Citation Nr: 21031785 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 15-06 578A DATE: May 24, 2021 ORDER Entitlement to an initial evaluation in excess of 10 percent for left knee degenerative arthritis with limitation of flexion is denied. Entitlement to an initial evaluation in excess of 10 percent for left knee instability is denied. FINDINGS OF FACT 1. Throughout the entire appeal period, the Veteran's service-connected left knee degenerative arthritis was manifested by no worse than flexion to 40 degrees and extension to zero degrees; there was no evidence of flexion limited to 30 degrees. 2. Throughout the entire appeal period, the Veteran's service-connected left knee instability was manifested by no worse than slight lateral instability; from February 7, 2021 there was no evidence of recurrent subluxation or instability with a sprain following incomplete ligament tear, or repaired 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; 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; or 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. CONCLUSIONS OF LAW 1. Throughout the entire appeal period, the criteria for an initial evaluation in excess of 10 percent for the service-connected left knee degenerative arthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260. 2. The criteria for entitlement to an initial evaluation in excess of 10 percent for left knee instability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from December 1983 to July 2004. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office. This case was previously remanded by the Board in June 2018 and August 2019. The case has since been returned to the Board for appellate review. During the pendency of this appeal, in a December 2020 rating decision, the RO granted entitlement to service connection for left knee instability associated with left knee degenerative arthritis with an evaluation of 10 percent, effective November 23, 2020. However, as this does not constitute a maximum grant of the benefit sought on appeal, the Board has jurisdiction to decide the claim. AB v. Brown, 6 Vet. App. 35, 39 (1993). Additionally, during the pendency of this appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. See 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran's claim for left knee instability under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, the diagnostic code under which the Veteran's left knee degenerative arthritis is currently rated, Diagnostic Code 5260, was not changed. Left Knee Increased Rating Claims Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability; resolving any reasonable doubt regarding the degree of disability in favor of the claimant; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity. See 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.10; see also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. 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 inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 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 innervation, or other pathology, or 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 which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). 1. Entitlement to an initial evaluation in excess of 10 percent for left knee degenerative arthritis with limitation of flexion 2. Entitlement to an initial evaluation in excess of 10 percent for left knee instability Service connection was originally granted for left knee, patellofemoral syndrome in a September 2004 rating decision, which assigned an evaluation of 10 percent effective August 1, 2004, under Diagnostic Code 5262-5010. The March 2013 rating decision, which is the subject of the appeal, recategorized the Veteran's disability as left knee arthritis, but continued the 10 percent rating. Although the August 2017 rating decision updated the diagnostic code the disability was rated under from Diagnostic Code 5262-5010 to Diagnostic Code 5260, effective February 4, 2017, it continued the 10 percent rating. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the assigned rating; the additional code is shown after the hyphen. For example, regarding the diagnostic codes for the left knee arthritis due to trauma, the first four digits, 5262, represent the diagnostic code used to rate impairment of the tibia and fibula. The second four digits after the hyphen, 5010, represent the diagnostic code used to rate arthritis due to trauma. Diagnostic Code 5010 for arthritis due to trauma and its combinations with codes 5262, requires that it be substantiated by x-ray findings and further rated on the basis of impairment of the tibia and fibula. When impairment of the tibia and fibula is noncompensable under Diagnostic Code 5262, a rating of 10 percent is for application for each major joint or group of minor joints affected by limitation of motion from degenerative arthritis, to be combined, not added. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasms, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent rating is warranted for x-ray evidence of involvement of two or more major or minor joints groups. A 20 percent evaluation is warranted for x-ray evidence of involvement of two or more major or minor joints, with occasional incapacitating exacerbations. Painful motion of a major joint caused by arthritis is deemed to be limited motion and entitled to a minimum 10 percent rating, per joint, even though there is no actual limitation of motion. Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991); see also 38 C.F.R. § 4.59. Limitation of motion of knee joint is rated under Diagnostic Code 5260 for flexion, and Diagnostic Code 5261 for extension. 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. Under Diagnostic Code 5260, flexion that is limited to 60 degrees warrants a 0 percent rating; flexion that is limited to 45 degrees warrants a 10 percent rating; flexion that is limited to 30 degrees warrants a 20 percent rating; and flexion that is limited to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5261, extension that is limited to 5 degrees warrants a 0 percent rating; extension that is limited to 10 degrees warrants a 10 percent rating; and extension that is limited to 15 degrees warrants a 20 percent rating; extension that is limited to 20 degrees warrants a 30 percent rating; extension that is limited to 30 degrees warrants a 40 percent rating; and extension that is limited to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Normal flexion of the knee is 140 degrees and normal extension of the knee is zero degrees. 38 C.F.R. § 4.71a, Plate II. Separate evaluations may be assigned for compensable limitation of flexion and extension of the same joint. See VAOPGCPREC 09-2004 (September 17, 2004). In a December 2020 rating decision, service connection was granted for left knee instability with an evaluation of 10 percent, effective from November 23, 2020 pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5257. Under Diagnostic Code 5257 for other impairments of the knee, a 10 percent rating applies if there is slight recurrent subluxation or lateral instability, a 20 percent rating applies if there is moderate recurrent subluxation or lateral instability, and a 30 percent rating applies if there is severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The Board observes that the words "slight," "moderate," and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Pursuant to the amendments made to the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a which were effective beginning February 7, 2021, under Diagnostic Code 5257 for other impairments of the knee, when the impairment involves recurrent subluxation or instability, a 10 percent rating applies if there is a sprain, incomplete tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, with 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 applies if there is one of the following: a) sprain following incomplete ligament tear, or repaired 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; or 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 30 percent rating applies if there is 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. When the impairment involves patellar instability, a 10 percent rating applies 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 applies 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 applies 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 walker. Note (1) to the amended Diagnostic Code 5257 provides that for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note (2) to the amended Diagnostic Code 5257 provides that 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). Under Diagnostic Code 5258, a 20 percent evaluation can be assigned for cartilage, semilunar, dislocated, with frequent episodes of "locking," pain, and effusion into the joint. 38 C.F.R. § 4.71a, Diagnostic Code 5258. Under Diagnostic Code 5259, symptomatic removal of semilunar cartilage warrants a maximum rating of 10 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5259. Evaluations for knee impairment can also be assigned due to ankylosis or genu recurvatum, but as the Veteran has not at any time been found to have ankylosis of the knee or genu recurvatum, these diagnostic codes are not applicable and will not be further discussed. See 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5263. The Veteran submitted a private disability questionnaire for his service-connected left knee arthritis in January 2016. The private examiner diagnosed the Veteran with osteoarthritis in both knees. The Veteran reported severe persistent pain in both knees and impaired function with prolonged walking. Although the examiner did not report the exact range of motion for either knee, he did note that the Veteran had limited range of motion in both knees. Upon repetitive use testing, both knees had swelling. Pain was worsened by weight-bearing. The examiner also noted tenderness of both knees. The examiner noted the following as contributing factors of disabilities for the Veteran's knees: less movement than normal, weakened movement, disturbance of locomotion, interference with standing, pain with walking, and pain with standing. Muscle strength was reported as normal. It was noted that the Veteran did not have muscle atrophy, ankylosis, or joint instability or dislocation in either knee. The examiner also noted that the Veteran did not use any assistive devices as a normal mode of locomotion. The examiner reported crepitus in both knees and found that the Veteran had decreased ability to ambulate and bear weight during the day from both knees. The Veteran was afforded a VA knee and lower leg conditions examination in March 2017. He reported that he had undergone left knee arthroscopic surgery for torn ligaments in August 2016. The VA examiner noted that she had reviewed the surgery records in VBMS prior to the examination, but that she also reviewed the copy of the left knee surgery report that the Veteran had brought with him. The Veteran reported that it was difficult for him to sit down for extended periods of time. He explained that he needs to stand up every 20-30 minutes or so. Similarly, he stated that he can only stand for 20-30 minutes at a time before needing to sit. He reported that he was prescribed a left knee brace by his private orthopedic physician and that he wears said brace every day. The examiner listed an excerpt from the August 2016 left knee surgery report in the March 2017 examination report. The preoperative diagnosis was left medial and lateral meniscus tears, left patellar chondrosis. The postoperative diagnosis was moderate left knee arthrosis, left medial and lateral meniscus tears, left patellofemoral chondrosis, loose body left knee. The procedure performed was arthroscopic loose body removal of the left knee, arthroscopic left partial lateral meniscectomy, arthroscopic left patellar chondroplasty, and arthroscopic left femoral trochlear chondroplasty. Upon examination, range of motion testing revealed left knee flexion to 105 degrees and extension to zero degrees with evidence of pain on flexion, which the March 2017 examiner noted contributed to functional loss. The examiner reported that there was evidence of pain with weight bearing and objective evidence of crepitus. The Veteran was able to perform repetitive-use testing with three repetitions without additional limitation in range of motion following repetitive-use testing. Muscle strength testing was 5/5 for left knee flexion and extension. There was no evidence of muscle atrophy or ankylosis of the left knee. There was no history of recurrent subluxation or recurrent effusion. Left knee joint stability tests were not performed because the Veteran had left knee arthroscopic surgery for a ligament tear a few months prior to this examination. The examiner reported that the Veteran did not have and/or had never had recurrent patellar dislocation, stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment aside from shin splints. The examiner noted that the Veteran had a meniscal tear in his left knee. She reported that in August 2016 the Veteran had an arthroscopic surgery to remove a loose body from the left knee, an arthroscopic left partial meniscectomy, arthroscopic left patellar chondroplasty, and arthroscopic left femoral trochlear chondroplasty. The Veteran reported that he constantly used a brace as an assistive device on his left knee for pain and stability. The examiner noted that that the Veteran wore his knee brace at the time of the exam and that he had a slightly antalgic gait. The Veteran was next afforded a VA knee and lower legs conditions examination in November 2020. The diagnosis listed was degenerative arthritis of the left knee. The Veteran reported constant pain, loss of stability, inability to bear steady weight, stiffness, and a burning sensation. He also reported limited mobility with constant pain. Upon examination, range of motion testing revealed left knee flexion to 40 degrees and extension to zero degrees with evidence of pain on flexion and extension, but the examiner reported that the range of motion did not contribute to functional loss while pain did. The examiner reported there was evidence of pain on weight-bearing, and objective evidence of severe pain located throughout the entire knee which resulted in limited movement. The examiner also found objective evidence of crepitus. The Veteran was able to perform repetitive-use testing with three repetitions without additional limitation in range of motion following repetitive-use testing. The examiner noted that swelling, instability of station, disturbance of locomotion, interference with sitting, and interference with standing were additional factors that contributed to the Veteran's left knee disability. Muscle strength testing was 4/5 for left knee flexion and extension. There was no evidence of muscle atrophy or ankylosis of the left knee. Although there was no history of recurrent subluxation and recurrent effusion, there was a history of slight lateral instability. Joint instability testing revealed 1+ (0-5 millimeters) for anterior, posterior, medial, and lateral instability. The examiner reported that the Veteran did not have and/or had never had recurrent patellar dislocation, stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment aside from shin splints. The examiner noted that the Veteran did not have and has never had a meniscus (semilunar cartilage) condition. He also noted that the Veteran had a meniscectomy in August 2016. The Veteran reported that he constantly used a brace as an assistive device on his left knee for joint stability when ambulating. The examiner stated that the Veteran is unable to walk on uneven surfaces, unable to walk more than 25 feet, unable to sit for more than 10 minutes, and unable to execute skilled movement without having severe pain and having to constantly move due to said pain. A post-service VA medical record shows that the Veteran had an appointment with the VA clinic in September 2017 to obtain a referral to an orthopedist in order to get a brace for his left knee. He reported that his left knee felt unstable and that it gave out on his sometimes. He further reported that the knee did not lock and that these symptoms had not caused him to fall. Upon examination of the left knee, the clinician noted mild swelling, mild tenderness over medial superior aspect, and mildly decreased flexion, but found no instability. Although the Veteran reported during his March 2017 VA examination that he had been prescribed a knee brace to wear daily on his left knee by his private orthopedic physician, he has not submitted any private medical records from that orthopedic physician or any other private physician or orthopedist that he has seen to treat his left knee conditions. Moreover, subsequent development letters dated February 2019 and December 2020 were sent to the Veteran requesting that he complete and return the enclosed VA Form 21-4142, Authorization to Disclose Information to the Department of Veterans Affairs (VA), and VA Form 21-4142a, General Release for Medical Provider Information to the Department of Veterans Affairs (VA), so that VA could obtain treatment records from the Veteran's private providers on his behalf. The Veteran did not respond to either request. Upon review of the record, the Board finds that a rating in excess of 10 percent is not warranted for left knee degenerative arthritis. Even considering his complaints of pain and other symptoms described in DeLuca, neither flexion limited to 30 degrees or less, nor extension limited to 15 degrees, has been shown such that a higher rating would be warranted under either Diagnostic Code 5260 or 5261. There was no additional limitation of motion upon repetition. Thus, a higher rating under Diagnostic Code 5260 and/or 5261 for limitation of motion is not warranted for the left knee. See 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. The Board also finds that the criteria for an evaluation in excess of 10 percent for left knee instability have not been met. In this regard, the evidence shows that as of the November 23, 2020 VA knee and lower legs conditions VA examination, joint instability testing revealed 1+ (0-5 millimeters) for anterior, posterior, medial, and lateral instability. A higher rating is not warranted as there is no evidence of moderate instability. See 38 C.F.R. § 4.71a, Diagnostic Code 5257. Although the evidence of record shows that the Veteran constantly used a brace on his left knee for ambulation assistance, there is no evidence of record to show that this brace was prescribed by a medical provider. Accordingly, a higher rating is not warranted under the provisions of the amended Diagnostic Code 5257 from February 7, 2021 forward because there is no evidence that the Veteran's recurrent instability after surgical repair required a prescription for a brace, cane, or walker; or evidence of an unrepaired or failed repair of complete ligament tear causing instability, and a prescription of either an assistive device (e.g. cane(s), crutch(es), walker) or bracing for ambulation. See 85 Fed. Reg. 230 (Nov. 30, 2020); 38 C.F.R. § 4.71a, Diagnostic Code 5257. The Board has considered whether higher or separate ratings under Diagnostic Codes 5256, 5262, 5258, 5259 and 5263 would be warranted. However, throughout the entire appeal period there is no medical evidence of record that shows ankylosis, malunion or nonunion of the tibia and fibula, dislocated semilunar cartilage, or genu recurvatum. In summary, the preponderance of the competent, credible, and probative evidence is against assigning ratings in excess of 10 percent for the Veteran's left knee degenerative arthritis, as well as the Veteran's left knee instability. Accordingly, the appeal is denied. B. G. LeMoine Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Fairlie, 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.