Citation Nr: 21026835 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 14-31 995A DATE: May 4, 2021 ORDER Entitlement to a rating greater than 10 percent for right knee medial compartment arthritis, chondromalacia of the patella, and patellofemoral arthritis is denied. Entitlement to a 10 percent rating for right knee instability from September 16, 2013 is granted. Entitlement to a rating greater than 10 percent for right knee instability is denied. REMANDED Entitlement to a separate rating for right knee meniscus tear is remanded. FINDINGS OF FACT 1. The Veteran's right knee has not been limited to 30 degrees of flexion even with consideration of functional impairment after repetitive use and during flare-ups. 2. The Veteran has had slight right knee instability for the entire pendency of the claim. 3. The Veteran has not had moderate right knee instability at any time during the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria for a rating greater than 10 percent for right knee medial compartment arthritis, chondromalacia of the patella, and patellofemoral arthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5260 (2020). 2. The criteria for a 10 percent rating for instability of the right knee have been met since September 16, 2013. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257 (2020); Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257). 3. The criteria for a rating greater than 10 percent for right 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 (2020); Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from December 1980 to January 1986. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Briefly, the RO granted service connection for a right knee disability in September 2011. The Veteran appealed only the effective date of service connection assigned at that time; he did not appeal the initial assigned rating. The Veteran filed his current claim for an increased rating for the right knee disability in September 2013, which was denied in January 2015. The Veteran perfected his appeal from the January 2015 rating decision. In July 2018, the Board remanded the issue of entitlement to an increased rating for the right knee disability. In March 2020, the RO granted a separate 10 percent rating for right knee instability, effective April 24, 2019. In July 2020, the Board remanded the issues of entitlement to increased ratings for right knee medial compartment arthritis, chondromalacia of the patella, and patellofemoral arthritis, and for right knee instability for additional development, which has been substantially completed. See Stegall v. West, 11 Vet. App. 268 (1998). Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. Part IV. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). 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). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. 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. 1. Entitlement to a rating greater than 10 percent for right knee medial compartment arthritis, chondromalacia of the patella, and patellofemoral arthritis is denied. The Veteran seeks a rating greater than 10 percent for right knee medial compartment arthritis, chondromalacia of the patella, and patellofemoral arthritis, which has been rated under 38 C.F.R. § 4.71a, Diagnostic Code 5010-5260, for traumatic arthritis of the knee rated as limitation of flexion of the knee. Prior to the regulatory change, Diagnostic Code 5010 provided that arthritis due to trauma was to be rated as arthritis, degenerative, under Diagnostic Code 5003. Diagnostic Code 5003, arthritis, degenerative, directs that the disability should be rated based on limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003. If limitation of motion is noncompensable, a 10 percent rating should be assigned if objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. As of February 7, 2021, under the amended criteria, Diagnostic Code 5010 is renamed post-traumatic arthritis, and is to be rated as limitation of motion, dislocation, or other specified instability under the affected joint. If there are 2 or more joints affected, each rating shall be combined in accordance with 38 C.F.R. § 4.25. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5010). Diagnostic Code 5260, limitation of flexion of the leg, was not changed with the February 2021 amendments and provides that 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, Diagnostic Code 5260. 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." In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The Board finds that the preponderance of the evidence is against a rating greater than 10 percent for the right knee medial compartment arthritis, chondromalacia of the patella, and patellofemoral arthritis. VA treatment records show that in March 2014, the Veteran reported right knee pain. In April 2014, he had a physical therapy consultation. He reported burning, peri-patellar pain, that increased when walking. ROM measured from 0 degrees of extension to 120 degrees of flexion. The November 2014 VA examination report shows the Veteran denied having flare-ups or functional loss due the right knee. Range of motion (ROM) testing showed right knee extension to 0 degrees and flexion to 130 degrees. Pain was observed on testing but it did not result in functional loss. The Veteran did not have pain with weight bearing, or have localized tenderness or pain on palpation of the joint. No additional loss of motion was observed after repetitive use testing. The examiner noted that the Veteran was being examined immediately after repetitive use over time. Regarding flare-ups, the examiner stated that she was unable to determine whether the Veteran would have pain, weakness, fatiguability, or incoordination during flare-ups or after repeated use over time without resorting to speculation. The examiner found no history of recurrent subluxation, lateral instability, or recurrent effusion. Joint stability testing was normal. The Veteran indicated that he used a knee brace for regular ambulation. The Board points out that to the extent that the examiner did not solicit information from the Veteran about his ROM during flare-ups or after repeated use over time, the finding is inadequate per the holding in Sharp v. Shulkin, 29 Vet. App. 26. VA treatment records show that in January 2018, the Veteran reported painful knees, rating an 8 on the pain scale. In April 2019, he reported pain rating a 7 on the pain scale. His knee disability was aggravated by prolonged standing, walking, sitting, and climbing stairs. ROM measured from 0 degrees of extension to 100 degrees of flexion. He had slight decrease in muscle strength at the quadriceps and hamstrings. He also had crepitus of the knee. In April 2019, the Veteran had an examination for the left knee. However, the examiner provided some symptoms related to the right knee, to include ROM testing; however, the examiner did not clearly specify whether noted symptoms pertained to the left, right, or both knees. Therefore, the examination report is inadequate for rating purposes. Finally, the evidence includes the examination report from October 2020. The Veteran reported that he had difficulty sitting for prolonged periods and would stumble and fall due to his knee giving out. His knee condition made it difficult to sit or walk for long periods of time. He also indicated that he had daily flare-ups that were moderate to severe and could last weeks or more. Flare-ups were precipitated by standing, sitting, or walking for prolonged periods. On examination, extension measured to 0 degrees and flexion to 120 degrees. No additional loss of motion was observed after repetitive motion testing. The limitation of motion did not contribute to functional loss, but pain did. Pain was observed on flexion and extension and on weight-bearing. The examiner indicated that the Veteran was being examined after repetitive use over time and that pain limited the Veteran's knee flexion to 110 degrees. The examiner also noted that the Veteran's ROM during flare-ups would be limited to 110 degrees of flexion. Muscle strength testing was normal. Ankylosis was not present. Joint stability testing showed slight lateral instability of the right knee. The Veteran used braces and a walker for ambulation. The examiner stated that the Veteran could not climbs stairs, ramps, ladders, ropes, or scaffolds. The Veteran could not balance on narrow, slippery, or erratic surfaces; or stand or walk on level terrain frequently. The examiner stated that the Veteran could not kneel, crouch when bending both legs and spine, stoop when bending the spine at the waist, or crawl frequently. The Board also considered the Veteran's April 2018 testimony. During his hearing, the Veteran testified that he had problems climbing stairs and when sitting for long periods. He described constant pain when taking long trips or drives, with the knee bending or stretching in certain positions. He described feeling heat, throbbing, and burning sensation at the joint. He stated that his knee pain kept him awake at night. He also noted occasional swelling. The Board acknowledges the Veteran's lay reports of symptoms, including functional loss due to pain and swelling during flare-ups and after repetitive use. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that that he had daily flare-ups that were moderate to severe and could last weeks or more would not result in limitation of motion more nearly approximating flexion limited to 30 degrees. As detailed above, at its worst, the right knee flexion was limited to 100 degrees in April 2019. The October 2020 examiner specifically stated that the Veteran's limitation of flexion during a flare up or after repetitive use would be 110 degrees. Thus, even with consideration of the Veteran's reports of pain and limitation of motion, and with consideration of functional impairment, such as difficulty with prolonged walking, standing, and sitting, climbing stairs, kneeling, crouching, stooping, and crawling, the Board cannot find that his functional impairment more closely approximates limitation of flexion to 30 degrees or less. As such, a rating greater than 10 percent is not warranted under 38 C.F.R. § 4.71a, Diagnostic Code 5010-5260. The Board acknowledges the changes to Diagnostic Code 5010, which became effective February 7, 2021. However, since the revised Diagnostic Code 5010 continues to direct VA to rate the knee based on limitation of motion of the joint, the Board finds that the revision has not affected the analysis of the Veteran's claim in this instance. As such, a higher rating is not warranted under the revised criteria for 38 C.F.R. § 4.71a, Diagnostic Code 5010. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5010). The Board has also considered the other diagnostic codes pertaining to the knee and leg. 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). However, the Veteran's right knee disability has not manifested as ankylosis (Diagnostic Code 5256), limitation of extension of the knee (Diagnostic Code 5261), impairment of the tibia and fibula (Diagnostic Code 5262), or genu recurvatum (Diagnostic Code 5263). In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for a rating greater than 10 percent for right knee medial compartment arthritis, chondromalacia of the patella, and patellofemoral arthritis. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. The appeal is denied. 2. Entitlement to a 10 percent rating for right knee instability from September 16, 2013 is granted. 3. Entitlement to a rating greater than 10 percent for right knee instability is denied. In March 2020, the RO granted a separate 10 percent rating for right knee instability, effective April 24, 2019. The Veteran's right knee instability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5257, for other impairment of the knee. Under Diagnostic Code 5257, a 10 percent rating is warranted for slight recurrent subluxation or lateral instability. A 20 percent rating is warranted for moderate recurrent subluxation or lateral instability. A 30 percent rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. 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 Diagnostic Code 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). Effective February 7, 2021, 38 C.F.R. § 4.71a, Diagnostic Code 5257 was modified. As of this date, Diagnostic Code 5257 provides for a 10 percent rating 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 or bracing for ambulation. A 20 percent rating is warranted for (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device for ambulation; and (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device or bracing for ambulation. A 30 percent rating 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. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257). The Board finds that the Veteran is entitled to a 10 percent rating for his right knee instability for the entire pendency of the claim, which was filed September 16, 2013; however, the preponderance of the evidence is against a rating greater than 10 percent for right knee instability for any period during the pendency of the claim. The Board has carefully considered the Veteran's reports about instability of the knee, to include reports of buckling sensation and falls. The Board also considered his use of assistive devices for ambulation. English, 30 Vet. App. 347, 352-53. However, overall, the lay and medical evidence indicates that the instability symptoms have varied and do not suggest the presence of symptoms more nearly approximating moderate severity at any time during the pendency of the claim. For example, during an April 2014 VA physical therapy consultation, the Veteran described feeling occasional buckling sensation when walking. A knee brace was prescribed. The November 2014 VA examiner found no instability on testing. The Veteran used a knee brace. He also used a cane due to amputation of a toe on the left foot. During his April 2018 testimony, the Veteran indicated that he stumbled a lot and had balance issues. In April 2019, the Veteran told the examiner that his knees buckled when climbing. The examiner observed lateral instability at 1+ (0 to 5 mm). The Veteran used a knee brace and a cane to support his gait. Finally, the December 2020 VA examiner indicated that the Veteran had slight lateral instability of the right knee, with lateral instability at 1+ (0 to 5 mm). The Veteran continued to use a knee brace as well as a walker for support. The Board acknowledges that over the years the Veteran eventually required a cane and walker for ambulation in addition to the knee brace. However, the Veteran is also service-connected for the left great toe amputation, lumbago, bilateral ankle degenerative joint disease, and left knee arthritis. Notably, the April 2019 spine examination report states that the Veteran used a cane due to degenerative changes in the ankles and lumbago. The April 2019 knee examination shows the use of a cane due to lumbago, knee arthritis, and degenerative changes of the ankles. The June 2019 examination for the left toe amputation showed use of a cane due to disabilities of the spine, knees, ankles, and left toe amputation. As such, while the Veteran has required additional assistive devices for ambulation over the years, the evidence does not show that the devices were necessary due to right knee instability. As such, the use of additional assistive devices is not sufficient to find that the Veteran had moderate right knee lateral instability at any time during the pendency of the claim. The Board has also considered whether a higher rating is warranted under the revised criteria, effective February 7, 2021. However, the Veteran has not had a right knee sprain or any right knee ligament tears during the pendency of the claim, or more specifically since February 7, 2021. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257). In conclusion, the Board finds that a 10 percent rating for slight instability of the right knee is warranted from September 16, 2013, and to this extent the appeal is granted. The preponderance of the evidence is against the Veteran's claim for a rating in excess of 10 percent for right knee instability as he has not had symptoms more nearly approximating moderate lateral instability of the right knee at any time during the pendency of the claim. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 1. Entitlement to a separate rating for right knee meniscus tear is remanded. The Veteran seeks an increased rating for his right knee disability. In the April 2019 examination report, the examiner stated that the Veteran had a right knee meniscus tear repaired in 2012 and had associated popping and pain. In the December 2020 examination report, the examiner stated that the Veteran had right knee debridement and cleaning in 1986. A December 2010 private treatment record from T.O.C. indicates that the Veteran had a partial medial meniscectomy in 1988 and subsequent surgery to remove ossicles from the tibial tubercle. It is unclear whether the Veteran had any meniscal injuries of the right knee and if so, whether any are related to service or to the Veteran's service-connected right knee medial compartment arthritis, chondromalacia of the patella, and patellofemoral arthritis or right knee instability. On remand, an addendum opinion should be obtained addressing whether the Veteran has had any right knee meniscus injuries that are related to service or whether any meniscus injuries were due to or have been aggravated by his service-connected right knee disabilities. The matters are REMANDED for the following actions: 1. Ask the December 2020 examiner or another qualified clinician to provide an addendum opinion addressing the Veteran's right knee meniscus injuries. The examiner must be provided access to the electronic claims file and indicate review of the file in the opinion report. If the requested opinion cannot be provided without physically examining the Veteran, then an examination must be scheduled. The examiner should indicate whether the Veteran has ever had an injury to the right knee meniscus. If so, the examiner must indicate whether it is at least as likely as not (50 percent or greater probability) that the meniscal injury is (a) related to service; or (b) due to his service-connected right knee disabilities; or (c) has been aggravated by his service-connected right knee disabilities. The examiner should address the notations in the April 2019 and December 2020 examination reports and the December 2010 private treatment record from T.O.C. indicating meniscus injury and surgery. In addressing secondary service connection, the examiner must provide separate opinions and rationale addressing causation and aggravation. Aggravation under 38 C.F.R. § 3.310 (b) does not require that there be "permanent" worsening of the nonservice connected disability. A complete rationale must be provided in support of each opinion provided. If any opinion cannot be provided without resorting to speculation, the examiner must explain why this is so. 2. Then, readjudicate the Veteran's claims on appeal. If the benefits sought on appeal remain denied, provide the Veteran and his/her representative a supplemental statement of the case and allow an appropriate period for response. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. G. Alderman, 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.