Citation Nr: 21042750 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 13-09 452 DATE: July 13, 2021 ORDER A disability rating in excess of 10 percent for right knee strain with scar (right knee disability) is denied. FINDING OF FACT For the entire rating period on appeal, the Veteran's right knee disability has not been productive of ankylosis, recurrent subluxation or lateral instability, dislocation or removal of the semilunar cartilage, flexion limited to 30 degrees or less, extension limited to 10 degrees or more, malunion or nonunion of the tibia and fibula, genu recurvatum, or the functional equivalent thereof. CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent for right knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5256-5263. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United Coast Guard from May 2001 to January 2009. Her decorations include the Coast Guard Arctic Service Medal, the Coast Guard Presidential Unit Citation, and the Coast Guard Sea Service Ribbon. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in Roanoke, Virginia. In her March 2013 substantive appeal, the Veteran indicated that she wanted to appear at a Board hearing. However, she later withdrew that request, through her authorized representative, in September 2016. See 38 C.F.R. § 20.704(e). In December 2016, the Board remanded the issue currently on appeal to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denial and returned the case to the Board. See April 2020 supplemental statement of the case. A disability rating in excess of 10 percent for right knee disability is denied. The Veteran seeks to establish a disability rating in excess of 10 percent for her service-connected right knee disability. Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the evaluations to be assigned to the various disabilities. If 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 criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. If different disability ratings are warranted for different periods of time over the life of a claim, "staged" ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). With any form of arthritis, painful motion is an important factor of disability; the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. The intent of the schedule is to recognize painful motion with joint or particular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. The Veteran's right knee disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5024. Under that diagnostic code, the disability is rated based on limitation of motion of the affected part, as degenerative arthritis. The record reflects that the Veteran is in receipt of a 10 percent rating for the right knee disability based on otherwise noncompensable limitation of motion. See 38 C.F.R. § 4.59. As an initial matter, the Board notes that the rating criteria for certain musculoskeletal disabilities have been amended, effective February 7, 2021. The Board may continue to apply the old rating criteria to rating periods prior to February 7, 2021, but may apply whichever set of criteria is more favorable to the period on and after February 7, 2021. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Prior to February 7, 2021, Diagnostic Code 5256 provided that a 30 percent rating was warranted for ankylosis with favorable angle in full extension, or in slight flexion between 0 and 10 degrees. Under Diagnostic Code 5257, a 10 percent rating was warranted for slight recurrent subluxation or lateral instability. A 20 percent rating was warranted for moderate recurrent subluxation or lateral instability, and a 30 percent rating was warranted for severe recurrent subluxation or lateral instability. Diagnostic Code 5258 provided that a 20 percent rating was warranted for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. Diagnostic Code 5259 provided that a 10 percent rating was warranted for symptomatic removal of the semilunar cartilage. Under Diagnostic Code 5260, a noncompensable rating was warranted for flexion limited to 60 degrees. A 10 percent rating was warranted for flexion limited to 45 degrees; a 20 percent rating was warranted for flexion limited to 30 degrees; and a 30 percent rating was warranted for flexion limited to 15 degrees. Under Diagnostic Code 5261, a noncompensable rating was assigned when extension was limited to 5 degrees. A 10 percent rating was assigned when extension was limited to 10 degrees, a 20 percent rating when limited to 15 degrees, a 30 percent rating when limited to 20 degrees, a 40 percent rating when limited to 30 degrees, and a 50 percent rating when limited to 45 degrees. Normal range of motion of the knee is to 0 degrees of extension and 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. Diagnostic Code 5262 addressed tibia and fibula impairment and provided a 10 percent rating for malunion with slight knee disability. A 20 percent rating was assigned for malunion with moderate knee disability, a 30 percent rating for malunion with marked knee disability, and a 40 percent rating for nonunion with loose motion, requiring a brace. Diagnostic Code 5263 provided for a 10 percent rating for genu recurvatum (acquired traumatic with weakness and insecurity in weight bearing objectively demonstrated). Under the new rating criteria effective February 7, 2021, no changes were made to Diagnostic Code 5256, or to Diagnostic Codes 5258-5261. On the other hand, significant changes were made to Diagnostic Code 5257 and Diagnostic Code 5262. Effective February 7, 2021, Diagnostic Code 5257 provides that for patellar instability, a 10 percent rating is warranted 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 warranted 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 walker. For recurrent subluxation or instability, a 10 percent rating is warranted for 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), crutches(es), walker) or brace for ambulation. A 20 percent rating is warranted for one of the following: a) a sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive devices (e.g. cane(s), crutch(es), walker) for ambulation; b) 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), or a walker) 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 (e.g., cane(s), crutch(es), walker) and bracing for ambulation. Diagnostic Code 5262 now provides that for malunion, evaluate under Diagnostic Code 5256, 5257, 5260, or 5261 for the knee, whichever results in the highest evaluation. For medial tibial stress syndrome (MTSS) or shin splints, a noncompensable rating is in order for treatment less than 12 consecutive months, one or both lower extremities. A 10 percent rating is warranted for treatment requiring no less than 12 consecutive months, and unresponsive to either shoe orthotics or other conservative treatment, one or both lower extremities. A 20 percent rating is warranted for treatment requiring no less than 12 consecutive months and unresponsive to surgery and either shoe orthotics or other conservative treatment, one lower extremity. A 30 percent rating is warranted for treatment requiring no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, both lower extremities. A 40 percent rating is warranted for nonunion of, with loose motion, requiring brace. For the reasons set forth below, the Board finds that the preponderance of the evidence is against the assignment of a disability rating in excess of 10 percent for right knee disability, whether under the former or current criteria, as applicable. The Veteran underwent a VA examination of the right knee in March 2010. She reported right knee symptoms of weakness, swelling, giving way, locking, tenderness, and pain. She denied experiencing stiffness, heat, redness, lack of endurance, fatigability, deformity, drainage, effusion, subluxation, and dislocation. She also described flare-ups with resulting functional impairment of an inability to fully bend or straighten the leg, swelling, locking, and limitation of flexion and extension. She further reported difficulty with walking due to swelling. On examination of the knee, the examiner noted that the right knee showed no signs of edema, instability, abnormal movement, effusion, weakness, tenderness, redness, heat, deformity, malalignment, drainage, subluxation, or guarding of movement. The examiner indicated that there was right knee clicking, but no genu recurvatum, locking pain, crepitus, or ankylosis. Flexion of the right knee was to 140 degrees, and extension was to 0 degrees. Joint stability tests were noted as normal, with no signs of subluxation or lateral instability. An x-ray of the right knee was within normal limits. The Veteran underwent another VA examination of the right knee in January 2020. She reported right knee symptoms of pain and stiffness, as well as flare-ups that resulted in functional impairment with prolonged standing and walking. Flexion of the right knee was to 70 degrees, and extension was to 0 degrees. After repetitive use testing, flexion was to 60 degrees, and extension was to 0 degrees. The examiner estimated that right knee flexion would be limited to 50 degrees, and extension to 0 degrees, with repeated use over time, and that right knee flexion would be limited to 40 degrees, and extension limited to 0 degrees, with flare-ups. The January 2020 VA examiner noted that additional contributing factors to the Veteran's disability included less movement than normal, interference with sitting, and interference with standing. Joint stability tests were noted as normal, and there was no history of recurrent subluxation or lateral stability. The examiner noted that there was no ankylosis, and that the Veteran had never had recurrent patellar dislocation, shin splints, stress fractures, chronic exertional compartment syndrome, or any other tibial or fibular impairment. The examiner further indicated that the Veteran had never had a meniscus (semilunar cartilage) condition. Based on the foregoing, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 10 percent for the right knee disability. As noted, the disability has not been productive of ankylosis, limitation of flexion to 30 degrees or less, or limitation of extension to 10 degrees or more. The evidence reflects limitation of right knee flexion, but not to less than 40 degrees, and no limitation of extension, even when considering factors such as pain and other orthopedic factors, as well as flare-ups and repeated use over time. The Board acknowledges the Veteran's lay reports of symptoms, including functional loss due to pain, swelling, locking, interference with standing, and interference with sitting, to include during flare-ups and with repetitive use over time. However, as noted, the January 2020 examiner assessed that the Veteran's impairment, to include during flare-ups and with repeated use over time, would not result in limitation of motion more nearly approximating flexion limited to 30 degrees or less, or extension limited to 10 degrees or more. In arriving at this conclusion, the Board has considered the applicability of other diagnostic codes pertaining to the knee and leg. Other such ratings may be assigned only if the symptomatology is not duplicative or overlapping with the symptomatology that is already being compensated. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). In this regard, the finds that higher or separate ratings under Diagnostic Code 5256 (ankylosis of the knee), Diagnostic Code 5257 (recurrent subluxation or lateral instability), Diagnostic Code 5258 (dislocation of the semilunar cartilage), Diagnostic Code 5259 (removal of the semilunar cartilage), Diagnostic Code 5262 (impairment of tibia and fibula) and Diagnostic Code 5263 (genu recurvatum) are not applicable, as the presence of ankylosis of the right knee, recurrent subluxation or lateral instability, dislocation or removal of the semilunar cartilage, impairment of the tibia and fibula, and genu recurvatum have not been demonstrated. Finally, the record does not show that the right knee disability has been productive of a diagnosed condition involving the patellofemoral complex with recurrent instability, or a sprain with 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), crutches(es), walker) or brace for ambulation. Accordingly, a higher or separate disability rating pursuant to the new rating criteria under Diagnostic Code 5257 (effective February 7, 2011) is not warranted. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for a rating in excess of 10 percent for the service-connected right knee disability. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). However, as the preponderance of the evidence is against the claim, that doctrine does not apply. The appeal of this issue is denied. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Ragheb, 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.