Citation Nr: 22014124 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 16-61 567 DATE: March 11, 2022 ORDER Entitlement to a rating in excess of 20 percent for left knee limitation of flexion is denied. Entitlement to a rating of 30 percent, but no higher, for left knee limitation of extension from March 9, 2012, is granted. Entitlement to a separate rating of 10 percent, but no higher, for left knee instability from March 9, 2012, is granted. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran's left knee flexion has most closely approximated limitation to 30 degrees throughout the appeal period. 2. The Veteran's left knee extension has most closely approximated limitation to 20 degrees throughout the appeal period. 3. The Veteran's left knee instability has most closely approximated slight severity throughout the appeal period. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 20 percent for left knee limitation of flexion are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5260. 2. The criteria for entitlement to a rating of 30 percent for left knee limitation of extension from March 9, 2012, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5261. 3. The criteria for entitlement to a separate rating of 10 percent for left knee instability from March 9, 2012, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from May 1983 to January 1986. This matter comes before the Board of Veterans' Appeals (Board) from a June 2015 rating decision by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). In January 2021, the Veteran testified before the undersigned Veterans Law Judge at a virtual Board hearing. The Board remanded this matter for further development in March 2021. Specifically, the Board remanded the matter for a VA examination to address the current severity of the Veteran's left knee. An examination was obtained in October 2021. 1. Entitlement to a rating in excess of 20 percent for left knee limitation of flexion is denied. 2. Entitlement to a rating of 30 percent for left knee limitation of extension from March 9, 2012, is granted. 3. Entitlement to a separate rating of 10 percent for left knee instability from March 9, 2012, is granted. The Veteran asserts that his left knee disability has progressively worsened and warrants an increased evaluation. Board Hearing Transcript (Tr.) at 2-20; January 2021 Statement in Support of Claim; December 2014 Statement in Support of Claim. He reports severe left knee pain that has been treated with cortisone injections, which causes difficulty ambulating and results in an altered gait and need for a cane. Id. at 5-7, 9. He testified that he previously had knee braces but they wore out and were not replaced. Id. at 7-8. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity in civil occupations. 38 U.S.C. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. If two disability ratings are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Separate ratings can be assigned for separate periods based on the facts founda practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The United States Court of Appeals for Veterans Claims (Court) later clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. Moreover, 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. Correia v. McDonald, 28 Vet. App. 158 (2016); Mitchell v. Shinseki, 25 Vet. App. 32, 43-4 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997); 38 C.F.R. § 4.59. Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021). VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. Thus, VA must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Accordingly, the Board will consider the Veteran's claim 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. Initially, the Board notes that the only rating criteria affected by the February 7, 2021 amendments are DC 5257 and DC 5262. DC 5262 is not for application in this case, as the Veteran has not been diagnosed with tibia or fibula impairment. See, e.g., October 2021 VA examination report at VII. The Veteran does not have ankylosis (see id. at V), a meniscal condition (see id. at VIII), or genu recurvatum (see id. at VII), so DCs 5256, 5258, 5259, and 5263 are not for application. The Board notes the Veteran's attorney's endorsement of a meniscal condition; however, this was in relation to the Veteran's right knee, not his left. See Tr. 14-16; November 2014 C&P examination at Section I (indicating a diagnosis of meniscal tear with meniscectomy with residual scar of the right knee). Under DC 5257, the pre-amended rating criteria assigns a 10 percent rating for recurrent subluxation or lateral instability that is slight; a 20 percent rating for moderate; and a 30 percent rating for severe. Under the amended rating criteria for DC 5257, a 30 percent rating is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability and a medical provider prescribing both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. A 20 percent rating is warranted for either (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribing 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 prescribing either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. 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. The amended DC 5257 also provides for ratings based on patellar instability. 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. 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 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. Note [1] to DC 5257 states that for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note [2] to DC 5257 states that 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). Under DC 5260, a 30 percent rating is assigned for limitation of flexion to 15 degrees; a 20 percent rating is assigned for limitation to 30 degrees; a 10 percent rating is assigned for limitation to 45 degrees; and a noncompensable rating is assigned for limitation to 60 degrees. Under DC 5261, a 50 percent rating is assigned for limitation of extension to 45 degrees; a 40 percent rating is assigned for limitation to 30 degrees; a 30 percent rating is assigned for limitation to 20 degrees; a 20 percent rating is assigned for limitation to 15 degrees; a 10 percent rating is assigned for limitation to 10 degrees; and a noncompensable rating is assigned for limitation to 5 degrees. The Veteran's left knee limitation of flexion and extension are separately rated under DCs 5260 and 5261, respectively. 38 C.F.R. § 4.71a. His left knee limitation of flexion is currently rated at 20 percent from January 26, 2011. His left knee limitation of extension is assigned a 30 percent rating from October 20, 2021. The period on appeal is from his March 9, 2012 claim, plus the one-year lookback period. See VA Form 21-526b; June 2015 rating decision; March 2016 Notice of Disagreement; November 2016 Statement of the Case; December 2016 VA Form 9. The evidence does not support granting a rating in excess of 20 percent for limitation of flexion under DC 5260. In this regard, the April 2012, November 2012, and November 2014 examinations do not support a higher rating for limited flexion or extension, and, in any event, the Board has already found these examinations inadequate for rating purposes. See March 2021 Board decision at 6. The October 2015 Disability Benefits Questionnaire (DBQ) does not include all appropriate testing, so it is also inadequate for rating purposes. See Correia, supra. Thus, the findings of the most recent October 2021 VA examination will be applied over the entire appeal period, and to do so does not disadvantage the Veteran, as it contains the most restricted left knee limitation of motion findings of all those of record during the appeal period. Regarding DC 5260, the October 2021 VA examination report indicates that the Veteran's left knee flexion was limited to 60 degrees on initial testing, and to 40 degrees after repetitive use and during a flare-up. His VA treatment records do not support an increase, as they show left knee flexion limited to 120 degrees in December 2014, 45 degrees in March 2015, 90 degrees in January 2017, 130 degrees in January 2020, 110 degrees in October 2020, and 80 degrees in March 2021, though not considering flare-ups. However, even when considering DeLuca factors recorded in the October 2021 examination, a rating in excess of 20 percent is not warranted under DC 5260, as a rating of 30 percent is assigned where the evidence shows limitation of flexion to 15 degrees. However, the record supports granting an increased rating for limitation of extension of 30 percent, but no higher, from March 9, 2012. His VA treatment records show extension limited to 5 degrees in January 2020 and March 2021, but do not contemplate additional loss during flare-ups. The October 2021 VA examination notes the Veteran's left knee extension was limited to 15 degrees on initial testing and to 20 degrees after repetitive use and during flare-ups. This limitation corresponds to a rating of 30 percent, but no higher, under DC 5261. Regarding DC 5257, the April 2012 and November 2014 VA examination reports and the October 2015 DBQ note instability of station, and the Veteran's credible hearing testimony, indicate the presence of instability in the left knee. Tr. 9. However, instability tests were either normal or unable to be performed due to pain during VA examinations. See October 2015 C&P knee examination (indicating stability testing was indicated but not performed due to pain); November 2014 C&P knee examination (unable to test stability due to pain); November 2012 C&P knee examination (unable to test stability); April 2012 C&P knee examination (normal left knee stability). The most recent October 2021 C&P examination does not include joint stability testing, as it is tailored to the revised criteria. See October 2021 C&P examination at Section VI. There is sufficient evidence of record, however, to support a finding of slight instability under former DC 5257 throughout the appeal period. An October 2012 VA physician statement indicates that the Veteran uses a cane to walk and knee braces bilaterally. A January 2017 VA orthopedic surgery note indicates the Veteran used a cane to walk and had an antalgic gait. A May 2017 VA orthopedic surgery note indicates the Veteran ambulated slowly and deliberately with a cane. February 2020 and October VA treatment records note a flexed gait and using a cane to walk, but with stable varus and valgus testing. The Veteran has demonstrated a flexed gait, but he had no falls on gait examination and normal strength. See February 2020 VA treatment record. His left knee muscle strength is slightly reduced (4/5). See November 2014 and November 2012 C&P examinations at Section 8. As instability with a slight loss of strength is demonstrated by lay reports and medical evidence describing impairment consistent with instability, but is not demonstrated by objective instability testing, a rating of 10 percent is warranted based on the evidence discussed above. Accordingly, the evidence supports entitlement to a rating of 30 percent, but no higher, for left knee limitation of extension from March 9, 2012; a separate rating of 10 percent for left knee instability from March 9, 2012; but does not support a rating in excess of 20 percent for left knee limitation of flexion. REASONS FOR REMAND Recently secured VA treatment records note the Veteran's report that he is unable to work due to his service-connected bilateral knee disabilities. See March 2021 VA outpatient record (noting the Veteran's report that he cannot work due to his knee disabilities). Remand is necessary to develop and adjudicate this aspect of his increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The matter is REMANDED for the following action: 1. Request that the Veteran complete VA Form 21-8940. 2. Obtain any Social Security Administration disability records pertaining to the Veteran. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. deBruyn, 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.