Citation Nr: 22018752 Decision Date: 03/30/22 Archive Date: 03/30/22 DOCKET NO. 14-27 019 DATE: March 30, 2022 ORDER Entitlement to an initial rating greater than 10 percent for left knee instability is denied. Entitlement to an initial rating greater than 20 percent for right knee instability is denied. FINDINGS OF FACT 1. The record evidence shows that the Veteran's service-connected left knee instability is manifested by, at worst, slight knee instability. 2. The record evidence shows that the Veteran's service-connected right knee instability is manifested by, at worst, moderate knee instability. 3. The record evidence shows that the Veteran does not experience recurrent subluxation or instability with a sprain or ligament tear (complete or incomplete) in either of his knees. CONCLUSIONS OF LAW 1. The criteria for an initial rating greater than 10 percent for left knee instability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5257 (effective prior to February 7, 2021). 2. The criteria for an initial rating greater than 20 percent for right knee instability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5257 (effective prior to February 7, 2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 1977 to December 1979. This appeal has a long procedural history. A Travel Board hearing was held in November 2016 before the undersigned Veterans Law Judge and a copy of the hearing transcript has been added to the record. Most recently, in October 2021, the Board remanded the currently appealed claims to the Agency of Original Jurisdiction (AOJ) for additional development. A review of the claims file shows that there has been substantial compliance with the Board's remand directives. The Board directed that the AOJ schedule the Veteran for examination to determine the current nature and severity of his service-connected bilateral knee instability. This examination occurred in November 2021. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The Board acknowledges that the rating criteria for evaluating musculoskeletal disabilities, including knee instability, were revised during the appeal period. As relevant to this appeal, the revised DC 5257 provides a series of disability ratings for recurrent subluxation or instability with a sprain or ligament tear (complete or incomplete). Because the record evidence does not show that the Veteran experiences recurrent subluxation or instability with a sprain or ligament tear (complete or incomplete) in either of his knees, the Board finds that the revised DC 5257 is not applicable and will evaluate his service-connected bilateral knee instability based on the former DC 5257. Increased Rating Entitlement to an initial rating greater than 10 percent for left knee instability and to an initial rating greater than 20 percent for right knee instability The Board is not persuaded that the evidence supports granting the Veteran's claims of entitlement to an initial rating greater than 10 percent for left knee instability and to an initial rating greater than 10 percent for right knee instability. Contrary to his lay assertions and Board hearing testimony, the record evidence shows instead that his service-connected left knee instability is manifested by, at worst, slight knee instability (i.e., a 10 percent rating under DC 5257). It also shows that his service-connected right knee instability is manifested by, at worst, moderate knee instability (i.e., a 20 percent rating under DC 5257). See 38 C.F.R. § 4.71a, DC 5257 (effective prior to February 7, 2021). For example, on VA joints examination in December 2006, the Veteran's complaints included subjective bilateral knee instability "and no mechanic symptoms." The VA examiner reviewed the Veteran's electronic claims file, including service treatment records and post-service VA treatment records. Physical examination of the knees showed stable ligaments in each knee. On VA outpatient treatment in February 2007, the Veteran's complaints included bilateral knee pain. There was no ligament instability on testing in either knee. He was given a home exercise program for his bilateral knee problems. On VA knee and lower leg conditions Disability Benefits Questionnaire (DBQ) in April 2013, the Veteran's complaints included constant bilateral knee pain which he rated as 6/10 on a pain scale (with 10/10 being the worst imaginable pain). The VA examiner reviewed the Veteran's electronic claims file, including service treatment records and post-service VA treatment records. The Veteran rated his flare-ups of bilateral knee pain as 9/10 on a pain scale. Joint stability was normal in each knee. There was no evidence or history of recurrent patellar subluxation or dislocation in either knee. The Veteran regularly used knee braces. There was no x-ray evidence of patellar subluxation in either knee. Because the Board previously found that a May 2018 VA knee and lower leg conditions DBQ is inadequate for VA adjudication purposes, this evidence was not reviewed or relied upon in adjudicating the currently appealed claims. On VA knee and lower leg DBQ in June 2021, the Veteran's complaints included bilateral knee instability "more from weakness in the knee. He states that this instability is not related to the knee popping out of socket but it does pop and give out." He rated his bilateral knee pain as 7/10 on a pain scale. The VA examiner reviewed the Veteran's electronic claims file, including service treatment records and post-service VA treatment records. "Generally his pain can range from a 3 10/10. When the Veteran's pain reaches an 8-10/10 he is unable to bear weight on his knees and must rest and can be down for hours to days." He reported daily moderate flare-ups of bilateral knee pain characterized by unstable knees. The Veteran described a history of instability or recurrent subluxation of the knees as, "I do have unstable knees but it's because the pain is so bad they give out, but they don't pop out of the socket. It's not that kind of instability." Physical examination of the knees showed instability of station, recurrent subluxation or persistent instability, no ligament tear, and no recurrent patellar instability. The VA examiner stated: The Veteran uses a cane for all [bilateral knee conditions] to assist with weight bearing with all of his knee conditions. The Cane alleviates the pain experienced when bearing weight on the knees due to the arthritis and the [degenerative disc disease] bilaterally and it assists with balance and gait for the Veteran due to instability that is directly related to the level of pain. The diagnoses included bilateral knee instability. On VA knee and lower leg DBQ in November 2021, the Veteran's complaints included bilateral knee pain and stiffness. The VA examiner reviewed the Veteran's electronic claims file, including service treatment records and post-service VA treatment records. He reported intermittent flare-ups of bilateral knee pain which were moderate in intensity. He described a history of instability/recurrent subluxation as "the knees give out on him from time to time." Physical examination of the knees showed no recurrent subluxation or persistent instability, no ligament tears, and no recurrent patellar instability. He regularly used knee braces and a cane. "The knee brace is used for pain relief due to degenerative arthritis of the bilateral knees. The cane is used to help with ambulation due to degenerative arthritis of the bilateral knees." The VA examiner concluded that the Veteran's knee instability was slight in each knee due to "evidence of positive glide test of bilateral knees." The diagnoses included bilateral knee instability. Contrary to the Veteran's lay assertions and Board hearing testimony, the record evidence shows instead that his service-connected left knee instability and service-connected right knee instability are not more disabling than currently (and initially) evaluated. It shows that the service-connected left knee instability is manifested by, at worst, slight knee instability (i.e., a 10 percent rating under the former DC 5257) and the service-connected right knee instability is manifested by, at worst, moderate knee instability (i.e., a 20 percent rating under the former DC 5257). Id. As noted in the Introduction, because the record evidence does not suggest that the Veteran experiences recurrent subluxation or instability with a sprain or ligament tear (complete or incomplete) in either of his knees, the revised DC 5257 is not for consideration in this appeal. The Board acknowledges here that the June 2021 VA examiner answered "Yes" to the question of whether the Veteran experienced recurrent subluxation or persistent instability. This examiner then answered "No" to the related questions of whether the Veteran experienced ligament tears or patellar instability, findings which do not support the earlier answer of "Yes" to the question of whether recurrent subluxation or persistent instability is present in either of the Veteran's knees. Unfortunately, the June 2021 VA examiner did not explain this apparent contradiction in the answers provided to questions concerning instability in the Veteran's knees. This contradiction also is not supported by a review of medical evidence dated before and after the June 2021 VA examination. Taken together, the medical evidence as a whole shows consistently that the service-connected left knee instability is manifested by, at worst, slight knee instability and the service-connected right knee instability is manifested by, at worst, moderate knee instability. Additionally, and as the Board previously noted in the October 2021 remand, the June 2021 VA examiner did not determine whether the Veteran's knee instability was slight, moderate, or severe in either of the knees. Thus, the Board concludes that the answers provided by the June 2021 VA examiner concerning instability in the Veteran's knees are not probative on the issue of whether the symptomatology attributable to either the service-connected left knee instability or service-connected right knee instability has worsened such that a higher initial rating is warranted for either of these disabilities at any time during the appeal period. The remaining medical evidence of record shows that the Veteran's service-connected bilateral knee instability is manifested by, at worst, slight left knee instability and moderate right knee instability. In other words, the evidence does not support assigning initial ratings greater than 10 percent for left knee instability or greater than 20 percent for right knee instability. The Veteran otherwise has not identified or submitted any evidence demonstrating his entitlement to higher initial ratings for either his service-connected left knee instability or his service-connected right knee instability. In summary, the Board finds that the criteria for initial ratings greater than 10 percent for left knee instability and greater than 20 percent for right knee instability have not been met. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael T. Osborne, 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.