Citation Nr: 22010519
Decision Date: 02/23/22	Archive Date: 02/23/22

DOCKET NO. 15-23 913
DATE: February 23, 2022

ORDER

From March 11, 2013, entitlement to an initial disability rating in excess of 10 percent, for the Veteran's right knee disability, characterized as mild patella enthesopathy with limitation of motion and pain, is denied.

From March 11, 2013, entitlement to a separate disability rating of 10 percent, but no higher, for the Veteran's right knee disability with instability is granted, subject to controlling regulations governing the payment of monetary awards.

FINDINGS OF FACT

1. From March 11, 2013, the Veteran's symptoms of patellar enthesopathy of the right knee was manifested by a range of motion, of at worst, flexion to 115 degrees and extension to 0 degrees, with consideration of functional loss during flareups and with repeated use over time. The Veteran's symptoms did not more nearly approximate a range of motion of flexion to 30 degrees or extension to 10 degrees, including with consideration of functional loss during flare-ups and with repeated use over time.

2. From March 11, 2013, the Veteran's patellar enthesopathy of the right knee produced a slight right knee lateral instability. However, the evidence of record does not show that these symptoms more nearly approximated moderate or severe lateral instability or subluxation.

CONCLUSIONS OF LAW

1. From March 11, 2013, the criteria for an initial disability rating in excess of 10 percent, for the Veteran's patellar enthesopathy of the right knee with limitation of motion and pain, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.10, 4.71a, Diagnostic Code 5260.

2. From March 11, 2013, the criteria for an additional disability rating of 10 percent, but no higher, for the Veteran's patellar enthesopathy of the right knee with instability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.10, 4.71a, Diagnostic Code 5257.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served in the United States Army from February 1968 to February 1970.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2014 Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) rating decision, which granted service connection for mild patella enthesopathy of the right knee with a non-compensable (0 percent) disability rating effective March 11, 2013. In June 2015, the Veteran filed a timely appeal of the initial rating assigned in the January 2014 rating decision.

This issue was previously before the Board in February 2021, at which time, the issue was remanded to the AOJ for further development. On remand, and in a July 2021 rating decision, the AOJ increased the Veteran's initial disability rating for right knee mild patellar enthesopathy to 10 percent, which was also effective March 11, 2013.  Because the increase in evaluation of the Veteran's right disability did not represent the maximum evaluation available for the condition, the Veteran's claim remained in appellate status. See AB v. Brown, 6 Vet. App. 35, 38 (1993).

The issue was returned to the Board for further appellate action in November 2021, at which time, the Board remanded the issue to the AOJ for further development. As shown below, there has been substantial compliance with the February 2021 and November 2021 remand directives, with respect to the issue being decided. See Stegall v. West, 11 Vet. App. 268, 271 (1998).

Increased Rating

Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. In a claim for a higher original rating after an initial award of service connection, all of the evidence submitted in support of the Veteran's claim is to be considered. See Fenderson v. West, 12 Vet. App. 119, 127 (1999).

1. Entitlement to an initial rating in excess of 10 percent for a right knee disability

During the course of this appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended, effective February 7, 2021. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020). These amendments revised certain 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. See 38 U.S.C. § 5110(g); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). 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. Id. Therefore, where applicable, the Board will consider the Veteran's claims 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.

Disabilities of the knee are rated under Diagnostic Codes 5256 to 5263. 38 C.F.R. § 4.71a.

Under Diagnostic Code 5256, ankylosis of the knee in a favorable angle in full extension, or in slight flexion between 0 and 10 degrees warrants a 30 percent rating. Ankylosis of the knee in flexion between 10 and 20 degrees warrants a 40 percent rating. Ankylosis of the knee in flexion between 20 and 45 degrees warrants a 50 percent rating. Extremely unfavorable ankylosis of the knee, in flexion at an angle of 45 degrees or more warrants a 60 percent rating. 38 C.F.R. § 4.71a.

Diagnostic Code 5260 provides that a 10 percent rating is warranted for flexion limited to 45 degrees; a 20 percent rating is warranted for flexion limited to 30 degrees; and a 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a.

Diagnostic Code 5261 provides that 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; and a 50 percent rating is warranted for extension limited to 50 degrees. 38 C.F.R. § 4.71a.

For comparison, normal range of motion of the knee is from 0 degrees of extension to 140 degrees of flexion. See 38 C.F.R. § 4.71, Plate II.

Prior to February 7, 2021, recurrent subluxation and lateral instability of the knee warranted a 10, 20, or 30 percent rating if slight, moderate, or severe, respectively under Diagnostic Code 5257. 38 C.F.R. § 4.71a. The terms "slight," "moderate," and "severe" were not defined.

Under the amended diagnostic code, a 10 percent rating is warranted where a sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causes persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. Alternatively, 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. 85 Fed. Reg. at 76463.

A 20 percent rating is warranted where: (a) a sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device for ambulation; or (b) an unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device or bracing for ambulation. Alternatively, 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 a brace, cane, or walker. Id.

A maximum 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 and bracing for ambulation. Alternatively, 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 a walker. Id.

The patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Id. at Note (1) (2020). A surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). Id. at Note (2) (2020).

Diagnostic Codes 5258 and 5259, which provide ratings for semilunar cartilage conditions, remained the same under the revised criteria. When the knee disability affects the meniscus, a 20 percent rating is warranted when there is dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. 38 C.F.R. § 4.71a, Diagnostic Code 5258. A 10 percent rating is warranted when there has been removal of semilunar cartilage (e.g., meniscectomy) and current residual symptoms. 38 C.F.R. § 4.71a, Diagnostic Code 5259.

Under the former criteria in effect prior to February 7, 2021, Diagnostic Code 5010 provides that arthritis due to trauma is to be rated as degenerative arthritis. 38 C.F.R. § 4.71a (2020). The revised version of Diagnostic Code 5010 provides that post-traumatic arthritis is rated as limitation of motion, dislocation, or other specified instability under the affected joint. If there are two or more joints affected, each rating shall be combined in accordance with 38 C.F.R. § 4.25. Under the amendment, Diagnostic Code 5002 was also renamed from rheumatoid arthritis to multi-joint arthritis to consider all systemic arthritis (except post-traumatic and gout). The rating criteria for Diagnostic Code 5003, which provides ratings for degenerative arthritis, was not revised other than to clarify that Diagnostic Code 5003 pertains to degenerative arthritis other than post-traumatic. Formerly, this code applied to arthritis, degenerative (hypertrophic or osteoarthritis).

Under both the former and current criteria, Diagnostic Code 5003, degenerative arthritis established by x-ray findings is to be rated based on limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When the limitation of motion of the specific joint or joints involved is non-compensable under the appropriate diagnostic codes, a 10 percent evaluation is assignable to each such major joint or group of minor joints affected by limitation of motion, to be combined, not added, under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2020).

In the absence of limitation of motion, a 10 percent rating is assigned for x-ray evidence of involvement of two or more major joints or two or more minor joint groups, and a 20 percent rating is assigned for x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. Note (1) provides that the 20 percent and 10 percent ratings based on x-ray findings, above, will not be combined with ratings based on limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003.

The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, with or without degenerative arthritis, it is the intention to recognize painful, unstable, or mal-aligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59; see Burton v. Shinseki, 25 Vet. App. 1, 5 (2011) (holding that the provisions of 38 C.F.R. § 4.59 are not limited to disabilities involving arthritis).

Moreover, when evaluating musculoskeletal disabilities, VA may, in addition to applying the schedular criteria, assign a higher disability rating when the evidence demonstrates functional loss due to limited or excessive movement, pain, weakness, excessive fatigability, or incoordination, to include during flare-ups and with repeated use, if those factors are not considered in the rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202 (1995); Burton, 25 Vet. App. at 5.

Nonetheless, a disability rating higher than the minimum compensable rating is not assignable under any diagnostic code relating to range of motion where pain does not cause a compensable functional loss. Rather, the "pain must affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance," as defined in 38 C.F.R. § 4.40, before a higher rating may be assigned. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011).

In Correia v. McDonald, 28 Vet. App. 158, 169-170 (2016), the United States Court of Appeals for Veterans Claims (Court) clarified the additional requirements that VA examiners should address when assessing musculoskeletal disabilities, holding specifically, that 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.

In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must provide opinions regarding flare-ups based upon estimates derived from information procured from relevant sources, including lay statements, when a flare-up is not observable at the time of examination.

The Board notes that there are additional diagnostic codes that pertain to the knee. However, as shown in multiple VA examinations, the service-connected right knee disability symptoms in this case have not either manifested as or been attributed to a meniscus disorder, semilunar cartilage removal, impairment of the tibia or fibula, or genu recurvatum. Therefore, separate, or higher disability ratings under the additional knee diagnostic codes do not merit further consideration. 38 C.F.R. §§ 4.14, 4.71a; Diagnostic Codes 5258, 5259, 5262, 5263.

The Veteran's service-connected right knee disability characterized as mild patella enthesopathy is currently rated as 10 percent disabling under Diagnostic Code 5260, which provides ratings for limitation of flexion. See 38 C.F.R. § 4.71a.

Resolving reasonable doubt in favor of the Veteran, after a review of the evidence and for reasons set forth below, the Board finds that an initial additional 10 percent disability rating is warranted for the Veteran's service-connected right knee disability manifested by slight instability, from March 11, 2013. Further, the Board finds that an initial rating in excess of 10 percent is not warranted for the Veteran's service-connected right knee disability with limitation of motion and pain, at any point during the period on appeal.

Pursuant to the February 2021 Board remand, the Veteran was afforded a VA examination in May 2021, which is in substantial compliance with applicable law and regulations, including the requirements of Correia and Sharp.

The Board has considered and relied on lay statements of record regarding the severity of the Veteran's right knee disability in determining the appropriate disability rating under the benefit-of-the-doubt doctrine. 38 C.F.R. §§ 4.3, 4.7.

The Veteran has reported progressive and constant moderate right knee pain. See February 2013 private examination, May 2021 VA examination; see also December 2013, May 2015 VA examinations. The Veteran has also reported flare-ups of severe right knee pain and stiffness as frequently as once a month for approximately 1 to 2 days. See May 2021 VA examination; see also May 2015 VA examination (right knee pain as frequently as twice a year for approximately a month). The Veteran has reported that his right knee pain would be intensified with weight bearing, walking, and transitioning from one position to another. See February 2013 private examination, May 2021 VA examination. See also May 2015, May 2021 VA examinations. In addition, he reported that he had flare-ups of right knee pain and stiffness with activity. See December 2013 VA examination. The Veteran also reported leg pain when driving for long periods. See May 2015 VA examination. The Veteran reported that the symptoms of his right knee disability during flare-ups resulted in limitation of function which included inability to walk due to the severity of the pain. See March 2021 VA examination. Finally, during the March 2021 VA examination, the Veteran reported that his right knee disability impacted his ability to work. But see December 2013, May 2015 VA examinations (no impact). In March 2021, the Veteran reported that he was a retired former nursey owner and had lost up to 1 week of work time during the preceding 12 months due to the symptoms of his right knee disability.

The Veteran is competent to report on factual matters of which he has firsthand knowledge and his statements regarding his symptoms are also credible, and thus, probative. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Baldwin v. West, 13 Vet. App. 1 (1999). Where the Veteran has not discussed particular findings that are necessary for application to the rating criteria, the Board has accorded greater probative weight to objective medical findings of record which specifically address the rating criteria. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993).

The March 2021 VA examiner has opined that the Veteran's right knee disability may have impacted the Veteran's ability to perform prolonged walking, standing, and running, repetitive squatting, and heavy lifting.

Throughout the period on appeal, the evidence of record reflects that the symptoms of the Veteran's right knee disability were manifested by at worst, limitation of flexion to 115 degrees and extension to 0 degrees, including with consideration of functional loss during flare-ups and with repeated use over time. See December 2013 VA examination (flexion to 130 degrees and extension to 0 degrees without pain; after 3 repetitions flexion to 130 degrees and extension to 0 degrees); May 2015 VA examination (flexion to 140 degrees and extension to 0 degrees without pain; after 3 repetitions flexion to 140 degrees and extension to 0 degrees without pain); March 2021 VA examination (active flexion to 125 degrees and extension to 0 degrees with pain on flexion at 125 degrees; passive flexion to 140 degrees and extension to 0 degrees with pain on flexion at 125 degrees; estimate after repeated use over time flexion to 120 degrees and extension to 0 degrees; estimate during flare-ups flexion to 115 degrees and extension to 0 degrees). The February 2013 private examiner noted that physical examination revealed adequate flexion and extension. The February 2013 private examiner also noted that palpation revealed crepitus of the right knee joint. See also March 2021 VA examination. Physical examination also revealed that the Veteran had normal muscle strength without atrophy of the right knee throughout the period on appeal. See December 2013 VA examination (normal muscle strength); May 2015 VA examination (normal muscle strength without atrophy); March 2021 VA examination (no muscle atrophy).

In addition, the Board notes that the Veteran's right knee disability does not reflect findings of favorable or unfavorable ankylosis at any time during the pendency of the appeal. 38 C.F.R. § 4.71a, Diagnostic Code 5256. The medical evidence of record clearly shows that the Veteran's right knee was not ankylosed at any level. See February 2013 private examination; December 2013, May 2015, March 2021 VA examinations. Although the Veteran's right knee disability does manifest in some limitation of motion from pain and stiffness, it was not in a fixed position without motion at any degree or angle, even during flare-ups or with repeated use over time, nor does the Veteran contend otherwise. See 38 C.F.R. §§ 4.40, 4.45, 4.59; Chavis v. McDonough, 34 Vet. App. 1, 23-24 (2021); see also DeLuca v. Brown, 8 Vet. App. 202 (1995); Burton, supra.

Based on the evidence as outlined above, the Board finds that the Veteran's right knee disability does not warrant a rating in excess of 10 percent for the entire period on appeal under Diagnostic Code 5260. As noted, the evidence of record reflects that the symptoms of the Veteran's right knee disability were manifested by a range of motion, of at worst, limitation of flexion to 115 degrees, including with consideration of functional loss during flare-ups and with repeated use, throughout the period on appeal. The Veteran's symptoms did not more nearly approximate a range of motion of flexion to 30 degrees, including with consideration of functional loss during flare-ups or with repeated use over time, the requirement for a 20 percent rating under Diagnostic Code 5260. See 38 C.F.R. § 4.71a. The evidence is neither evenly balanced nor approximately so with regard to whether a rating in excess of 10 percent for right knee limitation of motion with pain is warranted. Rather, the evidence persuasively weighs against a finding of entitlement to a rating in excess of 10 percent for right knee limitation of motion with pain; thus, the benefit of the doubt doctrine is therefore not for application. Lynch v. McDonough, __ F.4th __, No. 2020-2067, 2021 U.S. App. LEXIS 37312 (Fed. Cir. Dec. 17, 2021).

In addition, the Veteran's right knee disability does not warrant a compensable rating for limitation of extension for the entire period on appeal under Diagnostic Code 5261. As noted, the evidence of record reflects that the symptoms of the Veteran's right knee disability were manifested by a range of motion, of at worst, limitation of extension to 0 degrees, including with consideration of functional loss during flare-ups and with repeated use. The Veteran's symptoms did not more nearly approximate a range of motion of extension to 10 degrees, including with consideration of functional loss during flare-ups or with repeated use over time, the requirement for a compensable rating under Diagnostic Code 5261. See 38 C.F.R. § 4.71a. The evidence persuasively weighs against a finding of entitlement to a compensable rating for limitation of extension for the Veteran's right knee disability. Lynch, supra. The Veteran's symptoms of chronic pain and limitation of motion are already contemplated in his 10 percent rating under Diagnostic Code 5260. The Veteran cannot receive another 10 percent rating for pain under any other code contemplating limited and painful motion as this would result in compensating the Veteran twice for the same manifestation of his right knee under Diagnostic Code 5261. See 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). See 38 C.F.R. § 4.71a; Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991).

In addition, for reasons set forth below, the Board finds that the Veteran's right knee disability does not warrant a compensable rating under Diagnostic Code 5003 for degenerative arthritis of the right knee. The preponderance of the evidence reflects that the Veteran has a current diagnosis of mild patellar enthesopathy of the right knee. See December 2013, May 2015, March 2021 VA examinations. The Veteran does not have a current diagnosis of degenerative arthritis in his right knee, which has been substantiated by x-ray findings. A December 2013 x-ray revealed findings of mild patellar enthesopathy; and suprapatellar density, which the evaluator opined may have represented small effusion. The evaluator noted that the Veteran's knee was negative for significant degenerative joint disease (DJD), acute fracture or dislocation. See December 2013 VA examination. In contrast the February 2013 private examiner opined that the Veteran had post traumatic residual degenerative joint disease of the right knee. However, the private examiner did not discuss any x-rays or other diagnostic tests which would have substantiated the diagnosis. See also June 2015 private opinion.

Although the May 2015 and March 2021 VA examinations do not include reference to current x-rays or other diagnostic tests, the Board finds that an additional remand is not necessary, to substantiate whether the Veteran has a current diagnosis of degenerative arthritis. Even if the Veteran were found to have a current diagnosis of arthritis, the Veteran's right knee disability would not warrant a rating in excess of 10 percent for arthritis under Diagnostic Code 5003, because the Veteran has already been granted a 10 percent rating for limitation of motion of the right knee with pain under Diagnostic Code 5260. VA examinations and treatment records during this appeal period have reflected limited and painful, albeit not compensable, motion. When there is "no actual or compensable limitation of motion," compensation for functional limitation in the form of pain is limited to a single 10 percent disability rating per joint or joint group. See Mitchell, supra. The Veteran's symptoms of chronic pain and limitation of motion are already contemplated in his 10 percent rating under Diagnostic Code 5260. The Veteran cannot receive another 10 percent rating for pain under any other code contemplating limited and painful motion as this would result in compensating the Veteran twice for the same manifestation of his right knee under Diagnostic Code 5003. See 38 C.F.R. § 4.14; Esteban, supra. See 38 C.F.R. § 4.71a; Lichtenfels, supra.

The Board has considered whether the Veteran is entitled to a higher rating under Diagnostic Code 5257, which provides rating for recurrent subluxation and lateral instability of the knee. The February 2013 private examiner noted that that orthopedic evaluation of the Veteran revealed lateral instability. See also June 2015 private opinion. However, the December 2013, May 2015, and March 2021 VA examinations indicate that joint stability testing revealed no instability of the right knee. Finally, the May 2015 VA examination indicated that the Veteran occasionally used a cane due to bilateral leg pain; but see December 2013, March 2021 VA examinations (no use of assistive devices).

Although, the Board notes that there is some conflicting medical evidence of whether the Veteran's right knee has lateral instability, the February 2013 private examination supports a finding of lateral instability of the right knee. Therefore, a separate 10 percent rating, but no higher, is warranted for slight lateral instability of the right knee under the prior criteria for Diagnostic Code 5257.

The Board notes that the February 2013 private examiner did not discuss the severity of the Veteran's lateral instability of the right knee. The Board finds that the repeated normal findings regarding right knee stability indicate that the symptoms did not more nearly approximate moderate lateral instability under the prior criteria for Diagnostic Code 5257. Moreover, although the May 2015 VA examination indicates that the Veteran used a cane due to leg pain, there is no evidence that the use of a cane was prescribed by a medical provider for ambulation; or that the Veteran underwent a surgical procedure to repair a ligament tear, the requirement for a 20 percent rating under the recent criteria for Diagnostic Code 5257. Id. The evidence is neither evenly balanced nor approximately so with regard to whether a separate rating in excess of 10 percent for instability of the right knee is warranted. Rather, the evidence persuasively weighs against a finding of entitlement to a separate rating in excess of 10 percent for instability of the right knee; thus, the benefit of the doubt doctrine is therefore not for application. Lynch, supra.

The Board notes that the February 2013 findings of lateral instability of the Veteran's right knee do not necessarily overlap with the painful and limited motion currently rated under Diagnostic Code 5260. See VAOPGCPREC 23-97 (July 1997) and VAOPGCPREC 9- 98, (August 1998) (holding that separate ratings may be assigned for arthritis of the knee with limited motion and instability of the knee and/or cartilage impairment with associated locking and effusion); Esteban, 6 Vet. App. at 261-62. As these symptoms do not necessarily overlap with limitation of motion, a separate rating under Diagnostic Code 5260 does not violate the rule against pyramiding. See 38 C.F.R. § 4.14.

The Board has considered the Veteran's claim for a higher initial rating for his right knee disability and decided entitlement based on the evidence. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claim. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (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).

Resolving reasonable doubt in favor the Veteran, the Board finds that an additional 10 percent rating is warranted for the Veteran's right knee disability characterized as mild patellar enthesopathy with lateral instability throughout the period on appeal. Based on the evidence as outlined above, the Board finds that the Veteran's mild patellar enthesopathy with limitation of motion and pain does not warrant an initial disability rating in excess of 10 percent, at any point during the period on appeal. In reaching this decision, the Board has considered the benefit of the doubt doctrine. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

 

 

RAY BARTO SLABBEKORN, JR.

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	G. Johnson, 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.