Citation Nr: 21031951 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 16-46 798 DATE: May 25, 2021 ORDER Entitlement to a disability rating in excess of 10 percent prior to December 5, 2019 and in excess of 20 percent thereafter for a service-connected right knee disability based on instability is denied. Entitlement to a disability rating in excess of 10 percent for a right knee disability based on degenerative changes and painful motion is denied. FINDINGS OF FACT 1. Prior to December 5, 2019, the Veteran's right knee instability did not result in moderate recurrent subluxation or lateral instability. 2. After December 5, 2019, the Veteran's right knee instability did not result in severe recurrent subluxation or lateral instability, nor did it result persistent instability, and a medical provider prescribing both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. 3. The Veteran's service-connected left knee disability is manifested by pain that results in a decrease in range of motion; however, it does not result in flexion limited to 16-30 degrees or extension limited to 11-15 degrees. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent prior to December 5, 2019, and in excess of 20 percent thereafter for right knee instability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5256-63. 2. The criteria for a disability rating in excess of 10 percent for a right knee disability based on limitation of motion have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5256-63. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1974 to November 1977. This matter was previously before the Board in December 2018, at which time it was remanded to the Department of Veterans Affairs (VA) Regional Office (RO) for further development. The Board finds that VA has substantially complied with the December 2018 Board remand. INCREASED RATING Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating Schedule is primarily a guide in the evaluation of a disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate Diagnostic Codes (DCs) identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct periods where the service- connected disability exhibits symptoms that would warrant different ratings). Where entitlement to compensation has already been established, as is the case here, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. A claim is denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Furthermore, any reasonable doubt regarding the degree of disability is resolved in favor of the claimant. 38 C.F.R. § 4.3. 1. Entitlement to a disability rating in excess of 10 percent prior to December 5, 2019 and in excess of 20 percent thereafter for a service-connected right knee disability based on instability 2. Entitlement to a disability rating in excess of 10 percent for a right knee disability based on limitation of motion The Veteran's right knee disability is rated as 10 percent disabling prior to December 5, 2019 and 20 percent disabling thereafter for right knee instability under Diagnostic Code 5257. The Veteran's right knee is also separately rated as 10 percent disabling based on painful motion of the knee under Diagnostic Code 5010. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 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. Under old 38 C.F.R. § 4.71a, Diagnostic Code 5010 traumatic arthritis is rated under Diagnostic Code 5003 as degenerative arthritis. Under new and old 38 C.F.R. § 4.71a, Diagnostic Code 5003 degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion. A rating of 20 percent is assigned for each such major joint or group of minor joints, with occasional incapacitating exacerbations, affected by limitation of motion. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a. Under 38 C.F.R. § 4.71a, Diagnostic Code 5256, ankylosis at a favorable angle in full extension or in slight flexion between 0 degrees and 10 degrees warrants a 30 percent rating; ankylosis with flexion between 10 degrees and 20 degrees warrants a 40 rating; ankylosis with flexion between 20 degrees and 45 degrees warrants a 50 rating; and extremely unfavorable ankylosis (flexion at an angle of 45 degrees or more) warrants a 60 percent rating. Under old 38 C.F.R. § 4.71a, Diagnostic Code 5257, slight recurrent subluxation or lateral instability will be rated as 10 percent disabling. Moderate recurrent subluxation or lateral instability will be rated as 20 percent disabling. And, severe recurrent subluxation or lateral instability warrants a 30 percent rating. The terms "mild," "moderate," "moderately severe" and "severe" are not defined in the Rating Schedule. 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. The use of terminology such as "mild" or "moderate" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Under new 38 C.F.R. § 4.71a, Diagnostic Code 5257, 10 percent rating is warranted 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 (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; 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 is warranted for severe 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. Id. In addition to the above, the amended rating criteria under Diagnostic Code 5257 also provides ratings specific to patellar instability, a diagnosed condition involving the patellofemoral complex with recurrent instability. A 10 percent rating is warranted for patellar 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 patellar 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 warranted for patellar instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. Id. For patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Id. at Note 1. Under 38 C.F.R. § 4.71a, Diagnostic Code 5258, dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint warrants a 20 percent rating. Under 38 C.F.R. § 4.71a, Diagnostic Code 5259, removal of the semilunar cartilage when symptomatic warrants a 10 percent rating. Under 38 C.F.R. § 4.71a, Diagnostic Code 5260, if flexion of the knee is limited to 45 degrees a 10 percent rating is in order. If flexion of the knee is limited to 30 degrees a 20 percent rating is in order. If flexion of the knee is limited to 15 degrees a 30 percent rating is in order. Under 38 C.F.R. § 4.71a, Diagnostic Code 5261, if extension of the knee is limited to 10 degrees a 10 percent rating is in order. If extension of the knee is limited to 15 degrees a 20 percent rating is in order. If extension of the knee is limited to 20 degrees a 30 percent rating is in order. If extension of the knee is limited to 30 degrees a 40 percent rating is in order. If extension of the knee is limited to 45 degrees a 50 percent rating is in order. Full range of motion of the knee is from 0 to 140 degrees. 38 C.F.R. § 4.71, Plate II. Under old 38 C.F.R. § 4.71a, Diagnostic Code 5262, impairment of the tibia and fibula with slight knee or ankle disability warrants a 10 percent rating; with moderate knee or ankle disability warrants a 20 percent rating; with marked knee or ankle disability warrants a 30 percent rating; and with nonunion (loose motion requiring brace) warrants a 40 percent rating. Under 38 C.F.R. § 4.71a, Diagnostic Code 5263, Genu recurvatum (acquired, traumatic, with weakness and insecurity in weight-bearing objectively demonstrated) warrants a 10 percent rating. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2016); DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court has clarified that 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); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Therefore, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis, and must be considered when raised by the claimant or when reasonably raised by the record. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Moreover, the United States Court of Appeals for Veterans Claims (Court) in Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (2016) held that the provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to the evaluation of musculoskeletal disabilities under Diagnostic Codes predicated on range of motion measurements. In Burton v. Shinseki, 25 Vet. App. 1 (2011), the Court held that 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. Furthermore, in Jones Shinseki, 26 Vet. App. 56, 61-63 (2012) the Court held that the Board may not deny entitlement to an increased rating on the basis of relief provided by medication when those effects are specifically contemplated by the rating criteria. In Esteban v. Brown, 6 Vet. App. 259, 261 (1994), that Court held that in cases where the record reflects that the appellant has multiple problems due to service-connected disability, it is possible for an appellant to have "separate and distinct manifestations" from the same injury, permitting separate disability ratings. The critical element is that none of the symptomatology for any of the conditions is duplicative or overlapping with the symptomatology of the other conditions. Id. In this regard, VA General Counsel has held that separate ratings may be assigned in cases where a service-connected knee disorder includes both a compensable limitation of flexion under Diagnostic Code 5260, and a compensable limitation of extension under Diagnostic Code 5261 provided that the degree of disability is compensable under each set of criteria. VAOPGCPREC 9-2004; 69 Fed. Reg. 59990 (2004). The basis for the opinion was a finding that a limitation in planes of movement were each compensable. Id. VA General Counsel has also held that separate ratings may be assigned in cases where the service-connected knee disorder includes both arthritis and instability, provided of course, that the degree of disability is compensable under each set of criteria. VAOPGCPREC 23-97 (July 1, 1997). The Veteran underwent an examination of his right knee in April 2015. The Veteran reported pain and his knee giving out due to pain. On examination, flexion was to 135 degrees, extension to 5 degrees with pain noted on flexion and extension. Muscle strength was full, and there was no joint instability of the right knee. He reported wearing knee brace. At a knee examination in January 2016, the Veteran again endorsed pain of the right knee, and that the knee feels like giving out. The Veteran reported flare ups and functional loss. Flexion was to 115 degrees, extension to 0 degrees with pain noted on flexion and extension. Muscle strength was full, and there was no joint instability of the right knee. He reported wearing knee brace. The Board notes that the examiner did not report any range of motion findings for the reported flare ups and functional loss. The examiner also did not provide any range of motion findings for passive range of motion or whether there was pain on non-weightbearing. The Veteran underwent another VA examination of his right knee in December 2019. The Veteran reported chronic right knee pain, the knee gives out frequently, and he cannot kneel or squat. The Veteran reported flare ups and functional loss. On examination of the right knee, flexion was to 90 degrees and extension to 0 degrees with pain noted with and without weightbearing and with objective evidence of tenderness and pain. There was no additional functional loss after repetitive use. The examiner also determined that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with flare ups. On joint stability testing, the examiner found anterior instability of the right knee. The Veteran reported using a knee brace constantly and a cane occasionally. Additional treatment records do not show any evidence that would warrant higher ratings for the Veteran's right knee disability. As to ratings in excess of 10 percent for the Veteran's right knee disorder at any time during the appeal under Diagnostic Code 5256 due to ankylosis, while the range of motion of the right knee is restricted at the VA examinations, the record on appeal never shows it being ankylosed. In fact, the April 2015, January 2016, and December 2019 examiners specifically opined they are not ankylosed, and that medical opinion is not contradicted by any other medical opinion of record. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). As to a disability in excess of 10 percent prior to December 5, 2019 under Diagnostic Code 5257, the Board notes that the record on appeal is negative for subluxation or instability of the right knee prior to that date. Stability testing at examinations in April 2015 and January 2016 found no instability of the right knee. Treatment records are also not indicative of moderate recurrent subluxation or instability. As to a disability rating in excess of 20 percent after December 5, 2019 under Diagnostic Code 5257, the VA examination on December 5, 2019 found instability on joint stability testing of the right knee. However, there is nothing in the record to indicate either severe recurrent subluxation or lateral instability under the old criteria, nor does it exhibit persistent instability or require a prescription by a medical provider for a brace and either a cane or a walker. While the Veteran has reported occasionally using a walker and using a brace, he also reported using these for his back condition along with his knees and there is no indication in the treatment records that its use was prescribed by a medical provider. As to a disability rating in excess of 10 percent disabling for the Veteran's right knee disorder at any time during the appeal under Diagnostic Code 5260, the Board finds that even when considering functional limitations due to pain with and without weight bearing and resistance in passive and active range of motion as well as during flare-ups and the other factors identified in 38 C.F.R. §§ 4.40, 4.45, 4.59 as well as the Court's holdings in Correia, Sharp, Mitchell, Burton, Southall-Norman, and DeLuca, and when considering the appellant's competent reports of his observable adverse symptomatology (see Davidson, supra), his functional losses do not equate to the criteria required for at least a 20 percent rating because flexion of right knee is not limited to 30 degrees because it was 90 degrees or higher at all of his VA examinations. Moreover, while the Veteran's treatment records document his complaints and treatment for right knee problems, the Board finds that the above VA examiners' ranges of motion are not contradicted by any other medical evidence of record because treatment records never document less flexion in either knee. 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.71a; Hart, supra; Fenderson, supra, Colvin, supra. This does not suggest that the Veteran is having no problems with his right knee based on painful limitation of motion, simply that the current knee problem is being addressed by the current disability evaluations of the problem. The question is only the degree of the problem based on the multifaceted criteria cited above for knee problems. As to a higher rating and/or a separate compensable rating for the Veteran's right knee disorder at any time during the appeal under Diagnostic Code 5261 and VAOPGCPREC 9-2004, the Board finds that even when considering functional limitations due to pain with and without weight bearing and resistance in passive and active range of motion as well as during flare-ups and the other factors identified in 38 C.F.R. §§ 4.40, 4.45, 4.59 as well as the Court's holdings in Correia, Sharp, Mitchell, Burton, Southall-Norman, and DeLuca, and when considering the appellant's competent reports of his observable adverse symptomatology (see Davidson, supra), his functional losses do not equate to the criteria required for even a compensable rating much less a 20 percent rating, because extension of right knee was found to be 0 degrees at the December 2019 VA examination. The Board acknowledges that the April 2015 showed extension to 5 degrees; however, the consistent evidence of record shows extension to 0 degrees. Therefore, the overall evidence of record is against a separate compensable rating. As to higher ratings under Diagnostic Code 5258 for dislocated semilunar cartilage and/or under Diagnostic Code 5262 for impairment of the tibia and fibula, the Board notes that the record on appeal is negative for this adverse symptomatology. See, for example, VA examination dated December 2019. In the absence of this adverse symptomatology, the Board will not rate his service-connected right knee disability under Diagnostic Code 5258 or Diagnostic Code 5262 at any time during the appeal. See Johnston, supra, Butts, supra. Lastly, as to higher ratings under Diagnostic Code 5259 for removal of the semilunar cartilage when symptomatic and/or under Diagnostic Code 5263 for genu recurvatum, the Board notes that the disability ratings already assigned the Veteran's service-connected right knee disorder meets the maximum rating possible under these code sections at all times during the appeal. See 38 C.F.R. § 4.71a. Therefore, entitlement to increased ratings under these criteria is also denied. See 38 C.F.R. § 4.71a; Hart, supra; Fenderson, supra. Thus, increased ratings for the Veteran's right knee disabilities is not warranted for any of the above periods on appeal. The Board has considered the benefit of the doubt doctrine; however, it is not warranted in this case. The appeal is denied. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (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). Saudiee Brown Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board V. Woehlke 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.