Citation Nr: 21027442 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 15-09 017A DATE: May 5, 2021 ORDER Entitlement to a rating in excess of 10 percent for right knee chondromalacia patella with meniscal tear (a right knee disability) prior to September 19, 2020, and in excess of 20 percent thereafter is denied. FINDINGS OF FACT 1. Prior to September 19, 2020, the Veteran's right knee disability was characterized by painful motion of the knee and degenerative arthritis; limitation of flexion to 30 degrees, limitation of extension to 15 degrees, a combination of limitation of flexion and limitation of extension, favorable ankylosis of the knee at full extension or in slight flexion between 0 and 10 degrees, recurrent subluxation or instability that is "moderate" in nature, or frequent episodes of dislocation with locking, pain and effusion have not been shown. 2. As of September 19, 2020, the Veteran's right knee disability has been characterized by painful motion of the knee, degenerative arthritis, a meniscal tear with frequent episodes of "locking" and pain, and limitation of extension of 10 to 14 degrees; ankylosis, severe recurrent subluxation or lateral instability, unrepaired or failed repair of complete ligament tear causing persistent instability with a medical provider prescribing both an assistive device and brace for ambulation, surgical repair of the patella, limitation of flexion to 15 degrees, or limitation of extension to 20 degrees have not been shown. CONCLUSION OF LAW 1. The criteria for entitlement to a rating in excess of 10 percent for a right knee disability prior to September 19, 2020, and in excess of 20 percent thereafter have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes (DC) 5003-5258, 5260. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from February 1974 to August 1975. The Board of Veterans' Appeals (Board) remanded the matter in July 2020 to obtain a medical opinion to address the current severity of the Veteran's symptoms and address his lay statements. The Board is now satisfied that there was substantial compliance with the remand. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-147 (1999). Increased Ratings Disability evaluations are determined by applying a schedule of ratings which is based on average impairment of earning capacity based on the specific diagnostic codes identifying the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7. For musculoskeletal disabilities, a higher rating may be granted based on greater limitation of motion due to pain on use, including during flare-ups. 38 C.F.R. §§ 4. 10, 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202 (1995). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability, and therefore, actually painful, unstable, or malaligned joints, due to healed injury, are as entitled to at least the minimum compensable rating for the joint. See 38 C.F.R. § 4.59. The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare-ups. Regarding knee claims, a claimant who has arthritis and instability of the knee may be rated separately under DCs 5003 and 5257 or 5258/5259. See VAOPGCPREC 23-97. For example, when a knee disorder was already rated under DC 5257 (addressing lateral instability), a separate rating may be warranted if the Veteran's knee also shows limitation of motion which at least meets the criteria for a zero-percent rating under DC 5260 (flexion limited to 60 degrees or less) or 5261 (extension limited to 5 degrees or more). Moreover, a separate rating could also be warranted under 38 C.F.R. § 4.59, based on x-ray findings of arthritis with painful motion. See VAOPGCPREC 9-98; see also Degmetich v. Brown, 104 F.3d 1328, 1331 (Fed. Cir. 1997). In addition, the General Counsel has also held that separate ratings may be granted based on limitation of flexion (DC 5260) and limitation of extension (DC 5261) of the same knee joint. VAOPGCPREC 09-04. The Veteran's right knee chondromalacia patella is rated as 10 percent prior to September 19, 2020 under 38 C.F.R. § 4.59, DC 5260, based on arthritis and limitation of flexion. As of September 19, 2020, and based on the findings of a VA examination afforded pursuant to the Board's previous remand, the Veteran was awarded an increased, 20 percent rating under 38 C.F.R. §§ 3.400, 4.1, 4.71a, DC 5258 for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint, as well as x-ray evidence of degenerative arthritis and limitation of extension of 10 to 14 degrees. The Veteran contends that he is entitled to an increased disability rating for his service-connected right knee disability throughout the entire period because he has been limited to 15 to 19 degrees of extension and 16 to 30 degrees of flexion with a lot of pain. It should be noted that, during the course of this appeal, the schedular rating for evaluating other impairments of the knee has been amended. Specifically, the criteria pertaining to recurrent subluxation or lateral instability of the knee under 38 C.F.R. § 4.71a, was amended effective February 7, 2021. See 85 Fed. Reg. 76, 453 (November 30, 2020). Where a law or regulation changes during the pendency of a claim for increased rating, the Board should first determine whether application of the revised version would produce retroactive results. In particular, a new rule may not extinguish any rights or benefits the claimant had prior to enhancement of the new rule. VAOPGCPREC 07-03 (November 19, 2003). However, 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 the change. 38 U.S.C. § 5110; Kamas v. Derwinski, 1 Vet. App. 308, 313 (1991), overruled in part, Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). As the Veteran's claim was received prior to the effective date of the regulation changes, the Board must consider the Veteran's knee disability under both the old and the revised rating criteria and must apply the old rating criteria if the result is more favorable to the Veteran. Id. Under the pre-amended criteria, in order to warrant a 20 percent rating for a right knee disability, the evidence must show: Moderate recurrent subluxation or lateral instability (20 percent under DC 5257); Dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint (20 percent under DC 5258); Limitation of flexion of the leg to 30 degrees (20 percent under DC 5260); or Limitation of extension of the leg to 15 degrees (20 percent under DC 5261). 38 C.F.R. § 4.71a. Under the amended criteria, in order to warrant a 20 percent rating for a right knee disability, the evidence must show: Recurrent subluxation or instability and one of the following: o Sprain, complete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device for ambulation; or o Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device or bracing for ambulation (20 percent under DC 5257); Patellar instability: 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 (20 percent under DC 5257); Dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint (20 percent under DC 5258); Limitation of flexion of the leg to 30 degrees (20 percent under DC 5260); or Limitation of extension of the leg to 15 degrees (20 percent under DC 5261). 38 C.F.R. § 4.71a. In order to warrant a rating in excess of 20 percent for a right knee disability under the pre-amended criteria, the evidence must show: Knee, ankylosis of favorable angle in full extension, or in slight flexion between 0 degrees and 10 degrees (30 percent under DC 5256); Severe recurrent subluxation or lateral instability (30 percent under DC 5257); Limitation of flexion of the leg to 15 degrees (30 percent under DC 5260); or Limitation of extension of the leg to 20 degrees (30 percent under DC 5261). 38 C.F.R. § 4.71a. In order to warrant a rating in excess of 20 percent for a right knee disability under the amended criteria, the evidence must show: Knee, ankylosis of favorable angle in full extension, or in slight flexion between 0 degrees and 10 degrees (30 percent under DC 5256); Recurrent subluxation or instability: unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device and bracing for ambulation (30 percent under DC 5257); Patellar instability: 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 walker (30 percent under DC 5257); Limitation of flexion of the leg to 15 degrees (30 percent under DC 5260); or Limitation of extension of the leg to 20 degrees (30 percent under DC 5261). 38 C.F.R. § 4.71a. Prior to September 19, 2020 Based on the evidence of record, the Board finds that a rating in excess of 10 percent for the Veteran's right knee disability prior to September 19, 2020 is not warranted under either the pre-amended or amended criteria. First, prior to September 19, 2020, the only medical treatment records of evidence are from December 2012. The Veteran reported that he experienced daily pain in his bilateral knees and difficulties with mobility, and he noted that his right knee was worse than his left. He also reported that the left one was quickly worsening because he had to put so much of his weight on it to compensate for the right knee, and he believed it was wearing it down prematurely. Upon physical examination, the physician described his bones and joints as grossly normal, except his knees were degenerative, crepitant, and very stiff. The examiner also reported that the ligamentous exam of both knees was adequate, and a neurological examination was normal. The physician diagnosed the Veteran with advanced degenerative joint disease of the bilateral knees, with the right knee being "end stage," and recommended that the Veteran see an orthopedic surgeon for his knees. However, the physician did not denote any range of motion limitations during the examination. Next, the Veteran underwent a VA examination in July 2013 where he was diagnosed with degenerative arthritis and chondromalacia patella in the right knee based on x-ray imaging and physical examination. He reported that his baseline pain level was around a three on a scale of ten, and it would escalate daily, especially at the end of a workday. The Veteran noted that he often could not sleep at night, but his knee did feel better in the mornings. Furthermore, he reported that he experienced flare-ups that caused popping and a feeling that his knee would give way. He also explained that flare-ups could last up to eight hours and he would have to sit or lie down and elevate his leg. However, he also reported that he had not fallen because of his knee disability and he only rarely used a cane when the pain was exceptionally severe. Upon physical examination, the Veteran had a normal gait and did not require an assistive device for ambulation. There was also no swelling or effusion, reflexes were normal, and sensory examination was intact to light touch, although there was some crepitus noted without pain with passive range of motion of the right knee. The Veteran had right knee flexion of 105 degrees with pain and had no painful motion or limitation of motion on extension. While the examiner noted that the Veteran experienced less movement than normal after repetitive use, he specifically noted that there was no additional loss of range of motion after repetitive use testing. The examiner noted that there was no history of recurrent patellar subluxation or dislocation, and joint stability testing was normal with no evidence of instability. Although the examiner did not estimate whether the Veteran experienced additional range of motion limitations during flare-ups or after repeated use over time, the Veteran reported that he was employed full-time as a boiler operator where he was required to lift 50- to 100-pound bags of salt and chemicals and did not report being unable to perform his work duties based on range of motion limitations. Nevertheless, the Veteran reported in April 2014 that his flexion was limited to 16 to 30 degrees and extension was limited to 15 to 19 degrees, and the Board ordered a new VA examination to estimate whether there were additional range of motion limitations during flare-ups or after repeated use over time. After a September 2020 VA examination revealed no limitation of extension greater than zero degrees, the Veteran underwent an additional VA examination in November 2020, and the VA examiner opined that the Veteran's knee stays in 10 degrees extension, but can be straightened with help, and he experiences pain with this manipulation. Neither the September 2020 nor November 2020 VA examinations indicated that the Veteran's flexion is limited to less than 75 degrees, even during flare-ups or after repeated use over time. The Board finds these examinations to be probative of the issues on appeal as the examiners' opinions are predicated on a full understanding of the Veteran's medical history and contentions and provides enough evidentiary basis for the claim to be adjudicated. Turning to the question of whether the Veteran's right knee may result in a rating greater than 10 percent prior to September 19, 2020, the Board finds that it does not. First, the Board finds that a 30 percent rating for DC 5256 and a 20 percent rating under DC 5258 are not for application because there is no evidence in the record to indicate that the Veteran had ankylosis or ankylosis-like symptoms of the right knee or that he had dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. Furthermore, the Veteran's flexion during the period at issue was limited to 75 degrees, as demonstrated during the November 2020 VA examination. As such, the Veteran's right knee does not meet the criteria for a rating under DC 5260, which requires limitation of flexion to 60 degrees to warrant a noncompensable rating, and limitation of flexion to 30 degrees to warrant a rating in excess of 10 percent. Extension under DC 5261 was limited to 10 degrees in the right knee, as documented in the November 2020 VA examination. As such, this supports a 10 percent rating, but no greater, under DC 5261 for the period prior to September 19, 2020. Likewise, there is no evidence of recurrent subluxation or lateral instability in the record, and, as the period at issue is prior to February 7, 2021, only the pre-amended version of DC 5257 is for application. Notably, there are specific medical tests that are designed to reveal instability of the joints, and these testes were performed during the relevant VA examinations, and they revealed no instability. Given the tests performed are generally recognized in the medical community as diagnostic for instability, the results are afforded high probative value. In addition, the testing results are given more probative weight than the Veteran's lay statements. While the Veteran may experience a feeling that his knee may give way or is unstable, if subluxation or instability were present, as required for a separate compensable rating, the Board would expect that this would have been identified at least once during the multiple tests that were performed. As such, in the absence of evidence of recurrent subluxation or lateral instability, a rating under DC 5257 is not warranted. Finally, the Board notes that at no point has the Veteran been found to have a knee disability that results in nonunion or malunion of the tibia and fibula. Therefore, a higher rating under DC 5262 under either the pre-amended or amended criteria is not supported. Based on the foregoing, the Veteran's currently-assigned 10 percent rating is appropriate prior to September 19, 2020. As of September 19, 2020 After reviewing the evidence of record, the Board determines that a rating in excess of 20 percent as of September 19, 2020 is not warranted under either the pre-amended or amended criteria. First, the Veteran underwent a VA examination in September 2020, which is when he was first diagnosed with a meniscal tear, and he was also diagnosed with patellofemoral pain syndrome. The Veteran reported that the pain has gradually worsened since service, and he typically experiences a constant dull ache, sharp pain, and grinding with movement. The Veteran also noted that he experiences flare-ups that cause severe stiffness with deep radiating sharp pain. Additionally, he reported that his pain inhibits movement, walking, sitting, and standing, he cannot stand, walk, climb stairs, or sit for prolonged periods, and he is unable to perform repetitive lifting, pushing, pulling, bending, kneeling, or squatting. Lastly, the Veteran reported that his meniscal condition has led to a meniscal tear, he experiences frequent episodes of joint "locking" and joint pain, and he constantly uses a cane for support. Upon examination, the examiner noted that the Veteran's right knee flexion is limited to 100 degrees and extension is 0 degrees, but after repetitive use over time, he experiences pain that limits functional use, and flexion is limited 95 degrees. There was also crepitus and pain with weight-bearing observed. Furthermore, during flare-ups, the examiner estimated the Veteran's flexion is limited to 90 degrees. Despite noting less movement than normal, disturbance of locomotion, and interference with sitting and standing due to pain, the examiner noted that Veteran's right knee has four out of five strength, there is no evidence of ankylosis, and there is no evidence of recurrent subluxation or instability of any kind. Additionally, the Veteran has not undergone any surgeries, and there is no evidence that the Veteran was prescribed the cane or any other brace or assistive device. The Veteran underwent an additional VA examination in November 2020, which was mostly consistent with the September 2020 examination. However, in addition to the symptoms previously reported, he also stated that he cannot kneel or bend without pain. Lastly, he reported that he regularly uses a brace and cane for his right knee. Upon examination, it was estimated that his flexion was further limited to 75 degrees during flare-ups, and extension was limited to 5 degrees. An addendum opinion was provided in November 2020 based on the Veteran's statements that his flexion is limited to 16 to 30 degrees and extension is limited to 15 to 19 degrees. Upon examination, the Veteran's right knee stays in 10 degrees, but can be straightened with help and he experiences pain with limitation. Otherwise, the examiner noted that range of motion testing was normal. As such, the examination indicates that the Veteran's extension is limited to 10 degrees with no additional limitations in flexion. The Board finds these examinations to be probative of the issues on appeal as the examiners' opinions are predicated on a full understanding of the Veteran's medical history and contentions and provides enough evidentiary basis for the claim to be adjudicated. Turning to the question of whether the Veteran's right knee may result in a rating greater than 20 percent as of September 19, 2020, the Board finds that it does not. First, although the Veteran was previously rated for his knee under DC 5261 for limitation of extension, the September 2020 VA examination reveals a diagnosis of chondromalacia patella with a meniscal tear with frequent episodes of locking and pain. The Board notes that assigning other ratings based on the same symptomatology of pain and functional impairment that is already accounted for under DC 5258 would be tantamount to pyramiding. 38 C.F.R. § 4.14. Here, the Veteran was awarded an increased, rather than a separate, 20 percent rating under Code 5258 as the cartilage is not shown to be dislocated and because the evidence does not demonstrate frequent episodes of effusion into the joint. As a result, the Board determines that his current disability rating of 20 percent under DC 5258 is the most appropriate disability rating for his disorder as of September 19, 2020 as it contemplates his torn meniscus, pain, flare-ups, range of motion limitations, and degenerative arthritis. Furthermore, even taking into consideration the Veteran's range of motion limitations, there is no evidence based on either the September or November 2020 VA examinations that the Veteran's range of motion limitations would result in a disability rating greater than 20 percent under DCs 5260 or 5261. Specifically, during the November 2020 VA examinations, his right knee flexion during flare-ups was limited to between 5 and 75 degrees, and extension was limited to 10 degrees. As such, rating the Veteran under DCs 5260 or 5261 would not be appropriate for his symptoms or result in a higher disability rating. Next, there is no evidence of record to support a disability rating greater than 20 percent under any of the other pre-amended or amended diagnostic codes. Specifically, there is no evidence of ankylosis, recurrent subluxation, or instability in the record to support a rating greater than 20 percent. Instability testing during both the September 2020 and November 2020 VA examinations was normal in all directions, and the examiners noted that the Veteran does not have ankylosis or recurrent subluxation. While the Board acknowledges the Veteran has taken to using an assistive device, the examiners were well aware of this but still found that, overall, there was no recurrent subluxation or instability. This medical finding was a fully informed one made based on diagnostic testing results and consideration of the Veteran's statements. The finding of the VA examiner of no history of instability or subluxation is the most probative evidence on this point. As such, a rating under the pre-amended DC 5256 or DC 5257 is not for application. Furthermore, although the Veteran is diagnosed with chondromalacia patella with meniscal tear, there is no evidence in the record to support a rating in excess of 20 percent under the amended DC 5257 in effect since February 7, 2021 because the evidence is against a finding of persistent instability. Notably, diagnostic testing for stability upon VA examination did not reveal any instability, which is strong evidence against a finding of persistent instability. Put another way, when multiple medical tests for instability fail to detect instability, constant instability is not present. A compensable rating is not warranted for patellar instability either. The evidence does not show surgical repair involving the patellofemoral complex (quadriceps tendon, the patella, and the patellar tendon), and, as discussed above, the evidence is against a finding of recurrent instability. Moreover, the record does not contain a diagnosed condition involving the patellofemoral complex; that is, the quadriceps tendon, the patella, or the patellar tendon. The Veteran, as a lay person, is not competent to provide the required diagnosis. Based on the foregoing, there is no evidence in the record to support a disability rating in excess of 20 percent for the Veteran's right knee disability as of September 19, 2020, and a 20 percent rating under DC 5258 is most appropriate. The Board considered the Veteran's statements in determining the appropriate disability ratings. Specifically, the Board considered the Veteran's reported range of motion limitations, severe pain, and functional limitations. However, the Board finds these statements of limited probative value. While the Veteran, as a lay person, is competent to report observable symptomatology, once basic competency is met, the Board must consider credibility of testimony. In this case, the Veteran's reports are not generally consistent with VA examinations and medical records, which demonstrate extension to 10 degrees and flexion to 75 degrees, as well as no evidence of subluxation, instability, or ankylosis. As such, not all of the Veteran's assertions are supported by the evidence of record. See Caluza v. Brown, 7 Vet. App. 498 (1995). Additionally, although the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of his right knee disorder according to the appropriate DCs. Rucker, 10 Vet. App. at 74; Layno, 6 Vet. App. at 469; see also Cartwright, 2 Vet. App. at 25. On the other hand, such competent evidence concerning the nature and extent of the Veteran's right knee disability have been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with their evaluations. The medical findings of the physicians who performed the VA examinations directly address the criteria under which this disability is evaluated. Because the examiners were able to review the medical file and examine the Veteran, the Board finds the examiners' assessments of greater probative weight. As such, a rating in excess of 10 percent for chondromalacia patella with meniscal tear prior to September 19, 2020, and a rating in excess of 20 percent thereafter is denied. There is no doubt to be otherwise resolved. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 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. Robert N. Scarduzio Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Veltri, 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.