Citation Nr: 20002985 Decision Date: 01/14/20 Archive Date: 01/14/20 DOCKET NO. 14-36 542 DATE: January 14, 2020 ORDER An increased rating for left knee strain is denied. FINDINGS OF FACT 1. There is no objective evidence of recurrent subluxation or lateral instability throughout the appeal period, and the Veteran complained of only occasional buckling. 2. At times during the appeal period, the Veteran’s left knee has demonstrated flexion limited to 30 degrees, but with no limitation of extension and no evidence of the presence of dislocated semilunar cartilage. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent for left knee strain have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.105(e), 3.344, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5257, 5258, 5259, 5260, 5261 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from June 1980 to June 1983. This matter was previously before the Board in May 2018 at which time the issue on appeal was remanded for further evidentiary development. Also remanded were service connection claims for bilateral hearing loss, tinnitus, and an acquired psychiatric disorder. In an October 2019 rating decision, service connection was granted for all three claims, and they are no longer before the Board. In November 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the proceeding has been associated with the claims file. Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Whether the issue is one of an initial rating or an increased rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; separate ratings may be assigned for distinct disabilities resulting from the same injury only where the symptomatology for one condition is not duplicative or overlapping with the symptomatology of the other condition. See 38 C.F.R. § 4.14; see also Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of his symptoms. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). The Court of Appeals for Veterans Claims (Court), in Correia v. McDonald, 28 Vet. App. 158 (2016), held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Thus, the Court’s holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate. Further, in evaluating joint disabilities, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. at 592. Additionally, the Court has stated that flare-ups must be factored into an examiner’s assessment of functional loss. Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating 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. Under DC 5257, slight recurrent subluxation or lateral instability will be rated as 10 percent disabling, moderate recurrent subluxation or lateral instability will be rated as 20 percent disabling, and severe recurrent subluxation or lateral instability warrants a 30 percent rating. Other diagnostic codes relevant to knee disabilities include DC 5256-DC 5263. Under DC 5256, favorable ankylosis of the knee, in full extension or in slight flexion between 0 degrees and 10 degrees warrants a 30 percent disability rating; ankylosis in flexion between 10 degrees and 20 degrees warrants a 40 percent disability rating; ankylosis in flexion between 20 degrees and 45 degrees warrants a 50 percent disability rating; and extremely unfavorable ankylosis in flexion at an angle of 45 degrees or more warrants a 60 percent disability rating. Under DC 5258, a claimant is entitled to a 20 percent rating for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the joint. Under DC 5259, a 10 percent evaluation is assigned for symptomatic removal of semilunar cartilage. Under DC 5260, flexion of the leg limited to 60 degrees is rated noncompensably (0 percent) disabling; flexion of the leg limited to 45 degrees is rated 10 percent disabling; flexion of the leg limited to 30 degrees is rated 20 percent disabling; and flexion of the leg limited to 15 degrees is rated 30 percent disabling. Under DC 5261, extension of the leg limited to 5 degrees is rated noncompensably (0 percent) disabling; extension of the leg limited to 10 degrees is rated 10 percent disabling; extension of the leg limited to 15 degrees is rated 20 percent disabling; extension of the leg limited to 20 degrees is rated 30 percent disabling; extension of the leg limited to 30 degrees is rated 40 percent disabling; and extension of the leg limited to 45 degrees is rated 50 percent disabling. Under DC 5262, 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. A 30 percent rating is warranted for malunion of the tibia and fibula with marked knee or ankle disability. A maximum 40 percent rating is warranted with nonunion of the tibia and fibula, with loose motion, requiring a brace. Under DC 5263, a 10 percent rating is assigned for genu recurvatum, acquired traumatic, with weakness and insecurity in weight-bearing objectively demonstrated. Normal ranges of motion of the knee are to 0 degrees in extension, and to 140 degrees in flexion. 38 C.F.R. § 4.71, Plate II. The terms “mild,” “moderate,” and “severe” are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. It should also be noted that use of terminology such as “mild” or “moderate” by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding a higher rating. 38 C.F.R. §§ 4.2, 4.6. Turning to the evidence of record, the Veteran received bilateral knee braces in October 2009. He underwent a VA examination in July 2010. He reported a popping sensation and intermittent knee pain. The examiner stated that he had absolutely no symptoms of a knee strain. The Veteran reported no true flare-ups, had no inflammatory joint disease, and no incapacitating events. He stated that he used a cane for nonservice-connected conditions (right foot diabetic ulcer and morbid obesity [he weighed 290 pounds on a 70-inch frame) and a knee brace for his service-connected left knee disability. He reported that he used Tylenol for pain which did not help. The examiner noted that the left knee did not appear to cause the Veteran any particular disability other than some minor pain with ambulation. He had no tenderness or swelling around the patella nor the medial or lateral aspect of the joint. The examiner stated that the Veteran was uncooperative in the examination and that he would only flex the left knee to 30 degrees because the Veteran used extreme strength to prevent it flexing any further. The examiner concluded that this was an obvious sign of an absolutely normal knee, since if he had had any kind of pain, weakness, or fatigue, he would not have been able to prevent further flexion. The Veteran was uncooperative in both active and passive range of motion testing. Lateral and medial stress of the knee showed no laxity of the lateral or medial collateral ligaments and testing indicated intact anterior and posterior cruciate ligaments. He ambulated without the appearance of discomfort. X-rays were within normal limits with no evidence of acute fracture or dislocation, no significant joint space narrowing or degenerative spurring, and no joint effusion. The examiner determined that the Veteran had no pain in the knee. A September 2010 VA record noted that there was no swelling in the left knee with limited flexion and pain with movement. An x-ray conducted in October 2010 revealed mild medial and lateral joint space narrowing, indicating mild degenerative joint disease (DJD). The Veteran went to a few physical therapy appointments in December 2010 at which range of motion was variously noted as 0 to 30 degrees in flexion with four out of five strength on one occasion, and 0 to 85 degrees in flexion with mild crepitus, on another occasion. In January 2011, a VA clinician observed no swelling or erythema in the left knee and recorded “limited flexion to 20 degree 2/2 pain.” The Veteran received a corticosteroid injection in his left knee. Another x-ray conducted in April 2011 revealed minimal degenerative arthritic changes at the medial, lateral, and patellofemoral compartments of the knee. A VA clinician observed in August 2011 that there was no effusion or erythema in the left knee and the Veteran had full range of motion. There was some joint line tenderness noted. Two November 2011 VA records also noted no effusion, heat, or tenderness in the left knee prior to corticosteroid injections. An x-ray from May 2012 demonstrated very early degenerative changes in the femoral acetabular joint space. The Veteran received another injection in the left knee. In June 2012 he received replacement bilateral knee braces. The Veteran underwent another VA examination in March 2013. He described pain, stiffness, and limited motion in the left knee with intermittent swelling. He felt that the knee buckled sometimes. He was treated with injections, Tylenol, Tylenol 3, and Tramadol as needed, and he reported he constantly used a knee brace and cane. He reported no incapacitating events. He described the impact of flare-ups as limiting walking. Upon examination, flexion was to 110 degrees with pain at 80 degrees and extension was to 0 degrees without objective evidence of painful motion. Range of motion was the same after repetitive use. The only functional impairment was pain on movement. Pain was observed upon palpation, as well. Muscle strength testing and joint stability testing were normal and there was no history of recurrent subluxation or dislocation. At a September 2014 VA appointment, the Veteran reported aching, arthritic-like pain, increased by exercise, prolonged walking, and prolonged standing. He stated that the pain came and went. At the November 2017 hearing, the Veteran reported that he did not really undergo current treatment for his left knee disability but had previously taken pain medication and self-medicated with alcohol and marijuana. He described constant pain and falling occasionally when he lost balance. In physical therapy sessions in May 2019 after the Veteran underwent nonservice-connected toe amputations it was noted several times that he had no buckling or knee instability and range of motion was within normal limits. A new knee brace was issued in June 2019. Another VA examination was conducted in August 2019 which diagnosed left knee strain and degenerative arthritis in the left knee. The Veteran described constant, sharp and throbbing pain at a 10 out of 10 in severity. He did not report flare-ups but did report functional impairment of difficulty with walking, kneeling, going up or down stairs, and sitting. Upon examination, flexion was to 120 degrees and extension was to zero degrees with pain on both movements. The examiner determined that such pain did not contribute to a functional loss. There was severe localized tenderness or pain on palpation, and pain with weight-bearing, nonweight-bearing, and passive range of motion. After repetitive use, flexion was limited to 110 degrees with pain and a lack of endurance. With repeated use over time, the examiner determined that flexion would be limited to 110 degrees and pain, fatigue, weakness, lack of endurance, and incoordination would result. Additional factors included interference with sitting and standing. Muscle strength was normal and there was no history of recurrent subluxation, lateral instability, or effusion. Joint stability testing could not be conducted due to pain. The Veteran reported regular use of a brace and cane and occasional use of a walker. The examiner determined that the diagnosis of degenerative arthritis was a progression of the earlier left knee strain diagnosis. The Board finds that the VA examinations of record are adequate to determine the nature, extent, and severity of the Veteran’s left knee disability. Although joint stability testing could not be conducted at the August 2019 examination due to pain, the additional impairment in terms of degrees of range of motion were estimated after repetitive use over time. Further, the examiner found that the examination was consistent with the Veteran’s own description of his additional limitations with repetitive use, and found that pain, fatigue, weakness, lack of endurance, and incoordination would cause additional functional loss. DeLuca v. Brown, 8 Vet. App. At 202; Sharp v. Shulkin, 29 Vet. App. at 32. Further, the requirements of Correia, were addressed. Correia v. McDonald, 28 Vet. App. at 158. The Board notes that there is no objective evidence of recurrent subluxation or lateral instability during the appeal period. At one point during the appeal period, the Veteran described buckling, although numerous clinicians observed no subluxation, instability, or buckling. In view of that, the severity of the Veteran’s disability under DC 5257 can at best be characterized as slight, warranting a 10 percent evaluation. Without any observed symptomology and only one mention of buckling by the Veteran himself, a higher evaluation is not warranted. Throughout the entire appeal period, the Veteran’s left knee has demonstrated varying limitation of flexion. Although the July 2010 VA examination demonstrated a lack of cooperation by the Veteran thus bringing any range of motion testing results into question, at additional times throughout the appeal period the Veteran’s flexion appears to have been limited to 20 or 30 degrees would warrant no more than a 20 percent rating under DC 5260. (Continued on the next page)   There is no evidence of ankylosis, involvement of the semilunar cartilage, compensable limitation of extension, impairment of the tibia and fibula, or genu recurvatum. As such, the criteria do not permit a higher evaluation. Accordingly, an evaluation in excess of 30 percent for the Veteran’s left knee disability is not warranted. MICHAEL KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Rachel E. Jensen, 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.