Citation Nr: 21027380 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 14-27 491 DATE: May 5, 2021 ORDER Entitlement to a rating higher than 10 percent for left knee disability is denied. FINDING OF FACT The Veteran's left knee disability is manifested painful restricted motion with flexion at worse to 50 degrees (during flare-ups) and extension to 0 degrees; there is no recurrent subluxation or lateral instability, ankylosis, or impairment of the tibia or fibula. CONCLUSION OF LAW The criteria for a rating higher than 10 percent for left knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes (Code) 5020, 5256, 5257, 5260-5262. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1958 to October 1960 and from October 1961 to August 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO); and on remand from the United States Court of Appeals for Veterans Claims (Court). This matter, along with entitlement to service connection for lumbar spine disability, was previously before the Board in May 2019, when they were denied. The Veteran timely appealed that decision to the Court, and a June 2020 order granted a Joint Motion for Remand (JMR), vacated the Board's decision, and remanded the matters for compliance with the instructions in the JMR. In November 2020, these matters were remanded to the agency of original jurisdiction (AOJ) for further development pursuant to the instructions in the JMR. A February 2021 rating decision granted service connection for a lumbar spine disability. As such, this issue is no longer before the Board. 1. Entitlement to a rating higher than 10 percent for left knee disability Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155. Where there is a question as to which of two disability evaluations shall be applied the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. However, pyramiding, or evaluating the same manifestation of a disability under different diagnostic codes, is to be avoided. See 38 C.F.R. § 4.14. Thus, separate ratings under different diagnostic codes are only permitted if, those separate ratings are assigned based on manifestations of the Veteran's disability that are separate and apart from manifestations for which the Veteran has already been rated. See Esteban v. Brown, 6 Vet. App. 259, 261 (1994). Separate ratings may be awarded so long as assignments of separate ratings would not result in compensating the Veteran twice for the same symptom. Lyles v. Shulkin, 29 Vet. App. 107 (2017). When evaluating musculoskeletal disabilities based on limitation of motion, the Veteran is entitled to at least the minimum compensable evaluation if motion is accompanied by pain. See 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). Additionally, pain is also relevant to assignment of a rating in excess of the minimum compensable rating, but only if that pain results in demonstrated functional impairment. Mitchell v. Shinseki, 25 Vet. App. 32, 3738 (2011); see 38 C.F.R. §§ 4.40, 4.45. Functional impairment as contemplated by 38 C.F.R. §§ 4.40 and 4.45 includes 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, 25 Vet. App.at 44. Joint pain alone, without evidence of decreased functional ability, does not warrant a higher rating. See generally Mitchell, 25 Vet. App. at 32. 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. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). 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. Disabilities of the knee are evaluated under the schedular criteria of Codes 5256 through 5263, under 38 C.F.R. § 4.71a. The Veteran's left knee disability is currently rated under Code 5020, 5260, which evaluates limitation of flexion. A 10 percent rating is assigned when flexion is limited to 45 degrees; a 20 percent rating is assigned when flexion is limited to 30 degrees; and a 30 percent rating is assigned when flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, Code 5260. Other diagnostic codes applicable to a knee disability include Codes 5256, 5257, 5258, 5259, 5261, 5262, and 5263. Code 5256, which evaluates ankylosis of the knee, provides for a 30 percent rating for favorable angle in full extension, or in slight flexion between 0 degrees and 10 degrees. A 40 percent rating is assigned when there is ankylosis of the knee in flexion between 10 and 20 degrees. A 50 percent rating is assigned when there is ankylosis of the knee in flexion between 20 and 45 degrees. A 60 percent rating is assigned for extremely unfavorable ankylosis in flexion at the angle of 45 degrees or more. 38 C.F.R. § 4.71a, Code 5256. Under Code 5257, knee impairment with recurrent subluxation or lateral instability is rated 10 percent when slight, 20 percent when moderate, and 30 percent when severe. 38 C.F.R. § 4.71a, Code 5257. Under Code 5258, when semilunar cartilage is dislocated with frequent episodes of locking, pain, and effusion into the joint, a 20 percent rating is assigned. 38 C.F.R. § 4.71a, Code 5258. Under Code 5259, when semilunar cartilage has been removed, but remains symptomatic, a 10 percent rating is assigned. 38 C.F.R. § 4.71a, Code 5259. Under Code 5261, which evaluates limitation of extension, a 10 percent rating is assigned when extension is limited to 10 degrees; a 20 percent rating is assigned when extension is limited to 15 degrees; a 30 percent rating is assigned when extension is limited to 20 degrees; a 40 percent rating is assigned when extension limited to 30 degrees; and a 50 percent rating is assigned when extension is limited to 45 degrees. 38 C.F.R. § 4.71a, Code 5261. Codes 5262 and 5263 provide ratings for impairment of tibia and fibula and genu recurvatum, respectively. Under the changes to the musculoskeletal ratings criteria, Code 5257 knee impairment, patellar instability is rated 10 percent; 20 percent is warranted for moderate instability and 30 percent is warranted for severe instability. As previously noted, the Board remanded this issue in November 2020 for a new VA examination. Sharp v. Shulkin, 29 Vet. App. 26 (2017). In November 2012, the Veteran attended a VA examination. The examiner diagnosed left knee Baker's cyst and bilateral knee degenerative joint disease. Upon examination, no flare up was noted. Further, range of motion (ROM) was as follows: left knee flexion to 120 degrees and normal extension. Repetitive use testing indicated the same ROM. Functional loss was noted as less movement than normal. The Veteran had no residual signs or symptoms due to his left knee baker's cyst removal. He had no recurrent subluxation, lateral instability, dislocated semilunar cartilage, evidence of malunion of the tibia and fibula, or ankylosis in the left knee. He occasionally used a brace. Various VA treatment records indicate continued left knee complaints but are silent for any ROM measurements. In February 2018, the Veteran attended a Board hearing. He testified that he can no longer put on his socks and had difficulty bending his knee. Further, he testified that his doctor is hesitant to attempt another knee surgery because all the scar tissue causes the Veteran a great amount of pain. In November 2018, the Veteran attended another VA examination of the knee. The examiner diagnosed Baker's cyst, status-post excision (times 2). The Veteran denied flare-ups. ROM was as follows: left knee flexion to 125 degrees and extension to 125 degrees. Repetitive use testing indicated the same ROM. Functional loss was noted as knee pain with prolonged walking and standing. The Veteran did not have residual signs or symptoms due to his left knee Baker's cyst removal. In addition, the Veteran reported occasional brace usage. Muscle strength was normal with no ankylosis or atrophy. He had no recurrent subluxation, lateral instability, dislocated semilunar cartilage, or evidence of malunion of the tibia and fibula. During November 2020 VA examination, left knee flexion was to 70 degrees and extension to 0 degrees. The examiner found that the Veteran's limitation of motion did not contribute to a functional loss; there was no evidence of pain with weight bearing; and no objective evidence of crepitus. The Veteran was able to perform repetitive use testing, and he experienced additional loss of function and/or range of motion after three repetitions. Pain and weakness caused the functional loss. ROM after three repetitions revealed 60 degrees of flexion and 0 degrees of extension. The examiner found that pain and weakness would cause functional loss with repeated use over a period of time. ROM would be 0 to 50 degrees of flexion and 45 to 0 degrees of extension. Pain and weakness significantly limited functional ability with flare-ups. The examiner estimated that ROM during flare-ups would be from 0 to 50 degrees of flexion and 45 to 0 degrees of extension. Muscle strength testing was 4/5 with flexion and extension. There was no muscle atrophy, no ankylosis, and no recurrent subluxation or lateral instability. All stability testing was normal. The examiner indicated that the Veteran's left knee disability impacts his ability to work in both sedentary and physical labor settings as he is unable to crouch, stoop, sit, or stand for greater than 15 minutes and requires frequent position changes, or carry weight over 5 pounds. The Veteran had difficulty getting dressed. During the most recent January 2021 VA examination, the Veteran did not report left knee flare-ups. He denied functional loss, functional impairment, instability, recurrent subluxation, or history of left knee effusion. Active range of motion revealed flexion to 135 degrees and extension to 0 degrees. Passive range of motion revealed the same findings. There was evidence of pain with active motion; however, the pain did not result in or cause functional loss. There was no evidence of crepitus or objective evidence of localized tenderness, or pain on palpation. Prolonged standing caused increase in pain. There was no atrophy or ankylosis in the left knee. He had no recurrent subluxation or persistent instability. He had an occasional use of a knee brace. Even following repetitive use or during a flare-up, left knee flexion was limited to, at worst, 50 degrees. Thus, the criteria for a rating higher than 10 percent for the left knee under Code 5260 have not been satisfied or more nearly approximated. Further, as extension of the left knee has been to 0 percent, the criteria for a compensable rating under Code 5261 has not been satisfied. The Veteran does not have additional, significant functional loss of the left knee, and range of motion studies/estimates following repetitive motion and during flare-ups show no additional compensable limitation of motion. Thus, a higher rating under the DeLuca criteria is not warranted. See 38 C.F.R. §§ 4.40, 4.45. The probative evidence shows that the Veteran does not have any other pathology or abnormality of the knee that might warrant a separate rating under the diagnostic codes applicable to the knee. Codes 5256 (ankylosis), 5262 (impairment of tibia or fibula), and 5263 (genu recurvatum) are not raised by the record, because they are not shown on the VA examinations during the period on appeal. He has not been diagnosed with ankylosis, a tibia impairment, a fibula impairment or genu recurvatum; and the treatment records do not contain such a diagnosis during the period on appeal. Further, there are no frequent episodes of locking in the joint. Therefore, Codes 5256, 5258 and 5262-5263 do not provide any basis for an increased disability rating. 38 C.F.R. § 4.71a. Similarly, there is no evidence of instability symptoms in the left knee in the VA treatment records, including from VA examinations, to include the most recent January 2021 VA examination. Therefore, separate ratings higher than 10 percent for left knee dislocation or instability are also not warranted at any time during the appeal periodto include the period after the changes to the musculoskeletal diagnostic codes. The Board has considered the Veteran's statements that he experienced instability in his left knee joint. To the extent the Veteran indicates he had instability, the Board finds his statements to be less probative given that he did not report any symptoms of instability to the medical providers that were treating him for his knee disability. In other words, as the Veteran was receiving treatment for his knee disability during the period on appeal, the Board would reasonably expect him to report these symptoms of instability to his treating medical provider especially if his symptoms were of the severity he now asserts. Although the Veteran is competent to report symptoms of instability, he is not competent to determine if his feelings of instability result in actual physical instability that is contemplated by the diagnostic code, and/or assign a specific disability level to his instability according to the appropriate diagnostic codes. Moreover, although certain lay statements could aid the Board in determining the severity of the instability, the Veteran's statement in this case does not provide enough evidence regarding the actual severity of his instability to warrant a higher rating by itself. As the Veteran's statements are not sufficient to determine the severity of his condition, the Board affords more weight to the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations and after consideration of his medical history and lay reports. Because the preponderance of the evidence weighs against the claim, a rating higher than 10 percent for the Veteran's left knee disability must be denied. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. McPhaull, 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.