Citation Nr: 21025242 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 18-33 100 DATE: April 27, 2021 ORDER Entitlement to a rating more than 10 percent for left knee chondromalacia is denied. REMANDED Entitlement to service connection for a right knee disability is remanded. FINDING OF FACT The Veteran’s left knee chondromalacia is manifest by no more than mild instability and subluxations; there is no sprain or ligament tear, and the left knee has not required surgery.   CONCLUSION OF LAW The criteria for a rating more than 10 percent for left knee 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 5257. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1991 to January 1993. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded these claims for additional development in February 2019 and June 2020. 1. Increased rating for left knee chondromalacia. The Veteran seeks a rating more than 10 percent for left knee instability related to his service-connected left knee chondromalacia. Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C. § 1155. Percentage evaluations are determined by comparing the manifestations of a particular disorder with the requirements contained in the VA’s Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA regulations set forth at 38 C.F.R. §§ 4.40, 4.45, and 4.59 provide for consideration of functional impairment due to pain on motion when evaluating the severity of a musculoskeletal disability. When evaluating disabilities of the musculoskeletal system, functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements must be considered. 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202 (1995). Consideration must also be given to weakened movement, excess fatigability, and incoordination. 38 C.F.R. § 4.45. Joint testing is to be conducted on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158, 170 (2016). If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). 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’s left knee chondromalacia is currently assigned a 10 percent rating under Diagnostic Code 5257 for slight instability. Effective February 7, 2021, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended, including Diagnostic Code 5257. 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. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the amended version is more favorable, the implementation of that regulation can be no earlier than the amendment’s effective date. See 38 U.S.C. § 5110(g). 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 assuming the criteria were met prior to the change. Therefore, the Board will consider the Veteran’s claim under the old and new criteria as appropriate. Here, we find that neither criteria is more favorable and there is no prejudice to the Veteran in our consideration of the facts. Before the regulatory change, Diagnostic Code 2557 provided a 10, 20, or 30 percent ratings for slight, moderate, or severe recurrent subluxation or lateral instability of the knee. See 38 C.F.R. § 4.71a, Diagnostic Code 5257. The terms mild, moderate, and severe are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. It should also be noted that use of terminology such as mild or moderate by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Effective February 7, 2021, the new version of Diagnostic Code 5257 provides, in pertinent part, that for recurrent subluxation or instability of the knee, a 10 percent rating for a 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. 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 30-percent rating is assigned for recurrent subluxation or instability when there is an 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. See 85 Fed. Reg. at 76463. Alternatively, the new version of Diagnostic Code 5257 provides, in pertinent part, that for patellar instability, a 10 percent rating 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 rating is assigned 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 rating is assigned 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. Id. For patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Id., Note (1). 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). Id., Note (2). Separate ratings may be assigned for knee disabilities when none of the symptomatology overlaps and the separate rating is based on additional disabling symptomatology. Disability of the knee may be rated on the basis of limitation of motion. A 0 percent rating is warranted when flexion is limited to 60 percent. A 10 percent rating is warranted when flexion is limited to 45 degrees. A 20 percent rating is warranted where flexion is limited to 30 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. A 0 percent rating is warranted for extension limited to 5 degrees. 10 percent rating is warranted when 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 with extension limited to 20 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. The Veteran is currently in receipt of a separate 30 percent evaluation for limited extension of the left knee extension. Separate ratings may be awarded for limitation of flexion and limitation of extension of the same knee joint. VAOPGCPREC 09-04, 69 Fed. Reg. 59990 (2004). A precedential opinion by VA General Counsel held that separate ratings may be assigned in cases where a service-connected knee disability includes both a compensable limitation of flexion under Diagnostic Code 5260 and a compensable limitation of extension under Diagnostic Code 5261, provided that the degree of disability is compensable under each set of criteria. Id. The diagnostic criteria applicable to semilunar cartilage are found at 38 C.F.R. § 4.71a, Diagnostic Code 5258. Under that code, a maximum 20 percent rating is warranted for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. Symptoms due to the removal of the semilunar cartilage of either knee warrant a 10 percent rating, which is the maximum rating under the diagnostic code. 38 C.F.R. § 4.71a, Diagnostic Code 5259. An evaluation of a knee disability under Diagnostic Code 5257 or 5261 or both does not, as a matter of law, preclude separate evaluation of a meniscal disability of the same knee under Diagnostic Code 5258 or 5259, and vice versa. Lyles v. Shulkin, 29 Vet. App. 107 (2017). Rather, a separate evaluation in a given case depends on whether manifestations for which a separate evaluation is being sought have already been compensated by an assigned evaluation under a different diagnostic code; and that, in evaluations of musculoskeletal disabilities based on limitation of motion, a manifestation has not been compensated, for separate evaluation and pyramiding purposes, if that manifestation did not result in an elevation of the evaluation under 38 C.F.R. §§ 4.40 and 4.45, pursuant to principles set forth in DeLuca. Id. at 118–19. i. Analysis. After considering the evidence, we conclude that a rating more than 10 percent under either version of Diagnostic Code 5257 is not warranted, and that a separate rating beyond that already assigned under any other potentially applicable diagnostic code is not warranted. Although instability has been shown on certain VA examinations, and the Veteran has reported left knee instability and patellar dislocations, the Board is left with little evidence indicating the instability and subluxation has been moderate or severe. No history of left knee instability or recurrent patellar dislocation or subluxation was noted on the private April 2015 examination, which also showed normal joint stability test results. The Veteran did report that his left kneecap moves. Similar findings were documented on the January 2016 VA examination report, which shows normal left knee stability test results and no history of recurrent subluxation of lateral instability. Left knee instability and recurrent patellar dislocation were assessed on the February 2020 VA examination report. The Veteran reported left knee patellar dislocations in which the patella slides laterally, that his left knee popped and felt loose, and that he had fallen due to both knees giving way. The examiner recorded a history of slight lateral instability of the left knee, and joint testing showed medial instability of 1+ (0-5 millimeters), and other stability tests were normal. The March 2020 examination showed left knee anterior instability of 1+ (0-5 millimeters), and other stability tests were normal. The November 2020 examination reflects normal joint instability testing. We note that the Veteran has frequently reported using a cane and sleeve braces due to bilateral knee instability. None of the Veteran’s treatment records describe knee instability as moderate or severe or show any findings consistent with moderate or severe recurrent subluxation or lateral instability. Specifically, the knee examinations of record, to include the most recent examinations, show instability as no more than mild in the left knee. Importantly, the VA examiners who identified a history of left knee instability described the instability as mild. This is reflected in the February and March 2020 examination reports, which show medial and anterior instability of 1+ (0-5 millimeters) yet are absent findings of lateral instability. While the Veteran has reported left knee subluxation (patellar dislocations), there is little information regarding the severity and frequency of the left patellar dislocations. Notably, patellar dislocations and related symptomatology appear to be absent when the Veteran has been examined. In addition, the private treatment records the Veteran has provided and the VA treatment records are absent any patellar subluxation or complaints regarding dislocations. The Board finds that the preponderance of the evidence is against a rating more than 10 percent for left knee lateral instability under the old version of Diagnostic Code 5257. The Board has carefully considered the Veteran’s reports about instability and subluxation. We again note that the terms “slight,” “moderate,” and “severe” are not defined in the Schedule. Furthermore, objective medical evidence is not required to establish lateral knee instability under Diagnostic Code 5257, and objective medical evidence cannot be categorically found more probative than lay evidence with respect to this Diagnostic Code. See English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). The Board has also considered the Veteran’s personal testimony about his knee pain, instability, and dislocations. Although he is competent to report such symptoms, we must consider and weight the lay evidence against the medical evidence. Overall, the lay and medical evidence indicates that the instability symptoms have varied and suggest the presence of symptoms more nearly approximating no more than mild severity. We find the medical evidence showing no more than mild left knee instability to be more probative and more credible than the lay evidence regarding the severity and frequency of his left knee instability and subluxations. Regarding the new version of Diagnostic Code 5257, which is potentially applicable from February 7, 2021 forward, the Board notes that the Veteran does not qualify for a 20 or 30 percent rating under the new criteria. For recurrent subluxation or instability, a 20 or 30 percent rating requires a sprain, an unrepaired, or a failed repair of complete ligament tear, of which there is no evidence. For patellar instability, a 20 or 30 percent rating under the new criteria requires surgical repair, of which there is no evidence. The criteria for a rating higher than 10 percent under new Diagnostic Code 5257, whether based on recurrent subluxation or instability, or patellar instability, have not been met. Separate ratings can be assigned for knee disabilities when none of the symptomatology overlaps and the separate rating is based on additional disabling symptomatology. The Veteran is in receipt of an evaluation based upon limited extension of the left knee. A March 2020 rating decision granted a separate 30 percent evaluation under Diagnostic Code 5261 for limitation of extension of the left knee associated with the left knee chondromalacia, effective April 28, 2015. The Veteran has not challenged that rating or otherwise indicated that he disagrees with that rating. A separate rating under Diagnostic Code 5260 would only be permitted where limitation of flexion was compensable, which is not the case here, as no limitation of flexion of the left knee to 45 degrees is shown. See VAOPGCPREC 9-04 (2004). Left knee flexion was to 140 degrees on the private April 2015 examination and January 2016 VA examination. The February 2020 VA examination shows initial flexion to 120 degrees that was estimated to drop to 100 degrees during flareups. Initial flexion was 110 degrees in March 2020, falling to 105 degrees with repeated use and during flareups. The November 2020 VA examination showed left knee flexion limited to 80 degrees. A noncompensable rating under Diagnostic Code 5260 requires flexion be limited to 60 degrees, which has not been shown at any point during the period on appeal. We also note that the Veteran is in receipt of at least the minimum compensable rating for his painful, unstable left knee under Diagnostic Codes 5261 and 5257. See 38 C.F.R. § 4.59 (“It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.”). A separate rating under Diagnostic Code 5260 is therefore not warranted. Diagnostic Code 5258 provides a 20 percent evaluation for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint. The Veteran has reported constant left knee pain and frequent swelling and effusions throughout the appeals period. Such is reflected on multiple knee examination reports. However, there is little evidence suggesting the Veteran’s left knee locks or that any of the left knee symptomatology is related to dislocated semilunar cartilage. All VA examination reports are negative regarding meniscus conditions, and there is nothing in the VA or private treatment records that shows the presence of any left knee meniscus disability. The Veteran’s left patella dislocations are already contemplated by the 10 percent rating under Diagnostic Code 5257, which explicitly compensates for knee subluxation. Furthermore, the swelling has been noted as causing pain and reduced range of motion, which contemplated in part by the separate 30 percent rating under Diagnostic Code 5261. Diagnostic Code 5259 provides a 10 percent evaluation for symptomatic removal of the semilunar cartilage. There is no indication that the Veteran has had semilunar cartilage removed from his knee, so Diagnostic Code 5259 is inapplicable. In sum, the preponderance of the evidence is against the claim and there is no doubt to be resolved. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7; Gilbert, 1 Vet. App. at 55-56. REASONS FOR REMAND 1. Service connection for a right knee disability is remanded. The Veteran seeks service connection for a right knee disability, to include as secondary his service-connected left knee disabilities. This case was previously before the Board of Veterans Appeals (Board) in February 2019, when the Board remanded the claim to obtain new VA nexus opinions as to whether a right knee disability was proximately due to or aggravated by service-connected disease or injury. The requested opinions were obtained in February 2020, and the case returned to the Board in June 2020. The Board determined the February 2020 opinions were inadequate and remanded to obtain new VA nexus opinions as to whether a right knee disability was proximately due to or aggravated by the service-connected left knee disability. A new opinion addressing whether a right knee disability was proximately due to the Veteran’s service-connected left knee disability was obtained in November 2020. However, no opinion was provided as to whether a right knee disability was aggravated by the service-connected left knee disability. The November 2020 opinion is not fully adequate with respect to secondary service connection because it does not address aggravation. 38 C.F.R. § 3.310; El Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013). When VA undertakes to provide a VA opinion, it must ensure that the opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The June 2020 remand directives were not substantially complied with. Stegall v. West, 11 Vet. App. 268, 271 (1998). An addendum opinion addressing whether the Veteran’s service-connected left knee disabilities aggravate his right knee is required. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether any current right knee disability had an increase in severity due to service-connected left knee disease or injury. If a service-connected disease or injury aggravated the left knee disability, the examiner should identify the baseline prior to the increase. 38 C.F.R. § 3.310. A rationale for any opinion expressed must be provided. The Veteran’s lay statements should be addressed as appropriate. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Morse 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.