Citation Nr: 18147635 Decision Date: 11/05/18 Archive Date: 11/05/18 DOCKET NO. 08-00 836 DATE: November 5, 2018 ORDER Entitlement to an initial rating in excess of 10 percent for left knee limitation of motion is denied. Entitlement to an initial rating in excess of 10 percent for left knee recurrent subluxation or lateral instability prior to August 16, 2018 is denied. FINDINGS OF FACT 1. During the entire appeal period, the Veteran’s left knee condition has not shown a flexion limited to 45 degrees or less and only showed slight to moderate symptoms that caused functional loss due to primarily pain and occasional fatigability or less movement than normal. 2. Prior to August 16, 2018, the Veteran’s left knee condition only showed slight recurrent subluxation. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for left knee limitation have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.71a, Diagnostic Code 5260. 2. The criteria for rating in excess of 10 percent rating for left knee subluxation or lateral instability prior to August 16, 2018 have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from October 1978 to October 1982, January 1983 to January 1985, and from March 1985 to February 2006. A July 2015 Board decision denied the Veteran’s increased rating claims for left knee limited motion and left knee recurrent subluxation. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In March 2016, the Court granted a Joint Motion for Partial Remand and remanded the claim to the Board for action consistent with the Joint Motion. The claims were subsequently brought before the Board in the May 2016, March 2017, and September 2017, and were remanded for further development. The Board notes that the Veteran’s rating for recurrent subluxation or lateral instability has been discontinued as of August 16, 2018. The Veteran has not disagreed with the decision, and therefore, the issue has been recharacterized as entitlement to an initial rating in excess of 10 percent for left knee recurrent subluxation or lateral instability prior to August 16, 2018. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran’s service-connected disability adversely affects his/her ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10 (2012). Where there is a question as to which of two ratings should be applied, the higher rating 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. Generally, the degree of disabilities 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. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Additionally, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the veteran’s claim is to be considered. See Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. However, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. See Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). Further, when evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. § 4.40), as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing (38 C.F.R. § 4.45). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). 1. Left Knee Limitation of Motion The Veteran’s left knee disability is currently rated as 10 percent disabling under Diagnostic Code (DC) 5260 for limitation of flexion. Diagnostic Code 5260 provides for a non-compensable rating where flexion is limited to 60 degrees; a 10 percent rating 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. See 38 C.F.R. § 4.71a, DC 5260. In December 2005, the Veteran received a VA examination. The Veteran reported swelling when he stands or walks for more than 30 minutes at a time in his left knee. He reported pain with prolonged standing over 45 minutes or walking over an hour. He reported pain going up and down stairs or ladders. He did not take any medications or wear braces. Upon examination, the Veteran was able to extend both his knees to zero and flex both to 140 degrees. He had negative McMurray, negative Lachman testing, and negative anterior drawer bilaterally. His medial and lateral collateral ligaments were intact. He was able to squat down and duck walk two steps. There was no swelling in either knee noted. The Veteran’s left knee did show he had 2/4 crepitus with a mild patellar displacement test. There was no instability in either knee. In November 2011, the Veteran received another VA examination. The Veteran reported flare-ups that consisted of periodic increase in pain with bending, kneeling, and stooping. He further reported occasional swelling, popping, clicking and having a locked in position more frequently. The Veteran had range of motion (ROM) flexion to 120 degrees, with pain also at 120 degrees, and extension to 0 or any degree of hyperextension, with pain also at 0 or any degree of hyperextension. After repetitive testing the Veteran’s flexion decreased to 110 degrees, with extension remaining the same. The Veteran had additional limitation and functional loss after repetitive use, to include less movement than normal, excess fatigability, and pain on movement. The Veteran had pain on palpation. The Veteran had full muscle strength on flexion and extension. The Veteran did not have a need for assistive devices. The Veteran had a meniscal tear condition that caused frequent episodes of joint locking, joint pain, and joint effusion. The Veteran received another VA examination in June 2016. The Veteran did report functional loss in having mild impairment in prolonged standing or walking. The Veteran’s ROM was normal with flexion to 140 degrees and extension to 0 degrees. There was no evidence of pain on weight bearing; however, there was evidence of localized tenderness or pain on palpation in the medial patellar facet. There was no crepitus. The Veteran was able to perform repetitive testing and did not suffer from additional loss of ROM after three repetitions. The examiner noted the examination was medically consistent with the Veteran’s statements and description of functional loss with repetitive use over time. The examiner found pain did significantly limit functional ability with repeated use over time by only limiting prolonged standing or walking. The Veteran had full muscle strength in flexion and extension. There was no muscle atrophy. The examiner noted the Veteran had a previous meniscal tear. The Veteran did not have need for assistive devices. Imaging studies showed the Veteran had osteoarthritis in his left knee. In April 2017, the Veteran received another VA examination. The Veteran complained of constant achy pain that was a 3 out of 10, which increased to a 6 out of 10 in pain with stinging, burning in the anterior and medial left knee pain with prolonged standing, walking, bending, and stair climbing. He reported avoiding these activities, resting, stretching and taking Motrin for the pain. He reported occasional popping and clicking. He denied instability and loss of distal motor or sensory function. There were no injections or operative interventions. The Veteran reported flare-ups that included “bad knee pains.” The Veteran reported functional loss in not being able to stand or walk for more than 5 minutes without pain. The Veteran’s ROM was normal with flexion to 140 degrees and extension from 140 to 0 degrees, with no additional loss of ROM upon repetition. There was pain noted on flexion and extension. There was evidence of pain on weight bearing and there was objective evidence of pain on palpation at the medial joint line. There was no crepitus. The examiner was able to perform repetitive testing and stated pain, weakness, fatigability, or incoordination did not limit functional ability with repeated use over a period time. The examiner noted the examination was neither medically consistent or inconsistent with the Veteran’s statements describing functional loss during flare ups. Pain did limit functional ability with flare-ups. However, the examiner provided that determination of limitation of ROM and functional ability during flare-ups or after repeated use of a joint in the absence of examination at the time is speculative and very inaccurate. The examiner explained that limitation of ROM and functional ability would depend upon the severity of the flare-up, degree of use over variable duration, intake of pain medications, and tolerance of pain. The examiner concluded he could not quantify limitation of motion in the mentioned circumstances. The Veteran had normal muscle strength and no muscle atrophy. Further examination showed there was also no ankylosis. The Veteran’s meniscus condition included meniscal tear and joint effusion. The Veteran did regularly need use of a brace. Imaging studies were performed and showed the Veteran had degenerative or traumatic arthritis. The examiner noted the Veteran’s knee condition did affect his ability to perform occupational tasks with moderate impairment in activities such as limiting prolonged walking and walking secondary to his left knee. In October 2017, the Veteran underwent a VA examination. The Veteran reported progressive pain, stiffness, and weakness. He did not report any trauma, surgery, or articular injection. He stated he suffered from moderate to severe daily symptoms with limited relief. The Veteran reported functional loss in limitation in prolonged walking, standing, sitting, squats, stairs, jogging, jumping, and lifting or carrying. The Veteran’s ROM was flexion to 125 degrees and extension from 125 to 0 degrees. The examiner noted the ROM was abnormal due to mild restriction. There was pain noted on flexion. There was no evidence of pain on weight bearing and there was objective evidence of pain on palpation at the medial joint line. The examiner was able to perform repetitive testing and stated pain did limit functional ability with repeated use over a period of time. The pain was seen in the Veteran’s flexion to 125 degrees and extension from 125 degrees to 0 degrees. The examiner noted the examination was medically consistent with the Veteran’s statements describing functional loss during flare ups. The examiner could not say whether pain, fatigability, or incoordination significantly limited functional ability during flare-ups without resorting to speculation. The Veteran had normal muscle strength and no muscle atrophy. There was also no ankylosis. The Veteran’s meniscus condition included meniscal tear, frequent joint locking, joint pain, and joint effusion. The Veteran did have occasional need for a brace. Imaging studies were performed and showed the Veteran had degenerative or traumatic arthritis. The examiner noted the Veteran’s knee condition did affect his ability to perform occupational tasks such as limiting prolonged walking, standing, sitting, squats, stairs, and lifting or carrying. Upon review of the evidence, the Board finds that a rating in excess of 10 percent is not warranted. The Veteran at no time has had a flexion limited to 45 degrees or less, nor did he have less than full extension, ankylosis of the knee, cartilage removal, impairment of his tibia and fibula, or genu recurvatum which would warrant consideration of a higher or additional separate rating under another Diagnostic Code for the Knee and Leg. See 38 C.F.R. § 4.71a, Diagnostic Codes 5256-5263. The Veteran has further predominantly only needed occasional use of a brace, and had consistently normal strength, movement, and gait. The Board notes that while the Veteran does not currently meet the requirement of flexion being limited to at least 45 degrees as needed for a 10 percent rating, his additional pain on movement and occasional additional loss upon repetitive testing due to pain and fatigue were considered to afford the Veteran a 10 percent rating. Thus, the requirements of DeLuca were already considered in the rating provided. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca at 202. Regarding the Veteran’s left knee meniscal tear, the Veteran is already in receipt of a separate 20 percent rating for dislocated semilunar cartilage under DC 5258, which is the highest rating available under that Diagnostic Code, and thus, further consideration within this decision is not warranted. Additionally, regarding instability and/or recurrent subluxation, the Board notes that the Veteran is already in receipt of a separate 10 percent rating for slight patellar subluxation of the left knee, which will be discussed further below. In light of the foregoing, the Board concludes that a rating in excess of 10 percent for left knee limitation of motion is not warranted. The benefit of the doubt doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). 2. Left Knee Recurrent Subluxation or Lateral Instability Prior to August 16, 2018, the Veteran was provided a separate rating of 10 percent for left knee patellar subluxation under Diagnostic Code 5257 Recurrent Subluxation or Lateral Instability. Under DC 5257, a 10 percent is provided for slight recurrent subluxation or lateral instability, a 20 percent for moderate recurrent subluxation or lateral instability, and 30 percent for severe recurrent subluxation or lateral instability. See 38 C.F.R. § 4.71a, DC 5257. In the November 2011 VA examination, the Veteran had slight abnormal anterior instability of 1+, normal posterior and medial-lateral instability, and slight recurrent subluxation. In the Veteran’s June 2016 and April 2017 VA examinations, the Veteran had no recurrent subluxation. The Veteran also had normal anterior, posterior, medial, and lateral instability. The Veteran’s October 2017 VA examination showed the Veteran had no recurrent subluxation; however, there was some moderate effusion. Further testing also showed the Veteran had normal anterior, posterior, medial, and lateral instability. The Board finds that a rating in excess of 10 percent for recurrent subluxation or lateral instability is not warranted. At no time during the pendency of the appeal has the Veteran shown moderate or severe recurrent subluxation or lateral instability. In fact, the Veteran’s November 2011 VA examination is the only examination that showed the Veteran suffered from recurrent subluxation and any form of instability. The Veteran’s examinations since November 2011 have consistently shown the Veteran does not suffer from any recurrent subluxation or lateral instability. Additionally, VA treatment records do not show any complaints or mentions of recurrent subluxation or lateral instability in the Veteran’s left knee. Given the above, the Board concludes that a rating in excess of 10 percent is not warranted for left knee recurrent subluxation or lateral instability. The benefit of the doubt doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Negron, Associate Counsel