Citation Nr: 18150984 Decision Date: 11/19/18 Archive Date: 11/16/18 DOCKET NO. 16-37 037 DATE: November 19, 2018 ORDER A rating in excess of 10 percent for a left knee disability is denied. A rating in excess of 10 percent for a right knee disability is denied. A compensable rating for a right foot disability is denied. FINDINGS OF FACT 1. The Veteran has full range of motion in his knees, and though the knees are painful, pain has not been shown to functionally limit the range of motion of the knee. The evidence fails to show moderate instability, ankylosis, genu recurvatum, or any meniscal problem in either knee. 2. The Veteran has full range of motion in his right foot without pain and without any other impairments amounting to moderate functional loss. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for a right knee disability have been not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5256-63. 2. The criteria for a rating in excess of 10 percent for a left knee disability have been not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5256-63. 3. The criteria for a compensable rating for a right foot disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5284. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1976 to April 1978. Increased Rating Knees The Veteran is currently rated at 10 percent for each of his knee effective February 1992 under Diagnostic Code (DC) 5003-5257. He filed an increased rating claim that was received in December 2014. In May 2015, the Veteran was afforded a VA examination, at which he reported pain in his knees, back and neck, and that his balance was “off” ever since a car hit him while he was walking in 2008, breaking several cervical vertebra. He reported that he was wearing knee braces regularly. On examination, he demonstrated full range of flexion and extension bilaterally, with pain noted on palpation of the right knee. The Veteran was able to perform repetitive use testing of both knees with no pain, weakness or fatigability noted in either knee. The Veteran did not report any flare-ups. The Veteran had normal muscle strength at 5/5 bilaterally without atrophy. Joint stability tests show no evidence of instability in either knee. The examiner found no ankylosis, no tibial or fibular impairment, and no meniscus (semilunar cartilage) condition in either knee. X-rays in January 2014 showed minimal degenerative changes, slight narrowing of the medial meniscus, no fracture, dislocation, or effusion in right knee; and very minimal degenerative narrowing of the lateral meniscus, no significant degenerative change otherwise, no fracture, dislocation or effusion in left knee. VA treatment records in 2014 and 2015 consistently documented bilateral knee pain, but did not show that the pain functionally limited the range of motion in either knee. The private treatment records from Northern Inyo Hospital in September 2012 show small joint effusion in right knee, moderate tricompartmental degenerative changes bilaterally (more prominent at the medial femoral compartment with joint space narrowing on weightbearing view), and no evidence of displaced fracture or dislocation. The Veteran’s knee disabilities are rated under DC 5003-5257. DC 5003 (arthritis) is evaluated based on limitation of motion. Normal ranges of motion of the knee are to 0 degrees in extension, and to 140 degrees in flexion. 38 C.F.R. § 4.71, Plate II. Diagnostic Code 5260 evaluates limitation of knee flexion. A noncompensable rating is assigned for flexion limited to 60 degrees. A 10 percent rating is assigned for flexion limited to 45 degrees. A 20 percent rating is assigned for flexion limited to 30 degrees. A 30 percent rating is assigned for flexion limited to 15 degrees. Diagnostic Code 5261 evaluates limitation of knee extension. A noncompensable rating is assigned for extension limited to 5 degrees. A 10 percent rating is assigned for extension limited to 10 degrees. A 20 percent rating is assigned for extension limited to 15 degrees. A 30 percent rating is assigned for extension limited to 20 degrees. A 40 percent rating is assigned for extension limited to 30 degrees. A 50 percent rating is assigned for extension limited to 45 degrees. Of note, separate compensable ratings may be assigned for limitation of flexion and for limitation of extension, without violating the rule against pyramiding. See 38 C.F.R. § 4.14. Here, the Veteran’s bilateral knee conditions do not warrant a separate compensable rating based on functional limitation of range of motion. A 10 percent rating for limitation of flexion requires flexion to be limited to 45 degrees and 10 percent rating for limitation of extension requires extension to be limited to 10 degrees. Here, the 2015 VA examination shows that the Veteran demonstrated full range of flexion and full range of extension. As such, a compensable rating under DC 5260 and 5261 is not warranted. In considering range of motion ratings, it is important to consider whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca v. Brown, 8 Vet. App. 202(1995). A minimum compensable evaluation for a joint disability is warranted for painful motion under 38 C.F.R. § 4.59. However, a rating in excess of the minimum compensable rating must be based on demonstrated functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). Here, the 2015 VA examination noted pain on palpation on right knee, but did not note pain in left knee. Regardless, there was no pain on weight bearing in either knee, and repetitive motion testing did not cause any additional limitation of motion. The Veteran also denied any flare-ups. VA treatment records likewise do not show any knee treatment or range of motion testing. As such, it is not shown that the Veteran’s range of motion in either knee is so functionally limited as to support a compensable rating in either knee. While 38 C.F.R. § 4.59 does allow for the minimum compensable rating for a joint, the fact remains that the Veteran already receives a compensable rating for each knee. As described, a rating in excess of 10 percent is not warranted for either knee. The Board also considered whether higher rating can be assigned under other Diagnostic Codes. Diagnostic Code 5256 evaluates ankylosis of the knee. The record contains no evidence of knee ankylosis, and the Veteran has not described symptoms that are suggestive of ankylosis. Therefore, this Diagnostic Code is not applicable and will be discussed no further. Diagnostic Code 5257 evaluates recurrent subluxation or lateral instability of a knee. A 10 percent, 20 percent and 30 percent rating are assigned to the slight, moderate and severe impairments respectively. The words “slight,” “moderate,” and “severe” are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for “equitable and just decisions.” 38 C.F.R. § 4.6. Here, the Veteran is currently assigned a 10 percent rating for mild instability in his knee. To this end, the Veteran wears knee braces and he reported his balance was “off” after a car accident in 2008 which injured his spine. He also reported his knees gave way when seeking a brace. However, the May 2015 VA examiner concluded that the Veteran does not have a history of recurrent subluxation or lateral instability in either knee and the joint stability tests show no evidence of joint instability in either knee. Given the absence of clinical evidence of instability, the Board concludes that the evidence of record does not show moderate instability in either knee so as to support a higher rating under DC 5257. Diagnostic Codes 5258 and 5259 evaluate impairment of the semilunar cartilage, which is synonymous with the meniscus. Here, while the private treatment records in September 2012 show small joint effusion in right knee, the same records also suggest no evidence of displaced fracture or dislocation. Additionally, the May 2015 VA examination shows that the Veteran has no meniscus condition in either knee. As such, DC 5258 and 5259 are not applicable and will not be discussed further. Diagnostic Code 5262 evaluates impairment of the tibia and fibula. The record contains no evidence of a current impairment of the tibia and fibula, and the Veteran has not described symptoms that are suggestive of an impairment of the tibia and fibula. Therefore, this Diagnostic Code is not applicable and will be discussed no further. Diagnostic Code 5263 evaluates genu recurvatum. The record contains no evidence of left genu recurvatum, and the Veteran has not described symptoms that are suggestive of left genu recurvatum. Therefore, this Diagnostic Code is not applicable and will be discussed no further. In sum, the Veteran’s bilateral knee disability (arthritis) does not cause limitation of motion. A 10 percent rating is assigned for each knee for the pain, but a rating in excess of 10 percent is not warranted because the impairment on the range of motion has not met the 20 percent rating criteria under DC 5260-61. The Veteran is not shown to have any instability impairment in either knee at a compensable level under DC 5257. Other Diagnostic Codes have been considered (DC 5256, 5258-59, 5262-63), however, there is either no evidence or insufficient evidence to suggest that these Diagnostic Codes should be applied. A rating in excess of 10 percent for each knee is denied. Right Foot The Veteran is currently assigned a noncompensable rating for his right foot condition (closed fracture of cuboid bone) effective February 1992 under Diagnostic Code (DC) 5284. He filed an increased rating claim that was received in December 2014. Under Diagnostic Code 5284, a 10 percent evaluation is provided for a “moderate” foot injury. A 20 percent evaluation is provided for a “moderately severe” foot injury. A 30 percent evaluation is provided for a “severe” foot injury. Actual loss of use of the foot warrants a 40 percent rating. 38 C.F.R. § 4.71a. DC 5284. The words “moderate,” “moderately severe,” and “severe” are not defined in Diagnostic Code 5284. Again, the Board must evaluate all of the evidence to the end that its decision is “equitable and just.” 38 C.F.R. § 4.6. In May 2015, the Veteran was afforded a VA examination. On examination, he demonstrated normal range of motion of his right ankle, no swelling and no pain on motion or palpation. No flare-up was reported. The Veteran was able to perform repetitive use of right ankle with no pain, weakness or fatigability noted after repetitive use testing. Muscle strength of right ankle was 5/5 without atrophy. X-rays on right ankle revealed open reduction and internal fixation (ORIF) on lateral plate distal fibula with 3 screws appearing separate from the plate of indeterminate clinical significance; degenerative changes of the lateral talofibular and talotibial joint spaces; and prominent calcaneal enthesophytes; suggesting ORIF with secondary degenerative changes. VA treatment records in 2014 and 2015 consistently show normal range of motion for right foot and right ankle. The Board finds that the evidence does not support the finding of “moderate” foot injury. While the X-rays show secondary degenerative changes of the right foot, the 2015 VA examination shows full range of motion of the right foot, and no pain, weakness or fatigability noted after repetitive use was noted. Additionally, the ankle muscle was at the full strength. As such, a compensable rating for right foot disability is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Q. Wang, Associate Counsel