Citation Nr: 20002186 Decision Date: 01/09/20 Archive Date: 01/09/20 DOCKET NO. 18-09 594 DATE: January 9, 2020 ORDER Entitlement to a rating in excess of 10 percent for a right knee condition is denied. Entitlement to a rating in excess of 10 percent for a left knee condition is denied. FINDINGS OF FACT 1. The Veteran’s right knee condition did not manifest in leg flexion limited to 30 degrees; limited extension; ankylosis; effusion; tibia or fibula deficiencies; or genu recurvatum. 2. The Veteran’s left knee condition did not manifest in leg flexion limited to 30 degrees; limited extension; ankylosis; effusion; tibia or fibula deficiencies; or genu recurvatum. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for a right knee condition have not been met. 38 U.S.C. §§ 1155, 5107 (b) (2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.14, 4.25, 4.71a, Diagnostic Code 5003-5260 (2019). 2. The criteria for a rating in excess of 10 percent for a left knee condition have not been met. 38 U.S.C. §§ 1155, 5107 (b); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.14, 4.25, 4.71a, Diagnostic Code 5003-5260. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1996 to February 1998. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Increased Rating 1. Entitlement to a rating in excess of 10 percent for a right knee condition and entitlement to a rating in excess of 10 percent for a left knee condition Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the action. 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling, and pain on movement. 38 C.F.R. § 4.45. Additionally, when evaluating a musculoskeletal disability, VA must consider functional loss due to pain, weakness, excess fatigability, or incoordination. See DeLuca v. Brown, 8 Vet. App. 202, 206 (1995); 38 C.F.R. §§ 4.40, 4.45. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. The examiner should also determine the point, if any, at which such factors cause functional impairment. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017); Mitchell v. Shinseki, 25 Vet. App. 32, 43-44 (2011); see also 38 C.F.R. § 4.59. 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. The Veteran asserts that his right knee condition and left knee condition are more severe than a 10 percent disability rating. Both knees are rated under Diagnostic Code 5003-5260. When there is some limitation of motion of the specific joint or joints involved that is noncompensable under the appropriate diagnostic codes, Diagnostic Code 5003 provides for a rating of 10 percent for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. Diagnostic Code 5260 provides ratings based on limitation of flexion of the leg. Flexion of the leg limited to 60 degrees warrants a 0 percent rating. Flexion of the leg limited to 45 degrees warrants a 10 percent rating. Flexion of the leg limited to 30 degrees warrants a 20 percent rating. Flexion of the leg limited to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Diagnostic Code 5261 provides ratings based on limitation of extension of the leg. Extension of the leg limited to 5 degrees warrants a 0 percent rating. Extension of the leg limited to 10 degrees warrants a 10 percent rating. Extension of the leg limited to 15 degrees warrants a 20 percent rating. Extension of the leg limited to 20 degrees warrants a 30 percent rating. Extension of the leg limited to 30 degrees warrants a 40 percent rating. Extension of the leg limited to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Other diagnostic codes relating to the knee are Diagnostic Code 5256 for ankylosis, Diagnostic Code 5257 for recurrent subluxation or lateral instability, Diagnostic Code 5258 and 5259 for symptomatic dislocation or removal of semilunar cartilage, Diagnostic Code 5262 for impairment of tibia and fibula, and Diagnostic Code 5263 for genu recurvatum. As these conditions are not shown on credible examination of the Veteran, or in the credible medical evidence of record, the Board finds that application of these diagnostic codes is not warranted. 38 C.F.R. § 4.71a. Initially, the Board acknowledges that the Veteran’s representative asserted in a November 2019 Appellate Brief that the Veteran was last provided a VA examination in August 2015, and requested an additional VA examination. However, the record shows that the Veteran was last examined in May 2019, following a request to reschedule by the Veteran. Therefore, the Board does not find that an additional VA examination is warranted, and will proceed with adjudicating the Veteran’s claim. In a September 2014 VA treatment record, the Veteran complained of bilateral knee pain getting worse over the past 6 months. He said pain increased with ambulation and said he heard crunching when his knees bended. Upon examination, there was bilateral knee crepitus and tenderness in the right medial and left lateral joint lines. Range of motion was intact bilaterally. In a July 2015 VA examination, the Veteran said that since his injury in service, he had intermittent pain in both knees that became constant approximately 6 years ago. The Veteran did not report flare ups or functional loss. Upon examination, range of motion was the following: right knee flexion to 130 degrees and extension to 0 degrees. Range of motion itself did not contribute to functional loss. There was no pain noted on exam. There was no evidence of pain with weight bearing or evidence of localized tenderness or pain on palpation. There was objective evidence of crepitus. The Veteran was able to perform repetitive use testing with at least 3 repetitions without additional functional loss or range of motion. The Veteran was not examined immediately after repetitive use over time and the examiner determined that the exam was neither medically consistent or inconsistent with the Veteran’s statements describing functional loss with repetitive use over time. The examiner was unable to say without mere speculation whether pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over a period of time. Additional factors contributing to disability included less movement than normal due to ankylosis, adhesions, etc. There was no muscle atrophy or history of recurrent subluxation. There was no history of lateral instability or recurrent effusion. There was no joint instability, recurrent patellar dislocation, shin splints, stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment. There was no meniscal condition. It was noted that the Veteran used crutches regularly post operatively. The examiner concluded that an assessment as to whether pain, weakness, fatigability, lack of endurance or incoordination limited the functional ability or range of motion during periods of pain, flare ups or when the joint was used repeatedly over a period of time was impossible to determine/quantify without speculation. Flare ups, occupational effects and functional disabilities could not be assessed due to co morbid knee conditions. Finally, the examiner noted that physical examination of the left knee was not performed as the Veteran was 5 days post-op arthroscopic chondroplasty and lateral release. In a July 2015 VA treatment record, it was noted that the Veteran was 3 weeks status post left knee scope. The Veteran had no complaints and was walking 5 miles per day and back to work mowing lawns. Upon examination, the Veteran’s left knee was steady gait and incision healed and well approximated. Range of motion for the left knee was flexion to 115 degrees and extension to 0 degrees. In an August 2015 VA examination, the Veteran was evaluated for his left knee as it was not examined at the July 2015 VA examination. The Veteran described his pain as intermittent and dependent on how long he was on his knee and if he turned it the wrong way. It was achy and it would last 3 to 4 hours; the Veteran took Tylenol to take the edge off. The Veteran did not report flare ups. Functional loss was noted as being unable to walk more than 1.5 miles, and then would need to sit down. The Veteran said he could not stand more than 30 to 40 minutes with his bilateral knee conditions. He said that prolonged sitting more than 25 minutes caused his knee to ache and he had to stand and stretch the leg/knee out. The Veteran said that climbing stairs caused his knee to ache but that he was not sure if this was due to the surgery and would subside in time. Upon examination, range of motion was the following: left knee flexion to 130 degrees and extension to 0 degrees. Range of motion itself did not contribute to functional loss. Pain was noted on exam on flexion and extension, but did not result in/cause functional loss. There was no evidence of pain with weight bearing. There was objective evidence of localized tenderness noted as moderate tenderness to palpation of the lateral aspect of the knee consistent with recent surgery. There was evidence of crepitus. The Veteran was able to perform repetitive use testing with at least 3 repetitions without additional functional loss or range of motion. The examiner said that he was unable to say without mere speculation whether pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over a period of time; however, the Board notes that this was determined for the right knee and the Board cannot assume the examiner meant the left knee. The Veteran was not examined immediately after repetitive use over time and the examiner determined that the exam was neither medically consistent or inconsistent with the Veteran’s statements describing functional loss with repetitive use over time. The examiner said he was unable to say without mere speculation whether pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over a period of time because there was no conceptual or empirical basis for making such a determination without directly observing function under these conditions. Additional factors contributing to disability included mild swelling of the lateral knee secondary to surgery. There was no muscle atrophy or ankylosis. There was no history of recurrent subluxation or lateral instability. There was no history of recurrent effusion. The Veteran did not have recurrent patellar dislocation, shin splints, stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment. There was no meniscus condition. The Veteran did not use any assistive devices. In an August 2015 VA treatment record, the Veteran complained of chronic bilateral knee pain inferior to patella. It was worse with prolonged standing and stairs. Upon examination, the Veteran had full range of motion bilaterally, with pain retropatellar and patella tendon. The knees were stable and there was no effusion. In an October 2015 VA treatment record, the Veteran said his knees hurt all the time and he could not raise from a seated position using his legs. In the November 2015 notice of disagreement, the Veteran said that his bilateral knee condition continued to worsen. He said he lived in pain all day, with weakness in both knees. The Veteran reported that if he bent down, he almost could not get back up. The Veteran said that his VA examination was inadequate as he was never asked to bend or squat down. In a January 2016 VA treatment record, the Veteran said his knees were injured and he could not ride his bike. In a January 2017 VA treatment record, the Veteran said he was currently having pain in both of his knees. In an October 2018 VA examination, the Veteran reported that his knees had gotten worse. He said that he transferred jobs because he had difficulty climbing stairs. The Veteran said that his right knee was worse than his left knee although he had surgery to his left knee in 2015. The Veteran said that he was not able to squat or attempt to squat because of pain in both knees. The Veteran reported flare ups as intermittent episodes of severe knee pain. He reported functional loss as being unable to climb steps up or down due to knee pain. Upon examination, range of motion was the following: right knee flexion to 90 degrees and extension to 0 degrees; left knee flexion to 100 degrees and extension to 0 degrees. For both knees, range of motion contributed to functional loss with increased flexion and extension. Pain was noted on exam and caused functional loss. There was evidence of pain with weight bearing and pain on palpation at the lateral joint line. There was crepitus. The Veteran was able to perform repetitive use testing with at least 3 repetitions without additional functional loss or range of motion. The Veteran was not examined immediately after repetitive use over time for either knee and the examiner determined that the exam was neither medically consistent or inconsistent with the Veteran’s statements describing functional loss with repetitive use over time. The examiner said he was unable to say without mere speculation whether pain, weakness, fatigability, or incoordination could significantly limit functional ability when the left knee was used repeatedly over a period of time since the examiner did not observe this Veteran to perform repeated movements over a prolonged period of time during his ADL’s except during the 3 repetitive movements for the purpose of the examination. To do otherwise would simply be resorting to mere speculation. For both knees, the exam was not conducted during a flare up and the examiner determined that the examination was neither medically consistent or inconsistent with the Veteran’s statements describing functional loss during flare ups. The examiner said that he was unable to say without mere speculation whether there was additional loss of motion during flare ups or due to pain in use, weakness, fatigability or incoordination objectively as the examiner would have to measure and observe the range of motion during flare ups or due to pain on use, weakness, fatigability and incoordination objectively in the same visit. The examiner said that as the Veteran was not having a flare up today, it would only be speculative to report additional range of motion loss and whether pain, weakness, fatigability, or incoordination could significantly limit functional ability during flare ups or when the joint was used repeatedly over a period of time. Additional factors contributing to both knee conditions included less movement than normal due to ankylosis, adhesions, etc., disturbance of locomotion, and interference with standing. The Veteran reported pain with prolonged standing. There was no muscle atrophy or ankylosis. There was no history of recurrent subluxation, or lateral instability. There was mild effusion on the right medial joint line and the left lateral joint line. There was no joint instability. The Veteran did not have recurrent patellar dislocation, shin splints, stress fractures, chronic exertional compartment syndrome or any other tibial and/or fibular impairment. There was no meniscus condition. The Veteran did not use any assistive devices. The examiner concluded that review of medical records and per the Veteran there was no medical contraindication for the performance of both passive and active motion, and on both weight bearing and non-weight bearing. Both knees were symptomatic with pain. There was pain at rest but not as bad as with prolonged weightbearing. Pain with passive range of motion was not performed and there was pain reported with weightbearing. In a May 2019 addendum VA opinion, the examiner stated that pursuant to the Court’s holding in Sharp, the Veteran reported pain on bilateral knees with movement during walking and prolonged standing, but there were no changes of worsening or degrees of the range of motion during the 3 repetitive movement during the physical exam. There was no report of flare up during the exam. The examiner stated that based on the Veteran’s report of his current functionalities related to his knees, the review of the service medical record, and the physical examination today, the examiner had no basis to offer additional losses of function or motion when it came to repetitive use or during a flare up. The examiner separately added that the Veteran’s July 9, 2015 left knee arthroscopic surgery and resulting scars at the patella was due to the progression of his left knee condition. In a September 2019 addendum VA opinion, the examiner stated that the degenerative arthritis of the bilateral knees noted in 2015 and 2018 were at least as likely as not a progression of the service connected left and right patellofemoral pain syndrome. The examiner reasoned that a review of medical records showed that the Veteran had bilateral patellofemoral pain syndrome since 1998 and the X-ray in 2015 showed “tricompartmental degenerative change at the lateral facet of the patella near the median ridge.” According to the evidence-based information in the medical literature, degenerative changes in the joint was mostly related to aging because the water content of the cartilage and the protein degenerates but this was accelerated if there was a prior damage to the area and the repetitive uses caused stress to the joint. The examiner stated that the Veteran’s degenerative changes started at an earlier age which was more than likely a progression of his right and left patellofemoral pain syndrome. With the PFPS, the patella sustained a wear and tear and became inflamed and thus affecting the joint. Initially, the Board notes that the Veteran underwent left knee arthroscopy on July 9, 2015. This will be further discussed in a separate section. Overall, the Board finds that a rating in excess of 10 percent each for the right knee condition and left knee condition is not warranted. The VA examinations show that at worse, the Veteran’s right knee flexion was limited to 90 degrees and left knee flexion was limited to 115 degrees. There is no indication that either knee had flexion limited to 30 degrees. A higher additional rating is also not available for limitation of extension of either knee, as testing revealed full extension for both knees and there is no evidence that the Veteran’s symptoms manifested in functional impairment comparable to extension limited to 15 degrees. The Board acknowledges the Veteran’s statements that he feels his bilateral knee condition is more severe and that he has trouble bending and squatting; however, the competent and probative evidence of record does not show that the Veteran’s bilateral knee condition warrants a higher rating. 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, 8 Vet. App. 202. 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 addition, painful motion is an important factor of disability; and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Here, the VA examiners all indicated that on range of motion testing, repetitive use resulted in no additional limitation of motion, weakness, fatigability, discoordination, or functional impairment. In addition, the Veteran nevertheless retained range of flexion consistent with a noncompensable rating under Diagnostic Code 5260, and the compensable 10 percent rating assigned for limitation of flexion is based on the evidenced painful motion. Furthermore, the evidence simply does not support that the Veteran’s right or left knee conditions results in findings consistent with higher ratings. Thus, greater ratings for limitations of flexion is not warranted under DeLuca. While the Veteran has been shown to experience knee pain, the Court of Appeals for Veterans Claims (Court) has held that even if range of motion was 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, 25 Vet. App. at 36-38. 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. Here, the Veteran was shown to retain flexion well in excess of flexion limited to 30 degrees; as such, there is no basis for a rating in excess of 10 percent under Diagnostic Code 5260. To the extent that it is argued that the Veteran’s range of motion is painful and therefore would merit a separate compensable rating under 38 C.F.R. § 4.59, that provision states that 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. However, here, the Veteran is currently assigned compensable ratings for both knees. As such, 38 C.F.R. § 4.59 does not mandate a higher rating. Additionally, the Board notes that the July 2015 VA examiner noted limited movement due to ankylosis for the right knee, and the August 2015 VA examiner found additional contributing factors to the Veteran’s bilateral knee condition to be limited movement due to ankylosis. However, the August 2015 VA examiner then found that there was no ankylosis. Though these findings are conflicting, the overall evidence of record does not show any ankylosis found in either knee, as the Veteran maintained the ability to flex and extend the knee. Thus, the Board concludes that the Veteran’s bilateral knee condition does not include ankylosis. The Board has considered whether a separate additional rating is warranted for the Veteran’s scar on his left knee based on the August 2015 VA examination findings. To this end, the Board finds that while there is evidence of a scar on the Veteran’s left knee, the competent medical evidence of record shows that such scar is superficial, with no evidence of it being painful or unstable. Therefore, as the preponderance of evidence is against the finding that this scar meets the criteria for a compensable rating under any skin/scar diagnostic codes, a separate rating is not warranted. Finally, the Board acknowledges that the Veteran underwent a left knee arthroscopy on July 9, 2015, following reports of increased knee pain. The Board has considered the appropriateness of assigning a temporary total rating for convalescence under 38 C.F.R. § 4.30, but finds it is not warranted as the VA treatment records and surgery discharge report did not establish that the Veteran’s surgery would necessitate at least one month of convalescence and there is no evidence that the surgery resulted in severe postoperative residuals. It is noted that a July 2015 orthopedic surgery outpatient note from approximately 3 weeks following the surgery indicated that the Veteran reported no complaints other than pain of five out of ten, and reported walking 5 miles per day and being back to work mowing lawns. On examination, he was noted to have a steady gait, intact sensation without numbness or tingling, no signs of infection or tenderness to palpation, and his incisions was found to be healed and well approximated. When considering this evidence, the award of a temporary total rating for convalescence would be inappropriate. Accordingly, entitlement to disability ratings in excess of 10 percent for right knee condition and left knee condition are denied. A. SOLOMON Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Saudiee Brown, 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.