Citation Nr: 24004792 Decision Date: 01/31/24 Archive Date: 01/31/24 DOCKET NO. 14-12 620 DATE: January 31, 2024 ORDER An initial 20 percent rating for left knee meniscal tear post arthroscopic surgery under Diagnostic Code 5258 in place of the rating for limitation of flexion of the left knee is granted. An initial rating in excess of 10 percent for right knee instability is denied. An initial rating in excess of 10 percent for left knee instability is denied. An initial rating of 10 percent for right knee painful motion prior to February 12, 2016, but not in excess of 10 percent for limitation of motion, is granted. FINDINGS OF FACT 1. The evidence shows the Veteran has a history of left knee meniscal tear post arthroscopic surgery with frequent episodes of pain and locking, and pain does not cause notable effects on left knee range of motion. 2. The evidence shows subjective reports of instability, weakness, and use of knee braces with an isolated occurrence of positive test results, several negative test results for instability, and no falls or use of a cane or other assistive devices. 3. The evidence shows the Veteran experienced right knee pain throughout the rating period. 4. The evidence does not show flexion limited to 60 degrees or extension limited by 10 degrees in either knee. CONCLUSIONS OF LAW 1. The criteria for an initial 20 percent rating for symptomatic left knee meniscal tear post arthroscopic surgery in place of the rating for limitation of flexion of the left knee have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.10, 4.71a, Diagnostic Code (DC) 5010-5260, 5258. 2. The criteria for an initial rating in excess of 10 percent for right knee instability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.10, 4.71a, DC 5257. 3. The criteria for an initial rating in excess of 10 percent for left knee instability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.10, 4.71a, DC 5257. 4. The criteria for an initial 10 percent rating for right knee painful motion, but not in excess of 10 percent, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.10, 4.71a, DC 5260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from February 2004 to February 2010. Increased Rating 1. An initial 20 percent rating for left knee meniscal tear post arthroscopic surgery under Diagnostic Code 5258 in place of the rating for limitation of flexion of the left knee 2. An initial rating in excess of 10 percent for right knee instability 3. An initial rating in excess of 10 percent for left knee instability 4. An initial rating of 10 percent for right knee painful motion The Agency of Original Jurisdiction (AOJ) assigned the Veteran's left knee disability a 10 percent rating for instability under Diagnostic Code 5257 and a 10 percent rating under Diagnostic Code 5010-5260 for left knee meniscal tear status post arthroscopic surgery with degenerative arthritis throughout the rating period on appeal. The AOJ assigned the Veteran's right knee disability a 10 percent rating for instability under Diagnostic Code 5257 throughout the rating period and a 10 percent rating for right knee limitation of motion under Diagnostic Code 5260 from February 12, 2016, forward. VA amended the criteria for rating musculoskeletal disabilities effective February 7, 2021. These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after February 7, 2021. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. The Board cannot apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). In this case, the regulation does not provide for retroactive application. 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. §?4.71a). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. Diagnostic Code 5257, which contemplates knee impairment with recurrent subluxation or lateral instability, was amended by the new regulations. For claims filed prior to February 7, 2021, knee impairment with recurrent subluxation or lateral instability is rated 10 percent when slight, 20 percent when moderate, and 30 percent when severe. 38 C.F.R. § 4.71a, Diagnostic Code 5257. According to MERRIAM WEBSTER'S COLLEGIATE DICTIONARY 999 (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. Objective medical evidence is not required to establish lateral knee instability under Diagnostic Code 5257, so objective medical evidence cannot be categorically found more probative than lay evidence with respect to this Diagnostic Code. See English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). For claims filed on or after February 7, 2021, knee impairment with recurrent subluxation or lateral instability is rated as 10 percent disabling 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 or bracing for ambulation. A 20 percent rating is warranted for either a sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability and a medical provider prescribes a brace and/or an assistive device for ambulation or an unrepaired or failed repair of a complete ligament tear causing persistent instability and a medical provider prescribes either an assistive device or brace for ambulation. A 30 percent rating is assigned for an unrepaired or failed repair of a complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device and a brace for ambulation. 38?C.F.R. §?4.71a, DC 5257. 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 maximum 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. Note (1) provides that, for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note (2) provides that a surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as a surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). 38?C.F.R. §?4.71a, DC 5257. Under Diagnostic Code 5258, a 20 percent rating is warranted where there is evidence of dislocated semilunar cartilage, with frequent episodes of locking, pain, and effusion into the knee joint. 38 C.F.R. § 4.71a, DC 5258. Under Diagnostic code 5259, symptomatic removal of semilunar cartilage in the knee warrants a 10 percent rating. 38 C.F.R. § 4.71a, DC 5259. Standard motion of a knee joint is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. Limitation of leg motion is governed by Diagnostic Codes 5260 and 5261. Diagnostic Code 5260 concerns limitation of leg flexion. A zero, non-compensable rating is warranted where flexion is limited to 60 degrees and a 10 percent rating is warranted for flexion limited to 45 degrees. A 20 percent rating is warranted where flexion is limited to 30 degrees, and a 30 percent rating is warranted for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5260. Diagnostic Code 5261 pertains to limitation of leg extension. A 10 percent rating is warranted where extension is limited to 10 degrees. A 20 percent rating is warranted where extension is limited to 15 degrees. A 30 percent rating is warranted where extension is limited to 20 degrees. 38 C.F.R. § 4.71a, DC 5261. For disabilities based on limitation of motion, VA is to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, be expressed in terms of the degree of additional loss-of-motion due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997); Southall-Norman v. McDonald, 28 Vet. App. 346, 354 (2016) (stating that "the plain language of § 4.59 indicates that it is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable, or malaligned joints or periarticular regions, regardless of whether the DC under which the disability is being evaluated is predicated on range of motion measurements"); 38 C.F.R. § 4.59. Under Diagnostic Code 5262, 20, 30, and 40 percent ratings are warranted for malunion of the tibia and fibula with moderate knee or ankle disability, marked knee or ankle disability, and nonunion of the tibia and fibula. 38 C.F.R. § 4.71a, DC 5262. Diagnostic Code 5263 assigns a single 10 percent rating for genu recurvatum (acquired, traumatic, with weakness and insecurity in weight-bearing objectively demonstrated). 38 C.F.R. § 4.71a, DC 5263. Finally, ratings from 30 to 60 are available for ankylosis of the knee joint. 38 C.F.R. § 4.71a, DC 5256. A claimant who has both limitation of flexion and limitation of extension of the same leg may be rated separately under Diagnostic Codes 5260 and 5261 to be adequately compensated for functional loss associated with injury to the leg. However, separate ratings require separate compensable symptomatology. VAOPGCPREC 9-2004 (2004), 69 Fed. Reg. 59,990 (2004). After reviewing the evidence, the Board finds the Veteran's left knee meniscal condition is more accurately rated under Diagnostic Code 5258 for injury to the meniscus (semilunar cartilage) with residual pain and locking than under Diagnostic Code 5010-5260. As this increases the Veteran's disability rating, the change is in no way prejudicial to the Veteran. The evidence shows the Veteran suffered a left knee meniscal tear in service with two surgical repairs. In a July 2010 statement, the Veteran reported left knee pain every day, regular use of pain medicine, and an inability to do activities like running, biking, and yardwork. During the August 2010 examination, the Veteran reported weakness, stiffness, locking, tenderness, and pain in the left knee. He also reported increased pain with activities such as carrying a heavy load, squatting, and kneeling. In November 2010, a treating provider documented reports of episodes of locking and popping and diagnosed symptomatic meniscal tear in the left knee. The April 2013 examiner recorded left knee meniscal tear with frequent episodes of locking and pain. The Veteran reported pain, flares of pain, and interference with sitting, standing, and weight-bearing. The Veteran also consistently reported having pain and difficulty ascending and descending stairs. During the February 2016 examination, the Veteran endorsed constant pain that increased with climbing stairs, standing for long periods, squatting, and heavy lifting and flare-ups in pain. The December 2019 examiner also noted left knee meniscal tear with frequent episodes of pain. Based on the Veteran's history of left knee meniscal tear, the symptoms of locking, pain, and resulting impairment to activities are more accurately rated under Diagnostic Code 5258 than Diagnostic Code 5010-5260. Considering instability, the evidence does not show more than mild instability in either knee. During the August 2010 examination, the Veteran reported weakness in both knees and giving way in the left knee. The examiner documented normal stability testing in both knees and no objective signs of weakness. A treating provider in March 2013 recorded a 1A Lachman's and a grade A PCL stability test result in both knees. The Veteran also consistently reported using knee braces. However, other treatment records show pain on McMurray's testing but negative findings on all stability and ligament tests. Treatment records from 2011 and 2012 show slightly reduced strength in the left knee as four out of five. Other notations show normal strength in the left and right knees. During treatment in April 2013, the Veteran reported feeling like the left knee gave way sometimes. He continued to report weakness and instability in a June 2014 statement. The August 2010, April 2013, February 2016, December 2019, September 2020, and May 2023 examiners found no objective evidence of instability on testing. With the exception of the March 2013 treatment record, the Veteran was always evaluated with normal stability on testing. As noted, "slight" generally means small in amount, "severe" means of a great degree, and "moderate" is a condition between the two. VA has not required objective medical evidence to establish knee instability or found medical evidence categorically more probative in this case. The Veteran's reports of feeling unstable and weak in the knees and wearing knee braces have been considered in the awards of 10 percent for slight instability in each knee. Yet, the Board finds the lack of objective medical evidence is probative to the degree of instability. As shown on examination reports, knee instability test results are measured from normal (or zero) to 3+. The Board finds these instability test results correlate well to the criteria of slight, moderate, and severe leaving guidelines of zero corresponding to no instability, 1+ to slight, 2+ to moderate, and 3+ to severe. Given the predominance of normal findings on testing as well as no reports of falls or required use of a cane or other assistive device, the Board finds the evidence does not support more than slight instability of the knees. There is no evidence of ligament sprain or tear or condition involving the patellofemoral complex to apply the amended criteria for Diagnostic Code 5257. Regarding limitation of motion, the evidence does not show the Veteran had a compensable level of limitation of flexion or extension in either knee. The August 2010 examination revealed left knee range of motion from zero to 110 degrees and right knee motion from zero to 140 degrees. Treating providers recorded left knee passive flexion to 135 degrees in October 2010, left knee motion from zero to 100 and full right knee motion in November 2010, left knee motion from zero to 120 degrees in January 2011, and left knee motion from zero to 85 degrees in June 2011. Treatment records from September 2011, December 2011, December 2012, and March 2013 show bilateral extension to zero degrees and flexion ranging from 110 to 130 degrees. The April 2013 examiner measured left and right knee range of motion from zero to 140 degrees, and the February 2016 VA examiner measured left knee motion from zero to 125 degrees and right knee motion from zero to 130 degrees. The December 2019 examiner recorded bilateral knee motion from zero to 140 degrees, and the September 2020 examiner measured normal right knee motion and left knee motion from zero to 120 degrees. The May 2023 examiner measured initial, active range of motion as zero to 140 in both knees with passive motion the same as active motion. None of the examiners noted reduced motion after three repetitive movements of the knees. In a November 2023 opinion, the examiner found the Veteran's flexion would be limited to 120 degrees in both knees during flare-ups. As discussed above, the Veteran consistently reported experiencing pain in the knees and pain limiting activities. The evidence shows bilateral knee motion significantly beyond the 60 degrees of limited flexion or 10 degrees of limited extension required for a compensable rating under Diagnostic Codes 5260 and 5261 even considering the effects of pain and flare-ups. Moreover, the evidence shows the reported pain was consistently described with activities, and several examiners found pain did not affect range of motion. See April 2013, December 2019, September 2020, May 2023 examinations (indicating no pain on examination or pain did not result in functional loss). The Board acknowledges the Veteran has degenerative joint disease and the regulations provide for assignment of the minimum compensable rating for a join that is actually painful or unstable under 38 C.F.R. § 4.59. In that regard, the Board finds the 10 percent rating for the right knee under Diagnostic Code 5260 should be awarded for painful motion throughout the rating period, not only from February 12, 2016. However, beyond that, the Board finds the Veteran is properly compensated for the pain in his left knee by the rating under Diagnostic Code 5258, the pain in the right knee by the minimum rating under Diagnostic Code 5260, and the symptoms of instability and weakness by the ratings under Diagnostic Code 5257. Assigning additional ratings for knee pain would be duplicative and pyramiding. The evidence shows the Veteran's passive range of motion was generally the same as active motion such that the Board finds remand for additional testing would not prove helpful to the Veteran's claim. The May 2023 examination and November 2023 opinion also addressed pain with active motion, passive motion, weight-bearing, non-weight-bearing, and flare-ups in compliance with the Joint Motion for Partial Remand approved by the Court in December 2022 and the holding from Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016). This information along with the consistent findings that pain did not affect range of motion convinces the Board that the evidence of record is sufficient to accurately rate the Veteran's disability. (Continued on the next page) ? In summary, the evidence supports assignment of a 10 percent rating for right knee painful motion throughout the rating period and assignment of a 20 percent rating for left knee meniscal tear with frequent episodes of pain and locking, but the evidence weighs persuasively against assignment of additional or higher ratings for the knee disabilities. A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.P. Armstrong 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.