Citation Nr: 22017548 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 15-04 751 DATE: March 25, 2022 ORDER Entitlement to an initial rating in excess of 10 percent for chondromalacia of the right patella, from February 11, 2011, to August 12, 2021, is denied. Entitlement to a 50 percent rating, and no higher, for chondromalacia of the right patella from August 13, 2021, is granted. Entitlement to an initial 10 percent rating, and no higher, for instability of the right knee from February 11, 2011, to October 18, 2019, is granted. Entitlement to a rating in excess of 20 percent for instability of the right knee from October 19, 2019, is denied. Entitlement a 10 percent rating, and no higher, for recurrent patellar subluxation of the right knee from May 20, 2016, and no earlier, is granted. FINDINGS OF FACT 1. From February 11, 2011, to August 12, 2021, the Veteran did not experience functional impairment equivalent to extension limited to 15 degrees or other impairment to the extent that a higher rating is warranted during that period. 2. Resolving reasonable doubt in the Veteran's favor, he experienced functional impairment equivalent to extension limited to 45 degrees during flare-ups from August 13, 2021, forward. 3. Resolving reasonable doubt in the Veteran's favor, he experienced functional impairment equivalent to slight instability of the right knee for the entirety of the rating period from February 11, 2011, to October 18, 2019. 4. From October 19, 2019, the Veteran did not experience functional impairment equivalent to severe instability of the right knee to the extent that higher or staged ratings may be assigned. 5. The evidence supports slight recurrent patellar subluxation of the right knee from May 20, 2016; however, the record does not support functional impairment equivalent to slight recurrent patellar subluxation prior to that date, or moderate recurrent patellar subluxation from that date. Furthermore, the Veteran has not been prescribed a brace for his recurrent patellar subluxation. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating in excess of 10 percent for chondromalacia of the right patella, from February 11, 2011, to August 12, 2021, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5261. 2. The criteria for entitlement to a 50 percent rating, and no higher, for chondromalacia of the right patella from August 13, 2021, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5261. 3. The criteria for entitlement to an initial 10 percent rating, and no higher, for instability of the right knee from February 11, 2011, to October 18, 2019, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.71a, DC 5257 (2020). 4. The criteria for entitlement to a rating in excess of 20 percent for instability of the right knee from October 19, 2019, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.71a, DC 5257 (2020). 5. The criteria for entitlement to a 10 percent rating, and no higher, for recurrent patellar subluxation of the right knee from May 20, 2016, and no earlier, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.71a, DC 5257 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty for training in the U.S. Army from August 1984 to November 1984. These matters come before the Board of Veterans' Appeals (Board) on appeal of a decision issued by the Department of Veterans Affairs (VA). The Veteran testified before a Veterans Law Judge in May 2018. A transcript of the hearing is associated with the claims file. The judge who presided over the hearing is no longer employed by the Board. In March 2021, the Board sent the Veteran a letter offering him a new hearing before a different judge. In April 2021, the Veteran responded that he did not wish to appear for another hearing and asked the Board to decide the case on the evidence of record. The Board previously remanded the claim for increased ratings for the right knee chondromalacia patella in September 2018 and May 2021. After reviewing the record, the Board finds that the agency of original jurisdiction (AOJ) has substantially complied with the prior remand directives. Stegall v. West, 11 Vet. App. 268, 271 (2011). The appeal is ready for adjudication on the merits. While the appeal was pending, the AOJ granted separate ratings for the right knee. It assigned a 20 percent rating for right knee instability, and a separate 10 percent rating for right knee patellar subluxation, both effective from October 19, 2019. See May 2020 rating decision. In addition, in a September 2021 rating decision, the AOJ increased the Veteran's rating for chondromalacia patella to 40 percent from August 13, 2021. These are considered partial grants of the appeal, and higher ratings remain at issue. AB v. Brown, 6 Vet. App. 35 (1993). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the appellant and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). Increased Ratings Right Knee 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 the 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. 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). Therefore, 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. In this regard, the Board observes that former regulation 38 C.F.R. § 19.9(b)(2) (now 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction. In Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. As such, pursuant to 38 C.F.R. § 20.904(d)(2), the Board will proceed to adjudicate the Veteran's claim. In rating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity, or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing, and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011) (holding that 38 C.F.R. § 4.59 applies to disabilities other than arthritis). However, painful motion alone is not a functional loss without some restriction of the normal working movements of the body. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flare ups from the veterans themselves, when a flare-up is not observable at the time of examination. Such information must be considered in rating the Veteran's functional impairment. Under 38 C.F.R. § 4.71a, DC 5256, a 30 percent rating is assigned for favorable ankylosis in full extension, or in slight flexion between 0 and 10 degrees, a 40 percent rating is assigned favorable ankylosis in flexion between 10 and 20 degrees, a 50 percent rating is assigned for favorable ankylosis in flexion between 20 and 45 degrees, and a 60 percent rating is assigned for extremely unfavorable ankylosis in flexion at an angle of 45 degrees or more. Prior to the regulatory change, 38 C.F.R. § 4.71a DC 5257, provided for a 10 percent rating for slight recurrent subluxation or lateral instability; a 20 percent rating is warranted for moderate recurrent subluxation or lateral instability; and a 30 percent rating is warranted for severe recurrent subluxation or lateral instability. The terms "slight", "moderate", and "severe" are not defined in the regulations. Absent an express definition, it is presumed that VA regulations employ words using their ordinary dictionary meanings. "Slight" is generally defined as "small in size, degree, or amount"; "moderate" is generally defined as "of average or medium quality, amount, scope, range, etc."; and "severe" is defined as "extremely intense.'" Webster's New World Dictionary 1038, 871, 1071 (3d ed. 1988)). The Board must consider all factors that result in an equitable and just determination. As of February 7, 2021, under the amended regulations, DC 5257 states that a 30 percent rating is assigned for recurrent subluxation or instability with unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device and bracing for ambulation. A 20 percent rating is assigned for either 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 for ambulation; or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device or bracing for ambulation. 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 or bracing for ambulation. As to patellar instability under 38 C.F.R. § 4.71a, DC 5257, the amended criteria provide a 30 percent rating 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 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. A 10 percent rating is 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. Under 38 C.F.R. § 4.71a, DC 5258, a 20 percent rating is assigned for cartilage, semilunar, dislocated, with frequent episodes of "locking," pain, and effusion into the joint. Under 38 C.F.R. § 4.71a, DC 5259, a 10 percent rating is assigned for cartilage, semilunar, removal of, symptomatic. Under 38 C.F.R. § 4.71a, DC 5260, a 10 percent rating is warranted for flexion of the knee limited to 45 degrees; a 20 percent is warranted for flexion limited to 30 degrees; and 30 percent is warranted for flexion limited to 15 degrees. Under 38 C.F.R. § 4.71a, DC 5261, a 10 percent rating is warranted for extension of the knee 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 45 degrees. Normal range of motion of the knee is 0 degrees of extension to 140 degrees of flexion. See 38 C.F.R. § 4.71a, Plate II. Even if a veteran did not have compensable limited motion of the knee under DC 5260 or 5261, a separate rating could be assigned if there was evidence of full range of motion "inhibited by pain." Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). A rating assigned under DC 5260 or 5261 does not preclude, as a matter of law, a separate evaluation under DC 5258 or 5259. Lyles v. Shulkin, 29 Vet. App. 107, 115 (2017). The Board notes that the revisions that went into effect on February 7, 2021, did not make any substantive changes to Diagnostic Codes 5258, 5259, 5260, and 5261. Regarding the changes to DC 5257, the Board finds that the prior version is more favorable to the Veteran because the new version sets more criteria and qualifiers as to when disability ratings may be assigned for instability or patellar subluxation. See 38 C.F.R. § 4.71a, DC 5257 (2021) (i.e., requiring a surgical procedure and a prescription for an assistive device in order to grant a 20 percent rating for patellar instability). The prior version will be applied to the Veteran's claims. The Board finds that a 50 percent rating may be assigned for the Veteran's right knee chondromalacia patella from August 13, 2021. No other ratings for limited motion may be granted. In this decision, the Board has reviewed the medical evidence, including VA examination reports dated December 2011, June 2013, October 2019, and August 2021. The Veteran's range of flexion under ordinary conditions, at its lowest, was found to be 0 to 60 degrees in 2019, and extension, at its lowest, was found to be 18 degrees in 2021. His extension was normal at the exams in 2011, 2013, and 2019. Such a level of impairment does not support the assignment of higher ratings based on limitation of range of motion. 38 C.F.R. § 4.71a, DC 5260, 5261. The Board has also reviewed the Veteran's VA treatment records. A July 2021 kinesiotherapy consultation found range of motion within normal limits. A June 2019 kinesiotherapy consultation found active range of motion 0 to 110 degrees without pain. A July 2014 orthopedic clinic notation found that the Veteran had range of motion 0 to 120 degrees. Such evidence weighs against the assignment of higher ratings under the criteria for limitation of motion. Nevertheless, the Board has also considered the Veteran's reports of functional loss with flare-ups and after repeated use over time. The August 2021 VA examiner found, in relevant part, that the Veteran would have extension limited to 44 degrees during flare-ups. Generally, a 50 percent rating may be assigned when extension is limited to 45 degrees. 38 C.F.R. § 4.71a, DC 5261. VA regulations provide that when 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. 38 C.F.R. § 4.7. The Veteran is only one degree away from a higher rating, and, so, appears to closely approximate such criteria. The Board will resolve all reasonable doubt in his favor and assign a 50 percent rating from August 13, 2021, the date of the exam report documenting this estimate of functional loss. 38 C.F.R. § 3.400(o). The Veteran's flexion during flare-ups was found to be 84 degrees, which does not meet the threshold for a compensable rating. See Mitchell, 25 Vet. App. at 43. Regarding instability, the Veteran has reported that his right knee locks up and gives way on him. See Hearing Transcript, May 2018 (p.3). Applicable law has held that a lay person is competent to report symptoms of instability. English v. Wilkie, 30 Vet. App. 347 (2018). Medical evidence has also documented instability since the early part of the rating period. For example, a VA primary care note documented "mild instability" of the right knee in February 2012. See CAPRI, June 2013 (p.219). Therefore, the Board will resolve reasonable doubt in the Veteran's favor and assign an initial 10 percent rating from February 11, 2011. The Board has considered whether a higher rating may be assigned based on instability for the period from February 11, 2011 to October 19, 2019. However, objective stability testing was repeatedly normal during the rating period, including at the VA exams in 2011 and 2013, during a VA orthopedic consultation in July 2014, and during a primary care visit in April 2017. See CAPRI, March 2019 (p.520, 1110). Given the lack of functional impairment on objective testing, this suggests that the right knee instability was no more than slight during the relevant period. 38 C.F.R. § 4.71a, DC 5257 (2020). From October 19, 2019, the Veteran is already in receipt of a 20 percent rating for moderate recurrent instability. The record does not reflect functional impairment equivalent to severe recurrent instability to the extent that a higher rating may be assigned. For example, in July 2021, the Veteran attended a kinesiology consultation, where the clinician noted he entered the clinic without a brace or assistive device, and had negative valgus, varus, anterior drawer, and posterior drawer tests. See CAPRI, September 2021 (p.26). The August 2021 VA examiner diagnosed instability, but did not document a level of functional impairment consistent with severe recurrent instability. Accordingly, a rating in excess of 20 percent may not be assigned. In addition, the Veteran has previously been granted a separate 10 percent rating from October 19, 2019, for recurrent patellar subluxation. The Board has considered whether a compensable rating may be assigned prior to that time, and whether higher ratings are merited at any time for that condition during the appeal period. The Board notes that the VA examinations in 2011 and 2013 found no evidence or history of recurrent right knee patellar subluxation or dislocation. A July 2014 radiographic imaging report found "there is no abnormal tilting or subluxation of the patella" of the right knee. See CAPRI, March 2019 (p.1301). This indicates that no higher or separate ratings may be assigned for recurrent right knee patellar subluxation prior to such periods. The earliest evidence of recurrent patellar subluxation located by the Board in the appellate record is on May 20, 2016. Radiographic imaging testing on that date documented "mild lateral patellar tilt" of the right knee. See CAPRI, March 2019 (p.1274). The Board observes that subluxation of the patella is an incomplete or partial dislocation of the kneecap. See Dorland's Illustrated Medical Dictionary 1243, 1596 (28th Ed. 1994). In this case, the Board finds that a "tilt" of the patella is reasonably considered to be an "incomplete or partial dislocation" of the right kneecap. Thus, the Board will resolve reasonable doubt in the Veteran's favor and assign a 10 percent rating for slight patellar subluxation from May 20, 2016. However, the record does not suggest moderate patellar subluxation at any time to the extent that a 20 percent rating may be assigned. The Board notes that the October 2019 VA examiner documented functional impairment consistent with "slight" recurrent subluxation. While a June 2019 VA kinesiotherapy note indicated that a knee brace was prescribed, the August 2021 VA examiner observed that the Veteran did not require an assistive device due his patellar subluxation. Instead, the August 2021 VA examiner stated that the right knee brace was to treat the right patella chondromalacia. VA treatment records do not show functional impairment equivalent to moderate recurrent patellar subluxation. Such evidence weighs against a higher rating under both the current and former versions of DC 5257. There is no evidence of ankylosis of the knee joint or its functional equivalent, malunion or non-union of the tibia or fibula, or genu recurvatum to support a higher or separate rating under those diagnostic codes. See 38 C.F.R. § 4.71a, DC 5256, 5272, 5273. The Board has considered the Veteran's lay statements. Nevertheless, disability ratings are determined by the application of the rating schedule, which does not support entitlement to higher ratings in this case, other than as explained herein. (Continued on the next page) In summary, the Board finds that a 50 percent rating is warranted based on functional impairment equivalent to extension limited to 45 degrees during flare-ups of right knee chondromalacia patella, effective August 13, 2021. See 38 C.F.R. §§ 4.7, 4.71a, DC 5261. An initial 10 percent rating is warranted based on reports of functional impairment equivalent to slight recurrent instability from February 11, 2011, through October 18, 2019. A 10 percent rating is warranted for slight recurrent patellar subluxation effective May 20, 2016. No other higher or separate ratings may be assigned for the Veteran's right knee disabilities at any point during the period on appeal. Megan R. Thomas Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Reed, 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.