Citation Nr: 1806731 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 13-05 362 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a rating in excess of 10 percent for chondromalacia of the left patella, status post arthrotomy and meniscectomy, with osteoarthritis and tendinosis. 2. Entitlement to a rating in excess of 10 percent for chondromalacia of the right patella, status post arthrotomy and meniscectomy, with osteoarthritis. REPRESENTATION Veteran is represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD C. Banister, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1970 to June 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in November 2016, at which time it was remanded to provide the Veteran with a hearing. In October 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record, and the case has been returned to the Board for further appellate action. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran's service-connected left knee disability has been manifested by no more than flexion limited to 90 degrees, extension to zero degrees, and slight instability. 2. Throughout the appeal period, the Veteran's service-connected right knee disability has been manifested by no more than flexion limited to 80 degrees, extension to zero degrees, and slight instability. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for limitation of motion of the left knee have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261 (2017). 2. The criteria for a separate rating of 10 percent for left knee instability have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2017). 2. The criteria for a rating in excess of 10 percent for limitation of motion of the right knee have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261 (2017). 4. The criteria for a separate rating of 10 percent for right knee instability have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2017). Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability; resolving any reasonable doubt regarding the degree of disability in favor of the claimant; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity. See 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.10 (2017); see also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119, 127 (1999); Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40 (2017); see also 38 C.F.R. §§ 4.45, 4.59 (2017). 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). Degenerative or traumatic arthritis established by x-ray findings are rated on the basis of limitation of motion for the specific joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010 (2017). When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is warranted for each major joint or group of minor joints affected by limitation of motion. Id. Limitation of motion of the knee is evaluated under Diagnostic Codes 5260 (flexion) and 5261 (extension). Under Diagnostic Code 5260, a 10 percent rating is warranted where flexion is limited to 45 degrees; a 20 percent rating is warranted where flexion is limited to 30 degrees; and a maximum 30 percent rating is warranted where flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Full knee flexion is to 140 degrees. 38 C.F.R. § 4.71a, Plate II. Under Diagnostic Code 5261, a 10 percent rating is warranted where extension is limited to 10 degrees; a 20 percent rating is warranted where extension is limited to 15 degrees; a 30 percent rating is warranted where extension is limited to 20 degrees; a 40 percent rating is warranted where extension is limited to 30 degrees; and a maximum 50 percent rating is warranted where extension is limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Full knee extension is to zero degrees. 38 C.F.R. § 4.71a, Plate II. A separate rating may also be assigned for instability of the knee. See VAOPGCPREC 23-97; 62 Fed. Reg. 63604 (1997) (arthritis of the knee may be assigned separate ratings for limitation of motion and instability, provided that any separate rating is based upon additional disability); see also 38 C.F.R. § 4.14 (2017); Esteban v. Brown, 6 Vet. App. 259 (1994). Under Diagnostic Code 5257, a 10 percent rating is warranted for slight recurrent subluxation or lateral instability; a 20 percent rating is warranted for moderate recurrent subluxation or lateral instability; and a maximum 30 percent rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. In this case, the Veteran's service-connected knee disabilities have been assigned a 10 percent rating for each knee based on x-ray evidence of arthritis with noncompensable limitation of motion. See 38 C.F.R. § 4.71a, Diagnostic Codes 5010, 5260. Upon review of the record, the Board finds that a rating in excess of 10 percent for limitation of motion is not warranted for either knee at any point during the period under review. The Board has reviewed and considered the Veteran's assertions in support of his claim, including his reports of pain, which increased with prolonged standing and walking. However, the objective medical evidence of record is of greater probative value as to the Veteran's level of impairment than his assertions. Even considering his subjective complaints of pain and other symptoms described in DeLuca, there is no evidence of flexion limited to 30 degrees or extension limited to 15 degrees, such that a higher rating would be warranted. See Thompson v. McDonald, 815 F.3d 781, 786 (Fed. Cir. 2016) (holding that provision describing functional loss due to disability of the musculoskeletal system does not supersede requirements for a higher rating specified in the Rating Schedule). Range of motion testing performed during a November 2010 VA examination revealed left knee flexion to 110 degrees, right knee flexion to 120 degrees, and left and right knee extension to zero degrees. Pain was noted on the last 10 degrees of motion; however, there was no additional limitation of motion due to pain, weakness, fatigue, lack of endurance, or incoordination. A June 2017 disability benefits Questionnaire (DBQ) indicates that left knee flexion was to 90 degrees, right knee flexion was to 80 degrees, and extension was to zero degrees bilaterally. The Veteran reported pain; however, there was no additional limitation of motion due to pain or with repetition. Accordingly, the criteria for a rating in excess of 10 percent have not been met for either knee. The Board has also considered whether separate ratings are warranted for instability. The Veteran testified during the October 2017 Board hearing that he constantly wore braces on both knees and walked with a cane for stability because his knees buckled. A September 2005 VA treatment record indicates that the Veteran received bilateral knee braces due to instability. During the November 2010 VA examination, the Veteran reported bouts of giving way in both knees. An October 2012 VA treatment record shows that the Veteran had buckling and popping in both knees and continued to wear knee braces for support. In May 2016, it was noted that the Veteran's right knee gave out intermittently. A September 2017 private treatment record shows that the Veteran underwent imaging studies of the left knee due complaints of pain, clicking, and instability, which revealed complex medial and lateral meniscus tears. Based on the foregoing, and resolving reasonable doubt in the Veteran's favor, the Board finds that separate 10 percent ratings are warranted for left and right knee instability. See 38 C.F.R. § 4.71a, Diagnostic Code 5257. The Board finds that ratings in excess of 10 percent for instability are not warranted at any point during the period under review. The November 2010 VA examiner and the treatment provider who completed the June 2017 DBQ found no evidence of joint instability during their examinations and noted no history of recurrent subluxation. Although the Veteran testified that his knees popped out of place and caused him to fall every day, VA treatment records throughout the appeal period show that the Veteran consistently denied any falls within the past year. The Board finds the contemporaneous medical evidence to be more credible and persuasive than statements made to VA for purposes of seeking compensation. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence). The Board has also considered whether higher or separate ratings are warranted under any other potentially applicable diagnostic codes relating to disabilities of the knee. However, the record shows no evidence of ankylosis; dislocation with frequent episodes of locking and/or effusion; malunion/nonunion of the tibia and/or fibula; or genu recurvatum. Accordingly, a higher or separate rating is not warranted under another diagnostic code relating to disabilities of the knee. See 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5258, 5262, 5263 (2017). In reaching this decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against assigning the Veteran's knee disabilities ratings in excess of those already assigned, the doctrine is not for application. See Gilbert, 1 Vet. App. at 56. ORDER A rating in excess of 10 percent for limitation of motion of the left knee is denied. A separate rating of 10 percent for left knee instability is granted, subject to the laws and regulations governing the payment of VA monetary benefits. A rating in excess of 10 percent for limitation of motion of the right knee is denied. A separate rating of 10 percent for right knee instability is granted, subject to the laws and regulations governing the payment of VA monetary benefits. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs