Citation Nr: 21032784 Decision Date: 05/28/21 Archive Date: 05/27/21 DOCKET NO. 16-44 592 DATE: May 28, 2021 ORDER A separate 10 percent rating for right knee instability is granted. Entitlement to a rating in excess of 10 percent for right knee strain is denied. FINDING OF FACT 1. Resolving all reasonable doubt in the Veteran's favor, his right knee disability is manifested by no more than slight persistent instability, without a prescription from a medical provider for an assistive device or bracing for ambulation. 2. Even considering the Veteran's pain and corresponding functional impairment, his right knee disability is not productive of flexion limited to 30 degrees or less or extension limited to 10 degrees. CONCLUSION OF LAW 1. The criteria for a separate 10 percent rating for right knee instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Code (DC) 5257. 2. The criteria for a rating in excess of 10 percent for right knee strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DCs 5260, 5261. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 2003 to December 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2014 rating decision by the Department of Veterans Affairs (VA). This case was previously remanded by the Board in a November 2018 decision for additional development. Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, the Board will consider the Veteran's claim 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. In this regard, the Board observes that former regulation 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction. In Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9(b)(2) (now as noted renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. As such, pursuant to 38 C.F.R. § 20.904(d)(2), the Board will proceed to adjudicate the Veteran's claim. Increased Rating Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155. Where there is a question as to which of two disability evaluations shall be applied the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. However, pyramiding, or evaluating the same manifestation of a disability under different diagnostic codes, is to be avoided. See 38 C.F.R. § 4.14. Thus, separate ratings under different diagnostic codes are only permitted if, those separate ratings are assigned based on manifestations of the Veteran's disability that are separate and apart from manifestations for which the Veteran has already been rated. See Esteban v. Brown, 6 Vet. App. 259, 261 (1994). Separate ratings may be awarded so long as assignments of separate ratings would not result in compensating the Veteran twice for the same symptom. Lyles v. Shulkin, 29 Vet. App. 107 (2017). 1. A separate 10 percent rating for right knee instability The Veteran contends that he experiences right knee instability, resulting in his knee randomly giving out frequently and making it difficult for him to perform day to day activities such as walking and driving. See March 2015 Statement in Support of Claim; see also June 2015 Notice of Disagreement. In his September 2016 Form 9, the Veteran added that his knee has given out several times due to instability and weakness in his muscles and he cannot walk up and down stairs without having to swing his leg out to the side. See September 2016 Form 9. Under the former VA regulations, under 38 C.F.R. § 4.71a, Diagnostic Code 5257, slight recurrent subluxation or lateral instability was rated as 10 percent disabling, moderate recurrent subluxation or lateral instability rated as 20 percent disabling, and severe recurrent subluxation or lateral instability warranted a 30 percent rating. The terms "mild," "moderate" and "severe" were not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board was to evaluate all of the evidence to the end that its decision is "equitable and just." 38 C.F.R. § 4.6. Pursuant to the revised regulations, effective February 7, 2021, under 38 C.F.R. § 4.71a, DC 5257 under recurrent subluxation or instability, a 10 percent rating is warranted 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 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 ambulation 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; and 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 (e.g., cane(s), crutch(es), walker) and bracing for ambulation. In English v. Wilkie, 30 Vet. App. 347 (2018), the United States Court of Appeals for Veterans Claims (Court) held that VA cannot categorically favor objective medical evidence over lay evidence when making a rating determination under Diagnostic Code 5257. 30 Vet. App. at 352-53; see also Tedesco v. Wilkie, 31 Vet. App. 360 (2019). In the post-remand VA examination provided for the Veteran's right knee, he again complained of right knee instability during walking, resulting in his having to shift positions to avoid falling. See August 2019 C&P Exam. In applying the former VA Musculoskeletal System and Muscle Injuries Schedule for Rating Disabilities, prior to February 7, 2021, the Veteran has exhibited objective evidence of "slight" recurrent instability or subluxation. The Board finds the Veteran's report of having right knee instability credible and thus, notwithstanding the medical evidence, finds that the evidence demonstrates that the Veteran's right knee symptoms have more nearly approximated "slight" rather than "moderate" or "severe" recurrent subluxation or lateral instability throughout the appeal period. Under the revised rating criteria, the Veteran exhibited persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. For the purposes of determining the severity of the Veteran's right knee instability, the Board finds that the results of the joint stability tests and lack of objective evidence weighs in favor of a 10 percent rating as the Veteran has not been prescribed a brace and/or assistive device for ambulation. Furthermore, while the Veteran states he experiences his right knee giving out as a result of right knee instability, the VA examinations did not show persistent instability due to an unrepaired or failed repair of complete ligament tear. Therefore, the Board finds that a separate 10 percent rating is warranted under DC 5257 for right knee recurrent instability to compensate the Veteran for the symptoms of his right knee instability. The Board notes that the Veteran is competent to report his symptoms as to his right knee, such as pain and instability. English; see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d. 1331 (Fed. Cir. 2006). The preponderance of the evidence is against a disability picture that more nearly approximates a 20 percent rating under DC 5257 at any point during the appeal period under the former regulation for moderate recurrent right knee instability. Moreover, the evidence does not show that he has 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 ambulation 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. As such, a rating in excess of 10 percent for right knee instability is not warranted. 2. Entitlement to a rating in excess of 10 percent for right knee strain In the November 2018 Board decision, the Board held that the Veteran's previous VA examinations conducted in April 2014, April 2015 and June 2016 were not adequate for rating in light of recent Court decisions, which will be discussed below. Because the prior examinations are not adequate for rating purposes, in adjudicating this issue, the Board will rely on the findings and conclusions set forth in the post-remand, August 2019, VA examination report. The Board indicated that during the appeal, the Court made a precedential finding that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158 (2016). In a separate decision, the Court held that before a VA examiner opines that he or she cannot offer an opinion as to additional functional loss during flare-ups without resorting to speculation based on the fact that the examination was not performed during a flare-up, the examiner must "elicit relevant information as to the veteran's flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the veteran's functional loss due to flares based on all the evidence of record, including the veteran's lay information, or explain why she could not do so." Sharp v. Shulkin, 29 Vet. App. 26 (2017). In light of these decisions, the Board remanded the claim for a new VA examination. See Barr v. Nicholson, 21 Vet. App. 21 303, 312 (2007). The Veteran contends that he is entitled to a rating in excess of 10 percent for his right knee strain. The Veteran's right knee disability is rated under DC 5260 for limitation of flexion. Under 38 C.F.R. § 4.71a, DC 5260, where flexion is limited to 60 degrees, a 0 percent rating is provided; when flexion is limited to 45 degrees, 10 percent is assigned; when flexion is limited to 30 degrees, 20 percent is assigned; and when flexion is limited to 15 degrees, 30 percent is assigned. 38 C.F.R. § 4.71a. The Board notes that full range of motion of the knee consists of 0 degrees extension and 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. Post-remand, the Veteran was provided a VA examination for his right knee in August 2019. The Veteran was diagnosed with a right knee meniscal tear and knee strain; he reported worsened right knee pain and complained of knee instability. The Veteran did not report flare-ups of the right knee and did not report having any functional loss or impairment of the right knee. The exam results showed the initial range of motion was flexion limited to 80 degrees, pain noted on flexion, and no objective evidence of localized tenderness or pain on palpation of the joint. There was no evidence of pain with weight bearing and no objective evidence of crepitus. The Veteran was able to perform repetitive-use testing with at least three repetitions without additional loss of function range of motion. The Veteran was not examined immediately after repetitive user over time, but the examiner noted pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time. No muscle atrophy and no ankylosis were noted. There was no history or recurrent subluxation or lateral instability. There was objective evidence of pain on passive range of motion testing and on non-weight bearing. The examiner noted that Veteran observed a normal observed range of motion when not being formally measured, e.g., sitting in a chair his flexion was at least 90 degrees if not more with a normal gait and method of ambulation. The Veteran also has not missed any days of work as a construction worker and is able to perform his job. The Board finds that the preponderance of the evidence is against a finding the Veteran is entitled to a rating in excess of 10 percent for limitation of motion for his right knee. Under DC 5260, to warrant a rating in excess of 10 percent, flexion must be limited to 30 degrees. Similarly, the Veteran had full right knee extension. At no time during the appeal period has the Veteran's right knee been limited to less than 45 degrees flexion or zero degrees extension. A higher evaluation under DCs 5260 or 5261 is not warranted because the Veteran has noncompensable limitation of motion under both codes. As such, separate 10 percent ratings, or a single rating of 20 percent, is not warranted. In light of the foregoing, even considering the Veteran's limitation of function during flare-ups, and after repetitive range of motion testing, and his reported functional limitations (e.g., stiffness in the morning, knee instability complaints, shift of positioning to avoid falling, and additional warm up time for physical activities), the Board finds that the preponderance of the evidence is against a finding that the Veteran's right knee disability warrants an increased rating for limitation of motion. A rating in excess of 10 percent for the right knee is not warranted. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Zarar Ahmed, Attorney Advisor 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.