Citation Nr: 24017635 Decision Date: 04/24/24 Archive Date: 04/24/24 DOCKET NO. 18-13 042 DATE: April 24, 2024 ORDER Entitlement to a rating in excess of 10 percent for a left knee disability is denied. Entitlement to a rating in excess of 10 percent for a right knee disability is denied. FINDING OF FACT The Veteran's left and right knee disabilities are manifested by painful motion not limited to a compensable degree of flexion or extension limitation. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for a left knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (Code) 5260. 2. The criteria for a rating in excess of 10 percent for a right knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Code 5260. REASONS AND BASES FOR FINDING AND CONCLUSIONS The appellant is a Veteran who served on active duty in the U.S. Coast Guard from October 1994 to October 1998 and in the Air National Guard from September 2001 to February 2002 and from March 2002 to September 2002. These matters are before the Board of Veterans' Appeals (Board) on appeal from a May 2017 rating decision. In March 2023 a video conference hearing was held before the undersigned. The Board remanded this claim in August 2023 in order to provide the Veteran VA examinations which document the current severity of his bilateral knee disabilities. The claims file reflects that the Regional Office provided the Veteran with VA examinations in September 2023. Therefore, the Board finds that substantial compliance with its prior remand directives has been met. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271(1998). Accordingly, the Board may proceed with adjudication." Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule). The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate Codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In a claim for an increased rating, "staged" ratings may be warranted where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. In evaluating 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). Under 38 C.F.R. § 4.40, consideration must be given to functional loss due to pain and weakness causing additional disability beyond that reflected by range of motion measurements. Under 38 C.F.R. § 4.45, consideration must be given to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. Painful, unstable, or misaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Some revisions to the musculoskeletal Codes have been made effective February 7, 2021. See 38 C.F.R. § 4.71a. As the Veteran's appeal was pending at the time of this revision, from that date, he is entitled to a rating under the old or the new criteria, whichever are more favorable. Ankylosis of a knee is rated under Code 5256. Recurrent subluxation or lateral instability is rated under Code 5257. Prior to February 7, 2021, a slight impairment was 10 percent, a moderate impairment was 20 percent, and a severe impairment was 30 percent. Under the pre-amended criteria, DC 5257 provides for instability that is "slight," "moderate," or "severe." 38 C.F.R. § 4.71a, DC 5257 (2020). These terms (slight, moderate, severe) are not defined in the pre-amended diagnostic code and, therefore, rather than applying a mechanical formula, the Board must evaluate all the evidence in arriving at a decision regarding an increased rating. 38 C.F.R. § 4.6. The use of the terminology within a VA examination report is not in and of itself dispositive. Id. 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. Effective February 7, 2021, DC 5257 is amended to provide for more explanation as to the terminology. Although not effective until February 7, 2021, the Board finds the definitions within the amended DC 5257 criteria instructive and, therefore, will apply either the Merriam-Webster dictionary definition or the amended DC 5257 definitions, whichever is most favorable for the Veteran in light of the evidence. In particular, from February 7, 2021, Code 5257 is now expanded to have ratings for recurrent subluxation or patellar instability. For recurrent subluxation or instability, a 30 percent rating is warranted for unrepaired of 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 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 (e.g., cane(s), crutch(es), walker) or bracing for ambulation. For patellar instability, a 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. 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 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. Knee disability may also be rated under Code 5258 (20 percent for dislocated semilunar cartilage), or Code 5259 (10 percent for symptomatic removal of semilunar cartilage). Under Code 5260, limitation of knee flexion is rated 0 percent when limited to 60 degrees; 10 percent when limited to 45 degrees; 20 percent when limited to 30 degrees; and 30 percent when limited to 15 degrees. Under Code 5261, knee extension limitation at 5 degrees is rated 0 percent; when limited to 10 degrees, 10 percent; when limited to 15 degrees, 20 percent; when limited to 20 degrees 30 percent; when limited 30 degrees, 40 percent; and when limited to 45 degrees, 50 percent. In a December 2017 knee conditions examination, the diagnosis was bilateral patellofemoral pain syndrome. The Veteran reported pain in both knees with flare-ups causing increased pain. He reported the knees felt weak and it was hard to stand from a squatting position. Range of motion of the right knee was abnormal with flexion to 115 degrees and extension to 0 degrees. Pain was not shown on examination. Repetitive use did not result in additional functional loss or range of motion after three repetitions. Range of motion of the left knee was abnormal with flexion to 125 degrees and extension to 0 degrees. Pain was not shown on examination. Repetitive use did not result in additional functional loss or range of motion after three repetitions. Muscle strength testing of both knees was normal. Ankylosis was not shown in either knee. Joint stability tests of both knees were normal. At the March 2023 Board hearing, the Veteran testified that he has difficulty getting off the ground if he drops something. He testified that his knees crack, strain, and ache constantly, and especially going downstairs. A May 2023 MRI of the left knee showed mild patellofemoral joint osteoarthrosis with mild to moderate chondral fissuring, chronic ACL grade 1 sprain, and mild quadriceps tendinosis. A May 2023 MRI of the right knee showed mild lateral patellar subluxation associated with mild to moderate patellofemoral joint osteoarthrosis with mild to moderate patellofemoral joint chondral fissuring, chronic moderate distal patellar tendinosis, and chronic ACL grade 1 to 2 sprain. In a September 2023 knee conditions examination, the diagnoses were bilateral patellofemoral pain syndrome, and mild to moderate patellofemoral joint osteoarthrosis. The Veteran reported pain in his knees has worsened over time and reported daily flare-ups. The Veteran reported he could barely walk downstairs. A history of frequent effusion about once a week was noted. Range of motion of the right knee was abnormal with flexion to 120 degrees, and extension to 5 degrees. Pain was shown on extension during active and passive motion. Mild tenderness over the medial and later joint lines was noted. Estimated range of motion during a flare-up was noted as flexion to 90 degrees and extension to 5 degrees. Range of motion of the left knee was abnormal with flexion to 115 degrees and extension to 0 degrees. Pain on flexion and extension was noted during active and passive motion. Mild tenderness over the medial and later joint lines was noted. Estimated range of motion during a flare-up was noted as flexion to 90 degrees and extension to 0 degrees. Muscle atrophy was not shown. Ankylosis was not shown. Joint stability testing was normal. It was noted the Veteran has difficulty with prolonged sitting, prolonged standing, prolonged walking, going up/downstairs, kneeling, and squatting. 1. Entitlement to a rating in excess of 10 percent for a left knee disability. 2. Entitlement to a rating in excess of 10 percent for a right knee disability. The Veteran contends that he is entitled to a rating in excess of 10 percent each for right and left knee disabilities. The Veteran was assigned a rating of 10 percent each for his right and left knee disabilities based on painful motion. Consequently, the question before the Board is whether a rating higher than 10 percent is warranted for these disabilities. The Board finds as a fact in this case that based on the VA examinations above, the Veteran's right and left knees are not shown to be ankylosed, are not shown to have recurrent subluxation or lateral instability, there was no symptomatic meniscus condition, and there was no associated tibia or fibular impairment, or genu recurvatum. Accordingly, Codes 5256, 5257, 5258, 5259, 5262, and 5263 do not apply. A 10 percent rating has been assigned for painful motion without a compensable degree of impairment. Compensable limitations of flexion or extension were not shown. Therefore, separate ratings under Code 5260 and/or or Code 5261 were not warranted during the appeal period. The Board has carefully considered the Veteran's reports of knee pain. Critically, however, functional loss must be rated under the diagnostic code pertaining to limitation of motion of the affected joint, pursuant to 38 C.F.R. § 4.40; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991) (noting that functional loss due to pain is to be rated at the same level as where motion is impeded); DeLuca v. Brown, 8 Vet. App. 202, 205-06 (noting that the disabling effect of painful motion must be considered when rating joint disabilities) (1995); Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011) (stating that functional loss caused by pain must be rated at the same level as if that functional loss were caused by some other factor that limited motion)); c.f., Petitti v. McDonald, 27 Vet. App. 415 (2015). Hence, there is no basis upon which to find additional limitation due to functional factors. See 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 202; Mitchell, 25 Vet. App. at 32. As indicated above, the Veteran's report of symptoms during flare-ups is contemplated in the assigned 10 percent rating. Additionally, the September 2023 knee conditions examination provided an estimate of the range of motion during flare-ups, which are not of a compensable degree. The Veteran has reported that his knees have worsened over the years. However, he does not meet the criteria for the assignment of a separate disability rating for limitation of flexion or extension in his left or right knee under VAOPGCPREC 09-2004, VAOPGCPREC 23-97, or VAOPGCREC 9-98 at any time during the appeal period. The Board is grateful for the Veteran's honorable service. However, given the record before it, the Board finds that the evidence in this case does not reach the level of equipoise. See 38 U.S.C. § 5107(a) ("[A] claimant has the responsibility to present and support a claim for benefits . . . ."); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (stating that the claimant has the burden to "present and support a claim for benefits" and noting that the benefit of the doubt standard in section 5107(b) is not applicable based on pure speculation or remote possibility); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (interpreting section 5107(a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA's duty to assist, and recognizing that "[w]hether submitted by the claimant or VA . . . the evidence must rise to the requisite level set forth in section 5107(b)," requiring an approximate balance of positive and negative evidence regarding any issue material to the determination). In conclusion, the Board finds that the evidence of record persuasively weighs against the Veteran's claim for increased ratings for his right and left knees. As the evidence of record persuasively weighs against increased ratings, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776, 781-82 (Fed. Cir. 2021). Accordingly, ratings in excess of 10 percent each for the left and right knee disabilities are not warranted. PAULA B. McCARRON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Staskowski, Nichole 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.