Citation Nr: 18143013 Decision Date: 10/17/18 Archive Date: 10/17/18 DOCKET NO. 13-27 821 DATE: October 17, 2018 ORDER A higher initial rating in excess of 10 percent for right knee chondromalacia is denied. FINDING OF FACT The Veteran had least 90 degrees flexion in the right knee and at least 0 degrees extension with pain on flexion and on weight bearing. He had no additional functional loss or loss of range of motion on repetition due to pain, fatigue, incoordination, weakness, or lack of endurance. CONCLUSION OF LAW The criteria for a higher initial rating in excess of 10 percent for right knee chondromalacia have not been met. 38 U.S.C. § 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Codes 5260, 5261 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran was scheduled for a September 2017 Board hearing. The record shows that the hearing request was cancelled by the Veteran and was withdrawn. In March 2018, the Board remanded the claim for further evidentiary development. This requested development was completed in full. Entitlement to a higher initial rating in excess of 10 percent for right knee chondromalacia Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2018). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2018). Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2018). Under Diagnostic Code 5260, limitation of flexion of the leg is noncompensable where flexion is limited to 60 degrees. A 10 percent evaluation is warranted where flexion is limited to 45 degrees; a 20 percent evaluation is warranted where flexion is limited to 30 degrees; and a 30 percent evaluation is warranted where flexion is limited to 15 percent. 38 C.F.R. § 4.71a. Under Diagnostic Code 5261 (limitation of extension of the leg), a 10 percent rating is warranted where extension is limited to 10 degrees; a 20 percent rating is warranted where extension is limited to 15 degrees; a 30 percent rating is warranted where extension is limited to 20 degrees; a 40 percent rating where extension is limited to 30 degrees; and a 50 percent rating is warranted where extension is limited to 45 degrees. 38 C.F.R. § 4.71a. VA’s Office of General Counsel has provided guidance concerning increased rating claims for knee disorders. Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not “duplicative of or overlapping with the symptomatology” of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261- 62. VA’s General Counsel interpreted that compensating a claimant for separate functional impairment under Diagnostic Code 5257 and 5003 does not constitute pyramiding. VAOPGCPREC 23-97. The Veteran has a current diagnosis of chondromalacia of the right knee. For the entire rating period, he had at least 90 degrees flexion in the right knee and at least 0 degrees extension. He had pain with flexion and on weight bearing. He had no additional functional loss or loss of range of motion on repetition due to pain, fatigue, incoordination, weakness, or lack of endurance and he denied having flare-ups of pain. An October 2010 VA general medical examination identified 0 degrees extension and 90 degrees flexion in the right knee without pain on active motion. The examiner did not address whether the Veteran had additional functional loss due to pain, flare-ups of pain, or other factors. An April 2018 VA examination identified 0 degrees extension in the right knee and 120 degrees extension. Pain was noted on flexion, but the examiner stated that pain did not result in or cause functional loss. There was objective evidence of crepitus. There was evidence of pain with weight bearing. The Veteran denied having flare-ups of knee pain. He was able to perform repetitive use testing with at least three repetitions and there was no additional functional loss or loss to range of motion after three repetitions. The examiner noted that he was unable to say whether pain, weakness, fatigability or incoordination would limit functional ability over a period of time as functional loss would vary in intensity and severity, and the effect on his activities or the degree of loss of motion could not be determined without speculation. Because the Veteran did not exhibit a compensable degree of limitation of flexion or extension in the right leg, but did have evidence of painful, limited motion with crepitus, a 10 percent rating was assigned under Diagnostic Code 5260 (limitation of flexion of the leg) pursuant to the provisions of 38 C.F.R. § 4.59, which allows for the minimum compensable rating for a joint with evidence of painful motion. The Board finds that even with consideration of pain and limitations due to pain, the right knee disability did not approximate a rating based on extension limited to 10 degrees such that it met or approximate the schedular criteria for a separate 10 percent rating under Diagnostic Code 5261. The April 2018 VA examination identified full extension to 0 degrees without pain on extension. The Veteran also did not meet or approximate the schedular criteria for a 20 percent rating based on flexion limited to 30 degrees. See 38 C.F.R. § 4.71a, Diagnostic Code 5260. The April 2018 VA examination shows no evidence of ankylosis, joint instability, or a meniscal condition of the right knee to warrant consideration under other provisions of the Diagnostic Code. Because the Veteran was assigned a 10 percent rating based on evidence of painful limited flexion pursuant to the provision of 38 C.F.R. § 4.59, these same symptoms could not be considered again in assigning a separate or additional 10 percent rating under Diagnostic Code 5261 where he did not exhibit a compensable degree of limitation of motion. For these reasons, the Board finds that an initial rating in excess of 10 percent is not warranted under Diagnostic Code 2560 and a separate rating is not warranted under Diagnostic Code 5261. K. PARAKKAL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Christine C. Kung