Citation Nr: 21041863 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 16-59 794 DATE: July 10, 2021 ORDER An increased disability rating of 30 percent (but not higher) is granted for a left knee condition from March 18, 2015. An initial 20 percent disability rating (but not higher) is granted for left knee lateral instability from March 18, 2015. FINDINGS OF FACT 1. The Board will infer that the missing measurements from the May 2015 and September 2016 VA examinations would have supported a 30 percent disability rating for the Veteran's left knee condition. 2. The probative evidence of record including the Veteran's own competent and credible statements support a finding that his left knee condition is manifested by moderate lateral instability. CONCLUSIONS OF LAW 1. The criteria have been met for an increased disability rating of 30 percent (but not higher) for a left knee disability based on limitation of flexion. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes (DC) 5010, 5260, 5261 2. The criteria for an increased 20 percent rating (but no higher) for lateral instability of the left knee have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 4.71a, DC 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from September 1976 to September 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in January 2019, when the Veteran's appeal for an increased rating for left knee patellofemoral syndrome was denied. The Veteran appealed this denial to the Court of Appeals for Veterans Claims (Veterans Court), which vacated the Board's January 2019 denial and remanded the appeal for further consideration in a September 2019 Order granting a Joint Motion for Remand (JMR). In May 2020, the Board denied a rating in excess of 10 percent for the Veteran's left knee limitation of flexion and denied a rating in excess of 10 percent for left knee instability. The Veteran appealed this denial to the Veterans Court which vacated the Board's May 2020 denial and remanded the appeal for further consideration in a February 2021 Order granting a Joint Motion for Partial Remand (JMPR). Increased Rating 1. An increased 30 percent rating is granted for left knee limitation of flexion from March 18, 2015. Legal Criteria Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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. 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 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. Prior to the regulatory change, under DC 5055, prosthetic replacement of a knee joint is rated as 100 percent disabling for one year following implantation of the prosthesis. The one-year total rating begins after a one-month convalescent rating under 38 C.F.R. § 4.30. Thereafter, a 60 percent rating will be assigned for chronic residuals consisting of severe painful motion or weakness in the affected extremity. Intermediate degrees of residual weakness, pain, or limitation of motion are rated by analogy to DCs 5256, 5260, 5261, or 5262. The minimum disability rating following replacement of a knee joint is 30 percent. 38 C.F.R. § 4.71a. As of February 7, 2021, under the amended criteria of DC 5055, the prosthetic replacement of a knee joint is rated as 100 percent disabling for four months following implantation of the prosthesis or resurfacing. Thereafter, a 60 percent rating will be assigned for chronic residuals consisting of severe painful motion or weakness in the affected extremity. Intermediate degrees of residual weakness, pain, or limitation of motion are rated by analogy to DCs 5256, 5260, 5261, or 5262. The minimum disability rating following replacement of a knee joint is 30 percent. 38 C.F.R. § 4.71a. At the conclusion of the 100 percent evaluation period, the rater is to evaluate resurfacing under DCs 5256-5262 and there is no minimum evaluation for resurfacing. DC 5256 provides for a 40 percent rating for unfavorable ankylosis with knee in flexion between 10 degrees and 20 degrees. A 50 percent rating is provided for unfavorable ankylosis with the knee in flexion between 20 degrees and 45 degrees. A 60 percent rating is provided for extremely unfavorable ankylosis with the knee in flexion at an angle of 45 degrees or more DC 5260 provides ratings based on limitation of flexion of the leg. A 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted for flexion limited to 30 degrees. The maximum 30 percent rating is warranted for flexion limited to 15 degrees. DC 5261 provides ratings based on limitation of extension of the leg. A 10 percent rating is warranted for extension limited to 10 degrees. A 20 percent rating is warranted for extension limited to 15 degrees. A 30 percent rating is warranted for extension limited to 20 degrees. A 40 percent rating is warranted for extension limited to 30 degrees. The maximum 50 percent rating is warranted for extension limited to 45 degrees. Prior to the regulatory change, DC 5262 provided a 10 percent rating for malunion of the tibia and fibula with slight knee or ankle disability; a 20 percent rating for moderate knee or ankle disability; a 30 percent rating for marked knee or ankle disability; and a 40 percent rating for nonunion of the tibia and fibula with loose motion requiring a brace. The Board notes that terms such as 'slight,' 'moderate,' 'severe,' and 'marked' are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence. 38 C.F.R. § 4.6. For diagnostic codes that are based on limitation of motion, VA must consider assigning a higher rating for functional loss, including functional loss due to flare-ups or the factors listed below. 38 C.F.R. §§ 4.40, 4.45, 4.59; see DeLuca v. Brown, 8 Vet. App. 202 (1995). These factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy of disuse. 38 C.F.R. § 4.45. For diagnostic codes that are based on limitation of motion, pain must affect the ability to perform normal working movements with normal excursion, strength, speed, coordination, or endurance in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). These rules have been considered in the analysis below. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture "more nearly approximates" the required criteria; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Factual Background The Veteran had a VA examination in May 2015 during which the examiner found that the Veteran had knee strain, patellofemoral pain syndrome, and arthritic conditions in his left knee. The Veteran reported flare-ups, described as an increase in pain and stiffness aggravated by prolonged standing or walking, weakness, and lack of endurance. The Veteran also reported having functional loss of his left knee. He stated he experienced an increase in pain for which he has taken pain medication over the last 8 years. The Veteran further reported that he was unable to climb more than one flight of stairs. Range of motion tests showed flexion of the left knee as 0 to 100 degrees and extension as 100 to 0 degrees. There was additional limitation of motion with repetition. The examiner determined that pain was noted on flexion and extension that contributed to functional loss. The examiner also noted that there was objective evidence of localized tenderness or pain on palpation of the left knee and pain with weight bearing. The examiner stated that the tenderness was located anteriorly from tibial tuberosity through patella and onto the tendon. The examiner also confirmed objective evidence of crepitus. The Veteran was able to perform repetitive use testing with at least 3 repetitions. However, there was additional functional loss or range of motion after those 3 repetitions. The examiner indicated that functional loss was exhibited by symptoms such as pain, fatigue, weakness, and lack of endurance. After repetitive use testing, range of motion tests showed flexion as 0 to 90 degrees and extension as 90 to 0 degrees. The examiner was asked to determine in terms of range of motion the functional loss experienced by the Veteran due to repeated use. The examiner explained it was not feasible for him to indicate the actual numerical degree of limitation as that would be nothing more than mere speculation. He explained further that the speculation was due to the fact that any additional limitation of range of motion of the joint would likely vary somewhat from day to day depending upon, but not limited to, the types of activities performed by the joint and/or the repetitions the joint is put through, whether the Veteran takes or does not take medication for the condition, and even perhaps atmospheric pressure (weather) influences. The examiner explained that no one could respond accurately without resorting to speculation given current medical science or the known facts. There was no scientific research available to provide a basis for calculating additional loss of range of motion during use. In addition, the examiner found that pain, weakness, fatigability, or incoordination significantly limited the Veteran's functional ability with flare-ups. Once again, the examiner stated it was not feasible to describe this functional loss in terms of range of motion because he would have to resort to speculation. The Veteran's left knee was also found to have atrophy of disuse, instability of station, disturbance of locomotion, and cause interference with standing. Muscle strength testing showed that the Veteran's left knee had a reduction in muscle strength, with forward flexion and extension resulting in active movement against some resistance. The Veteran did not exhibit ankylosis. Finally, the examiner concluded that the Veteran's condition caused functional impairment. Namely, the Veteran described significant pain with standing, walking, and lifting. The Veteran underwent another VA examination in September 2016. The Veteran reported that he had increased pain that radiated down his lateral lower leg. He described the pain as sharp and stabbing. He reported experiencing increased pain while working at his job. The Veteran also reported functional loss. Specifically, he reported that standing for prolonged periods and walking for distances bothered him, and also stated he had difficulty entering his car. He reported flare-ups of increased pain and that he used pain medication. Range of motion tests showed flexion as 0 to 100 degrees, and extension as 140 to 0 degrees. The examiner found that the decreased range of motion contributed to stiffness and pain. Pain on flexion and extension was noted to cause functional loss. There was evidence of pain with weight bearing and crepitus. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. In this examination, the Veteran was not able to perform repetitive use testing with at least 3 repetitions. He was not able to perform the repetitions because he was experiencing a flare-up. The examiner could not opine as to the limitation of functional ability with repeated use over time or functional ability with flare-ups without resorting to mere speculation. The examiner explained that speculation was due to the fact that any limitation of range of motion of the joint would likely vary somewhat from day to day depending upon, but not limited to, the types of activities performed by the joint and or the repetitions the joint is put through, whether the Veteran takes or does not take medication for the condition, and even perhaps weather, among others. The examiner explained that no one could respond accurately without resorting to speculation given current medical science or the known facts. There was no scientific research available to provide a basis for calculating additional loss of range of motion during use. The Veteran reported that he experienced increased pain when he stands for extended periods of time. Muscle strength testing indicated the Veteran's left knee had normal strength and did not display muscle atrophy or ankylosis. The examiner found functional impact in the form of the Veteran experiencing knee pain secondary to standing for extended periods at his job. Analysis The Board acknowledges that while the May 2015 and September 2016 VA examiners indicated that the Veteran's flare-ups and repetitive use over time cause functional loss, they failed to describe the functional loss in terms of ROM. Additionally, these examiners did not provide specific values for weight-bearing or non-weight-bearing. See Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016); Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017); DeLuca v. Brown, 8 Vet. App. 202 (1995). Accordingly, the Board cannot assign these opinions significant probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The Board elects to not remand this matter for a retrospective opinion because of the impracticality of obtaining such evidence as might be needed to retrospectively address the deficiencies of the various examinations; remanding these issues can often lead to a cycle of non-compliant examination reports and subsequent remands that can delay the claim for years without an effective resolution. The Board will not place the burden on the Veteran for the fact that the examiner did not obtain all the necessary information at the time of the examination. Rather, the Board will infer that any missing information from the May 2015 and September 2016 VA examinations would support the next highest rating (30 percent) for the period on appeal. However, the Board also finds that a still higher (40 percent) disability rating is not warranted because there is no evidence that the Veteran's extension of the left knee is limited to 30 degrees, that the Veteran has nonunion of the tibia and fibula requiring the use of a brace or that he has ankylosis of the left knee. Accordingly, from March 18, 2015, an increased 30 percent rating is granted for the Veteran's service-connected left knee condition. 2. An initial 20 percent rating is granted for left knee lateral instability from March 18, 2015. Legal Criteria Under 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" 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 decision is "equitable and just." 38 C.F.R. § 4.6. Under the changes to the musculoskeletal ratings criteria that became effective February 7, 2021 for 5257 for recurrent subluxation or lateral instability, a 10 percent disability rating is assigned for sprain, incomplete ligament tear, or complete ligament tear causing persistent instability without prescribed assistive device or bracing for ambulation. A 20 percent rating requires (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability; or (b) unrepaired or failed repair of complete ligament tear causing persistent instability. Both require a prescribed assistive device or bracing for ambulation. A 30 percent rating requires "unrepaired or failed repair of complete ligament tear causing persistent instability" and that a medical provider prescribes both an assistive device and 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 38 C.F.R. § 4.71a, DC 5257). Factual Background At the May 2015 VA examination, the Veteran did not exhibit any subluxation or report a history of lateral instability or recurrent effusion. The Veteran had normal results when tested for anterior instability, posterior instability, medial instability, and lateral instability. At the September 2016 VA examination, joint stability testing of the Veteran's left knee was normal, and there was no recurrent subluxation, history of lateral instability, or recurrent effusion. In the Veteran's December 2016 substantive appeal, he stated that he had functional loss and weakness when performing everyday use, walking, standing, and climbing stairs. He also stated that all motion results in pain. The Veteran further stated that he gets a feeling of instability when using stairs and walking any distance. In a brief submitted by the Veteran via his representative in February 2020, the Veteran reiterated his reports of functional impairment. Specifically, he placed emphasis on his prior reports of severe pain precipitated by standing for prolonged periods, severe pain after walking for distances, his inability to climb more than one flight of stairs, and his difficulty entering his car. Analysis The Board finds that an increased rating under DC 5257 is warranted because the evidence shows that the Veteran has moderate knee instability based on his lay statements. See English v. Wilkie, 30 Vet. App. 347. 35253 (2018) (finding that DC 5257 does not require objective medical evidence of lateral instability for a rating to be assigned and when weighing evidence to determine whether there is lateral instability, the Board cannot find objective medical evidence is automatically more probative than lay evidence). The Veteran has stated that he has occasional instability, difficulty walking, standing, and climbing stairs. The Board finds the Veteran competent and credible to report his symptoms of left knee instability because such symptoms are readily observable. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Therefore, resolving all reasonable doubt in the Veteran's favor, the Board finds that a 20 percent rating, but no higher, for moderate instability of the knee is warranted. Regarding whether a still higher, 30 percent rating is warranted for severe recurrent subluxation or lateral instability, the Board finds that the record is absent for evidence or reports of severe subluxation or lateral instability. Additionally, the record does not indicate that the Veteran has unrepaired or failed repair of complete ligament tear which causes persistent instability and that a medical provider has prescribed both an assistive device and brace for ambulation. Accordingly, from March 18, 2015, an initial 20 percent disability rating (but no higher) is granted for left knee lateral instability. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Alexander Bahus 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.