Citation Nr: 21024164 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 16-24 552A DATE: April 22, 2021 ORDER An initial disability rating in excess of 10 percent for left knee sprain and left knee meniscal tear is denied. An initial disability rating in excess of 10 percent for left knee lateral instability associated with left knee sprain and meniscal tear is denied. FINDINGS OF FACT 1. The Veteran’s left knee flexion has been limited to no less than 80 degrees, including upon clinical examination and as determined to result after repeated use over time and during flare-ups. 2. The Veteran’s left knee instability has been manifested by no more than slight lateral instability. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for left knee sprain and left knee meniscal tear have not been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code (DC) 5260. 2. The criteria for an initial rating in excess of 10 percent for left knee lateral instability have not been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, DC 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 2010 to May 2014. This appeal arises from a January 2015 rating decision by the VA Regional Office (RO) and was previously remanded by the Board of Veterans’ Appeals (Board) in November 2018. In the January 2015 rating decision, the RO granted service connection for left knee sprain with a 10 percent rating effective May 11, 2014. The Veteran appealed that initial rating, and in November 2018, the Board remanded the appeal for additional development. Substantial compliance with the remand requests has been accomplished such that the Board may proceed to consider the claims. See Stegall v. West, 11 Vet. App. 268 (1998). While on remand, the RO, in a June 2020 rating decision, continued the 10 percent rating for left knee sprain (and characterized the disability as left knee sprain and left knee meniscal tear) and separately granted service connection for left knee lateral instability with a 10 percent rating effective November 15, 2019. The additional rating constitutes a partial grant of the benefits sought on appeal; therefore, the issue remains on appeal for consideration by the Board. See AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original or an increased rating remains in controversy when less than the maximum available benefit is awarded). The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Increased Rating Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Whether the issue is one of an initial rating or an increased rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of the same disability under several DCs, known as pyramiding, must be avoided; separate ratings may be assigned for distinct disabilities resulting from the same injury only where the symptomatology for one condition is not duplicative or overlapping with the symptomatology of the other condition. See 38 C.F.R. § 4.14; see also Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of his symptoms. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). The United States Court of Appeals for Veterans Claims (Court), in Correia v. McDonald, 28 Vet. App. 158 (2016), held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion (ROM) measurements of the opposite undamaged joint. Thus, the Court’s holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate. Further, in evaluating joint disabilities, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. at 592. Additionally, the Court has stated that flare-ups must be factored into an examiner’s assessment of functional loss. Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran was granted service connection for left knee sprain evaluated as 10 percent disabling effective May 11, 2014, under 38 C.F.R. § 4.71a, DC 5260, pertaining to limitation of flexion. As noted in the introduction, this appeal stems from the Veteran’s disagreement with the initial 10 percent rating. Subsequently, the RO granted a separate 10 percent rating effective November 15, 2019, for left knee lateral instability associated with left knee sprain and meniscal tear under DC 5257. The Veteran’s current 10 percent rating for left knee sprain and left knee meniscal tear is based on painful limitation of motion. See 38 C.F.R. § 4.59, 4.71a, DC 5260. 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 DC 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. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). 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. Here, however, because there is no evidence regarding the Veteran’s left knee since February 7, 2021, only the former regulations apply. 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 AOJ. 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 claims. Under the pre-amended criteria, degenerative arthritis as shown by x-ray studies is rated based on limitation of motion of the affected joint. 38 C.F.R. § 4.71a, DC 5003. When, however, the limitation of motion is noncompensable under the appropriate DC, a rating of 10 percent may be applied to each such major joint or group of minor joints affected by limitation of motion. A rating of 20 percent may be applied where there are occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, DC 5003. The limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. Under DC 5260, flexion of the leg limited to 60 degrees is rated as noncompensably (zero percent) disabling; flexion of the leg limited to 45 degrees is rated 10 percent disabling; flexion of the leg limited to 30 degrees is rated 20 percent disabling; and flexion of the leg limited to 15 degrees is rated 30 percent disabling. Under DC 5257, slight recurrent subluxation or lateral instability will be rated as 10 percent disabling, moderate recurrent subluxation or lateral instability will be rated as 20 percent disabling, and severe recurrent subluxation or lateral instability warrants a 30 percent rating. Also relevant to any discussion of knee disabilities are the criteria under DCs 5256 through 5263. 38 C.F.R. § 4.71a. Under DC 5256, favorable ankylosis of the knee, in full extension or in slight flexion between zero degrees and 10 degrees warrants a 30 percent disability rating; ankylosis in flexion between 10 degrees and 20 degrees warrants a 40 percent disability rating; ankylosis in flexion between 20 degrees and 45 degrees warrants a 50 percent disability rating; and extremely unfavorable ankylosis in flexion at an angle of 45 degrees or more warrants a 60 percent disability rating. Under DC 5258, a claimant is entitled to a 20 percent rating for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint. Under DC 5259, a 10 percent evaluation is assigned for symptomatic removal of semilunar cartilage. Under DC 5261, extension of the leg limited to 5 degrees is rated as noncompensably (zero percent) disabling; extension of the leg limited to 10 degrees is rated 10 percent disabling; extension of the leg limited to 15 degrees is rated 20 percent disabling; extension of the leg limited to 20 degrees is rated 30 percent disabling; extension of the leg limited to 30 degrees is rated 40 percent disabling; and extension of the leg limited to 45 degrees is rated 50 percent disabling. Under DC 5262, a 10 percent rating is warranted for malunion of the tibia and fibula with slight knee or ankle disability. A 20 percent rating is warranted for malunion of the tibia and fibula with moderate knee or ankle disability. A 30 percent rating is warranted for malunion of the tibia and fibula with marked knee or ankle disability. A maximum 40 percent rating is warranted with nonunion of the tibia and fibula, with loose motion, requiring a brace. Under DC 5263, a 10 percent rating is warranted for genu recurvatum (acquired, traumatic, with weakness and insecurity in weight-bearing objectively demonstrated). Effective February 7, 2021, DC 5257 was amended to provide ratings for recurrent subluxation or lateral instability. A 30 percent rating is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability and a medical provider prescribing both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. A 20 percent rating is warranted for either (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribing a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation; or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribing either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. 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 (e.g., cane(s), crutch(es), walker) or bracing for ambulation. DC 5257 also provides for ratings based on patellar instability. A 30 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 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 one of the following: 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. Note [1] to DC 5257 states that for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note [2] to DC 5257 states that 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. Also effective February 7, 2021, DC 5262 is amended to provide for a 40 percent rating for nonunion of the tibia and fibula, with loose motion, requiring brace. Malunion of the tibia and fibula are to be evaluated under diagnostic codes 5256, 5257, 5260, or 5261 for the knee or 5270 or 5271 for the ankle, whichever results in the highest evaluation. Separate ratings are also provided for medial tibial stress syndrome (MTSS) or shin splints. Normal ranges of motion of the knee are to zero degrees in extension, and to 140 degrees in flexion. 38 C.F.R. § 4.71, Plate II. Turning to the evidence of record, VA afforded the Veteran knee examinations in December 2014 and April 2016, and another one in November 2019, in accordance with the Board’s November 2018 remand instructions. At the December 2014 examination, with respect to the left knee, the examiner noted the following symptoms: less movement than normal, pain on movement, pain on palpation, shin splints, and flare-ups resulting in decreased ROM and pain according to the Veteran. No deformity, instability, weakness, episodes of dislocation or subluxation, or arthritis were reported. The examiner noted that the Veteran did not have a meniscectomy but had meniscal tear, frequent episodes of joint “locking,” and frequent episodes of joint pain. Left knee ROM testing showed: flexion to 130 degrees with objective evidence of painful motion; no limitation of extension; and after repetitive use testing, flexion to 120 degrees with additional functional loss reported as less movement than normal and pain on movement, and no limitation of extension. At the April 2016 examination, the Veteran reported popping in the left knee with crouching, stairs, and walking; feels weak when walking; feels like it will give out when stepping off a curb; and flare-ups resulting functional loss described by such symptoms. The examiner reported the following observations: abnormal ROM, pain on flexion and extension, pain with weight bearing, pain on palpation around the kneecap with a positive patellar compression test, and crepitus. The April 2016 examiner noted no meniscal conditions, joint instability, or shin splints but reported that the Veteran hand left knee degenerative or traumatic arthritis with imaging studies available. Regarding instability, the examiner noted that the Veteran did not have a history of recurrent subluxation, lateral instability, or recurrent effusion. Left knee ROM testing showed: flexion to 125 degrees with pain causing functional loss; extension from 125 to zero degrees with pain causing functional loss; and after repetitive use testing, no additional functional loss or ROM. With respect to the Veteran’s reported flare-ups, the examiner stated the examination is neither medically consistent or inconsistent with the Veteran’s statements describing functional loss during flare-ups and was unable to comment on the flare-ups’ limiting of functional ability without mere speculation because “not seeing the Veteran under these circumstances.” In November 2018, the Board remanded the appeal for further development, to include an examination that complied with Sharp. Thus, VA afforded the Veteran the November 2019 examination. At the November 2019 examination, with respect to the left knee flare-ups, the examiner noted the following subjective reports by the Veteran: flare-ups occur 2-3 times a month sometimes lasting up to a week; the flare-ups range but are usually moderate with a severe episode at least once every couple months; flare-ups are precipitated by long hours on feet; when sitting unable to bend knee; and flare-ups alleviated by ice and heat. The Veteran reported that he is unable to bend or apply weight to the left knee when flare-ups occur and, after work, the left “knee will blow to give as [he] walks” and reported current symptoms: knee gives out, unable to squat, cannot sit on knees, knee will crack or pop, pain will increase after day’s work, will occasionally swell, unable to walk long distance or on uneven ground, and cannot work in tight spaces. The November 2019 examiner reported the following observations: abnormal ROM, pain on flexion and extension causing functional loss, pain on palpation at the lateral and medial joint line with a severity of 5-6/10, and crepitus. No deformity, recurrent episodes of dislocation or subluxation or effusion, shin splints, or arthritis were reported. The examiner noted that the Veteran had a left knee meniscal tear with frequent episodes of joint “locking,” and frequent episodes of joint pain. The examiner noted the absence of evidence for ankylosis, pain on bilateral knee passive motion, and pain on non-weight bearing testing of bilateral knees. Left knee ROM testing showed: flexion to 110 degrees with pain causing functional loss; extension from 110 to zero degrees with pain causing functional loss; and after repetitive use testing, no additional functional loss or ROM. However, the examiner indicated that pain, weakness, fatigability, or incoordination would significantly limit functional ability with repeated use over time as well as during flare-ups and described such limitation as the following limitation in ROM: flexion to 80 degrees with pain causing functional loss; extension from 80 to zero degrees. The November 2019 examiner also reported normal muscle strength testing, no shin splints, and no other pertinent findings. However, unlike the previous examinations, abnormal stability tests were reported for the left knee: history of slight lateral instability measured as 1+ (0-5 millimeters). The Board notes at the outset that the VA examinations, taken in conjunction with medical treatment records showing consistent left knee treatment, are an adequate basis upon which to determine the extent and severity of the Veteran’s left knee disability. Although whether there was pain with passive movement and nonweight-bearing was not elicited at the two earlier examinations, the Veteran reported popping in the left knee with crouching, stairs, and walking; feels weak when walking; feels like it will give out when stepping off a curb; and flare-ups resulting functional loss described by such symptoms, suggesting increased pain with active and weight-bearing activities. As such, active and weight-bearing motion as captured by all examinations is more likely to represent the most severe limitation of motion caused by the disability. When the Veteran reported flare-ups, the November 2019 examiner determined the additional loss of function in terms of ROM. Given the totality of the information, including the Veteran’s own descriptions of his limitations, the Board finds that the requirements of DeLuca, Sharp, and Correia have been adequately addressed. DeLuca v. Brown, 8 Vet. App. at 202; Sharp v. Shulkin, 29 Vet. App. at 32; Correia v. McDonald, 28 Vet. App. at 158. The Board also notes that in a September 2020 statement, the Veteran’s representative indicates the Veteran’s left knee sprain “has increased in severity.” In the same statement, the representative also concludes that the Veteran believes “the evidence in his claims folder supports his contention and request benefits sought….” Thus, it is unclear whether the Veteran is contending his left knee sprain “has increased in severity” since the November 2019 VA examination or, in general has “increased in severity” beyond the current ratings. The VA outpatient treatment records, through June 2020, however, do not suggest the Veteran’s left knee is worse than as described in the November 2019 VA examination. In particular, those VA outpatient treatment records include an unremarkable MRI, and complaints of left knee pain, with “occasional flairs” with activity. These records are largely consistent with the findings of the November 2019 VA examination report and, therefore, there is nothing to suggest a worsening in disability since the last VA examination. The Board finds the evidence is adequate to adjudicate the claim on appeal. 1. An initial disability rating in excess of 10 percent for left knee sprain and left knee meniscal tear is denied. The Board notes that the criteria under which the Veteran’s left knee is currently rated, 38 C.F.R. § 4.71a, DC 5260, was not affected by the February 7, 2021, amendments. Under DC 5260, the Veteran’s left knee disability did not warrant a rating in excess of 10 percent at any time during the appeal period. The next higher rating of 20 percent requires flexion limited to 30 degrees, and here, upon clinical examination or as determined to result after repeated use over time or during flare-ups, there most limitation of flexion was to 80 degrees. See 38 C.F.R. § 4.59; Mitchell v. Shinseki, 25 Vet. App. at 32. Although flexion was not limited to a compensable degree during the appeal period, the RO awarded an initial 10 percent rating, reasoning that the Veteran exhibited functional loss due to painful motion. Accordingly, a rating in excess of 10 percent for left knee sprain and meniscal tear under DC 5260 is not warranted. The Board has considered whether rating the left knee disability under additional or alternative DCs pertaining to the knees would be more appropriate or advantageous to the Veteran. However, rating the disability under DC 5256 is not indicated as there is no evidence of ankylosis. While it has been noted that the Veteran has a torn left meniscus with “locking” and pain, the Veteran does not have effusion into the joint or removal of the semilunar cartilage that would warrant a rating under DC 5258 or DC 5259, respectively. See generally Lyles v. Shulkin, 29 Vet. App. at 107 (holding that ratings under DC 5257, 5260, and 5261 do not necessarily preclude ratings under DCs 5258 and 5259). Extension has not been limited to 5 degrees such that additional rating might be available under DC 5261. Finally, there is no malunion or nonunion of the tibia and fibula and no genu recurvatum indicating rating under DC 5262 and DC 5263. However, as mentioned previously, the RO has awarded a separate 10 percent rating under DC 5257, which is further discussed below. 2. An initial disability rating in excess of 10 percent for left knee lateral instability associated with left knee sprain and meniscal tear is denied. The RO awarded a separate 10 percent rating for instability as objectively shown only at the November 2019 examination. The November 2019 examiner indicated that the Veteran has slight left knee lateral instability (and indicated the range of abnormal movement in millimeters), which is commensurate with the currently assigned 10 percent rating. Moderate or severe recurrent subluxation or recurrent instability that would warrant 20 percent and 30 percent ratings, respectively, has not been shown in either the examinations or treatment notes of record. As mentioned above, the record does not include evidence that would make the recent DC amendments for knee disabilities applicable here. Additionally, the evidentiary record does not reasonably raise the prospect that the Veteran’s left knee disability is not and cannot be adequately rated under the rating schedule. In sum, Board finds that the preponderance of the evidence is against the Veteran’s claim for ratings higher than the two currently assigned 10 percent ratings for left knee disability. As the preponderance of evidence is against a rating in excess of 10 percent under DC 5260 and separately under DC 5257, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Santiago, 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.