lateral knee instability under DC 5257. Therefore, the objective medical evidence is not categorically found to be more probative than the Veteran’s lay evidence with respect to DC 527. English v. Wilkie, 30 Vet. App. 347, 349 (2018). However, when assessing whether lateral knee instability is the type of symptom about which a lay person is competent to testify, the Board remains cognizant of the prohibition on making independent medical judgments. English v. Wilkie, 30 Vet. App. 347, 353 (2018). To this end, the Board finds that it takes no degree of medical expertise to understand that the knee cannot be unstable if there is no underlying medical pathology from which instability could arise. See id.; see also Fountain v. McDonald, 27 Vet. App. 258, 273, 274-75 (2015) (the Board must cite independent medical evidence to corroborate any finding regarding a medical question that is not the type for which lay evidence is competent). Here, in light of the competent lay evidence, in its role as a finder of fact, the Board finds that the normal joint stability tests and lack of objective evidence of instability in the June 2012 and July 2020 VA examinations, as well as the April 2012 STRs and November 2019 private treatment record, weighs in favor of a rating for “slight” rather than “moderate” or “severe” instability or subluxation from October 31, 2016. Accordingly, a 10 percent rating for right knee lateral instability is warranted from October 31, 2016. From December 28, 2020, the Board finds right knee instability worsened such that the Veteran must hold onto walls when standing from a seated or squatting position to prevent falls. See December 2020, VA examination. Therefore, the Board finds a 20 percent rating for “moderate” right knee instability is warranted from December 28, 2020, the date moderate instability was factually ascertainable. See Hart, 21 Vet. App. 505. Inasmuch as there is no medical or lay evidence of severe recurrent subluxation or instability in right knee from December 28, 2020, the Board finds that the Veteran’s disability picture is consistent with moderate instability, and a rating in excess of 20 percent for right knee instability is not warranted. Under the revised rating criteria, the Board notes that the record does not contain any evidence of (1) persistent right knee instability caused by an unrepaired, repaired, or failed repair of a complete or incomplete ligament tear or a sprain; (2) surgical repair for diagnosed patellofemoral pain syndrome; or (3) a prescription by a medical provider for a brace, cane, or walker. Thus, the Veteran would only be entitled to a 10 percent rating for right knee instability under the revised rating criteria from February 7, 2021, because diagnosed patellofemoral pain syndrome, though it causes recurrent instability, does not require a prescription from a medical provider for a brace, cane, or walker. As the revised rating code is not more favorable to the Veteran, the Board has assigned ratings in accordance with the old rating criteria. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Straughn, 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.