Citation Nr: 1822331 Decision Date: 04/12/18 Archive Date: 04/25/18 DOCKET NO. 10-00 449A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to a rating in excess of 10 percent for right knee tendonitis and strain. 2. Entitlement to a rating in excess of 20 percent for right knee instability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Z. Sahraie, Associate Counsel INTRODUCTION The Veteran had active service in the United States Army from March 1979 to March 1982. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana, which granted service connection for right knee tendonitis. The RO subsequently granted a separate evaluation for right knee instability, assigning a 20 percent disability rating. The Veteran contends that he is entitled to higher evaluations for both conditions. This appeal was processed using the Virtual VA paperless claims processing system and the Veterans Benefits Management System (VBMS). Accordingly, any future consideration of this case should take into consideration the existence of these records. FINDINGS OF FACT 1. The Veteran's right knee tendonitis has been manifested by pain on motion. Testing reveals no compensable loss of flexion, with extension limited to no worse than 10 degrees, at any point during the current appeal period. 2. The most probative evidence of record demonstrates that the Veteran's right knee disability is characterized by no worse than moderate lateral instability. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for right knee tendonitis have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5010, 5260, 5261 (2017). 2. The criteria for a disability rating in excess of 20 percent for right knee instability have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5257 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to notify and assist When VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran has been provided notice letters throughout the appeal that address all notice elements required. There has been no allegation of notice error in this case. See Shinseki v. Sanders/Simmons, 556 U.S. 396 (2009). The Board has also satisfied its duty to assist. 38 U.S.C. § 5103A; 38 C.F.R. 3.159. VA has obtained all identified and available treatment records for the Veteran. In addition, the Veteran has undergone several VA examinations, most recently in July 2017. The Board finds this most recent examination adequate, because it included a review of the medical file, an interview of the Veteran, and examination findings supported by rationale. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In light of the foregoing, the Board finds that VA has provided the Veteran with every opportunity to submit evidence and arguments in support of his appeal. The Veteran has not identified any outstanding evidence that needs to be obtained. Entitlement to a rating in excess of 10 percent for right knee tendonitis and strain Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2017). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Court has held that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. 38 C.F.R. § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40 (2017). Pain on movement, swelling, deformity, or atrophy of disuse is relevant factors in regard to joint disability. 38 C.F.R. § 4.45 (2017). Painful, unstable, or malaligned joints, due to a healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59 (2017). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The United States Court of Appeals for Veterans' Claims also has recently held, that "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). Rather, pain, may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination [, or] endurance." Id., quoting 38 C.F.R. § 4.40. In this case, the Veteran's right knee disability is assigned a 10 percent disability rating for functional loss due to painful motion pursuant to 38 C.F.R. § 4.59, which allows for the assignment of the lowest compensable rating for limitation of motion available for a joint if there is acknowledged painful motion, even if the range of motion is not limited to the lowest compensable level under the applicable diagnostic code. Burton, supra. Under 38 C.F.R. § 4.71a, Diagnostic Codes 5260 and 5261 for limitation of flexion and extension, respectively, the lowest compensable rating for limitation of motion is 10 percent. Thus, this rating was assigned for the Veteran's painful motion of the right knee. See Deluca, 8 Vet. App. 202. For rating purposes, normal range of motion in a knee joint is from 0 to 140 degrees. 38 C.F.R. § 4.71, Plate II. Flexion of the leg limited to 60 degrees warrants a 0 percent rating, flexion limited to 45 degrees warrants a 10 percent rating, flexion limited to 30 degrees warrants a 20 percent rating, and flexion limited to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a, DC 5260. Extension limited to 5 degrees warrants a 0 percent rating, extension limited to 10 degrees warrants a 10 percent rating, extension limited to 15 degrees warrants a 20 percent rating, extension limited to 20 degrees warrants a 30 percent rating, extension limited to 30 degrees warrants a 40 percent rating, and extension limited to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a, DC 5261. VA's General Counsel has held that separate ratings are available for limitation of flexion and limitation of extension under Diagnostic Codes 5260 and 5261. VAOPGCPREC 9-2004 (2004). Diagnostic Code 5257 provides ratings of 10, 20, and 30 percent for recurrent subluxation or lateral instability of the knee which is slight, moderate, or severe, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The Veteran has been assigned a separate rating of 20 percent under this Diagnostic Code, as discussed below. Diagnostic Code 5258 provides a 20 percent rating may be assigned for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. Diagnostic Code 5259 provides for a 10 percent rating for symptomatic removal of the semilunar cartilage. VA's General Counsel has held that a veteran may be awarded separate ratings for arthritis with limitation of motion under Diagnostic Code 5260 or 5261 and for instability under Diagnostic Code 5257 or 5259. VAOPGCPREC 23-97 (July 1, 1997); VAOPGCPREC 9-98; see also Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991). The evidence of record consists primarily of VA treatment records, which reflect a longstanding injury of the right knee characterized by pain, and various VA examinations. The first such examination was conducted in December 2008. Range of motion testing revealed right knee flexion to 130 degrees, with extension to 0 degrees. Pain was noted between 120 and 125 degrees of flexion, with no pain on extension. There was no loss of range of motion with repeated bouts of testing. The Veteran did, however, complain of pain, weakness, stiffness, lack of endurance, and weekly flareups. Tenderness to palpation was noted on examination, but testing did not uncover weakness, effusion, instability of any kind, edema, joint heat, or abnormal movement. A degree of guarding was noted. There was no evidence of lack of endurance or incoordination with repeat testing. Although the Veteran did not demonstrate compensable loss of range of motion, a 10 percent evaluation was awarded for painful motion. The second VA examination was conducted in March 2015. The Veteran again complained of pain and weakness. The Veteran also reported a degree of joint instability, and regular use of a knee brace and cane. Range of motion testing showed flexion to 120 degrees, with extension to 10 degrees. The Veteran demonstrated less than full strength in flexion and extension. The Veteran underwent a third VA examination in December 2016. The Veteran complained of daily flareups and worsening joint stiffness. Range of motion testing showed flexion to 95 degrees, with full knee extension. There was no pain on motion at this examination, but there was evidence of pain with weight bearing. No loss of range of motion was shown after three repetitions of testing. The Veteran demonstrated full lower extremity strength. The examiner indicated the examination was ultimately consistent with the Veteran's complaints of functional loss due to pain, fatigue, weakness lack of endurance, and incoordination with repetitive use over time and during flareups. A final VA examination was conducted in July 2017. There, the Veteran demonstrated flexion to 100 degrees, with extension to 10. There was no loss of range of motion after three repetitions of testing. The Veteran demonstrated 4/5 strength in flexion and extension. He continued to complain of flareups and functional loss with repeated use over time. The examiner noted pain on testing, and indicated examination results were generally consistent with the Veteran's complaints of functional loss during flareups or with repeated use over time. After careful review of the record, the Board finds that the evidence of record does not support assigning an evaluation in excess of 10 percent right knee tendonitis because no compensable degree of limitation of motion in flexion has ever been demonstrated on objective testing, and the Veteran's demonstrated limitation of motion in extension has only been shown inconsistently, and to the absolute minimum degree contemplated by DC 5261. Specifically, the minimum compensable degree of loss of extension was shown in May 2015 and July 2017, but was not shown in December 2016. Moreover, no examination has demonstrated additional loss of extension with repeated bouts of testing, suggested the Veteran's functional loss with repeated use over time, as represented objectively by range of motion, is minimal. Accordingly, the Board finds that even when contemplated Deluca and factoring in additional functional loss due to pain and other factors, the Veteran's degree of limitation does not more closely approximate the degree of limitation contemplated by a 20 percent evaluation for limitation of motion. See Deluca, 8 Vet. App. 202. Further, the Veteran is not entitled to a 20 percent disability rating during this time period under Diagnostic Code 5003, as X-ray evidence of service-connected arthritis in two or more major joints of the right leg, and incapacitating exacerbations, have not been demonstrated. The Veteran is not entitled to a compensable evaluation under DC 5258 or 5259, because the record reveals no history of meniscal symptoms. Moreover, there is no objective evidence of ankylosis, malunion or nonunion of the tibia or fibula, or genu recurvatum with weakness and insecurity on weight-bearing. So these provisions are inapplicable. However, as explained below, the May 2015 VA examiner noted right knee instability, and the Veteran was accordingly awarded a separate 20 percent evaluation for moderate instability from the date of that examination, under DC 5257. Entitlement to a rating in excess of 20 percent for right knee instability As explained above, ratings of 10, 20, or 30 percent are awarded for recurrent subluxation or lateral instability of the knee which is slight, moderate, or severe in degree, respectively. 38 C.F.R. § 4.71a, DC 5257. At his May 2015 VA examination, the Veteran complained of right knee instability. Although the examiner's notes indicate stability testing was entirely normal, based on the Veteran's statements and his reported constant use of a brace and cane, the Veteran was afforded a 20 percent evaluation for moderate lateral instability under DC 5257. A June 2016 addendum to the May 2015 examiner's report explained the Veteran's "instability...is a progression" of his underlying right knee tendonitis. However, June 2017 VA treatment records reflect the Veteran demonstrated no instability in the knee with ligamentous testing, and his December 2016 VA examination similarly failed to reveal joint instability. The December 2016 examiner specifically noted that the Veteran was able to walk without any degree of instability. All other joint stability testing was normal on examination. At his July 2017 VA examination, the examiner noted a history of only slight lateral instability of the right knee. There was no evidence even of this slight degree of instability on testing. Although the Veteran has consistently related that he uses a knee brace and cane for ambulation, the record does not indicate either device was ever prescribed by a medical provider. Based on the evidence summarized above, the Board finds no justification for an increase to the currently assigned 20 percent evaluation for right knee lateral instability. The evidence of any degree of instability is sparse in the record, and instability has proven difficult to demonstrate on examination. The preponderance of the evidence therefore shows that lateral instability is no more than moderate, and, as such, the claim for increase must be denied. (CONTINUED ON NEXT PAGE) ORDER Entitlement to a rating in excess of 10 percent for right knee tendonitis and strain is denied. Entitlement to a rating in excess of 20 percent for right knee instability is denied. ____________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs