Citation Nr: 21027125 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 17-04 384 DATE: May 4, 2021 ORDER Entitlement to a rating in excess of 10 percent for left knee limited flexion with shin splints is denied. Entitlement to a rating in excess of 20 percent for left knee meniscal tear is denied. Entitlement to a rating in excess of 20 percent for left knee subluxation is denied. Entitlement to a rating in excess of 10 percent for left knee limited extension is denied. FINDINGS OF FACT 1. The Veteran's left knee limited flexion with shin splints is manifested by no worse than limitation of flexion to 75 degrees with pain. 2. The Veteran's left knee meniscal tear is already in receipt of the highest possible rating. 3. The Veteran's left knee subluxation is manifest by no more than moderate instability and subluxations; and there is no sprain or ligament tear. 4. The Veteran's left knee limited extension is manifested by no worse than limitation of flexion to 10 degrees with pain. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for left knee limited flexion with shin splints have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5260 2. The criteria for a rating in excess of 20 percent for left knee meniscal tear have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5258. 3. The criteria for a rating in excess of 20 percent for left knee subluxation have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5257. 4. The criteria for a rating in excess of 10 percent for left knee limited extension 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 FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 2001 to December 2001, January 2003 to October 2003, May 2010 to August 2010 and from November 2010 to May 2011. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In December 2019, the Veteran appeared and testified at a video teleconference hearing before the undersigned Veterans Law Judge. This matter was previously before the Board in March 2020, at which time it was remanded for an updated VA examination. A review of the record reveals that there has been substantial compliance with the Board's prior remand directives as to the issues decided below. See Stegall v. West, 11 Vet. App. 265 (1998). INCREASED RATING Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. The Veteran was initially awarded service connection rated at 20 percent for left knee shin splints by way of a December 15, 2014 rating decision under DC 5262. He was then granted a separate service connection for left knee chronic strain by way of a December 30, 2014 rating decision under DC 5260. The disabilities were merged in a May 2017 rating decision and rated at 10 percent disabling under DC 5260. In October 2020, the RO issued a rating decision continuing the 10 percent rating for left knee strain under DC 5260, limited flexion. The RO also awarded a separate 20 percent evaluation for left knee meniscal tear, and a 20 percent evaluation for left knee subluxation, both effective September 12, 2014, and 10 percent evaluation for left knee limited extension, effective August 19, 2020. Entitlement to a rating in excess of 10 percent for left knee limited flexion with shin splints, a rating in excess of 20 percent for left knee meniscal tear, a rating in excess of 20 percent for left knee subluxation and a rating in excess of 10 percent for left knee limited extension In the interest of efficiency, the Board will discuss these ratings together, below. Initially, the Board recognizes that, effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. 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. Diagnostic Code (DC) 5256 pertains to ankylosis of the joint. This regulation was unchanged with the February 2021 amendments. Here, the evidence does not show, and the Veteran has not suggested that his left knee joint is ankylosed. Thus, a rating under DC 5256 is not warranted. DC 5257, under the old regulation, allows for a 10 percent rating with recurrent subluxation or lateral instability that is slight; a 20 percent disability rating when moderate, and a 30 percent rating when severe. The amended regulation more specifically provides criteria for both recurrent subluxation or instability and for patellar instability. With recurrent subluxation or instability, a 10 percent rating is warranted when the evidence shows 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 when one of the following is present (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. If the evidence shows patellar instability, 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 or a brace, cane, or walker. A 20 percent rating is warranted with 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 warranted with 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) under the new DC 5257 criteria related to patellar instability indicates that, for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella and the patellar tendon; Note (2) indicates a surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as a surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). Under DC 5258, dislocated, semilunar cartilage with frequent episodes of locking, pain and effusion into the joint is rated as 20 percent disabling. Removal of the semilunar cartilage with symptoms is rated as 10 percent disabling under DC 5259. These regulations were unchanged with the February 2021 amendments. Under DC 5260, limitation of flexion to 60 degrees or more is noncompensably rated; flexion limited to 45 degrees is rated as 10 percent disabling; flexion limited to 30 degrees is rated as 20 percent disabling; and flexion limited to 15 degrees is rated as 30 percent disabling. This regulation was unchanged with the February 2021 amendments. Under DC 5261, limitation of extension to 5 degrees or more is noncompensably rated; extension limited to 10 degrees is rated as 10 percent disabling; extension limited to 15 degrees is rated as 20 percent disabling; extension limited to 20 degrees is rated as 30 percent disabling; extension limited to 30 degrees is rated as 40 percent disabling; and extension limited to 45 degrees is rated as 50 percent disabling. This regulation was unchanged with the February 2021 amendments. DC 5262, under the old rating criteria, a 10 percent rating for malunion of the tibia and fibula with slight knee or ankle disability; moderate knee and ankle disability is rated as 20 percent disabling; and marked knee or ankle disability is rated as 30 percent disabling. Nonunion of the tibia and fibula with loose motion, requiring a brace is rated as 40 percent disabling. The new regulation does not change the criteria for nonunion of the tibia and fibula. However, the regulation is separated into an instruction for malunion of the tibia and fibula and rating criteria for medial tibial stress syndrome (MTSS) or shin splints. For malunion of the tibia and fibula, the new regulation indicates this is to be evaluated under DCs 5256, 5257, 5260, or 5261 for the knee, or 5270 or 5271 for the ankle, whichever results in the highest evaluation. For MTSS, the new rating criteria indicate a noncompensable rating is warranted for treatment less than 12 consecutive months, one or both lower extremities; a 10 percent rating is warranted when the condition requires treatment for no less than 12 consecutive months, and unresponsive to either shoe orthotics or other conservative treatment, one or both lower extremities; a 20 percent rating is warranted when the condition requires treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, one lower extremity; and a 30 percent rating is warranted when the condition requires treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, both lower extremities. Under DC 5263, genu recurvatum is rated as 10 percent disabling. This regulation was unchanged with the February 2021 amendments. 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 in this case has disability in both knees; thus, there is no 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. Turning to the evidence of record in this case, private treatment records dated in September 2014, show an MRI of his left knee at that time revealed remote low-grade interstitial injury of the ACL but no acute tear. There was mildly thickened medial patellar plica, tiny knee effusion and suspected subtle free edge fraying of the anterior horn of the medial meniscus. A separately submitted letter from his physician notes that he compensated for his right knee pain by standing on his left knee and there is an injury to the ACL. The Veteran was then afforded a VA examination in November 2014. He was diagnosed with bilateral shin splints and knee strain. During flare-ups, he reported extreme pain, difficulty going up and down stairs and running. Range of motion testing of the left knee revealed flexion to 110 degrees and extension to zero degrees, which was also the point where painful motion began. Range of motion with repetitive use was the same, but additional functional loss included less movement than normal and pain. Range of motion loss during flare-ups was to 105 degrees flexion and there was no change to extension. There was no pain on palpitation and muscle strength was normal. Joint stability tests were normal and there was no evidence of recurrent patellar subluxation or dislocation. There was no meniscal condition for the left knee. The Veteran did not use an assistive device and there was no functional impact on his ability to work. By July 2015, private treatment records show the Veteran had complaints of constant pain, which was increased by prolonged sitting, standing walking and squatting. He also complained of his leg buckling and giving way. On examination, there was decreased range of motion but no joint instability. A torn meniscus was noted. An MRI from August 2015 shows the medial and lateral meniscus were intact. The cruciate ligaments, MCL, lateral complex structures, quadricep tendon and patellar tendon were also intact. There was no significant cartilage abnormality found. A nonspecific edema within the suprapatellar fat pad and a small popliteal cyst were noted. The Veteran was afforded another VA examination in October 2016. He was diagnosed with left knee arthritis. During flare-ups, he reported his knee locks up and gives out, he has sharp stabbing pain, popping, stiffness and instability. He reported he has difficulty going up and down stairs, kneeling, squatting, and walking on unstable ground. Range of motion testing of the left knee revealed flexion to 90 degrees and extension to zero degrees. Pain was noted on examination and contributed to functional loss. There was also pain with weight bearing and evidence of crepitus. Range of motion with repetitive use was from 0 to 80 degrees in extension and flexion, and with flare-ups, range of motion was 0 to 75 degrees. There was less movement than normal and interference with standing. Muscle strength was normal and there was no muscle atrophy or ankylosis. There was also no history of recurrent subluxation, lateral instability, or recurrent effusion. Joint stability testing was normal. The Veteran used a brace for his right knee and a cane occasionally. The examiner noted the functional impact of knee pain, stiffness, limited range of motion, difficulty with bending, prolonged standing, squatting, and climbing stairs. The examiner noted the Veteran did not have a meniscus condition, which appears to be consistent with the last MRI, but not so with the VA treatment records from July 2015 that showed a torn left meniscus. The Veteran submitted a private examination in September 2019. The examiner found the diagnosed conditions of knee strain, meniscus tear, recurrent subluxation, knee instability, shin splints and patellofemoral pain syndrome for the left knee. During flareups, the Veteran reported instability, weakness, increased pain, decreased range of motion, swelling, difficulty squatting, walking, standing, and climbing stairs. He reported his flare-ups take 2 to 3 days to return to baseline and they occur multiple times a week. He also noted interference with work as he needs to sit down immediately and apply ice. Range of motion at that time showed flexion to 70 degrees and extension to 0 degrees for the left knee. Range of motion after repetitive use testing was flexion to 45 degrees and extension to 0 degrees. Pain was noted in weight bearing and non-weight bearing. There was moderate pain upon palpitation to the anterior, lateral, and medial joint surfaces of the knee. There was less movement than normal, excess fatigability, incoordination, impaired ability to execute skilled movements smoothly, pain on movement, swelling, disturbances of locomotion, interference with sitting, and interference with standing. Range of motion due to pain, during flare-ups or repetitive motion was flexion and extension to zero. There was no ankylosis found. There was a history of moderate recurrent subluxation and slight lateral instability, but no recurrent effusion. Joint stability testing again confirmed no instability of either knee joint. Shin splints were noted bilaterally with symptoms of tenderness and pain along the inner shin bone. The examiner found a meniscal tear, frequent episodes of joint locking and frequent episodes of joint pain on the left knee. The Veteran reported frequent knee locking and constant joint pain. The examiner noted that the Veteran occasionally wears a brace, but it appears only for the right knee. The Veteran reported worsening pain in the knees and needs to rest frequently to prevent his knees from locking. The Veteran also submitted statements from friends and family who witnessed the Veteran's knee locking up. They noted that when this happens, the Veteran is immobilized and needs to sit and rest. At the time of his December 2019 Board hearing, he indicated the more he uses his knees, the more inflamed the tendons get to the point he cannot move his knee at all. If he is able to take breaks and ice his knees, he can move again but if not, his knee will lock up. He stated his frequent breaks have affected his job performance negatively. At the August 2020 VA examination, the Veteran reported after 100 yards, both knees lock up. During flare-ups, there is a stabbing pain in front of the knee, it gets stiff, then it gradually loses range of motion until there is no longer any range of motion. Flare-ups occur daily if he does not "baby" the knee. Pain is a 10 out of a scale of 10. His flare-ups resolve by the next day. He reported he wears a hinged brace on both knees daily. He must use an elevator and his work performances have gone down. He cannot hunt, walk extended distances, play with his kids, do manual labor, or use ladders. Initial range of motion testing revealed normal flexion and extension. Range of motion with repetitive use after time was flexion to 85 and extension to 10. There was pain noted on examination causing functional loss but not in passive motion. There was pain with weight bearing, but not non-weight bearing. The examiner confirmed that the examination results were medically consistent with the Veteran's statements describing functional loss during flare-ups and found range of motion testing was flexion to 85 and extension to 10. There was no ankylosis found but there was a history of slight recurrent subluxation and recurrent effusion. Joint stability testing again confirmed no instability of the left knee joint. Shin splints were noted and were very tender to touch. The examiner also noted the meniscal tear in the left knee with frequent episodes of joint locking, pain, and effusion. The Veteran uses a brace constantly and occasionally uses an electric scooter. The Veteran reported that sometimes he wakes up with his knees already locked. When it happens at work, he needs to sit down or leave work. His shin splints cause burning and soreness. The examiner noted a new diagnosis of left meniscal tear, bilateral patellar maltracking (subluxation), which was directly related to the service-connected condition. Based upon the foregoing, the Board finds no basis for an award under DC 5256 for ankylosis, as no ankylosis is shown. Similarly, there is no indication of symptomatic removal of semilunar cartilage; thus, a rating under DC 5259 is also not warranted. Likewise, the evidence does not show genu recurvatum; thus, a rating under DC 5263 is not warranted. The Veteran was assigned a 20 percent rating for left knee meniscus tear, under DC 5258, for cartilage, semilunar, dislocated, with frequent episodes of "locking" pain, and effusion into the joint. That is the only rating available under Diagnostic Code 5258, therefore no higher rating under DC 5258 is warranted. As for limitations of flexion, the Board recognizes the Veteran's flexion is less than normal; however, at no time has the flexion been limited to 30 degrees or worse, other than during flare-ups when the knee becomes locked. However, frequent locking of the left knee is already contemplated under DC 5258 for his meniscus tear and is rated at the highest possible rating. Thus, the Board finds rating in excess of 10 percent is not warranted under DC 5260. As for limitations of extension, the Veteran's extension has not been shown as limited to 15 degrees or worse; thus, a rating in excess of 10 percent rating under DC 5261 is also not warranted. As for the Veteran's instability, his left knee is recognized as having moderate instability and is assigned a separate 20 percent rating under DC 5257 throughout this appeal period. The question is whether there is any indication of severe instability in the left knee. At the time of the November 2014 VA examination, there was no evidence of recurrent patellar subluxation or dislocation of the left knee. July 2015 private treatment records show the Veteran complained of his leg buckling and giving way and the examiner noted moderate instability. No instability was explicitly noted at the time of the October 2016 VA examination, although the examiner observed the Veteran a using a cane. At the September 2019 private examination, the examiner noted moderate recurrent subluxation and slight lateral instability. At his December 2019 Board hearing, the Veteran described locking of his knees but no instability. At the August 2020 VA examination, there was only slight recurrent subluxation and joint stability tests were normal. The Board finds that the evidence has not established a severe level of knee instability at any time. The instability has been present, but it has been no worse than moderate. The Board, therefore, finds a rating in excess of 20 percent is not warranted under DC 5257 for the left knee. As for the assignment of any increase under the new criteria for instability and subluxation, the Board finds the symptoms shown do not warrant any such ratings because there are no indications of sprain, ligament tear, or surgical repair. While the earlier indication in the record did suggest a possible ACL injury, the medical evidence confirmed that there was no evidence of an actual ligament tear in this case. The Board, therefore, finds a rating in excess of 20 percent for left knee instability under DC 5257 is denied. Lastly, the Veteran's shin splints were merged with his knee evaluations for limitation of flexion and extension. As applied to the Veteran's shin splints, the Board finds the new rating criteria of DC 5262 does not benefit the Veteran, as the condition does not appear to be the subject of actual treatment. M. E. KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Jaigirdar, 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.