KNEE IMPAIRMENT OF

Summary

The Veteran, who served in the United States Air Force from December 1984 to October 1989, appeals the denial of an increased disability rating for her service-connected left knee condition. The Veteran sought a rating higher than 10 percent for left knee disability based on limitation of flexion, and also claimed entitlement to a separate rating for left knee instability. The Board reviewed the evidence, including a VA examination from April 2017 and the Veteran's own statements. The VA examination noted pain on motion but found no significant functional limitation with repeated use, normal joint stability, and no objective findings of arthritis or significant meniscal tear. The Veteran's statements described instability, knee locking, and difficulty with activities like hiking and prolonged sitting. The Board found the evidence did not support a rating higher than 10 percent for flexion limitation, as the Veteran denied flare-ups and the examiner found no significant functional limitation. However, the Board found the Veteran's consistent and credible reports of left knee instability warranted a separate 10 percent rating for slight left knee instability under DC 5257, granting the appeal to that extent. The Board denied the claim for an increased rating based on flexion limitation, finding the weight of the evidence was against it.

Rationale

Pain observed on motion, but no significant functional limitation with repeated use.; Veteran denied flare-ups.; Evidence did not show flexion limited to 30 degrees.

Full Decision Text

Citation Nr: 22032802
Decision Date: 06/06/22	Archive Date: 06/06/22

DOCKET NO. 18-01 075
DATE: June 6, 2022

ORDER

A disability rating in excess of 10 percent, based on limitation of flexion, for status-post left knee lateral plica (left knee disability) is denied.

A separate 10 percent disability rating, but no higher, for left knee instability is granted.

FINDING OF FACT

1. The Veteran's left knee disability is manifested by flexion limited to 130 degrees, at worst; it is not manifested by flexion limited to 30 degrees.

2. Resolving reasonable doubt in her favor, the evidence of record demonstrates that the Veteran's left knee disability is manifested by slight instability.

CONCLUSION OF LAW

1. The criteria for a disability rating in excess of 10 percent for a left knee, limitation of flexion, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5260.

2. The criteria for a separate rating for left knee instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.310, 4.71a; DC 5257.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Air Force from December 1984 to October 1989.

This matter comes before the Board of Veterans' Appeals (Board) on appeal of a May 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).

In her substantive appeal, the Veteran requested a hearing before the Board. A hearing was scheduled for March 2020, but was subsequently canceled due to Covid-19. The hearing was then scheduled for July 2020, but the Veteran indicated she could not attend that date. Thereafter, the Veteran's requested hearing was scheduled for October 2021. Although properly notified of the hearing, the Veteran did not attend. She has not requested to reschedule the hearing nor has she provided good cause for her failure to attend the hearing. Accordingly, the hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(d).

Increased Rating

Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002).

When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," in all claims for increased ratings. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999).

In rating 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). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity, or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing, and weight
 fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity, or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing, and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that 38 C.F.R. § 4.59 applies to disabilities other than arthritis). However, painful motion alone is not a functional loss without some restriction of the normal working movements of the body. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011).

The Veteran seeks a higher disability rating for her service-connected left knee disability, which is rated as noncompensable prior to February 8, 2017 and ten percent disabling thereafter under 38 C.F.R. § 4.71a, DC 5260. The Veteran's increased rating claim was received on February 8, 2017. Therefore, the relevant rating period is from February 9, 2016 one year prior to receipt of the claim through the present.  See 38 C.F.R. § 3.400 (o)(2); Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010).

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. However, DC 5260 was not changed or affected by the February 7, 2021 amendments.

The Board will first address whether a disability rating in excess of 10 percent is warranted based on limitation of motion of the knee. Separate evaluations may be assigned for limitation of flexion and extension of the same knee joint.

Limitation of flexion to 45 degrees warrants a 10 percent rating, a limitation to 30 degrees warrants a 20 percent rating, and a limitation to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a, DC 5260.

Limitation of extension to 10 degrees warrants a 10 percent rating, a limitation to 15 degrees warrants a 20 percent rating, a limitation to 20 degrees warrants a 30 percent rating, a limitation to 30 degrees warrants a 40 percent rating, and a limitation to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a, DC 5261.

The Veteran underwent a VA knee examination in April 2017. The Veteran complained of left knee pain. MRI showed a cyst on the left knee. She stated that pain is constant at a 4-5/10 and goes up to 8/10 after waking or stair climbing. She is currently in physical therapy and using a knee brace. She uses Voltaren gel and ice for pain. The Veteran denied flare-ups of the left knee.

Upon examination, the left knee had flexion to 130 degrees and extension to 0 degrees with pain that was observed but did not cause functional loss. Passive range of motion of the left knee was flexion to 140 degrees and full extension. Pain was noted with weight bearing and there was tenderness or pain upon palpation of the medial and lateral knee joint. The Veteran performed repetitive use testing without additional loss of range of motion. The examiner stated that symptoms such as pain, weakness, fatigability, or incoordination did not significantly limit the functional ability of the left knee with repeated use over time. 

Left knee muscle strength testing was normal and no atrophy was shown. No ankylosis was shown. No history of recurrent subluxation. No recurrent pat
ion to 130 degrees and extension to 0 degrees with pain that was observed but did not cause functional loss. Passive range of motion of the left knee was flexion to 140 degrees and full extension. Pain was noted with weight bearing and there was tenderness or pain upon palpation of the medial and lateral knee joint. The Veteran performed repetitive use testing without additional loss of range of motion. The examiner stated that symptoms such as pain, weakness, fatigability, or incoordination did not significantly limit the functional ability of the left knee with repeated use over time. 

Left knee muscle strength testing was normal and no atrophy was shown. No ankylosis was shown. No history of recurrent subluxation. No recurrent patellar dislocation, shin splints, stress fractures, or tibial or fibular impairment. No history of lateral instability or recurrent effusion. Joint stability testing was normal. No meniscal condition was shown. The examiner noted the Veteran underwent an arthroscopy lateral plica surgery on the left knee in May 1988. Imaging studies were performed, which showed no evidence of arthritis. 

The January 2017 MRI showed that the anterior and posterior cruciate ligaments, medial and lateral collateral ligaments, patellar tendon and visualized quadriceps complex are intact. No overt meniscal tear, however, at the junction between the body and anterior horn of the lateral meniscus there is a meniscal cyst, suggesting a meniscal tear not visualized on the current study. A tiny Baker's cyst, no significant knee joint effusion, no full thickness articular cartilage defect.

In a July 2017 statement the Veteran stated she is forced to wear a hinged knee brace because part of her meniscus was removed which causes her kneecap to be loose forcing her to wear a knee brace at all times. She stated her left knee gives out or locks up causing falls if she is not wearing her brace. 

In the January 2018 substantive appeal the Veteran stated she can no longer go hiking, walk long distances, or go water skiing. She reported jumping from a height of four feet and realized her knee could no longer handle the force, and she had to immediately fall forward. She stated she cannot sit for long periods of time.

Based on a review of the evidence, the Board finds that for the appeal period, a disability rating in excess of 10 percent for the left knee disability, based on limitation of flexion, is not warranted. Pain was observed on motion, and the Veteran described functional impairment such as difficulty in prolonged sitting, walking, or participating in hiking and water skiing. 

Although the evidence suggests that such impairment would reduce flexion to some extent, as noted in the April 2017 examination report, the evidence does not show symptomatology productive of flexion limited to 30 degrees for the left knee. The Veteran denied flare-ups, and the examiner found that symptoms such as pain, weakness, fatigability, or incoordination did not significantly limit the functional ability of the left knee with repeated use over time.

The Veteran's painful motion is contemplated by her minimum 10 percent disability rating for her left knee. This rating was assigned under DC 5260 in conjunction with 38 C.F.R. § 4.59, which provides for a minimum compensable rating for actually painful joints in conjunction with a diagnostic code and applies whether or not arthritis has been diagnosed. See Sowers v. McDonald, 27 Vet. App. 472, 479 (2016); Southall-Norman v. McDonald, 28 Vet. App. 346, 354 (2016).

The Board has considered the other diagnostic codes pertaining to the knee and leg. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). 

A separate disability rating is not warranted for limitation of extension (DC 5261). Treatment records and the VA examination reveal that extension was full and not limited.

There is no lay or medical evidence showing the Veteran's left knee disability has manifested by ankylosis, impairment of the tibia or fibula, or genu recurvatum at any time during the appeal period. Therefore, DCs 5256, 5262, and 5263 are not applicable in this case. 

However, the Board notes that the Veteran has consistently reported left knee instability, invoking the possibility of a separate rating under DC 5257. 

As noted above, the rating criteria changed
 prohibits paying compensation twice for the same symptoms or functional impairment). 

A separate disability rating is not warranted for limitation of extension (DC 5261). Treatment records and the VA examination reveal that extension was full and not limited.

There is no lay or medical evidence showing the Veteran's left knee disability has manifested by ankylosis, impairment of the tibia or fibula, or genu recurvatum at any time during the appeal period. Therefore, DCs 5256, 5262, and 5263 are not applicable in this case. 

However, the Board notes that the Veteran has consistently reported left knee instability, invoking the possibility of a separate rating under DC 5257. 

As noted above, the rating criteria changed during the appeal period. Under the former VA regulations, 38 C.F.R. § 4.71a, DC 5257, slight recurrent subluxation or lateral instability was rated as 10 percent disabling, moderate recurrent subluxation or lateral instability rated as 20 percent disabling, and severe recurrent subluxation or lateral instability warranted a 30 percent rating. The terms "mild," "moderate" and "severe" were not defined in the Rating Schedule. Knee subluxation is when the patella of the knee moves out of normal positioning and knee instability is either the feeling that one's knee is about to give out or a catching or locking of the joint causing swelling and inability to straighten.

Effective February 7, 2021, the new regulation changed DC 5257 from the subjective terms to detailed types of instability resulting in specific types of impairments. 

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. Therefore, the Board will consider a separate rating 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.

Pursuant to the revised regulations, effective February 7, 2021, 38 C.F.R. § 4.71a, DC 5257 under recurrent subluxation or instability, 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 or bracing for ambulation. A 20 percent rating is warranted for (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device 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 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. 

Regarding recurrent patellar instability, 10 percent disability 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 disability 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 30 percent disability 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): For patellar instability, the patellofemoral medial complex consists of the quadriceps tendon, the patella, and the patellar tendon. 

After a review of the evidence of record, the Board finds that under DC 5257, a separate 10 percent rating for slight left knee instability is warranted.  The Veteran has consistently, credibly and competently reported instability
 surgical repair that requires a prescription by a medical provider for one of the following: a brace, cane, or walker. A 30 percent disability 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): For patellar instability, the patellofemoral medial complex consists of the quadriceps tendon, the patella, and the patellar tendon. 

After a review of the evidence of record, the Board finds that under DC 5257, a separate 10 percent rating for slight left knee instability is warranted.  The Veteran has consistently, credibly and competently reported instability in her left knee. In various statements to VA, she has described using a brace to prevent her knee from giving out or locking up, taking it off only to sleep.  The Board observes that the Veteran is competent to provide lay testimony as to knee instability. See English v. Wilkie, 30 Vet. App. 347 (2018). 

Thus, the Board finds that a separate 10 percent rating for slight left knee instability under DC 5257 is granted. See Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that the evaluation of a knee disability under DC 5257 and DC 5260 or 5261 do not preclude, as a matter of law, a separate evaluation under DCs 5258 or 5259). 

Regarding DCs 5258 and 5259, the record demonstrates that the Veteran had left knee surgery whereas the meniscus was debrided. However, as noted at the April 2017 VA examination, the condition is asymptomatic. Therefore, no additional rating under these codes is warranted. 

In reaching its determinations, the Board has duly considered the lay evidence of record, including the assertions of the Veteran in support of a higher rating. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, the criteria needed to support higher ratings relies upon objective medical findings that are within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-138 (1994). 

Finally, the Board notes the ruling of the United States Court of Appeals for Veterans Claims (Court) in Rice v. Shinseki, 22 Vet. App. 447 (2009). There, the Court held that a claim for a TDIU, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the Veteran has not alleged, nor does the record suggest, that her left knee disability renders her unable to obtain and maintain employment. As such, Rice is inapplicable in this case.

Accordingly, the Board finds that the weight of the evidence is against the claim for an increased rating for left knee limitation of flexion; to that extent, the appeal is denied. The Board does find that a separate 10 percent rating is warranted for the Veteran's left knee instability; to that extent, the appeal is granted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102.

 

JEREMY J. OLSEN

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. St. Laurent, Associate 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.