Citation Nr: 19145992 Decision Date: 06/13/19 Archive Date: 06/12/19 DOCKET NO. 15-12 517 DATE: June 13, 2019 ORDER A 10 percent rating for a chondromalacia of the right knee, but no higher, is granted as of the day after separation from service, subject to the laws governing monetary benefits. A 10 percent rating for a chondromalacia of the left knee, but no higher, is granted as of the day after separation from service, subject to the laws governing monetary benefits. FINDINGS OF FACTS 1. The Veteran’s left and right knee disabilities have been painful throughout the course of the appeal. 2. Throughout the period on appeal, the Veteran’s left and right knee disability has been manifested by subjective complaints of pain and slight limitation of flexion; ankylosis, instability/subluxation, and meniscal problems have not been shown in either knee. CONCLUSIONS OF LAW 1. The criteria for a 10 percent rating for the right knee, but not higher, were met throughout the course of the appeal. 38 U.S.C. § 1155; 38 C.F.R. 4.59, 4.71a, Diagnostic Code 5256-5263. 2. The criteria for a 10 percent rating for the left knee, but not higher, were met throughout the course of the appeal. 38 U.S.C. § 1155; 38 C.F.R. 4.59, 4.71a, Diagnostic Code 5256-5263. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 2008 to September 2008, and from January 2010 to February 2013. This matter is on appeal from a January 2014 rating decision. Historically, the Veteran filed a service connection claim for a left and right knee disability while on active duty in January 2013. Pursuant to a May 2013 VA examination, the Veteran was granted service connection for both knees at a noncompensable rating, effective February 12, 2013, by a January 2014 rating decision. The Veteran then filed a timely Notice of Disagreement, asserting that a higher rating was warranted. Pursuant to a new VA examination in May 2015, a rating of 10 percent was granted for both left and right knee, by a November 2015 rating decision. Increased Rating for a Left and Right Patellar Chondromalacia Knee disabilities are rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5256 to 5263. Included within 38 C.F.R. § 4.71a are multiple diagnostic codes that evaluate impairment resulting from service-connected knee disorders, including Diagnostic Code 5256 (ankylosis), Diagnostic Code 5257 (other impairment, including recurrent subluxation or lateral instability), Diagnostic Code 5258 (dislocated semilunar cartilage), Diagnostic Code 5259 (symptomatic removal of semilunar cartilage), Diagnostic Code 5260 (limitation of flexion), Diagnostic Code 5261 (limitation of extension), Diagnostic Code 5262 (impairment of the tibia and fibula), and Diagnostic Code 5263 (genu recurvatum). Additionally, if the knee condition involves arthritis, the knee disability may be rated under provisions for evaluating arthritis. Arthritis due to trauma is rated as degenerative arthritis according to Diagnostic Code 5003. Under Diagnostic Code 5003, degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 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 for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, the disability is to be rated as follows: with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, 20 percent; with X- ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, 10 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5003. The Veteran filed his service connection claim during active duty in January 2013. Service treatment records showed that the Veteran complained of left and right knee pain upon movement. It was noted that pain was elicited at the extreme limits of the range of motion. He then separated from service on February 11, 2013. At his May 2013 VA examination, the Veteran stated that he developed bilateral knee pain after marching and running in service. He reported experiencing daily moderate bilateral mechanical knee pain during basic training. The Veteran also reported experiencing flare-ups, lasting for hours. Upon examination, his left and right knee flexion was to 140 degrees. He retained full extension in both knees. He showed no additional limited motion after a repetitive use testing. He had normal muscle strength in both flexion and extension, scoring 5 out of 5. He did not report any flare-ups. However, he reported tenderness or pain to palpation for joint line or soft tissue. The evidence did not indicate functional loss or impairment, instability, subluxation, dislocation, or meniscal condition in either the left or right knee. The Veteran was subsequently granted service connection for both his left and right knee disability at a noncompensable rating by a January 2014 rating decision, effective February 12, 2013, the day after his separation from service. In his February 2014 Notice of Disagreement, the Veteran asserted that his knees were painful every day. He was afforded a new VA examination in May 2015. There, he demonstrated a slight limited range of motion. His left and right knee flexion was to 130 degrees with pain. He retained full extension at 0 degrees in both the left and right knee. He did not report flares-ups of the knee or lower leg. He was able to perform repetitive testing without demonstrating additional limited motion. He retained full strength in both left and right knee. He reported functional loss and/or impairment, and pain with weight bearing. There was still no clinical evidence of ankylosis, muscle atrophy, recurrent subluxation, instability, effusion, or a meniscal condition. Pursuant to the May 2015 VA examination, the Veteran’s disability rating was increased to 10 percent for both the left and right knee by a November 2015 rating decision. In reviewing the record, the Board finds that a 10 percent rating is warranted for the entire period on appeal. While the Veteran did not demonstrate a left or right knee disability at a compensable rating under Diagnostic Codes 5256 to 5263 prior to May 21, 2015, the Board finds that a compensable rating based on 38 C.F.R. § 4.59 is warranted. The Board notes that 38 C.F.R. § 4.59, entitled “Painful motion,” states, in pertinent part: “The intent of the 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.” Pain was already noted in his service treatment records and he has consistently reported as such. In Burton v. Shinseki, the Court stated that the scope of § 4.59 is not limited to arthritis claims. 25 Vet. App. 1, 5 (2011). Here, the evidence reveals that the Veteran has experienced painful motion in both knees throughout the course of his appeal, which warrants at least a minimum compensable rating for the left and right knee joint pursuant to provisions of 38 C.F.R. § 4.59. However, the Board finds that a rating in excess of 10 percent is not warranted for either the left or right knee. Upon evaluation of the evidence of record, Diagnostic Code 5256 is not applicable because the evidence does not show ankylosis of the either knee. There is no allegation to the contrary. Diagnostic Code 5262 is not applicable for either knee because the Veteran’s knees do not involve the impairment of the tibia or the fibula. There is no allegation to the contrary. There is no evidence of nonunion or malunion of the knee or ankle. There is no allegation to the contrary. Furthermore, without the showing of genu recuvatum (acquired, traumatic, with weakness and insecurity in weight-bearing), a disability rating under Diagnostic Code 5263 is not warranted. There is no allegation to the contrary. A separate rating for instability under Diagnostic Code 5257 is also not warranted since mild instability must be shown. Throughout the period on appeal, the Veteran has not complained nor demonstrated any instability in either knee. Specifically, joint instability tests involving anterior instability, posterior instability, and medial lateral instability have been conducted in May 2013 and in May 2015 but were consistently found to be normal. Thus, a higher rating under diagnostic code 5257 is not warranted. Under Diagnostic Code 5259, a disability rating of 10 percent is assigned for manifestations symptomatic of the removal of semilunar cartilage, and, under Diagnostic Code 5258, a disability rating of 20 percent is assigned for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint. 38 C.F.R. § 4.71a, Diagnostic Code 5258, 5259. Given that the record does not show any clinical evidence of a meniscal condition or any surgery, neither diagnostic code 5259 nor 5258 are applicable in this case. Degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (DC 5200 etc.). 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 for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. Degenerative arthritis has not been documented in this case. The overall medical evidence indicate that the Veteran currently has patellofemoral pain syndrome in both knees, resulting in a slight limited motion. Thus, the Board will now consider whether a rating in excess of 10 percent is warranted for either knee based on limitation of motion. Under Diagnostic Code 5261, a compensable rating a 10 percent disability rating is assigned when extension is limited to 10 degrees, and a 20 percent disability rating is assigned when extension is limited to 15 degrees. A 30 percent disability rating is assigned when extension is limited to 20 degrees, and a 40 percent disability rating is assigned when extension is limited to 30 degrees. Finally, a 50 percent disability rating is assigned when extension is limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. However, a separate rating under diagnostic Code 5261 is not warranted in this case because at no point during the appeal did the Veteran demonstrate limited extension in either knee. At both his May 2013 and May 2015 VA examinations, the Veteran demonstrated full extension on range of motion testing. Under Diagnostic Code 5260, a rating in excess of 10 percent is warranted when the range of motion of a knee is functionally limited to 30 degrees or less. Here, the flexion in the Veteran’s left and right knee was most limited at the most recent examination when he had 130 degrees of flexion. As such, a rating in excess of 10 percent is not warranted for either knee based on limitation of flexion. In reaching this conclusion, the Board has considered whether a higher disability evaluation is 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. Here, as noted, the Veteran’s range of motion was most limited at his 2015 VA examination when flexion was limited to 130 degrees in both knees. However, even then, the Veteran was able to complete repetitive motion testing without experiencing additional pain or additional loss of flexion, and the examiner noted that pain, weakness, fatigability and incoordination did not significantly limit the functional ability of either knee with repeated use over a period of time. As such, the Board does not find the range of motion in either knee to be functionally limited beyond what was shown on clinical testing. No VA or private treatment records have been submitted or identified. The Veteran has submitted lay statements, testifying to his subjective complaints of pain, limited motion and mobility, and these statements have been taken into account in assigning the compensable ratings for both knees. However, the Veteran’s knees have not been shown to be so functionally limited as to warrant a rating in excess of 10 percent for either knee. However, as stated above, the Veteran’s knees have been painful throughout and therefore the 10 percent ratings should be effective the day after service. To this extent, the Veteran’s claim is granted. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N.Yeh, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.