Citation Nr: 21026029 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 16-27 633 DATE: April 29, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for right knee degenerative arthritis is denied. Entitlement to a separate rating of 10 percent throughout the period on appeal for instability of the right knee is granted, subject to the laws that govern the payment of monetary benefits. FINDINGS OF FACT 1. During the period on appeal, the right knee disability was productive of limitation of flexion to, at worst, 65 degrees, with full extension and pain. 2. For the entire period on appeal, the Veteran has been shown have slight lateral instability in his right knee. CONCLUSIONS OF LAW 1. The requirements are not met for an evaluation higher than 10 percent for right knee degenerative arthritis. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5010-5260 (2019); DC 5003 (2021). 2. The requirements are met for a separate 10 percent evaluation, but no higher, for instability for the right knee for the entire period on appeal. 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). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from July 1972 to July 1976. The matter comes to the Board of Veterans’ Appeals (Board) on appeal from a December 2015 rating decision issued by the Department of Veterans Affairs (VA) Evidence Intake Center in Newnan, Georgia. The Veteran’s claim was previously before the Board in August 2019, at which time it was remanded for additional development. The requested development has been completed, and the claim is once again before the Board. 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 disabilities 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. 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 the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007); Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Veteran contends that his right knee disability is entitled to a rating in excess of the 10 percent that has been assigned. In this regard, his disability has been evaluated under 38 C.F.R. § 4.71a, DC 5003-5260. Under DC 5003, degenerative arthritis is to be rated on the effects of such arthritis or the limitation of motion of affected parts. 38 C.F.R. § 4.71a, DC 5003 (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. Id. The criteria for ratings based upon 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 evaluated under 5003 and traumatic 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, a 10 percent evaluation 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; a 20 percent evaluation is warranted 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; and a 30 percent evaluation 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. Id. For patellar instability, a 10 percent evaluation 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 evaluation 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; and a 30 percent evaluation 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. 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. However, due to the fact that the Veteran does not have diagnosed malunion or nonunion, these amendments have no effect on the instant case. 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 the 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. It is noted that this appeal stems from an initial claim filed September 9, 2015, more than one year after leaving military service. The evidence includes private medical records from Marquette General Sports Medicine, dated from 2015, which indicate that the Veteran complained of leg/knee pain, to include complaints of instability and having to sit down due to such. The Veteran had evidence of effusion, full range of motion, and no objective evidence of instability. VA treatment records show that the Veteran was seen on multiple occasions for complaints of knee pain and swelling. Most notably, the Veteran was seen for difficulties descending stairs, indicating that he was not stable, and use of a neoprene knee brace, although no objective finding of instability was noted. At worst, swelling in his joint was noted to cause limited impairment of flexion. During his October 2015 VA examination, the Veteran complained of continued right knee pain and occasional swelling. He indicated difficulty climbing and descending stairs and an inability to kneel or run. 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 and swelling were noted and occurred several times a week, necessitating rest. On examination, the Veteran was diagnosed with degenerative arthritis of the right knee. Flexion for his right knee was to 100 degrees with full extension. Pain was noted with motion. 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. There was no ankylosis, subluxation, dislocation, or instability noted. In the Board’s August 2019 remand, it was noted that the examiner did not comply with Sharp v Shulkin, 29 Vet. App. 26 (2017), and Correia v. McDonald, 28 Vet. App. 158 (2016), necessitating remand in order to more thoroughly assess the severity of the Veteran’s knee disability with sufficient consideration of functional impairment during flare-ups. During his December 2019 VA examination, the Veteran complained of continued right knee pain, stiffness, and swelling. The Veteran was diagnosed with right side degenerative arthritis and osteoporosis. The Veteran’s condition was managed conservatively with pain medications and a brace. Flare-ups were reported to be moderate to severe in nature and were precipitated by mowing the lawn, shoveling snow, and physical activity. The Veteran reported functional loss as consisting of increased pain under the kneecap and difficulty walking. Range of motion showed flexion limited to 90 degrees, pain with flexion, and full extension. Upon repetition, flexion was further reduced to 80 degrees. Repeated use over time was estimated to additionally limit flexion to 70 degrees. During flare-ups, range of motion would result in a flexion limited to 65 degrees. The Veteran was found to have mild lateral instability by history without objective findings on examination. There was no ankylosis, subluxation, or dislocation noted. Based upon the evidence of record, the Board finds the Veteran’s service-connected right knee disability was manifested by, at worst, flexion to 65 degrees, pain on flexion, and normal extension. This range of motion assessment considers the Veteran’s lay reports of symptoms after repetitive use over time and during flare-ups. Additionally, throughout the period of appeal, the Veteran’s condition has manifested in symptoms of instability in the right knee as shown by his various statements indicating complaints of stiffness, instability, and difficulties traversing stairs coupled with his use of a brace. The Veteran’s ranges of motion taken at his VA examinations fall outside the rating criteria for a compensable evaluation. See 38 C.F.R. § 4.71a, DC 5260, 5261. A 10 percent evaluation in this instance is, therefore, only available due to the presence of painful motion. There is no objective evidence of recurrent subluxation or dislocated semilunar cartilage with recurrent episodes of locking or effusion into the joint. In order to warrant a higher evaluation under this code, the Veteran’s flexion would need to be limited to 30 degrees or worse and/or 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 in outpatient treatment records prior to both the 2015 and 2019 VA examinations. Although there is no objective medical evidence of any additional right knee disability due to instability until the 2019 VA examination, 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, instability, and difficulty traversing stairs, including a fall noted in 2019, as well as indicating continuous use of a brace to address this. Therefore, in addition to being found competent to report such instability, he is also found to be credible. Here, the Veteran has a current separate disability of right knee instability that has been competently and credibly shown to be the result of the service-connected right knee degenerative arthritis. As such, resolving any reasonable doubt, a separate service-connected disability of right knee instability is granted. The Veteran’s instability warrants an evaluation of 10 percent throughout the period of appeal. In this regard, the Veteran’s knee instability has been found to be of an overall slight severity, as he has had continuous symptoms described above, but he has been relatively able to complete most tasks, albeit some, such climbing and descending stairs as well as kneeling and running, are prevented. Additionally, although he uses a brace for ambulation, there is no indication that such has been medically prescribed, thereby representing more moderate to severe impairment. These manifestations have been present throughout the entirety of the appeals period. Higher evaluations are not warranted throughout the appeals period under the old rating criteria since there have been no showings of more moderate to severe symptoms. Higher evaluations are also not warranted under the new rating criteria from February 7, 2021, as there have been no documented showings of sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribing a brace and/or assistive device for ambulation or unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribing either an assistive device or bracing for ambulation, or a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for an assistive device or worse. The Board has also considered alternative Diagnostic Codes in order to determine if the Veteran is entitled to additional benefits for his right knee disability. Since the record does not show that the Veteran’s right knee disability involves ankylosis, removal of cartilage, genu recurvatum, or tibia and fibula impairment, additional ratings under alternative Diagnostic Codes are not warranted. The Board recognizes that the Veteran believes his right knee disability to be worse than reflected with his 10 percent evaluation during this period of time and acknowledges his lay statements related to ongoing symptomatology. However, while the Veteran is competent to relate the symptoms he experiences and how his symptoms affect his daily life, he is not competent to opine on complex medical issues, such as the severity, degree, or etiology of medical conditions. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). In this case, the degree of range of motion is measured with a goniometer, a medical tool, and there are specific tests in order to detect instability of the knee that are not readily replicated by a lay person. The December 2019 VA examiner considered the Veteran’s lay reports of symptomatology and provided estimations of additional limitation of motion after repetitive use over time and during flare-ups, as the examiner is qualified to do. These estimations indicate that the Veteran’s right knee disability is manifested by limitation of flexion restricted to 65 degrees, at worst. Thus, while the Veteran believes his knee disability to be worse than represented by the initial evaluation, the preponderance of the evidence of record supports his present rating. Therefore, the Board finds that an evaluation in excess of the presently assigned 10 percent for the service-connected right knee disability is not warranted. However, the Board finds that separate service-connected disability for the right knee on the basis of instability is warranted, evaluated at 10 percent for the entire period on appeal. The Board has also considered the possibility of additional staged disability ratings for this claim, but finds that such is not applicable. Hannah Fisher 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.