Citation Nr: 18153705 Decision Date: 11/29/18 Archive Date: 11/28/18 DOCKET NO. 13-28 756 DATE: November 29, 2018 ORDER An initial disability rating of 10 percent, but no higher, for left knee flexion is granted. An initial disability rating of 10 percent, but no higher, for left knee extension is granted. FINDINGS OF FACT 1. The Veteran’s left knee flexion was manifested by actually painful motion. It was not manifested by limitation of flexion to 30 degrees or less. 2. The Veteran’s left knee extension was manifested by actually painful motion. It was not manifested by limitation of extension to 15 degrees or more. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating of 10 percent, but no higher, for left knee flexion have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.10, 4.14, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260 (2017). 2. The criteria for an initial disability rating of 10 percent, but no higher, for left knee extension have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.10, 4.14, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5261 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1983 to July 1983. The Veteran appeals an April 2011 rating decision by the Agency of Original Jurisdiction (AOJ) granting service connection for left knee tendonitis and assigning a non-compensable disability rating effective November 15, 2010. In February 2016, the Veteran testified before a Veterans Law Judge (VLJ) at a hearing; the transcript is of record. Since the time of this hearing, the VLJ who held the hearing left the Board. In April 2017, the Veteran was notified that he may testify before another VLJ, but did not respond. In April 2016, the Board found that an increased rating for the Veteran’s left knee tendonitis was not warranted under limitation of motion Diagnostic Codes 5260 and 5261, but granted an initial compensable disability rating of 10 percent based on left knee instability. In December 2016, pursuant to a joint motion for partial remand (JMPR), the Court of Appeals for Veterans Claims (Court) vacated, in part, and remanded the April 2016 decision of the Board to the extent that it denied entitlement to a separate compensable rating for limitation of motion of the left knee. See December 2016 JMPR. Further, the Court did not disturb that part of the decision granting a 10 percent rating under Diagnostic Code 5257 for the service-connected left knee disability. Id. In July 2017, the Board found that a separate compensable rating for left knee tendonitis based on limitation of motion was not warranted. In May 2018, pursuant to amended joint motion for remand (JMR), the Court vacated the July 2017 decision of the Board which denied entitlement to a separate compensable rating for left knee tendonitis based on limitation of motion. See May 2018 JMR. The case is back before the Board to determine whether a separate compensable rating for left knee tendonitis based on limitation of motion was warranted. Increased Rating 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 DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59 (2017). 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, 42-43 (2011). Instead, the Court in Mitchell 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, 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. See 38 C.F.R. §§ 4.40, 4.45 (2017). 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. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. A. Change in Diagnostic Code For the reasons set forth below, the Board finds the Veteran warrants a 10 percent disability rating under Diagnostic Code 5260 and 10 percent disability rating under Diagnostic Code 5261 for the entire appellate period. The Board notes that the Veteran’s non-compensable disability rating under 5099-5024 has been in effect since November 15, 2010. Hence, the rating is not protected, and there is no reduction in rating or severance of service connection from a change in the diagnostic code because of the Board’s action. Cf. Murray v. Shinseki, 24 Vet. App. 420, 428 (2011); see also Read v. Shinseki, 651 F.3d 1296, 1302 (Fed. Cir. 2011). The Court in Murray found that a change in diagnostic code for a protected disability rating that was in effect for 20 years or more could constitute an impermissible rating reduction under 38 C.F.R. § 3.951(b). Further, the Federal Circuit found in Read that service connection was not severed, as contemplated by § 3.957 that protects service connection in effect for 10 years or more, simply because a diagnostic code associated with a disability was corrected to more accurately determine the benefit to which a veteran may be entitled. B. Limitation of Motion Limitation of motion for the knee is rated under 38 C.F.R. § 4.71a under Diagnostic Codes 5260 and 5261. Diagnostic Code 5260 provides ratings for limitation of flexion with the following ratings assigned: 0 percent for flexion limited to 60 degrees, 10 percent for flexion limited to 45 degrees, 20 percent for flexion limited to 30 degrees, and 30 percent for flexion limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Similarly, Diagnostic Code 5261 provides ratings for limitation of extension with the following ratings assigned: 10 percent for limitation of extension to 10 degrees, 20 percent for limitation of extension to 15 degrees, 30 percent for limitation of extension to 20 degrees, 40 percent for limitation of extension to 30 degrees, and 50 percent for limitation of extension to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Normal knee flexion is to 140 degrees, and normal knee extension is to 0 degrees. See 38 C.F.R. § 4.71, Plate II. When assigning a disability rating, some of the regulations preceding the rating schedule add flexibility to the listed Diagnostic Codes. 38 C.F.R. § 4.59 is one such regulation. In Petitti v. McDonald, 27 Vet. App. 415, 424 (2015), the Court noted that § 4.59 “explain[s] how to arrive at proper evaluations under the DCs appearing in the disability rating schedule.” The provisions of § 4.59 acknowledge that a claimant’s disability may cause actual pain or painful motion but still not be severe enough to warrant a compensable rating under the appropriate Diagnostic Code. Accordingly, when there is evidence of painful motion, § 4.59 operates to provide at least the minimum compensable rating available under the Diagnostic Code for the joint. See Sowers v. McDonald, 27 Vet. App. 472, 478 (2016). While § 4.59 adds flexibility to the rating schedule, it is also limited by the terms of the appropriate Diagnostic Code for the joint. Thus, if the appropriate Diagnostic Code for the joint does not provide a compensable rating, a claimant is not entitled to a minimum rating. Id. at 481 (“Section 4.59 may intend to compensate painful motion, but it does not guarantee a compensable rating”). Sowers highlights the importance of the Diagnostic Code under which the Veteran is rated because § 4.59 operates within the parameters of the Diagnostic Code. Where the record contains evidence of an actually painful, unstable, or malaligned joint or periarticular region, § 4.59 is potentially applicable. See Southall-Norman v. McDonald, 28 Vet. App. 346, 354 (2016). Here, the Veteran has exhibited painful motion of the left knee during both flexion and extension. See, e.g., February 2016 Dr. J.H. disability benefits questionnaire (DBQ); February 2011 VA examination report. Therefore, he is at least entitled to a minimum disability rating under both 5260 and 5261, or 10 percent, respectively. Nevertheless, throughout the appeal period, the Veteran is not entitled to an initial disability rating greater than 10 percent under Diagnostic Code 5260 or 5261. Upon VA examination in February 2011, the Veteran had normal range of motion in his left knee, even after repetitive use. See February 2011 VA examination report. Five years later, in a DBQ filed out by a private physician, the Veteran’s left knee flexion was to 130 degrees. He did not experience pain on initial testing. See February 2016 Dr. J.H. DBQ. With additional testing, the Veteran experienced mild pain on third repetition, but range of motion findings were unchanged. The Board has also considered whether higher ratings are warranted based on functional loss due to pain, weakness, fatigability, or incoordination. See DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59 (2017). Although the evidence does show that the Veteran may experience painful motion, it does not result in a higher rating unless it results in additional functional loss. See Mitchell v. Shinseki, 25 Vet. App. 32, 42-43 (2011). Here, a VA clinician determined that the Veteran’s left knee pain limited movements. See February 2011 VA examination report. However, the VA clinician determined the Veteran was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use. Id. Five years later, a private physician determined the Veteran has additional limitation of motion of the knee after repetitive use that manifests as weakened movement and pain on movement. See February 2016 Dr. J.H. DBQ. However, Dr. J.H. described this limitation as “mild pain left knee at 3rd repetition.” Id. This is consistent with her conclusion that the Veteran’s left knee disability impacts his physical activities if excessive exercise is required. Specifically, the Veteran has “pain with running greater than 3 miles per day.” Id. These statements are further consistent with the Veteran’s Board hearing testimony. There, he said “walking is not typically a problem” and “every now and then if I exercise for extended periods and [the left knee] flares up, I might take Aleve or something, but not something I do on a regular basis.” See February 2016 Hearing Transcript at 5. Thus, even considering additional functional loss, the Veteran’s left knee limitation of motion does not approximate limitation of flexion to 30 degrees or extension to 15 degrees. All potentially applicable Diagnostic Codes pursuant to limitation of motion have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The Board finds the evidence of record more closely approximates the criteria for a 10 percent rating under Diagnostic Code 5260 and 10 percent rating under Diagnostic Code 5261, but no higher, throughout the appellate period. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Salazar, Associate Counsel