Citation Nr: 1808597 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 13-00 450A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to an initial rating in excess of 10 percent prior to January 28, 2016, and to a rating in excess of 20 percent beginning January 28, 2016, for a right knee disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD I. Cannaday, Associate Counsel INTRODUCTION The Veteran had active naval service from April 1976 to February 1980. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The Board most recently remanded the case for further development in April 2017. The case has since been returned to the Board for appellate review. The Board notes that in a February 2014 rating decision, the initial rating for the Veteran's right knee was increased to 10 percent, effective the date of entitlement to service connection. In a February 2016 rating decision, the Veteran was assigned a 20 percent rating for his right knee disability, effective January 28, 2016. Neither decision represented a total grant of benefits sought on appeal and the claim for increase remains before the Board. However, the Board has limited its consideration accordingly. FINDINGS OF FACT 1. For the entire period on appeal, the Veteran's right knee arthritis has been manifested by painful motion with full extension and flexion limited to, at worst, 100 degrees; weakness; and fatigability. 2. For the entire period on appeal, the Veteran has impairment of the right knee cartilage manifested by an avulsive tear, small joint effusion, locking, and knee pain when the joint is not in motion. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for right knee arthritis manifested by limitation of motion have not been met for the period prior to January 28, 2016. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.40, 4.59, 4.71a, Diagnostic Codes 5003, 5260, 5261 (2017). 2. The criteria for a rating of 10 percent for right knee arthritis manifested by limitation of motion for the period beginning January 28, 2016, have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.40, 4.59, 4.71a, Diagnostic Codes 5003, 5260, 5261 (2017). 3. The criteria for an initial separate rating of 20 percent, but not higher, for right knee cartilage impairment have been met for the entire period on appeal. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.59, 4.71a, Diagnostic Code 5258 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran has asserted that he is entitled to higher ratings for his left knee disability as his symptoms are worse than those contemplated by the currently assigned ratings. The Veteran was first afforded a VA examination in April 2010. At that examination, the examiner found no instability, weakness, swelling, or redness. During examination, the Veteran was able to flex his knee to 140 degrees. The examiner noted that the repetitive movements did not reveal weakness, fatigability, or pain. Additionally, the examiner noted that there was no additional limitation of motion or functional loss. The examiner noted that the Veteran had minimal degenerative changes in the medial compartment of the knee, and diagnosed the Veteran with degenerative joint disease with no functional limitation and full range of motion. At his June 2011 VA examination, the Veteran had full and painless range of motion without restriction. The Veteran had no ligament instability, or tenderness. Additionally, there was no functional loss due to any weakened movement, excessive fatigability, incoordination, or painful motion upon repetitive use. X-rays revealed arthritis in the right knee. The Veteran was afforded another VA examination in January 2014. On examination, the Veteran's right knee flexion was limited to 130 degrees, with evidence of painful motion beginning at 125 degrees. The Veteran's right knee extension ended at 0 degrees and there was no objective evidence of painful motion. The Veteran was able to perform repetitive-use testing with 3 repetitions. The Veteran's post-test flexion also ended at 130 degrees. The examiner noted that the Veteran did not have any functional loss or functional impairment of the knee. Additionally, the Veteran had normal joint stability, no evidence of patellar sublaxation, and no meniscal conditions. In his substantive appeal, the Veteran reported that his knee buckled, which caused him to fall. A May 2013 VA Medical Center treatment record showed that the Veteran had minimal medial knee compartment osteoarthritis, an avulsive tear involving the rectus femoris from its patellar attachment, and small joint effusion was present. The Veteran was provided a January 2016 VA examination. On examination, the Veteran's flexion was limited to 110 degrees, and his extension ended at 0 degrees. Pain was noted on flexion but not on extension. After observed repetitive use testing, there was no function loss or range of motion after three repetitions. On repeated use over time, the examiner noted that pain, weakness, and fatigue limited the functional ability with repeated use over a period of time. Notably, the examiner stated that the Veteran had a history of recurrent effusion. In that regard, he stated that the Veteran had intermittent swelling. The Veteran did not have any joint instability and the examiner noted that there was no history of recurrent subluxation. The examiner noted that the Veteran did not have any meniscal conditions. She also noted that the Veteran does use a wrap as an assistive device to help with locomotion. Additionally, she noted that the Veteran's knee had a functional impact on the Veteran. Specifically, that his standing tolerance is ten minutes, that his walking tolerance is ten minutes or 1 block, and that the Veteran is unable to do heavy lifting or squatting. The Veteran was afforded another VA examination in May 2017. On examination, the Veteran's flexion was limited to 105 degrees, and his extension ended at 0 degrees. The examiner noted that the Veteran had limited flexion in his right knee due to pain. She also noted that the Veteran had pain on extension. The Veteran was unable to perform repetitive use testing with at least three repetitions due to pain and weakness. The Veteran's pain and weakness significantly limited the Veteran's functional ability with repeated use over a period of time. The examiner was able to describe this in terms of range of motion. In that regard, the Veteran's flexion was limited to 100 degrees, however he was able to extend to 0 degrees. The examiner also found that there was a reduction in the Veteran's muscle strength, rating both the Veteran's flexion and extension as 4 out of 5. Similar to the previous examination, there was no joint instability, ankylosis, nor meniscal conditions noted on examination. The examiner also found that there was no evidence of pain on passive range of motion testing, no evidence of pain when joint is used on nonweight bearing, and no abnormalities on the opposing joint. As noted above, the Veteran does receive treatment at the VA Medical Center for various disabilities, to include his right knee disability. However, other than the avulsive tear and small joint effusion noted above, there is no indication from the treatment notes of record that the Veteran has right knee impairment that is worse than that reported in his various statements and the VA examination reports of record, to specifically include additional findings of limitation of motion. The Board finds that the Veteran is not entitled to an initial rating in excess of 10 percent for right knee arthritis prior to January 28, 2016. In this regard, the Board notes that there is no indication from the record that the Veteran has left knee flexion limited to30 degrees or less, or right knee flexion to 15 degrees or more. In fact, the Veteran has been shown to have right knee flexion limited to, at worst, 125 degrees and full extension. The Veteran has been assigned the 10 percent rating based solely on painful motion without significant limitation in either extension or flexion. Therefore, the Board finds that the Veteran is not entitled to an initial rating in excess of 10 percent for right knee arthritis prior to January 28, 2016. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5260, 5261 (2017). The Board finds that the Veteran is entitled to a rating of 10 percent for right knee arthritis for the period beginning January 28, 2016. In this regard, it is well established by the record that the Veteran experiences painful motion of his right knee. Therefore, a 10 percent rating for right knee arthritis based on a finding of painful motion is warranted for the entire rating period. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5260, 5261 (2017). Consideration has been giving to assigning a higher rating for right knee arthritis manifested by limitation of motion. However, there is no evidence of record indicating that the Veteran has right knee flexion limited to 30 degrees or less, or right knee flexion to 15 degrees or more. In fact, the Veteran has been shown to have right knee flexion limited to, at worst, 100 degrees and full extension. Further, the Veteran's painful motion, fatigability, and weakness are contemplated by the assignment of the 10 percent rating for right knee arthritis for the entire period on appeal. Therefore, the Board finds that entitlement to a rating in excess of 10 percent for right knee arthritis manifested by painful and/or limited motion is not warranted at any point during the period on appeal. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5260, 5261 (2017). The Board finds that the Veteran is entitled to an initial separate rating of 20 percent for right knee cartilage impairment for the entire period on appeal. In this regard, the Board notes that the Veteran has been noted to have an avulsive tear and small joint effusion in his right knee. Further, the Veteran has reported that his knee occasionally locked and caused him to fall. Additionally, the Veteran has reported knee pain that occurred when the knee was not in motion. Therefore, the Board finds that an initial separate rating of 20 percent is warranted for right knee cartilage impairment. 38 C.F.R. § 4.71a, Diagnostic Code 5258 (2017). The 20 percent rating is the maximum schedular rating for right knee cartilage impairment. Consideration has been given to assigning an additional compensable rating for the Veteran's right knee disability under another diagnostic code. However, the Board finds that while the Veteran has complained of right knee instability, there are no objective findings to support any deficiencies in the ligaments of the right knee. Further, there is no indication that the Veteran has had cartilage removed from his knee and there have been no medical findings of genu recurvatum, tibia impairment, or fibula impairment. Therefore, the Board finds that an additional separate compensable rating for the Veteran's right knee disability under another diagnostic code is not warranted. 38 C.F.R. § 4.71a, Diagnostic Codes 5257, 5259, 5262, 5263 (2017). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, to include an extraschedular rating for right knee cartilage impairment. See Doucette v. Shulkin, 28 Vet. App. 366, 368 (2017). ORDER Entitlement to an initial rating in excess of 10 percent prior to January 28, 2016, for right knee arthritis manifested by limitation of motion is denied. Entitlement to a rating of 10 percent beginning January 28, 2016, for right knee arthritis manifested by limitation of motion is granted. Entitlement to an initial separate rating of 20 percent, but not higher, for right knee cartilage impairment for the entire period on appeal is granted. ____________________________________________ Kristin Haddock Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs