Citation Nr: 1752699 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 11-06 896 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an initial rating in excess of 10 percent for left knee strain. ATTORNEY FOR THE BOARD T. Carter, Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from September 2000 to December 2008 with subsequent service in the Air National Guard. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In April 2016 and May 2017, the Board remanded the case for additional development and it has been returned to the Board for appellate review. FINDINGS OF FACT For the entire initial rating period since December 2, 2008, the Veteran's service-connected left knee strain has not been manifested by at least flexion limited to 30 degrees or less, extension limited by 15 degrees or more, ankylosis, dislocated semilunar cartilage, or impairment of tibia and fibula. 2. Prior to December 2, 2010, the Veteran's service-connected left knee strain manifested as credible subjective complaints of instability. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating in excess of 10 percent for left knee strain have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, 5110(a) (West 2014); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5024, 5260, 5261 (2017). 2. The criteria for a separate 10 percent disability rating, but no higher, for instability of the left knee were met, effective December 2, 2008. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, 5110(a) (West 2014); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.21, 4.71a, Diagnostic Code 5257 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONs Duties to Notify & Assist As service connection, initial rating, and effective date have been assigned for the issue on appeal, the notice requirements of 38 U.S.C.A. § 5103(a) have been met. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate her claim, and affording her multiple VA examinations. 38 U.S.C.A. §§ 5103, 5103A. There was also substantial compliance with the April 2016 and May 2017 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The AOJ obtained additional VA treatment records dated from April 2010 to August 2010. The VA examination for knee and lower leg conditions conducted in May 2017 is adequate as it was based on a review of the history, an examination of the Veteran, and sufficient information was provided to allow the Board to render an informed determination. Higher Initial Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation 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. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's disability should be viewed in relation to its history. 38 C.F.R. § 4.1 (2016); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Given the nature of the present claim for a higher initial evaluation, the Board has considered all evidence of severity since the effective date for the award of service connection on December 2, 2008. Fenderson v. West, 12 Vet. App. 119 (1999). Left Knee Strain The Veteran was assigned an initial 10 percent disability rating for painful motion of the left knee effective from December 2, 2008 (date following separation from active service). See 38 C.F.R. § 4.71a, Diagnostic Code 5009-5024. The Board considers whether an initial rating in excess of 10 percent for left knee strain is warranted at any time since the date following separation from active service on December 2, 2008. The disabilities under Diagnostic Codes 5013 through 5024 will be rated on limitation of motion of affected parts, as arthritis, degenerative, except gout which will be rated under Diagnostic Code 5002. See 38 C.F.R. § 4.71a, Note. In this case, the Veteran does not have arthritis or gout in the left knee, as noted in VA examination reports dated September 2015 and May 2017; therefore, analysis under 38 U.S.C.A. § 4.71a, Diagnostic Codes 5002, 5003 and 5010 is not relevant and will not be discussed in this case. Diagnostic Code 5260 (limitation of flexion of the leg) provides a 10 percent rating when flexion is limited to 45 degrees; a 20 percent rating when flexion is limited to 30 degrees; and a 30 percent rating, the maximum available, when flexion is limited to 15 degrees. Id. For VA compensation purposes, normal range of motion for the knee is flexion to 140 degrees. 38 C.F.R. § 4.71, Plate II. Diagnostic Code 5261 (limitation of extension of the leg) provides a 10 percent rating when extension is limited to 10 degrees; a 20 percent rating when extension is limited to 15 degrees; a 30 percent rating when extension is limited to 20 degrees; a 40 percent rating when extension is limited to 30 degrees; and a 50 percent rating when extension is limited to 45 degrees. Id. For VA compensation purposes, normal range of motion for the knee is extension to 0 degrees. 38 C.F.R. § 4.71, Plate II. At the February 2009 VA general medical examination, the Veteran reported symptoms of weakness, stiffness, giving way, pain, soreness, and burning. She noted the left knee gave out at night, three times per day, and lasted for an hour each occurrence. She stated that the pain could be elicited by physical activity and she could function through the pain with medication, and she sometimes had to pull over while driving a manual shift. Upon clinical evaluation, she demonstrated tenderness, stability, and meniscus within normal limits, x-ray findings within normal limits, left knee flexion limited to 130 degrees with pain at 125 degrees, and left knee extension normal at 0 degrees. While left knee joint function was limited by pain, there were no findings of additional limitation after repetitive use due to weakness, lack of endurance, or incoordination. There were also no findings of swelling or edema, heat, redness, lack of endurance, locking, fatigability, dislocation, effusion, weakness, subluxation, guarding of movement, locking pain, or crepitus. The examiner diagnosed left knee strain with subjective evidence of pain and objective evidence of tenderness. At the September 2015 VA examination for knee and lower leg conditions, the Veteran reported her left knee condition had worsened, specifically characterizing flare-ups of the left knee as painful at times and giving out. The Veteran did not report any functional loss or functional impairment of the left knee. Upon clinical evaluation, she demonstrated less movement than normal, left knee flexion limited to 130 degrees without pain, and left knee extension was normal at 0 degrees. There were no findings localized tenderness; pain on palpation; crepitus; additional loss of function or range of motion after three repetitions; limited functional ability with repeated use over a period of time due to pain, weakness, fatigability, or incoordination; limited functional ability with flare ups due to pain, weakness, fatigability, or incoordination; muscle atrophy; ankylosis; effusion; or meniscal condition. The examiner confirmed the previous diagnosis of left knee strain. Pursuant to the May 2017 Board remand, the Veteran was afforded an additional VA examination for knee and lower leg conditions. The Veteran reported being unable to sit or stand for long periods of time without the left knee bothering her, unable to run nearly as far as she used to, taking longer to go upstairs, and occasional use of a brace on the left knee. Upon clinical evaluation, she demonstrated active left knee flexion limited to 85 degrees with pain and extension to 0 degrees, as well as passive (when used in non-weight bearing) left knee flexion limited to 115 degrees with pain and extension to 0 degrees. There were no findings of localized tenderness; pain on palpation; crepitus; weakness; additional loss of function or range of motion after three repetitions; additional contributing factors of the left knee; muscle atrophy; ankylosis; or meniscal condition. The examiner noted the Veteran was not being examined after repetitive use of the left knee over time or during a flareup, so he was unable to describe any functional loss in those instances in terms of range of motion. The previous diagnosis of left knee strain was confirmed. Review of outpatient treatment records show ongoing treatment, to include physical therapy, and reported left knee pain. In September 2009, she reported difficulty driving a stick shift and to run, squat, pivot, or twist, demonstrated flexion to 120 degrees and extension to 0 degrees, tenderness, and some mild crepitus, and there were no findings of significant subluxation. Review of VA treatment records also show that in July 2010, the Veteran reported occasional swelling in the left knee and demonstrated crepitus with movement of the left knee. While the treating physician noted the Veteran having a torn meniscus in the left knee with pain, there were no findings of effusion. After a review of the evidence discussed above, the Board finds that the Veteran's service-connected left knee strain has not been manifested by at least flexion limited to 30 degrees or less or extension limited by 15 degrees or more. Symptomatology including pain, tenderness, mild crepitus, flare ups, and limitation of motion, to include flexion limited to 85 degrees with pain, is encompassed in the assigned 10 percent rating for painful motion. As a result, an initial rating in excess of 10 percent for service-connected left knee strain is denied at any time during the pendency of the appeal. See 38 C.F.R. §§ 4.55, 4.71a, Diagnostic Codes 5024, 5260, 5261. The Board also considers whether an initial rating in excess of 10 percent is warranted in this case under additional rating criteria for the knee: Diagnostic Code 5256 (ankylosis), Diagnostic Code 5258 (dislocated semilunar cartilage with frequent episodes of "locking" pain and effusion), or Diagnostic Code 5262 (impairment of tibia and fibula). 38 C.F.R. § 4.71a. After a review of the evidence discussed above, to include the Veteran's lay statements, these conditions are not present and application of these Diagnostic Codes is not warranted at any time during the appeal period. During the course of the appeal, in a January 2017 VA rating decision, service connection for left knee patellar subluxation was granted, assigned at 10 percent effective from December 2, 2010. See 38 C.F.R. § 4.71a, Diagnostic Code 5257. In an August 2017 VA rating decision, the RO increased the disability rating to 20 percent, effective from May 18, 2017. Id. The ratings assigned beginning December 2, 2010 are not before the Board as they have not been appealed. However, for the period from December 2, 2008 through the effective date of the separate rating under Diagnostic Code 5257, the Board must consider whether a separate rating was warranted. In this case, the Veteran provided subjective, credible complaints of her knee frequently giving out and she used a knee brace. Under Diagnostic Code 5257, a 10 percent evaluation is warranted when there is slight recurrent subluxation or lateral instability. A 20 percent evaluation is warranted when there is moderate recurrent subluxation or lateral instability. The words "slight," "moderate" and "severe" as used in the various Diagnostic Codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (2017). Prior to December 2, 2010, the Veteran's credible subjective complaints of her knee giving way constitutes slight instability and to this extent, a separate 10 percent rating for instability of the left knee under Diagnostic Code 5257 is granted from December 2, 2008 through December 2, 2010. Because her joint was stable upon clinical evaluation during this time, and because the evidence of record did not show subluxation, a 20 percent rating for moderate recurrent subluxation or lateral instability is not warranted. With regard to the entire initial appeal period since December 2, 2008, the Veteran's disability picture is not more closely approximated by an initial higher rating based on the presence of additional functional loss based on the criteria set forth in 38 C.F.R. §§ 4.40 4.45, and the holdings in DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). The provisions of 38 C.F.R. § 4.59 establish that the Veteran is entitled to at least the minimum compensable evaluation for motion that is accompanied by pain. See Burton v. Shinseki, 25 Vet. App. 1 (2011). As noted above, the currently assigned 10 percent disability rating was assigned in the July 2009 VA rating decision based on painful motion. After a review of the evidence discussed above, the Board finds that the functional equivalent of flexion limited to 30 degrees or less or extension limited by 15 degrees or more is not shown at any time since December 2, 2008. Such findings are not shown, even when considering the Veteran's reported symptomatology for the left knee during VA treatment and at the VA examinations discussed above. The Veteran's reported symptomatology does not, when viewed in conjunction with the medical evidence, tend to establish additional limitations of motion to the degree that would warrant an initial rating in excess of 10 percent for the service-connected left knee strain at any time during the appeal period since December 2, 2008 under 38 C.F.R. §§ 4.40, 4.45 and the factors set forth in DeLuca. The Board has considered the Veteran's credible reported history of symptomatology related to the service-connected left knee strain. She is competent to report such symptoms and observations because this requires only personal knowledge as it comes through the senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). In this case, her lay statements do not support a finding that the criteria for a higher initial rating are met, her descriptions of her disability are contemplated by the 10 percent rating assigned. The Board has also considered the possibility of staged ratings and finds that the schedular rating for the service-connected disability on appeal has been in effect for appropriate period on appeal. Accordingly, staged ratings are inapplicable. See Hart, 21 Vet. App. at 505. Finally, a total disability rating based on individual unemployability has not been raised or warranted because the Veteran does not contend, and the evidence does not show, that the service-connected disability on appeal renders her unemployable. Rice v. Shinseki, 22 Vet. App. 447 (2009); see also Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). ORDER An initial rating in excess of 10 percent for left knee strain is denied. A separate 10 percent rating for slight instability of the left knee under Diagnostic Code 5257 is granted, effective December 2, 2008. ____________________________________________ D. Martz Ames Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs