Citation Nr: 21030160 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 17-50 761 DATE: May 18, 2021 ORDER Entitlement to an increased evaluation higher than 10 percent for left knee arthritis with limitation of flexion is denied. For the entire period on appeal, entitlement to an evaluation of 20 percent for left knee internal derangement with instability is granted. FINDINGS OF FACT 1. At all times during the pendency of the appeal, the evidence of record shows that the Veteran's left knee arthritis with limitation of flexion is manifested by pain in the knee joint, but has not more nearly approximated limitation of flexion to 45 degrees, recurrent subluxation or ankylosis. 2. For the entire period on appeal the Veteran's left knee instability is manifested by moderate instability. CONCLUSIONS OF LAW 1. The criteria for entitlement to an evaluation higher than 10 percent for left knee arthritis with limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.20, 4.40, 4.45, 4.59, 4. 71a, Diagnostic Codes (DCs) 5260-5010. 2. For the entire period on appeal, the criteria for a 20 percent evaluation, but no higher, for left knee instability have been met. 38 U.S.C. § 1115; 38 C.F.R. § 4.1, 4.7, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Appellant is a Veteran who served on active duty from December 1971 to December 1974. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In July 2019, the Board issued a decision denying the Veteran's claim for entitlement to a compensable rating for internal derangement of the left knee. In March 2020, the Court remanded that issue to the Board pursuant to a Joint Motion for Partial Remand (JMPR). Factual Background The Veteran submitted a November 2015 report from a private chiropractor. He reported pain in the left knee anterior compartment which is constant in varying degrees and intensified with sitting, standing, walking, climbing stairs, shifting to other positions, and arising from a seated position. He reported crepitus with ambulation. He reported giving out and locking causing near falls. Flexion was limited to 40 degrees. Extension was adequate but painful. Moderate lateral instability was noted. Moderate crepitus was noted. The Veteran underwent a VA examination in March 2016. He reported that his left knee pops and makes noise. He reported that if he bumps up against something it will burn and feel like grating. He stated that he was told that he will need a left knee replacement. He denied the use of assistive devices. He denied flare-ups. He denied functional loss or impairment after repeated use over time. He was examined immediately after repetitive use over time. Flexion was limited to 130 degrees without pain. Extension was full to 0 degrees without pain. Repetitive testing did not lead to additional loss of range or function. There was no evidence of pain with weight-bearing, localized tenderness, pain on palpation, or crepitus. Muscle strength was full without atrophy. There was no ankylosis. There was no history of recurrent subluxation, lateral instability, or effusion. Joint stability testing was normal. There was no evidence or history of recurrent dislocation, shin splints, stress fractures, chronic exertional compartment syndrome, or any other tibial or fibular impairment. There was no evidence or history of a meniscal condition. X-rays were normal and showed no arthritis. He was diagnosed with an orthopedically and radiographically normal left knee. October 21, 2020, the Veteran underwent an examination. He was diagnosed with left knee internal derangement, and degenerative arthritis. He reported constant pain to the medial aspect of both knees, snapping and popping. He stated it feels like grating when walking. He reported pain on his patella. He has difficulty going downstairs. He reported a few falls because of the instability, and reported swelling in the past to his knees. Treatment included heat, and limiting activities. Flare-ups were described as increase in pain with movement. Flare-ups were reported as occurring once per week, moderate in nature, lasting one to four days. Functional loss was described as difficulty going up and down stairs, climbing ladders, prolonged walked, and bicycling. He had pain with weight bearing, and there was evidence of crepitus. Range of motion testing reveled flexion to 130 degrees, and extension to 0 degrees. There was pain in flexion. There was objective evidence of localized tenderness or pain on palpation of the joint. His patella is tender to touch, with the severity being moderate in nature. Following three repetitions, there is no additional loss of function or range of motion. He was not examined immediately after repetitive use over time, and the examination was deemed neither medically consistent nor inconsistent with the Veteran's statements of functional loss with repetitive use over time. Pain and weakness significantly limit functional ability with repeated use over a period of time. This was described in terms of range of motion as flexion to 120 degrees, and extension to 0 degrees. The examination was not conducted during a flare-up, and was deemed neither medically consistent nor inconsistent with the Veteran's statements describing functional loss during a flare-up. Pain and weakness significantly limit functional ability with a flare-up. This was described in terms of range of motion as flexion to 110 degrees, and extension to 0 degrees. There was no atrophy or ankylosis. There is not a history of recurrent subluxation. He reported recurrent episodes of effusion since service. Joint stability testing revealed, lateral instability of 1+ (0-5 mm). On testing of anterior, posterior, and medial instability testing was normal. He had a history of bilateral shin splints, that was acute and had resolved. There was no evidence of a meniscus condition. Because of his arthritis with instability, he has difficulty walking, and had to take position during his career that were driving routes. He is a retired postal service worker. X-rays revealed degenerative arthritis. There was objective evidence of pain on passive range of motion testing bilaterally, and of pain when the joint was used in non-weight bearing. The examiner indicated left knee arthritis with instability is progression of the diagnosis of left knee internal derangement. Legal Criteria The Veteran's left knee limited and painful motion with degenerative arthritis is evaluated under 5260-5010; a hyphenation of the diagnostic codes for osteomalacia and arthritis due to trauma, substantiated by x-ray findings respectively. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. The Veteran's left knee internal derangement with instability is evaluated under DC 5257. 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). 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. In this regard, the Board observes that former regulation 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction. In Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9(b)(2) (now as noted renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. As such, pursuant to 38 C.F.R. § 20.904(d)(2), the Board will proceed to adjudicate the Veteran's claim. For the period prior to February 7, 2021, Diagnostic Code 5010 indicates that arthritis due to trauma, substantiated by x-ray findings are rated as arthritis, degenerative. 38 C.F.R. § 4.71a, Diagnostic Code 5010. Under 38 C.F.R. § 4.71a, Diagnostic Code 5003, degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003. When however, the limitation of motion of the specific joint or joints involved is non-compensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined. 38 C.F.R. § 4.71a, Diagnostic Code 5003. For the period from February 7, 2021, DC 5010, indicates post-traumatic arthritis is to be rated as limitation of motion, dislocation, or other specified instability under the affected joint. If there are 2 or more joints affected, each rating shall be combined in accordance with §4.25. In the present case, there is no change in application of the DC to the Veteran's knee. The diagnostic rating codes for limitation of motion are: leg, limitation of flexion, Diagnostic Code 5260; leg, limitation of extension, Diagnostic Code, 5261; knee, ankylosis of, Diagnostic Code 5256; knee, recurrent subluxation or lateral instability, Diagnostic Code 5257; cartilage, semilunar, dislocated, with frequent episode of "locking," pain, and effusion into the joint, Diagnostic Code 5258; cartilage, semilunar, removal of, symptomatic, Diagnostic Code 5259; tibia and fibula, impairment of Diagnostic Code 5262. 38 C.F.R. § 4.71a, Diagnostic Codes 5256-5262. Diagnostic Codes 5260 and 5261 pertain to limitation of knee motion. 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. In this regard, a normal range of knee motion is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. A limitation of leg flexion allows for a 10 percent evaluation when it is limited to 45 degrees, and a 20 percent evaluation when flexion is limited to 30 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. A limitation of leg extension is assigned a 10 percent evaluation when it is limited to 10 degrees, and a 20 percent evaluation when extension is limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Separate ratings for knee disabilities may be assigned for disability of the same joint if none of the symptomatology on which each rating is based is duplicative or overlapping. See VAOPGCPREC 9-04 (2004); 69 Fed. Reg. 59,990 (2004); 38 C.F.R. § 4.14. Under Diagnostic Code 5259, a 10 percent rating can be assigned for symptomatic removal of semilunar cartilage. 38 C.F.R. § 4.71a. Under Diagnostic Code 5258, a 20 percent evaluation can be assigned for cartilage, semilunar, dislocated, with frequent episodes of "locking," pain, and effusion into the joint. Id. As is indicated above, the issue of semilunar cartilage is addressed by the Board in this decision. A veteran may also receive a separate evaluation for recurrent subluxation or lateral instability under Diagnostic Code 5257, which can be rated as slight (10 percent), moderate (20 percent) or severe (30 percent). 38 C.F.R. § 4.71a, Diagnostic Code 5257. Evaluations for knee impairment can also be assigned due to ankylosis, tibia and fibula impairment, or genu recurvatum, but as the Veteran has not at any time been found to have ankylosis, tibia and fibula impairment, or genu recurvatum, these diagnostic codes are not applicable. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5262, 5263. In considering range of motion ratings, it is important to consider whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. § §§ 4.40 and 4.45. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). A minimum compensable evaluation for a joint disability is warranted for painful motion under 38 C.F.R. § § 4.59. However, a rating in excess of the minimum compensable rating must be based on demonstrated functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). 1. Entitlement to an increased evaluation higher than 10 percent for limitation of flexion. The Veteran's left knee limited and painful motion with degenerative arthritis is evaluated under 5260-5010. Based on the evidence cited above, the Board finds that there is no basis to grant an increased rating based on limitation of flexion. Here, in 2015 a chiropractor evaluated his knee and noted his flexion to be limited to 40 degrees, however on examination in 2016 and in 2020 his flexion was not found to be less than 120 degrees. While there is one report in 2015 of flexion limited to 40 degrees, in 2016 and 2020 flexion was demonstrably improved. To warrant an increased evaluation of 20 percent, flexion would have to be limited to 30 degrees. Accordingly, the predominant disability picture does not demonstrate flexion less than 30 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. As to limited extension, the evidence shows that extension has been limited at worse to 0 degrees, with pain. A higher evaluation is not warranted unless the evidence shows limitation of extension of 10 to 14 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Even considering the Veteran's reports of painful motion and flare-ups, the Board finds that a higher rating for limitation of extension is not warranted. The Veteran is in receipt of service connection for left knee instability and it is discussed below. As to meniscal conditions, at the 2015 and 2020 examinations he was not found to have a meniscus condition. VA and private treatment records are void for mention of a meniscus condition that manifests with frequent locking, pain, and effusion to the joint. The Veteran has not had removal of semilunar cartilage, as such, there is no basis to assign a separate rating based on a meniscus disability. 38 C.F.R. § 4.71a, Diagnostic Code 5259. Although there is one mention of locking in 2015, and one mention of effusions in 2020, there is no probative evidence that the knee exhibited dislocated semilunar cartilage, with frequent episodes of "locking," pain, and effusion into the joint. As such, a separate rating under Diagnostic Code 5258 is not warranted. The Board has considered the Veteran's lay statements regarding the functional impact of his left knee disability. The Veteran is competent to report his own observations regarding the severity of his disability, including reports of pain and decreased mobility. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). His statements are consistent with the ratings assigned. At the 2020 examination functional loss was described as difficulty going up and down stairs, climbing ladders, prolonged walked, and bicycling. The occurrence of pain and increased difficulty while performing physical activities are not additional symptoms, but rather the practical effect of the symptoms of pain and limited range of motion which have been clinically observed and measured in the Veteran's medical records. Here, the specific examination findings of trained health care professionals are of greater probative weight than the Veteran's more general lay assertions. Further, the Veteran has submitted no evidence of treatment or care for his knee for the duration of the appeal. The Board acknowledges that the evidence, including the Veteran's lay statements indicate that he had chronic knee pain, and has considered 38 C.F.R. § 4.59 regarding painful motion. Under 38 C.F.R. § 4.59, with any form of arthritis, actually painful joints are entitled to at least the minimum compensable rating. See also Petitti v. McDonald, 27 Vet. App. 415, 425 (2015) ("Under 38 C.F.R. § 4.59, the trigger for a minimum disability rating is an 'actually painful, unstable, or malaligned joint [].'"). In this case, however, the Veteran has already been assigned at least the minimum compensable rating, 10 percent, for his left knee limitation of flexion, for the entire period on appeal. See Petitti, 27 Vet. App. at 425. The 10 percent evaluation for limitation of flexion already considers the Veteran's limitation of motion hampered by pain, repetitive motion, and flare ups, as these symptoms were evaluated on examination to the extent feasible. The Board notes that the Court has established that flare-ups must be considered. However, guidance on how to evaluate flare-ups has not been particularly clear. Therefore, this Veterans Law Judge expands upon the wisdom advanced in Mitchell. Flare-ups must be quantifiable and must result in limitation of motion or function beyond that contemplated by the already provided evaluation. In addition, because there is a regulation addressing stabilization of ratings, the flare-up must be of such length as to establish that the overall impairment is more severe than currently evaluated, rather than a brief snapshot in time. Here, his statements, if accepted as credible, would not warrant a higher evaluation based upon flare-ups because such flare-ups do not additionally limit function in a quantifiable way, and are not of such length or duration that a staged rating would not violate the rule regarding stabilization of ratings. Moreover, in 2016 he denied flare-ups, and in 2020 flare-ups were described as increase in pain with movement. He reported moderate flare-ups occurring once per week, lasting one to four days. The examiner found pain and weakness would limit functional ability with a flare-up and in terms of range of motion this was estimated as flexion to 110 degrees and extension to 0 degrees. These findings do not more nearly approximate a rating higher than 10 percent for limitation of flexion or a compensable rating for limitation of extension. Again, to warrant a higher evaluation flexion would have to be limited to less than 30 degrees, and extension would have to be limited to 10 degrees. In sum, 38 C.F.R. § 4.1 provides that the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illness proportionate to the severity of the several grades of disability. There are no consistent reports of exacerbation. In 2016 he denied flare-ups. In 2020 flare-ups were described as moderate pain with movement. These reports are not quantifiable and not of sufficient duration to warrant a change in evaluation without violating the spirit of Mitchell, the spirit of 38 C.F.R. § 4.1, and the rule regarding stabilization of ratings. The preponderance of the evidence is against an increased evaluation under DC 5260, or an additional separate rating under any other Diagnostic Code, with the exception of DC 5257, as addressed below. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine; as the preponderance of the evidence is against assignment of any other higher ratings, it is not applicable. 38 U.S.C. § 5107. 2. Entitlement to an increased evaluation of left knee internal derangement with instability higher than 20 percent prior to August 3, 2015, and higher than 10 percent thereafter. The Veteran's left knee internal derangement with instability is evaluated under 5257. The Veteran is in receipt of a 20 percent evaluation prior to August 3, 2015, and a 10 percent thereafter for left knee instability, under Diagnostic Code 5257. Under Diagnostic Code 5257, a 10 percent rating is warranted when there is slight recurrent subluxation or lateral instability. A 20 percent rating is warranted when there is moderate recurrent subluxation or lateral instability. A 30 percent rating is warranted when there is severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a. Diagnostic Code 5257 is based upon instability and subluxation, not limitation of motion, as a result, the factors set forth in 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 do not apply. DeLuca, supra. The words "slight," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. It should also be noted that use of terminology such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Finding all reasonable doubt in the Veteran's favor, a 20 percent rating under Diagnostic Code 5257 for moderate recurrent subluxation or lateral instability is warranted for the Veteran's left knee instability for the entire period on appeal. At the November 2015 he was found to have moderate lateral instability. He reported his knee would give out and lock causing near calls. At the March 2016 examination there was no evidence of instability, recurrent subluxation, or effusion. At the October 2020 examination he reported a few falls because of knee instability. He complained of knee pain associated with weight bearing. The Veteran was noted to have lateral instability and joint stability testing revealed medial instability of 1 +. Because of his arthritis with instability, he has difficulty walking, and had to take position during his career that were driving routes. There was objective evidence of pain on passive range of motion testing bilaterally, and of pain when the joint was used in non-weight bearing. Thus, the Board finds that by resolving all doubt in the Veteran's favor, he met the criteria for a 20 percent rating pursuant to DC 5257 for the entire period on appeal. However, based on the evidence, there is no indication of severe recurrent subluxation or lateral instability, to warrant a 30 percent evaluation. Slight, moderate, and severe instability is not defined by the VA Schedule for Rating Disabilities. In the instant case his instability was never worse than 1+ on testing, or identified as worse than moderate. While his symptoms demonstrate pain in weight bearing, and reports of falls, the evidence fails to point towards a more severe disability picture to warrant an evaluation higher than 20 percent. Thus, in sum, the evidence supports a rating of 20 percent pursuant to DC 5257 for the entire period on appeal, but a preponderance of the evidence is against a rating in excess of 20 percent. J. CONNOLLY Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Skiouris, 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.