Citation Nr: 21030033 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 17-07 210 DATE: May 17, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for service-connected degenerative arthritis of the right knee is denied. A separate 10 percent evaluation, but no higher, for instability of the right knee, for the period beginning on May 5, 2020 is granted. FINDINGS OF FACT 1. Since around April 2016, the Veteran's right knee had degenerative arthritis with objective pain and swelling with limitation of motion of flexion to 100 degrees, but at no time prior to the Veteran's death does the evidence show his right knee flexion was limited to 30 degrees or less. 2. Beginning on May 5, 2020, the Veteran's right knee was shown to have no more than mild instability, manifested by reports of increased giving way, but not objective evidence of ligamental instability. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 10 percent for painful limitation of motion of a right knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.45, 4.59, 4.71a, Diagnostic Codes (DC) 5260. 2. The criteria for a 10 percent evaluation, but no higher, for instability of the right knee for the period beginning May 5, 2020, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.45, 4.59, 4.71a, DC 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active service with the United States Army from November 1974 to November 1977. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a virtual hearing before the undersigned Veterans Law Judge (VLJ) in May 2020. A transcript of the hearing is associated with the claims file. Then in December 2020, the Veteran unfortunately passed away. See Death Certificate received February 2021. The Veteran's spouse (hereinafter the Appellant) applied for substitution. See VA 21-0847 Request for Substitution of Claimant Upon Death of Claimant received February 2021. Substitution has been granted. See Correspondence dated February 2021. The Appellant has not raised any specific duty to notify or duty to assist issues regarding the deceased Veteran's increased rating claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Therefore, the Board will proceed to adjudicate the claim. Increased Rating Disability ratings are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes (DCs). 38 C.F.R. § 4.27. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Additionally, the evaluation of the same disability under several DCs, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In order 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); see also 38 U.S.C. § 7104(a); 38 C.F.R. §§ 4.1, 4.2. As such, the Board has considered all of the evidence of record. However, the most probative evidence of the degree of impairment consists of records generated in proximity to and since the claim on appeal. In rating cases, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119, 126 (1999). VA's determination of the present level of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending and, consequently, staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). In assigning a higher disability rating, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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. 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 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. The diagnostic codes relevant to rating knee disabilities are summarized below. Under DC 5260 (same before and after the February 7, 2021 regulatory change), a zero percent evaluation is warranted where flexion of the leg is limited to 60 degrees, a 10 percent evaluation is warranted where flexion is limited to 45 degrees, a 20 percent evaluation is warranted where flexion is limited to 30 degrees, a 30 percent evaluation is warranted where flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. Under DC 5261 (same before and after the February 7, 2021 regulatory change) a zero percent evaluation is warranted where extension of the leg is limited to five degrees, a 10 percent evaluation is warranted where extension is limited to 10 degrees, a 20 percent evaluation is warranted where extension is limited to 15 degrees, a 30 percent evaluation is warranted where extension is limited to 20 degrees, a 40 percent evaluation is warranted where extension is limited to 30 degrees, a 50 percent evaluation is warranted where extension is limited to 45 degrees. 38 C.F.R. § 4.71a, DC 5261. Under DC 5257 (prior to the regulatory change on February 7, 2021), a 10 percent rating is assigned when there is slight recurrent subluxation or lateral instability; a 20 percent rating is assigned when there is moderate recurrent subluxation, or lateral instability; and a 30 percent rating is assigned when there is severe recurrent subluxation, or lateral instability. Under DC 5257 (as of February 7, 2021, under the amended regulatory criteria) instability of the knee is broken into two categories, (1) recurrent subluxation or instability, and (2) patellar instability. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257). For (1), recurrent subluxation or instability due to sprains or ligament tears causing persistent instability, a 10 percent rating is warranted when there is no 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 when there is a medical provider who prescribes either a brace or an assistive device for ambulation and there is persistent instability from ligament tears or sprains. A 30 percent rating is warranted when there is a prescription from a medical provider for both an assistive device and bracing for ambulation. Id. For (2), patellar instability is defined as a diagnosed condition involving the patellofemoral complex with recurrent instability. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257). The patellofemoral complex for Code 5257 is defined as consisting of the quadriceps tendon, the patella, and the patellar tendon. A note clarifies that a surgical procedure that does not involve repair to at least one of the patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for this Code. Id. For patellar instability, a 10 percent rating is warranted when there is a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without a surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. A 20 percent rating is warranted when there is 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 when there is 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. Id. Under DC 5258 (same before and after the February 7, 2021 regulatory change), a 20 percent rating is warranted for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the knee joint. 38 C.F.R. § 4.71a, DC 5258. Under DC 5259 (same before and after the February 7, 2021 regulatory change), a 10 percent rating is warranted for symptomatic residuals of removal of semilunar cartilage. 38 C.F.R. § 4.71a, DC 5259. Normal range of motion in the knee is 140 degrees of flexion and zero degrees of extension. 38 C.F.R. § 4.71, Plate II. Multiple diagnostic codes are potentially applicable to evaluation of the knees. Simultaneous compensation under several Codes is permissible so long as differing symptomatology is being compensated by each Code. For example, limitations of flexion (Code 5260) and extension (Code 5261) may both be rated, but a rating for arthritis (Code 5003) cannot be combined with either, as it refers to general limitations of motion and would include both flexion and extension. Similarly, instability (Code 5257) and meniscal disabilities (Codes 5258 and 5259) can be rated with limits of motion, and with each other, so long as differing symptoms and manifestations are being compensated. VAOGCPREC 9-2004; VAOPGCPREC 23-97; VAOPGCPREC 9-98. All of these potentially applicable Codes have been considered. 1. Entitlement to an initial rating in excess of 10 percent for service-connected degenerative arthritis of the right knee is denied. In considering the evidence of records and the law and regulation as set forth above, the Board concludes that prior to the Veteran's passing away, he was not entitled to a rating in excess of 10 percent for his limitation of flexion of the right knee. In April 2016, the Veteran filed a claim for service-connection for a right knee disability. After the award of service connection, the Veteran contended that he was entitled to a higher rating for his service-connected right knee disability. See Form 9 received February 2017. A few months after the Veteran filed a claim for a right knee disability, in July 2016, the Veteran had a VA examination. See C&P Exam received July 2016. The Veteran reported that he had stiffness and locking in his knee. He reported frequent flares of worsening pain. The Veteran reported that he could not walk long distances, run, or exercise. The examiner reported that the Veteran's right knee initial range of active motion was 0 degrees to 110 degrees. On repetitive motion, the Veteran's right knee flexion was 0 degrees to 100 degrees. Id. The Veteran had crepitus, tenderness, and swelling. The examiner did not report further range of motion loss on repetitive use over time or with flare ups. Id. The July 2016 VA examination also reported that the Veteran had less movement than normal, pain on movement, swelling, and interference with standing. See C&P Exam received July 2016. However, the Veteran also had full strength and no muscle atrophy. He had no ankylosis, no subluxation, normal joint stability testing, and no meniscal condition. Id. The Veteran did not use any assistive devices like a cane. The examiner stated that the Veteran's right knee disability would have a functional impact on his ability to perform prolonged walking or running. Id. In April 2017, VA treatment records stated that the Veteran was ambulatory without difficulty except that he used a cane for arthritis of the right knee. See CAPRI received March 2021. Then in July 2018, an examination at the VA stated that the Veteran had weakness in the lower right extremity at the right knee. Id. Then in December 2018, on examination, the Veteran had full range of motion in the knee with pain. Id. A nursing mobility assessment from January 2019, stated that the Veteran could extend and stretch his leg forward, point his toes and straighten his knee. Id. His records also generally documented right knee pain. For example, in January 2015, the Veteran reported that ibuprofen and Tylenol did not help with his knee pain. See CAPRI received March 2021. In May 2020, the Veteran testified at a hearing, stating that his right knee disability was worse since his last VA examination. He reported pain, limitation of motion, locking up, and instability. He specifically reported that he had trouble with locking in his knee since he first filed. The Veteran reported that he had frequent flares in his knee. He testified that he could not extend his knee all the way out and he could not bend it all the way back, citing that he was limited to 45 degrees at times. See Hearing Transcript received May 2020. After the hearing, in December 2020, the Veteran passed away. See Death Certificate received February 2021. Considering all the evidence, the Board finds that at no time prior to the Veteran's passing away, was a rating in excess of 10 percent warranted for right knee flexion under DC 5260. A rating of zero percent is warranted when flexion of the knee is limited to 60 degrees, and a rating of 10 percent is warranted when flexion of the knee is limited to 45 degrees. The VA examination of the Veteran in July 2016 found that the Veteran had 100 degrees of flexion in the right knee with repeated use. See C&P Exam received July 2016. Flexion in the knee at 100 degrees would generally not warrant a rating of 10 percent. However, a rating of 10 percent was assigned based on painful motion of the right knee. See Rating Decision-Narrative received August 2016. A rating of 20 percent for the Veteran's right knee would require flexion of 16 degrees to 30 degrees. However, the medical treatment records do not show the Veteran's range of motion in his knee limited to 30 degrees or less. Moreover, even if you consider the testimony of the Veteran, he reported motion in his right knee limited to 45 degrees. See Hearing Transcript. As such, at no time prior to the Veteran's passing away was a rating in excess of 10 percent for flexion of the right knee warranted based on the evidence as a whole, including lay evidence. Below the instability of the knee has been separately addressed. As to the other Diagnostic Codes available and applicable to the knee, the evidence does not show ankylosis of the knee. The evidence does not show dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion. While the Veteran reported locking and pain in the joint in a July 2016 VA examination, these symptoms are accounted for by the 10 percent rating for limitation of flexion of the knee. Moreover, clinical examination has not shown evidence of these symptoms. The additionally granted rating for instability of the knee discussed below also accounts for feelings of giving way of the knee or more generally, a feeling of instability of the knee with weight-bearing. Therefore, a separate rating under DC 5258 or 5259 is not appropriate, as these reported subjective symptoms are accounted for. There is no evidence of tibia impairment, fibula impairment, genu recurvatum or shin splints. In the present case, the Veteran's pain has been considered in the application of the current 10 percent disability rating under Diagnostic Code 5260. As such, any assignment of a separate disability rating based purely on painful motion would result in "pyramiding." Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not "duplicative of or overlapping with the symptomatology" of the other condition. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In conclusion, looking at the record as a whole, the Veteran's service-connected right knee disability was properly evaluated under DC 5260, at 10 percent from April 11, 2016 to the date of his death. As a preponderance of the probative, credible evidence of record weighs against a finding of a rating in excess of 10 percent, at any time during the pendency of the appeal, for the Veteran's right knee disability rated under DC 5260, the benefit of the doubt doctrine does not apply, and the appeal for a rating in excess of 10 percent must be denied. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to an additional rating for instability of the right knee is granted. The Board finds that a separate rating of 10 percent, but no higher, for instability of the right knee is supported for the period beginning on May 5, 2020 and ending at the date of the Veteran's death. On May 5, 2020, the Veteran reported that his right knee could not bear all his weight. He reported that his right knee was unstable and would give out if he did not walk very carefully. He reported putting more weight on his left leg because of instability in the right knee. See Hearing Transcript received May 2020. While, the Veteran reported increased right knee giving away, complaints of instability in the knee were not reported in the July 2016 VA examination. The Veteran's treatment records also do not provide any detailed examinations of the Veteran's knee stability prior to his death. Therefore, the Board has carefully considered the Veteran's testimony during the May 2020 hearing. The Board notes that medical evidence is not categorically more probative than lay evidence under Diagnostic Code 5257. See English v. Wilkie, 30 Vet. App. 347, 352-54 (2018). Thus, it is reasonable to grant the Veteran 10 percent for instability of the right knee, considering the overall severity of his symptoms. However, the Board finds that a higher rating is not called for because there is no objective evidence of more than mild recurrent subluxation or lateral instability during the relevant period. The new criteria under DC 5257 for knee instability is not applicable as the Veteran passed away before February 7, 2021, when the new criteria were implemented. In conclusion, prior to the Veteran's passing away, his service-connected right knee disability was properly evaluated under DC 5257, at 10 percent, but no higher, effective on May 5, 2020. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Associate Counsel, C. Parnell 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.