Citation Nr: 21025915 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 04-07 469A DATE: April 29, 2021 ORDER Entitlement to an increased rating in excess of 10 percent for right patella chondromalacia, limitation of flexion is denied. Entitlement to an increased rating in excess of 10 for left patella chondromalacia, limitation of flexion is denied. Entitlement to a separate increased rating of 10 percent for the entire appeal period for instability of the right knee is granted, subject to the laws that govern the payment of monetary benefits. Entitlement to a separate increased rating of 10 percent for the entire appeal period for instability of the left knee is granted, subject to the laws that govern the payment of monetary benefits. Entitlement to a separate increased rating of 10 percent from January 20, 2020 for right patella chondromalacia, limitation of extension is granted, subject to the laws that govern the payment of monetary benefits. Entitlement to a separate increased rating of 10 percent from January 20, 2020 for left patella chondromalacia, limitation of extension is granted, subject to the laws that govern the payment of monetary benefits. FINDINGS OF FACT 1. Prior to January 20, 2020, each knee was productive of limitation of flexion to no worse than 100 degrees, with full extension and pain, but without subluxation or ankylosis. 2. From January 20, 2020, each knee is shown productive of limitation of flexion to no worse than 100 degrees, and limitation of extension to 10 degrees, without subluxation or ankylosis. 3. Throughout the period of appeal, the Veteran’s left and right knee were each productive of slight instability. CONCLUSIONS OF LAW 1. The requirements for an evaluation in excess of 10 percent for right patella chondromalacia, limitation of flexion are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5014-5260 (2019). 2. The requirements for an evaluation in excess of 10 percent for left patella chondromalacia, limitation of flexion are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5014-5260 (2019). 3. The requirements are met for a separate 10 percent evaluation for instability for each knee for the entire appeal period. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5257 (2019); DC 5257 (2021). 4. The requirements are met for a separate 10 percent evaluation for limitation of extension for each knee from January 20, 2020. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5261 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1987 to April 1994. These matters come before the Board of Veteran’s Appeals (Board) on appeal from a rating decision promulgated by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony on the issues addressed by this decision before the undersigned Acting Veterans Law Judge (AVLJ) in February 2010, and before one of the undersigned VLJs in May 2013. Transcripts from both hearings are of record. Under VA regulations, a claimant is entitled to have final determination of his or her claim made by the Board member who conducted a hearing. 38 C.F.R. § 20.707. Further, the United States Court of Appeals for Veterans Claims (Court) has held that claimants are entitled to an opportunity for a hearing before every panel member who will ultimately adjudicate the appeal. See Arneson v. Shinseki, 24 Vet. App. 379, 386 (2011). However, at the May 2013 hearing, the Veteran explicitly waived his right to have a hearing before a third member of the panel adjudicating the appeal. (See May 2013 Hearing Transcript at 3). The issues identified on the title page were previously addressed by the Board in August 2010, January 2012, October 2013, and August 2017. In August 2010, the Board, in pertinent part, denied increased ratings for the service-connected bilateral knee disability. The Veteran appealed the Board’s August 2010 decision to the Court. By a June 2011 Order, the Court granted a joint motion for partial remand (JMR). Subsequently, the issues were remanded for further development by the Board in January 2012, October 2013, and August 2017. They are again before the Board for its consideration. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2019). The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2019). In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2019). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). A veteran may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The Veteran contends that his left and right knee disabilities are entitled to ratings in excess of the 10 percent that have been assigned. In this regard, his disability has been evaluated under 38 C.F.R. § 4.71a, DC 5014-5260. Under DC 5014, osteomalacia is to be rated on limitation of motion of affected parts as degenerative arthritis. 38 C.F.R. § 4.71a, DC 5014 (2019). 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 however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, DC 5003 (2019). The criteria for ratings on limitation of motion of the knee are in two groups, limitation of flexion and limitation of extension. Limitation of flexion of a knee warrants a 10 percent evaluation if flexion is limited to 45 degrees; a 20 percent evaluation if flexion is limited to 30 degrees; or a 30 percent evaluation if the flexion is limited to 15 degrees. See 38 C.F.R. § 4.71a, DC 5260 (2019). Limitation of extension of a knee warrants a 10 percent evaluation if extension is limited to 10 degrees; a 20 percent evaluation if extension is limited to 15 degrees; a 30 percent evaluation if extension is limited to 20 degrees; a 40 percent evaluation if extension is limited to 30 degrees; or a 50 percent evaluation if extension is limited to 45 degrees. See 38 C.F.R. § 4.71a , DC 5261 (2019). Separate ratings may be awarded for limitation of flexion and limitation of extension of the same knee joint. VAOPGCPREC 09-14 (September 17, 2004). Knee instability is rated under DC 5257. 38 C.F.R. § 4.71, DC 5257 (2019). A 10 percent rating requires slight recurrent subluxation or lateral instability of a knee. Id. A 20 percent rating requires moderate subluxation or lateral instability of a knee. Id. A 30 percent evaluation is warranted for severe knee impairment with recurrent subluxation or lateral instability. Id. Limitation of motion and instability of the knee may be rated separately under DCs 5260 and 5257. See VAOPGCPREC 9-98, 63 Fed. Reg. 56704 (1998); VAOPGCPREC 23- 97, 62 Fed. Reg. 63604 (1997). When evaluating the symptoms under Diagnostic Code 5257, the provisions of 38 C.F.R. §§ 4.40 and 4.45 regarding the effects of functional loss due to pain do not apply, as that diagnostic code is not based on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7, 9 (1996). The Board also notes that VA published a final rule amending its regulations on musculoskeletal disabilities, effective February 7, 2021. The amendment, in pertinent part, changed the rating criteria for DCs 5003 (degenerative arthritis) and 5010 (posttraumatic arthritis); DC 5257 (Knee, other impairment of); and DC 5262 (Tibia and fibula, impairment of). See 85 Fed. Reg. 76453 (November 30, 2020). The amendments changed DC 5003 and 5010 by characterizing different types of arthritis, with degenerative being evaluated under 5003 and traumatic being evaluated under 5010. However, the actual rating criteria for these DCs remained unchanged. Therefore, there is no effect on the instant case. The amendments changed DC 5257 by characterizing different types of impairment (Recurrent subluxation or instability and Patellar instability). For recurrent subluxation or instability, the criteria are as follows: 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, 10 percent; 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 or (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, 20 percent; and 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, 30 percent. Id. For patellar instability, the criteria are as follows: 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, 10 percent; 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, 20 percent; 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, 30 percent. Id. Note (1): For patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note (2): 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). The amendments to DC 5262 changed the evaluation for malunion to rate under diagnostic codes 5256, 5257, 5260, or 5261 for the knee, or 5270 or 5271 for the ankle, whichever results in the highest evaluation, and adding evaluations for medial tibial stress syndrome (MTSS), or shin splints, which includes a 0 percent evaluation for treatment less than 12 consecutive months, one or both lower extremities; 10 percent evaluation for requiring treatment for no less than 12 consecutive months, and unresponsive to either shoe orthotics or other conservative treatment, one or both lower extremities; a 20 percent evaluation for requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, one lower extremity; and a 30 percent evaluation for requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, both lower extremities. There were no changes to the evaluation under that DC for nonunion. Id. There are no changes to DCs 5256, 5258-5261, or 5263 under the February 7, 2021 amended version of the musculoskeletal criteria. In other words, DCs 5256, 5258-5261, and 5263 are exactly same both prior to and after February 7, 2021. Compare 38 C.F.R. § 4.71a (September 30, 2002) with 38 C.F.R. § 4.71a (February 7, 2021). Claims pending prior to the February 7, 2021 effective date will be considered under both old and new rating criteria, and whichever criteria are more favorable to the Veteran will be applied. However, an increased evaluation based on the new criteria, may not pre-date the effective date of the amended criteria. Since the Veteran does not have diagnosed malunion or nonunion, the amendments in that regard have no effect on the instant case. It is noted that this appeal stems from a claim filed July 9, 2008. The evidence includes private medical records from Smith and Gayle Medical Center, dated from 2007 to 2014, which indicate that the Veteran complained of leg/knee pain, to particularly include visits in April 2007, June 2007, October 2007, December 2008, February 2009, January 2012, March 2012, May 2012, August 2012, October 2012, February 2013, June 2013, September 2013, November 2013, January 2014, February 2014, June 2014, August 2014, October 2014, and December 2014. There was no discussion of any other symptoms in regard to the knees other than pain. During his August 2008 VA examination, the Veteran complained of continued bilateral knee pain. The Veteran complained of stiffness, decreased range of motion and occasional swelling. He also complained of some locking and instability but denied falling. There was no subluxation or dislocation noted. He indicated difficulty climbing and descending stairs and an inability to kneel or squat. His right knee produced burning and aching pain and his left knee gave him aching pain on a daily basis. Flare-ups of sharp pain were noted for both knees and occurred several times a day. The Veteran took pain medication which gave him some relief. He had also used injections in his right and left knee which did not alleviate the pain. He indicated that physical therapy did help with the pain. He used a cane and occasionally wore a knee brace. On examination, the Veteran was ambulatory with a widened gait and used his cane. There were no gross deformities, swelling or tenderness associated with either knee. There was also no pain associated with his range of motion. Flexion for his right knee was to 121 degrees with full extension. His left knee had flexion to 125 degrees and full extension. There was no abnormal motion with valgus and varus stress applied on the medial and lateral collateral ligaments for either knee. Anterior and posterior drawer signs, McMurray's signs, and grind testing was negative. Repetitive range of motion did not reveal any pain, fatigue weakness, lack of endurance or incoordination. The examiner indicated that additional limitation due to flare-ups could not be determined without resorting to mere speculation, but that the Veteran had no discomfort or difficulty with range of motion testing and no effusion, edema, erythema, tenderness or palpable deformities or instability except as noted. The Veteran was diagnosed with bilateral chondromalacia patella. Records in August 2010 show that the Veteran complained of bilateral knee pain and received cortisone injections with good effect. From November 2011 to March 2012, the Veteran regularly participated in physical therapy for the bilateral knees, also with good effect. At this time he was also using a tens unit, heating pad, and medication. During his March 2012 VA examination, the Veteran complained of continued bilateral knee pain. The Veteran’s condition was managed conservatively with pain medications and braces. No flare-ups were indicated. Flexion for each knee was to 100 degrees with full extension. There was no objective evidence of pain. Rather, the examiner noted suboptimal effort with exaggerated pain. There was no reduction in motion upon repetition. However, it was noted that the Veteran did have evidence of pain on motion during repetition. The bilateral knees were tender to palpation. Stability tests were normal and there was no ankylosis. The Veteran occasionally used a brace and a tens unit to treat his complaints. Arthritis was diagnosed along with bilateral chondromalacia patella. Functional limitation was noted as mild difficulty with prolonged standing and walking. In March 2014 and again in March 2015, the Veteran was seen for overall body pain, to include bilateral knee pain. He was given new medication and new knee braces. During his November 2015 VA examination, the Veteran complained of continued bilateral knee pain. The Veteran’s condition was managed conservatively with pain medications and braces. He complained of pain after standing for prolonged periods and claimed that his knees “buckle” on occasion. No flare-ups were indicated. Flexion for each knee was to 115 degrees with full extension. There was no objective evidence of pain on motion. There was no additional loss of motion or pain upon repetition. The bilateral knees were tender to palpation. Stability tests were normal and there was no ankylosis. The Veteran occasionally used a brace to treat. Arthritis was diagnosed along with bilateral chondromalacia patella. Functional limitation was noted as mild. The examiner also opined that the Veteran’s arthritis was unrelated to military service, as service records were silent for the presence of arthritis and the Veteran was shown to have developed the condition many years thereafter. It was concluded that the arthritis was merely the result of the natural aging process and unrelated to the bilateral chondromalacia patella. Records from 2015 to 2019 generally continued to show complaints of bilateral knee pain with conservative treatment consisting of pain medication and braces. During his October 2019 VA examination, the Veteran complained of continued bilateral knee pain with additional complaints of stiffness. The Veteran’s condition was managed conservatively with pain medications and braces. The Veteran complained of flare-ups in which his knees hurt worse whenever it rains or gets cold. During these periods, he cannot bend to put shoes on or get dressed, cannot do any work around the house or yard, cannot stand, or sit for long periods, and cannot walk much. Active and passive flexion for his right knee was to 110 degrees with full extension and for the left knee was to 115 degrees with full extension. There was evidence of pain on weight-bearing and crepitus. Upon repetition, the Veteran could not complete due to pain. However, the examiner estimated that the Veteran’s reduced motion would be to 100 degrees and full extension bilaterally over time and with flare-ups. Stability tests were normal and there was no ankylosis. The Veteran occasionally used a brace to treat. Functional impacts were noted as difficulty standing, walking, and sitting for prolonged periods. Arthritis was diagnosed along with bilateral chondromalacia patella. The examiner also opined that the Veteran’s arthritis was likely a continuation of the chondromalacia patella as established medical knowledge and literature provides that this is a common progression. During his January 2020 VA examination, the Veteran complained of continued bilateral knee pain which consisted of constant pain of a level of 4 to 5 on a scale of 1 to 10 that goes to 8 to 9 with use. The left is worse than the right. He gets swelling 1 to 2 times per week. The Veteran’s condition was managed conservatively with pain medications, heating pads, a cane, and braces, as the Veteran is uninterested in surgery. The Veteran complained of flare-ups where he can only watch tv. It was indicated that these occur 4 to 5 times per week and last 4 to 6 hours with a severity of 8 on a scale of 1 to 10. Prolonged standing and walking are difficult making grocery shopping and sports difficult to impossible. Active and passive flexion for his right knee was 115 degrees and full extension and for the left knee was 110 degrees and full extension. There was evidence of pain on movement. The examiner estimated that the Veteran’s reduced motion would be to 105 degrees of flexion and 10 degrees of extension in the right knee and 100 degrees of flexion and 10 degrees of extension in the left knee over time and with flare-ups. Stability tests were normal and there was no ankylosis. The Veteran occasionally used a brace and cane to treat. Functional impacts were noted as inability to stand or walk for long periods of time. Arthritis was diagnosed along with bilateral chondromalacia patella. Based upon the evidence of record, the Board finds that throughout the appeal period, each knee is productive of, at worst, limitation of flexion to 100 degrees. Prior to January 20, 2020, the Veteran had full extension of each knee. From January 20, 2020, the Veteran’s extension was limited to 10 degrees bilaterally when considering use over time and flare-ups. Additionally, throughout the appeal period, the Veteran’s condition has manifested in symptoms of slight instability in both knees as shown by his various statements indicating complaints of stiffness, locking, instability, and buckling coupled with his continuous use of a cane and braces. The Veteran's ranges of motion taken at his VA examinations prior to January 20, 2020 fall well outside the rating criteria for a compensable evaluation. See 38 C.F.R. § 4.71a, DC 5260, 5261. There is no objective evidence of recurrent subluxation, lateral instability, or dislocated semilunar cartilage with recurrent episodes of locking or effusion into the joint. However, from January 20, 2020, while the Veteran’s limitation of flexion remains in the range appropriate for a non-compensable rating, bilateral extension limited to 10 degrees in each knee warrants a separate evaluation of 10 percent each under diagnostic code 5261, in view of the reported length of flare-ups. In order to warrant a higher evaluation under this code, the Veteran’s extension would need to be limited to 15 degrees or worse, but this has not been shown at any time during the appeal period. Additionally, the Veteran has complained of instability in his knees throughout the appeal period, including at his 2008 VA examination. Although there is no objective medical evidence of left of right knee instability, the Board recognizes the Unites States Court of Appeals for Veterans Claims (Court) holding in English v. Wilke, 30 Vet. App. 347 (2018), suggesting that lay evidence of knee instability is generally competent. Here, the Veteran has consistently discussed complaints of instability with various symptoms, including stiffness, locking, and buckling, as well as indicating use of a cane and braces to address this. He also has expressed a difficulty climbing and descending stairs as well as kneeling and squatting. His description is considered credible. Resolving any reasonable doubt in the Veteran’s favor, a separate 10 percent evaluation for slight left and right knee instability is granted throughout the appeal period. Notably, a moderate or severe impairment is not shown as the instability described has not been observed by treatment providers, or examiners; and there does not appear to have been any falls due to knee instability. Higher evaluations are also not warranted under the new rating criteria after February 7, 2021 as there have been no documented showings of sprain, incomplete ligament tear, complete ligament tear, or surgery. Alternative Diagnostic Codes provide ratings for disabilities of the knees depending on the symptoms shown. Since the record does not show that the Veteran's knee disorders involve ankylosis, removal of cartilage, genu recurvatum, or tibia and fibula impairment, additional ratings under the other codes are not warranted. In sum, the Board finds a separate 10 percent evaluation for instability of the left knee and of the right knee is warranted throughout the appeal period. In addition, a separate 10 percent evaluation for limitation of extension is warranted for each knee effective from January 20, 2020. However, a rating in excess of 10 percent for left patella chondromalacia, limitation of flexion, and a rating in excess of 10 percent for right patella chondromalacia, limitation of flexion, is denied. MICHAEL KILCOYNE Veterans Law Judge Board of Veterans’ Appeals STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals T. L. DOUGLAS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Dodd, Ryan 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.