Citation Nr: 21026720 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 15-03 969A DATE: May 3, 2021 ORDER Entitlement to an initial 20 percent rating for right knee osteoarthritis on the basis of limitation of flexion is granted. Entitlement to a separate 40 percent rating for right knee osteoarthritis on the basis of limitation of extension is granted. Entitlement to a separate 20 percent rating for right knee instability is granted. FINDINGS OF FACT 1. The Veteran's right knee osteoarthritis has been manifested by, at worst, flexion limited to 25 degrees and extension limited to 25 degrees. 2. The Veteran's right knee osteoarthritis has been manifested by moderate instability. CONCLUSIONS OF LAW 1. The criteria for an initial 20 percent rating for right knee osteoarthritis on the basis of limitation of flexion have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.14, 4.59, 4.71a, Diagnostic Code 5260 (2020). 2. The criteria for a separate 40 percent rating for right knee osteoarthritis on the basis of limitation of extension have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.14, 4.59, 4.71a, Diagnostic Code 5261 (2020). 3. The criteria for a separate 20 percent rating for right knee instability have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.14, 4.59, 4.71a, Diagnostic Code 5257 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1980 to January 1987. In March 2021, the Veteran testified during a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Increased Rating for Right Knee Osteoarthritis The Veteran contends that she is entitled to a rating in excess of 10 percent for the service-connected right knee osteoarthritis. Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. 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). The Court has held that "staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). In addition, when assessing the severity of musculoskeletal disabilities that are at least partly rated on the basis of limitation of motion, VA must also consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. Pursuant to Diagnostic Code 5260, when flexion of the leg is limited to 60 degrees, a noncompensable rating is warranted. When flexion is limited to 45 degrees, a 10 percent rating is warranted. Flexion limited to 30 degrees warrants a 20 percent rating, while flexion limited to 15 degrees warrants the maximum 30 percent rating. Diagnostic Code 5261 rates based on limitation of extension. That code provides that when extension is limited to 5 degrees, a noncompensable rating is assigned. Extension limited to 10 degrees warrants a 10 percent rating. When limitation of extension is at 15 degrees, a 20 percent rating is warranted. Extension limited to 20 degrees warrants a 30 percent rating. Extension limited to 30 degrees warrants a 40 percent rating. Lastly, extension limited to 45 degrees warrants the maximum, 50 percent rating. Separate evaluations under Diagnostic Code 5260 (limitation of flexion of the leg) and Diagnostic Code 5261 (limitation of extension of the leg) may be assigned for disability of the same joint. VAOGCPREC 9-2004, 69 Fed. Reg. 59990 (September 17, 2004). Further, a Veteran who has both arthritis and instability of a knee may be granted separate evaluations under Diagnostic Codes 5003 and 5257, respectively, without violating the rule against pyramiding in 38 C.F.R. § 4.14. However, any such separate rating must be based on additional disabling symptomatology. That is to say that separate evaluations are appropriate so long as there is evidence of limitation of motion that meets the requirements of at least the zero percent level under either Diagnostic Code 5260 or 5261. See VAOPGCPREC 23-97, 62 Fed. Reg. 63,604 (July 1, 1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (August 14, 1998). The diagnostic criteria applicable to recurrent subluxation or lateral instability is found at 38 C.F.R. § 4.71a, Diagnostic Code 5257. Under that code, slight impairment is assigned a 10 percent rating, moderate impairment a 20 percent rating, and severe impairment a 30 percent rating. The terms "mild," "moderate," and "severe" are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of 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. The Board observes that during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). If 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. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, 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. The majority of the diagnostic codes pertaining to the knee have not been revised. However, the revised Diagnostic Code 5257 provides that 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 warrants a 30 percent rating. 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 10 percent rating is assigned 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. The revised 5257 also provides rating on the basis of patellar instability. A 30 percent rating is assigned for 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 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 10 percent rating is assigned 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. Turning to the evidence, on VA examination in February 2012, the Veteran reported right knee aching pain. She had no history of surgery. The knee hurt after prolonged standing and on cold, damp days. She denied flare-ups. On range of motion testing, right knee flexion was to 140 degrees or greater and extension was to 0 degrees, with no evidence of pain on range of motion. The Veteran was able to perform repetitive range of motion tests, with no change in range of motion on 3 repetitions. Functional loss was described as difficulty with prolonged standing. Muscle strength testing was normal. Joint stability testing also yielded normal findings. There was no evidence of recurrent patellar subluxation or dislocation, tibia and/or fibular impairment. She did not have a meniscal condition or surgical procedures for a meniscal condition. She did not use an assistive device such as a brace or cane. Degenerative arthritis was documented on x-ray. The examiner diagnosed right knee mild unicompartmental osteoarthritis. VA treatment records also document the Veteran's report of right knee pain. In June 2014, she was seen for exacerbation of right knee symptoms. Objectively, there was mild effusion of the suprapatellar, with full range of motion and no increased warmth or erythema. She was assessed with right knee pain and prescribed medication. A November 2016 report from private physician Dr. W. indicates that range of motion was reduced in all planes and produced pain, both passively and with resistance. He noted that, due to the ligamentous and meniscal damage in service, there was a general weakening of all of the support supportive soft tissue structures in the area traumatized, predisposing those areas to worsening degenerative joint and meniscal disease. The Veteran also submitted a knee disability benefits questionnaire completed by a private physician in October 2020. On that examination, the Veteran reported daily pain that interfered with walking, standing, kneeling, and squatting. She also reported flare-ups that interfered with work and activities of daily living. On range of motion testing, flexion was from 0 to 30 degrees, and extension was from 30 to 0 degrees. Pain was noted on examination, which caused functional loss. There was evidence of pain with weightbearing and objective evidence of crepitus. The Veteran was able to perform repetitive range of motion testing with no additional loss of motion after repetition. The examiner noted that the Veteran was not being examined immediately after repetitive use over time or during flare-up, but the examination was medically consistent with the Veteran's statements described functional loss with repetitive use over time. Estimated flexion and extension during these conditions was 0 to 25 degrees and 25 to 0 degrees. There was reduced (4/5) muscle strength on right knee flexion and extension, but no atrophy was present. There was no ankylosis. With respect to joint stability, the examiner noted that there was no history of recurrent subluxation, but there was moderate lateral instability present. Joint stability testing revealed abnormal findings (2+ on anterior instability, posterior instability, medial instability, and lateral instability tests). The examiner noted that the Veteran did not have, nor ever had, recurrent patellar dislocation, shin splints, stress fractures, chronic exertional compartment syndrome, or any other tibial or fibular impairment. The Veteran did not have a meniscus condition. She used a brace for her knee and cane for her hips and knees regularly. The examiner diagnosed right knee osteoarthritis and instability. The examiner indicated that the disability interfered with all forms of physical and sedentary occupational tasks due to interference with walking, standing, kneeling, and squatting, and due to distraction and lack of concentration from chronic pain. An October 2020 opinion from Dr. S. opined that the Veteran's right knee instability was secondary to his service-connected right knee condition. During the Veteran's March 2021 Board hearing, she testified that her knee gave out and she had to concentrate so that she did not fall. She had fallen twice at work. The Veteran noted that she been given accommodations at work to complete her job and that she could not wear a brace as it was too cumbersome and interfered with her duties. She expressed her opinion that she eventually would not be able to work due to her disabilities. The Veteran noted that she previously experienced a small ligament tear after service, but had never had surgery on her knee. She walked with a cane on her worst days. Based upon the foregoing, the Board concluded that an increased, 20 percent rating for right knee osteoarthritis on the basis of limitation of flexion is warranted. In so finding, the Board observes that the October 2020 private examination revealed flexion limited to 30 degrees, with further estimated limitation to 25 degrees during flare-up or after repeated use over time. Such findings correspond to a 20 percent rating under Diagnostic Code 5260. As indicated above, a separate rating may be assigned for limitation of extension of the same joint. Again, the October 2020 examination revealed extension limited to 30 degrees with further estimated limitation to 25 degrees during flare-up or after repeated use over time. Such findings correspond to a 40 percent rating under Diagnostic Code 5261. Accordingly, a separate 40 percent rating for limitation of extension is warranted. In addition, as noted above, when assessing the severity of a musculoskeletal disability that is at least partly rated on the basis of limitation of motion, VA is generally required to consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of pain, weakness, premature or excess fatigability, and incoordination. See DeLuca, 8 Vet. App. at 202; see also 38 C.F.R. §§ 4.40, 4.45, 4.59. Moreover, the Board has considered range of motion findings in passive and non-weight bearing situations, consistent with Correia v. McDonald, 28 Vet. App. 158 (2016). Repetitive range of motion and passive range of motion did not result in any additional limitation in degree more closely approximating a higher rating under Diagnostic Code 5260 or 5261. Additionally, the 2020 private examiner's estimated range of motion during flare-up or after repeated use over time also do not support higher ratings under either code. Consequently, ratings higher than 20 and 40 percent for limitation of flexion and extension are not warranted on this basis. Finally, the Board notes that the record also reflects that the Veteran's right knee disability is productive of moderate instability, as noted in the findings of the October 2020 private examination report. The examiner diagnosed moderate instability with 2+ findings on instability tests. These findings correspond to a 20 percent rating under Diagnostic Code 5257, and a separate 20 percent rating for moderate instability is warranted. However, the Board also finds that the evidence does not support a higher 30 percent rating for severe instability. In this regard, instability is not documented until the 2020 reports, with the examiner noting moderate findings (2+ on stability tests), but not severe (3+). While the Veteran reported two falls due to instability, she also indicated that she works without use of a brace. Accordingly, the Board finds that the Veteran's instability is more appropriately characterized as moderate. The Board has considered whether a higher rating is warranted for instability based upon the revised criteria; however, a 30 percent rating under the new Diagnostic Code 5757 requires complete tear of the ligament or a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repairneither of which have been demonstrated in this case. The claims folder contains no medical evidence indicating that the Veteran's right knee disability is manifested by ankylosis; impairment of the tibia and fibula; genu recurvatum; or symptoms other than those discussed above. As such, an increased rating cannot be assigned under Diagnostic Codes 5256 or 5262-5263. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5262-5263. The Board has also considered the Veteran's statements and hearing testimony, regarding the severity of her right knee symptoms. Certainly, as a lay person, she is competent to attest to physical symptoms that she experiences, such as persistent knee pain and weakness. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Generally, these statements are credible and the Board has considered these statements in assigning higher and separate ratings for the knee disability. However, neither the medical evidence nor the lay evidence of record suggests that an evaluation in excess of those assigned herein is warranted at this time. The Veteran's statements have been non-specific and fail to establish a greater degree of functional impairment. Finally, the Board has also considered the provisions of 38 C.F.R. § 3.321(b)(1). Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008). However, in this case, the Board finds that the record does not show that the Veteran's right knee disability is so exceptional or unusual as to warrant the assignment of a higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1). The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extra-schedular referral is required. Thun, 22 Vet. App. 111; VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those marked interference with employment and frequent periods of hospitalization. 38 C.F.R. § 3.321(b)(1). In this case, the Veteran's right knee symptoms are fully contemplated by the applicable rating criteria. The symptomatology reported by the Veteran and shown on examination, to include instability, giving way, decreased range of motion, and difficulties with functions such as walking and standing, is contemplated by the rating criteria used to assign disability evaluations, and there is no characteristic or manifestations shown that is outside the purview of the applicable rating criteria or is so exceptional as to render the criteria inapplicable. All potentially relevant rating codes have been considered and evaluated. Consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is therefore not required. The rating assigned considers the impact on the Veteran's employment. In any event, the Veteran does not claim, and the evidence does not reflect, that there has been marked interference with employment, frequent hospitalization, or that the Veteran's symptoms have otherwise rendered impractical the application of the regular schedular standards. The Board has considered the Veteran's report to the effect that her employer has provided certain accommodations and scheduling modifications at work so she can complete her work tasks, and that she may not be able to continue her job in the future; however, she is still employed and marked interference with her employment has not been demonstrated. Therefore, referral for consideration of an extraschedular rating for the Veteran's right knee disability is not warranted. 38 C.F.R. § 3.321(b)(1). (Continued on the next page) For the foregoing reasons, the Board concluded that an initial 20 percent rating, but no higher, for right knee osteoarthritis is warranted, and that separate 40 and 20 percent ratings for right knee limitation of extension and instability, respectively, are warranted. In reaching this determination, the Board has considered the benefit of the doubt doctrine. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. E. Wilkerson, 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.