Citation Nr: 21042537 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 09-17 623 DATE: July 13, 2021 ORDER A 10 percent rating for left knee instability from September 1, 2006, is granted. FINDING OF FACT Resolving all reasonable doubt in his favor, as of September 1, 2006, the Veteran had slight lateral left knee instability. CONCLUSION OF LAW From September 1, 2006, the criteria for a 10 percent rating, but no higher, for lateral instability of the left knee are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the United States Air Force from January 1981 to August 2006. The Veteran appealed a May 2020 decision of the Board of Veterans' Appeals (Board) to the United States Court of Appeals for Veterans Claims (Court) to the extent that the Board denied entitlement to a disability rating higher than 10 percent for left knee instability prior to July 27, 2011. Pursuant to a joint motion for partial remand (JMPR), the Court, by a January 2021 order, vacated the Board's May 2020 decision (as to the matter of entitlement to a disability rating higher than 10 percent for left knee instability prior to July 27, 2011) and remanded the matter. The JMPR specifically noted that the Veteran was not appealing the May 2020 Board decision with respect to entitlement to an initial rating higher than 10 percent for left knee osteoarthritis and entitlement to an initial rating higher than 10 percent for piriformis syndrome of the left leg. Increased Rating Disability ratings are determined by the application of rating criteria as set forth in VA's Schedule for Rating Disabilities (38 C.F.R. Part 4) and based on the average impairment of earning capacity, with separate diagnostic codes (DCs) identifying the various disabilities. 38 U.S.C. § 1155. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7; see also 38 C.F.R. § 4.21. See 38 C.F.R. §§ 4.1, 4.2, 4.10. Separate disability 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. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Staged ratings are appropriate for an initial or increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that warrant different ratings. Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Evaluating musculoskeletal disabilities based on limitation of motion, requires consideration of functional loss caused by pain or other factors listed in 38 C.F.R. § 4.40 that can occur during flare-ups or after repeated use, and so, may not be reflected on range-of-motion testing. Nonetheless, even when the factors listed in §§ 4.40 or 4.45 are relevant, 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 section 4.40 or section 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016). 38 C.F.R. § 4.45 requires consideration also be given to motion that is less or more than normal, weakened, and painful as well as excess fatigability and incoordination. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). 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). Also, section 4.59 requires consideration of 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." Correia v. McDonald, 28 Vet. App. 158 (2016). Consideration should also be given to the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flare-ups, including based on information from the veteran when a flare-up is not observable on examination. Sharp v. Shulkin, 29 Vet. App. 26 (2017). 1. Entitlement to a higher disability rating for instability of the left knee. Service connection for left knee osteoarthritis was granted by a September 2007 rating decision on appeal. An initial noncompensable evaluation was assigned effective September 1, 2006. In April 2009, an increased 10 percent rating was assigned for the left knee arthritis from September 1, 2006, the original date of service connection, which is the date after the Veteran was discharged from service. A January 2017 rating decision awarded a separate 10 percent evaluation for left knee instability from July 30, 2016. In May 2020, the Board granted a 10 percent disability rating for left knee instability from July 27, 2011. The Veteran contends that he is entitled to a rating higher than 10 percent for left knee instability and that entitlement to service connection for left knee instability arose prior to July 27, 2011. The Veteran's left knee instability is currently rated as 10 percent disabling for instability from July 27, 2011 under Diagnostic Code 5257, pertaining to impairment of the knee based on recurrent subluxation or lateral instability. Prior to February 7, 2021, lateral instability of the knee is rated under DC 5257. In accordance with DC 5257, a 10 percent rating is warranted for slight recurrent subluxation or lateral instability. A 20 percent rating is warranted for moderate recurrent subluxation or lateral instability. A 30 percent rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, DC 5257. From February 7, 2021, under Diagnostic Code 5257, a 10 percent rating is warranted 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, or 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 an 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), walker) or bracing for ambulation, or 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. Lastly, a 30 percent rating is warranted for an 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, or 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. 38 C.F.R. § 4.71a, Diagnostic Code 5257, effective February 7, 2021. Objective medical evidence is not required to establish lateral knee instability under DC 5257, so objective medical evidence cannot be categorically found more probative than lay evidence with respect to this diagnostic code. English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). The Veteran first noted left knee instability during his active service in May 2006. A May 2006 service treatment record indicates that the Veteran had left knee pain and that while walking it felt like his left knee was going to give out. He was diagnosed with a left knee sprain and given a brace, presumably to increase knee stability. Also, during the January 2007 VA examination, the Veteran reported that his left occasionally gave way. There is no diagnosis of left knee instability in the Veteran's medical records. However, since May 2006, the Veteran has consistently reported experiencing episodes of his left knee giving way when navigating stairs along with occasional knee buckling. Nevertheless, as noted above, per English, supra, the absence of objective medical evidence is not fatal to the finding of knee instability since credible lay evidence can be used to establish knee instability. As such, the Board finds that from September 1, 2006, the day after the Veteran separated from active duty service, is the appropriate date for a separate rating for left knee instability as the Veteran was provided a left knee brace for consistent instability in May 2006. As noted above, in its January 2021 JMPR, the Court vacated the Board's May 2020 decision (as to the matter of entitlement to a disability rating higher than 10 percent for left knee instability). The Court found that the Board's May 2020 decision contained an inconsistency in noting that the November 2006 and April 2016 VA examination reports indicated that the Veteran's left knee was stable on testing when the April 2006 VA examination did not conduct stability testing and the April 2016 VA examination noted that joint stability testing was not performed. During his November 2006 VA examination, the Veteran underwent a general examination. He reported chronic left leg pain that started in 1991 without a known injury. He denied weakness of the left lower extremity. He denied the condition causing him any other restriction in his ability to carry out normal daily home activities, other than left leg pain, sometimes radiating pain, and an inability to sit for prolonged periods of time. Upon examination, no deformities of his left leg were noted. There was no tenderness to palpitation on any aspect of the leg. No edema or erythema was noted. The Veteran demonstrated normal muscle strength of all muscle groups of the left lower extremity. Range of motion testing for the left leg was normal and without pain. Repetitive motion testing did not produce any additional pain, change in range of motion, fatigability, weakness, or incoordination. His gait was normal, and no assistive devices were used to ambulate. In April 2016, the Veteran underwent a knee and lower leg conditions VA examination. He was diagnosed with left knee osteoarthritis and piriformis syndrome of the left leg. The Veteran reported that both knees buckled periodically. No flare-ups were reported. He reported functional loss of his bilateral knees manifested by difficulty using stairs, an inability to run, and tolerate prolonged walking or standing. Left knee range of motion was normal. A reduction of left knee muscle strength was noted (4/5 with flexion and extension). The Veteran did not have muscle atrophy. The examiner noted that there was not a history of recurrent subluxation, lateral instability, or recurrent effusions. The examiner noted that joint stability testing was not performed. Based on the above, the Board notes that the November 2006 and April 2016 VA examinations do not objectively show that the Veteran's left leg was stable, nor do they objectively show that the Veteran had left leg instability. However, during the April 2016 VA examination, the Veteran indicated that his left leg occasionally buckled, which remains consistent throughout the appeal period. Nevertheless, the Board finds that a rating higher than 10 percent disabling is not warranted for the Veteran's left knee instability at any time during the claims period. The award of a 10 percent evaluation for left knee instability is based solely on the Veteran's lay reports of giving way of the knee; there is no competent medical evidence of instability. The left knee was stable to testing at the January 2007, December 2013, and August 2019 VA examinations and none of the Veteran's treating physicians at the VAMC has ever observed left knee instability. The November 2006 VA examiner noted that no deformities of his left leg were noted upon examination. Additionally, in June 2016 and May 2019, VA treating physicians noted that his instability had resolved, though this finding appears to reference specific exacerbations of instability that the Veteran treated with various stretching exercises. As there is no objective evidence of left knee instability, the Board finds that the Veteran's disability most nearly approximates slight instability and an initial rating higher than 10 percent is not warranted. In sum, the Board finds that the Veteran is entitled to a separate 10 percent disability rating for instability of the left knee under DC 5257 from September 1, 2006, the day after his discharge from active service. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.7, 4.21. The evidence of record establishes that the Veteran experienced, at worst, slight instability of his left knee. The award of a 10 percent evaluation for left knee instability is based solely on the Veteran's lay reports of giving way of the left knee. There is no competent medical evidence of instability. VA treatment records have not reflected treatment of, or a diagnosis of, left knee instability. Therefore, a 10 percent rating under DC 5257 is warranted. A rating more than 10 percent under DC 5257 is not warranted as overall the lay and medical evidence does not show that the Veteran experiences moderate recurrent subluxation or lateral instability in his left knee. Due to the general absence of objective evidence of instability overall during the appeal period, the Board does not find that a higher 20 percent rating under the revised diagnostic criteria, which requires persistent instability, is warranted. Thus, a 10 percent rating, but no higher, for left knee instability is warranted as of September 1, 2006. To the extent the Veteran contends that a higher rating is warranted, the appeal is denied. MARTHA R. LUBOCH Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Costello, 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.