Citation Nr: 22014040 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 12-02 668A DATE: March 11, 2022 ORDER Entitlement to a rating in excess of 20 percent for left knee instability is denied. FINDING OF FACT The Veteran's left knee disability is manifest by no more than moderate instability or a sprain or incomplete ligament tear causing persistent instability. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for left knee instability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257 (2020); 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1994 to July 1998. He testified before the undersigned in February 2018; a transcript of the hearing is associated with the record. The claim has been before the Board several times, most recently in June 2021. There has been substantial compliance with the remand directives and the Board will proceed with adjudication. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran contends that he is entitled to a higher rating because his disability picture is worse than currently rated. The Veteran is separately rated for several manifestations of the left knee disability. This decision is limited to evaluation of instability only. The Veteran's left knee instability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5257, for other impairment of the knee. During the pendency of the claim and appeal, the criteria for rating musculoskeletal disabilities were changed, effective on February 7, 2021. 85 Fed. Reg. 76,453 (November 30, 2020). The amendments provide that the Board should apply the criteria which are more favorable to the Veteran. The amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change; however, the old regulations will be considered for the periods both before and after the change was made. See VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Under the prior version of Diagnostic Code 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, Diagnostic Code 5257. According to MERRIAM WEBSTER'S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), "slight" means small in amount. "Moderate" means limited in scope or effect. "Severe" means very painful or harmful or of a great degree. Objective medical evidence is not required to establish lateral knee instability under Diagnostic Code 5257, so objective medical evidence cannot be categorically found more probative than lay evidence with respect to this Diagnostic Code. See English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). The amended Diagnostic Code 5257 provides ratings for other impairment of the knee based on recurrent subluxation or instability, and patellar instability. 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), crutch(es), walker) or bracing for ambulation. A 20 percent rating is warranted for one of the following: (a) Sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation; or (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), walker) or bracing for ambulation. A maximum 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. In an August 2021 rating decision, the rating for left knee instability was increased to 20 percent, effective November 26, 2004. The Board concludes that the criteria for an increased, 30 percent, rating are not met or more closely approximated under either version of the rating criteria. The Veteran underwent numerous VA examinations over the course of the appeal. A September 2011 VA examination noted the Veteran reported frequent episodes of locking and joint effusion. The examiner noted an inability to test the left anterior and posterior instability but noted the medial-lateral instability was within normal limits. The examiner did not provide a reason for the inability to test anterior and posterior instability. It was noted the Veteran wore a knee brace regularly. On June 2015 VA examination, the examiner said they were unable to perform joint stability testing. The examiner noted the Veteran sat with his left leg outstretched throughout the visit as though "guarding it from examination." Based on a minimal examination, limited to visual and light palpation examination only, the examiner concluded there was symptom embellishment and behavioral signs during the clinical examination findings that were not supported by objective radiological findings. The Veteran reportedly wore a brace daily. On February 2016 VA Examination, the examiner indicated no history of recurrent subluxation or lateral instability. Joint stability testing was "indicated, but not able to perform." The examiner noted that the Veteran cooperated during the initial range of motion but limited and guarding, sat with left knee outstretched and "seemingly could not relax" but reported tenderness to palpation on both medical and lateral joint lines. The examiner noted, however, that there was no signs or symptoms of effusion or inflammation. The Veteran reported regular use of a brace. On June 2017 VA Examination, there was no instability found on objective testing. Anterior, posterior, medial and lateral instability were all found to be within normal limits. The constant use of a brace and regular use of a cane and crutches were noted as assistive devices for ambulation. At a December 2017 VA Examination, the Veteran reported locking and giving out of the knee, among other symptoms. The examiner did not note a history of recurrent subluxation or lateral instability of the left knee and that joint stability testing was not performed due to limited range of motion and increased pain. At the March 2020 VA examination, the Veteran reported left knee instability, but refused to be tested. The Veteran reported being limited in his ability to kneel, squat, or walk and stand for prolonged periods of time. An August 2021 VA Examination noted the Veteran's report that his knee will give out occasionally that can lead to near falls. No objective testing was performed. In a November 2021 opinion provided in response to the Board specific remand directives, a VA examiner characterized the left knee instability as moderate and dated the onset to time of the initial injury. In support of that opinion, the provider included a review of the medical record, referencing the Veteran's complaints, and findings of specific VA examinations which noted the inability to perform objective testing. The Board finds that the evidence of record persuasively weighs against a rating in excess of 20 percent for left knee instability under either the old or revised version of Diagnostic Code 5257. The Board has carefully considered the Veteran's reports about instability regarding his knee, such as the giving way or locking of the knee. English, 30 Vet. App. 347, 352-53. However, overall, the lay and medical evidence indicates that the instability symptoms have varied, and at times resolved themselves, and do not suggest the presence of symptoms more nearly approximating severe recurrent subluxation or lateral instability at any time during the appeal period. The November 2021 VA opinion provider responded to the Board specific directive to characterize the level of severity and concluded it was moderate, since the date of initial injury. That examiner included a detailed review of the pertinent record, including the Veteran's subjective complaints and the results of objective testing. The criteria for a 30 percent rating under the revised version of Diagnostic Code 5257 are not met or more closely approximated because the record does not show the Veteran has unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device and bracing for ambulation. The Veteran has a partial tear of a ligament The evidence of record persuasively weighs against finding that the criteria for an increased rating for left knee instability under either the old or revised rating criteria are met or more closely approximated at any time during the appeal period. The claim is denied. M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Jarman, 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.