Citation Nr: 1803109 Decision Date: 01/17/18 Archive Date: 01/29/18 DOCKET NO. 09-31 868 DATE THE ISSUE Entitlement to an initial evaluation in excess of 10 percent for service-connected chronic right knee sprain. ORDER An initial evaluation in excess of 10 percent for service-connected chronic right knee sprain is denied. FINDINGS OF FACT The range of motion of the Veteran's right knee in flexion was not limited to 30 degrees during the appeal period, nor was the right knee characterized by weakness, fatigability, or incoordination that limited functional use. CONCLUSION OF LAW The criteria for an increased initial evaluation for chronic right knee sprain have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.71a (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Army from September 1990 to June 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. As noted in previous Board decisions, the Veteran testified before a Veterans Law Judge (VLJ) at a hearing in August 2011. As the VLJ who presided over that hearing has since left the Board, the Board offered the Veteran a new hearing before a VLJ that would ultimately decide his appeal. See 38 C.F.R. § 20.707. The Veteran declined a new hearing. This case was previously before the Board in February 2014, January 2016, and February 2017, when it was remanded for Agency of Original Jurisdiction (AOJ) development. The case has been returned to the Board at this time for further appellate review. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are interpreting reports of examination in light of the whole recorded history; reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activities, 38 C.F.R. § 4.10. See Schafarth v. Derwinski, 1 Vet. App. 589 (1991). Where the claimant has expressed dissatisfaction with the assignment of an initial evaluation following an award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. However, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Here, the Veteran's right knee disability is rated under three diagnostic codes to address his various symptoms. He currently has a 10 percent evaluation under Diagnostic Code 5257, which governs instability, and a 20 percent evaluation under Diagnostic Code 5003-5258 to address the pain and frequent episodes of joint locking stemming from the diagnosis of chondromalacia patellae, lateral compartment degenerative joint disease. A 20 percent evaluation is the highest available rating under Diagnostic Code 5258. These evaluations were determined in the February 2017 Board decision, which remanded the evaluation of the arthritic component of the right knee disability, which is evaluated by limitation of motion, for a new VA examination. The Veteran currently has a 10 percent evaluation under Diagnostic Code 5260-5024, which is the subject of this appeal. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. The hyphenated diagnostic code here indicates that the Veteran is service connected for chronic knee sprain that is rated as a limitation of flexion. Under Diagnostic Code 5260, a 10 percent evaluation is warranted where flexion of the leg is limited to 45 degrees. A 20 percent evaluation is warranted where flexion of the leg is limited to 30 degrees, and a 30 percent evaluation is warranted where flexion of the leg is limited to 15 degrees. In August 2007, the Veteran underwent a VA joints examination, which included assessment of his right knee. The Veteran reported that he began having pain in his right knee in 2002, and that he had daily medial pain of moderate intensity in the right knee. He reported no flare-ups and no restrictions of activities of daily living, although some activities caused pain. The range of motion in the right knee was 0 to 110 degrees. On repetitive motion testing, after three squats, the Veteran was unable to flex the knee past 90 degrees, and pain was evidence from 70 to 90 degrees. No fatigability or incoordination was noted, and the muscle strength was assessed as 5 out of 5 for all relevant muscle groups. On a November 2010 VA examination, the Veteran reported a progressive increase of right knee pain since the previous VA examination. The Veteran reported pain on a daily basis, mild to moderate in intensity, but did not report any flare-ups. The right knee's range of motion was 0 to 110 degrees. On repetitive motion testing, after three squats, the flexion was limited to 90 degrees, and pain was evident from 60 to 90 degrees. No fatigability or incoordination was noted. A May 2011 VA treatment note for a consultation for a right knee arthroscopy indicated a full range of motion of the right knee on both active and passive testing. There was no effusion noted, and the knee was stable during testing. On a June 2014 VA examination, the Veteran reported a constant, dull, ache in his right knee under the patella, rated as a 3 out of 10 in severity. He also reported a flare-up approximately once a week for several hours where the pain is a 6 out of 10 in severity; he also reported 25 episodes of increased pain in the past year that caused him to limp. He reported daily stiffness, frequent popping, and swelling approximately every other day. The range of motion of the right knee was normal (140 degrees or greater), although the examiner noted evidence of pain beginning at 115 degrees. Repetitive motion testing had the same range of motion results. The examiner noted pain on movement, swelling, and disturbance of locomotion as functional impairment of the right knee. There was no fatigue noted on repetitive testing, and muscle strength was normal on both flexion and extension. In August 2017, the Veteran underwent another VA examination, at which he reported flare-ups of the right knee marked by increased pain and swelling lasting two or three days. The Veteran also reported having difficulty walking or standing for long periods of time, and being unable to run. The examination was not performed during a flare-up, but the Veteran did not report pain, weakness, fatigability, or incoordination limiting the functional ability of his right knee during a flare-up. Upon examination, the right knee's flexion was limited to 100 degrees. Pain was noted on active range of motion testing, but it did not result in functional loss. The examiner noted that there was no evidence of pain on passive range of motion testing and non-weight-bearing testing of the right knee. The Veteran was able to perform repetitive-use testing, with no additional loss of motion or function. Muscle strength was assessed as 5 out of 5 on flexion and extension. The examiner noted adhesion and swelling on the examination, and slight lateral instability, but no history of recurrent subluxation or effusion. Although the Veteran's medical records reflect consistent complaints of pain, swelling, stiffness, popping, giving way, crepitus, and locking of the right knee, no other range of motion measurements are of record during the appeal period. The Veteran's right knee was recorded as being limited in flexion to 110 degrees twice, and a full range of motion was noted in May 2011. More recently, the Veteran's right knee was measured as being limited to 100 degrees in flexion. As the range of motion of the right knee is not limited to 30 degrees or less in flexion, an evaluation in excess of 10 percent is not warranted based on application of the rating criteria for the chronic right knee sprain. The Veteran's consistent complaints of pain, including during flare-ups, is expressly considered by the rating criteria under Diagnostic Code 5258. Further, the Veteran's range of motion exceeds that identified by the rating schedule as warranting the minimum compensable rating. As such, § 4.59, governing painful motion, has already been applied here to the extent that it is applicable under the multiple ratings without violating the rule against pyramiding. Although the June 2014 examiner noted functional impairment due to pain, swelling, and disturbance of locomotion, the range of motion on that examination was normal. The pain on motion, which began at 115 degrees in flexion, did not limit the actual range of motion; likewise, pain on motion was noted on the other examinations but did not inhibit the range of motion to a compensable degree. Similarly, the August 2017 examiner noted swelling and adhesion in conjunction with flexion limited to only 100 degrees. Finally, the strength of the right knee was normal on all of the examinations, and there is no evidence of fatigability or incoordination in the record. As the symptom of pain is already contemplated by the assigned evaluation under Diagnostic Code 5258, functional impairment marked by occasional swelling and disturbance of locomotion would need to rise to a level such that the next higher rating under Diagnostic Code 5260 would be appropriate for any increase to be merited. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Given the results of the examinations in this case, an increase based on DeLuca is not appropriate, as the Veteran maintains the majority of the range of motion in his right knee and is compensated for the other factors that he has reported, such as pain, under separate diagnostic codes. At the August 2017 examination, the Veteran reported flare-ups involving increased pain and swelling lasting two to three days, which he treated with Naproxen, ice, and rest. However, the Veteran did not report that the pain and swelling limited the functional ability of his right knee during a flare-up. Accordingly, no further evidentiary development is necessary on this point and no increase is warranted based on functional impairment during flare-ups. See Sharp v. Shulkin, 29 Vet. App. 26 (2017) (VA examiner must elicit information from veteran regarding functional loss during flare-ups); DeLuca, 8 Vet. App. at 207. Accordingly, an evaluation in excess of 10 percent is not warranted. Additionally, as there is no new evidence in the claims file indicating that the right knee giving way has increased in frequency, an increase in the evaluation under Diagnostic Code 5257 since the February 2017 Board decision is not merited. The Board further notes that the remaining diagnostic codes governing knee disabilities are not applicable in this case, as there is no evidence of ankylosis of the knee (Diagnostic Code 5256), removal of the meniscal or semilunar cartilage (Diagnostic Code 5259), limitation of extension (Diagnostic Code 5261), or genu recurvatum (Diagnostic Code 5263). ____________________________________________ M. HYLAND Veterans Law Judge, Board of Veterans' Appeals ATTORNEY FOR THE BOARD: K. Josey, Associate Counsel Copy mailed to: Disabled American Veterans Department of Veterans Affairs