Citation Nr: 22018333
Decision Date: 03/28/22	Archive Date: 03/28/22

DOCKET NO. 17-50 248
DATE:       March 28, 2022

ORDER

Entitlement to a rating in excess of 10 percent for right knee disability, rated as ACL tear, right knee status post medial meniscectomy, reconstruction of ACL, and third patellar tendon graft is denied.

FINDING OF FACT

Throughout the entire period on appeal, the Veteran's right knee disability has manifested, at worst, in pain on use with range of motion from 10 degrees of extension to 80 degrees of flexion; and without instability, ankylosis, cartilage removal, dislocated cartilage, impairment of the tibia or fibula, or genu recurvatum.

CONCLUSION OF LAW

The criteria are not met for a rating higher than 10 percent for the right knee disability. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5260, 5261.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Army from October 1993 to August 2000.

This case comes before the Board of Veterans' Appeals (Board) on appeal of a January 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO).

In October 2021 this case was remanded by the Board so that the Veteran could be afforded a new VA examination of his right knee that was consistent with the revised rating criteria for a knee disability. That examination having been completed; the Board will now decide this claim based on the evidence of record.

Increased Rating  Right Knee

Disability evaluations 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 daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.

Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. 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 the veteran's favor. 38 C.F.R. § 4.3. It is permissible to switch diagnostic codes to reflect more accurately a claimant's current symptoms. See Read v. Shinseki, 651 F. 3d 1296, 1302 (Fed. Cir. 2011).

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994).

Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the Veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).

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 when rating a veteran's service-connected disability. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). 

The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10.

The veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a).

Although the Board has an obligation to provide reasons and bases supporting its decision, there is no obligation to discuss, in detail, the extensive evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as it relates to the Veteran's claims.

Additionally, the Board has considered whether an inferred claim for a total disability based upon individual unemployability has been raised pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board notes the Veteran has indicated that his bilateral hearing loss, left eye epiretinal membrane interferes, right knee disorder and/or left knee disorder with his ability to work effectively. The Veteran's current employment status is not clear from the record. However, neither the Veteran nor his representative has alleged that he is unable to secure and maintain substantially gainful employment. As such, a Rice claim is not raised.

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.

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). 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 renumbered as 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 as noted 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.

The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). In this regard, 38 C.F.R. § 4.59 requires that "[t]he 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). Further, 38 C.F.R. § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable or malaligned joints or periarticular regions, regardless of whether the Diagnostic Code under which the disability is evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346 (2016).

The Veteran's right knee was previously rated under Diagnostic Code 5259. Diagnostic Code 5259 provides for a 10 percent rating for removal of the semilunar cartilage. Upon remand the RO considered other applicable Diagnostic Codes and ultimately rated the Veteran's right knee under Diagnostic Code 5260. Diagnostic Codes 5260 and 5261 pertain to knee flexion and extension and was not altered by the amended Diagnostic Code. 

The normal range of motion of the knee is from zero degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. Limitation of flexion warrants 10, 20, and 30 percent ratings when limitation is to 45 degrees, 30 degrees, and 15 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Limitation of extension warrants 10, 20, 30, 40, and 50 percent ratings when limitation is to 10 degrees, 15 degrees, 20 degrees, 30 degrees, and 45 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5261. A 10 percent rating can also be assigned for the knee joint if there is painful motion without compensable limitation of motion. 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5003; see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that the applicability of 38 C.F.R. § 4.59 is not limited to arthritis claims). 

Regarding knee joint instability, 38 C.F.R. § 4.71a , Diagnostic Code 5257 pertains to recurrent subluxation or lateral instability. Prior to February 7, 2021, Diagnostic Code 5257 provides ratings of 10, 20, and 30 for recurrent subluxation or lateral instability of the knee, which is slight, moderate, or severe, respectively.

From February 7, 2021, Diagnostic Code 5257, states the following: knee, other impairment of: Recurrent subluxation or instability: 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 (e.g., cane(s), crutch(es), walker) and bracing for ambulation. 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 (e.g., cane(s), crutch(es), walker) for ambulation. (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 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

Patellar instability: A 30 percent rating is warranted with 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 with 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 with 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): For patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note (2): 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 Veteran contends that he is entitled to a rating higher than 10 percent for his right knee disability. The Veteran was first afforded a VA examination for his right knee in January 2016. The Veteran reported a history of meniscectomy, reconstruction, and patellar tendon graft of the right knee. The Veteran complained that his knee sometimes "gives out" when walking or standing of prolonged periods of time and he is unable to perform certain exercises without discomfort. The Veteran exhibited a range of motion in the right knee of 110 degrees of flexion and 0 degrees of extension with pain upon flexion. The Veteran did not require the use of any assistive devices for his knee. The examiner did not find any instability of the right knee. The examiner diagnosed the Veteran with right knee status post meniscectomy and degenerative joint disease of the right knee.

The Veteran was next examined by a VA examiner in December 2019. The Veteran reported ongoing pain and stiffness in the right worsening over the prior 18 months. The reported daily stiffness and aching of the right knee. The Veteran exhibited a range of motion of the right knee of 105 degrees of flexion and 0 degrees of extension with pain upon flexion but not resulting in additional functional loss. The Veteran was able to complete repetitive use testing with no additional loss of range of motion. The Veteran denied flare ups affecting his right knee. The Veteran reported regular use of a right knee brace. The examiner diagnosed the Veteran with degenerative arthritis and an ACL tear status-post medial meniscectomy and reconstruction of the ACL and third patellar tendon.

The Veteran was most recently examined by VA in November 2021. The Veteran reported that his initially injured his right knee during physical training in Korea. He was diagnosed with a meniscal tear and had an arthroscopic procedure to clean the scar tissue in 1995/1996. The Veteran reinjured his knee in 2002 playing basketball and had an ACL reconstruction in 2002. The Veteran reported worsening pain with frequent flare-ups due to the nature of his job as an electronic technician. The Veteran reported cycles of knee stiffness, pain, and swelling that his aggravated by the weather and prolonged standing. The Veteran treats his right knee disability with ibuprofen, Tylenol, ice, and occasionally a compression sleeve. The Veteran reported flareups and stated that his knee was presently "really stiff" due to recently working. The Veteran reported that it feels like his knee is slipping after standing for a long period of time. The Veteran exhibited a range of motion of 80 degrees of flexion and 10 degrees of extension with pain on both with crepitus. The Veteran completed repetitive use testing with no additional functional loss. The examination was completed during a flare-up. The examiner did not find muscle atrophy, ankylosis, recurrent subluxation, or persistent instability. The examiner found that that Veteran had a ligament tear successfully repaired and did not require a prescription for an assistive device. 

Based on the foregoing, the Board finds that a rating in excess of 10 percent is not warranted for the Veteran's right knee disability based on limitation of motion at any time during the period on appeal. In this regard, the evidence shows that the Veteran's right knee has consistently manifested in pain, with interference with prolonged walking and/or standing and interference with daily activities. Specifically, his range of motion was shown to be limited to 80 degrees of flexion, at worst, at his November 2021 VA examination; and his extension was limited to 10 degrees, at worst, at his November 2021 and December 2019 VA examinations. Even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups, the Board finds that he is not entitled to a rating in excess of 10 percent under Diagnostic Code 5260 nor a compensable rating under Diagnostic Code 5261. As demonstrated during the VA examinations of record, the Veteran had pain on motion but there is no indication that such resulted in additional functional loss, to include a greater loss of flexion or extension. The Board finds that they do not more nearly approximate flexion that is limited to 30 degrees of the right knee at any time. See DeLuca v. Brown, supra; Mitchell v. Shinseki, supra. Therefore, the Veteran is not entitled to a rating in excess of 10 percent for his right knee disability under Diagnostic Code 5260 at any time during the period on appeal. Moreover, the Veteran was not shown to have extension limited to 10 degrees of the left knee at any time during. Id. Therefore, the Veteran is not entitled to a higher or separate rating for his right knee disability under Diagnostic Code 5261 at any time. 

With regards to left knee instability, the Board finds that a higher rating is not warranted under either the revised or former diagnostic criteria. Overall, the lay and medical evidence indicates the Veteran did not have right knee instability. Although the Veteran reported feelings of "giving out" and "slipping", the VA examinations of record performed during the appeal period and shows that the Veteran denied a history of right knee instability and physical examination did not show recurrent patellar instability of either knee. Therefore, a higher rating for the right knee based on instability is not warranted. In addition, the VA examination reports found that there was not current subluxation or persistent instability. Additionally, overall, the lay and medical evidence indicates that the Veteran does not been a ligament tear (sprain) to the right knee. 

Under the revised Diagnostic Code 5257, to qualify for a 20 percent rating, the Veteran's right knee recurrent subluxation or instability must manifest in sprain or ligament tear that is either repaired or unrepaired causing persistent instability with medical prescription for a brace and/or assistive device. The Veteran's knee braces are not shown to be a medically prescribed assistive device and the medical and lay evidence does not support a finding of a sprain or ligament tear. Therefore, the Veteran would not qualify for a 20 percent rating under the current diagnostic code. To qualify for the higher 30 percent rating, the Veteran's right knee instability, the Veteran's right knee instability must manifest in unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescription of both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. As the medical and lay evidence do not support a finding that the Veteran has right knee instability that is either unrepaired or failed repair of complete ligament tear causing persistent instability, a higher 30 percent is not warranted.

To qualify for the higher 30 percent rating, the Veteran would need right knee instability manifested at severe severity. As the medical and lay evidence do not support a finding that the Veteran has right knee instability, a higher 30 percent rating is not warranted.

The Board also notes that the evidence does not reflect that the Veteran's right knee symptoms were manifested by ankylosis, recurrent subluxation, malunion and nonunion of the tibia or fibula, or genu recurvatum. Therefore, Diagnostic Codes 5256, 5259, 5262, and 5263 are not for application in this case. Moreover, as the Veteran has retained motion in his right knee throughout the period on appeal, by definition he does not have ankylosis. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996); Lewis v. Derwinski, 3 Vet. App. 259 (1992) (indicating that ankylosis is complete immobility of the joint in a fixed position, either favorable or unfavorable). 

With regards to subluxation, the Board finds that a higher or separate rating is not warranted for the right knee at any time during the period on appeal. In this regard, the Veteran has not been shown to have subluxation at any time. Rather, the VA examination reports consistently show the Veteran did not have a history of subluxation. Additionally, the Veteran reported having symptoms of giving out throughout the period on appeal, which is discussed. However, physical objective examination of the Veteran did not reveal subluxation of the right knee. Therefore, a higher or separate rating based on subluxation for the right knee is not warranted. In addition, instability was not shown at any time, or is otherwise already separately service connected and compensated for the right knee. Therefore, Diagnostic Code 5257 not for application in this case.

Here, the Board has considered the effects of repeated use over time and flare-ups along with the adequacy of the VA examinations in light of the Court's holdings in Correia and Sharp. See Correia v. McDonald, supra, and Sharp v. Shulkin, supra. In this case, the January 2016 VA examination was conducted prior to Correia and Sharp and provide only partial information as described above. However, the December 2019 and November 2021 VA examinations measured active and passive range of motion and range of motion on repetitive use testing as well as range of motion on weight-bearing and nonweight-bearing; the effect of pain on range of motion is described above. The Board also notes that active range of motion testing usually results in further limitation than passive range of motion testing. See Massie v. Shinseki, 25 Vet. App. 123, 131 (2011); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). His reports of additional functional loss associated with the flare-ups as described above. 

Moreover, while the Veteran has reported constant knee pain and painful flare-ups, there is no indication from the record that he has more limitation of motion than that shown at his VA examinations of record during flare-ups. It is especially notable that the Veteran's most recent VA examination in November 2021 VA examination was conducted during a flare-up. Any additional limitation that he experiences due to pain, weakness, fatigability, lack of endurance, or incoordination on repetition was accounted for by the VA examiner when determining the Veteran's ROM and was further considered by the Board. 38 C.F.R. §§ 4.40, 4.45. Thus, the preponderance of the evidence is against a finding that the Veteran had more limitation of motion in his knees with regard to flexion than that noted above.

To the extent that the Veteran and contends that his right knee disability is more severe than currently evaluated during any period on appeal, the Board observes that the Veteran, while competent to report symptoms, is not competent to report that his knee disabilities are of sufficient severity to warrant higher evaluations under VA's rating schedule because such an opinion requires medical expertise (training in evaluating musculoskeletal impairment), which he has not been shown to possess. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). 

Nevertheless, the Board acknowledges and considers that assertions of the Veteran that his right knee symptoms warrant higher disability ratings due to the symptoms described and noted above. In assessing the severity of the right knee disability, the Board has considered the competent lay assertions regarding symptoms experienced and observed. See, e.g., Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) and Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). However, the criteria needed to support higher ratings as the required medical findings that are within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-138 (1994). As such, the lay assertions are not considered more persuasive than the objective medical findings which, as indicated above, do not support assignment of any higher rating pursuant to any applicable criteria at any point pertinent to this appeal. This argument is therefore without merit.

The Board has considered whether a staged rating or a further staged rating under Hart v. Mansfield, supra is appropriate; however, the Board finds that the remainder of his symptomatology has been stable throughout the period on appeal. Therefore, assigning a staged rating is not warranted. Neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record, with regard to the increased rating claim adjudicated herein. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).

Accordingly, the Board finds that the evidence is against the assignment of a rating in excess of 10 percent for a right knee disability. Therefore, the criteria for increased rating for the Veteran's right knee disability have not been met and the claims must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra.

 

Mariah N. Sim

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	D. Baronofsky

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.