Citation Nr: 22016106 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 18-22 469 DATE: March 21, 2022 ORDER Entitlement to a rating in excess of 10 percent for left knee degenerative arthritis for painful limitation of flexion is denied. Entitlement to a separate 10 percent rating, but no higher, for left knee degenerative arthritis for painful limitation of extension is granted from March 17, 2017. Entitlement to a separate 10 percent rating for left knee instability is granted is from March 17, 2017. FINDINGS OF FACT 1. Since March 17, 2017, the Veteran's left knee degenerative arthritis has been manifested by painful limitation of flexion to no more than 100 degrees. 2. Since March 17, 2017, the Veteran's left knee degenerative arthritis has been manifested by painful limitation of extension to zero degrees. 3. Since March 17, 2017, the Veteran's left knee disability has been manifested by no more than slight instability. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 10 percent for left knee degenerative arthritis manifested by painful limitation of flexion are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.71a, Diagnostic Codes (DCs) 5003, 5260. 2. Since March 17, 2017, the criteria for a separate 10 percent rating, but no higher, for left knee degenerative arthritis manifested by painful limitation of extension are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.71a, DCs 5003, 5261. 3. Since March 17, 2017, the criteria for a separate 10 percent rating for slight left knee instability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.71a, DC 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1979 to May 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2020, the Veteran provided testimony during a Board hearing before the undersigned Veterans Law Judge. The Board remanded the appeal for further development in November 2021. Increased Ratings 1. Entitlement to a rating in excess of 10 percent for left knee degenerative arthritis for painful limitation of flexion is denied. 2. Entitlement to a separate 10 percent rating, but no higher, for left knee degenerative arthritis for painful limitation of extension is granted from March 17, 2017. 3. Entitlement to a separate 10 percent rating for left knee instability is granted is from March 17, 2017. I. General Rating Principles Disability ratings are determined by the application of rating criteria set forth in the VA Schedule for Rating Disabilities (38 C.F.R. Part 4) based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation of parts of the system, to perform the normal working movements of the body with normal excursion, strength, coordination, and endurance. 38 C.F.R. § 4.40. The functional loss may be due to the loss of part or all of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervations, or other pathology, or it may be due to pain, supported by adequate pathology, and evidenced by visible behavior of the claimant undertaking the motion. Id. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. Other important factors include excess fatigability, or incoordination (to include during flare-ups or with repeated use), and those factors are not contemplated in the relevant rating. See DeLuca v. Brown, 8 Vet. App. 202(1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged ratings" is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Additionally, the primary concern for an increased rating for a service-connected disability is the present level of disability. Although the overall history of the disability is to be considered, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In all claims for an increased disability rating, VA has a duty to consider the possibility of assigning staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. 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 is assigned. 38 C.F.R. § 4.7. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided. 38 C.F.R. § 4.14. II. Rating Criteria The Veteran is currently rated under DCs 5003-5260. Under DC 5003, degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (DC 5200 etc.). 38 C.F.R. § 4.71a, DC 5003. Under DC 5260, a 10 percent disability rating is assigned for flexion limited to 45 degrees, a 20 percent disability rating is assigned for flexion limited to 30 degrees, and a 30 percent disability rating is assigned for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. A noncompensable rating is warranted for limitation of extension to 5 degrees, a 10 percent rating is warranted for limitation of extension to 10 degrees, a 20 percent rating is warranted for limitation of extension to 15 degrees, a 30 percent rating is warranted for limitation of extension to 20 degrees, a 40 percent rating is warranted for limitation of extension to 30 degrees, and a 50 percent rating is warranted for limitation of extension to 45 degrees. 38 C.F.R. § 4.71a, DC 5261. Pursuant to 38 C.F.R. § 4.59, painful motion should be considered limited motion, even though a range of motion may be possible beyond the point when pain sets in. Pettiti v. McDonald, 27 Vet. App. 415, 425 (2015) (holding that § 4.59 serves as a bridge linking painful motion and limitation of motion, such that a claimant with painful motion is deemed to have limited motion under DC 5003 even though actual motion is not limited). Moreover, the provisions of 38 C.F.R. § 4.59 relating to painful motion are not limited to arthritis, so must be considered when raised by the claimant or reasonably by the record, even in non-arthritis contexts. See Burton v. Shinseki, 25 Vet. App. 1 (2011). To this end, 38 C.F.R. § 4.59 allows consideration of functional loss due to painful motion to be rated to at least the minimum compensable rating for a particular joint. 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) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). 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. VA thus 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). Thus, 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. Prior to the February 7, 2021 amendments, DC 5257 provided ratings of 10, 20, and 30 percent for recurrent subluxation or lateral instability of the knee that is slight, moderate, or severe, respectively. 38 C.F.R. § 4.71a. Effective February 7, 2021, DC 5257 provides separate criteria for ratings based on recurrent subluxation or lateral instability and patellar instability. For recurrent subluxation or lateral instability, a 10 percent rating is warranted for a 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 either (a) a sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribed either a brace and/or assistive device; 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 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 and bracing for ambulation. 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 a walker. The words "slight", "moderate", and "severe" used in DC 5257 are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The Board does note, for reference and illustrative purposes only, that the definitions for "mild" includes not very severe. WEBSTER'S II NEW COLLEGE DICTIONARY at 694 (1995). A synonym for "mild" is "slight," which is defined as small in size, degree, or amount. Id. at 1038. The definitions for "moderate" include of average or medium quantity, quality, or extent. Id. at 704. Finally, definitions for "severe" include extremely intense. Id. at 1012. III. Analysis The Veteran is in receipt of a 10 percent rating from February 6, 1995 to July 31, 2015, for left knee degenerative joint disease under DC 5257 and a 10 percent rating from July 31, 2015 for left knee joint osteoarthritis manifested by painful limitation of flexion under DCs 5003-5260 for his service-connected left knee degenerative arthritis. The appeal period is from March 17, 2017, the date of his increased rating claim, plus the one-year "look back" period. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). As a preliminary matter, the Board notes that although the Veteran presented for VA examinations in April 2017, October 2018, May 2021, and January 2022, only the most recent January 2022 examination is compliant with the requirements set forth by Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017); November 2021 Board remand. Accordingly, only the January 2022 VA examination report will be utilized for evaluation of the Veteran's left knee disability with regard to range of motion for reasons outlined above. In this regard, the Board emphasizes that the April 2017 and October 2018 non-compliant examination reports shows range of motion findings less favorable than the January 2022 VA examination report and no range of motion testing was conducted on the left side during the May 2021 examination. Additionally, the Board will consider the Veteran's lay statements and other favorable medical findings other than range of motion testing contained in the non-compliant reports. Thus, there is no prejudice to the Veteran in not considering the non-compliant reports to rate his disability based on limitation of motion and DeLuca factors. Throughout the appeal period, the Veteran has complained of chronic pain, limited range of motion, locking, popping, occasional giving out, swelling, and burning in his left knee. He also reported occasional use of knee sleeves/wraps. See September 2017 through November 2020 VA treatment records; see also April 2017, October 2018, May 2021, and January 2022, VA examination reports and November 2020 Board Hearing Transcript at 3-8. During the November 2020 Board hearing, the Veteran testified that he experiences limited movement, difficulty with prolonged walking or sitting, and difficulty walking up stairs. He also reported flare-ups with prolong sitting, use of knee wraps, giving out, and swelling after a long day at work. He also reported purchasing knee sleeves and wraps. During the January 2022 VA examination, the Veteran reported increased pain and burning in his left knee. He reported flare-ups described as severe pain two to three times a month to the point he has to leave work and functional loss described as not being able to climb into his dump truck and having to leave work early. The Veteran denied a history of recurrent subluxation/instability and a history of recurrent effusion. Examination revealed range of motion of flexion to 110 degrees and extension to zero degrees in with objective evidence of painful motion on flexion and extension that causes functional loss. The examiner stated that Deluca factors would significantly limit his functional ability during with repeated use over time and during flare-ups with an estimated 10 degrees of additional loss of flexion to 100 degrees. Additional contributing factors of interference with standing and disturbance of locomotion were noted. No muscle atrophy or ankylosis was indicated. The examiner found no recurrent subluxation or persistent instability, no ligament tear (sprain), no prescription by a medical provider for ambulation, no recurrent patellar instability, no prescription by medical provider for an assistive device for ambulation for patellar instability, no meniscus conditions, no surgeries, no scars, and no assistive devices. The examiner noted the Veteran's ability to work was impacted due to his trouble with ambulating long distances, standing in one place for long periods of time, and ambulating stairs of any great distance. As such, given the totality of the evidence, when considering the Veteran's lay statements and the medical evidence of record including DeLuca factors and functional loss with repeated use over time and during flare-ups, the Board finds that a rating in excess of 10 percent for limitation of flexion is not warranted at any time during the appeal period as limitation of flexion was to no less than 100 degrees even when considering DeLuca factors, consistent with a 10 percent rating, or the minimum rating for painful motion under 38 C.F.R. § 4.59. However, a separate 10 percent rating is warranted from March 17, 2017, for painful limitation of extension, warranting a 10 percent rating or the minimum rating for painful motion under 38 C.F.R. § 4.59 as the April 2017, October 2018, and January 2022 VA examination reports conducted during the appeal period all indicate painful limited range of motion with extension in his left knee. Moreover, when considering the Veteran's competent and credible statements and the other medical evidence of record, the Board finds that a separate 10 percent rating for recurrent subluxation/lateral instability under the old criteria for DC 5257 is warranted for the entire appeal period for, as the evidence of record demonstrates slight instability including the Veteran's complaints of locking, popping, occasional giving out, an occasional use of knee sleeves/wraps. A rating in excess of 10 percent is not warranted, as moderate (average) or severe (intense) instability is not shown at any time during the appeal period. Specifically, all joint stability and muscle strength testing was normal and none of the above-cited evidence points towards symptomatology that is closer to average (moderate) or intense (severe) instability, particularly given no objective findings of recurrent subluxation/dislocation/instability. The Veteran's condition has been consistently manifested by slight instability based on findings by the VA examiners and the objective evidence and lay statements of record support the examiners' findings in this regard. Additionally, the Board finds that although there is evidence dated after February 7, 2021, the January 2022 VA examination report, that requires the Board to review the evidence under both the old and new criteria, the old criteria allows for a higher rating under DC 5257. To this end, the January 2022 VA examiner did not endorse recurrent subluxation or persistent instability, a ligament tear (sprain), prescription by a medical provider for ambulation, recurrent patellar instability, or prescription by a medical provider for ambulation for patellar instability such that a higher rating would be warranted under the new DC 5257 criteria. Thus, it is more favorable for the Veteran to rate under the old criteria for reasons discussed above. Additionally, the Veteran is not entitled to separate compensable rating under DCs 5256, 5258, 5259, 5262, or 5263. The record does not reflect the Veteran ever had ankylosis, removal of symptomatic cartilage, dislocation of semilunar cartilage, nonunion of the tibia and fibula or genu recurvatum during the appeal period. Moreover, the evidence of record does not demonstrate the presence of any left knee scars. Thus, a separate compensable rating for any related scar is not warranted. See 38 C.F.R. § 4.118, DCs 7801, 7802, 7804, 7805. Finally, the Board emphasizes that during the November 2020 Board Hearing, the Veteran indicated that an award of 30 percent for his left knee disability would satisfy his claim. See November 2020 Board Hearing Transcript at 10; see also June 2017 Notice of Disagreement (NOD). Thus, the Board has satisfied the appeal in full. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Asante, Ruby 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.