Citation Nr: 21031121 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 13-05 661 DATE: May 20, 2021 ORDER Entitlement to a 20 percent rating for a disability of the right knee is granted. Entitlement to a 10 percent rating, but no higher, for instability of the right knee is granted. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran's right knee is shown to have a disability manifested by frequent episodes of locking, pain, and effusion, but not with limitation of flexion to 45 degrees or more, limitation of extension to 10 degrees or more, tibia or fibula impairment, ankylosis, or genu recurvatum. 2. Throughout the appeal period, the Veteran's right knee was shown to have symptomatology more closely approximating slight instability manifested by giving way, but not moderate lateral instability or recurrent subluxation. CONCLUSIONS OF LAW 1. The criteria for a 20 percent evaluation, but no higher, for a disability of the right knee have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5258. 2. The criteria for a 10 percent evaluation, but no higher, for instability of the right knee have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5003-5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 1988 to October 1992. This matter comes to the Board of Veterans' Appeals (Board) from a June 2010 rating decision by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). This matter was previously before the Board in November 2015 and July 2018, at which point the claim was remanded for additional development. The most recent VA examination was performed in June 2019 and adequately addresses the directives from the July 2018 Board remand. Accordingly, the Board finds that there has been substantial compliance with the most recent Board remand. See Stegall v. West, 11 Vet. App. 268 (1998). During the pendency of the appeal, a March 2020 rating decision granted a separate 10 percent evaluation for instability of the right knee effective from May 7, 2019. As higher ratings are potentially available, the issue remains in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). Increased Ratings Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Pyramiding, which is the evaluation of the same disability or the same manifestation of a disability under different diagnostic codes, is to be avoided when evaluating a Veteran's service-connected disability. 38 C.F.R. § 4.14 Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flareups. The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). Painful motion is an important factor of disability, and 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. See 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). Nevertheless, pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Moreover, functional impairment must be supported by adequate pathology. Id.; Johnson v. Brown, 9 Vet. App. 7, 10 (1996) (both citing to 38 C.F.R. § 4.40). Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Regarding knee claims, a claimant who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003, 5260, 5261, and 5257. See VAOPGCPREC 23-97. For example, when a knee disability is already rated under DC 5257 (addressing lateral instability), a separate rating may be warranted if the Veteran's knee also shows limitation of motion that at least meets the criteria for a zero-percent rating under DC 5260 (flexion limited to 60 degrees or less) or 5261 (extension limited to 5 degrees or more). See VAOPGCPREC 09-04. Moreover, a separate rating could be warranted under 38 C.F.R. § 4.59, based on X-ray findings of arthritis with painful motion. The Board does acknowledge that the ratings criteria for the musculoskeletal system was updated during the appeal period, effective February 7, 2021; that new criteria will be address in a separate section below. Limitation of motion of the knee is contemplated in 38 C.F.R. § 4.71a, Diagnostic Codes 5260 and 5261. Normal range of knee motion is 140 degrees of flexion and zero degrees of extension. 38 C.F.R. § 4.71, Plate II. Diagnostic Code 5260 provides for a zero percent evaluation where flexion of the leg is only limited to 60 degrees. For a 10 percent evaluation, flexion must be limited to 45 degrees. A 20 percent evaluation is warranted where flexion is limited to 30 degrees. A 30 percent evaluation may be assigned where flexion is limited to 15 degrees. Diagnostic Code 5261 provides for a zero percent evaluation where extension of the leg is limited to five degrees. A 10 percent evaluation requires extension limited to 10 degrees. A 20 percent evaluation is warranted where extension is limited to 15 degrees. A 30 percent evaluation may be assigned where the evidence shows extension limited to 20 degrees. For a 40 percent evaluation, extension must be limited to 30 degrees. And finally, where extension is limited to 45 degrees a 50 percent evaluation may be assigned. Under Diagnostic Code 5256, ankylosis of the knee in a favorable angle in full extension, or in slight flexion between 0 and 10 degrees warrants a 30 percent evaluation. Ankylosis of the knee in flexion between 10 and 20 degrees warrants a 40 percent evaluation, while ankylosis in flexion between 20 and 45 degrees warrants a 50 percent evaluation. Extremely unfavorable ankylosis in flexion at an angle of 45 degrees or more warrants a 60 percent evaluation. Under Diagnostic Code 5257, a 10 percent rating is assigned when there is slight recurrent subluxation or lateral instability, a 20 percent rating when there is moderate recurrent subluxation or lateral instability, and a 30 percent evaluation for severe recurrent subluxation or lateral instability. Diagnostic Code 5258 provides for a 20 percent rating for a dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the knee joint. Diagnostic Code 5259 provides for a maximum 10 percent rating for symptomatic residuals of removal of a semilunar cartilage. The Board notes that Diagnostic Codes 5262 and 5263 governing evaluations for impairment of the tibia and fibula and genu recurvatum are not applicable as the Veteran does not have any of these conditions. Thus, these provisions will not be further addressed. 38 C.F.R. § 4.71a, Diagnostic Codes 5262, 5263. Factual Background In this case, the Veteran's increased rating claim for his right knee disability was received on February 8, 2010. Throughout the appeal period, the Veteran's right knee disability has been evaluated as 10 percent disabling for painful motion that is noncompensable under the Diagnostic Codes governing limitation of motion of the knee. See 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). See also 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. The Veteran has additionally been awarded a separate 10 percent evaluation for instability of the right knee beginning on May 7, 2019, under Diagnostic Code 5003-5257. Turning to the evidence, treating records reveal that the Veteran sought care for right knee pain in February 2010. He reported that he had arthroscopic surgery on the right knee in May 2001 and that his pain had progressed since that time. On examination, he exhibited full range of motion in the knee with a slight click. In June 2010, the Veteran was seen for a VA examination in connection with his claim. At that time, the examiner provided a diagnosis of degenerative joint disease of the right knee and noted that the Veteran had orthopedic surgery in 2001 to repair cartilage. The Veteran reported right knee pain with kneeling, squatting, standing, and walking. He estimated that he could stand for up to one hour and walk one to three miles at a time. The examiner noted joint symptoms of giving way, instability, weakness, incoordination, stiffness, and swelling, but no locking, effusion, or dislocation of the joint. Additionally, the Veteran reported having moderate flare ups three times a week that last for hours at a time and are precipitated by overuse. On initial range of motion testing, the Veteran's right knee flexion was 0 to 115 degrees and right knee extension was normal. The examiner noted that there was no objective evidence of pain or any additional functional limitation following repeated motion. The remainder of the physical examination was normal with a normal gait and no evidence of crepitus, grinding, instability, meniscus abnormality, patellar abnormality, or any other abnormality. The Veteran did not present with ankylosis and the examiner made no mention of an impairment of the tibia or fibula or genu recurvatum. The examiner noted an August 1995 radiological report showing mild degenerative joint disease of the right knee. The examiner noted that the Veteran's knee condition caused decreased mobility and pain that mildly affected the Veteran's ability to perform daily activities, such as exercise, sports, recreation, and traveling. However, this examination did not provide an estimate of additional loss of range of motion due to flareups or with repeated use over time. From 2011 to 2014, the Veteran continued to engage in care for worsening right knee pain. Despite his complaints, an x-ray performed in 2011 showed minimal osteoarthritis and right superior patellar enthesophyte. However, he was prescribed a knee orthosis (KO) brace to increase stability during ambulation, prevent falls, and decrease knee discomfort. Beginning in April 2013, the Veteran presented to treating visits with a cane. He ambulated slowly and he complained that his right knee gives out. Another x-ray was performed in November 2013, but it only showed very mild degenerative joint disease of the right knee. Additionally, the Veteran's knee appeared stable with a stress exam and all ligaments appeared intact with no swelling or joint line pain. However, magnetic resonance imaging (MRI) performed in April 2014 showed full thickness loss of the cartilage covering the medial femoral condyle, resulting in severe chondromalacia. At this time, an orthopedic surgeon advised that it would take modular knee medial compartment resurfacing to fix the knee and the Veteran expressed a desire to avoid surgery. In January 2016, the Veteran was provided another VA examination. At that time, the examiner provided a diagnosis of degenerative joint disease of the right knee. The Veteran reported right knee pain with prolonged standing, walking, bending, and using stairs. He further reported having giving way of the right knee and difficulty walking, for which he was prescribed a cane. He also reported having flare ups that require him to lay down and prevent weight bearing on the right leg. On initial range of motion testing, the Veteran's right knee flexion was 0 to 100 degrees and right knee extension was 100 to 0 degrees. The examiner noted that there was objective evidence of pain with weight bearing, patellofemoral joint tenderness to palpation due to inflammation, and crepitus. Muscle strength testing was normal, and the Veteran did not exhibit muscle atrophy or instability. The Veteran did not present with ankylosis or an impairment of the tibia or fibula. The examiner made no mention of genu recurvatum. The examiner indicated that the Veteran was able to perform repetitive use testing with at least three repetitions and with no additional functional loss. However, the examination was not being conducted immediately after repetitive use over time or during a flare up and the examiner concluded she could not say without mere speculation whether pain, weakness, fatigability, or coordination significantly limit functional ability under these conditions. The examiner noted that the Veteran had arthroscopic surgery in 2001 with residual symptoms of pain and decreased range of motion. She further concluded that the Veteran has a meniscus condition with frequent episodes of joint locking and joint pain of the right knee, but no history of effusion. The examiner cited to the orthopedic surgery note documenting severe chondromalacia that requires surgical repair to fix and noted that the Veteran uses a cane on a regular basis. She noted that the Veteran's knee condition impacts his ability to do a physically demanding job with prolonged standing, walking, and lifting, but she concluded that the Veteran could perform sedentary work with restrictions, such as frequent breaks to change positions. From 2016 to 2019, the Veteran was treated sporadically for his right knee pain. In early 2016, he underwent physical therapy. He reported worsening pain in his knees in 2018 and swelling, stiffness, and buckling during visits in 2019. In May 2019, the Veteran was afforded another VA examination. At that time, the examiner provided diagnoses of instability and degenerative joint disease of the right knee. The Veteran reported right knee pain with locking and swelling. He reported that, with repeated use over time, he cannot walk more than 10 minutes (or 4 blocks), bend, lift more than 10 pounds, sit more than 20 minutes, or stand more than 5 minutes. He also reported that he has flare ups four times a week that last the whole day. During a flare, the Veteran estimated that he cannot sit more than 10 minutes, standing more than 5 minutes, or walk without support. On initial range of motion testing, the Veteran's right knee flexion was 0 to 120 degrees and right knee extension was 120 to 0 degrees. The examiner noted that functional loss is caused by pain and abnormal range of motion. The examiner also documented evidence of pain with weight bearing, pain with passive range of motion, mild diffuse tenderness around the patella, and crepitus. The examiner noted a history of slight lateral instability of the right knee and testing showed lateral instability of 1+ (0-5 millimeters). Muscle strength testing was normal, and the Veteran did not exhibit muscle atrophy. The Veteran did not present with ankylosis, an impairment of the tibia or fibula, or genu recurvatum. The examiner indicated that the Veteran was able to perform repetitive use testing with at least three repetitions and with no additional functional loss. The examiner noted that the examination was not being conducted immediately after repetitive use over time or during a flare up. However, she concluded that pain significantly limits the Veteran's functional ability with repeated use over time and during flareups. She estimated that the right knee range of motion after repeated use over time would be 0 to 105 degrees flexion and 105 to 0 degrees extension. She further estimated that right knee range of motion during flare ups would be 0 to 95 degrees flexion and 95 to 0 degrees flexion. The examiner cited to the MRI from 2014, which documented tricompartmental degenerative changes with joint space narrowing and no acute meniscus, ligament, or tendon disruption. She concluded that the Veteran does not have a meniscus condition. However, she noted that the Veteran had arthroscopic cartilage repair in 2001. She also noted that the Veteran uses a cane on a constant basis. Additionally, she noted that the Veteran's knee condition impacts his functional ability with regard to walking, bending, lifting, sitting, and standing. Analysis for Increased Evaluation of Right Knee Disability The Veteran was granted service connection for a right knee disability in a June 2010 rating decision with an evaluation of 10 percent effective February 8, 2010, under Diagnostic Code 5260 for painful limitation of motion that is not compensable under the Diagnostic Codes governing limitation of motion for the knee. 38 C.F.R. § 4.59. However, the Board finds that the Veteran's right knee pain is most appropriately addressed under Diagnostic Code 5258 and not Diagnostic Code 5260. First, the evidence demonstrates that the Veteran had surgery in 2001 to repair cartilage of the right knee and he was diagnosed with severe chondromalacia due to full thickness loss of the cartilage in April 2014. Second, it is reasonable to conclude from the record that the Veteran has experienced frequent episodes of pain, locking, and effusion of the right knee throughout the period on appeal, which corresponds to a 20 percent rating under Diagnostic Code 5258. Notably, stiffness and swelling were documented by the June 2010 VA examiner and frequent episodes of joint locking and pain were documented by the January 2016 VA examiner. While the January 2016 examiner noted that the Veteran did not have a history of effusion, swelling was documented by the June 2010 examiner. Furthermore, pain, swelling, and locking of the right knee were documented by the May 2019 VA examiner. Additionally, the Veteran complained of swelling and stiffness during treating visits in 2019. Accordingly, a 20 percent rating under Diagnostic Code 5258 is warranted for frequent episodes of joint pain, locking, and effusion. Furthermore, separate rating under Diagnostic Codes 5260 and 5261 for limited motion are not warranted because the Veteran's right knee flexion has not been limited to 60 degrees or less and his right knee extension has not been limited to 5 degrees or more at any time during the appeal period. See 38 C.F.R. § 4.71a, Diagnostic Codes 5260 and 5261. In a March 2020 rating decision, the Veteran was also granted a separate rating with an evaluation of 10 percent effective May 7, 2019, under Diagnostic Code 5003-5257 for slight instability of the right knee. This decision was based on the clinical findings of instability in the May 2019 VA examination. However, the record demonstrates that the Veteran reported instability and giving way of the right knee when he was first evaluated for his increased rating claim in June 2010 and then again in the January 2016 VA examination. 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). Furthermore, the Veteran's reports are consistent with his treating records, which note that he was prescribed a knee brace in 2011 to increase stability during ambulation, he began using a cane in 2013, and he that his right knee gives out in treating visits. Thus, it is reasonable to conclude that the Veteran has had slight lateral instability for the entire period on appeal under Diagnostic Code 5257, warranting a 10 percent rating. However, a rating in excess of 10 percent for instability of the right knee is not warranted under Diagnostic Code 5257 because there is no objective evidence of moderate recurrent subluxation or lateral instability from any of the VA examinations performed during the period on appeal. Additionally, a 20 percent disability rating under Diagnostic Code 5003 is not warranted as the knee is a single major joint. Finally, as the evidence of record fails to demonstrate ankylosis, impairment of the tibia or fibula, or genu recurvatum, the Veteran is not entitled to a higher or separate rating under Diagnostic Codes 5256, 5262 or 5263, respectively. With regard to functional loss, the Board finds that the Veteran's functional loss is contemplated in the assigned ratings. Even considering repetitive motion and the functional loss symptoms on examination, no compensable limitation of motion was noted, and his current ratings address these symptoms. Further, awarding a separate rating under Diagnostic Code 5260 for painful motion would result in impermissible pyramiding as it would compensate the Veteran for his pain twice. See 38 C.F.R. § 4.14. Thus, the Board concludes that a separate rating for functional loss under 38 C.F.R. §§ 4.40, 4.45, 4.59, is not warranted. In conclusion, the Board finds that a rating of 20 percent under Diagnostic Code 5258 for the entire period on appeal is warranted for the Veteran's cartilage disability with frequent episodes of pain, joint locking, and effusion. Additionally, the Board finds that a separate rating of 10 percent under Diagnostic Code 5257 for the entire period on appeal is warranted for slight instability. However, the Board finds that separate ratings under Diagnostic Codes 5260 and 5261 are not warranted because the Veteran does not show the requisite loss of motion. Additionally, the Veteran is not entitled to higher ratings under Diagnostic Codes 5256, 5262, or 5263 because there is no evidence of ankylosis, impairment of the tibia or fibula, or genu recurvatum. In so reaching the above conclusions, the Board has appropriately applied the benefit of the doubt doctrine in this case. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. New Regulations Effective February 7, 2021 The Board notes that the criteria for knee disabilities have changed during the period covered by this appeal, effective February 7, 2021. See 85 Fed. Reg. 75453 (November 30, 2020). When a law or regulation changes during the pendency of a Veteran's appeal, the version most favorable to the Veteran applies, absent congressional intent to the contrary. The amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change. However, the old regulations will be considered for the periods both before and after the change was made. See 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114; VAOPGCPREC 3-2000, 65 Fed. Reg. 33422 (2000); Kuzma v. Principi, 3541 F.3d 1327 (Fed. Cir. 2003). Thus, the Veteran is entitled to application of the criteria that are most favorable to his claim, except that an award based on the amended regulations may not be made effective before the effective date of the change. The Board has considered these changes and finds that the new criteria respecting evaluations of knee disabilities are not as advantageous to the Veteran in this case, and that the Veteran does not meet the criteria for a higher evaluation. Specifically, the significant changes related to knee disabilities were to add Diagnostic Code 5002 for active arthritic process, which the Veteran does not have. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76460 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5002). Additionally, changes were made to the rating provisions for tibia and fibula impairment with an addition of ratings for shin splints. The Veteran, again, has not been diagnosed with these conditions. Thus, these new regulations are not applicable. 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 5262). Finally, changes were made to Diagnostic Code 5257 governing instability, which added the requirement of either (1) sprain of or tear (either complete or incomplete) of a knee ligament causing persistent instability, or (2) a diagnosed condition of the patellofemoral complex with recurrent instability (with or without surgical repair); and (3) assistive devices or bracing (either by prescription or not) to the criteria, which were not present in the old pre-February 7, 2021 criteria. 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). Because the new criteria under Diagnostic Code 5257 require more specific criteria than the old criteria, they are less advantageous to the Veteran. In any event, the Veteran is already in receipt of a 10 percent rating for instability under the prior version of rating schedule. He has not had any surgical repair for patellar instability, nor has he sustained a ligament tear or sprain of the right knee as required under the amended regulations for a higher rating. Accordingly, the Board does not find that a higher rating is warranted for the period beginning February 7, 2021, when contemplating the new Rating Schedule criteria effective that date. Further, neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record, with regard to the initial rating claims addressed herein. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Beech, 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.