Citation Nr: 21031060
Decision Date: 05/20/21	Archive Date: 05/20/21

DOCKET NO. 11-17 906
DATE: May 20, 2021

ORDER

A rating in excess of 20 percent prior to April 1, 2019 for retropatellar pain syndrome of the bilateral knees is denied.

A rating in excess of 10 percent from April 1, 2019 for retropatellar pain syndrome of the bilateral knees is denied. 

A rating in excess of 20 percent prior to April 1, 2019 for instability of the bilateral knees is denied.

A compensable rating from April 1, 2019 for instability of the bilateral knees is denied. 

FINDINGS OF FACT

1. Prior to April 1, 2019, the Veteran's bilateral knee retropatellar pain syndrome symptoms did not cause a level of impairment that more nearly approximates limitation of extension of the knees to 20 degrees or less.

2. From April 1, 2019, the Veteran's bilateral knee retropatellar pain syndrome symptoms does not cause a level of impairment that approximates limitation of extension of the knees to 15 degrees or less. 

3. Prior to April 1, 2019, the evidence does not demonstrate symptoms that more closely approximate "severe" bilateral knee instability. 

4. From April 1, 2019 thereafter, the evidence does not demonstrate symptoms that more closely approximate "slight" bilateral knee instability. 

CONCLUSIONS OF LAW

1. The criteria for ratings in excess of 20 percent under DC 5261 prior to April 1, 2019 for retropatellar pain syndrome of the bilateral knees have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5261.

2. The criteria for ratings in excess of 10 percent under DC 5261 from April 1, 2019 thereafter for retropatellar pain syndrome of the bilateral knees have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, 5261.

3. The criteria for a rating in excess of 20 percent under DC 5257 prior to April 1, 2019 for instability of the bilateral knees have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5257.

4. The criteria for a rating in excess of 0 percent under DC 5257 from April 1, 2019 thereafter for instability of the bilateral knees have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5257.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active duty service in the Army from May 1997 to October 1999 and from December 2003 to March 2005. 

At the outset, the Board notes that the Veteran had a hearing before a Veterans Law Judge (VLJ) in June 2017. The transcript of the hearing has been associated with the claims folder. 

These claims were previously adjudicated by the Board in a November 2019 decision. In a December 2020 Joint Motion for Remand (JMR) The U.S. Court of Appeals for Veterans Claims (Court) vacated the December 2019 Board decision finding that relevant evidence was not adequately considered. These matters will therefore be readjudicated in light of the Court's findings of error. 

INCREASED RATINGS

1. Ratings in excess of 20 percent prior to April 1, 2019 and in excess of 10 percent thereafter for retropatellar pain syndrome of the bilateral knees

2. Ratings in excess of 20 percent prior to April 1, 2019 and in excess of 0 percent thereafter for instability of the bilateral knees 

Legal Criteria 

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, 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 there is a question as to which of two disability ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3.

Where an increase in an existing disability rating based on established entitlement to compensation is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007).

In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits compensating a veteran twice for the same symptoms or functional impairment).

When an unlisted condition is encountered, it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20.

When rating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. Painful motion is considered limited motion at the point that pain actually sets in. See VAOPGCPREC 9-98.

With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59.

Additionally, painful motion is an important factor of disability, and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Although pain may cause a functional loss, pain itself does not constitute functional loss. Pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011).

VA amended the criteria for rating musculoskeletal disabilities effective February 7, 2021. These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after February 7, 2021. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. The Board cannot apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. 

The appropriate diagnostic codes for rating limitation of motion of the knee are Diagnostic Codes 5260 and 5261. 38 C.F.R. § 4.71a. Normal range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. In VAOPGCPREC 9-2004, the VA General Counsel interpreted that, when considering Diagnostic Codes 5260 and 5261 together with 38 C.F.R. § 4.71, a veteran may receive a rating for limitation in flexion only, limitation of extension only, or, if the 10 percent criteria are met for both limitations of flexion and extension, separate ratings for limitations in both flexion and extension under Diagnostic Code 5260 (leg, limitation of flexion) and Diagnostic Code 5261 (leg, limitation of extension).

Under Diagnostic Code 5260, limitation of knee flexion is 30 percent disabling where flexion is limited to 15 degrees; 20 percent disabling where flexion is limited to 30 degrees; 10 percent disabling where flexion is limited to 45 degrees; and noncompensable where flexion is limited to 60 degrees. 38 C.F.R. § 4.71a.

Under Diagnostic Code 5261, limitation of knee extension is rated 50 percent disabling where extension is limited to 45 degrees; 40 percent disabling where extension is limited to 30 degrees; 30 percent disabling where extension is limited to 20 degrees; 20 percent disabling where extension is limited to 15 degrees; 10 percent disabling where extension is limited to 10 degrees; and noncompensable where extension is limited to 5 degrees. 38 C.F.R. § 4.71a.

Diagnostic Code 5257 contemplates "other impairment" of the knee including recurrent subluxation or lateral instability. Under Diagnostic Code 5257, where impairment is severe, moderate or slight, disability ratings of 30, 20, and 10 percent are assigned, respectively. 38 C.F.R. § 4.71a.

Diagnostic Code 5262 contemplates impairment of the tibia and fibula, assigning a 40 percent rating for nonunion of the tibia and fibula, and 10, 20, and 30 percent ratings for slight, moderate or marked knee or ankle disabilities. Id. The words "slight," "moderate," "severe," and "marked" as used in the various diagnostic codes are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for "equitable and just decisions." Id.

According to MERRIAM WEBSTER'S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), "slight" means small in amount. "Moderate" means limited in scope or effect. "Marked" means having a distinctive or emphasized character.

Under Diagnostic Code 5256, ankylosis of the knee that is in the favorable angle in full extension, or is in slight flexion between 0 degrees and 10 degrees, warrants a 30 percent disability rating. Ankylosis of the knee in flexion between 10 degrees and 20 degrees warrants a 40 percent disability rating. Ankylosis of the knee in flexion between 20 degrees and 45 degrees warrants a 50 percent disability rating. Extremely unfavorable ankylosis of the knee, in flexion at an angle of 45 degrees or more, warrants a 60 percent rating. A 60 percent rating is the maximum schedular disability rating available under DC 5256. Id. Ankylosis is the immobility and consolidation of a joint. Lewis v. Derwinski, 3 Vet. App. 259 (1992).

Diagnostic Code 5258 provides a 20 percent disability rating when a dislocated semilunar cartilage is present with frequent episodes of "locking," pain, and effusion into the joint. Diagnostic Code 5259 provides for a 10 percent disability rating when semilunar cartilage has been removed and related symptoms are present. A 10 percent disability rating is assigned under Diagnostic Code 5263 when genu recurvatum is identified. 38 C.F.R. § 4.71a.

Diagnostic Code 5010 provides that arthritis due to trauma that is substantiated by X-ray findings is to be rated as degenerative arthritis. Diagnostic Code 5003 provides that degenerative arthritis established by x-ray findings is to be evaluated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic code, 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, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent rating is assignable for x-ray evidence of involvement of arthritis of two or more major joints or two or more minor joint groups. A 20 percent evaluation is assignable for x-ray evidence of involvement of arthritis of two or more major joints or two or more minor joint groups, with occasional incapacitating episodes. 38 C.F.R. § 4.71a.

VA's Office of General Counsel has provided guidance concerning increased rating claims for knee disorders. VA's General Counsel stated that compensating a claimant for separate functional impairment under Diagnostic Codes 5257 and 5003 does not constitute pyramiding. See VAOPGCPREC 23-97 and VAOPGCPREC 9-98.

Factual Background 

A March 2010 VAMC Primary Care treatment note documents symptoms of bilateral knee pain, intermittent swelling, a sense of "slippage" of the right knee as well as instability. The bilateral knees were noted to crack frequently and walking up or down grades is more uncomfortable than walking of flat surfaces. 

During the July 2010 VA knee examination, the Veteran was noted to have symptoms of pain, weakness, stiffness and swelling of the knees. Flare-ups were described as increased pain and swelling ranging from 3/10 to 7/10 in severity, occurring 3 to 4 times a week and lasting for hours to "all day." Climbing stairs was noted to precipitate flare-ups, the Veteran communicated that he has to rest all day after work when flare-ups occur. The Veteran was noted to suffer from abnormal movement such as popping or locking of the bone. Initial range of motion (ROM) testing of the left knee revealed flexion from 0 to 118 degrees and no limitation of extension, and flexion from 0 to 112 degrees and no limitation of extension of the right knee. Varus/valgus of medical collateral ligaments was noted to be mild in both knees. Painful motion, instability, tenderness and guarding of movement was indicated in both knees. Mild instability of the knee joint was noted in both knees. The required use of assistance devices was not indicated. 

September 2010 VAMC knee radiographic imaging showed mild lateral tilt and subluxation of the bilateral patellae. No significant osteoarthrosis or erosive changes were noted. There was no evidence of joint effusion. 

In the October 2010 notice of disagreement (NOD) the Veteran stated that he was told by VAMC personnel that he should be wearing knee braces for his instability and that his knees are becoming "much more unstable." He conveyed his belief that his knee instability more closely approximates symptoms that are moderate in severity. 

An April 2012 VAMC Primary Care Note reflects that the Veteran asked to be prescribed knee braces. 

During the January 2016 VA knee examination, the Veteran reported flare-ups on overuse or climbing steps and he experiences sharp pain when running or walking. During flare-ups he ices and elevates his knees and uses pain medication. He described functional loss/impairment as constant pain in the knees. Initial range of motion (ROM) testing of the left knee revealed flexion from 0 to 120 degrees and no limitation of extension, and flexion from 0 to 130 degrees and no limitation of extension of the right knee. There was localized tenderness or pain on palpation of the peripatellar region. Pain was noted on examination and results in functional loss and there was objective evidence of crepitus. After observed repetitive use, right knee flexion was further reduced from 0 to 120 degrees and left knee flexion from 0 to 110 degrees. Muscle strength testing produced no abnormalities and no evidence of ankylosis was indicated. Joint stability testing was not performed because of the Veteran's pain. Functional impact was noted to be pain on prolonged sitting, standing, walking, running or climbing.  

During the Veteran's June 2017 hearing testimony, he stated that he is always in extreme and constant pain. He reported that he had a very hard time using stairs without a railing, and that unexpected uneven ground causes his knees to give way and that he falls. He said that he cannot stand or walk for long. He said that he coaches his son's little league team but is not able to participate because he cannot squat or stand. He said that at church he cannot kneel and stand, like elderly people, and that he is embarrassed by this because he is not elderly. He said that he used to work in a job that required standing and walking but was lucky to be placed in a new position that is more of a desk job. He also said that even sitting for a long time is not possible, and that he must get up occasionally. He said that his range of motion was not correctly recorded on the VA examination.

On February 2018 VA knee examination, ROM testing documented right knee flexion from 0 to 105 degrees and no limitation of extension. The examiner found pain on flexion, pain with weight-bearing, and that pain caused functional loss. The examiner further found mild global discomfort with palpation of the knee and crepitus. Concerning the Veteran's left knee, ROM testing showed flexion limited from 0 to 115 degrees, and no limitation of extension. The examiner found pain on flexion, pain with weight-bearing, and that pain caused functional loss. The examiner also found mild global discomfort with palpation of the knee, but no crepitus.

The Veteran was able to perform repetitive use testing with no additional functional loss, bilaterally; nor did pain, fatigue, weakness, or incoordination limit functional ability with repeated use over time. However, the examiner found that pain, fatigue, and weakness limited functional ability after flare-ups with an estimated 0 to 105 degrees limitation for right knee flexion, 0 to 115 degrees limitation for left knee flexion, and no limitation of extension, bilaterally. The examiner found contributing factors of disturbance of locomotion, interference with sitting, and interference with standing, bilaterally. The Veteran also reported difficulty with ambulation. Muscle strength was reduced to a four out of five for right knee flexion; however, left knee muscle strength was normal. There was no evidence of muscle atrophy, ankylosis, subluxation, instability, meniscal conditions, or any other abnormalities for the Veteran's right or left knee.

October 2018 VAMC Primary Care treatment records reflect chronic knee pain that improves with stretching, x-rays were noted to be normal. 

On March 2019 VA knee examination, the Veteran reported intermittent pain with instability. He reported no current treatment, no flare-ups, or functional loss. For both the Veteran's right and left knee, physical examination showed normal ROM, with no pain on examination, no pain or tenderness on palpation, no pain on passive motion, with weight-bearing or non-weight-bearing, and the Veteran was able to perform repetitive-use testing with no functional loss. The examiner found no crepitus, normal muscle strength, no muscle atrophy, no ankylosis, no instability, no subluxation, no meniscal conditions, no arthritis, or any other pertinent findings or contributing factors to the Veteran's knees.

On April 2019 VA knee examination, the Veteran reported intermittent knee pain made worse with ambulation and use. He reported using over-the-counter medications as needed for treatment. The Veteran did not report flare-ups. ROM testing showed right knee flexion from 0 to 130 degrees and no limitation of extension. There was no pain on examination, no pain or tenderness on palpation, no evidence of pain on passive motion, with weightbearing or non-weight-bearing; however, there was evidence of crepitus. ROM testing revealed left knee flexion limited from 0 to 120 degrees and no limitation of extension. There was no pain on examination, no pain or tenderness on palpation, no pain on passive motion, with weight-bearing or non-weight-bearing, and no crepitus. The Veteran was able to perform repetitive use testing with no loss in function, bilaterally; nor, was there evidence of functional loss due to pain, fatigue, weakness, or incoordination to either knee. The examiner found no evidence of reduction in muscle strength, muscle atrophy, ankylosis, subluxation, instability, recurrent effusion, no meniscal conditions, or any other pertinent signs, symptoms, or contributing factors to his knee disabilities.

Analysis 

During the period on appeal, the Veteran is assigned a 20 percent rating prior to April 1, 2019 and a 10 percent rating thereafter under DCs 5299-5261 for retropatellar pain syndrome of the bilateral knees. Hyphenated DCs are used when a rating under one DC requires use of an additional DC to identify the basis for the evaluation assigned. The additional code is shown after the hyphen. 38 C.F.R. § 4.27. In this case, the Veteran's bilateral knee disabilities have been rated under DC 5261 for limitation of extension. 

The Veteran's service-connected knee disabilities have also been assigned a 20 percent rating prior to April 1, 2019 and a 0 percent rating thereafter under DC 5257 for instability.

Initially, the Board finds that ratings in excess of 20 percent under DC 5261 prior to April 1, 2019 and in excess of 10 percent thereafter for retropatellar pain syndrome of the bilateral knees are not warranted. In that regard, documented ROM testing prior to April 1, 2019 was not productive of left or right knee extension limited 20 degrees or less which would warrant a higher 30 percent rating under the schedular criteria for DC 5261. 

The Board acknowledges that the evidence prior to April 1, 2019 documented symptoms of painful motion, weakness, stiffness, swelling, tenderness, guarding of movement, lack of endurance, popping/clicking, crepitus, knees "giving way" causing falls, difficulty with stairs and prolonged activity (including standing, walking, and running), and interference with sitting, standing, and weight-bearing, due to the bilateral retropatellar pain syndrome. Additionally, flare-ups have been documented during this period on overuse and climbing steps, and described as increased pain and swelling ranging from 3/10 to 7/10 in severity, occurring 3 to 4 times a week and lasting for hours to "all day" have also been considered. However, these symptoms are encompassed by the assigned 20 percent ratings during this period because they signify additional disability beyond that reflected by ROM measurements. In that regard, the documented limitation of flexion and extension of the bilateral knees during this period would not meet the schedular criteria for the assignment of ratings based on limitation of motion (DCs 5260 and 5261), even when considering estimated additional ROM loss during flare-ups and after repeated use. Consequently, after considering the above symptoms and impairment, the Board finds that ratings in excess of 20 percent prior to April 1, 2019 under DC 5261 for a degree of impairment that approximates limitation of extension of the knees to 20 degrees or less are not warranted. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011).

Further, the Board also finds that ratings in excess of 10 percent under DC 5261 from April 1, 2019 for retropatellar pain syndrome of the bilateral knees are not warranted. Documented ROM from April 1, 2019 is not productive of left or right knee extension limited to 15 degrees or less which would warrant a higher 20 percent rating under the schedular criteria for DC 5261. The Board acknowledges that the Veteran reported intermittent knee pain made worse with ambulation and use during the April 2019 VA knee examination. The examiner further noted in the examination report that there was no painful motion, no pain or tenderness on palpation, no evidence of pain on passive motion and with weightbearing or non-weight-bearing. The Veteran also did not report flare-ups during this examination. 

The Board finds that the above symptoms are encompassed by the assigned 10 percent ratings from April 1, 2019 thereafter because they signify additional disability beyond that reflected by ROM measurements during this period. In that regard, the documented limitation of flexion and extension of the bilateral knees during this period would not warrant the assignment of ratings under the schedular criteria for limitation of motion (DCs 5260 and 5261), even when considering estimated additional ROM loss during flare-ups and after repeated use over time. Consequently, after considering the above symptoms and impairment, the Board finds that ratings in excess of 10 percent from April 1, 2019 thereafter under DC 5261 for a degree of impairment that approximates limitation of extension of the knees to 15 degrees or less are not warranted. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011).

Additionally, the Board finds that ratings in excess of 20 percent prior to April 1, 2019 for instability of the bilateral knees are not warranted.  Prior to April 1, 2019, the evidence documents subjective reports of a sense of "slippage" of the right knee as well as instability. The July 2010 VA knee examination report reflects bilateral knee instability that was "mild" in severity. The Veteran communicated further in the October 2010 NOD that he felt his knee instability was worsening and that it more aptly described as being "moderate" in severity. An April 2012 VAMC treatment note reflects that the Veteran eventually asked for knee braces to help with his instability symptoms. During the June 2017 hearing the Veteran testified that he held on to the railing when walking down the stairs due to bilateral knee instability and that his doctor informed him that he had subluxation.

The Board acknowledges that above subjective reports of symptoms but finds that the Veteran's bilateral knee instability symptoms did more closely approximate "severe" impairment such that higher 30 percent ratings are warranted prior to April 1, 2019. Crucially, the February 2018 and March 2019 VA knee examination reports document no objective evidence of knee instability. The Board is aware that it cannot categorially find objective medical evidence more probative than lay evidence. English v. Wilkie, 30 Vet. App. 347, 349 (2018). However, the Veteran himself described the severity of his knee instability as "moderate" which corresponds to the assigned 20 percent rating during this period. Moreover, the Board has weighed the Veteran's subjective reports of knee instability with the objective medical evidence and finds that his symptoms did not more nearly approximate "severe" instability prior to April 1, 2019.

Further, the Board finds that a compensable rating from April 1, 2019 for instability of the bilateral knees are not warranted. The April 2019 VA knee examination report does not document any objective evidence of knee instability or use of a brace or assistance device. The Veteran did not report any knee instability symptoms. There are no VAMC or private treatment records during this period which reflect reports of or treatment for knee instability. Therefore, the lay and medical evidence during this period does not reflect symptoms that more closely approximate "slight" instability of either knee such that higher 10 percent ratings are warranted. Consequently, the Board finds that ratings in excess of 0 percent from April 1, 2019 thereafter under DC 5257 for instability of the bilateral knees are not warranted. DC 5257. 

The Board has considered whether higher 10 percent ratings would be warranted under the amended criteria (effective February 7, 2021) for DC 5257. The evidence during this period does not document a sprain, incomplete ligament tear, or complete ligament tear causing persistent instability. Therefore, higher 10 percent ratings are not warranted under the amended rating criteria for DC 5257 from February 7, 2021 onwards. 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, DC 5257). 

In addition, throughout the entire appeal period, separate ratings are not warranted under DC 5260 for limitation of flexion because documented ROM testing during this period did not reveal limitation of flexion to 60 degrees or less in either knee. Further, higher or separate ratings are not warranted under DCs 5258, 5259 and 5263 because the Veteran's knees have not been characterized by frequent episodes of "locking," pain, and effusion into the joint; removal of the semilunar cartilage or genu recurvatum. There is also no evidence documenting impairment of the tibia and fibula or ankylosis during the appeal period so DCs 5262 and 5256 are inapplicable. 

The Board has considered whether separate ratings would be warranted under the amended criteria (effective February 7, 2021) for DC 5262 which compensates for shin splints. The evidence does not document treatment for shin splints requiring treatment for less than 12 months in one or both lower extremities. Therefore, separate ratings are not warranted under the amended rating criteria for DC 5262 from February 7, 2021 onwards. 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, DC 5262). 

 

Jennifer White

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Kyle McKone

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.