Citation Nr: 21029703 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 12-28 491 DATE: May 14, 2021 ORDER A rating higher than 20 percent under DC 5258 for post-operative right knee condition is denied. A rating higher than 10 percent under DC 5260 for residuals of right knee injury, osteoarthritis, is denied. For the entire appeal period, a higher rating of 20 percent, but no more, under DC 5257 for right knee instability, is granted. FINDING OF FACT 1. The Veteran is in receipt of the maximum rating available under DC 5258. 2. The Veteran's right knee disability is manifest by flexion limited to no less than 70 degrees. 3. The evidence shows that the, throughout the appeal period, the Veteran's right knee disability has manifested as moderate instability. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent under DC 5258 for post-operative right knee disability are not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5258. 2. The criteria for a rating in excess of 10 percent under DC 5260 for residuals of right knee injury, osteoarthritis, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5260. 3. For the entire appeal period, the criteria for a rating of 20 percent, but no more, under DC 5257 for right knee instability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1971 to October 1977. This matter comes before the Board of Veterans' Appeals (Board) from January 2011 and March 2011 rating decisions. The Veteran testified at a Board hearing in November 2018. In May 2019 and November 2020, the Board remanded the Veteran's claim for additional action by the Agency of Original Jurisdiction (AOJ). These remands included the issue of whether a rating reduction for postoperative right knee condition, from 20 to 0 percent, effective June 1, 2011, was proper. Since the most recent remand, a January 2021 rating decision reinstated the prior rating of 20 percent, effective June 1, 2011. The January 2021 rating decision states that the post-operative right knee disability (previously rated under DC 5257) is restored to 20 percent. However, it did so from June 1, 2011 via DC 5258. See Read v. Shinseki, 651 F.3d 1296, 1300 (Fed. Cir. 2011) (holding that service connection for a disability is not severed simply because the situs of a disability-or the diagnostic code-is corrected to more accurately determine the benefit to which a veteran may be entitled for a service-connected disability). As such, the propriety of the abovementioned rating reduction is no longer an issue for consideration. *** The Veteran seeks a higher rating for his service-connected right knee disability. 11/24/2010, VA 21-0820 Report of General Information. He is currently in receipt of a rating of 20 percent under DC 5258 and a rating of 10 percent under DC 5260 for his right knee disability for the entire appeal period. Additionally, since August 1, 2019, he is in receipt of a rating of 10 percent under DC 5257 for instability. Under Diagnostic Code 5258, a 20 percent rating is warranted for dislocation of semilunar cartilage with frequent episodes of "locking, pain", and effusion into the joint. 38 C.F.R. § 4.71a, Diagnostic Code 5258. As the Veteran is in receipt of the highest schedular rating for dislocation of semilunar cartilage, there is no basis to award a higher schedular evaluation under this DC. Under Diagnostic Code 5260, a noncompensable rating is warranted for flexion limited to 60 degrees. A 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. A 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. 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). As noted above, for the Veteran to be entitled to a rating higher than 10 percent under DC 5260, the evidence is to show that the Veteran's knee disability results in flexion limited to 30 degrees or less. That is not the case here. Rather, six VA examinations conducted over the appeal period consistently show flexion limited to no less than 70 degrees, to include consideration of additional functional loss due to pain or repetitive use, or during flare-ups. In fact, the most recent (August 2019) VA examination included a statement of the VA examiner, specifically addressing the question of whether it is at least as likely as not that during flare-ups the Veteran's range of motion is additionally limited to 30 degrees. The examiner explained that the Veteran's range of motion and pain are constant and, therefore, there was no additional loss of range of motion or functional loss. Based on the above, the Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for limitation of flexion. The Board acknowledges the Veteran's lay reports of symptoms and that there is functional loss due to pain. However, there is no argument or indication that the Veteran's symptoms and functional loss result in limitation of motion more nearly approximating flexion limited to 30 degrees. Rather, the evidence shows that his flexion has been limited to no less than 70 degrees throughout the appeal period. As such, a rating higher than 10 percent under DC 5260 is not warranted. As mentioned, the Veteran is in receipt of a separate rating of 10 percent under DC 5257, for instability. This rating has been in effect since August 1, 2019. The Board finds that the separate rating under DC 5257 for instability is most reflect of the Veteran's right knee disability when it covers the entire appeal period. In support, the record shows that, since 2008, the Veteran has consistently required medically prescribed use of a brace and a cane. Additionally, during his first VA examination for the present claim (conducted in January 2011) the Veteran reported that his knee gives out. Furthermore, a September 2014 VA examination references that the Veteran experiences instability of station. More recently, the August 2019 VA examination notes a history of slight instability. The Board further finds that the Veteran's instability, as evidence by his required medically prescribed use of a brace and a cane, is of moderate severity and more closely approximates the criteria for a rating of 20 percent under DC 5257. There is, however, no argument or indication that the Veteran's instability is severe. In support, the 2011 VA examination did not reflect instability, the 2012 and 2016 VA examination reports indicate normal knee stability tests (anterior, posterior, medial-lateral), and the 2019 VA examination reflects slight right knee instability with mostly normal stability tests, except 1+ for lateral instability. The Board finds these test results to be probative and of weight as these test are performed by medical professionals for the purpose of assessing knee instability. The Board notes that during the pendency of this appeal, the schedule for rating musculoskeletal disabilities was amended, effective February 7, 2012. See 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257). Where, as here, a diagnostic code is amended while a claim is pending, VA is required to consider both versions of the code and apply the version most favorable to the Veteran. The only amendment to a diagnostic code relevant in this matter concerns Diagnostic Code 5257. As the former diagnostic criteria for 5257 did not require objective evidence of instability, the Board finds the prior version of Diagnostic Code 5257 more favorable to the Veteran and as such will apply only the former criteria. In summary, the Board finds that the Veteran is entitled to a higher rating of 20 percent under DC 5257 for right knee instability during the entire appeal period. The Board has considered whether higher or separate ratings are warranted under any other diagnostic Code pertaining to the knee and leg. The Board, however, finds that the symptoms associated with the Veteran's right knee disability are adequately covered and compensated by the diagnostic codes currently assigned. Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. López, 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.