Citation Nr: 21042222 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 10-34 567 DATE: July 12, 2021 ORDER A compensable rating for right knee subluxation and instability for the period from January 13, 2009 to July 12, 2016 is denied. A disability rating greater than 10 percent for a right knee status post right anterior cruciate ligament (ACL) repair with degenerative arthritis (hereinafter right knee disability) for the period prior to October 12, 2016 is denied. A disability rating greater than 30 percent for a right knee disability for the period from October 12, 2016 to July 18, 2017 is denied. A disability rating greater than 10 percent for a right knee disability for the period from July 18, 2017 to January 1, 2021 is denied. A disability rating greater than 10 percent for a right knee disability for the period from January 1, 2021 to present is denied. A disability rating greater than 10 percent for left knee tendonitis and degenerative arthritis, post meniscal tear repair, (hereinafter left knee disability) for the period from January 13, 2009 to October 12, 2016 is denied. A disability rating greater than 30 percent for a left knee disability for the period from October 12, 2016 to January 1, 2021 is denied. A disability rating greater than 10 percent for a left knee disability for the period from January 1, 2021 to present is denied. FINDINGS OF FACT 1. The Veteran's right knee subluxation has not manifested in any joint instability from January 13, 2009 to July 12, 2016. 2. The October 2020 rating decision reducing the Veteran's disability ratings for his right and left knee disability did not change his combined rating for compensation. 3. The Veteran's right knee disability prior to October 12, 2016 is manifested in pain in the joint. 4. The Veteran's right knee disability from October 12, 2016 to July 18, 2017 manifested in extension limited to 25 degrees. 5. The Veteran's right knee disability from July 18, 2017 to January 1, 2021 manifested in extension limited to 35 degrees. 6. The Veteran's right knee disability from January 1, 2021 to present manifested in extension limited to 0 degrees with pain in the joint. 7. The Veteran's left knee disability prior to October 12, 2016 is manifested in pain in the joint. 8. The Veteran's left knee disability from October 12, 2016 to January 1, 2021 manifested in extension limited to 20 degrees. 9. The Veteran's left knee disability from January 1, 2021 to present manifested in extension limited to 0 degrees with pain in the joint. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for right knee subluxation and instability for the period from January 13, 2009 to July 12, 2016 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.10, 4.71a, Diagnostic Code (DC) 5257. 2. The reduction in the rating for right and left knee disability, from 30 and 40 percent respectively to 10 percent each, effective January 1, 2021, was proper. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 3.105, 4.71a, DC 5261. 3. The criteria for a disability rating greater than 10 percent for a right knee disability prior to October 12, 2016 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.71a, DC 5261. 4. The criteria for a disability rating greater than 30 percent for a right knee disability from October 12, 2016 to July 18, 2017 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.71a, DC 5261. 5. The criteria for a disability rating greater than 10 percent for a right knee disability from July 18, 2017 to January 1, 2021 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.71a, DC 5261. 6. The criteria for a disability rating greater than 10 percent for a right knee disability from January 1, 2021 to present have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.71a, DC 5261. 7. The criteria for a disability rating greater than 10 percent for left knee disability from January 13, 2009 to October 12, 2016 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.71a, DC 5261. 8. The criteria for a disability rating greater than 30 percent for left knee disability from October 12, 2016 to January 1, 2021 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.71a, DC 5261. 9. The criteria for a disability rating greater than 10 percent for left knee disability from January 1, 2021 to present have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.71a, DC 5261. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from May 1981 to June 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision. The Board remanded the claim in March 2019 to obtain an updated medical examination. The Board finds that there has been substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Reduction At the outset, the Board acknowledges that the Veteran's disability ratings for his right and left knee disabilities were reduced to 10 percent each in an October 2020 rating decision. As enumerated in 38 C.F.R. § 3.105(e), where the reduction in evaluation of a service-connected disability or employability status is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. In addition, the beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. The beneficiary also will receive notification that he or she will have an opportunity for a pre-determination hearing. 38 C.F.R. § 3.105(i). Thereafter, a final rating action will be taken, and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. 38 C.F.R. §§ 3.105(e), 3.500(r). The Board notes that at the time of the October 2020 decision that implemented the reduction of the rating to 10 percent, the 40 percent ratings had no effect on the Veteran's combined disability rating. As a result, due process protections under 38 C.F.R. § 3.105(e) do not apply. See Stelzel v. Mansfield, 508 F.3d 1345, 1349 (Fed. Cir. 2007); Tatum v. Shinseki, 24 Vet. App. 139, 143 (2010). Therefore, the Board finds that the procedural requirements for a reduction were met. The Board will discuss the merits of the assignment of a 10 percent rating when discussing each disability individually. Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. The Board may consider whether separate ratings may be assigned for separate periods of time - a practice known as "staged ratings," - whether or not the claim concerns an initial rating. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Right Knee Subluxation The Veteran contends that he is entitled to a compensable rating for his service-connected right knee subluxation for the period from January 13, 2009 to July 12, 2016. The Veteran's right knee subluxation is presently rated under DC 5257. Under this diagnostic code a 10 percent rating is assigned when slight impairment is shown, a 20 percent rating is warranted for moderate disability, and a maximum 30 percent evaluation is warranted for severe disability. 38 C.F.R. § § 4.71a. See also Johnson v. Brown, 9 Vet. App. 7, 11 (1996) (holding that DC 5257 is not predicated on loss of range of motion). Descriptive terms such as "slight," "moderate," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. The Board notes that the Veteran underwent VA examinations in March 2009 and May 2009. Both examinations did not note any joint instability. On the contrary, both examiners noted that the anterior and posterior cruciate ligaments stability rest of the right knee was within normal limits. Additionally, both examiners also noted the medial and lateral collateral ligaments stability tests were also within normal limits. For the foregoing reasons, the preponderance of the evidence is against awarding a compensable rating from January 2009 to July 2016 for right knee subluxation. In denying such a rating, the Board finds the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Right Knee Status Post Right ACL Repair with Degenerative Arthritis The Veteran's right knee disability is presently rated under DC 5261, which addresses limitation of extension. Under DC 5261, a noncompensable rating is assigned when extension is limited to 5 degrees, a 10 percent rating is assigned when extension is limited to 10 degrees, a 20 percent rating is assigned when extension is limited to 15 degrees, a 30 percent rating is assigned when extension is limited to 20 degrees, a 40 percent rating is assigned when extension is limited to 30 degrees, and a 50 percent rating is assigned when extension is limited to 45 degrees. The Veteran was rated at 10% from August 2003 to October 12, 2016; 30% from October 12, 2016 to July 18, 2017; 40% from July 18, 2017 to January 1, 2021; and 10% from January 1, 2021 to present. Unfortunately, the evidence does not show findings consistent with a higher rating. As stated previously, the Veteran underwent VA examinations in March and May 2009. The March 2009 examination noted a range of motion of 0-100 degrees with pain noted at 90 degrees. The May 2009 examination noted a range of motion of 0-90 degrees with pain noted at 80 degrees. The Veteran underwent another VA examination in October 2016 that found extension limited to 25 degrees in the right knee, consistent with a 30 percent rating. A July 2017 note contained in the Veteran's treatment records note both active and passive range of motion of the right knee limited to 35-75 degrees, consistent with a 40 percent rating. Another VA examination was performed in February 2020 that noted range of motion, at its worse, limited to 0-80 degrees in the left knee when accounting for flare ups. The Board finds that the ratings presently assigned to the Veteran are consistent with the disability ratings currently assigned. The Veteran has not submitted any evidence to establish that the Veteran's knee disability warrants a higher rating under the DC. The Board has also considered whether a rating under DC 5260 for limitation of flexion is appropriate. A 10 percent rating under that code requires flexion limited to 45 degrees. However, the aforementioned treatment records and VA examinations in March 2009, May 2009, October 2016, and February 2020 recorded flexion limited to 75, 90, 80, 80, and 90 degrees respectively. As none of these medical examinations show flexion limited to 45 degrees a rating under DC 5261 is not warranted. Finally, the Board has considered ratings under DC 5256 (ankylosis of the knee), DC 5258 (dislocated semilunar cartilage), DC 5259 (symptomatic removal of semilunar cartilage), DC 5262 (impairment of the tibia and fibula) and DC 5263 (genu recurvatum). However, the evidence does not show diagnoses or symptoms consistent with such ratings. Left Knee Tendonitis and Degenerative Arthritis, Post Meniscal Tear Repair The Veteran's left knee disability is presently rated under DC 5261, which addresses limitation of extension. As stated previously, under DC 5261, a noncompensable rating is assigned when extension is limited to 5 degrees, a 10 percent rating is assigned when extension is limited to 10 degrees, a 20 percent rating is assigned when extension is limited to 15 degrees, a 30 percent rating is assigned when extension is limited to 20 degrees, a 40 percent rating is assigned when extension is limited to 30 degrees, and a 50 percent rating is assigned when extension is limited to 45 degrees. The Veteran was rated, at relevant times, at 10% from October 22, 2009 to October 12, 2016; 30% from October 12, 2016 to January 1, 2021; and 10% from January 1, 2021 to present. Unfortunately, the evidence does not show findings consistent with a higher rating. As stated previously, the Veteran underwent VA examinations in March and May 2009. The March 2009 examination noted a range of motion of 0-120 degrees with pain noted at 110 degrees. The May 2009 examination noted a range of motion of 0-110 degrees with pain noted at 90 degrees. The Veteran underwent another VA examination in October 2016 that found extension limited to 20 degrees in the right knee, consistent with a 30 percent rating. Another VA examination was performed in February 2020 that noted range of motion was, at its worse, limited to 0-80 degrees in the left knee when accounting for flare ups. The Board finds that the ratings presently assigned to the Veteran are consistent with the disability ratings currently assigned. The Veteran has not submitted any evidence to establish that the Veteran's knee disability warrants a higher rating under the DC. The Board has also considered whether a rating under DC 5260 for limitation of flexion is appropriate. A 10 percent rating under that code requires flexion limited to 45 degrees. However, the aforementioned VA examinations in March 2009, May 2009, October 2016, and February 2020 recorded flexion limited to 110, 90, 85, and 80 degrees respectively. As none of these medical examinations show flexion limited to 45 degrees a rating under DC 5261 is not warranted. Finally, the Board has considered ratings under DC 5256 (ankylosis of the knee), DC 5258 (dislocated semilunar cartilage), DC 5259 (symptomatic removal of semilunar cartilage), DC 5262 (impairment of the tibia and fibula) and DC 5263 (genu recurvatum). However, the evidence does not show diagnoses or symptoms consistent with such ratings. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jorge Barroso, Associate 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.