KNEE IMPAIRMENT OF

M.E. LARKIN · 2025 · Case ID: 25005695

MIXED

Summary

The veteran, who served from November 1969 to November 1971 and again from December 1977 to April 2013, appeals the denial of higher staged initial ratings for left knee limitation of extension and flexion, and the denial of a separate compensable rating for left knee instability. The Board reviewed the veteran's claims based on the applicable rating criteria, including amendments effective February 7, 2021. For left knee limitation of extension, the Board found the veteran's prior noncompensable rating (5 degrees limitation) and subsequent 10 percent rating (10 degrees limitation) were appropriate, denying entitlement to a higher rating. For left knee limitation of flexion, the Board found the veteran's consistent limitation to 60 degrees, which corresponds to a noncompensable rating, was appropriate, denying entitlement to a higher rating. For left knee instability, the Board considered the veteran's testimony of knee giving out and falling, finding it consistent with slight instability. Applying the pre-February 7, 2021 criteria, this warranted a 10 percent rating. Under the revised criteria, the veteran's condition, which did not require a prescribed brace or assistive device, also met the criteria for a 10 percent rating. Therefore, a separate 10 percent rating for instability was granted. The Board remanded claims for nocturnal leg cramps in both lower extremities due to inadequate examination regarding their impact on sleep and occupational functioning.

Rationale

Pre-May 5, 2022 limitation to 5 degrees is noncompensable.; Post-May 5, 2022 limitation to 10 degrees is 10 percent.; No evidence supports limitation to 15 degrees or more for higher rating.

Special Benefit

NO SPECIAL BENEFIT

Diagnostic Code

5261

Docket No.

15-23 961

Full Decision Text

Citation Nr: 25005695
Decision Date: 04/25/25 Archive Date: 04/25/25

DOCKET NO. 15-23 961
DATE: April 25, 2025

ORDER

Entitlement to a higher staged initial rating for limitation of extension of the left knee, rated as noncompensable prior to May 5, 2022, and 10 percent thereafter is denied.

Entitlement to a higher staged initial rating for limitation of flexion of the left knee, rated as 10 percent prior to May 5, 2022, and noncompensable thereafter is denied.

Entitlement to a separate rating of 10 percent and no higher for instability of the left knee is granted subject to the laws and regulations governing the payment of monetary benefits.

REMANDED

Entitlement to a staged initial rating for nocturnal leg cramps of the left lower extremity, rated as noncompensable prior to May 5, 2022, and 10 percent thereafter is remanded.

Entitlement to a staged initial rating for nocturnal leg cramps of the right lower extremity, rated as noncompensable prior to May 5, 2022, and 10 percent thereafter is remanded.

FINDINGS OF FACT

1. The Veteran's left knee strain is manifest by limitation of extension to 5 degrees prior to May 5, 2022, and limitation to 10 degrees thereafter.

2. The Veteran's left knee strain is manifest by limitation of flexion to 60 degrees prior to May 5, 2022, and limitation to 90 degrees thereafter.

3. The Veteran's left knee strain is manifest by slight recurrent patellar instability of a diagnosed condition involving the patellofemoral complex that does not require a prescription from a medical provider for a brace, cane, or walker.

CONCLUSIONS OF LAW

1. The criteria for a compensable rating prior to May 5, 2022, and a rating higher than 10 percent thereafter, for limitation of extension of the left knee are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5261.

2. The criteria for a rating higher than 10 percent prior to May 5, 2022, and a compensable rating thereafter, for limitation of flexion of the left knee are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5261.

3. The criteria for a separate rating of 10 percent and no higher for instability of the left knee are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5257.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from November 1969 to November 1971 and from December 1977 to April 2013.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2015 rating decision. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in October 2018. A transcript of that hearing is of record. A July 2022 rating decision assigned a 10 percent rating for limitation of extension of left knee, assigned a noncompensable rating for limitation of flexion of the left knee, and assigned a 10 percent rating for nocturnal leg cramps for each lower extremity, all effective May 5, 2022. The assignment of a noncompensable rating for limitation of flexion of the left knee did not reduce the Veteran's overall disability rating, and thus the procedural requirements for a rating reduction did not apply. These matters have been remanded by the Board several times, most recently in July 2024. The Board finds there has been substantial compliance with its remand directives for the claims decided herein. Stegall v. West, 11 Vet. App. 268 (1998).

Increased Rating

Disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Pertinent regulations do not require that all cases show all findings specified by the Schedule,
procedural requirements for a rating reduction did not apply. These matters have been remanded by the Board several times, most recently in July 2024. The Board finds there has been substantial compliance with its remand directives for the claims decided herein. Stegall v. West, 11 Vet. App. 268 (1998).

Increased Rating

Disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. 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).

Evaluation of a service-connected disorder requires a review of the veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When 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. If there is a question as to which evaluation to apply to the veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

In all claims for an increased disability rating, VA has a duty to consider the possibility of assigning staged ratings. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings is necessary.

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider 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 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 evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided. Id.; Esteban v. Brown, 6 Vet. App. 259 (1994).

During the pendency of the Veteran's claim and appeal, the criteria for rating musculoskeletal disabilities were changed by an amendment to the
loss without some restriction of the normal working movements of the body. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011).

During the pendency of the Veteran's claim and appeal, the criteria for rating musculoskeletal disabilities were changed by an amendment to the rating schedule that became effective on February 7, 2021. 85 Fed. Reg. 76, 453 (November 30, 2020). The amendments provide that the Board should apply the criteria which are more favorable to the Veteran. The amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change; however, the old regulations will be considered for the periods both before and after the change was made. See VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003).

1. Entitlement to a higher staged initial rating for limitation of extension of the left knee, rated as noncompensable prior to May 5, 2022, and 10 percent thereafter

The Veteran contends that he should be assigned a higher rating for limitation of extension of his left knee.

The limitation of extension of the Veteran's left knee strain is rated under DC 5261. This DC was not changed by the amended rating criteria for musculoskeletal disabilities. Under DC 5261, a noncompensable rating is assigned when extension is limited to 5 degrees. A 10 percent rating is assigned when extension is limited to 10 degrees. A 20 percent rating is assigned when extension is limited to 15 degrees. A 30 percent rating is assigned when extension is limited to 20 degrees. A 40 percent rating is assigned when extension is limited to 30 degrees. A 50 percent rating is assigned when extension is limited to 45 degrees. 38 C.F.R. § 4.71a, DC 5261.

Prior to May 5, 2022, the most severe limitation of extension was 5 degrees, which was demonstrated in the January 2015 VA examination. Limitation to 5 degrees is assigned a noncompensable rating according to the rating schedule. The Veteran's treatment records do not indicate a more severe limitation of extension during this period. To the extent that the January 2015 VA examination is not adequate because it does not include range of motion during flare-ups, the Board notes that a November 2019 VA examination found full extension during flare-ups and thus meets the requirements of Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017) prior to May 5, 2022. Entitlement to a compensable rating for limitation of extension prior to May 5, 2022, is thus denied.

From May 5, 2022, the most severe limitation of extension recorded is limitation to 10 degrees during flare-ups, as noted in the May 2022 VA examination. There is no indication in the record that the Veteran's extension is limited to 15 degrees, as would be required for a rating higher than 10 percent. The May 2022 examination indicates that the Veteran's knee is treated by rest and elevating the leg.

The Board notes that the May 2022 VA examination also indicates muscle atrophy in the left calf. This finding is inconsistent with the rest of the record. The Veteran has consistently found to not have muscle atrophy in the left calf. The VA examination of the Veteran's muscles from May 2022 explicitly found no atrophy in the affected muscle groups of XI and XII, which includes the calf muscle. The Board finds that the VA examination that focuses upon the muscles and is consistent with the rest of the record has greater probative value than the general VA examination regarding the knee that made a single finding of atrophy that is contradicted by all other evidence of record.

Based on the above, entitlement a rating higher than 10 percent for limitation of extension of the left knee from May 5, 2022, is denied.

2. Entitlement to a higher staged initial rating for limitation of flexion of the left knee, rated as 10 percent prior to May 5, 2022, and noncompensable thereafter

The Veteran contends
no atrophy in the affected muscle groups of XI and XII, which includes the calf muscle. The Board finds that the VA examination that focuses upon the muscles and is consistent with the rest of the record has greater probative value than the general VA examination regarding the knee that made a single finding of atrophy that is contradicted by all other evidence of record.

Based on the above, entitlement a rating higher than 10 percent for limitation of extension of the left knee from May 5, 2022, is denied.

2. Entitlement to a higher staged initial rating for limitation of flexion of the left knee, rated as 10 percent prior to May 5, 2022, and noncompensable thereafter

The Veteran contends that he should be assigned a higher rating for limitation of flexion of his left knee.

Limitation of flexion of the knee is rated under DC 5260 and was not affected by the amendment regarding musculoskeletal disabilities. Under DC 5260, a noncompensable rating is assigned for limitation of flexion to 60 degrees. A 10 percent rating is assigned for limitation of flexion to 45 degrees. A 20 percent rating is assigned for limitation of flexion to 30 degrees. A 30 percent rating is assigned for limitation of flexion to 15 degrees. 38 C.F.R. § 4.71a, DC 5260.

The most severe limitation of flexion before and after May 5, 2022, was limitation to 60 degrees during flare-ups as noted in a November 2019 VA examination. Limitation to 60 degrees of flexion is consistent with a noncompensable rating. The Board recognizes that the Veteran continued to have some level of painful motion after May 5, 2022, when the Veteran was assigned a noncompensable rating. However, assigning a minimal 10 percent rating for noncompensable painful motion was no longer appropriate after May 5, 2022, because the Veteran was assigned a 10 percent rating for painful limitation of motion under DC 5261.

For the foregoing reasons, entitlement to a rating higher than 10 percent prior to May 5, 2022, and a noncompensable rating thereafter, is denied.

3. Entitlement to a separate compensable rating for instability of the left knee

The Board will consider whether a separate rating for instability of the left knee is warranted because it has been reasonably raised by the record.

Instability of the knee is rated under DC 5257, which is affected by the amendment of the musculoskeletal rating criteria. Under the version of DC 5257 in effect before February 7, 2021, a 10 percent rating is available for slight recurrent subluxation or lateral instability. A 20 percent rating is assigned for moderate recurrent subluxation or lateral instability. A 30 percent rating is assigned for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, DC 5257 (2020).

The use of the terminology within a VA examination report is not in and of itself dispositive. 38 C.F.R. § 4.6. The Merriam-Webster Dictionary Online defines slight as "small of its kind or in amount." Merriam-Webster Dictionary Online, slight, https://www.merriam-webster.com/dictionary/slight, Definition 2 (last visited April 24, 2025). Moderate is defined as "not violent, severe, or intense." Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/moderate. Severe is defined as "very painful or harmful" or "of a great degree." Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/severe, definitions 6b, 8.

Under the revised version of DC 5257, in effect as of February 7, 2021, for recurrent subluxation or lateral instability, a 10 percent rating is assigned 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. A 20 percent rating is assigned 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
, 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. A 20 percent rating is assigned 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 30 percent rating is assigned 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. 38 C.F.R. § 4.71a, DC 5257 (2021).

In cases of patellar instability under the new rating criteria, 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 a brace, cane, or walker. A 30 percent rating is warranted for 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. Id.

Under Note (1): For patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon.

Per 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). Id.

The Board will consider the old and new rating criteria and apply the criteria that results in the greatest benefit for the Veteran.

The VA examinations during the period on appeal consistently find no history of instability and normal stability testing. However, the Veteran testified in the October 2018 hearing that he experiences some instability in his left knee such that his knee gives out and he has fallen several times. He testified that he uses a cane for his knee as well as his sciatica. Medical evidence, such as objective testing in a VA examination, is not required for a rating based on instability to be assigned. English v. Wilkie, 30 Vet. App. 347 (2018).

Based upon the Veteran's hearing testimony, the Board finds that he has slight or small amount of left knee instability. Because the Veteran's instability was not detected by any VA examination, the Board finds it does not rise to the level of being moderate. Therefore, the Veteran's symptoms are consistent with a 10 percent rating under the old rating criteria.

The Board will now consider whether a rating higher than 10 percent is warranted under the new rating criteria. There is no evidence of a sprain or a ligament tear. The Board considers the Veteran's left knee strain to be a diagnosed disability of the patellofemoral complex. Therefore, the difference between a 10 percent rating and a 20 percent is whether the Veteran requires a prescription by a medical provider for a brace, cane, or walker. Although the Veteran testified in his October 2018 hearing that he uses a cane for his left knee disability and his sciatica, there is no indication that this cane was prescribed by a doctor specifically for his left knee disability as opposed to a cane that the Veteran chose to buy for himself. The May 2022 and August 2024 VA examinations found that the Veteran did not require a prescription for a cane, walker, crutches, or brace. The record thus reflects that the Veteran has recurrent instability but does not require a prescription for a medical provider for a brace, cane, or walker. The Veteran's left knee instability is thus consistent with the assignment of a 10 percent rating under the new rating criteria as well.

Based upon the above, the Board finds that the Veteran meets the criteria for a separate rating of 10 percent and no higher for instability of the left knee throughout the period on appeal.

REASONS FOR REMAND

1. Entitlement to a staged initial rating for nocturnal leg cramps of the left lower extrem
2022 and August 2024 VA examinations found that the Veteran did not require a prescription for a cane, walker, crutches, or brace. The record thus reflects that the Veteran has recurrent instability but does not require a prescription for a medical provider for a brace, cane, or walker. The Veteran's left knee instability is thus consistent with the assignment of a 10 percent rating under the new rating criteria as well.

Based upon the above, the Board finds that the Veteran meets the criteria for a separate rating of 10 percent and no higher for instability of the left knee throughout the period on appeal.

REASONS FOR REMAND

1. Entitlement to a staged initial rating for nocturnal leg cramps of the left lower extremity, rated as noncompensable prior to May 5, 2022, and 10 percent thereafter is remanded.

2. Entitlement to a staged initial rating for nocturnal leg cramps of the right lower extremity, rated as noncompensable prior to May 5, 2022, and 10 percent thereafter is remanded.

Unfortunately, there has not been substantial compliance with the Board's previous remand directives regarding these issues. Specifically, the July 2024 remand instructed the examiner to discuss the effect of the Veteran's bilateral nocturnal leg cramps on any occuaptional functioning and activities of daily living, to include the Veteran's reports of being unable to get a restful night's sleep due to these disabilities. The August 2024 examination did not discuss the Veteran's report of being unable sleep. The only functional impact discussed in the examination report is limitations on walking, standing, sitting, and heavy lifting. Another remand is required to discuss the impact of the Veteran's nocturnal leg cramps on his ability to get a restful night's sleep. Stegall v. West, 11 Vet. App. 268, 271 (1998).

The matters are REMANDED for the following action:

1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of the service-connected nocturnal leg cramps of the bilateral lower extremities. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria.

To the extent possible, the examiner should identify any symptoms and functional impairments due to the Veteran's bilateral nocturnal leg cramps alone and discuss the effect of the Veteran's bilateral nocturnal leg cramps on any occupational functioning and activities of daily living, to include the Veteran's reports of being unable to get a restful night's sleep due to these disabilities.

M.E. Larkin

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board A. Budd, 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.

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