Citation Nr: 21027127 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 14-26 413 DATE: May 4, 2021 ORDER Throughout the period on appeal, entitlement to an increased rating in excess of 10 percent for left knee chondromalacia with degenerative joint disease is denied. Throughout the period on appeal, entitlement to a separate compensable disability rating for left knee chondromalacia with degenerative joint disease based upon limitation of extension is denied. Prior to December 3, 2013, entitlement to an initial 20 percent rating, but no higher, for degenerative changes of the left knee medial and lateral menisci is granted. Throughout the period on appeal, entitlement to a separate, 10 percent rating for slight left knee instability is granted. FINDINGS OF FACT 1. For the entire appeal period, the Veteran's left knee chondromalacia with degenerative joint disease has manifested with reduced range of motion with flexion, at worst, at 70 degrees. 2. For the entire appeal period, the Veteran's left knee chondromalacia with degenerative joint disease has been manifested by limitation of extension. 3. Prior to December 3, 2013, the Veteran's degenerative changes of the left knee medial and lateral menisci manifested with a meniscal tear and frequent episodes of joint pain. 4. Throughout period on appeal, the Veteran's left knee disability has manifested with "mild" instability in the form of a history of popping/giving way; the Veteran's left knee instability has not manifested with "moderate" severity. CONCLUSIONS OF LAW 1. The criteria for an increased rating in excess of 10 percent for left knee chondromalacia with degenerative joint disease are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5099-5014, 5260. 2. The criteria for a separate compensable rating for left knee chondromalacia with degenerative joint disease based upon limitation of extension are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5261. 3. Prior to December 3, 2013, the criteria for an initial 20 percent rating for degenerative changes of the left knee medial and lateral menisci are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.71a, Diagnostic Code 5258 4. Throughout the period on appeal, the criteria for a separate, 10 percent rating, but no higher, for left knee instability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.71a, Diagnostic Code 5257 (2012-2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1973 to May 1976. This matter is before the Board of Veterans' Appeals on appeal from an October 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the Veteran's claim in July 2018 and August 2020. Review of the completed development reveals that, at the very least, substantial compliance with the remand directives was obtained. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). 1. Entitlement to an increased rating in excess of 10 percent for left knee chondromalacia with degenerative joint disease. 2. Entitlement to an initial 20 percent rating prior to December 3, 2013 for degenerative changes of the left knee medial and lateral menisci. 3. Entitlement to a separate, 10 percent rating for slight left knee instability. The Veteran contends he is entitled to a rating in excess of 10 percent for left knee chondromalacia with degenerative joint disease. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities found in 38 C.F.R. Part 4. 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. The Board must also fully consider the lay assertions of record. Layno v. Brown, 6 Vet. App. 465, 470 (1994). To evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the current level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Consideration of the appropriateness of a staged rating, the assignment of different ratings at different times during the rating period to compensate the Veteran for times when the disability may have been more severe than at others, is required for increased rating claims, irrespective of whether it is an initial rating at issue or instead an established rating. Hart v. Mansfield, 21 Vet. App. 505 (2008). As such, the Board has considered whether different ratings for different periods of time, based on the facts found, are warranted throughout the appeal. The Veteran is currently in receipt of a 10 percent rating for left knee chondromalacia with degenerative joint disease under 38 C.F.R. § 4.71a, DC 5099-5014. A claim for an increased rating was received on June 29, 2012. Therefore, the relevant rating period is from June 29, 2011, one year prior to receipt of the claim, through the present. 38 C.F.R. § 3.400(o)(2). In July 2012 the Veteran was afforded a VA examination to assess his left knee disability. The Veteran reported that his left knee was hurting more over the last two years and was worse with walking and standing. The Veteran reported flare-ups every two weeks that impact the function of his left knee. Range of motion testing indicated flexion from 0 to 140 degrees with objective evidence of painful motion at 100 degrees, and normal extension to 0 degrees. The Veteran was able to complete repetitive-use testing with at least three repetitions without additional loss of function or range of motion. There was objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. Muscle strength was normal. Joint stability tests were all normal; patellar subluxation was not shown. Imaging studies found no degenerative or traumatic arthritis. In private treatment records provided from December 2013 and January 2014, the Veteran was seen by Dr. R.W. for orthopedic care of his left knee. At his initial visit in December 2013, the Veteran complained of localized pain, pain with weight bearing, pain with motion, and stiffness, with the severity of symptoms moderate and the pain sharp with dull aching. The Veteran reported popping and/or giving way of the knee, difficulty going up and down stairs, difficulty kneeling/squatting and pain with activity. Upon examination, the Veteran was found to have moderate medial and lateral joint line tenderness with no effusion or crepitus. Mild limitation of range of motion was found. No instability was found. Strength was normal. A January 2014 progress note found that the Veteran had symptoms of diffuse pain, localized pain, pain with weight bearing, pain with motion, swelling, and stiffness, with the severity of symptoms severe and pain sharp with dull aching and stabbing. The Veteran reported pain with activity, pain at night, swelling and limited walking. Upon examination, the Veteran was found to have medial and lateral joint line tenderness with no effusion or crepitus. Range of motion was found to be limited secondary to pain. No instability was noted. Muscle weakness was found secondary to pain. Based on imaging studies, the Veteran was diagnosed with lateral and medial meniscus tears, chondromalacia patella, and post-traumatic arthritis, of the left knee. In an August 2018 physical therapy private treatment record, the Veteran was provided an initial evaluation of his left knee. The evaluator, J.M., Doctor of Physical Therapy (DPT), noted that the Veteran reported dealing with pain and having a recent flare-up in pain despite using pain medication. The Veteran's pain was reported to typically onset with increased weightbearing activity. The pain in his left knee was reported as 7 out of 10 at the appointment, which is the worst level the Veteran reported, with 4 out of 10 the lowest level reported. The Veteran was found to have severe limitations in walking, squatting, and using stairs with moderate limitation in standing and transition motions. He was found to be unable to perform recreational exercise. Both when walking and standing, the Veteran was found to have decreased knee extension. Active range of motion testing indicated flexion up to 93 degrees and extension to 10 degrees. Passive range of motion testing indicated flexion up to 101 degrees and extension to 8 degrees. The assessment provided was that the Veteran is currently impaired in strength, flexibility, range of motion, pain management, and gait kinematics, which are affecting his ability to kneel, squat to pick up objects, tolerate prolonged standing/walking, transfer, mobilize in bed, and navigate stairs. In May 2019, the Veteran was afforded another VA examination. He reported chronic pain, daily pain at an 8 out of 10, and that his knee hurts badly. He denied flare-ups. He reported that he can only walk 1/4 mile before he gets pain and admits to a range of motion/functional loss of approximately 50 percent. Range of motion testing was found to be abnormal with flexion up to 90 degrees and normal extension to 0 degrees. Pain was exhibited on flexion and noted to cause functional loss. The examiner opined that the range of motion itself contributed to functional loss as the limited range of motion has a reduction in the knee's ability to move, and impairs function and the ability to perform usual daily activities, which require full flexion and extension of the knee. There was no pain with weight bearing or non-weight bearing, and no pain with passive range of motion. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissues. The Veteran was able to complete repetitive-use testing with at least three repetitions without additional loss of function or range of motion. The examiner opined that pain would significantly limit functional ability with repeated use over a period of time. However, range of motion after repetitive use over time was unchanged. Muscle strength was normal and no atrophy or ankylosis was found. There was no history of recurrent subluxation, lateral instability, or recurrent effusion. Joint stability testing was normal. The Veteran was found to have a meniscal tear with frequent episodes of joint pain. The Veteran was found to constantly use a knee brace as an assistive device. Imaging studies found evidence of degenerative arthritis. In October 2020, the Veteran was afforded another VA examination. He reported that his left knee condition had stayed the same. He reported that he wears a brace on his left knee as his left leg is weak with generalized weakness in the knee. He also reported that pain is significant when going down stairs, and that the pain is on both sides of his knee. The Veteran reported no flare-ups. The Veteran reported additional functional loss or functional impairment of the joint, after repeated use, leading him to walk sideways when going down stairs and causing him difficulty picking things up from the floor. Range of motion testing was found to be abnormal with flexion up to 70 degrees and normal extension to 0 degrees. Pain was exhibited on flexion and noted to cause functional loss. The examiner opined that the range of motion itself contributed to functional loss as the lost flexion limits the Veteran from being able to participate in activities that require picking up objects from the floor frequently, and/or frequent kneeling or squatting. There was no pain with weight bearing or non-weight bearing, and no pain with passive range of motion. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissues. There was no objective evidence of crepitus. The Veteran was able to complete repetitive-use testing with at least three repetitions without additional loss of function or range of motion. The examiner opined that pain would significantly limit functional ability with repeated use over a period of time but would not impact range of motion. Muscle strength was normal and no atrophy or ankylosis was found. There was no history of recurrent subluxation, lateral instability, or recurrent effusion. Joint stability testing was normal. Imaging studies found evidence of degenerative arthritis. In November 2020, an addendum opinion was provided by the examiner who provided the October 2020 VA examination. The examiner noted that the Veteran did not report flare-ups, but opined on the effects of flare-ups, were they to happen. The examiner opined that pain increases with repetitive actions and weight-bearing but does not affect the overall range of motion. He further noted that there is no evidence to support the Veteran having any additional loss of range of motion during a normal day. He added that, contrary to popular belief, most conditions do not lead to decreased range of motion and that in fact, range of motion sometimes improves with activity (in a given period). Under 38 C.F.R. § 4.71a, DC 5014, osteomalacia, residuals of, will be rated as degenerative arthritis, based on limitation of motion of affected parts. Under 38 C.F.R. § 4.71a, DC 5003 degenerative arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint(s) involved. When the limitation of motion is noncompensable under the appropriate diagnostic code(s), a 10 percent rating is for application for each major joint affected by limitation of motion, to be combined, not added under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, including the titles of DC 5014 and DC 5003 (reflected above), however the rating criteria for these diagnostic codes were not changed. 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). 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). Limitation of motion of the knee is contemplated in 38 C.F.R. § 4.71a, Diagnostic Codes (DC) 5260 and 5261. Normal range of knee motion is 140 degrees of flexion and zero degrees of extension. 38 C.F.R. § 4.71, Plate II. Under 38 C.F.R. § 4.71a, DC 5260, a noncompensable rating is warranted for flexion of the knee limited to 60 degrees; a 10 percent rating is warranted for flexion of the knee limited to 45 degrees; a 20 percent rating is warranted for flexion limited to 30 degrees; and a 30 percent rating is warranted for flexion limited to 15 degrees. Under 38 C.F.R. § 4.71a, DC 5261, a noncompensable rating is warranted for extension of the knee limited to 5 degrees; a 10 percent rating is warranted for extension of the knee limited to 10 degrees; a 20 percent rating is warranted for extension limited to 15 degrees; a 30 percent rating is warranted for extension limited to 20 degrees; a 40 percent rating is warranted for extension limited to 30 degrees; and a 50 percent rating is warranted for extension limited to 45 degrees. Based on the evidence, the Board finds that a rating in excess of 10 percent for left knee chondromalacia with degenerative joint disease is not warranted. The Board finds that the Veteran's left knee chondromalacia with degenerative joint disease has manifested in reduced range of motion with flexion, at worst, at 70 degrees, including additional limitations during flare-ups and with repetitive use. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to weakness, pain with motion, pain with weightbearing, repetitive use, pain during flare-ups, and pain during repetitive use over time, which affect the Veteran's ability to walk down stairs, squat or kneel, and walk distances, among other things. However, even considering the Veteran's reports of symptoms and noted functional loss, there is no lay or medical indication that the manifestations of his left knee disability have been so disabling as to result in limitation of motion more nearly approximating flexion limited to 30 degrees, which would warrant a rating in excess of 10 percent rating under DC 5260. To the extent that the limitation of range of motion and functional loss due to pain and other factors delineated in 38 C.F.R. §§ 4.40 and 4.45; to include with repeated use or during flare-ups, has not been sufficiently addressed in prior VA examinations, the Board extrapolates the findings of the October 2020 VA examination to the duration of the appeal. Hence, even with consideration of these factors, the record presents no basis for the assignment of a rating in excess of 10 percent for the left knee under Diagnostic Code 5260. See DeLuca, 8 Vet. App. at 204-7. 38 C.F.R. §§ 4.1, 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260. The Board also finds that a separate compensable rating is not warranted during the appeal period based upon limitation of extension of the left knee. The Board notes that the Veteran's left knee extension was found to be limited to 10 degrees and 8 degrees extension, upon active and passive range of motion testing at the August 2018 physical therapy evaluation; however, the Board finds these results to be less probative than the findings of the VA examiners of record. The Board notes that the physical therapist reported left knee extension to 5 and 3 degrees upon active and passive range of motion in October 2018, which would not result in a separate compensable evaluation under DC 5261. Further, neither evaluation was reported to be have been performed with use of a goniometer as the accuracy of these measurements are in question compared to the reports of the VA examinations of record, the Board finds that the Veteran has not demonstrated limitation of extension in excess of 0 degrees during the appeal period. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to weakness, pain with motion, pain with weightbearing, repetitive use, pain during flare-ups, and pain during repetitive use over time, which affect the Veteran's ability to walk down stairs, squat or kneel, and walk distances, among other things. However, even considering the Veteran's reports of symptoms and noted functional loss, the weight of the evidence of record does not support manifestations of his left knee disability that result in extension limited to 10 degrees or more, which would warrant a separate compensable rating under DC 5261. 38 C.F.R. §§ 4.1, 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5261. The Board notes that a November 2020 rating decision granted service connection for degenerative changes of the left knee medial and lateral menisci with an evaluation of 20 percent under diagnostic code 5258, effective December 3, 2013. The Board finds that a separate 20 percent rating is warranted prior to December 3, 2013, throughout the period on appeal. Under DC 5258, a 20 percent rating is assigned for cartilage, semilunar, dislocated, with frequent episodes of "locking," pain, and effusion into the joint. While MRI testing that revealed the degenerative changes to the Veteran's left menisci on December 3, 2013, an effective date for an increased rating should not be assigned mechanically based on the date of a diagnosis. Rather, all of the facts should be examined to determine the date that the disability first manifested. Accordingly, the effective date for an increased rating-as well as for an initial rating or for staged ratings-is predicated on when the increase in the level of disability can be ascertained. See Swain v. McDonald, 27 Vet. App. 219, 224 (2015). In determining when an increase is "factually ascertainable," all of the evidence must be looked to, including testimonial evidence and expert medical opinions, and an effective date must be assigned based on that evidence. See McGrath v. Gober, 14 Vet. App. 28, 35-36 (2000). While imaging didn't indicate the degenerative changes to his menisci until December 2013, the Veteran, at his July 2012 VA examination, indicated that his left knee had been hurting more over the last two years. Therefore, resolving the benefit of the doubt in the favor of the Veteran, the Board grants an earlier effective date of June 29, 2012, the date of his increased rating claim, for his initial 20 percent rating for degenerative changes of the left knee medial and lateral menisci, rated under DC 5258. As the Veteran has already been granted the maximum 20 percent rating for DC 5258, this diagnostic code does not require further consideration. 38 C.F.R. §§ 4.3, 4.71a, Diagnostic Code 5258. Further, the Board has found sufficient basis to award a separate 10 percent rating under DC 5257 for subjective complaints of instability. This rating is assigned due to the Veteran's subjective reports of a history of popping/giving way of his left knee as reported by Dr. R.W. in a December 2013 private treatment record. This evidence supports the assignment of a compensable rating for instability. See English v. Wilkie, 30 Vet. App. 347 (2018). As the Veteran reported a prior history of instability in December 2013, the Board grants the award of the 10 percent rating under DC 5257 effective June 29, 2012, the date of the Veteran's claim for an increased rating for his left knee. 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. DC 5257 is one of the diagnostic codes that was amended. 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 former criteria prior to February 7, 2021 and both the former and amended rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Prior to the regulatory change, under the former version of DC 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. As of February 7, 2021, under the amended criteria for DC 5257, for recurrent subluxation or instability, a 10 percent rating is warranted 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. A 20 percent rating is warranted for one of the following: (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation; or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 30 percent rating is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Additionally, as of February 7, 2021, under the amended criteria for DC 5257, for 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 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 warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent under DC 5257 at any point during the period on appeal. Prior to February 7, 2021, the former version of DC 5257 applies. From February 7, 2021, the former version of DC 5257 is more favorable to the Veteran, as he does not meet the criteria for a compensable rating under the amended version of DC 5257. The Board notes that the Veteran condition is not diagnosed as a sprain, a ligament tear, and does not involve the quadriceps tendon, the patella, and the patellar tendon. Therefore, the Board will apply the former version of DC 5257 to the entire period on appeal. Under the former DC 5257 criteria, the Veteran does not warrant a rating in excess of 10 percent because the medical evidence, which is probative, fails to establish clinical findings of recurrent subluxation or lateral instability on each of the examinations of record. All examination reports of record which show testing for lateral instability and recurrent subluxation were normal. 38 C.F.R. §§ 4.3, 4.71a, Diagnostic Code 5257 (2012-2021). Finally, the Board has also considered the other Diagnostic Codes pertaining to the knee and leg. The remaining DCs5256 (ankylosis of the knee); 5259 (symptomatic removal of semilunar cartilage); 5262 (impairment of the tibia and fibula); and 5263 (genu recurvatum)are not for application because there is no evidence of these conditions during the appeal period. In deciding the Veteran's increased rating claim, the Board has considered the determination in Hart, and whether the Veteran is entitled to increased evaluations for separate periods based on the facts found during the appeal period. The evidence of record supports the conclusion that the Veteran is not entitled to additional increased compensation at any time within the appeal period. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for a rating in excess of 10 percent for left knee chondromalacia with degenerative joint disease. 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. Patrick M. Johnson Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Caban, 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.