Citation Nr: 21030882 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 15-14 803 DATE: May 19, 2021 ORDER A rating in excess of 10 percent for limitation of motion of the right knee is denied. A rating in excess of 10 percent for limitation of motion of the left knee is denied. A 10 percent rating for instability of the right knee is granted, subject to the laws and regulations governing the award of monetary benefits. A 10 percent rating for instability of the left knee is granted, subject to the laws and regulations governing the award of monetary benefits. FINDINGS OF FACT 1. Despite pain, weakness, fatigability, or incoordination during repeated use, the Veteran's right knee disability has not been shown to result in flexion being functionally limited to 30 degrees or less, and the right knee has full extension. Ankylosis, and meniscal problems have not been shown. 2. Despite pain, weakness, fatigability, or incoordination during repeated use, the Veteran's left knee disability has not been shown to result in flexion being functionally limited to 30 degrees or less, and the left knee has full extension. Ankylosis, and meniscal problems have not been shown. 3. Slight instability has been shown in both knees. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for limitation of motion of the right knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5024, 5256-5263. 2. The criteria for a rating in excess of 10 percent for limitation of motion of the left knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5256-5263. 3. The criteria for a 10 percent rating for instability of the right knee have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5257. 4. The criteria for a 10 percent rating for instability of the left knee have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the Army from October 1994 to January 1996. A June 1996 rating decision granted service connection for Veteran's bilateral knee condition. In January 2013, the Veteran filed an increased rating claim for her bilateral knee condition. At that time, each of her knees was rated at 10 percent. This claim was denied in December 2013 and Veteran timely perfected her appeal to the Board. The Veteran testified at a Board hearing in January 2017 that her bilateral knee disabilities had worsened since her previous VA examination. The Board has remanded twice since that time to obtain records and to provide physical examinations. The Board is satisfied that there has been substantial compliance with the remand directives. The Veteran's representative argued in the February 18, 2020 written brief to the Board that the September 2019 VA examination was inadequate for rating purposes since the examiner did not have copies of Veteran's treatment records. Additionally, Veteran's representative argued that the subsequent SSOC based on the September 2019 VA examination is also inadequate. The Board disagrees with this statement; the mere fact that the examiner didn't have access to prior treatment records would have no bearing on the examiner's ability to conduct an appropriate examination. The purpose of a physical examination is to determine the Veteran's current level of disability at the time of the examination, prior records would not hinder the examiner's ability to provide a competent assessment. As such, this argument does not provide Increased Rating The Veteran asserts that she is entitled to an increased rating for her right and left knee disabilities. Specifically, she testified at a January 2017 BVA hearing that she has pain in her knees that is disrupting her daily activities and that the weakness and unreliability of her knees make it difficult for her to walk long distances, walk quickly, or change directions suddenly. The Veteran's left knee disability is currently rated under Diagnostic Code (DC) 5260, and her right knee disability is currently rated under DC 5003-5024. Hyphenated DCs are used when a rating under one code requires use of an additional DC to identify the basis for the rating. 38 C.F.R. § 4.27. Here, the hyphenated DC indicates that the Veteran's right knee disability is rated, by analogy, under DC 5024 for tenosynovitis, tendinitis, tendinosis, or tendinopathy. It is noted that during the course of this appeal, VA amended the rating criteria for evaluating the musculoskeletal disabilities under 38 C.F.R. § 4.71a effective February 7, 2021. See 85 Fed. Reg. 230 (Nov. 30, 2020). The new regulation made certain changes to DC 5003 and DC 5024, however, the rating criteria applicable to the Veteran's right knee condition under DC 5003 and DC 5024 stayed the same. That is, the right knee is still to be evaluated based on limitation of motion under the new regulation as in the old regulation. DC 5260 was not changed by the new regulation. As a result, the amendment of the rating criteria will not have an impact on Veteran's increased rating claim for bilateral knees. DC 5260 evaluates limitation of knee flexion. A noncompensable rating is assigned for flexion limited to 60 degrees. A 10 percent rating is assigned for flexion limited to 45 degrees. A 20 percent rating is assigned for flexion limited to 30 degrees. A 30 percent rating is assigned for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5060. DC 5261 evaluates limitation of knee extension. A noncompensable rating is assigned for extension limited to 5 degrees. A 10 percent rating is assigned for extension limited to 10 degrees. A 20 percent rating is assigned for extension limited to 15 degrees. A 30 percent rating is assigned for extension limited to 20 degrees. A 40 percent rating is assigned for extension limited to 30 degrees. A 50 percent rating is assigned for extension limited to 45 degrees. 38 C.F.R. § 4.71a, DC 5061. Normal range of motion (ROM) of the knee is to zero (0) degrees (full extension ROM) to 140 degrees (full flexion ROM). 38 C.F.R. § 4.71a, Plate II. The Veteran was afforded a VA examination in November 2013, at which she was diagnosed with bilateral retropatellar pain syndrome. The Veteran reported flare-ups of the knees and described the impact of these flare-ups as making it difficult for her to use stairs or squat, inability to wear tennis shoes, and sensitivity to weather. On examination, she showed right knee flexion to 135 degrees and extension to 0 degrees. There was no pain noted on examination of the right knee. Her left knee showed flexion to 135 degrees and extension to 0 degrees. There was no pain noted on examination of the left knee. The Veteran was able to perform repetitive use testing, without any reduction of range of motion for either the right or left knee. There were no other symptoms or additional factors contributing to her disability. Muscle strength testing showed full strength of 5/5 without muscle atrophy, and joint stability testing showed no instability in either knee. The examiner found no patellar or fibular impairment, and no meniscus condition in either knee. The Veteran was afforded another VA examination in September 2019. The Veteran did not report flare-ups but indicated that because of her knee pain she self-limited her fitness program and could not use the Stairmaster/treadmill, or ski. She reported that she was cautious with stairs and attempted to limit walking to less than 30 minutes if possible. She also indicated that she took frequent breaks when driving to move around and avoid discomfort. On examination, she demonstrated right knee flexion to 110 degrees and extension to 0 degrees with pain noted on flexion. Her left knee showed flexion to 100 degrees and extension to 0 degrees with pain noted on flexion. The Veteran was able to perform repetitive use testing with at least three repetitions without functional loss in either knee. The examiner indicated that for both knees, pain, weakness, fatigability, or incoordination would significantly limit the functional ability with repeated use over a period of time in terms of discomfort and slow motion but would not cause decreased ROM. The examiner opined that given the low baseline ROM, additional loss of ROM would not be expected in this clinical context. Muscle strength testing showed full strength of 5/5 and joint stability testing showed no instability in either knee. The examiner did not find any meniscus condition, ankylosis, or patellar/fibular impairment in either knee. Other medical records do not show knee symptoms that are more severe than those reflected in the VA examinations. For example, private physical therapy records in December 2011 indicate that Veteran reported more pain in her right knee than her left and described popping, clicking, and some instability. Veteran had full range of motion in both knees at that time. Physical therapy notes in August 2013 show right knee flexion to 125 degrees and extension to 0 degrees and left knee flexion to 117 degrees and extension to 0 degrees. October 2013 treatment notes show improvement after a round of physical therapy and indicated that Veteran had full range of motion and no knee effusion. As the records consistently show full range of extension in both knees, a compensable rating under DC 5261 is not warranted for either knee. As for limitation on flexion, the most restrictive finding was noted by the September 2019 VA examination showing that the flexion was limited to 100 degrees in the left knee and to 110 degrees in the right knee, which does not even reach a non-compensable rating under DC 5260 The Board has also considered whether a higher disability evaluation is warranted on the basis of functional loss due to pain, 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). Here, the Veteran has already received the minimum compensable rating (10 percent) for each knee based on painful motion. To qualify for a higher rating, the evidence must show that the pain and weakness had functionally limited the extension to 10 degrees or flexion to 30 degrees. Here, the November 2013 VA examination showed that each of the Veteran's knees had full extension without any pain, and had flexion to 130 degrees in the left knee and 135 degrees in the right knee without painful motion, which would not even support a non-compensable rating under DC 5260 or DC 5261. The September 2019 VA examination showed that each of the Veteran's knees had full extension and had flexion to 100 degrees in the left knee and 110 degrees in the right knee. The Veteran was able to complete repetitive use without additional reduction of range of motion. Although painful motion was noted in both knees, the 2019 VA examiner indicated that pain, weakness, fatigability, or incoordination would limit the functional ability only in term of discomfort and slow motion but would not cause decreased range of motion. There was no indication in the treatment record that the flexion of each knee was functionally limited to 30 degrees or less. As such, a rating in excess of 10 percent is not warranted for either knee based on functional limitation of motion. The Board has also considered that whether a separate rating may be assigned for DC 5257 which evaluates recurrent lateral instability (in the old regulation) and patellar instability (a diagnosed condition involving the patellofemoral complex with recurrent instability added by the new regulation effective in February 2021). The Board notes that a revised 38 C.F.R. § 4.71a-Schedule of Ratings Musculoskeletal System for the DC 5257 criteria is effective from February 7, 2021. As such, effective from February 7, 2021, the revised DC 5257 knee, other impairment of recurrent subluxation or instability and patellar instability provides (in pertinent part) for a 10 percent disability rating for patellar instability, with a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. A 20 percent rating criteria is met when the diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair, requires a prescription by a medical provider for one of the following: A brace, cane, or walker. Note (1): For patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Prior to February 7, 2021, 38 C.F.R. § 4.71a-Schedule of Ratings Musculoskeletal System under the DC 5257 provides for ratings based on recurrent subluxation or lateral instability from mild/slight to moderate to severe and respectively assigned a rating at either 10, 20, or 30 percent. The new revised 38 C.F.R. § 4.71a DC 5257 criteria effective from February 7, 2021, essentially, replaces these subjective terms (mild/slight, moderate, severe) with detailed descriptions of levels of impairment resulting from recurrent subluxation or instability or from patellar instability. The Board may apply the old DC 5257 rating criteria to the Veteran's bilateral knee conditions for rating periods prior to February 7, 2021 but may apply whichever set of criteria is more favorable to periods after February 7, 2021, as this claim was pending prior to this date. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The Veteran's bilateral knee disability is diagnosed as patellofemoral pain syndrome (a diagnosed condition involving the patellofemoral complex). There is no history of surgical repair. Thus, the Veteran meets the criteria for a new separate rating of 10 percent effective from February 7, 2021 under DC 5257 patellar instability. Turning first to the criteria in effect at the time the Veteran's claim was filed, the Board finds that the record including the Veteran's statements support a finding of at least "slight" recurrent lateral instability. The Veteran submitted many credible statements during the period on appeal asserting that her knees were essentially unreliable. For example, at the 2019 VA examination, she stated that she felt that her knees were "unreliable" in that she feels unsafe carrying groceries on the stairs and cannot make any rapid turns due to discomfort in the knees. She stated that she felt like something moved out of place. At her Board hearing, the Veteran stated that when pushing a shopping cart her knees would buckle if she went too fast. It is noted that the Veteran has also been noted to use a cane on occasion. Finally, there is some notation of instability in the private treatment records. While, the examiners did not find any clinical evidence of instability in either knee, the Board finds that the record including the Veteran's statements, and her use of a cane, support a finding of at least "slight" recurrent lateral instability under DC 5257 criteria. The Board finds that the evidence of record shows the overall recurrent subluxation or lateral instability in the Veteran bilateral knees most closely approximates a severity level that is no more than slight, that is, small in amount. As noted, the Veteran has on occasion used assistive devices such as a cane, but at the most recent examination she was not using the cane. Moreover, while private treatment records note knee instability, there was no suggestion of the degree of instability, and VA examinations have consistently found no instability on clinical testing. As such, instability that would support a rating in excess of 10 percent based on the regulations in effect at the time the Veteran filed her claim has not been shown. As such, a 10 percent rating for each knee, but not higher, is granted for instability under the regulations in effect at the time the Veteran's claim was received. The Board must now consider whether the revised regulations allow for the assignment of a rating in excess of 10 percent. As noted, new regulations regarding knee instability were enacted and became effective as of February 7, 2021. These modify Diagnostic Code 5257 as follows: 5257 Knee, other impairment of: Recurrent subluxation or instability: A 30 percent rating is assigned for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation with sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation. A 20 percent rating is assigned for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation with unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation A 10 percent rating is assigned for a sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation Patellar instability: A 30 percent rating is assigned for 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 a walker A 20 percent rating is assigned for 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 10 percent rating is assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker Note (1): For patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note (2): A surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). Here, the Veteran has been diagnosed with patellofemoral pain. Accepting that this brings the condition within the regulations for patellar instability, a rating in excess of 10 percent would require surgical repair, which has not been conducted in this case. Moreover, under the revised recurrent subluxation or instability, the new regulations require both persistent instability, which has not been shown, and the prescription of a brace which is not shown throughout the appeal. As such, rating in excess of 10 percent for instability is denied. The Board also considered other Diagnostic Codes. DC 5258 and 5259 evaluate impairment of the semilunar cartilage (meniscus). DC 5256 evaluates ankylosis of the knee; DC 5262 evaluates impairment of the tibia and fibula; DC 5263 evaluates genu recurvatum. As the record does not show conditions described under these diagnostic codes existing in the knees, these codes are not applicable here and will not be discussed further. (Continued on the next page) In sum, as the evidence does not support a rating in excess of 10 percent for either knee based on limitation of motion, but the evidence does show instability in both knees that is sufficient to support a 10 percent rating for each and to that extent, the claim is granted. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jennifer M. Narvaez, 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.