Citation Nr: 1807107 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 11-30 869 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to increased initial ratings for a right knee disability rated as noncompensably disabling prior to August 19, 2013, and as 10 percent disabling since that date. REPRESENTATION Appellant represented by: Kentucky Department of Veterans Affairs ATTORNEY FOR THE BOARD A. Cryan, Counsel INTRODUCTION The Veteran had active duty service from October 2006 to March 2010. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In a November 2013 rating decision, the RO granted an increased, 10 percent disability rating for the Veteran's right knee disability, and assigned an effective date of August 19, 2013. The Board remanded the claim on appeal for additional development in July 2015 and June 2017. FINDINGS OF FACT 1. Prior to August 19, 2013, the weight of the evidence is against a finding that the Veteran's right knee disability is manifested by instability or joint line pain or tenderness; the Veteran demonstrated full range of motion in his right knee, and his range of motion has not been shown to be so functionally limited as to warrant a rating in excess of 10 percent; the Veteran has not been shown to experience locking or effusion in his right knee; and semilunar cartilage has not been removed from his right knee; ankylosis has not been shown in the Veteran's right knee. 2. Since August 19, 2013, the weight of the evidence is against a finding that the Veteran's right knee disability is manifested by instability; the Veteran's right knee is painful or tender on palpation of the joint line; however, even considering impairment caused by factors such as pain, weakness, stiffness, fatigability, and lack of endurance, the Veteran has consistently demonstrated range of motion in his left knee from 0 degrees to more than 60 degrees, and his range of motion has not been shown to be so functionally limited as to warrant a rating in excess of 10 percent; the Veteran has not been shown to experience locking or effusion in his right knee; and semilunar cartilage has not been removed from his right knee; ankylosis has not been shown in the Veteran's right knee. CONCLUSIONS OF LAW 1. Prior to August 19, 2013, criteria for an initial compensable rating for a right knee disability have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5299-5260 (2017). 2. Since August 19, 2013, criteria for an initial rating in excess of 10 percent for a right knee disability have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5299-5260 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Assist As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records and VA treatment records have been obtained. The Board remanded the claim to schedule the Veteran for a VA examination. The Veteran was afforded a VA examination. Neither the Veteran nor his representative has asserted that any records remained outstanding that were needed to give fair consideration to the Veteran's claim decided herein. As such, because the Board's order was fully complied with, there is no prejudice for the Board to proceed. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran was provided with several VA examinations (the reports of which have been associated with the claims file), which the Board finds to be adequate for rating purposes. Additionally, the VA examiners had a full and accurate knowledge of the Veteran's disability and contentions, and grounded the findings on objective testing and the evidence of record. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Moreover, neither the Veteran nor his representative has objected to the adequacy of any of the examinations conducted during this appeal. See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011). As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. Increased Rating For historical purposes, the Veteran submitted a claim for service connection for a right knee disability in January 2010. The Veteran was granted a noncompensable rating for his right knee disability pursuant to Diagnostic Code 5260 for limitation of flexion. 38 C.F.R. §4.71a. The Veteran disagreed with the rating assigned, and this appeal ensued. As noted, in a November 2013 rating decision, the Veteran's disability rating was increased to 10 percent effective August 19, 2013. At a January 2010 VA examination, the Veteran endorsed weakness, stiffness, giving way, and pain. The examiner indicated that the Veteran was status-post arthropathy and ambulated with a right knee brace. He did not require the use of crutches, a cane, corrective shoe, a wheelchair, prosthesis, or a walker. Clinical evaluation of the right knee revealed no signs of edema, instability, abnormal movement, effusion, weakness, tenderness, redness, malalignment, drainage, subluxation, or guarding of movement. Range of motion testing revealed flexion to 140 degrees bilaterally and extension to 0 degrees bilaterally. The examiner indicated that joint function is not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination on repetitive use. The examiner indicated that right knee stability tests were within normal limits for all ligaments and the medial and lateral meniscus. Additionally there was no sign of subluxation. X-rays of the right knee were within normal limits. The examiner diagnosed the Veteran with status post arthopathy of the right knee. At an August 2013 VA examination, the Veteran reported pain during flare-ups. Range of motion testing of the bilateral knees revealed flexion to 140 degrees and extension to 0. The Veteran did not have any additional loss of motion of either knee with repetitive use testing. On clinical evaluation the examiner noted the Veteran's right knee is painful or tender on palpation of the joint line. Joint stability testing was normal and there was no evidence or history of recurrent patellar subluxation or dislocation. Additionally, there was no evidence of any meniscal conditions. X-rays of the right knee did not reveal arthritis or patellar subluxation. At an April 2016 VA examination, the examiner diagnosed the Veteran with patellofemoral pain syndrome of the right knee. Range of motion testing of the bilateral knees revealed flexion to 125 degrees and extension to 0 degrees. The examiner indicated that there was no objective evidence of pain or tenderness on palpation of the joint line. The Veteran was able to perform three repetitions of motion with no additional loss of motion of either knee. The examiner indicated that functional ability was not additionally limited by pain, weakness, fatigability, or incoordination. The examiner reported that there was no history of recurrent subluxation, lateral instability, or a history of recurrent effusion. There was neither tibial nor fibular impairment nor any meniscal conditions. The Veteran did not require the use of any assistive devices to ambulate. The examiner indicated that diagnostic testing indicated arthritis. At an August 2017 VA examination, the Veteran reported flare-ups of pain and stiffness two to three times per month. He denied giving way or significant loss of motion during flare-ups and he ambulates without any assistive devices. Range of motion testing of the right and left knees revealed flexion to 140 degrees and extension of 0 degrees. The Veteran was able to perform three repetitions of motion of both knees with no additional loss of motion. The examiner indicated that there was no additional function ability due to pain, weakness, fatigability, or incoordination. The examiner reported that the Veteran did not have any pain on active or passive range of motion or with weightbearing or nonweightbearing of either knee. The examiner concluded that there was no functional limitation associated with the right knee disability. With regard to the contralateral left knee, the examiner also noted that physical examination of the left knee was essentially normal with no reported ongoing symptoms. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Board notes that while the regulations require review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the Veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). It is also noted that staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The Court of Appeals for Veterans Claims (Court) has held that the final sentence of § 4.59 creates a requirement that certain range of motion and other testing be conducted whenever possible in cases of joint disabilities. Correia v. McDonald, 28 Vet. App. 158 (2016). Under 38 C.F.R. § 4.71a, Diagnostic Code 5260, a noncompensable rating is assigned when flexion of the leg is limited to 60 degrees; a 10 percent rating is assigned when flexion is limited to 45 degrees; a 20 percent rating is assigned when flexion is limited to 30 degrees; and a 30 percent rating is assigned when flexion is limited to 15 degrees. 38 C.F.R. § 4.71, Diagnostic Code 5260. Under Diagnostic Code 5261, a noncompensable rating is assigned when extension of the leg is limited to 5 degrees; a 10 percent rating is assigned when extension of the leg is limited to 10 degrees; and a 20 percent rating is assigned when extension is limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Period prior to August 19, 2013 Having reviewed the evidence as reported above, the Board has determined that the Veteran's service-connected right knee does not warrant a compensable rating prior to August 19, 2013. At the examination conducted in January 2010, range of motion of the right knee revealed full flexion at 140 degrees and full extension at 0 degrees. As such, neither extension limited to 10 degrees nor flexion limited to 45 degrees has been shown during the relevant time period on appeal. Therefore, even a compensable knee rating is not warranted based on the demonstrated ranges of motion. 38 C.F.R. 4.71a, Diagnostic Codes 5260, 5261. In reaching this conclusion, the Board has considered whether compensable disability evaluations are warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. In this case, there was no objective evidence of pain with range of motion testing. Moreover, at no time did pain limit the Veteran's ranges of motion. Consequently, pain was not found to cause functional limitation to the point that a compensable rating would be warranted. Moreover, even if flexion or extension were slightly limited by pain, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 36-38 (2011) (emphasis added). Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id. at 43; see 38 C.F.R. § 4.40. In this case, it does not because as noted, the VA examiner of record specifically found that repetitive motion was not shown to further limit range of motion in the right knee. The Board has also considered whether higher ratings are warranted under any other relevant Diagnostic Codes. Under 38 C.F.R. § 4.71a, 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 30 percent rating is warranted for severe recurrent subluxation or lateral instability. In this case, there is no evidence of recurrent subluxation or lateral instability. Instability of the right knee was not found on joint stability testing when performed at the VA examination of record. Consequently, a separate compensable rating for the right knee disability under Diagnostic Code 5257 is not warranted. Under 38 C.F.R. § 4.71a, Diagnostic Code 5258, a 20 percent rating is assigned for dislocated semilunar cartilage with frequent episodes of "locking", pain and effusion into the joint. Under 38 C.F.R. § 4.71a, Diagnostic Code 5259, a 10 percent rating is assigned for symptomatic removal of symptomatic semilunar cartilage. Semilunar cartilage is synonymous with the meniscus. The VA examiners of record specifically found that there is no evidence of any meniscal conditions. Consequently, a separate compensable rating is not warranted for the right knee under either Diagnostic Codes 5258 or 5259. Diagnostic Code 5262 pertains to impairment of the tibia and fibula. A 10 percent rating is warranted for malunion of the tibia and fibula with slight knee or ankle disability; a 20 percent rating is warranted for malunion of the tibia and fibula with moderate knee or ankle disability; and a 30 percent rating is warranted for malunion of the tibia and fibula with marked knee or ankle disability. A 40 percent rating is warranted for nonunion of the tibia and fibula with loose motion and requiring a brace. There is no evidence of malunion or nonunion of the tibia and fibula at any of the examinations of record. The only other Diagnostic Codes pertaining to the knee are Diagnostic Code 5256 (ankylosis of the knee) and 5263 (genu recurvatum). The Veteran does not warrant compensable ratings under any of these Diagnostic Codes as neither of these conditions have been shown. As such, a compensable rating is not warranted for the Veteran's right knee disability for the relevant appeal period at issue. Period since August 19, 2013 Having reviewed the evidence as reported above, the Board has determined that the Veteran's service-connected right knee does not warrant a rating in excess of 10 percent at any time during the relevant period on appeal. At the examinations conducted in August 2013, April 2016, and April 2017, range of motion of the right knee revealed flexion limited to no worse than 125 degrees. Additionally, range of motion testing of the right knee revealed full extension at 0 degrees at all examinations. As such, neither extension limited to 10 degrees nor flexion limited to 45 degrees has been shown during the relevant time period on appeal. Therefore, even a compensable knee rating is not warranted based on the demonstrated ranges of motion. 38 C.F.R. 4.71a, Diagnostic Codes 5260, 5261. However, the Veteran was awarded a 10 percent rating for decreased flexion. In reaching this conclusion, the Board has considered whether compensable disability evaluations are warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. In this case, at times, the Veteran reported experiencing pain with range of motion testing. However, at no time did pain further limit the Veteran's ranges of motion. Consequently, pain was not found to cause functional limitation to the point that higher ratings would be warranted. Moreover, even if flexion or extension were slightly limited by pain, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 36-38 (2011) (emphasis added). Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id. at 43; see 38 C.F.R. § 4.40. In this case, it does not because as noted, the VA examiners of record specifically found that repetitive motion was not shown to further limit range of motion in the right knee. The Board has also considered whether higher ratings are warranted under any other relevant Diagnostic Codes. Under 38 C.F.R. § 4.71a, 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 30 percent rating is warranted for severe recurrent subluxation or lateral instability. In this case, there is no evidence of recurrent subluxation or lateral instability. Instability of the right knee was not found on joint stability testing when performed at the VA examinations of record. Consequently, a separate compensable rating for the right knee disability under Diagnostic Code 5257 is not warranted. Under 38 C.F.R. § 4.71a, Diagnostic Code 5258, a 20 percent rating is assigned for dislocated semilunar cartilage with frequent episodes of "locking", pain and effusion into the joint. Under 38 C.F.R. § 4.71a, Diagnostic Code 5259, a 10 percent rating is assigned for symptomatic removal of symptomatic semilunar cartilage. Semilunar cartilage is synonymous with the meniscus. The VA examiners of record specifically found that there is no evidence of any meniscal conditions. Consequently, a separate compensable rating is not warranted for the right knee under either Diagnostic Codes 5258 or 5259. Diagnostic Code 5262 pertains to impairment of the tibia and fibula. A 10 percent rating is warranted for malunion of the tibia and fibula with slight knee or ankle disability; a 20 percent rating is warranted for malunion of the tibia and fibula with moderate knee or ankle disability; and a 30 percent rating is warranted for malunion of the tibia and fibula with marked knee or ankle disability. A 40 percent rating is warranted for nonunion of the tibia and fibula with loose motion and requiring a brace. There is no evidence of malunion or nonunion of the tibia and fibula at any of the examinations of record. The only other Diagnostic Codes pertaining to the knee are Diagnostic Code 5256 (ankylosis of the knee) and 5263 (genu recurvatum). The Veteran does not warrant compensable ratings under any of these Diagnostic Codes as neither of these conditions have been shown. As such, a schedular rating in excess of 10 percent is not warranted for the right knee disability. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). ORDER Entitlement to an increased rating for a right knee disability rated as noncompensably disabling prior to August 19, 2013, and as 10 percent disabling since that date is denied. ____________________________________________ KELLI A. KORDICH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs