Citation Nr: 21039786 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 16-38 058 DATE: July 1, 2021 ORDER Entitlement to a rating in excess of 10 percent for a right knee limitation of motion is denied. Entitlement to a separate 10 percent, but no higher, rating for right knee instability is granted. FINDING OF FACTS 1. Throughout the entire appeal period, the Veteran's right knee strain was manifested by no worse than flexion to 105 degrees and normal extension; and, there was no evidence of ankylosis, a meniscus (semilunar cartilage) condition, a tibia or fibula impairment, or genu recurvation. 2. Affording the Veteran the benefit of the doubt, the evidence is at least in equipoise, that the Veteran has experienced slight instability of the right knee for the entirety of the appeal period. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 10 percent for right knee limitation of flexion have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5260. 2. The criteria for entitlement to a separate 10 percent rating, but no higher, for right knee instability have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5257. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from September 1977 to October 1981. The Veteran appeared before the undersigned Veterans Law Judge at a Board hearing in March 2019. The transcript is in the record. This matter was previously remanded by the Board in August 2019 and September 2020. 1. Entitlement to a rating in excess of 10 percent for right knee limitation of motion The Veteran reports increased pain, limitation of motion, feelings of instability, and limitations in his daily life or the right knee, which he believes warrant a higher rating. The Veteran has also indicated he is now going to physical therapy for his right knee, another indication the knee's condition has worsened warranting an increased rating. The Veteran's right knee strain is currently rated as 10 percent disabling under DC 5260 for painful limitation of flexion. The Veteran is also service-connected for his left knee under DC 5260 for painful limitation of flexion, this rating is not on appeal and is not before the Board at this time. Disability ratings are determined by comparing a veteran's present symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021. However, Diagnostic Codes 5258, 5259, 5260, and 5261 were not substantively changed. Diagnostic Codes 5257 was substantively changed and is discussed in further detail below. 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 32000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, the Board will consider the Veteran's claims 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 claims. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a ; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. Diagnostic Code 5258 assigns a 20 percent rating for dislocated semilunar cartilage with episodes of "locking," pain, and effusion into the joint. Diagnostic Code 5259 assigns a 10 percent rating for removal of symptomatic semilunar cartilage. Diagnostic Code 5260 addresses limitation of flexion of the leg and provides a noncompensable rating if flexion is limited to 60 degrees, a 10 percent rating where flexion is limited to 45 degrees, a 20 percent rating where flexion is limited to 30 degrees. Diagnostic Code 5261 addresses limitation of extension of the leg. A 50 percent rating requires extension limited to 45 degrees. A 40 percent rating requires extension limited to 30 degrees. A 30 percent rating requires extension limited to 20 degrees. A 20 percent rating requires extension limited to 15 degrees. A 10 percent rating requires extension limited to 10 degrees. A noncompensable rating is assigned when extension is limited to 5 degrees. The Veteran underwent a VA examination in December 2014. The Veteran's range of motion (ROM) of the right knee was noted to be normal on flexion and extension. Pain was not noted on weightbearing or non-weightbearing, on palpitation, or on active or passive movement. No ankylosis or muscle atrophy was noted. Stability testing was normal, and no history of subluxation or instability was indicated. Strength testing was normal. The Veteran did not report that flare-ups caused functional loss. In July 2020 the Veteran was afforded another VA examination. His ROM was abnormal on examination. The ROM of the right knee was noted to be 0 degrees to 120 degrees. No additional loss of motion was noted after observed repetitive use, repeated use over time, or during a flare-up. However, it was noted the Veteran would lose function in physical occupations during a flare-up. During a flare-up the Veteran reports sharp stabbing pain, that is precipitated by repeated use, and it limits his ability to do running, hiking, and squatting activities. Pain was noted on flexion, and there was moderate localized pain along the lateral and medial joint lines consistent with patella femoral syndrome. Muscle strength was normal, and no muscle atrophy was noted. No ankylosis was noted. Joint stability testing was performed, and no joint instability was indicated. Nor was a history of recurrent subluxation, lateral instability, or recurrent effusion noted. Pain was noted with non-weightbearing during use of the right knee. In October 2020, another VA examination evaluated the Veteran's right knee. The Veteran endorsed pain, difficulty going up and downstairs, difficulty going from sitting to standing, and intermittent buckling of the knee. The Veteran reported flare-ups which manifested as increased pain and shortened steps. During a flare-up he said he must respect the pain and will rest it when able. The examiner estimated the Veteran's ROM during a flare-up would be between 0 degrees to 105 degrees. This is also the worst ROM recorded in this examination report. Pain, fatigue, and lack of endurance contribute to loss of ROM during a flare-up. Muscle strength testing was normal, and no muscle atrophy was noted. No ankylosis was noted. No history of recurrent subluxation, lateral instability, or recurrent effusion was indicated. Stability testing was performed, and stability was normal. There was evidence of pain during non-weightbearing during use of the right knee. VA treatment records indicate the Veteran is participating in physical therapy for his knees. Therapy notes from June 2020 note stiffness on active and passive ROM in flexion. The Veteran reported instability of the right knee with ascent or descent of stairs, more notable with descent. Weakness was noted as a contributing factor to difficulty on stairs. Based on the evidence of record, including the December 2014, July 2020, and October 2020 VA examinations, VA treatment records, and the Veterans lay statements and testimony before the Board, the Veteran is not entitled to a rating in excess of 10 percent for his right knee limitation of flexion. He has not had flexion to 30 degrees or extension to 15 degrees. At worst, he has had limitation of flexion to 105 degrees during flare-ups and extension has always been normal, including consideration of passive use. Such does not nearly approximate limitation of motion required for an increased rating. A higher rating under DC 5260 for limitation of motion is not warranted. Further, as extension has not been limited to 10 degrees at any time during the period on appeal, the assignment of a separate compensable rating is not warranted either. Other potentially applicable diagnostic codes have also been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). However, there was no evidence of ankylosis, meniscus (semilunar cartilage) condition, a tibia or fibula impairment, or genu recurvation. See 38 C.F.R. § 4.71a, DCs 5256, 5258, 5259, 5262, 5263. The Board has considered staged ratings but determined that staged ratings are not warranted. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Again, an increased rating greater than 10 percent for right knee limitation of motion is not warranted. The preponderance of the evidence is against the claim, and there is no doubt to be resolved. See 38 C.F.R. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to a separate disability rating for instability of the right knee The Veteran has reported instability in his right knee. Diagnostic Code 5257 addresses other impairment of the knee. Prior to February 7, 2021, a 30 percent rating required severe recurrent subluxation or lateral instability. A 20 percent rating required moderate recurrent subluxation or lateral instability. A 10 percent rating required slight recurrent subluxation or lateral instability. For the version of Diagnostic Code 5257, in effect since February 7, 2021, recurrent subluxation or instability warrants 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. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38C.F.R. §4.71a , Diagnostic Code 5257). A 20 percent rating is warranted 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; 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), or a walker) or bracing for ambulation. See id. 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. See id. Also under Diagnostic Code 5257, patellar instability warrants 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. See id. 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. See id. A 30 percent rating is warranted when there is 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. Id. Note (1) following Diagnostic Code 5257 states that for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note (2) states 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). See id. Veteran has reported feeling unstable in his right knee and that it sometimes "goes out" on him. Physical therapy records indicate instability and weakness, particularly with stairs. The July 2020 VA examination noted a diagnosis of patellofemoral pain syndrome. There is no evidence the Veteran uses any assistive devices, nor that the Veteran has undergone any surgical repairs of the right knee. When considering the Veteran's claim under the amended DC 5257, the evidence shows the Veteran has a diagnosis of the patellofemoral complex with instability. Such supports a rating of 10 percent under the amended criteria. A higher rating of 20 percent is not warranted as the Veteran does not use an assistive device and has not undergone surgical intervention. As for the period prior to February 7, 2021, and after considering the Veteran's consist reports of right knee instability, and affording the Veteran the benefit of the doubt, the Board finds the Veteran's right knee manifested with slight instability, warranting a 10 percent disability rating. Clinical testing for instability was negative throughout the appeal period is negative for instability, indicating the condition is no more than slight. A higher rating of 20 percent is not warranted as the evidence does not support a finding the instability is moderate. The Board finds a separate 10 percent rating under the old and amended DC 5257 rating criteria is warranted for right knee patellofemoral pain syndrome manifesting as slight instability. A higher rating is not warranted under either iteration of the diagnostic code. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Rekowski 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.