Citation Nr: 21026310 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 15-09 171 DATE: April 30, 2021 ORDER Entitlement to a rating higher than 10 percent for right knee internal derangement is denied. FINDING OF FACT During the pendency of the appeal, the Veteran’s right knee disability have been manifested with range of motion to no worse than 60 degrees flexion and 10 degrees extension. CONCLUSION OF LAW The criteria for a rating higher than 10 percent for right knee internal derangement have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5261. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1988 to March 1992. This matter comes on appeal before the Board of Veterans’ Appeals (Board) from an October 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In January 2019, the Board denied an increased rating for right knee disability, denied service connection for bilateral hearing loss, and reopened the claim for service connection for low back disability and remanded for additional development. The Veteran appealed the Board’s decision to the U.S. Court of Appeals for Veterans’ Claims (Court).  In January 2020, the Court granted the Parties’ Joint Motion for Partial Remand (JMPR), which vacated the January 2019 Board decision regarding only the right knee disability claim and remanded the claim to the Board.  In the JMPR, the parties agreed that vacatur and remand was warranted because the Board erred when it failed to ensure its duty to assist was satisfied by relying on an August 2013 VA examination that was not compliant with the Court’s holdings in Correia as there was no range of motion testing for passive, weight bearing, and non-weight bearing motion. The Court in Correia held that “to be adequate, a VA examination of the joints must, wherever possible, include the results of range of motion testing” for active ROM, passive ROM, weight-bearing ROM, and non-weight bearing ROM. See Correia, 28 Vet. App. at 169-70; see also 38 C.F.R. § 4.59(e). As the August 2013 VA examination was not compliant with the holding in Correia, it is inadequate on which to base a rating. The Board remanded the claim in July 2020 for development consistent with the JMPR. The claim returns to the Board for further appellate consideration. 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); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016).    Disability Ratings – Laws and Regulations Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities.  The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.     The Veteran’s right knee internal derangement is rated under 38 C.F.R. § 4.71a, noncompensable under DC 5260 and 10 percent under DC 5261. Effective February 7, 2021, VA’s Schedule, 38 C.F.R. Part 4, was amended with regard to rating musculoskeletal disorders. Fed. Reg. 76453 (November 30, 2020) (codified at 38 C.F.R. § 4.71a).  When a law or regulation changes during the course of a claim or an appeal, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment in question. VAOPGCPREC 3-2000; Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The revised regulations do not provide for retroactive application; thus, the amendments may be applied as of, but not prior to, February 7, 2021.  Hence, VA has made clear that its intent is that the claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied.  For applications filed on or after the effective date, only the new criteria will be applied.  As the Veteran’s claim was pending prior to February 7, 2021, the Board will consider entitlement under the prior regulations as well as the updated regulations from February 7, 2021 forward, applying the most favorable criteria for the Veteran. Knee disabilities can be rated under DCs 5256, 5257, 5258, 5259, 5260, 5261, 5262, and 5263; there were only changes to DCs 5257 and 5262. DCs 5256, 5262, and 5263 are not applicable to this case. Prior to the February 7, 2021 change, DC 5257 provided ratings of 10, 20, and 30 percent for recurrent subluxation or lateral instability of the knee, which is slight, moderate, or severe, respectively. 38 C.F.R. § 4.71a. According to MERRIAM WEBSTER’S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), “slight” means small in amount. “Moderate” means limited in scope or effect. “Severe” means very painful or harmful or of a great degree. Objective medical evidence is not required to establish lateral knee instability under DC 5257, so 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). Under DC 5257, effective February 7, 2021, a 10 percent rating is warranted for recurrent subluxation or instability 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 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; A 30 percent rating is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. For patellar instability under DC 5257, 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; 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; and 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. DC 5258 provides a 20 percent rating may be assigned for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint. DC 5259 provides for a 10 percent rating for symptomatic removal of the semilunar cartilage. Under DC 5260, a noncompensable rating is warranted for flexion limited to 60 degrees. A 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. A 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. Under DC 5261, extension limited to 5 degrees warrants a 0 percent rating, extension limited to 10 degrees warrants a 10 percent rating, extension limited to 15 degrees warrants a 20 percent rating, extension limited to 20 degrees warrants a 30 percent rating, extension limited to 30 degrees warrants a 40 percent rating, and extension limited to 45 degrees warrants a 50 percent rating. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” The Veteran’s entire history is to be considered when making disability evaluations.  See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  Staged ratings are appropriate when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119, 126 (1999) (applying this concept to initial ratings).     Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.  Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3.     In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant.  Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).     When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him or her through the senses.  See Layno, 6 Vet. App. at 469.  Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation.  Barr v. Nicholson, 21 Vet. App. 303 (2007).  Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional.  Jandreau, 492 F.3d 1372, 1377.     When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.    Discussion The Veteran asserts that his right knee disability is worse than the currently assigned 10 percent rating. The Veteran’s right knee internal derangement is rated under 38 C.F.R. § 4.71a, noncompensable under DC 5260 and 10 percent under DC 5261. For the reasons expressed below, the Board finds that a rating higher than 10 percent is not warranted for the right knee disability. Turning to the evidence, a July 2013 VA treatment record found right knee range of motion to be 130 degrees flexion and 5 degrees extension, with no effusion but tender points above the knee cap. See July 2013 VA Treatment Record. In an August 2013 VA compensation examination, the Veteran reported he had ongoing chronic pain and a limp in the right knee and the knee had buckled and dropped him once about one year ago but that was the only time that had happened. He also stated that he had been treated with a hinge knee brace and neoprene knee brace over the years and in 2002 used a cane, but that was for his back. He reported that his knee symptoms are worse if it is raining or humid. The Veteran reported flare ups which pain is worse with certain weather conditions. Initial range of motion revealed right knee flexion to 135 degrees, and extension to 10 degrees. There was no objective evidence of painful motion. With repetitive use testing, range of motion was identical. In addition to range of motion, the examiner found factors which contributed to functional loss to include less movement than normal, atrophy of disuse, disturbance of locomotion, and walks with a limp favoring the right knee. The examiner found normal strength, no joint instability, no recurrent patellar subluxation or dislocation, but positive crepitus, bilaterally. See August 2013 VA Examination Report. In a December 2020 VA compensation examination, the Veteran reported symptoms of decreased and painful range of motion, fatigue, constant dull ache, antalgic gait, occasional swelling, and difficulty with prolonged sitting, standing, running and squatting. In his own words, he described his flare ups as prolonged sitting, walking on uneven surfaces, and running or prolonged standing and difficulty jumping or squatting. Initial range of motion in the right knee showed flexion to 80 degrees, extension to 0 degrees, with pain on each motion, and which contributed to functional loss. The examiner indicated there was pain with weight bearing, objective evidence of crepitus, and objective evidence of localized tenderness or pain on palpation. Repetitive use testing revealed range of motion of the right knee to be flexion to 60 degrees and extension to 0 degrees, with pain, fatigue, weakness, and lack of endurance all causing functional loss. The examiner estimated the same loss of motion after repetitive use testing/during flare-ups. In addition, contributing factors to the disability included less movement than normal due to ankylosis, adhesions, etcetera; weakened movement due to muscle injury or peripheral nerves injury, etcetera; disturbance of locomotion; and interference with sitting and standing. Flexion and extension muscle strength was 4/5 and noted to also be due to the Veteran’s lumbosacral disabilities. There was no muscle atrophy, no ankylosis, no recurrent subluxation or lateral instability, but positive for swelling to both sides of the right knee. No joint instability was found. The Veteran reported that he used a brace constantly and a cane regularly. Diagnostic testing revealed degenerative arthritis. Upon review of all the evidence, lay and medical, the Board finds that the criteria for a rating higher than 10 percent for the right knee disability are not met. Under DC 5261 for limitation of extension of the right knee, a rating higher than 10 percent is not approximated. Specifically, on examination the Veteran was found to have limitation of right knee extension to, at worst, 10 degrees. The Board recognizes the July 2013 VA treatment record found extension to 5 degrees and the December 2020 VA physician found extension to 0 degrees. However, despite some improvement subsequent to the July 2013 treatment, the Board will not disturb the already assigned 10 percent rating. Even considering the Veteran’s reports of flare-ups and after repeated use over time, extension to 15 degrees is not approximated. As such, the Board finds that at worst, the Veteran’s right knee extension was limited to 10 degrees, and a rating higher than 10 percent for limitation of extension of the right knee is not approximated. The Board has also considered the other Diagnostic Codes pertaining to the knee. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). A compensable rating under DC 5260 for limitation of flexion of the right knee is not warranted. Specifically, there is no evidence that the Veteran’s flexion is limited to 45 degrees or less. The VA examinations and VA treatment records indicate the right knee flexion to be, at worst, 60 degrees, even during flare-ups and/or after repeated use over time. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain and stiffness in the joint. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements would not result in limitation of motion more nearly approximating flexion limited to 45 degrees, as the December 2020 VA examiner estimated the limitation of flexion as 60 degrees on repetitive use testing or during a flare up. As such, the preponderance of the evidence is against finding a compensable rating is warranted under DC 5760. Under DC 5257 for recurrent subluxation or lateral instability of the knee, the Board notes the Veteran has made use of a cane, a neoprene sleeve and hinged brace for his knee, and stated he knee buckled once; however, in the August 2013 VA examination the Veteran stated the cane was for his back pain and not his leg, and the neoprene sleeve was not prescribed by a physician, nor is there any indication the Veteran wears the sleeve to treat instability. He further noted that the reported “knee buckle” was only an isolated episode. Additionally, the August 2013 and December 2020 VA examinations found no instability and the record does not show any additional reports of instability. The Board finds the remaining Diagnostic Codes relating to the knee are not applicable to the Veteran’s case. The record does not demonstrate evidence of ankylosis of the knee (DC 5256); removal semilunar cartilage (DC 5259); impairment of the tibia and fibula (DC 5262); or genu recurvatum (DC 5263). As such, the Board finds that a higher or separate rating for the right knee is not warranted under any of these Diagnostic Codes. In summary, the Board finds a rating higher than 10 percent for right knee internal derangement is not warranted. As demonstrated above, these ratings for the right knee under DC 5261 contemplate all functional loss present in the right knee, including as due to flare-ups, painful motion, stiffness, and difficulty with walking, standing, or squatting. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Specifically, according to a May 2019 private treatment record the Veteran reported that he was ready to return to work and there is no indication that he was unable to work due to his service-connected disability. A. Yaffe Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Moldawer, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.