Citation Nr: 22017680 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 13-03 880 DATE: March 25, 2022 ORDER Entitlement to an initial rating in excess of 10 percent prior to August 23, 2016, and in excess of 20 percent therefrom, for right knee instability is denied. Entitlement to a disability rating of 30 percent for right knee instability for the period from January 22, 2021 is granted. REMANDED Entitlement to a disability rating in excess of 10 percent for posttraumatic osteoarthritis of the right knee is remanded. FINDINGS OF FACT 1. For the period prior to August 23, 2016, the Veteran has been shown to have no worse than slight right knee instability. 2. For the period from August 23, 2016 to January 21, 2021, the Veteran has been shown to have no worse than moderate right knee instability. 3. For the period from January 22, 2021, the Veteran has been shown to have severe right knee instability. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for right knee instability for the period prior to August 23, 2016 have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. § 4.71a, Diagnostic Code 5257. 2. The criteria a disability rating in excess of 20 percent for the period from August 23, 2016 to January 21, 2021 for right knee instability have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. § 4.71a, Diagnostic Code 5257. 3. The criteria for a disability rating of 30 percent for right knee instability for the period from January 22, 2021 have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. § 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from June 1966 to May 1970. These matters come before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) in December 2009. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a March 2016 hearing. A copy of the hearing transcript has been reviewed and associated with the claims file. These matters were remanded by the Board in August 2016 for additional evidentiary development. In an August 2018 decision, the Board, in relevant part, denied higher disability ratings for right knee arthritis and right knee instability. The Veteran appealed the Board's August 2018 decision to the United States Court of Appeals for Veterans Claims (Court). In a March 2020 memorandum decision, the Court vacated the Board's August 2018 decision denying higher ratings for the right knee. These matters were again before the Board in October 2020, at which time they were remanded for additional development. Increased Ratings Disability evaluations are determined by the application of the Schedule for Rating Disabilities (Rating Schedule), which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of life, including employment, by comparing his symptomatology with the criteria set forth in the Rating Schedule. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In the case of an initial rating, the entire evidentiary record from the time of a veteran's claim for service connection to the present is of importance in determining the proper evaluation of disability, and staged ratings are to be considered in order to reflect the changing level of severity of a disability during this period. Fenderson v. West, 12 Vet. App. 119 (1999). However, where entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Additionally, the Board must consider whether the disability has undergone varying and distinct levels of severity while the claim has been pending and provide staged ratings during those periods. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or if there is an approximate balance of positive and negative evidence, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307, at *10 (Fed. Cir. Dec. 17, 2021). When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. §§ 4.7, 4.21. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. In adjudicating these claims, the Board must assess the competence and credibility of the claimant. Washington v. Nicholson, 19 Vet. App. 362 (2005). Lay testimony is competent to establish the presence of observable symptomatology. Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet). The Veteran's right knee instability has been assigned an initial rating of 10 percent, and a 20 percent rating from August 23, 2016, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5257. The Board notes that during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended, effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. The General Counsel of VA 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 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. As such, VA must generally consider the claim pursuant to both versions during the course of an appeal. See VAOPGCPREC 3-2000; 65 Fed. Reg. 33422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Under the pre- February 7, 2021 rating criteria for 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, and a 30 percent rating is assigned for severe recurrent subluxation or lateral instability. Descriptive terms such as "slight," "moderate," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. According to Merriam-Webster's Collegiate Dictionary (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. The current rating criteria for Diagnostic Code 5257 differentiate between recurrent subluxation or instability as opposed to patellar instability. Under the criteria for recurrent subluxation or instability, a 10 percent rating is warranted for a sprain, incomplete ligament tear, or complete ligament tear causing persistent instability, without prescription from a medical provider for an assistive device (such as a cane, crutch(es), or walker). 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 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 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 and bracing for ambulation. Under the current criteria for patellar instability per Diagnostic Code 5257, a 10 percent is assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability 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 a brace, cane, or walker. 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) to Diagnostic Code 5257 stipulates that the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. 1. Entitlement to an initial rating in excess of 10 percent, and a rating in excess of 20 percent for the period from August 23, 2016 to January 21, 2021, for right knee instability As indicated above, the Veteran has been assigned an initial rating of 10 percent, and a rating of 20 percent effective from August 23, 2016, for his service-connected right knee instability. In correspondence dated in September 2009, the Veteran stated that his knee has given out on more than one occasion, causing him to lose his balance. He also submitted statements in September 2009 from P.S., R.A., and C.C., each of whom worked with the Veteran. These statements indicate that the Veteran would often ride the elevator at work due to his knee problems, has a hard time kneeling, and would often limp because of pain in his knees. The Veteran underwent a VA examination of the knees in December 2009. He was noted as having mild medial and lateral instability in the neutral position and at 30 degrees of flexion. He had normal anterior and posterior stability at 30 degrees and 90 degrees of flexion. No patellar abnormality was noted in the right knee. The examiner noted that he used a brace for ambulation. A VA treatment record dated in November 2012 notes that the Veteran had bilateral osteoarthritis in the knees with mild instability, less prominent on the right knee. He had medial collateral laxity of 1+ in both knees. During the March 2016 Board hearing, the Veteran testified that his knee instability had worsened since the December 2009 VA examination. He stated that his knees would give out while walking, requiring him to walk near objects for him to lean or grab onto. He testified that he wears a knee brace some of the time and occasionally uses crutches and ACE bandages for his right knee. The Veteran submitted a disability benefits questionnaire (DBQ), completed by J.R.R., M.D., in May 2016. Dr. R. stated that the Veteran has no history of lateral instability or recurrent subluxation. He also indicated that joint stability testing was conducted, which revealed no joint instability. The Veteran attended another VA knee examination on August 23, 2016. He was noted as having medial instability of 2+ (5-10 mm), lateral instability of 1+ (0-5 mm), and normal anterior and posterior stability. The examiner indicated that he had regular use of a brace and crutches and described the Veteran's right knee lateral instability as moderate. After a careful review of the evidence, the Board finds that an initial rating in excess of 10 percent, and a rating in excess of 20 percent for the period from August 23, 2016 to January 21, 2021, are not warranted for the Veteran's right knee instability. In this regard, his right knee instability has not been shown to rise beyond a slight severity prior to August 23, 2016, and it has not been demonstrated to be worse than moderate for the period prior to January 22, 2021. For the period prior to August 23, 2016, the Veteran has demonstrated mild right knee instability. The November 2012 VA medical record notes mild instability and medial collateral laxity of 1+ in the right knee. The December 2009 VA examiner described his medial and lateral instability as being mild, and no anterior or posterior instability was shown. The Board acknowledges the statements submitted in September 2009 by the Veteran, P.S., R.A., and C.C.. While these statements indicate that the Veteran's knees gave out on more than one occasion and cause him to use an elevator instead of stairs, they do not demonstrate that his instability symptoms were worse than a slight severity prior to August 23, 2016. Indeed, none of the statements expressly noted observations of the Veteran's knee giving out, or of falls or other evidence specific to instability. The lay statements are accepted as credible but they simply do not support a finding of more than mild instability during the period in question. The Board also finds that a rating in excess of 20 percent is not warranted for the period from August 23, 2016 to February 21, 2021. In this regard, while a worsening of the Veteran's right knee instability has been shown at the August 2016 VA examination, the evidence does not demonstrate instability of worse than a moderate severity. His medial instability worsened to a 2+ level, while lateral instability and lack of anterior and posterior instability remained consistent with the December 2009 examination findings. The Board acknowledges the Veteran's hearing testimony, wherein he stated that his knees would give out while walking and that he occasionally used a knee brace, crutches, and ACE bandages. However, the Board finds that these symptoms most closely approximate a moderate degree of instability, as indicated by the August 2016 examiner and as the term "moderate" is defined by Merriam-Webster's Collegiate Dictionary. The Board also notes that the Veteran indicated at the March 2016 hearing that his knee instability had worsened. However, Dr. R.'s May 2016 DBQ indicates that joint stability testing revealed no right knee instability. Therefore, as medical evidence dated between the March 2016 hearing and the August 2016 VA examination shows a lack of instability in the right knee, the Board is unable to assign a 20 percent rating from the date of the hearing and concludes that the August 2016 VA examination shows the earliest definitive evidence of a worsening of instability to the next disability level. In denying the claim, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the evidence persuasively weighs against the claim, that doctrine is not applicable. 38 U.S.C. § 5107; see Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307, at *10 (Fed. Cir. Dec. 17, 2021); 38 C.F.R. § 3.102. 2. Entitlement to a disability rating of 30 percent for right knee instability for the period from January 22, 2021 is granted The Veteran underwent a VA knee examination on January 22, 2021. The examiner noted a history of severe lateral instability. Joint stability testing revealed anterior, posterior, medial, and lateral instability of 2+ (5-10 mm). The examiner indicated that the Veteran had regular use of a wheelchair, brace, and walker for his bilateral knee instability and osteoarthritis. The Veteran underwent another VA knee examination in March 2021. The examiner noted recurrent subluxation or instability but indicated that the Veteran has not had a ligament tear and does not require a prescription for a cane, walker, crutches, or brace for ambulation. No recurrent patellar instability was noted. Though the examiner indicated that no assistive device was prescribed for ambulation, she noted that he has constant use of a walker and occasional use of a cane and wheelchair for his bilateral knee osteoarthritis, patellofemoral pain syndrome, and instability. After considering the relevant evidence, the Board finds that a 30 percent disability rating is warranted for the Veteran's right knee instability, effective January 22, 2021. In this regard, the VA knee examination conducted on that date notes the Veteran as having "severe" right knee lateral instability. While the rating schedule does not define the term "severe," the examiner's indication of severity is consistent with the stability testing, which revealed instability in all four tests conducted on the right knee. Resolving any reasonable doubt in the Veteran's favor, the Board finds that his severe lateral instability in the right knee warrants a 30 percent rating under the pre-February 7, 2021 rating criteria for Diagnostic Code 5257 for the period from January 22, 2021. This is the highest rating available under both the previous and current rating criteria. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. § 4.71a, Diagnostic Code 5257. REASONS FOR REMAND Entitlement to a disability rating in excess of 10 percent for posttraumatic osteoarthritis of the right knee is remanded. In Correia v. McDonald, 28 Vet. App. 158 (2016), the United States Court of Appeals for Veterans Claims (Court) held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion (ROM) measurements of the opposite undamaged joint where applicable. Simply noting whether the Veteran exhibited pain on weight-bearing and non-weight-bearing is insufficient under Correia; VA examiners are to record the ROM testing results for both active and passive motion, as well as both weight-bearing and non-weight-bearing. See 28 Vet. App. at 168-70. The issue of a rating in excess of 10 percent for posttraumatic osteoarthritis of the right knee was most recently remanded by the Board in October 2020 for a new VA examination. In addition, the remand directed the examiner to provide estimates for range of motion (ROM) measurements that were not provided in previous VA examinations in December 2009 and August 2016. A new VA knee examination was conducted in January 2021. The Veteran's right knee initial ROM testing indicated a flexion to 90 degrees and extension to 0 degrees. The examiner also estimated that pain, fatigue, weakness, lack of endurance, and incoordination reduce the Veteran's flexion to 80 degrees during flare-ups. The examiner noted that the Veteran had pain with passive ROM testing and with both weight-bearing and non-weight-bearing; however, she did not provide ROM measurements for passive motion, weight-bearing, or non-weight-bearing. The Veteran underwent another VA knee examination in March 2021, with the examiner who conducted the January 2021 examination. His right knee had a flexion endpoint of 90 degrees and extension endpoint of 0 degrees, with evidence of pain on flexion at 80 degrees. His passive ROM was the same as active. The examiner noted that the Veteran's flexion endpoint was 80 degrees with repetitive use testing, after repeated use over a period of time, and during flare-ups. Pain was also noted with weight-bearing, but the examiner did not provide a ROM measurement with weight-bearing or non-weight-bearing. A different VA examiner provided an addendum medical opinion in August 2021, in which she provided estimates for the Veteran's ROM with active and passive motion, after repeated use, and during flare-ups at the time of the December 2009 and August 2016 VA knee examinations. Unfortunately, the Board finds that the new VA examinations and addendum medical opinion are not in compliance with the requirements of Correia, 28 Vet. App. at 168-70. In this regard, the January 2021 examination report does not report ROM findings for passive motion, with weight-bearing, or with non-weight-bearing, though the Veteran was noted as having pain with each of these ROMs. The examiner did include passive ROM measurements in the March 2021 examination report, but she still did not provide weight-bearing and non-weight-bearing ROM measurements. Similarly, the August 2021 examiner provided retrospective ROM measurements for active motion, passive motion, after repeated use, and during flare-ups but did not give weight-bearing and non-weight-bearing ROM measurements. Because Correia require that these measurements be recorded, a remand is warranted to obtain an addendum medical opinion addressing ROM measurements with weight-bearing and non-weight-bearing during the December 2009, August 2016, January 2021, and March 2021 examinations. The matter is REMANDED for the following action: Obtain an addendum opinion from the examiner who issued the August 2021 addendum opinion for the Veteran's right knee or, if that examiner is unavailable then another similarly qualified examiner may respond instead. The entire claims folder, including a copy of this remand, must be made available for review by the examiner and such review should be noted in the examination report. A new VA examination is only necessary if deemed so by the examiner. The examiner should provide an estimate as to the Veteran's range of motion findings with weight-bearing and non-weight-bearing upon prior examinations in December 2009, August 2016, January 2021, and March 2021. The examiner must provide a comprehensive rationale for each proffered opinion. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. If any opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner does not have the knowledge or training. As appropriate, the AOJ should conduct additional development or supplement the record. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Pratt 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.