Citation Nr: 18159058 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 16-58 746A DATE: December 18, 2018 ORDER Entitlement to an initial 10 percent rating for right knee injury of the anterior cruciate and medial collateral ligaments, status post-surgery, for the period prior to August 27, 2014, is granted. Entitlement to a rating in excess of 40 percent for right knee injury of the anterior cruciate and medial collateral ligaments, status post-surgery, for the period from August 27, 2014 until February 5, 2016, is denied. Entitlement to a rating in excess of 10 percent for right knee injury of the anterior cruciate and medial collateral ligaments, status post-surgery, for the period from February 5, 2016 until October 25, 2016, is denied. Entitlement to a rating in excess of 20 percent for right knee injury of the anterior cruciate and medial collateral ligaments, status post-surgery, for the period from October 25, 2016, is denied. FINDING OF FACT 1. For the period before August 27, 2014, the Veteran’s right knee disability was characterized by pain. 2. For the period from August 27, 2014 until February 5, 2016, the Veteran’s right knee disability was characterized by extension limited to 40 degrees. 3. For the period from February 5, 2016 until October 25, 2016, the Veteran’s right knee disability was characterized by extension limited to 10 degrees. 4. For the period from October 25, 2016, the Veteran’s right knee disability is characterized by extension limited to 15 degrees. CONCLUSION OF LAW 1. The criteria for an initial compensable rating for the Veteran’s right knee disability for the period before August 27, 2014, have been satisfied. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a; Diagnostic Code (DC) 5261. 2. A rating in excess of 40 percent for the Veteran’s right knee disability from August 27, 2014 until February 5, 2016, is not warranted. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a; DC 5261. 3. A rating in excess of 10 percent for the Veteran’s right knee disability February 5, 2016 until October 25, 2016, is not warranted. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a; DC 5261. 4. A rating in excess of 20 percent for the Veteran’s right knee disability from October 25, 2016 is not warranted. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a; DC 5261. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty, to include the period from June 1985 to April 1988. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a November 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The Veteran was previously represented by a different representative; in August 2018, he submitted a new power of attorney in favor of the representative listed above. INCREASED RATING Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate DCs. See 38 C.F.R. § 4.1. When a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, multiple (“staged”) ratings may be assigned for different periods of time during the pendency of the appeal. See Fenderson v. West, 12 Vet. App. 119 (1999). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Functional loss due to pain and weakness, causing additional disability beyond that reflected on range of motion (ROM) measurements, can be considered. 38 C.F.R. § 4.40. Functional loss due to weakened movement, excess fatigability, and incoordination must also be considered. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.45. Furthermore, 38 C.F.R. § 4.59 recognizes that painful motion is an important factor of disability. Joints that are painful, unstable, or misaligned, due to healed injury, are entitled to at least the minimum compensable rating for the joint. Id. Disability of the musculoskeletal system is primarily the inability to perform normal working movements of the body with normal excursion, strength, speed, coordination, and endurance due to damage or inflammation in parts of the system. 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 (2011). Under 38 C.F.R. § 4.71, DC 5261, extension limited at 10 degrees warrants a 10 percent rating, extension limited at 15 degrees warrants a 20 percent rating, extension limited at 20 degrees warrants a 30 percent rating, extension limited at 30 degrees warrants a 40 percent rating, and extension limited at 45 degrees warrants a 50 percent rating. The Board notes that after a thorough review of the Veteran’s record including VA examinations in October 2014, February 2016, and October 2016, certain symptoms are not present with the Veteran’s right knee disability. At no point during the appeal has the Veteran had, per Diagnostic Code 5260, a compensable level of disability for flexion warranting a separate evaluation. See VAOPGCPREC 09-04. The Veteran has also not experienced ankylosis (Code 5256), recurrent subluxation (Code 5257), dislocation or removal of cartilage (Codes 5258 and 5259), or non-union of the tibia or fibula in the right knee (Code 5262). There is a note in the February 2016 VA examination report indicating a history of slight lateral instability, but it is not further detailed, and the October 2016 VA examination is negative for any lateral instability. In the view of the Board, this history does not constitute slight disability during the pendency of this appeal. The Board will therefore focus on the Veteran’s limitation of extension and the factors addressed in DeLuca v. Brown, 8 Vet. App. 202 (1995) and 38 C.F.R. §§ 4.40 and 4.45 (e.g., painful motion, functional loss) throughout each time frame. The Board further notes that the Veteran has not raised any additional issues during the course of this appeal, particularly a claim for a total disability evaluation based upon individual unemployability, as during his October 2016 VA examination he reported current employment for an aircraft company for 23 years. 1. Entitlement to a compensable rating for right knee injury of the anterior cruciate and medial collateral ligaments, status post-surgery, for the period before August 27, 2014. In an October 2014 VA examination, the Veteran asserted that he has experienced “pain in [his] medial right knee” since discharge from active service. The claims file contains no relevant medical evidence, let alone evidence of compensable limitation of extension, from the year prior to the Veteran’s August 27, 2014 claim, but the Board finds his contentions to be persuasive evidence of a painful right knee during that one-year period. 38 C.F.R. § 3.400(o)(2). This evidence of pain supports assignment of a 10 percent rating for his service-connected knee disability, during the one-year period prior to the August 27, 2014 claim, based on the pain in the Veteran’s right knee contributing to the actual limitation of motion. 38 C.F.R. § 4.59. To this extent, the appeal is granted. 2. Entitlement to a rating in excess of 40 percent for right knee injury of the anterior cruciate and medial collateral ligaments, status post-surgery, for the period from August 27, 2014 until February 5, 2016. The October 2014 VA examination report revealed that the Veteran’s right knee extension ended at 40 degrees, with painful motion beginning at 10 degrees, and post-test range of motion extension ending at 30 degrees. As noted above, a 50 percent evaluation would require a finding of extension limited to 45 degrees. That has not been shown in this case, nor is there a showing of such pain or functional loss as would otherwise support an increase under DeLuca. Indeed, it would appear that limitation of extension actually improved (from 40 degrees to 30 degrees) on post-test range of motion testing. Put simply, there exists no basis for a rating in excess of 40 percent for the period from August 27, 2014 until February 5, 2016, and the claim must be denied as to that period. 38 C.F.R. § 4.7. 3. Entitlement to a rating in excess of 10 percent for right knee injury of the anterior cruciate and medial collateral ligaments, status post-surgery, for the period February 5, 2016 until October 25, 2016. During a February 2016 VA examination, the Veteran reported no medical treatment for his right knee since his last exam. The examination report indicated that the Veteran’s right knee extension was limited to 10 degrees with pain. Range of motion (ROM) tests after repetitive use revealed no additional limitation of extension. As noted above, a 20 percent evaluation would require a finding of extension limited to 15 degrees. That has not been shown in this case, nor is there a showing of such pain or functional loss as would otherwise support an increase under DeLuca. Put simply, there exists no basis for a rating in excess of 10 percent for the period from February 5, 2016 until October 25, 2016, and the claim must be denied as to that period. 38 C.F.R. § 4.7. 4. Entitlement to a rating in excess of 20 percent for right knee injury of the anterior cruciate and medial collateral ligaments, status post-surgery, for the period from October 25, 2016. The Veteran’s October 2016 VA examination revealed that right knee extension was limited to 15 degrees with pain noted. There was no additional function loss after three repetitions. As noted above, a 30 percent evaluation would require a finding of extension limited to 20 degrees. That has not been shown in this case, nor is there a showing of such pain or functional loss as would otherwise support an increase under DeLuca. Put simply, there exists no basis for a rating in excess of 20 percent for the period beginning on October 25, 2016, and the claim must be denied as to that period. 38 C.F.R. § 4.7. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Banks, Associate Counsel