Citation Nr: 22014634 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 17-15 660 DATE: March 14, 2022 ORDER A rating higher than 20 percent for retropatellar pain syndrome and degenerative joint disease (DJD) and limitation of motion of the left knee is denied. From May 27, 2015, a 20 percent rating for instability of the left knee is granted, subject to controlling regulations governing the payment of monetary awards. A rating higher than 20 percent for instability of the left knee is denied. FINDINGS OF FACT 1. The Veteran's retropatellar pain syndrome and DJD with limitation of motion of the left knee is manifested by at worst, extension limited to 15 degrees. 2. From May 27, 2015, the Veteran's instability of the left knee is manifested by, at worst, moderate instability; neither a ligament tear nor a need for surgical repair is shown. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 20 percent for retropatellar pain syndrome and DJD with limitation of motion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4., 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5261. 2. The criteria for a 20 percent rating, from May 27, 2015 to February 7, 2021, for instability of the left knee are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.71a, DC 5257 (2020). 3. The criteria for a rating higher than 20 percent for instability of the left knee are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.71a, DC 5257 (2020); 4.71a, DC 5257 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1983 to July 2003. The case is on appeal from September 2015 rating decision. In November 2019, the Veteran testified at a Board hearing. In January 2020, the Board granted a separate 10 percent rating assigned for instability of the left knee. The issues of a rating higher than 10 percent for instability of the left knee, along with a rating higher than 10 percent for retropatellar pain syndrome of the left knee, were remanded for additional development. In September 2021, the Board again remanded the issues of ratings higher than 10 percent for retropatellar pain syndrome and instability of the left knee for additional development. By rating decision in October 2021, the RO characterized the Veteran's left knee disability as retropatellar pain syndrome with DJD and increased the rating to 20 percent throughout the appeal period. In addition, a higher 20 percent rating was assigned for instability of the left knee, effective February 7, 2021. As higher ratings are available and a claimant is presumed to be seeking the maximum available rating for disabilities, the claims remain on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). I. Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. 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. Where 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. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007) (citing Fenderson v. West, 12 Vet. App. 119, 126 (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 and, therefore, not be reflected on range-of-motion testing. 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); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Prior to February 7, 2021, traumatic arthritis was rated under DC 5003 for degenerative arthritis. Under DC 5003, a 10 percent rating is warranted for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, and not added. See 38 C.F.R. § 4.71a, DC 5003, 5010. As of February 7, 2021, DC 5002 addresses multi-joint arthritis (except post-traumatic and gout), 2 or more joints, as an active process. Examples of the conditions to be rated using this diagnostic code, include rheumatoid arthritis, psoriatic arthritis, and spondyloarthropathies. Note (2) states that chronic residuals should be rated under DC 5003 and Note (3) indicates that the ratings for the active process will not be combined with the residual ratings for limitation of motion, ankylosis, or DC 5003. Instead, the higher evaluation should be assigned. Limitation of motion of the knee is contemplated under DCs 5260 (flexion) and 5261 (extension). DC 5260 provides for a noncompensable rating for limitation of flexion limited to 60 degrees; a 10 percent rating is warranted for limitation of flexion limited to 45 degrees; a 20 percent rating is warranted for limitation of flexion limited to 30 degrees; and a 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. DC 5261 provides for a noncompensable rating for limitation of extension limited to 5 degrees; a 10 percent rating is warranted for limitation of extension limited to 10 degrees; a 20 percent rating is warranted for limitation of 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 45 degrees. Under DC 5257, a 10 percent rating is warranted for either slight recurrent subluxation or slight lateral instability; a 20 percent rating is warranted for moderate recurrent subluxation or moderate lateral instability; and a 30 percent rating is warranted for severe recurrent subluxation or severe lateral instability. Separate ratings under DCs 5260 and 5261 may be assigned for disability of the same knee joint. See VAOPGCPREC 9-2004. Additionally, VAOPGCPREC 23-97 held that a claimant who has both arthritis and instability of the knee may receive two separate disability ratings under DCs 5003-5010 and DC 5257 without violating the prohibition of pyramiding of ratings. It was specified that, for a knee disorder already rated under DC 5257, a claimant would have additional disability justifying a separate rating if there is limitation of motion under DC 5260 or DC 5261. Effective February 7, 2021, the criteria for knee instability were amended. See 82 Fed. Reg. 76453 (Nov. 30, 2020, as corrected); 38 C.F.R. § 4.71a, DC 5257. Under the new criteria of DC 5257, a 10 percent rating is assigned 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, crutch, walker) or bracing for ambulation; a 20 percent rating is assigned for sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace or assistive device (e.g., cane, crutch, walker) for ambulation, or unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane, crutch, walker) or bracing for ambulation; and a 30 percent rating is assigned for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane, crutch, walker) and bracing for ambulation. Furthermore, under the new criteria, separate ratings may also be assigned for patellar instability. For patellar instability, a 10 percent rating assigned 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 assigned 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; and a 30 percent rating is assigned 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. NOTE 1 following the criteria provides that, for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. NOTE 2 following the criteria provides 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). The Board also notes that, as the February 7, 2021, rating criteria change did not specify that it was to have a retroactive effect, the prior criteria and the new criteria will both be considered for the later rating period and the rating assigned based on the criteria most favorable to the Veteran. However, an award warranted under the revised criteria cannot be effective prior to February 7, 2021. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Additionally, DC 5258 provides for a 20 percent evaluation for semilunar, dislocated cartilage with frequent episodes of "locking," pain, and effusion into the joint. See 38 C.F.R. § 4.71a, DC 5258. DC 5259 provides for a 10 percent rating for symptomatic removal of semilunar cartilage. See 38 C.F.R. § 4.71a, DC 5259. II. Analysis 1. A rating higher than 20 percent for retropatellar pain syndrome and DJD with limitation of motion of the left knee. 2. A rating higher than 10 percent for instability of the left knee prior to February 7, 2021. 3. A rating higher than 20 percent for instability of the left knee from February 7, 2021. The Veteran seeks higher ratings for his service-connected left knee disabilities. He maintains that higher ratings are warranted for limitation of motion and instability. The Veteran's retropatellar pain syndrome and DJD with limitation of motion of the left knee is assigned a 20 percent rating under 38 C.F.R. § 4.71a, DC 5003-5261. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. DC 5003 pertains to degenerative arthritis. DC 5261 pertains to limitation of extension. In addition, staged 10 and 20 percent ratings are assigned for the Veteran's instability of the left knee under DC 5257. In the September 2021 remand, the Board determined that the February 2020 VA examination reflecting flexion to 120 degrees and extension to 0 degrees did not completely address imaging showing a new diagnosis of mild DJD of the left knee or the functional impairment during flare-ups of knee symptoms in accordance with Sharp v. Shulkin, 29 Vet. App. 26 (2017). Pursuant to the Board's September 2021 remand, the Veteran was afforded a VA examination in October 2021. The examiner reported that the Veteran's DJD of the left knee was a progression of retropatellar pain syndrome. Difficulty kneeling or performing other acute knee bending activities was due to DJD, and difficulty fully straightening the left knee was due to retropatellar pain syndrome. The examiner reported flexion of the left knee to 110 degrees and extension to 10 degrees. The examination was not conducted during a flare-up of knee symptoms and the examiner estimated that the additional loss of motion during flare-ups of left knee symptoms, to include throbbing pain, as flexion to 95 degrees and extension to 15 degrees. Although knee injections were noted to help for a while, the Board has not considered the ameliorative effects of any medications. Even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the Veteran's statements would not result in limitation of motion more nearly approximating extension limited to 20 degrees, as is required for the assignment of a 30 percent rating under DC 5261. The Board notes that the currently assigned 20 percent rating already contemplates her symptoms to include painful motion, limitation of motion, fatigability, and crepitus and resultant functional loss. See 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DCs 5003, 5260; DeLuca, 8 Vet. App. at 202. Upon review and consideration of the medical and lay evidence discussed above, the Board finds that a higher rating for the Veteran's knee retropatellar pain syndrome and DJD with limitation of motion is not warranted. Additionally, the October 2021 VA examination cured any inadequacies of the prior examinations to fully characterize the additional functional loss the Veteran experiences as a result of flare-ups of her left knee retropatellar with DJD in accordance with Sharp. In addition, as the RO granted an increased 20 percent rating for the Veteran's retropatellar pain syndrome and DJD with limitation of motion based on the date it received her claim, the Board also considered whether an earlier effective date based on the one year look back period is warranted. The Veteran first filed a claim for increase on May 27, 2015, which begins the period of appellate review before the Board (plus the consideration of the one-year look back period prior to the filing of that claim). See Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). In this case, the evidence does not reveal a factually ascertainable date upon which an increase in severity of the condition occurred within the one year look back period prior to the filing of the claim. The Board notes that both the February 2020 and September 2015 VA examination reports reflect flexion to 120 degrees and extension to 0 degrees. In addition, the September 2015 examination reflects that the Veteran denied flare-ups of knee symptoms. Therefore, the effective date of the increased 20 percent rating is assigned based on the date that the Veteran's claim for an increased rating was received. At no time has the Veteran been shown to have left knee ankylosis; flexion limited to 60 degrees; or dislocation or removal of the semilunar cartilage. Also, and although the October 2021 VA examination reflects suprapatellar effusion, she has not been shown to have "locking," into the joint. Thus, higher or separate ratings are not warranted pursuant to DCs 5256, 5258, 5259, and 5260. The Board notes that the Veteran's retropatellar pain syndrome was previously rated by analogy under DC 5014 for osteomalacia, which was rated on limitation of motion of affected parts. Similarly, the February 7, 2021 revised version of DC 5014 states that the disability is rated as degenerative arthritis based on limitation of motion of affected parts. With respect to the Veteran's instability of the left knee, and although the rating was increased to 20 percent effective February 7, 2021, the date of the revised regulations, the October 2021 VA examiner reported that the Veteran had not had a ligament tear. Nonetheless, the Board finds that the evidence supports the 20 percent rating assigned throughout the appeal period, i.e., the appeal period prior to February 7, 2021, particularly when resolving doubt in the Veteran's favor. In that respect, the October 2021 examination reflects regular use of a brace on the left knee to protect interruption of locomotion. In addition, and although instability was noted to be slight, the Veteran's claim for a higher rating was based on instability of the left knee. See December 2015 notice of disagreement (NOD). Having already resolved doubt in the Veteran's favor in granting the assigned 20 percent rating prior to February 7, 2021, a rating higher than 20 percent is clearly not warranted under either the pre-February 7, 2021 rating criteria. 38 C.F.R. § 4.71a, DC 5257 (2020). The Board notes that although the use of an assistive device, such as a brace, was not specifically listed in the rating criteria for evaluating knee disabilities, assistive devices are provided to alleviate the presence of symptoms and/or functional limitations caused by an individual's disability. For instance, a cane is provided to normalize an abnormal gait pattern that may be limited by pain, weakness, or decreased endurance. The symptoms that necessitate use of an assistive device are fully contemplated by the rating criteria and associated regulations, and the use of such assistive device directly addresses a veteran's functional limitations. See 38 C.F.R. §§ 4.40, 4.45, 4.59. The Board has fully considered the regular use of a left knee brace in the Veteran's case as it relates to the symptomatology and functional independence associated with his left knee condition but finds that the use of such devices is contemplated under the rating criteria for evaluating knee disabilities. In addition, a rating higher than 20 percent for instability of the left knee is not warranted under the post-February 7, 2021 rating criteria. 38 C.F.R. § 4.71a, DC 5257 (2021). Although the Veteran stated that she would fall without a knee brace during prolonged activity, see November 2019 Board hearing testimony, the Veteran is not shown to have the medical expertise necessary to determine whether her falls would be due to knee instability as opposed to symptoms associated with retropatellar pain syndrome and DJD with limitation of motion already compensated by the assigned ratings under DC 5261. See 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DCs 5003, 5260; DeLuca, 8 Vet. App. at 202. See English v. Wilkie, 30 Vet. App. 347 (2018). As noted above, difficulty kneeling or performing other acute knee bending activities was due to DJD with limitation of motion and difficulty fully straightening the left knee was due to retropatellar pain syndrome. Although the Veteran characterized instability as moderately severe, the examiner reported slight subluxation and 1+ anterior instability of the left knee. The Board notes that an October 2014 record reflects a normal gait. See October 2021 CAPRI. The Veteran's left knee instability is shown to manifest by at worst, moderate instability. The evidence does not show a need for surgical repair of a ligament which requires a brace and assistive device prescribed by a health provider. In sum, the Board finds that the evidence supports a 20 percent rating for instability of the left knee during the period on appeal prior to February 7, 2021. The evidence is persuasively against ratings higher than 20 percent for instability of the left knee from February 7, 2021, and against a rating higher than 20 percent for retropatellar pain syndrome and DJD with limitation of motion of the left knee. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and ratings higher than 20 percent for retropatellar pain syndrome and DJD with limitation of the left knee and for instability of the left knee are not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102, 4.3. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Taylor 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.