Citation Nr: 21042659 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 17-04 693 DATE: July 13, 2021 ORDER A rating in excess of 10 percent prior to November 1, 2016, for a right knee disorder, to include a chronic strain reaction and a total knee arthroplasty, is denied. A 20 percent rating, but no more, is granted between November 1, 2016, and April 17, 2017, for a right knee disorder to include a chronic strain reaction and a total knee arthroplasty, subject to the rules and regulations governing the payment of benefits. A rating in excess of 30 percent since June 1, 2018, for a right knee disorder, to include a chronic strain reaction and a total knee arthroplasty, is denied. FINDINGS OF FACT 1. The Veteran had active service from May 1968 to May 1972. 2. Prior to November 1, 2016, the Veteran's right knee disorder was characterized by subjective complaints of increased pain, difficulty swelling, and occasional swelling; objective findings include slight effusion in the knee and good range of motion with pain on flexion. 3. Between November 1, 2016, and April 17, 2017, the Veteran's right knee disorder was characterized by subjective complaints of chronic ongoing pain, frequent swelling with prolonged weight bearing, stiffness, fatigue, and limited motion; objective findings include flexion to 110 degrees, extension measured between 110 and 0 degrees, no ankylosis, recurrent subluxation, lateral instability, and tibial or fibular impairment, and a semilunar cartilage condition characterized by a meniscal tear and frequent episodes of joint pain and effusion, and a "sense of looseness" in the knee. 4. Since June 1, 2018, the Veteran's right knee disorder has been characterized by subjective complaints including intermittent stiffness, fatigue, and pain aggravated by prolonged weightbearing activities, to include standing, walking, and climbing stairs; objective findings have included extension measured between 120 and 5 degrees and no ankylosis, severe painful motion, severe weakness, and tibial or fibular impairments. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for a right knee disorder prior to November 1, 2016, have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.59, 4.71a, Diagnostic Codes (DCs) 5055, 5256 - 5262 (2020), DCs 5055, 5256 5262 (2021). 2. Resolving reasonable doubt in the Veteran's favor, the criteria for a 20 percent rating, but no more, for a right knee disorder between November 1, 2016, and April 17, 2017, have been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.59, 4.71a, DCs 5055, 5256 - 5262 (2020), DCs 5055, 5256 5262 (2021). 3. The criteria for a rating in excess of 30 percent for a right knee disorder since June 1, 2018, have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.59, 4.71a, DCs 5055, 5256 - 5262 (2020), DCs 5055, 5256 5262 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As a procedural matter, in January 2019, the Board remanded the claim on appeal for additional development, to include obtaining a VA examination of the then-current status of the Veteran's right knee disorder. His case has now been returned for further appellate action. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. In addition to the above, the Board notes that during the pendency of his appeal, the criteria for rating disabilities of the musculoskeletal system have been revised. The pre-amended rating criteria for evaluating such disabilities were in effect through February 6, 2021, and then were revised, effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). If a law or regulation changes during the course of a claim or an appeal, the version more favorable will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the amended 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 pre-amended regulation 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 claim under the pre-amended criteria prior to February 7, 2021, and both the pre-amended and current rating criteria, applying the criteria that is more favorable to the Veteran, from February 7, 2021. Under the pre-amended criteria, the Veteran's right knee disorder was rated at 10 percent prior to April 17, 2017, under DC 5260 and at 30 percent as of June 1, 2018, under DC 5055. The Board will consider all relevant diagnostic codes. Under the pre-amended criteria, a higher rating was warranted if the medical evidence established the following: Moderate recurrent subluxation or lateral instability (20 percent under DC 5257); Dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint (20 percent under DC 5258); Flexion limited to 30 degrees (20 percent under DC 5260); Extension limited to 15 degrees (20 percent under DC 5261); Impairment of the tibia or fibula with moderate knee or ankle disability (20 percent under DC 5262); Ankylosis of the knee with a favorable angle in full extension or in slight flexion between 0 and 10 degrees (30 percent under DC 5256); Severe recurrent subluxation or lateral instability (30 percent under DC 5257); Flexion limited to 15 degrees (30 percent under DC 5260); Extension limited to 20 degrees (30 percent under DC 5261); Malunion of the tibia or fibula with marked knee or ankle disability (30 percent under DC 5262); Ankylosis of the knee in flexion between 10 and 20 degrees (40 percent under DC 5256); Extension limited to 30 degrees (40 percent under DC 5261); Nonunion of the tibia and fibula with loose motion, requiring a brace (40 percent under DC 5262) Prosthetic replacement of the knee joint with chronic residuals consisting of severe painful motion or weakness in the affected extremity (60 percent under DC 5055). Under the current criteria, the Veteran's right knee disorder remains rated at 30 percent under DC 5055 for prosthetic replacement of the knee joint. The Board will consider all relevant diagnostic codes. Under the current criteria, a higher rating is warranted if the medical evidence shows the following: Ankylosis of the knee in flexion between 10 and 20 degrees (40 percent under DC 5256); Extension limited to 30 degrees (40 percent under DC 5261); Nonunion of the tibia and fibula with loose motion, requiring a brace (40 percent under DC 5262); or Prosthetic replacement of the knee joint with chronic residuals consisting of severe painful motion or weakness in the affected extremity (60 percent under DC 5055). The Board notes that the Veteran was assigned a temporary 100 percent rating for his right knee disorder between April 17, 2017, and May 31, 2018. As such, his increased rating claim is moot for that period of time and the Board will address whether an increased rating for the Veteran's right knee for the periods prior to April 17, 2017 and since June 1, 2018. Rating Period Prior to November 1, 2016 In medical treatment notes between March 2015 and August 2015, the Veteran reported experiencing increased knee pain secondary to alterations made to his gait as a result of a right foot disorder, noting that he had difficulty standing and occasional swelling. Clinicians diagnosed advanced degenerative changes in the right knee, noting a slight effusion in his knee and good range of motion with pain on flexion. In an August 2015 statement, the Veteran recounted that he previously had arthroscopic surgery to repair the meniscus and anterior cruciate ligament (ACL) in his right knee. He described receiving a regimen of 5 shots of hyaluronic acid, as well as a knee brace, to treat his right knee and alleviate his knee pain. Based on the above, a rating in excess of 10 percent is not warranted prior to November 16, 2016 under the pre-amended criteria. In this regard, the Veteran described experiencing knee pain and swelling, as well as requiring a knee brace for treatment. Furthermore, clinicians observed pain with flexion and noted a slight effusion into his knee. However, the clinicians did not measure his range of motion or find that he had ankylosis, recurrent subluxation or lateral instability, dislocated semilunar cartilage, or a tibial or fibular impairment. Accordingly, the medical evidence does not support a rating in excess of 10 percent prior to November 1, 2016, for his right knee disorder under the pre-amended criteria. Rating Period Between November 1, 2016, and April 17, 2017 On November 1, 2016, the Veteran was afforded a VA examination. He reported chronic ongoing pain in his right knee despite arthroscopic knee surgery in 2005 and ACL repair surgery in 2007. He stated that while he underwent a series of hyaluronic acid injections, they failed to provide lasting relief. Rather, he experienced frequent swelling of his right knee with prolonged weight bearing, avoided stairs as much as possible, and said that he used ramps when given the choice. He finally described flare-ups triggered by prolonged walking or climbing stairs with associated functional loss that included pain, stiffness, and diminished range of motion. Upon examination, the range of motion of the Veteran's right knee was measured as follows: flexion to 110 degrees and extension from 110 degrees to 0 degrees. The examination revealed pain on flexion and extension that caused functional loss, pain with weight bearing, and objective evidence of a Baker Cyst on the posterior knee and peripatellar tenderness and joint line tenderness with palpation. The examiner further found no ankylosis, no tibial or fibular impairment, and no history of recurrent subluxation or lateral instability. However, the examiner observed that the Veteran had a meniscectomy and ACL repair with residuals including continued pain and swelling with prolonged weight bearing. The examiner additionally noted that he constantly used a knee brace and occasionally used a cane. Finally, the examination established a semilunar cartilage condition in his right knee characterized by a meniscal tear, frequent episodes of pain and effusion in the joint, and a "sense of looseness" in the right knee. Subsequently in January 2017, the Veteran asserted that his right knee pain resulted in limited motion and fatigue. He asserted that his right knee disorder inhibited his ability to accomplish his daily tasks and ultimately described himself as "very limited in [his] abilities." Based on the above, the record supports a rating of 20 percent, but no more, under the pre-amended criteria for the Veteran's right knee disorder between November 1, 2016, and April 17, 2017. In this regard, the November 2016 VA examination reflects that the Veteran had a semilunar cartilage condition with frequent episodes of joint pain and joint effusion. Accordingly, resolving reasonable doubt in the Veteran's favor, the evidence supports a 20 percent rating between November 1, 2016, and April 17, 2017, under the pre-amended criteria. Nevertheless, a rating in excess of 20 percent is not warranted. In this regard, the November 2016 VA examination failed to establish that the Veteran had ankylosis of the right knee or a tibial or fibular impairment. Similarly, the examiner found no history of recurrent subluxation or lateral instability. Finally, extension of the right knee was measured in excess of 20 degrees. Therefore, the evidence does not support a higher rating for the Veteran's right knee disorder between November 1, 2016, and April 17, 2017. Rating Period Since June 1, 2018 In a medical treatment note, the Veteran reported that he underwent a right knee replacement in 2017 that bothered him when he was on his feet for prolonged periods of time and walking. However, his reported symptoms did not reflect severe painful motion or weakness. In a subsequent October 2019 VA examination, he denied swelling in his right knee but described experiencing intermittent stiffness and dull pain below his knee joint that was aggravated by prolonged standing, walking and climbing stairs. He asserted that his right knee disorders resulted in functional loss or impairment characterized by stiffness and fatigue upon prolonged weightbearing activities. Upon examination, the range of motion of his right knee was measured as follows: flexion between 5 and 120 degrees and extension between 120 and 5 degrees. The examiner determined that the Veteran's range of motion did not itself contribute to his functional loss and that he did not experience pain with weight bearing, on non-weight bearing, or on passive range of motion. The examination revealed no evidence of localized tenderness or pain on palpation of the joints or associated soft tissue but established objective evidence of crepitus. The examiner finally found no ankylosis, recurrent subluxation, lateral instability, recurrent effusion, meniscal conditions, and tibial or fibular impairments. Based on the above, the medical evidence does not support a rating in excess of 30 percent since June 1, 2018, under either the pre-amended or the current rating criteria. To this end, the Veteran described experiencing intermittent stiffness, fatigue, and dull pain upon prolonged weightbearing activities. However, the medical evidence reflected neither severe painful motion nor severe weakness. Under DC 5055, intermediate degrees of residual weakness, pain or limitation of motion are rated by analogy to DCs 5256, 5261, and 5262. However, the October 2019 VA examination identified no ankylosis or tibial or fibular disorder of his right knee. Additionally, the extension of his right knee was measured in excess of 30 degrees. Accordingly, a rating in excess of 30 percent since June 1, 2018, is not warranted for the Veteran's right knee disorder under either the pre-amended or the current rating criteria. The Board has considered the lay statements submitted by the Veteran regarding the current severity of his right knee disorder. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses or observation; however, he is not competent to identify a specific level of disability of his right knee disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran's disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which these disabilities are evaluated. Moreover, as the examiners have the requisite medical expertise to render a medical opinion regarding the degree of impairment caused by the disability and had sufficient facts and data on which to base the conclusions, the Board affords the medical opinions great probative value. As such, these records are more probative than the Veteran's subjective complaints of increased symptomatology. Based on the above, a rating of 20 percent, but no more, is granted between November 16, 2016, and April 17, 2017, and the appeal is otherwise denied. Consideration has been given to assigning staged ratings with respect to the Veteran's right knee disability. However, at no time during the periods in question has the disability warranted higher schedular ratings than those assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). Finally, the Veteran has not raised any other outstanding issues, nor have any other issues been reasonably raised by the record for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). SCOTT W. DALE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Spigelman, 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.