Citation Nr: 21031636 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 18-11 399 DATE: May 24, 2021 ORDER Entitlement to a 10 percent rating for degenerative joint disease of the left knee, limitation of flexion, beginning August 30, 2013, is granted, subject to the laws and regulations governing the award of monetary benefits. Entitlement to a rating greater than 10 percent for degenerative joint disease of the left knee, limitation of flexion, from September 2, 2020 is denied. Entitlement to a rating greater than 10 percent for lateral instability of the left knee is denied. Entitlement to a rating greater than 10 percent for degenerative joint disease of the right knee, limitation of flexion, is denied. Entitlement to a compensable rating before September 9, 2020 and in excess of 10 percent from that date for recurrent subluxation of the right knee is denied. FINDINGS OF FACT 1. Beginning August 30, 2013, the Veteran's left knee is manifested by pain, but noncompensable limitation of motion, without evidence of frequent episodes of joint effusion, impairment of the tibia and fibula, or genu recurvatum. At no time during the appeal period has flexion been limited to 30 degrees. 2. The Veteran's left knee instability is no more than slight. 3. The Veteran's right knee disability is manifested by pain, but noncompensable limitation of motion, without evidence of, meniscal problem, impairment of the tibia and fibula, or genu recurvatum. 4. Beginning September 9, 2020, the Veteran's right knee instability is no more than slight in severity or 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. CONCLUSIONS OF LAW 1. Beginning August 30, 2013, the criteria for a 10 percent rating, but no higher, for degenerative joint disease of the left knee, limitation of flexion, have been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Codes (DC) 5010-5260. 2. The criteria for a rating greater than 10 percent for degenerative joint disease of the left knee, limitation of flexion, from September 2, 2020, have not been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes (DC) 5010-5260. 3. The criteria for entitlement to a rating greater than 10 percent for degenerative joint disease of the right knee, limitation of flexion, have not been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. § 4.71a, DC 5010-5260. 4. The criteria for entitlement to compensable rating before September 9, 2020 and in excess of 10 percent from that date for recurrent subluxation of the right knee have not been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. § 4.71a, DC 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1980 to January 1994. The Board is satisfied that there has been substantial compliance with the April 2020 remand directives and will proceed with review. Stegall v. West, 11 Vet. App. 268 (1998). INCREASED RATINGS Ratings for service-connected disabilities are determined by comparing the veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two 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. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 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 upon 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 innervations, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the 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. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40. Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss in light of 38 C.F.R. § 4.40, taking into account any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions regarding the avoidance of pyramiding do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare ups. However, those provisions should only be considered in conjunction with the diagnostic codes predicated on limitation of motion. 38 C.F.R. § 4.14, 4.40, 4.45; Johnson v. Brown, 9 Vet. App. 7 (1996). 1. Entitlement to a compensable rating prior to September 2, 2020 and a rating in excess of 10 percent from that date for degenerative joint disease of the left knee. 2. Entitlement to a rating greater than 10 percent for degenerative joint disease of the right knee. 3. Entitlement to a rating greater than 10 percent for lateral instability of the left knee. 4. Entitlement to a compensable rating prior to September 9, 2020 and in excess of 10 percent from that date for recurrent subluxation of the right knee After the prior remand, the AOJ granted separate 10 percent ratings for left knee limitation of flexion (effective September 2, 2020) and right knee instability (effective September 9, 2020). See September 2020 and October 2020 rating decisions. Those ratings are part of the increased rating claims for the knee and are before the Board, for the entire appeal period. During the pendency of the appeal, the criteria for rating musculoskeletal disabilities were changed, effective on February 7, 2021. 85 Fed. Reg. 76,453 (November 30, 2020). The amendments provide that the Board should apply the criteria which are more favorable to the Veteran. 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 VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The February 2021 changes to the rating criteria for the knee pertain to Diagnostic Code (DC) 5257 (instability) and DC 5262 (impairment of the tibia and fibula). The rest of the rating criteria for the knee are unchanged. DC 5262 is not relevant to this appeal Separate ratings may be assigned for limitation of flexion and limitation of extension and instability of the same knee. VAOPGCPREC 9-04 (Sept. 17, 2004), 69 Fed. Reg. 59990 (2005); 38 C.F.R. § 4.14; VAOPGCPREC 23-97 (July 1, 1997), 62 Fed. Reg. 63604 (1997); Esteban v. Brown, 6 Vet. App. 259 (1994). For VA compensation purposes, normal flexion of the knee is to 140 degrees, and normal extension is to zero degrees. 38 C.F.R. § 4.71a, Plate II. Under DC 5260, a noncompensable rating is warranted for flexion limited to 60 degrees; 10 percent, flexion limited to 45 degrees; 20 percent, flexion limited to 30 degrees, and; 30 percent, flexion limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. Under DC 5261, a noncompensable rating is warranted for extension limited to 5 degrees;10 percent, limitation of extension to 10 degrees. A rating of 20 percent is warranted for extension to 15 degrees; 30 percent, extension to 20 degrees; 40 percent to 30 degrees, and; 50 percent, extension to 45 degrees. 38 C.F.R. § 4.74a, DC 5261. Under the older version of DC 5257, a 10 percent rating is available for slight recurrent subluxation or lateral instability. A 20 percent rating is assigned for moderate recurrent subluxation or lateral instability. A 30 percent rating is assigned for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, DC 5257. Under the revised version of DC 5257, for recurrent subluxation or lateral 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. A 20 percent rating is assigned for one of the following: (a) 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; (b) 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 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. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2021). In cases of patellar instability, a 30 percent rating is warranted for 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 warranted 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, cane, or walker. A 10 percent rating is warranted 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. Under Note (1): For patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Per 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). 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2021). Under DC 5259, symptomatic removal of the semilunar cartilage warrants a 10 percent rating. 38 C.F.R. § 4.71a. The Veteran's knee disabilities are each evaluated under multiple diagnostic codes. The left knee is rated as 10 percent disabling for subluxation, under DC 5257 for the entire appeal period and a 10 percent rating under DC 5260 for limitation of flexion, from September 2, 2020. See September 2020 rating decision. The right knee is rated as 10 percent disabling under DC 5260 for limitation of flexion for the entire appeal period and 10 percent disabling under DC 5257 for subluxation from September 9, 2020. See October 2020 rating decision. The Veteran was given a VA examination in December 2013. During that examination, the Veteran reported that his left knees aches with extended sitting. During flare-ups, the Veteran reported pain in his knees bilaterally. He also described a locking sensation in the left knee that occurred 20 to 30 times per day. Initial range of motion (ROM) for the left knee was 0 to 135 degrees flexion and 0 degrees extension. The right knee was also 0 to 135 degrees flexion and 0 degrees extension. There was no instability in either knee on objective testing. The Veteran did have a meniscectomy to his left leg and the residuals were pain and arthritis. The examiner opined that the Veterans right and left knee disabilities had the functional impact of causing pain while climbing up and down stairs. The Veteran was given a VA examination in July 2017. The examiner confirmed the Veteran's diagnoses of left knee meniscal tear and right knee osteoarthritis and degenerative joint disease. The Veteran reported that he has bilateral knee pain with instability, swelling, crepitus (left more than right). During flare-ups the Veteran reported increased pain and instability with ascending stairs, sitting more than 30 minutes, standing more than 15 minutes, and walking more than 15 minutes. He is unable to squat or bend at knees due to pain. Initial ROM for the left knee was 0 to 120 degrees flexion and 0 degrees extension. The right knee was also 0 to 140 degrees flexion and 0 degrees extension. The examiner noted pain with flexion during ROM testing of the left knee. Repetitive testing was not performed. Joint stability testing was normal bilaterally. There was no ankylosis, patellar subluxation or tibial/fibular impairment. The Veteran did have a meniscectomy to his left leg with frequent episodes of joint locking, joint pain and joint effusion. The examiner noted that the Veteran uses a cane for left knee meniscal tear/residuals of meniscectomy. The examiner opined that the Veterans right and left knee disabilities had the functional impact of difficulty sitting long periods of time due to pain while working as a monitor technician in a hospital setting. In February 2020, the Veteran testified at a Board hearing. The Veteran stated that he had residuals from the meniscectomy, to include instability, and painful motion. He also stated his left knee was worse than his right. He does not wear a brace because if he leaves his leg in one position too long it starts aching. The Veteran further testified that he works in a hospital as clerk and is on his feet a lot but can also sit as needed. The Veteran's also experiences right knee pain, instability and flare-ups. Pursuant to the Board's April 2020 remand, the Veteran was given three VA examinations in September 2020 (September 2, September 9, and September 30). During the VA examinations, the examiner confirmed the Veteran's diagnoses of left knee meniscal tear cruciate ligament tear and degenerative arthritis. The right knee was diagnosed with tendonitis/tendinosis. The Veteran reported that that he has "chronic nightly pain in both knees, swelling with increased physical activity, catching & locking up four to five times weekly." The Veteran also reported that his left knee "easily hyperextends." During flare-ups the Veteran reported flare-ups of the right knee occur three to four times weekly. The right knee flare-ups are moderate and last all night. His flare-ups are precipitated by increased physical activity and are alleviated by medication, rest, stretching, heat, ice. Flare-ups of the left knee occur five to six times weekly. The left knee flare-ups are severe and last one day. The left knee flare-ups are precipitated by increased physical activity and are alleviated by medication, rest, stretching, heat, ice. Initial ROM for the left knee was 0 to 80 degrees flexion and 0 degrees extension. The right knee was also 0 to 95 degrees flexion and 0 degrees extension. The ROM after repetitive use testing for the left and right knee were the same. The examiner was able to estimate ROM measurements the Veteran experiences during flare-ups for the left knee as 0 to 40 degrees flexion and 0 degrees extension. The right knee was also 0 to 70 degrees flexion and 0 degrees extension. The examiner also found slight bilateral subluxation/lateral instability of both knees during joint stability testing. There was no ankylosis, patellar dislocation or tibial/fibular impairment. The left knee had frequent episodes of joint locking, joint pain and joint effusion. The Veteran used orthotics, but no other assistive devices were used. The examiner opined that the Veterans right and left knee disabilities had the functional impact of experiencing pain the entire next day after being physically active, pain after standing or walking after one hour. He is also unable to climb up or down stairs or bend or squat. The Veteran reported that he lost his current job due to his knee, ankle and foot pain. An addendum VA examination was obtained in September 2020. The examiner updated the Veteran's diagnoses as left knee tendonitis/tendinosis, meniscal tear and anterior cruciate ligament tear with degenerative arthritis. The examiner also diagnosed the Veteran with bilateral knee subluxation. The ROM measurements, report of functional impact and symptoms experienced during flare-ups all remained the same as the previous September 2020 VA examination. Left knee The left knee disability is rated as 10 percent for instability from August 2013, and 10 percent for limitation of flexion from September 2020. The Board finds that a separate 10 percent rating is warranted for limitation of flexion beginning August 30, 2013, the date the Veteran filed his claim for increased ratings. See 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). The December 2013 VA examiner noted the Veteran's report that he experienced painful motion to his left knee during flare-ups. The criteria for a 20 percent rating for limitation of flexion are not met or approximated at any time during the appeal period. At no time was flexion limited to 30 degrees. At worst, flexion was to 40 degrees during flare-ups as noted on the September 2020 VA examination. The criteria for a separate compensable rating for limitation of extension are not met at any time during the appeal period. VA examinations of record show extension to 0. The examinations show that that the Veteran's painful motion is associated with flexion movements, such as climbing stairs or sitting for long periods. The 10 percent rating for instability under DC 5257 is characterized as related to "left knee medical meniscus tear, post-operative." DC 5259 provides for the assignment of a maximum 10 percent rating based on symptomatic removal of the semilunar cartilage. That code was not affected by the new revisions. The Board finds that a separate rating is not warranted under DC 5259 for any period on appeal as assigning a rating under DC 5259 would constitute pyramiding. 38 C.F.R. § 4.14. The December 2013 VA examiner noted the history of meniscectomy and the Veteran's reports of pain and frequent locking, but the examiner specifically characterized the residuals of the meniscectomy as pain and arthritis. The separate 10 percent rating assigned in this decision under DC 5260 for limitation of flexion from August 2013 compensates the Veteran for pain. The criteria for a 20 percent rating under DC 5257, as in effect, prior to February 2021 are not met during any period on appeal. There was no objective evidence of instability on the December 2013 and July 2017 examinations. The September 2020 examination showed anterior instability to 1+; all other stability testing was normal. The preponderance of the evidence is against finding of moderate instability. Consideration of the changes to DC 5257 effective February 2021 would not result in a higher rating; the earlier version is more favorable to the Veteran. That version does not require objective evidence to assign a rating for instability. English v. Wilkie, 30 Vet. App. 347 (2018). In summary, the Board finds that a separate 10 percent rating, but no higher, is warranted for limitation of flexion from August 2013, but the preponderance of the evidence is against a rating in excess of 10 percent for instability at any point during the appeal period. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Right knee The right knee disability is rated as 10 percent for instability from September 2020, and 10 percent for limitation of flexion from August 2013. The criteria for an increased 20 percent rating for limitation of flexion are not met at any time during the appeal period. There are no findings showing flexion limited to 30 degrees. At worst, flexion was to 70 degrees during flare-ups. See September 2020 VA examination. The criteria for a separate compensable rating for limitation of extension are not met at any time during the appeal period. VA examinations of record show extension to 0 degrees and that painful motion is associated with flexion movements, such as climbing stairs or sitting for long periods. The criteria for a compensable rating for instability under DC 5257 are not met for the period before September 2020. The December 2013 and July 2017 VA examinations included normal findings on objective testing and no related complaints from the Veteran. Treatment records do not show any complaints of instability. The criteria for a rating in excess of 10 percent, under the old rating criteria, are not met after September 2020 as there is no evidence of moderate instability on objective testing. Consideration of the revised version of 5257 is not warranted because the prior version is more favorable; that version does not require objective evidence to assign a rating for instability. English, 30 Vet. App. at 347. In summary, the Board finds that the preponderance of competent and probative evidence is against a rating in excess of 10 percent for limitation of flexion and against the claim for a rating in excess of 10 percent for instability for the period after September 2020. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 49. Thus, the benefit of the doubt doctrine is not for application. The Board acknowledges the Veteran's statements pertaining to the symptoms he experiences with his right and left knee disabilities. The Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran's disabilities has been provided by the medical personnel who have examined him or his medical records during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and the clinical records) directly address the criteria under which this disability is evaluated. As such, the Board finds these records to be more probative than the Veteran's subjective observations. M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. G. Perkins, 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.