Citation Nr: 18150179 Decision Date: 11/15/18 Archive Date: 11/14/18 DOCKET NO. 16-48 409 DATE: November 15, 2018 ORDER Entitlement to an evaluation in excess of 10 percent for a service-connected left knee disability is denied. REMANDED Entitlement to service connection for a back disorder is remanded. Entitlement to service connection for a right hip disorder is remanded. FINDING OF FACT Even in consideration of her complaints of pain, pain on motion, and functional loss, the Veteran’s service connected left knee disability manifests with range of motion on flexion greater than 45 degrees and range of motion on extension greater than 10 degrees; and, there is no instability or subluxation, history of injury to or removal of the left semilunar cartilage, impairment of the femur or malunion of the tibia and fibula, or ankylosis. CONCLUSION OF LAW The criteria for entitlement to an evaluation in excess of 10 percent for a left knee disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156, 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5256–5263 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from July 1994 to July 1998. Entitlement to an Evaluation in Excess of 10 Percent for a Service-Connected Left Knee Disability The Veteran contends that she is entitled to a higher evaluation for her service-connected left knee disability. In her February 2015 Notice of Disagreement, the Veteran indicated that she is seeking a 20 percent evaluation. The Board concludes that the probative evidence of record does not support a higher evaluation. Disability evaluations 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 by comparing her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The degrees of disability 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. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Generally, a veteran cannot receive multiple evaluations for the same symptomatology. See 38 C.F.R. § 4.14. Separate and distinct manifestations from the same injury may be assigned separate disability ratings where none of the symptomatology overlaps. See Estaban v. Brown, 6 Vet. App. 259, 262 (1994). The portion of 38 C.F.R. § 4.71a governing evaluations of knee disabilities permits multiple evaluations. VA General Counsel has held that a veteran who has arthritis resulting in limited or painful motion and instability of a knee may be rated separately under diagnostic codes 5003 (arthritis) and 5257 (subluxation and lateral instability), cautioning that any such separate rating must be based on additional disabling symptomatology. See VAOPGCPREC 23-97 (1997); VAOPGCPREC 9-98, (1998). VA General Counsel has further held that separate ratings under diagnostic codes 5260 (limitation of flexion of the leg) and 5261 (limitation of extension of the leg) may be assigned for disability of the same joint. See VAOPGCPREC 9-2004. An evaluation of a knee disability under diagnostic codes 5260 or 5261 does not preclude a separate evaluation under diagnostic codes 5257, 5258, or 5259. See Lyles v. Shulkin, 29 Vet. App. 107 (2017). The Veteran’s 10 percent evaluation is based on functional loss due to painful motion. See 38 C.F.R. § 4.59. Section 4.59 does not permit a higher evaluation. The Veteran is not entitled to an evaluation for her left knee based on limitations in her range of motion. Normal flexion of the knee is from zero degrees to 140 degrees and normal extension is from 140 degrees to zero degrees. 38 C.F.R. §§ 4.71, Plate II. Compensable ratings for limited knee flexion begin at 10 percent where flexion is limited to 45 degrees, and compensable ratings for limited knee extension begin at 10 percent where extension is limited to 10 degrees. Id. § 4.71a, Diagnostic Codes 5260 and 5261. The Veteran has received three VA examinations. A July 2013 VA examination show flexion from 0 degrees to 100 degrees prior to repetitive use testing and from 0 to 95 degrees after repetitive use testing. The Veteran’s range of motion on extension was from 100 degrees to zero degrees prior to repetitive use testing and from 95 degrees to 0 degrees after repetitive use testing. Objective evidence of pain on motion began at 80 degrees of flexion. An October 2014 VA examination documented full range of motion on flexion and extension prior to and after repetitive use testing, with objective evidence of pain on flexion at 130 degrees. A September 2016 VA examination showed normal range of motion on flexion and extension prior to and after repetitive use testing and no objective evidence of painful motion on flexion. The limitations in the Veteran’s range of motion on flexion and extension documented in a July 2013 VA examination are not compensable; and, therefore, higher and/or separate evaluations under diagnostic codes 5260 and 5261 are not warranted. The Board notes that the above VA examinations considered the Veteran’s complaints of pain, pain on motion, and functional loss. Specific reference was made to her difficulty in engaging in strenuous activity and experiencing overall pain and weakness. The recorded ranges of motion were performed prior to and after repetitive use testing. In that regard, the examiners clearly noted that there was no additional functional loss due to the Veteran’s complaints. An evaluation under Diagnostic Code 5257 for slight, moderate, or severe recurrent subluxation or lateral instability of the left knee is also not warranted. The Veteran does not contend that her left knee buckles, gives out, or is otherwise unstable. Lachman and posterior drawer tests, and tests of medial and lateral instability documented in the July 2013, October 2014, and September 2016 VA examinations were all normal, and the examiners do not document a history of recurrent subluxation. An evaluation under Diagnostic Codes 5258 for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint is not warranted. The July 2013, October 2014, and September 2016 VA examinations uniformly note that the Veteran did not have an injury to the semilunar cartilage in her left knee, and the record does not document complaints of either locking or effusion in her left knee. Moreover, service-treatment records and post-service treatment record do not document any procedures to remove semilunar cartilage from the Veteran’s left knee. Accordingly, an evaluation under Diagnostic Code 5259 is not warranted. The Veteran is not entitled to an evaluation under DC 5003 or 5010 because x-ray evidence does not show degenerative changes in her left knee. Moreover, even if arthritis was shown, she is already in receipt of compensation based on her experiencing pain with range of motion. The Veteran did not present evidence of ankylosis of the left knee, thus Diagnostic Code 5256 is not applicable. Diagnostic codes 5262 and 5263 are not applicable either because the evidence does not indicate that the Veteran had nonunion or malunion of the tibia and fibular or genu recurvatum. Because the weight of the evidence is against the Veteran’s claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.2; Gilbert, 1 Vet. App. at 53. An evaluation in excess of 10 percent for a service-connected left knee disability must be denied. (REMAND NEXT PAGE) REASONS FOR REMAND Entitlement to Service Connection for a Back Disorder and Right Hip Disorder Are Remanded The Veteran contends that her current back and right hip disorders are etiologically related to an incident in service in which she was struck by a vehicle. In her September 2016 VA Form 9, Substantive Appeal, the Veteran reports that she was struck by a vehicle at a guard entrance in 1997 and treated for minor injuries to her back, neck, and hips. November 1997 service treatment records document that the Veteran was struck by a motor vehicle and diagnosed with a contusion to the left knee. In a July 2013 Statement in Support of Claim, the Veteran attributed her back pain to the weight from carrying a gun belt; the Veteran’s primary specialty was law enforcement. She contends further that pain from these injuries have been continuous since her separation from active service. The Veteran has current diagnoses for back and right hip disorders, and the Veteran’s service treatment records document an in-service event during which the Veteran was struck by a motor vehicle. The Veteran has not been provided VA examinations to determine the etiology of her back and hips disorders, and the evidence of record is insufficient to adjudicate the Veteran’s claims. Accordingly, the Veteran should be afforded VA examinations. See McLendon v. Nicholson, 20 Vet. App. 79, 81–84 (2006). The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any back or hip disorder. Following review of the claims file, consideration of the lay evidence, and physical examination, the examiner is asked to address the following: a. Identify/diagnose any disability of the back, spine, or hip that presently exists or has existed during the appeal period. b. For each diagnosed disability, state whether it is at least as likely as not related had its onset in service or is otherwise etiologically related to the Veteran’s active service, to include the November 1997 motor vehicle incident and the weight of a gun belt associated with the Veteran’s law enforcement service specialty. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Douglas M. Humphrey, Associate Counsel