Citation Nr: 21026993 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 16-33 829 DATE: May 4, 2021 ORDER Entitlement to a rating in excess of 10 percent for left knee osteoarthritis is denied. The reduction in rating for left knee laxity from 10 percent to 0 percent (noncompensable) was improper; thus, restoration of the prior 10 percent rating is granted as of January 1, 2021, the date of the reduction. Moreover, a higher 20 percent rating, though no greater, is granted for the left knee laxity as of February 7, 2021, but no earlier. FINDINGS OF FACT 1. Regarding his left knee osteoarthritis, the Veteran has not had left knee flexion resultantly limited to 60 degrees or less or extension limited to 10 degrees or more. 2. When the local regional office (RO) reduced the 10-percent evaluation assigned for his left knee laxity to the lesser noncompensable level, the evidence continued to show that he had complaints of instability; thus, the reduction was improper. 3. During the entirety of the rating period on appeal, his left knee laxity (which has not been shown to have a failed repair, sprain, or patellofemoral complex condition) has been no more than slight in severity; however, he has been prescribed a brace, so an assistive device, and the changes to the rating criteria that took effect as of February 7, 2021, make provision for this. CONCLUSIONS OF LAW 1. The criteria are not met for a rating in excess of 10 percent for limitation of motion due to left knee osteoarthritis. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5003, 5010, 5260, 5261. 2. The criteria are met, however, for restoration of the 10 percent rating for the left knee laxity as of January 1, 2021, the date the rating was reduced. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.105, 3.344, 4.3, 4.7, 4.71a, DC 5257. 3. As well, the criteria are met for a higher 20 percent rating, though no greater, for the left knee laxity as of February 7, 2021, but no earlier. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.105, 3.344, 4.3, 4.7, 4.71a, DC 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from February 1980 to April 1984. This appeal to the Board of Veterans' Appeals (Board) is from a September 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). These claims were previously before the Board in November 2018 but were remanded for further development and consideration - including to obtain updated treatment records relevant to these claims and for an examination reassessing the severity of the Veteran's left knee disability (all components of it). There has been the required compliance certainly the acceptable substantial compliance, with those remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Increased Ratings Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. Id. § 4.3. Further, a disability rating may require re-evaluation in accordance with changes in a Veteran's condition. It is thus essential in determining the level of current impairment that the disability is considered in the context of the entire recorded history. Id. § 4.1. Nevertheless, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). "Staged" ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). For disabilities evaluated based on limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59 pertaining to functional impairment. If feasible, these determinations are to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). In McGrath v. Gober, 14 Vet. App. 28 (2000), the Court held that when evidence is created is irrelevant compared to when the Veteran was actually experiencing the symptoms. Thus, the Board will consider whether the evidence of record suggests that the severity of pertinent symptoms increased sometime prior to the date of the examination reports noting pertinent findings. VA amended the criteria for rating musculoskeletal disabilities effective as of February 7, 2021. These new regulations apply to all applications for benefits received by VA or that are pending before the Agency of Original Jurisdiction (AOJ), i.e., RO on or after February 7, 2021. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria are more favorable to the Veteran will be applied. The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective date of the new regulation if the prior version was in effect during the pendency of the appeal. Older criteria (prior to February 7, 2021) for Rating the Knee Disability According to Diagnostic Code 5010, arthritis due to trauma, i.e., post-traumatic arthritis, is rated as degenerative arthritis (hypertrophic or osteoarthritis) under Diagnostic Code 5003. Diagnostic Code 5003, in turn, instructs the rater to evaluate the arthritis based on the extent it causes limitation of motion. And since limitation of knee motion, in turn, is determined by Diagnostic Code 5260 (flexion) and 5261 (extension), these other codes are implicated. Limitation of flexion warrants 10, 20, and 30 percent ratings when the limitation is to 45 degrees, 30 degrees, and 15 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Limitation of extension warrants 10, 20, 30, 40, and 50 percent ratings when the limitation is to 10 degrees, 15 degrees, 20 degrees, 30 degrees, and 45 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5261. The Veteran also has a separate rating, meaning apart from the arthritis with consequent limitation of motion, owing to knee laxity. VAOPGCPREC 23-97 (July 1, 1997; revised July 24, 1997); VAOPGCPREC 9-98 (August 14, 1998). This "other" knee impairment, including owing to recurrent subluxation or lateral instability (laxity), warrants a 10, 20, or 30 percent rating if slight, moderate, or severe, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Newer Criteria (from February 7, 2021 onward) for Rating the Knee Disability Effective February 7, 2021, Diagnostic Code 5257 provides ratings for both recurrent subluxation or instability of the knee and for patellar instability. As pertaining to recurrent subluxation or instability of the knee, Diagnostic Code 5257 provides a 10 percent rating 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 either (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device, or (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 is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device and bracing for ambulation. As pertaining to patellar instability of the knee, Diagnostic Code 5257 provides a 10 percent rating 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. A 30 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 a brace and either a cane or a walker. Note (1) to the new criteria define the patellofemoral complex as "the quadriceps tendon, the patella, and the patellar tendon." Note (2) clarifies that the surgery contemplated by the patellar instability criteria is specifically to repair one or more patellofemoral components; the note disqualifies arthroscopy to remove loose bodies and joint aspiration as surgical repair for patellar instability. Id. 1. Entitlement to a rating in excess of 10 percent for the left knee osteoarthritis In August 2014, the Veteran filed a claim for a rating higher than 10 percent for his left knee disability which, as mentioned, has been partly rated under hyphenated Diagnostic Code 5010-5260, so accounting for his osteoarthritis and consequent limitation of motion (particularly on flexion). He would be entitled to a higher rating for this component of his left knee disability under DC 5260 if he had flexion limited to 30 degrees (20 percent) or to 15 degrees (30 percent). To give this some context, consider that normal range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion. See 38 C.F.R. § 4.71, Plate II. A September 2014 Disability Benefits Questionnaire (DBQ) reflects that the Veteran had flexion to 120 degrees with objective evidence of pain at 120 degrees, so not until the terminal endpoint. He had full extension, so to 0 degrees. He had 4/5 muscle strength and normal joint stability on all testing. He was noted to have had a meniscal tear and consequent meniscectomy in 1987 to repair it. A residual was noted to be pain, and it was noted that he uses a cane on occasion. A January 2017 DBQ shows the Veteran reported that prolonged standing causes pain and weakness, that his knee buckles once a week, that he has trouble with bending, squatting and twisting motion, that his left knee swells at times, and that cold weather increases his pain. He reported having a flare-up twice a month causing bedrest due to the extent of pain and swelling. Upon examination, he had range of motion from 0 to 110 degrees, full muscle strength, and normal stability tests. An August 2019 DBQ indicates the Veteran reported that he had started using a cane in 2017 due to feelings of instability. He was evaluated by an orthopedic surgeon and has had steroid injections in the left knee. X-rays have shown degenerative disease of this knee. The Veteran reported flare-ups of this knee occurring daily with prolonged walking/standing. The flare-ups were described as mild, lasting for approximately 2 to 3 hours, and precipitated by prolonged walking/standing; they were alleviated by rest and Ibuprofen. The Veteran stated that, due to his left knee pain and instability, he is unable to lift/carry heavy objects, crawl, kneel or climb stairs. Upon examination, he had range of motion from 0 to 100 degrees, with pain noted on flexion and with weight-bearing. There was no additional loss of range of motion after repetitive use; however, the examiner estimated that, after repeated use and/or a flare-up, the Veteran would have range of motion from 0 to 90 degrees. The report reflects a history of slight instability and recurrent effusion that was described as intermittent swelling, typically at the end of the day after the Veteran has done some standing/walking. Upon joint stability testing, all joints were stable. He used a brace on occasion, and a cane on occasion. There was objective evidence of pain on passive range of motion testing and non-weight bearing. As already alluded to, the Veteran would be entitled to a higher 20 percent rating if he had flexion limited to 30 degrees or less, but he clearly does not have this required level of restriction. To the contrary, the examination reports consistently have shown far greater range of motion, in fact, more than even would warrant the most minimum 0 percent rating under Diagnostic Code 5260 because it has been to greater than 60 degrees, usually much greater. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause functional loss, pain itself does not constitute functional loss. The Court in Mitchell explained that the evaluation of painful motion as limited motion only applies when limitation of motion is 0-percent disabling (noncompensable) under the applicable DC. The Court further explained that, although painful motion is entitled to a minimum 10 percent rating under Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991), when read together with DC 5003 concerning arthritis, it does not follow that the maximum rating is warranted under the applicable DC pertaining to range of motion simply because pain is present throughout the range of motion. Rather, the pain "must actually affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance' [under] 38 C.F.R. § 4.40 in order to constitute functional loss" warranting a higher rating. See id. at 43. Although the Veteran has reported experiencing pain, the objective clinical findings show he still has very significant range of motion of his left knee. He has consistently had full extension, so to 0 degrees, which would warrant a 0 percent rating under Diagnostic Code 5261. And, at most (i.e., after repeated use or during a flare-up), his flexion would be limited to 90 degrees. For comparison, a 0 percent rating under Diagnostic Code 5260, as mentioned, requires flexion limited to 60 degrees, a 10 percent rating requires flexion limited to 45 degrees, and a 20 percent rating requires flexion limited to 30 degrees. He has much more flexion than that. As such, his existing rating sufficiently compensates him again, even when considering his pain and flare-ups. The Court has held that § 4.40 does not require a separate rating for pain but rather provides guidance for determining ratings under other DCs assessing musculoskeletal function. See Spurgeon v. Brown, 10 Vet. App. 194 (1997). Moreover, he is not entitled to a separate rating for both flexion and extension when neither meets the minimum level required for a compensable rating, but rather, he is rated instead based under Mitchell and 38 C.F.R. § 4.59. See VAOPGCPREC 9-2004 (September 17, 2004). The Board has considered that the Veteran reported in 2017 that, twice a month, he has bedrest owing to his knee; however, he has not provided sufficient evidence that his disability complaints (symptoms) and consequent functional impairment are not contemplated by the schedular rating criteria, including in the sense that they cause frequent periods of hospitalization or marked interference with employment (meaning above and beyond what is contemplated by his assigned schedular ratings) or that his knee causes effects of similar severity not contemplated by the ratings assigned for this disability. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). 2. Entitlement to an increased rating for left knee laxity The Veteran's left knee laxity was separately evaluated as 10-percent disabling until January 1, 2021. During the pendency of his appeal for an increased rating for his left knee disability, in an October 2020 decision the RO conversely reduced this separate rating for his left knee laxity to 0 percent (noncompensable) prospectively effective as of January 1, 2021. As already explained, under the older rating criteria a 10 percent rating contemplated slight laxity, a 20 percent rating moderate laxity, and a 30 percent rating severe laxity. Historically, a May 2003 VA examination report reflects 1+ laxity of the Veteran's left knee. A July 2010 VA record notes he reported his left knee giving way. A September 2011 VA clinical record indicates he reported that his then current job had a metal detector and, thus, he wanted a brace with no metal in it. He was told this would not be as useful without the metal to provide stability. A January 2012 record notes he was requesting a knee brace to support his knee. Subsequent records note provision of a neoprene brace. An August 2013 VA prosthetics record shows he reported to the clinic for issuance of a knee sleeve. It was explained to him that this request was not for a specialized brace and was not something that prosthetics provides. Rather, he could obtain a sleeve at a drug store or department store. An August 2014 record explains he wanted evaluation for a different type of brace. An August 2017 VA record shows he reported left knee pain. He also reported walking several miles a day and that his pain is worse throughout the day and he believes his gait is affected. The assessment was osteoarthritis of the left knee. A prosthetics order was placed for a soft brace. The September 2014 DBQ (Dr. J.K.) notes normal joint stability on all testing; the January 2017 DBQ (Dr. C.M.) notes normal joint stability on all testing; and the August 2019 DBQ (Dr. O.A.) notes normal joint stability on all testing. Despite the clinical findings, the January 2017 DBQ mentions the Veteran reported that his left knee buckles once a week, and the August 2019 DBQ indicates he reported that he had started using a cane in 2017 due to feelings of instability. The Veteran is competent to report what he feels or senses to be instability and giving out of his knee. In English v. Wilkie, 30 Vet. App. 347 (2018). the Court held that DC 5257 does not "speak to the type of evidence required and, thus, objective medical evidence [is not] required to establish lateral knee instability under that DC." The Court further held that "[t]he Board [cannot] categorically find objective medical evidence more probative than lay evidence with respect to [DC 5257] without supporting its conclusion with an adequate statement of reasons or bases." Id. The Board finds that a rating in excess of 10 percent, under the former criteria, is not warranted because the evidence does not support more than relatively "slight" instability (laxity). As already discussed, three examination reports by three different clinicians noted good/normal/intact stability. Despite the holdings in English, the Board finds that the clinical examinations concerning this are more probative than the Veteran's lay statements regarding the severity of his knee laxity (as contemplated in DC 5257) because the clinicians are trained in evaluating the different cartilage and ligaments of the knee and in performing the various tests to assess whether the knee is unstable or subluxed (e.g., varus and valgus, Lachman's, etc.). Moreover, and importantly, no clinician has found more than slight instability on examination of the Veteran's left knee. Thus, the evidence does not support finding that it is as likely as not that his knee instability (laxity) is moderate or severe rather than slight. The Board has next considered the Veteran's contention as to instability under the revised rating criteria and finds that a higher 20 percent rating, but no greater, is warranted from the effective date of the new regulation, which as mentioned is February 7, 2021. He had an anterior cruciate ligament (ACL) reconstruction (repair) in service, has had a meniscectomy since, and has been prescribed a brace; thus, a 20 percent rating is warranted as of the effective date of the new rating criteria making provision for this, so as of February 7, 2021. He is not entitled to a higher 30 percent rating because the evidence does not support that he has a failed repair of a complete ligament tear with prescription of both an assistive device and bracing. The Board acknowledges that he uses a brace on occasion and a cane on occasion, but the cane has not been prescribed by a medical provider. More importantly, the evidence is against a failed repair. Notably, all three examination reports reflect normal stability, which is strong evidence against a failed repair, and none of the examiners suggested a failed surgical repair. For essentially this same reason, the Veteran does not have symptomatic meniscal cartilage to warrant a separate rating or additional compensation under the meniscal codes, i.e., Diagnostic Codes 5258 and 5259. See Lyles v. Shulkin, 29 Vet. App. 107 (2017). In an October 2020 rating decision, the RO reduced the rating for the Veteran's left knee laxity, which had been rated as 10-percent disabling from May 2003 until being rated, instead, as 0-percent disabling (noncompensable) prospectively effective as of January 1, 2021. But since his appeal for a higher rating for his left knee disability, so inclusive of all components of it, was still pending at the time of that reduction in rating (although his claims had been remanded by the Board for further development), the reduction in rating issue is part and parcel of his appeal for an increased rating for this same disability. Pursuant to 38 C.F.R. § 3.344(a) and (b), disability ratings that have continued for long periods of time at the same level (5 years or more) may not be reduced without the following: a) review of the entire record of examinations and the medical-industrial history to ensure that the current examination is full and complete; b) the examination must be as full and complete as the examination upon which the original award was based; c) ratings on account of diseases subject to temporary or episodic improvement will not be reduced on any one examination, except where all of the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated; d) ratings on account of diseases that become comparatively symptom free after prolonged rest will not be reduced on examinations reflecting the result of bed rest; e) where material improvement is shown, consideration must be given to whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life and f) if doubt remains, the rating will be continued subject to reexamination within a specified period of time (18, 24, or 30 months). As already pointed out, the Veteran is competent to state that he feels he has instability and, given his prior surgeries (ACL reconstruction and meniscectomy), his allegations are not patently incredible. Also, as discussed, the Board finds that he is entitled to a 10 percent rating prior to February 7, 2021, and to a higher 20 percent from that date onwards. The evidence reflects his continued credible complaints of at least some instability, so slight according to the former version of Diagnostic Code 5257, and, pursuant to English, he is entitled to a minimum 10 percent rating. The new regulation, however, which allows for the higher 20 percent rating based on prescription of an assistive device such as a cane or brace, may not be applied prior to its effective date of February 7, 2021, according to the holding in Kuzma. Lastly, the Board also has considered whether the Veteran is entitled to referral to the Director of the Compensation Service for consideration of a total disability rating based on individual unemployability (TDIU). A claim for a TDIU, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part and parcel of the claim for an increased rating for that disability. See Rice v. Shinseki, 22 Vet. App. 447 (2009). But, here, the claims file indicates the Veteran has been gainfully employed during the pendency of this appeal. Thus, consideration of entitlement to a TDIU is not warranted. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Wishard 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.