Citation Nr: 1752472 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 12-23 150 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial disability rating in excess of 10 percent for left knee strain. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD T.Y. Hawkins, Counsel INTRODUCTION The Veteran served on active duty in the Army from January 1985 to December 1986, and from August 1997 to September 2006. He also had several periods of active duty for training (ACDUTRA) with the Army National Guard from September 2006 to January 2009, with no periods of inactive duty for training (INACDUTRA). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which granted service connection for left knee strain with a noncompensable (zero) disability rating, effective September 12, 2017. In April 2016, the Veteran testified before the undersigned Veterans Law Judge (VLJ) during a Travel Board hearing. A transcript of the hearing has been associated with the record. In June 2016, the Board remanded the claim to the RO/Agency of Original Jurisdiction (AOJ) for additional evidentiary development. As there has been substantial compliance with the Board's remand directives, the Board finds there is sufficient evidence to adjudicate the claim(s). See Stegall v. West, 11 Vet. App. 268, 271 (1998). In a March 2017 rating decision, the Veteran was granted a 10 percent disability rating for left knee strain, effective September 12, 2007. The issue remains in appellate status because a higher schedular rating is available. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Veteran's claim of entitlement to service connection for a right knee disorder, to include as secondary to left knee strain, was also granted in the March 2017 rating decision. His claim of entitlement to a heart disorder manifested by chest pain was granted in a May 2017 rating decision as supraventricular arrhythmia and atrial fibrillation. As he has neither appealed the ratings, nor the effective date assigned to the disabilities, the claims are no longer before the Board. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). FINDINGS OF FACT 1. During the period on appeal prior to February 1, 2017, the Veteran's left knee strain was manifested by symptoms no greater than flexion to 140 degrees, extension at zero degrees, without ankylosis, and with no objective evidence of pain following repetitive range of motion and no additional limitations. 2. For the period beginning February 1, 2017, the Veteran's left knee strain has been manifested by flexion to 110 degrees, extension at zero degrees, with a decrease in range of motion of 15 degrees in flexion following repetitive motion, and with pain, weakness, fatigability or incoordination significantly limiting functional ability with repetitive use and flare-ups over time. 3. Resolving doubt in favor of the Veteran, throughout the course of the appeal (beginning September 12, 2007), his left knee strain has been manifested by credible reports of mild instability. CONCLUSIONS OF LAW 1. For the period on appeal prior to February 1, 2017, the criteria for an initial disability rating in excess of 10 percent for left knee strain were not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.321, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5260, 5261 (2017). 2. Affording the Veteran the benefit of the doubt, beginning on February 1, 2017, the criteria for a disability rating of 20 percent for left knee strain, and no greater, were approximated. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.321, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5260, 5261 (2017). 3. Affording the Veteran the benefit of the doubt, the criteria for a separate disability rating of 10 percent, and no greater, for left knee instability have been approximated. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§!3.159, 3.321, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5260, 5261, 5257 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Analysis Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, and by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries, and the residual conditions in civilian occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2017). Separate Diagnostic Codes (DC) identify the various disabilities and the criteria for specific ratings. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2017). Pursuant to DC 5003, degenerative arthritis (hypertrophic or osteoarthritis), established by x-ray findings, will be evaluated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. Limitation of motion must be objectively confirmed by such findings as swelling, muscle spasm or satisfactory evidence of painful motion. Id. The Veteran's left knee strain has been evaluated under DC 5260. 38 C.F.R. § 4.71. The appropriate diagnostic codes for the Veteran's left knee strain are 38 C.F.R. § 4.71, DCs 5260 and 5261. Under DC 5260, a 10 percent rating is warranted for flexion limited to 45 degrees, a 20 percent rating is warranted for flexion limited to 30 degrees, and a maximum 30 percent rating is warranted for flexion limited to 15 degrees. Under DC 5261, a 10 percent rating is warranted for extension limited to 10 degrees, a 20 percent rating is warranted for extension limited to 15 degrees, a 30 percent rating is warranted for extension limited to 20 degrees, a 40 percent rating is warranted for extension limited to 30 degrees, and a 50 percent rating is warranted for extension limited to 45 degrees. For VA compensation purposes, normal flexion of the knee is to 140 degrees, and normal extension is to zero degrees. 38 C.F.R. § 4.71a, Plate II (2017). Separate ratings may also be assigned for limitation of flexion and limitation of extension of the same knee. Specifically, where a veteran has both a compensable limitation of flexion and a compensable limitation of extension of the same leg, the limitations must be rated separately to adequately compensate for functional loss associated with the disability. VAOPGCPREC 9-04 (Sept. 17, 2004), 69 Fed. Reg. 59990 (2005). A veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. 38 C.F.R. § 3.102 (2015); see Gilbert v. Derwinski, 1 Vet. App. 49 (1990). During the Veteran's first VA examination in March 2010, there was no evidence of pain with range of motion. Flexion was normal at 140 degrees and extension was normal at zero degrees. There was no objective evidence of pain following repetitive range of motion and no additional limitations. There was no ankylosis. X-rays showed mild medial joint space narrowing bilaterally. There was no injury or destructive change in the knee and no effusion. The Veteran said he had a desk job and had lost no time from work in the previous 12 months as a result of his left knee disability. The examiner diagnosed him as having minimal degenerative joint disease of the left knee and said that the condition resulted in significant effects on Veteran's employment, including pain, but no more than mild effects on his activities of daily living. VA Medical Center (VAMC) treatment records throughout the course of the appeal show that the Veteran repeatedly complained of chronic knee pain. A May 2009 outpatient treatment report indicated that he had bilateral knee braces. During a January 2010 VAMC outpatient visit, the Veteran continued to report weakness of his knees (primarily on the right) and the examiner noted that braces had been ordered. However, the physician noted that the orthopedics department would not perform surgery because the Veteran was considered too young. During a July 2015 outpatient visit, he reported pain with walking and general range of motion. He was assessed as having bilateral knee degenerative joint disease. The clinician advised him to use ice on the knees several times per day. New x-rays revealed mild, abnormal changes of both knees. During an ambulatory visit in January 2016, he again complained of chronic knee pain. In March 2017, the Veteran was afforded a second VA joints examination. He reported that his left knee disorder had worsened, both knees repeatedly gave way and he was using a cane and braces for semi-stabilization. He also reports flare-ups of the left knee, described as the need to wear braces to help walk due to straining from walking, bending, stooping and sitting. On physical examination, left knee flexion was to 110 degrees with pain and functional loss, and extension was at zero degrees. The functional loss was that the he was unable to bend the left knee or squat, and had difficulty walking up and down a flight of stairs. Upon repetitive motion, there was additional loss of range of motion in flexion, which was now limited to 0 - 95 degrees, but extension remained normal at zero degrees. The examiner noted that the factors causing functional loss were pain, fatigue, weakness and lack of endurance. Although the examiner said that the Veteran was not being examined immediately after repetitive use over time, he opined that the examination findings were medically-consistent with his statements describing functional loss with repetitive use over time caused by pain, weakness, fatigability or incoordination significantly limiting functional ability. Moreover, although the examiner said that the examination was not being performed during a flare-up, he also found the examination findings medically-consistent with the Veteran's statements describing functional loss during a flare-up. He added that the limiting factors during flare-ups were pain, weakness, fatigability or incoordination, which significantly limited his functional ability. During flare-ups, his range of motion was approximated as 95 degrees in flexion, and zero degrees in extension. Additional factors contributing to his left knee disorder were that he experienced pain while standing or sitting and had to alternate positions. He also had disturbance of locomotion. There was no ankylosis and no recent history of recurrent subluxation, lateral instability or effusion. Despite the Veteran's reports of the knee giving way, there was no evidence of joint instability, as all test results were normal. X-rays showed no evidence of degenerative or traumatic arthritis. However, the condition affected his ability to perform occupational tasks because he had pain and fatigue with standing and walking and had to change positions and stretch, and was unable to sit for longer than 15 minutes at a time without pain. There was evidence of pain on passive range of motion testing of the left knee as well as evidence of pain on non-weight bearing testing of the left knee. Applying the pertinent legal criteria to the facts of this case, the Board concludes that for the period prior to February 1, 2017, the probative evidence is against the Veteran's claim of entitlement to a disability rating in excess of 10 percent for left knee strain under DC 5260. As discussed above, a 20 percent rating is not warranted unless flexion is limited to 30 degrees. Moreover, under DC 5261, a higher, 20 percent rating is not warranted unless extension is limited to 15 degrees. During this portion of the appeal, the Veteran's flexion and extension were within normal limits at 140 degrees flexion and zero degrees extension. There was no evidence of functional loss due to pain or other extenuating circumstances such that a rating in excess of 10 percent would be warranted. However, applying the pertinent legal criteria and resolving the benefit of the doubt in the Veteran's favor, beginning February 1, 2017, the criteria for a disability rating of 20 percent for left knee strain, and no greater, were approximated. In this regard, the Board has considered the United States Court of Appeals for Veterans Claims (Court) holding under DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995), which states that the Board must determine whether there is evidence of weakened movement, excess fatigability, incoordination or functional loss due to pain on use or flare-ups when the joint in question is used repeatedly over a period of time. See also 38 C.F.R. § 4.40. Here, the Board has considered the examiner's findings, as well as the Veteran's statements during the February 2017 examination, in which the examiner specifically found that the Veteran's left knee strain resulted in functional loss caused by pain, weakness, fatigability or incoordination and lack of endurance with repetitive use over time. He further stated that the examination findings were medically-consistent with the Veteran's assertions that, during flare-ups, he experienced pain, weakness, fatigability or incoordination significantly limiting his functional ability. Finally, the examiner opined that these symptoms also affected his ability to perform occupational tasks because he has pain and fatigue with standing and walking and feels he has to change positions and stretch, and he is unable to sit for longer than 15 minutes at a time without pain. The Board thus finds that the significant functional loss approximates the criteria for a 20 percent rating. The Board has also considered whether other diagnostic codes are applicable to the Veteran's knee disorders at any time during the appeal. See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (en banc) (the assignment of a particular diagnostic code is "completely dependent on the facts of a particular case."). In this regard, during the first portion of the period on appeal, the Veteran reported that he was experiencing bilateral knee instability, greater on the right knee. During a January 2010 VAMC outpatient evaluation, it was noted that he continued to report weakness of the knees and braces were ordered. He also reported instability during the March 2010 examination, and said he had been provided with bilateral knee braces. During the February 2017 VA examination, he stated that he was now experiencing greater left knee instability. Nonetheless, neither VA examiner found any evidence of instability on testing. Under 38 C.F.R. § 4.71, DC 5257, recurrent, subluxation or lateral instability of the knee, slight impairment of either knee, including recurrent subluxation or lateral instability, warrants a 10 percent evaluation. A 20 percent evaluation requires moderate impairment, while a 30 percent evaluation requires severe impairment. Id. Although none of the clinicians who examined the Veteran's knees during the course of the appeal found any objective evidence of instability, the Court has held that a veteran is competent to describe symptoms of which he or she has first-hand knowledge. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Board finds that knee instability is a symptom that the Veteran, as a lay person, is competent to describe; moreover, he has been provided with knee braces by VA and there has been no evidence presented to cast doubt on his credibility. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, as his reports of left knee instability are entitled to some probative weight, and affording him the benefit of the doubt, a separate 10 percent disability rating for mild left knee instability is warranted effective September 12, 2007. Greater disability ratings for left knee instability are not warranted, however, as there has never been any probative evidence of moderate instability, including no such description from the Veteran. ORDER For the period on appeal prior to February 1, 2017, entitlement to a disability rating in excess of 10 percent for left knee strain is denied. For the period on appeal beginning February 1, 2017, entitlement to a disability rating for 20 percent, and no greater, for left knee strain is granted. A separate disability rating of 10 percent, and no greater, for left knee instability is granted, effective September 12, 2007. ____________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs