Citation Nr: 18154817 Decision Date: 12/03/18 Archive Date: 11/30/18 DOCKET NO. 16-30 464 DATE: December 3, 2018 ORDER Entitlement to a higher disability rating for service-connected left knee osteoarthritis, currently evaluated at 10 percent for subluxation and 10 percent for painful motion, is denied. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran’s left knee osteoarthritis is productive of more than slight anterior, posterior, medial or lateral instability or recurrent subluxation. 2. The Veteran’s left knee osteoarthritis is productive of subjective complaints of pain with movement, but the preponderance of the evidence of record is against finding that it is productive of a disability picture consistent with any moderate or more severe loss of range of motion on flexion or extension. CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent for subluxation and 10 percent for painful movement for service-connected left knee osteoarthritis have not been met. 38 U.S.C. §§ 1155, 5103, 5103A and 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59; 4.71a, Diagnostic Code 5010, 5257, 5260, 5261. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served in the United States Air Force from May 2009 to April 2012. The Board sincerely thanks him for his service to his country. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in May 2013 by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran has a service-connected left knee disability, osteoarthritis, which the RO rated at 10% under Diagnostic Code 5010-5257 for slight subluxation in its May 2013 rating decision. In addition, the RO granted a separate rating of 10% in June 2018 for left knee osteoarthritis based on evidence of painful movement under Diagnostic Code 5260 for limitation of flexion. 1. Entitlement to a rating in excess of 10 percent for subluxation and 10 percent for painful movement for service-connected left knee osteoarthritis. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Separate diagnostic codes identify the various disabilities. Id. Evaluation of a service-connected disorder requires a review of the veteran’s entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2. A 10 percent rating is warranted for slight recurrent subluxation or lateral instability of the knee, a 20 percent rating for moderate recurrent subluxation or lateral instability, and a 30 percent rating for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Code 5257. Flexion of the leg limited to 60 degrees warrants a 0 percent rating, flexion limited to 45 degrees warrants a 10 percent rating, flexion limited to 30 degrees warrants a 20 percent rating, and flexion limited to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a, Code 5260. Extension limited to 5 degrees warrants a 0 percent rating, extension limited to 10 degrees warrants a 10 percent rating, extension limited to 15 degrees warrants a 20 percent rating, extension limited to 20 degrees warrants a 30 percent rating, extension limited to 30 degrees warrants a 40 percent rating, and extension limited to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a, Code 5261. Arthritis resulting in non-compensable limitation of motion evidenced by objective findings of swelling, muscle spasm, or painful motion, warrants a 10 percent rating where X-ray evidence confirms involvement of 2 or more joints or joint groups. The same symptoms accompanied by occasional incapacitating exacerbations warrants a 20 percent rating. 38 C.F.R. § 4.71a, Code 5010; 5003. When determining the severity of musculoskeletal disabilities, which are at least partly rated on the basis of range of motion, VA must consider the extent of additional functional impairment a Veteran may have above and beyond the limitation of motion objectively demonstrated due to pain, limited or excess movement, weakness, incoordination, and premature or excess fatigability, etc., particularly when symptoms “flare up,” to include periods of prolonged use, and assuming these factors are not already contemplated in the governing rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; Sharp v. Shulkin, 29 Vet. App. 26, 31-35 (2017); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. See 38 C.F.R. § 4.59. Certain range of motion testing be conducted whenever possible in cases of joint disabilities. Correia v. McDonald, 28 Vet. App. 158 (2016), t The Veteran had contended in his June 2016 substantive appeal that his service-connected left knee disability should be evaluated at 30 percent, or barring that, at least 20 percent disabling. The Board notes that since the time of the substantive appeal, the Veteran was awarded a separate 10 percent rating for painful movement of the knee, bringing the combined rating for the knee to 20 percent as the Veteran requested. The Veteran asserted in June 2016 that his disability affects his employment in that he is unable to work in the field in which he received training during service. He reported that he had a job operating machinery for a cabinet business but was unable to withstand the long hours on his knee on the concrete flooring and “obtaining a full time job without being on my feet 10-12 hours a day has been impossible.” He noted that he was working more than one part-time job until he could go back to school or find a suitable full-time position. The Board notes that the Veteran reported the loss of a factory job due to attendance in a March 2015 primary care visit. Additionally, the Veteran describes several instances where his knee instability has caused him pain and swelling. Subsequent VA treatment records in August 2016 show that the Veteran was placed in the VA compensated work therapy transitional work program. He had been assigned to the housekeeping department and was approved to work up to 32 hours per week; however, the Veteran did not report for work any of the 4 days that week. Attempts to reach the Veteran were unsuccessful, and he was discharged from the program in poor standing. VA treatment records also show diagnoses of substance abuse as well as a work history which included a customer service position, a cabinet builder, and working at a boat business. The Veteran also studied HVAC for over a year but reported he was “drinking at the time and was not focused on school like he should have been.” The Veteran’s Service Treatment Records (STRs) show that he injured his left knee while playing softball during service in March 2010. He had tenderness in the LCL and some swelling with no patellar dislocation, and his treating physician prescribed ice treatment, a splint and crutches, and ibuprofen. He continued to experience pain and swelling with occasional (about once a month) dislocation, as reported during an April 2011 physical therapy consult. Following service, the Veteran filed his initial claim in May 2012, and he underwent a VA examination in January 2013. The examiner diagnosed the Veteran with internal derangement and mild osteoarthritis of the left knee. The Veteran reported that he experienced knee pain and swelling about 4 times a month and that stairs and running were aggravating. He reported no flare-ups. The examiner found full range of motion in flexion and extension both before and after repetitive use, and no objective evidence of painful movement. The examiner also found normal strength and stability in both knees, but there was recurrent slight subluxation in the left knee. Finally, the examiner noted imaging results of the left knee showed mild lateral compartment narrowing and opined that the Veteran had no functional impairment on his ability to perform moderate to sedentary work. In a May 2013 rating decision, the RO assigned a 10 percent rating based on slight recurrent subluxation effective April 4, 2012. In April 2013, the Veteran reported swelling and pain after his “knee gave out” when going down stairs. In September 2014, the Veteran reported that he had done “fairly well” with his knee, but had a recurrence of pain and swelling after wrestling. The examining physician noted that the knee had mild swelling, the patella was unstable, and that strength was poor in the left leg, although there was full range of motion. The diagnosis was patellar dislocation with capsule. X-rays showed normal joint space. A May 2014 MRI showed a possible remote interspinous cortical injury posterior to the tibial ACL attachment. The MRI otherwise showed intact ligaments and meniscus. The Veteran filed his Notice of Disagreement in May 2014. In a March 2015 primary care visit, the Veteran reported that he was doing aerobic and strengthening activity for his left knee, and that he had not attended physical therapy due to work scheduling and because he had “done it before- didn’t help.” He also described that following the loss of a factory job due to attendance; he was working part-time at a marina. An April 2016 supportive therapy record listed a diagnosis of knee arthralgia. In August 2016, the Veteran reported “really good health” and that he was able to take over-the-counter medications for his knee when needed. In June 2018, the RO granted a separate evaluation of 10 percent for osteoarthritis of the left knee under 5010-5260 based on the Veteran’s subjective reports of pain with movement under 38 C.F.R. § 4.59. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The preponderance of the evidence is against a finding of moderate or more severe subluxation or lateral instability. While the Board acknowledges the Veteran’s descriptions of his knee “giving way” on several occasions, the preponderance of evidence is against finding more than slight subluxation. The Veteran’s knee instability was shown to be slight by a physical examination and an April 2017 routine yearly physical examination noted no medical complaints and no arthralgia. Likewise, the preponderance of the evidence is against a finding that a higher rating is warranted for painful movement. There is no clinical evidence of pathology or objective findings of reduced limitation of motion or painful movement or flare-ups on examination which would more nearly approximate a higher rating under 5260 or a separate rating under DC 5261 or would warrant further development. The remaining Diagnostic Codes regarding the knees are not applicable to the facts of this case. The Board acknowledges the Veteran’s assertion that he is unable to maintain full-time employment in his prior occupation or in the field of factory cabinet-making due to his disability. However, the record reflects that during the appeal he was provided a 32 hour a week job in the housekeeping department of a VA facility but that he did not report for work. The record also suggests that nonservice-connected substance abuse issues interfered with educational efforts. In his April 2013 VA clinic visit, the Veteran reported that he continued to work despite aggravating his knee jumping down stairs. Additionally, the VA examiner in January 2013 opined that the Veteran’s disability presented no functional impairment, nor would it preclude the Veteran from maintaining gainful employment in moderate to desk type work.   Therefore, higher ratings for the Veteran’s left knee osteoarthritis are not warranted. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. McCormick, Associate Counsel