Citation Nr: 21031761 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 14-04 162 DATE: May 24, 2021 ORDER Entitlement a rating in excess of 10 percent for right knee recurrent subluxation is denied. Entitlement to a rating in excess of 20 percent for left knee recurrent subluxation prior to October 29, 2019 is denied. FINDINGS OF FACT 1. The Veteran's right knee disability is productive of no more than slight instability and subluxation. 2. The Veteran's left knee disability was productive of no more than moderate instability and subluxation prior to October 29, 2019. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for right knee recurrent subluxation have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. 2. The criteria for a rating in excess of 20 percent for left knee recurrent subluxation have not been met prior to October 29, 2019. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from November 1980 to March 1998. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). In April 2017, the Veteran presented testimony at a video conference hearing before the undersigned Veterans Law Judge. A transcript of this hearing is of record. This case was most recently before the Board in January 2021, when, the Board, in pertinent part, remanded entitlement a rating in excess of 10 percent for right knee recurrent subluxation and entitlement to a rating in excess of 20 percent for left knee recurrent subluxation prior to October 29, 2019, for consideration of additional evidence by the Agency of Original Jurisdiction (AOJ). As the nature and history of the Veteran's knee claims was recounted by the Board in January 2021, for the sake of economy, this will not be repeated herein, other than to note that these issues now return for appellate review. The Veteran's right knee recurrent subluxation and left knee recurrent subluxation, at issue in this appeal, are each rated under 38 C.F.R. § 4.71a, Diagnostic Code 5257. VA amended the criteria for rating musculoskeletal system and muscle disabilities effective from February 7, 2021. These new regulations apply to all applications for benefits received by VA or that are pending before the AOJ 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 may not 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. Prior to February 7, 2021, under Diagnostic Code 5257, a 10 percent rating is warranted for slight recurrent subluxation or lateral instability. A 20 percent rating is warranted for moderate recurrent subluxation or lateral instability. A 30 percent rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. A May 2020 JMPR noted the Board should explain how it interpreted the terms slight, moderate, and/or severe related to Veteran's bilateral knee instability and recurrent subluxation as contemplated by Diagnostic Code 5257. Thus, according to MERRIAM WEBSTER'S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), "slight" means small in amount. "Moderate" means limited in scope or effect. "Severe" means very painful or harmful or of a great degree. Effective February 7, 2021, Diagnostic Code 5257 provides ratings for both recurrent subluxation or instability of the knee and for patellar instability. As it pertains to recurrent subluxation or instability of the knee, Diagnostic Code 5257 provides a 10 percent rating 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. A 20 percent rating is warranted for either (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device, or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device or bracing for ambulation. A 30 percent rating is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device and bracing for ambulation. As it pertains to patellar instability of the knee, Diagnostic Code 5257 provides a 10 percent rating 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. 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 one of the following: A brace, cane, or walker. 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. Objective medical evidence is not required to establish lateral knee instability under Diagnostic Code 5257, so objective medical evidence cannot be categorically found more probative than lay evidence with respect to this Diagnostic Code. See English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). 1. Entitlement a rating in excess of 10 percent for right knee recurrent subluxation 2. Entitlement to a rating in excess of 20 percent for left knee recurrent subluxation prior to October 29, 2019 The Veteran contends that he is entitled to a higher ratings for right knee recurrent subluxation and left knee subluxation. Specifically, in a December 22, 2008 informal claim for increase, the Veteran reported he had bought several knee braces which he used as needed, and he also reported VA would be prescribing a full brace. In a February 2009 statement, the Veteran reported, in part, that both his knees, but predominantly the right knee, had been giving out while walking and that his knee gave out over 10 times per day. In an August 2011 statement, the Veteran generally described he had had a fall on the stairs when his knee gave way. In a February 2014 VA Form 9, substantive appeal, the Veteran reported he was presently wearing rigid orthopedic knee braces to help stabilize his knees and reduce the amount of pain and discomfort. In April 2017 testimony, the Veteran also reported he used knee braces bilaterally. In an April 2019 statement, the Veteran reported, in part, that instability in his knees caused them to buckle and give way when walking. He also generally indicated the buckling and giving way occurred every time he walked, sometimes immediately from a seated position, and most times after a short walk, and these events occurred multiple times per walking session, which resulting in over a hundred times in a given day. In a February 2021 statement, the Veteran reported he had severe instability in his knees and they buckled and dislocated/gave out every time he walked a short distance or stood for a short duration. A January 2021 Board decision explained the September 2019 Board decision granted a 10 percent rating for the Veteran's right knee recurrent subluxation effective from December 22, 2008 and a 20 percent rating for his left knee recurrent subluxation effective from December 22, 2008. These awards were effectuated in a January 2021 rating decision. Accordingly, the appeal period for consideration for the Veteran's right and left knee recurrent subluxation is from December 22, 2008. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for the Veteran's right knee recurrent subluxation and a rating in excess of 20 percent for left knee recurrent subluxation prior to October 29, 2019. Turning to the VA examination reports of record, a February 2009 VA examiner documented the Veteran stated that he continued to have some symptoms of pain and the knees giving out on a daily basis, with his right knee worse than the left knee. The February 2009 VA examiner documented the Veteran reported his right knee gave out as he walked or stood but that he had never fallen. The February 2009 VA examiner documented the Veteran did not have mechanical wobbliness or mechanical locking. The February 2009 VA examiner also found no ligamentous laxity was noted on medial or lateral stress testing for either knee. The February 2009 VA examiner also found anterior and posterior drawer sign testing, Lachman testing, and McMurry testing, were negative for each knee. The February 2009 VA examiner documented the Veteran reported his knee tended to give out under him; however, the examiner reiterated there was no mechanical wobbliness and no ligamentous laxity noted by clinical examination, thus, the examiner found the Veteran's report of his knee giving out must be due to pain. Thereafter, a July 2018 VA examiner documented, in part, the Veteran had flare-ups of the right knee, specifically when the Veteran transitioned from a seated position to the walking/standing position, his right knee gave way and created a popping effect. The July 2018 VA examiner documented, in part, the flare-ups of the Veteran's left knee could be described as the same pain as in the right, where the pain was elevated when moving from the sitting position to the standing position. The July 2018 VA examiner documented the Veteran reported he had sharp pain that radiated from his shoulder down to his knee, causing pain and the knee to feel unstable and that his symptoms on left side were greater than right side. The July 2018 VA examiner also documented, in part, the Veteran reported his knees felt wobbly or unstable and had a throbbing sensation or pain throughout. However, the July 2018 VA examiner documented bilateral knee testing for anterior instability (tested via the Lachman test), testing for posterior instability (tested via the Posterior drawer test), testing for media instability (tested via valgus pressure to the knee in extension and with 30 degrees of flexion) and testing for lateral instability (tested via the varus pressure to the knee in extension and with 30 degrees of flexion) were normal. Nonetheless, the July 2018 VA examiner found the Veteran had a history of a recurrent subluxation charactered as slight for the right knee and moderate for the left knee. The July 2018 VA examiner also found no history of lateral instability for either knee. Most recently, a January 2020 VA examiner also found, as to the Veteran's right knee, he did not have a history of recurrent subluxation or a history of lateral instability, or current recurrent patellar dislocation. The January 2020 VA examiner also documented right knee testing for anterior instability (tested via the Lachman test), testing for posterior instability (tested via the Posterior drawer test), testing for media instability (tested via valgus pressure to the knee in extension and with 30 degrees of flexion) and testing for lateral instability (tested via the varus pressure to the knee in extension and with 30 degrees of flexion) were normal. The Veteran's medical records also documented complaints of bilateral knee instability. For example, an April 2009 VA treatment record documented, in part, the Veteran reported a sensation of buckling in both knees prior to heel strike. A July 2011 private medical record documented, in part, the Veteran reported his left knee hurt more than the right knee and he complained when he was walking his knee buckled but he did not fall to the ground. A December 2011 VA treatment record also documented, as to the Veteran's bilaterally knee, McMurray's testing and Apley's grind test were positive and Lachman's drawer testing was negative. A March 2012 VA treatment record documented anterior drawer, posterior drawer, and Lachman's testing were negative, McMurray's testing was positive bilaterally. and valgus and varus stress testing demonstrated no laxity. An August 2012 VA treatment record documented the Veteran's left side knee pain was worse than the right, and historically, his knee had progressively gotten worse and had been giving out when he walked. A December 2017 VA treatment record noted the Veteran reported, in part, that both knees popped, felt stiff and weak, and had a tendency to give way. The December 2017 VA treatment record also noted the Veteran limped, used a cane constantly, and was able to walk only about two blocks and reported stairs were "not good." However, the December 2017 VA treatment record also noted both knees were stable to varus and valgus stress in full extension, that in 30 degrees of flexion, there was 1+ valgus laxity without varus laxity on right, and 2+ varus laxity without valgus on left, that Lachman's testing was negative bilaterally, and that anterior and posterior drawer signs were also negative. Another December 2017 VA treatment record documented the Veteran was fitted for a left knee brace. A February 2018 VA treatment record documented the Veteran continued to report mild to severe pain affecting the bilateral knees, that he obtained unloader braces, but he had been using them irregularly and continued to use a cane. The February 2018 VA treatment record also documented the Veteran denied any new instability or mechanical symptoms. The February 2018 VA treatment record also documented upon examination, the Veteran's knees were stable to varus and valgus stress at zero, 30, and 90 degrees, he had negative anterior and posterior drawers and negative McMurray and Apley testing. An October 28, 2019 private medical record noted, in part, as to the Veteran's left knee, he had tried at least two knee braces with some relief and his knee could buckle going down stairs, and that he had he had fallen once before. The October 28, 2019 private medical record documented the Veteran's left knee was stable to varus and valgus stress testing, had a negative Lachman sign and a negative lateral pivot shift. The Board has carefully considered the Veteran's reports about subluxation and instability of each knee. English, 30 Vet. App. 347, 352-53. However, given the evidence outlined above, the lay and medical evidence indicates that the Veteran's symptoms of subluxation and instability of the right knee and left knee have varied and do not suggest the presence of symptoms more nearly approximating moderate severity for the right knee or symptoms more nearly approximating severe severity for the left knee under the pre-amendment version Diagnostic Code 5257. As discussed above, in an April 2019 statement, the Veteran generally indicated the buckling and giving way of his knees occurred every time he walked, which resulting in over a hundred times in a given day. However, all VA examinations found no evidence of instability on physical examination. Further, during the pendency of these claims, only a few medical records documented positive instability testing of the Veteran's knees. The May 2020 JMPR found the Board erred in denying increased ratings because there was no objective documentation of recurrent subluxation or lateral instability of the Veteran's knees. English, 30 Vet. App. 347, 352-53. However, the Veteran has reported varying frequency of subluxation and instability of each knee. In this regard, a February 2009 VA treatment record documented, in part, as to the Veteran's knees, he reported occasional buckling. A January 2010 VA treatment record documented, in part, the Veteran reported his legs gave out 10 to 12 times per day but also noted the Veteran declined braces. An August 2010 VA treatment record documented, in part, that the Veteran reported his knees buckled periodically and caused him to fall. A June 2013 VA treatment record documented, in part, the Veteran reported his knee gave out at times. A May 2017 VA treatment record noted knee pain with acute on chronic pain and with new onset of instability. A June 2017 VA treatment record noted, in part, the Veteran reported left greater than right medial knee joint pain with pain ranging and left knee instability/buckling and bilateral knee locking. The June 2017 VA treatment record also documented the Veteran thought he may have fallen and twisted his knees again a few years ago, but his knee pains did not flare up until a few months and he may have stumbled a few weeks ago, but could not recall exactly. An August 2017 VA treatment record noted, in part, the Veteran reported increased incidences in pain and instability, specifically he had four to five incidences of hyperextension in left knee per hour with walking and has fallen twice since his last physical therapy appointment. A May 2019 VA treatment record documented the Veteran reported it felt like his knees will "go out" causing him to stumble at least 10 times in a half mile walk and if his knees have been painful and "giving out" a lot he has increased low back pain. Thus, throughout the appeal the Veteran has variously reported different degrees and frequency of knee instability. However, in particular, his reports of occasional buckling, that his knees buckled periodically, that his knee gave out at times, and new onset of instability, do not reflect higher ratings are warranted for either knee. Further, the Board acknowledges the Veteran's assertions that his right and left knee recurrent subluxation are more severe than evaluated. In this regard, in a February 2021 statement, the Veteran reported he had severe instability in his knees. However, the July 2018 VA examiner, who provided the most severe characterization of the Veteran's right and left knee recurrent subluxation, documented instability testing was normal as to each knee under the pre-amendment version Diagnostic Code 5257. Nonetheless, the July 2018 VA examiner found the Veteran had a history of a recurrent subluxation characterized as slight for the right knee and moderate for the left knee, which seems to reflect consideration of the Veteran's subjective complains as objective examination testing was normal. Moreover, the Veteran has not been shown to have the requisite knowledge or training to be deemed competent to identify a specific level of disability related to the recurrent subluxation of his bilateral knee under the rating criteria. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Such competent evidence concerning the nature and extent of the Veteran's right and left knee recurrent subluxation has been provided by the VA examiners, including the July 2018 VA examiner, who objectively examined him. These medical findings directly address the criteria under which his right and left knee recurrent subluxation is evaluated. The Board finds this clinical evidence to be competent, objective, and probative evidence of record, and is therefore accorded greater weight than the Veteran's subjective complaints related to these disabilities, in particular as the July 2018 VA examiner provided the characterization of the Veteran's right and left knee recurrent subluxation based on the Veteran's subjective complaints. As it pertains to the rating period effective February 7, 2021 for the Veteran's right knee recurrent subluxation, the Board has considered the rating criteria under the revised Diagnostic Code 5257. In this case, the Board finds that a rating in excess of 10 percent for Veteran's right knee recurrent subluxation is not warranted as the Veteran had not been found to have a sprain, incomplete ligament tear, or complete ligament tear or a diagnosed condition involving the patellofemoral complex. As such, a rating in excess of 10 percent for the Veteran's right knee under the revised criteria for Diagnostic Code 5257 is not warranted for the appeal period beginning February 7, 2021. Also, while the Veteran is service-connected for other manifestations of his right and left knee disabilities under Diagnostic Codes other than Diagnostic Code 5257, as the May 2020 JMPR only found remand was warranted solely for the Veteran's bilateral knee recurrent subluxation as contemplated by Diagnostic Code 5257, this appeal is limited to these claims. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for a rating in excess of 10 percent for right knee recurrent subluxation and a rating in excess of 20 percent for left knee recurrent subluxation prior to October 29, 2019. In denying such ratings, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Espinoza, 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.