Citation Nr: 18155556 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 13-16 382 DATE: December 4, 2018 ORDER Entitlement to a rating in excess of 10 percent for right knee instability is denied. Entitlement to a rating in excess of 10 percent for patellofemoral syndrome of the right knee, based on limitation of flexion, is denied. Entitlement to a 20 percent rating for degenerative joint disease of the right knee with limitation of extension for the period from January 7, 2013, to August 26, 2016, and a 10 percent rating thereafter, is granted. FINDINGS OF FACT 1. For all periods on appeal, the Veteran’s right knee disability has resulted in slight instability at most. 2. For all periods on appeal, the Veteran’s right knee disability has resulted in a maximum of 60 degrees of limitation of flexion, accounting for factors such as pain and flare-ups. 3. Prior to January 7, 2013, the Veteran’s knee did not result in limitation of extension; From January 7, 2013, to August 26, 2016, his extension was limited to 15 degrees with pain on motion; from August 26, 2016, to the present, his extension has not been limited, but has resulted in painful motion. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for right knee instability have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. § 3.102, 4.1, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5257. 2. The criteria for a rating in excess of 10 percent for patellofemoral syndrome of the right knee, based on limitation of flexion, have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. § 3.102, 4.1, 4.7, 4.40, 4.45, 4.71a, DCs 5003, 5260. 3. The criteria for a 20 percent rating for degenerative joint disease of the right knee with limitation of extension have been met from January 7, 2013, to August 26, 2016; the criteria for a rating of 10 percent have been met thereafter. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. § 3.102, 4.1, 4.7, 4.40, 4.45, 4.71a, DCs 5003, 5261. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1993 to December 1996. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2011 rating decision issued by the Department of Veterans Appeals (VA) Regional Office (RO) in Waco, Texas. As a matter of background, this appeal came before the Board in November 2015 and June 2017, at which time it was remanded for further development. In April 2015, the Veteran testified before a Veterans Law Judge via live videoconference. A transcript of that hearing is associated with the claims file. In November 2016, prior to the most recent remand, the Veteran was informed that the Veterans Law Judge who conducted his hearing is no longer available to participate in the appeal, and was afforded the opportunity to request a new hearing. In December 2016, the Veteran responded that he did not wish to appear for another hearing, and to have the case considered based on the evidence of record. Increased Rating Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran’s entire history is reviewed when making disability evaluations. See generally, Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. In the case of the Veteran’s left knee disability, “where entitlement to compensation has already been established and an increase in the assigned evaluation is at issue, it is the present level of disability that is of primary concern.” Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Consideration of the medical evidence since the date of the claim for increase and consideration of the appropriateness of staged ratings are required. See Fenderson v. West, 12 Vet. App. 119 (1999). Further, “[w]here there is a question as to which of two evaluations shall be applied, the higher evaluation 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. 1. Entitlement to a rating in excess of 10 percent for right knee instability 2. Entitlement to a rating in excess of 10 percent for patellofemoral syndrome of the right knee The Veteran’ right knee disability is presently rated as 10 percent disabling for patellofemoral syndrome, rated based on limitation of flexion, and separately as 10 percent disabling based on instability of the knee. He seeks higher ratings for his right knee. When rating based on limitation of flexion, a separate rating may be assigned for knee disabilities based on limitation of flexion as well as limitation of extension of the knee of both pathologies exist. Likewise, separate ratings may be assigned based on limitation of motion, as well as instability or subluxation, if found. See VAOPGCPREC 23-97 (Multiple Ratings for Knee Disability). Limitation of flexion of the knee results in a noncompensable rating when flexion is limited to 60 degrees or more. A 10 percent rating is assigned for limitation of flexion to 45 degrees. Limitation of flexion to 30 degrees results in a 20 percent rating. finally, limitation of flexion to 15 degrees or less is assigned a 30 percent rating. 38 C.F.R. § 4.71a, DC 5260. Limitation of extension to 5 degrees or less is assigned a noncompensable rating. Extension limited to 10 degrees is assigned a 10 percent rating. Extension limited to 15 degrees is assigned a 20 percent rating. Extension limited to 20 degrees is assigned a 30 percent rating. extension limited to 30 degrees is assigned a 40 percent rating. Finally, extension limited to 45 degrees or greater is assigned a 50 percent rating. 38 C.F.R. § 4.71a, DC 5261. When there is evidence of degenerative arthritis in the joint, and the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added. 38 C.F.R. § 4.71a, DC 5003. A knee disability resulting in recurrent subluxation or lateral instability is assigned a 10 percent rating when such symptoms are slight in nature. Moderate symptoms result in a 20 percent rating. Severe symptoms result in a 30 percent rating. 38 C.F.R. § 4.71a, DC 5257. Also, applicable in knee claims, although not applicable in this matter as the relevant pathology is not present, are ratings based on dislocation or removal of the semilunar cartilage, impairment of the tibia and fibula, ankylosis of the knee, and genu recurvatum. 38 C.F.R. § 4.71a, DCs 5256, 5258-58, 5262-63. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The Veteran filed his claim for an increase in September 2010. In November 2010 he was afforded a VA examination in connection with his increased rating claim. At that point in time, his flexion was found to be complete to 140 degrees with pain on movement, but no additional loss of range of motion due to pain. Extension was complete and full, with no pain on motion. Gait was normal and he showed no signs of fatigue, weakness, incoordination, or lack of endurance. He had slight instability in the anterior cruciate ligament. The examiner stated that he could not run, squat or knee, but that he would be limited in climbing, walking and standing. Specifically, he would be limited in his ability to stand longer than 30 minutes and walking more than 2 blocks. This Board finds that this does not give rise to a rating in excess of 10 percent for limitation of flexion and 10 percent for instability. The Veteran’s knee did not show signs of limitation of extension. His flexion was not limited at all, although pain on movement was noted, and therefore, a minimum 10 percent rating is assigned. Further, to the extent that he did show some instability, it was not so great as to limit activity such as standing for up to 30 minutes or walking for several blocks. Therefore, a 10 percent rating for slight instability is the maximum rating supported by this examination. In January 2013, the Veteran presented for an examination in connection with his left knee disability claim. At that time, he was diagnosed with degenerative joint disease of the right knee. Although intended to address his left knee service connection claim, that examination did show flexion limited to 120 degrees, with evidence of pain on motion at 90 degrees. Extension was to 5 degrees with pain at 15 degrees. Strength was normal. He had no evidence of instability at that time. The examiner found that he would be able to lift up to 30 pounds, walk up to a half mile at a time (up to 4 miles over an 8-hour day), and able to stand up to 60 minutes at a time. The Board finds that this does not support a rating in excess of 10 percent for limitation of flexion and 10 percent for instability. Although the RO has granted a 10 percent rating based on limitation of flexion, his flexion is not so limited as to result in a higher rating. Likewise, there was no evidence of moderate or severe instability, therefore, the Board cannot assign a rating in excess of 10 percent for instability. Here, the Board will grant a separate 20 percent rating based on limitation of extension to 15 degrees with pain on movement, which is the highest rating available under the diagnostic criteria based on limitation of extension. The grant is effective January 7, 2013, the date that objective evidence of limitation of extension to 15 degrees was associated with the claims file. In August 2016, the Veteran was afforded a new VA examination. At that time, flexion was limited to 130 degrees with pain on weight bearing. Extension was complete and full. No pain was noted upon examination, although he did report pain with weightbearing motion. There was some tenderness on palpation noted. He did not experience any additional loss of motion after repetitive use. Strength was complete and total. He had no evidence of muscle atrophy. He showed slight instability with some swelling, although stability testing was normal and he only occasionally needed use of a brace to ambulate. The examiner found no occupational limitation due to his right knee and noted that he could work and take care of himself (he was living alone at the time). The Board finds that this does not give rise to a higher rating based on flexion or instability. Flexion was only limited to 130 degrees, a noncompensable limitation, although the RO has assigned a minimum 10 percent rating, his limitation does not exceed that rating. His instability, although noted, was minimal. In fact, his instability testing was generally normal and by his own admission he only used a brace some of the time to ambulate. Therefore, a rating in excess of 10 percent for instability is also not supported by this examination. Finally, the Board notes that the Veteran’s extension was not limited upon examination, although painful motion was noted, therefore, a minimum 10 percent rating for limitation of extension should be granted effective August 26, 2016. Finally, in August 2017 the Veteran was again afforded a VA examination. The Veteran’s right knee was limited to 90 degrees of flexion, however on repetition that was limited to 70 degrees. The examination was not conducted during a flare up, but per the Veteran’s own report, his flexion was limited to 60 degrees during such episodes. Movement included pain on weight bearing and non-weight bearing, as well as active and passive motion. Extension was full and complete on all movements, including during reported flare-ups, although pain was noted upon movement in the examination. No tenderness or crepitus was observed. The examiner stated that the Veteran’s knee disability resulted in less movement than normal, instability of station and interference with standing. Strength was complete and full at 5/5. There was no evidence of atrophy or ankylosis. No subluxation or lateral instability was found, although stability testing showed minimal medial instability of 0-5mm (+1). No other instability was noted and the Veteran did not require assistive devices to ambulate. The examiner stated that the Veteran’s knee pain, with limitation of range of motion would result in difficulty bending, prolonged standing, walking or climbing stairs. The Board finds that this examination also does not support an increased rating. While it certainly does support worsening of the Veteran’s condition, the Veteran’s range of motion was limited to 60 degrees with pain on motion, at most, per the Veteran’s own report of flare-ups (indeed, actual testing by the examiner on showed limitation to 70 degrees at most). The Veteran would need to show limitation of flexion to 45 degrees or less for a higher rating under the diagnostic code. There is no evidence of loss of extension which would provide for a compensable rating. Further, the Veteran’s instability testing was normal with the exception of medial instability which was only 0-5mm at most, and does not require any type of assistive device to ambulate. The Board finds that this shows slight instability at most. Therefore, a rating in excess of 10 percent for instability of the knee is all that is warranted based on the current evidence. Finally, to the extent that the Veteran’s extension was not limited, although did result in painful motion, a minimum 10 percent rating remains appropriate The Board has carefully reviewed the Veteran’s available medical records, but found no other evidence which it can rely upon to rate the Veteran’s right knee disability under the applicable rating criteria. In sum, the Board finds that the Veteran’s right knee does not warrant a rating in excess of 10 percent for limitation of flexion and 10 percent for instability. Therefore, an increased rating is denied based on those pathologies. In reaching its conclusions, the Board does acknowledge that the Veteran’s right knee disability has worsened since the date of service connection, however, it has not yet worsened to the point of warranting higher ratings under the diagnostic criteria. This decision does not preclude a future increase, presuming the Veteran’s right knee disability worsens beyond its present state and more closely equates to a higher rating. The Board also finds that an additional rating of 20 percent from November 7, 2013, to August 26, 2016, and 10 percent thereafter should be granted for limitation of extension. To this limited extent, the claim is granted.   In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet App. 49 (1990); 38 C.F.R. § 3.102. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Pryce, Associate Counsel