Citation Nr: 18144414 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 14-18 351 DATE: October 24, 2018 ORDER A rating in excess of 10 percent for right knee disability prior to February 10, 2017, and 20 percent thereafter is denied. FINDINGS OF FACT 1. The weight of the competent and probative evidence is against finding right knee flexion limited to 30 degrees or less or extension limited to 15 degrees or more prior to February 10, 2017. 2. The weight of the competent and probative evidence is against finding right knee flexion limited to 15 degrees or less or extension limited to 20 degrees or more prior from February 10, 2017. 3. The Veteran does not have a history of right knee instability and clinical testing of the joint’s stability was normal.   CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 10 percent prior to February 10, 2017, and 20 percent, thereafter, for chondromalacia and DJD of the right knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.71a, DCs 5260, 5261. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1979 to August 1980. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2013 rating decision. In August 2016, the Veteran appeared at a Board hearing before the undersigned Veterans Law Judge. A hearing transcript is of record. This case was previously before the Board in November 2016, at which time it was remanded for further development. Increased Ratings Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Id. Staged ratings are, however, 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, 510 (2007). Disability ratings are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Rating Schedule. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. 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 evaluation will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3; see Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the disorder. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. 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 disorder is not duplicative of the symptomatology of the other disorder. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). Rating in excess of 10 percent for right knee disability prior to February 10, 2017, and 20 percent thereafter. The Veteran contends that he is entitled to a rating in excess of 10 percent prior to February 10, 2017 and in excess of 20 percent from that date for his chondromalacia and degenerative joint disease (DJD) right knee disability, evaluated under Diagnostic Code 5260. The Board notes that he is separately rated at 10 percent under Diagnostic Code 5259 for residuals symptomatic of removal of the right knee semilunar cartilage including giving way and popping. A December 2016 rating decision (implementing the November 2016 Board decision) awarded this rating, effective July 30, 2012, which is the sole and maximum rating under this diagnostic code. Before the Board analyzes these issues, a review of the pertinent diagnostic codes pertaining to the knees would be useful. Initially, the Board notes standard motion of a knee joint is from zero degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. Limitation of leg motion is governed by Diagnostic Codes 5260 and 5261. Diagnostic Code 5260 concerns limitation of leg flexion. A 10 percent rating is warranted where flexion is limited to 45 degrees; a 20 percent rating is warranted where flexion is limited to 30 degrees; and a 30 percent rating is warranted where flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. Diagnostic Code 5261 pertains to limitation of leg extension. 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 is warranted 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, DC 5261. Under Diagnostic Code 5256, a 30 percent rating is warranted for favorable ankylosis with the knee fixed in full extension or slight flexion between zero and 10 degrees. Ankylosis of the knee fixed in flexion between 10 and 20 degrees warrants a 40 percent rating, and the knee fixed in flexion between 20 and 45 degrees warrants a 50 percent rating. A 60 percent rating, which is the maximum schedular rating, is warranted for extremely unfavorable ankylosis in flexion at an angle of 45 degrees or more. 38 C.F.R. § 4.71a, DC 5256. Under Diagnostic Code 5257, a 10 percent rating is warranted for slight subluxation or lateral instability. A 20 percent rating is warranted for moderate subluxation or lateral instability. A maximum 30 percent rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, DC 5257. Under Diagnostic Code 5258, a 20 percent rating is warranted where there is evidence of dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the knee joint. 38 C.F.R. § 4.71a, DC 5258. Symptomatic removal of semilunar cartilage warrants a 10 percent rating under Diagnostic Code 5259. 38 C.F.R. § 4.71a, DC 5259. Under Diagnostic Code 5262, malunion of the tibia and fibula with slight knee or ankle disability warrants a 10 percent rating; moderate knee or ankle disability warrants a 20 percent rating; and marked knee or ankle disability warrants a 30 percent rating. A 40 percent rating is warranted for nonunion of the tibia and fibula with loose motion that requires a brace. 38 C.F.R. § 4.71a, DC 5262. For disabilities evaluated based on limitation of motion, VA is required to apply the provisions of Sections 4.40 and 4.45 pertaining to functional impairment. 38 C.F.R. §§ 4.40, 4.45. The United States Court of Appeals for Veterans Claims (Court) has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain during flare-ups and after repetitive use over time. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011); DeLuca v. Brown, 8 Vet. App. 202, 208 (1995); 38 C.F.R. § 4.59. The Board notes that 38 C.F.R. § 4.59, entitled “Painful motion,” states, in pertinent part, “The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.” In Burton v. Shinseki, the Court stated that the scope of § 4.59 is not limited to arthritis claims. 25 Vet. App. 1, 5 (2011). 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 disorder is not duplicative of the symptomatology of the other disorder. 38 C.F.R. § 4.14; Esteban, 6 Vet. App. at 262. However, a claimant who has both limitation of flexion and limitation of extension of the same leg may be rated separately under Diagnostic Codes 5260 and 5261 to be adequately compensated for functional loss associated with injury to the leg. VAOPGCPREC 9-2004 (2004), 69 Fed. Reg. 59,990 (Oct. 6, 2004). Additionally, a claimant who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257. However, separate ratings require separate compensable symptomatology. VAOPGCPREC 9-98 (1998), 63 Fed. Reg. 56,704 (Oct. 22, 1998); VAOPGCPREC 23-97 (1997), 62 Fed. Reg. 63,604 (Dec. 1, 1997); see also Lyles v. Shulkin, 29 Vet. App. 107 (2017). After reviewing the relevant medical and lay evidence and applying the above laws and regulations, the Board finds that a rating in excess of 10 percent prior to February 10, 2017 for the right knee disability is not warranted. A January 2013 VA examination indicates range of motion of the right knee as flexion to 90 degrees and extension to zero degrees, noting pain on flexion, and flexion to 60 degrees after three repetitions. Functional impairment of the right knee was described as less movement than normal, weakened movement, excess fatigability, incoordination, impaired ability to execute skilled movements smoothly, pain on movement, disturbance of locomotion, and interference with sitting, standing and weight bearing. He was found to have normal muscle strength; no recurrent subluxation; no lateral instability; and a meniscal tear. The Veteran denied flare-ups, but reported regular use of a cane. The examiner described the functional impact as an inability to walk or sit for prolonged periods of time and limited mobility with both knees such that doing any occupational task with physical activity involved would be impossible. Accordingly, the Board finds that a rating in excess of 10 percent prior to February 10, 2017, is not warranted for the right knee disability because the weight of the competent and probative evidence is against finding flexion limited to 30 degrees or less or extension limited to 15 degrees or more. See 38 C.F.R. § 4.71a. Under DC 5260, for the Veteran to be entitled to the next available rating of 20 percent, the evidence must show leg flexion limited to 30 degrees or less. In this case, the relevant evidence shows flexion limited to 60 degrees, at the most, even considering upon repetitive motion. The Board has also reviewed the Veteran’s treatment records, but found no evidence or indication that the Veteran has had leg flexion limited to 30 degrees or less. As such, a higher rating under DC 5260 is not warranted. The Board also considered the 38 C.F.R. §§ 4.40, 4.45, and 4.59, and Mitchell and DeLuca criteria, and in fact the 10 percent rating is assigned based in part on painful motion of the knee. After the prior Board remand, in February 2017, the Veteran underwent another VA examination. He reported constant knee pain that was worse with activity. Range of motion of the right knee was documented as flexion to 30 degrees and extension to zero degrees, noting pain on flexion, and no additional functional loss after three repetitions. The examiner found normal muscle strength, no recurrent subluxation; no lateral instability; and no recurrent swelling. There was no atrophy or ankylosis. The Veteran denied flare-ups, but reported regular use of a cane and braces. It was noted that he had significantly higher range of motion on functional activities such as sitting and walking than the findings on the examination. The examiner also noted past surgeries. An April 2017 addendum noted that the Veteran had pain in active, passive, and weightbearing range of motion in his bilateral knees, but there were no additional functional restrictions in range of motion. The right knee disability had progressed from the last VA examination in January 2013. As noted above, the Veteran’s chondromalacia and DJD of the right knee has been rated at 20 percent disabling from February 10, 2017, under the provisions of Diagnostic Code 5260. In order to warrant a rating in excess of 20 percent, the Veteran’s knee disability must be manifested by leg flexion limited to 15 degrees or leg extension limited to 20 degrees. The Board finds the February 2017 VA examination to be competent, credible, and highly probative, as it is supported by an in-person examination, medical expertise, and consideration of the lay evidence and therefore affords it much weight. The Veteran was able to achieve flexion to 30 degrees and extension to zero degrees, which does not meet the criteria for a higher rating. In regard to the extension finding, the Board also notes that the zero degrees does not meet the level for a compensable rating (limited to 10 degrees) to warrant a separate rating for extension. A separate rating is also not warranted for instability as the 2017 VA examination report reflects no history of right knee instability and joint stability testing was normal (anterior, posterior, medial, and lateral). Similarly, right knee stability testing (anterior, posterior, and medial-lateral) was normal upon VA examination in 2013. In regard to Mitchell and DeLuca criteria, the weight of the competent medical evidence does not reflect any additional loss of motion of the right knee due to pain or flare-ups of pain, supported by objective findings, or due to excess fatigability, weakness or incoordination, to a degree that supports a rating in excess of 20 percent. Additionally, a review of the Veteran’s treatment records did not find evidence or indication that the Veteran has had leg flexion limited to 15 degrees or less. As such, a higher rating under DC 5260 is not warranted. In the absence of any findings that the Veteran’s right knee disability is manifested by leg flexion limited to 15 degrees, the Board finds that the preponderance of the evidence weighs against the claim. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine does not apply, and the claim for a rating in excess of 10 percent prior to February 10, 2017 and 20 percent, thereafter, for chondromalacia and DJD of the right knee must be denied. See Gilbert v. Derwinski, 1 Vet. App 49, 53 (1990). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Cruz, Associate Counsel