Citation Nr: 21041429 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 16-47 556 DATE: July 9, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for service-connected right knee strain with degenerative joint disease is denied. FINDING OF FACT The Veteran's right knee strain with degenerative joint disease has not been manifested by limitation of flexion to 30 degrees or less; limitation of extension to 10 degrees or more; ankylosis; dislocated semilunar cartilage; recurrent subluxation or instability; or impairment of the tibia and/or fibula. CONCLUSION OF LAW The criteria for entitlement to an initial rating in excess of 10 percent for service-connected right knee strain with degenerative joint disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5003, 5256-5263. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1980 to August 1984 with additional Reserve service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office. This case was most recently before the Board in September 2019 when it was remanded for additional development. It has returned for adjudication. Entitlement to an initial rating in excess of 10 percent for service-connected right knee strain with degenerative joint disease The Veteran asserts that an increased initial rating is warranted for his service-connected right knee strain with degenerative joint disease. Specifically, the Veteran, through his attorney, indicates that a separate evaluation for instability should be awarded. A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. 38 C.F.R. § 4.14. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. Id. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination upon which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. 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 innervations, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40. Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss, taking into account any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions regarding the avoidance of pyramiding do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare ups. See 38 C.F.R. § 4.14. However, those provisions should only be considered in conjunction with the diagnostic codes predicated on limitation of motion. 38 C.F.R. §§ 4.40, 4.45. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Painful motion is an important factor of joint disability, which is entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. However, the evaluation of painful motion as limited motion only applies when the limitation of motion is noncompensable under the applicable diagnostic code. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Whether the issue is one of an initial rating or an increased rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). With respect to the Veteran's rating claim on appeal, the Board has considered the claim from the assigned effective date, which the Veteran has not appealed, as well as whether any additional staged rating periods are warranted. Throughout the period on appeal, the Veteran has been in receipt of a 10 percent disability rating pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5003-5260 for his right knee strain with degenerative joint disease. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned. 38 C.F.R. § 4.27. Here, the hyphenated diagnostic code indicates that degenerative arthritis (Diagnostic Code 5003) is rated pursuant to the criteria for limitation of flexion of the knee (Diagnostic Code 5260). Included within 38 C.F.R. § 4.71a are multiple Diagnostic Codes that evaluate impairments resulting from service-connected knee disorders, including Diagnostic Code 5256 (ankylosis), Diagnostic Code 5257 (other impairment, including recurrent subluxation or lateral instability), Diagnostic Code 5258 (dislocated semilunar cartilage), Diagnostic Code 5259 (symptomatic removal of semilunar cartilage), Diagnostic Code 5260 (limitation of flexion), Diagnostic Code 5261 (limitation of extension), Diagnostic Code 5262 (impairment of the tibia and fibula), and Diagnostic Code 5263 (genu recurvatum). Based on the medical evidence before the Board, ankylosis, impairment of the meniscus (semilunar cartilage), impairment of the tibia and fibula, and genu recurvatum have not been found or associated with the Veteran's right knee disability and thus will not be considered here. Rather, the Veteran asserts that an increased rating is warranted for decreased range of motion or an additional rating is warranted for instability of his right knee. Notably, a claimant who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257 or 5258/5259. See VAOPGCPREC 23-97. For example, when a knee disorder was already rated under Diagnostic Code 5257 (addressing lateral instability), a separate rating may be warranted if the Veteran's knee also shows limitation of motion which at least meets the criteria for a 0 percent rating under Diagnostic Code 5260 (flexion limited to 60 degrees or less) or 5261 (extension limited to 5 degrees or more). For reference, normal range of knee motion is 140 degrees of flexion and 0 degrees of extension. 38 C.F.R. § 4.71, Plate II. Under Diagnostic Code 5003, degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code. In the absence of limitation of motion, with X-ray evidence of involvement of 2 or more major joints or minor joint groups, a 10 percent disability rating is warranted. With X-ray evidence of involvement of 2 or more major joints or minor joint groups with occasional incapacitating exacerbations, a 20 percent disability rating is warranted. Under Diagnostic Code 5260, a noncompensable rating is warranted where flexion of the leg is limited to 60 degrees, a 10 percent disability rating is warranted where flexion is limited to 45 degrees, a 20 percent disability rating is warranted where flexion is limited to 30 degrees, and a maximum 30 percent disability rating is warranted where flexion is limited to 15 degrees. Diagnostic Code 5261 provides for a noncompensable rating where extension of the leg is limited to five degrees, a 10 percent disability rating is warranted where extension is limited to 10 degrees, a 20 percent disability rating is warranted where extension is limited to 15 degrees, a 30 percent disability rating is warranted where extension is limited to 20 degrees, a 40 percent disability rating, extension must be limited to 30 degrees, and finally, where extension is limited to 45 degrees, a 50 percent disability rating is warranted. It should be noted that, during the course of this appeal, some of the relevant schedular ratings for evaluating impairments of the knee were amended. Specifically, the criteria pertaining to recurrent subluxation or lateral instability of the knee under 38 C.F.R. § 4.71a were amended effective February 7, 2021. See 85 Fed. Reg. 76, 453 (November 30, 2020). When 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. VAOPGCPREC 3-2000; Kuzma v. Principi, 341 F.3d 1327/ (Fed. Cir. 2003). The revised regulations do not provide for retroactive application; thus, the amendments may be applied as of, but not prior to, February 7, 2021. Hence, VA has made clear that its intent is that the 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. As the Veteran's claim was pending prior to February 7, 2021, the Board will consider entitlement under the prior regulations as well as the updated regulations from February 7, 2021 forward, applying the most favorable criteria for the Veteran. Under the previous version of Diagnostic Code 5257, pertaining to other knee impairments, including recurrent subluxation or lateral instability, a 10, 20, or 30 percent disability rating is warranted for slight, moderate, or severe findings, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5257. 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. Turning to the evidence of record, the Veteran was afforded a VA examination in March 2015. At that time, the examiner diagnosed the Veteran with a right knee strain that caused a popping sensation along with pain. He was being treated by his primary care physician with pain medicine and braces. The Veteran denied surgery or hospitalization but noted that he limits himself to less impact activities. He was advised to exercise in a pool, and he wore a brace constantly. The right knee disability impacted his ability to stand for prolonged periods and his ability to lift and such activities would result in flare-ups of knee pain. Although the examiner indicated that the Veteran's range of motion was abnormal, on examination his forward flexion was to 140 degrees and his extension was to 0 degrees without evidence of pain with weight bearing, localized tenderness or pain on palpation of the joint, or crepitus. The Veteran was able to perform repetitive use testing without additional functional loss or range of motion. The examiner noted he was unable to estimate functional loss with flare-ups but stated that there was no pain identified during the examination. Muscle strength testing was normal without evidence of muscle atrophy. There was no ankylosis and no history of recurrent subluxation, lateral instability, or recurrent effusion. Joint stability testing did not reveal joint instability and there were no complaints of shin splints or a condition of the meniscus. No other pertinent physical findings, complications, conditions, signs or symptoms were noted. Imaging studies revealed "minimal degenerative change" in the right knee. VA treatment records dated in August 2017 note that the Veteran denied any recent falls or injuries and that his gait was normal with normal ambulation. The Veteran was afforded an additional examination in January 2019. The examiner diagnosed the Veteran with right knee strain and degenerative joint disease. The Veteran reported treating his knee pain with ibuprofen and that a soft knee brace was required. Range of motion testing revealed forward flexion to 130 degrees and his extension was to 0 degrees with pain. There was no evidence of localized tenderness or pain on palpation of the joint, evidence of pain with weight bearing, or crepitus. The Veteran was able to perform repetitive use testing without additional functional loss or range of motion. The examiner noted that the Veteran was not evaluated after repetitive use over time, but the physical examination and discussion with the Veteran suggests that scenarios involving repetitive use would cause pain and weakness without any appreciable change in range of motion. The Veteran denied flare-ups. The examiner further stated that the Veteran had less movement than normal, weakened movement, disturbance of locomotion, and lack of endurance that would result from prolonged used of the joint. The Veteran noted significant discomfort and pain resulting in a limp. Muscle strength testing was 4 out of 5 without evidence of muscle atrophy. There was no ankylosis and no history of recurrent subluxation, lateral instability, or recurrent effusion. Joint stability testing did not reveal joint instability and there were no complaints of shin splints or a condition of the meniscus. No other pertinent physical findings, complications, conditions, signs or symptoms were noted. The Veteran made regular use of a soft ace bandage wrap on the knee. The examiner noted that there was objective evidence of pain in non-weight bearing and that passive range of motion testing was the same as active range of motion testing. VA treatment records dated in November 2019 reveal that the Veteran had full symmetric range of motion in the knees and that his quadricep strength was good. He did not have significant tenderness and there was minimal anterior crepitus. An x-ray revealed "very minimal degenerative changes." The physician noted a possible history of patellar subluxation and dislocation per the Veteran. The Veteran was afforded an additional VA examination in December 2019. The examiner diagnosed the Veteran with right knee strain and knee joint osteoarthritis. The Veteran reported increased pain with flare ups after prolonged sitting. Range of motion testing revealed forward flexion to 110 degrees and his extension was to 0 degrees with pain. The Veteran also indicated he had pain climbing the stairs. There was no evidence of localized tenderness or pain on palpation of the joint, evidence of pain with weight bearing, or crepitus. The Veteran was able to perform repetitive use testing without additional functional loss or range of motion. The examiner noted that the Veteran was not evaluated after repetitive use over time, but that he would expect pain to increase while range of motion to remain from 0 degrees of extension to 110 degrees of flexion. With flare-ups after prolonged sitting, the examiner estimated the Veteran's range of motion would decrease to 0 degrees of extension to 90 degrees of flexion. Muscle strength testing was normal without evidence of muscle atrophy. There was no ankylosis or recurrent effusion. Joint stability testing did not reveal joint instability, but the Veteran reported a history of moderate recurrent subluxation. There were no complaints of shin splints or a condition of the meniscus. No other pertinent physical findings, complications, conditions, signs or symptoms were noted. The Veteran stated that he constantly wore a knee brace for instability. The examiner noted that there was no objective evidence of pain in non-weight bearing and that passive range of motion testing was the same as active range of motion testing. In a February 2020 addendum opinion, the VA examiner opined that the Veteran's decreased range of motion during flare-ups after prolonged sitting would result in flexion to 90 degrees and extension to 0 degrees. However, the examiner stated that repeated use does not change the Veteran's range of motion. In a May 2020 addendum opinion, the VA examiner indicated that while the Veteran stated that he had subluxation of his right knee in the past, there was no evidence of instability or subluxation during the examinations. In a June 2020 addendum opinion, the examiner noted that the Veteran no longer had complaints or findings of knee joint or patella subluxation. The examiner further noted that the instability likely subsided with the increased degenerative arthritis. The Veteran, through his attorney, argues that a separate disability rating is warranted for his right knee on the basis of instability. The Veteran asserts that the opinion that "instability likely subsided" indicates that he at least previously had instability supported by his history of wearing a knee brace. Additionally, the Veteran reported that his right knee regularly gives out during the January 2019 examination and he reported a history of moderate subluxation. Upon review of the evidence of record, and in consideration of the Veteran's contentions, the Board finds that the preponderance of the evidence is against the award of a disability rating in excess of 10 percent at any time during the appeal period. Specifically, an increased rating under Diagnostic Code 5003 is not warranted because there is not x-ray evidence of degenerative arthritis of multiple major joints or minor joint groups with occasional incapacitating episodes at any point. The Veteran has not been found to have recurrent subluxation or lateral instability to warrant an increased rating under Diagnostic Code 5257, addressed in more detail below. Additionally, the Veteran's range of motion on both flexion and extension, to include estimations during flare ups and considering pain, were consistently measured in excess of the limitations required to warrant an increased rating under Diagnostic Codes 5260 and 5261, to include limitation of motion at the 10 percent rating for both motions. The Board has considered the Veteran's reports of painful motion in his knee as well as the loss of function reported by the Veteran, including limitations on sitting and climbing stairs. However, when examined in March 2015, he had full 5/5 muscle strength with both flexion and extension and no atrophy, which is evidence against moderate weakness or limitation of function. The VA treatment records are absent of range of motion findings or strength testing but note that his gait was normal. The most recent VA examiner noted that increased use would not result in further limitations of range of motion. These facts are evidence against an evaluation in excess of 10 percent. Mitchell, 25 Vet. App. 32 (2011). As to instability of the right knee, the Board acknowledges that the Veteran as a layperson is competent to testify to factual matters of which he has first-hand knowledge such as experiencing pain, perceiving instability in a joint, or witnessing actually observed symptoms such as swelling. See Washington v. Nicholson, 19 Vet. App. 362, 368 (discussing competence to report experienced or witnessed symptoms versus incompetence to render a medical diagnosis or identify the etiology of disease or injury that require medical knowledge). With respect to lateral instability, the Board has considered the Veteran's statements describing right knee instability and his right knee giving out. The Board recognizes that when considering whether lay evidence is competent the Board must determine on a case by case basis whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Here, the Board finds the Veteran is competent to describe many symptoms of his right knee disability, such as perceived instability and pain. See Jandreau, 492 F.3d at 1376 (lay witness capable of diagnosing dislocated shoulder); Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay person competent to testify to pain and visible flatness of his feet); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis). The Board also finds his statements regarding perceived right knee instability generally credible because he made them to medical providers while seeking treatment. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made for the purposes of medical treatment may be afforded greater probative value because there is a strong motive to tell the truth to receive proper care). To the extent, however, that medical personnel used specific clinical tests to assess the stability of the Veteran's right knee, the Board finds the objective medical evidence is more probative than the lay evidence on the issue of instability because the clinical assessment of knee instability made by performing particular joint stability tests falls outside the realm of common knowledge of laypersons. Here, competent medical evidence has documented that the Veteran's right knee joint was stable to anterior testing (Lachman test), posterior testing (posterior drawer test), medial testing (valgus stress test), and to lateral testing (varus stress test). In Jandreau, the U.S. Court of Appeals for the Federal Circuit held that lay evidence can be competent and sufficient to establish a diagnosis of a condition when lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau, 492 F.3d at 1977. The issue of whether the Veteran's perceived symptom of right knee instability is competent and sufficient to establish that he has actual instability of the knee sufficient to warrant a separate disability rating under Diagnostic Code 5257 is analogous to the situation described in Jandreau. In this case, the Veteran has described his perception of right knee instability. However, three VA medical professionals, in March 2015, January 2019, and December 2019, have tested his knee for instability during the pendency of his appeal and did not find instability on anterior, posterior, medial, or lateral stability testing. Because the Veteran's perceived symptom of right knee instability has not been demonstrated or confirmed on clinical testing by multiple medical professionals, the Board concludes that his lay testimony is insufficient to establish the presence of anterior, posterior, medial, or lateral instability sufficient to warrant separate disability rating. In English v. Wilkie, 30 Vet. App. 347 (2018), the U.S. Court of Appeals for Veterans Claims held that the Board cannot find objective medical evidence categorically more probative than lay evidence without explaining why that is the case. To be clear, the Board finds the objective medical evidence more probative than the Veteran's reports of perceived right knee instability for two reasons. First, the VA examinations in 2015 and 2019 included four forms of stability testing anterior instability, posterior instability, medial instability, and lateral instabilityand none of the testing demonstrated right knee instability. The thorough, repeated stability testing, which did not reveal instability, supports the conclusion that the Veteran's perceived knee instability is not due to anterior, posterior, medial, or lateral knee joint laxity. Second, the 2015 and 2019 VA examinations were performed by different medical professionals with each independently performing joint stability testing, and each documenting that the Veteran's right knee was stable to all such testing. The internal consistency among the independent examiners bolsters the conclusion that their findings of no right knee joint instability were accurate. For these reasons, the Board finds that the preponderance of the evidence is against entitlement to a separate rating for instability of the right knee. Thus, the provisions of Diagnostic Code 5257, either the former or the amended criteria, are not for application. In sum, the evidence weighs against awarding a rating in excess of 10 percent for the Veteran's service-connected right knee strain with degenerative joint disease. As the preponderance of the evidence weighs against the Veteran's claim, there is no reasonable doubt to be resolved, and the claim is denied. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). CAROLINE B. FLEMING Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Connor, 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.