Citation Nr: 21030000 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 18-54 574 DATE: May 17, 2021 ORDER A disability rating in excess of 10 percent for residuals of a left knee injury with limitation of flexion is denied. An initial disability rating in excess of 10 percent for left knee instability is denied. FINDINGS OF FACT 1. The Veteran's left knee disability is manifested by flexion limited to, at worst, 80 degrees and pain and extension limited to, at worst, 80 degrees and pain. 2. The Veteran's left knee instability is no worse than slight. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for left knee limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5260 (2020). 2. The criteria for an initial rating in excess of 10 percent for left knee instability have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code 5257 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from November 1954 to October 1956. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in Cleveland, Ohio. This case was previously before the Board in April 2019 and May 2020, at which times it was remanded for additional development. The Board finds that there has been substantial compliance with its remand instructions. See Stegall v. West, 11 Vet. App. 268 1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) and Dyment v. West, 13 Vet. App. 141, 146-47 (1999) aff'd, Dyment v. Principi, 287 F.3d 1377 (2002) (holding that further remand not necessary under Stegall where the Board's remand instructions were substantially complied with). Therefore, the Board can now proceed with the adjudication of the claims. Finally, the Board notes that at the time of the May 2020 remand, the issue of entitlement to service connection for a right knee condition was part of the claim. Subsequently, in an October 2020 rating decision, that claim was granted. There is no indication from the record that the Veteran has disagreed with the rating or effective date assigned therein. Therefore, the October 2020 decision constitutes a full grant of the benefit sought on appeal as to the right knee and the Board has limited its consideration accordingly. See Grantham v. Brown, 114 F.3d. 1156 (Fed. Cir. 1997). Increased Rating Disability ratings are determined by the application of the facts presented to the VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practically determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA compensation, as well as the whole recorded history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question of which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating is assigned. Additionally, while it is not expected that all cases will show all the findings specified, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran argues that the symptoms of his left knee disabilities are worse than contemplated by the currently assigned ratings. At a March 2016 VA examination, the Veteran reported bilateral knee pain and flare-ups of increased pain. Left knee range of motion (ROM) measurements revealed flexion to 110 degrees and extension to 110 degrees. The Veteran was noted to have pain on flexion and extension that did not result in or cause functional loss, no pain with weight bearing, pain or tenderness on palpation of the left knee, and crepitus. ROM measurements of the right knee were taken for comparison purposes, which revealed right knee flexion to 100 degrees and extension to 0 degrees. The Veteran was able to perform repetitive use testing with at least three repetitions with no additional functional loss or limitation of motion. Muscle strength testing was normal. There was no muscle atrophy or ankylosis. Joint stability testing revealed no lateral instability or recurrent subluxation in the left knee, however, there was 1+ anterior instability present in both knees. There was no history of recurrent effusion. There was no evidence of a meniscus (semilunar cartilage) condition, The Veteran was found to constantly use a brace for assistance with ambulation. At an October 2020 VA examination, the Veteran reported difficulty with any prolonged sitting, standing, walking, difficulty with repetitive bending and twisting, difficulty lifting or carrying heavy objects, difficulty with daily activities such as putting on socks, shoes, dressing, cleaning, and being unable to perform work duties requiring strenuous physical activity. The Veteran did not report flare-ups. Left knee ROM measurements revealed flexion to 100 degrees and extension to 100 degrees. The Veteran was noted to have pain on flexion that resulted in functional loss, pain with weight bearing, no pain or tenderness on palpation of the left knee, and crepitus. ROM measurements of the right knee were taken for comparison purposes, which revealed right knee flexion to 80 degrees and extension to 80 degrees. The Veteran was able to perform repetitive use testing with at least three repetitions with no additional functional loss or limitation of motion. Less movement than normal due to ankylosis, adhesions, etc., disturbance of locomotion, and interference with sitting and standing were noted as additional contributing factors of left knee disability. Muscle strength testing was normal. There was no muscle atrophy or ankylosis. Joint stability testing revealed no instability or recurrent subluxation in the left knee. There was no history of recurrent effusion. There was no evidence of a meniscus (semilunar cartilage) condition, The Veteran did not use any device for assistance with ambulation, however the examiner noted that the Veteran had braces for both knees. A review of the record shows that the Veteran receives treatment for various disabilities at the VA Medical Center and from private providers, to include for his knee disabilities. However, a review of the treatment notes of record does not show the Veteran to have symptoms worse than those reported in the various VA examination reports of record, to include additional limitation of motion, joint instability, or additional limitation following repeated use over a period of time or during a flare-up. Based on the foregoing, the Board finds that ratings in excess of 10 percent are not warranted for the service-connected left knee disabilities. As an initial matter, the Board notes that with respect to the 10 percent rating criteria under Diagnostic Code 5257 pertinent to rating recurrent subluxation or lateral instability, the Board observes that, effective February 7, 2021, such was amended. See 85 Fed. Reg. 76464 (November 30, 2020). 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 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 pursuant to the former and revised regulations during the course of this appeal. See VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). The Board finds that the Veteran's left knee instability symptoms does not warrant a higher rating pursuant to Diagnostic Code 5257. The Veteran's instability has never been more than 1+ for the left knee. There was no evidence of recurrent subluxation of the left knee at any examination. Consequently, a higher rating is not warranted for instability of the left knee. Diagnostic Code 5257. 38 C.F.R. § 4.71a (2020). From February 7, 2021, the Board finds that the revised version of Diagnostic Code 5257 would not allow for a higher rating for the left knee. As noted, joint stability testing of the left knee was normal at the VA examinations of record and there is no evidence of recurrent subluxation. For the left knee, the Veteran has no current residual symptoms related to a meniscal condition to allow for a higher rating for instability. Moreover, the Veteran did not undergo any procedures of the patellofemoral complex to allow for an increased rating for patellar instability under the revised regulations. See 85 Fed. Reg. 76464 (November 30, 2020). In sum, the Board finds that ratings in excess of 10 percent are not warranted for instability of the left knee. The Veteran has also been awarded a 10 percent rating for his left knee disability for limitation of flexion pursuant to Diagnostic Codes 5003-5260. 38 C.F.R. § 4.71a (2020). However, there is no evidence of record showing the Veteran to have flexion limited to 30 degrees or less at any time. In fact, flexion is limited to, at worst, 80 degrees for his left knee. Diagnostic Code 5260. 38 C.F.R. § 4.71a (2020). With regard to extension, there is no evidence of record showing the Veteran to have extension limited to 15 degrees or more at any time to allow for separate compensable ratings for limitation of extension of either knee. Extension has been limited to, at worst 80 degrees for the left knee at all examinations of record. Diagnostic Code 5261. 38 C.F.R. § 4.71a (2020). In terms of functional loss, although the Veteran has reported left knee pain, such pain is not productive of symptoms that meet or are analogous to the criteria for higher ratings for limitation of motion. Therefore, a rating in excess of 10 percent for the left knee disability is not warranted. 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261 (2020). Furthermore, the additional limitation that the Veteran experiences due to pain, weakness, fatigability, lack of endurance, or incoordination on repetition was accounted for by the VA examiners when determining the Veteran's range of motion and was further considered by the Board. 38 C.F.R. § 4.40, 4.45 (2020). Thus, the preponderance of the evidence is against a finding that the Veteran had more limitation of motion in his left knee than that found at his VA examinations. With consideration of all pertinent disability factors, there remains no appropriate basis for assigning schedular ratings in excess of 10 percent for functional impairment of the left knee disability. Consideration has also been given to assigning separate ratings for the left knee based on cartilage dislocation or removal. Review of the record reveals that the Veteran does not have any condition of the left meniscus. There is no indication from the record that the Veteran has frequent episodes of locking, pain, and effusion into his left knee. Further, there is no indication that the Veteran has symptoms of a meniscus injury. The Board notes that the Veteran is already in receipt of a 10 percent rating for his left knee based on limited flexion with painful motion, so using pain to support an additional rating for the left knee under another diagnostic code would be in violation of 38 C.F.R. § 4.14 (2020). As such, separate ratings are not warranted for a disability involving the meniscus of the left knee at this time. 38 C.F.R. § 4.71a, Diagnostic Codes 5258, 5259 (2020). Consideration has also been given to assigning higher ratings under other diagnostic codes that pertain to the knees. However, there is no evidence of record showing the Veteran to have ankylosis of the left knee; tibia or fibula impairment in the left leg; or genu recurvatum of the left knee. As such, higher ratings are not warranted for the left knee under another diagnostic code and the Veteran is appropriately rated based on painful motion. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5262, 5263 (2020). The Board has considered the Veteran's assertions that his knee disabilities are worse than currently evaluated. The Veteran is competent to report symptoms because this requires only personal observation. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). However, the Veteran has not been shown to have the requisite knowledge or training to be deemed competent to identify a specific level of disability of his knee according to the rating criteria. Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). Such competent evidence concerning the nature and extent of his disability has been provided by clinical records associated with the claims file and these medical findings directly address the criteria under which his knee disabilities are evaluated; specifically, range of motion testing. The Board finds the VA examiners' findings to be competent, objective, and probative evidence of record, and are therefore accorded greater weight than the Veteran's subjective reports of symptomatology. Accordingly, the Board finds that a preponderance of the evidence is against the claims and entitlement to an initial rating in excess of 10 percent for left knee instability and in excess of 10 percent for residuals of a left knee injury with limitation of flexion are not warranted. 38 U.S.C. § 5107 (b) (2018); Gilbert, supra. The claims are denied. JEREMY J. OLSEN Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board I. Umez-Eronini, 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.