Citation Nr: 20032007 Decision Date: 05/06/20 Archive Date: 05/06/20 DOCKET NO. 17-41 285 DATE: May 6, 2020 ORDER Entitlement to a 10 percent rating for the Veteran’s service-connected left knee disability under Diagnostic Code 5260 and a separate 10 percent rating under Diagnostic Code 5257 for the entire appeal period, is granted. FINDING OF FACT Throughout the appeal period, the Veteran’s left knee disability picture has manifested by painful motion with slight instability. CONCLUSION OF LAW Throughout the appeal period, the criteria for a 10 percent rating under Diagnostic Code 5260, and a separate 10 percent rating under Diagnostic Code 5257, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5260, 5267. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the United States Marine Corps from November 2009 to November 2014. He testified before the undersigned Veterans Law Judge (VLJ) at a Travel Board hearing in March 2020. Entitlement to a compensable rating for left knee disability prior to November 14, 2018; and a rating higher than 10 percent thereafter. The Veteran seeks entitlement to a 20 percent rating for the entire appeal period for his service-connected left knee disability. See December 2015 Notice of Disagreement. At his Board hearing, he stated that a 20 percent rating for his left knee would satisfy his appeal. See Board Hearing Transcript, pg. 7. Disability evaluations are determined by application of criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. 38 C.F.R. § 4.40. Consideration is to be given to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse, instability of station, or interference with standing, sitting, or weight bearing. Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. This regulation also requires that, whenever possible, the joints involved are 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. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The December 2018 VA examination report contains these measurements. 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). Under Diagnostic Code 5260, a noncompensable rating is warranted when flexion is actually or functionally limited to 60 degrees. To receive a rating of 10 percent, limitation of flexion of the leg must be actually or functionally limited to 45 degrees. To receive a rating of 20 percent, limitation of flexion of the leg must be actually or functionally limited to 30 degrees. See 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5261, a noncompensable rating is warranted when extension is actually or functionally limited to 5 degrees. A 10 percent rating is warranted when limitation of extension is to 10 degrees. A 20 percent rating is warranted when limitation of extension is to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. 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. Normal range of motion of the knee is to zero degrees extension and to 140 degrees flexion. See 38 C.F.R. § 4.71a, Plate II. By a January 2015 rating decision, the Veteran was granted service connection for left knee fracture. He was assigned a noncompensable rating under Diagnostic Code 5260, limitation of motion, effective November 16, 2014. This is the day after he was discharged from service. The Veteran disagreed with that decision in a December 2015 NOD, and as noted above, stated that he was requesting a 20 percent rating. By a March 2019 rating decision, the RO increased the Veteran’s left knee disability rating to 10 percent, effective November 14, 2018, which the RO stated was “the date we received your intent to file.” However, the Veteran’s left knee disability increased rating claim has been active since the January 2015 rating decision. The issue before the Board concerns the Veteran’s initial rating, as opposed to an increased rating dating from November 14, 2018. After thoroughly reviewing the claims file, the Board finds that a 10 percent rating is warranted under Diagnostic Code 5260 for the entire appeal period. In addition, given the Veteran’s documented reports of his left kneecap dislocating throughout the appeal period, a separate 10 percent rating is warranted under Diagnostic Code 5257. Therefore, the Veteran’s left knee rating is increased to 20 percent (when combining) and, as stated by the Veteran at his Board hearing, this represents a full grant of the benefit sought on appeal. The Veteran’s service treatment records document pain and swelling in the left knee following an injury playing football. An April 2011 MRI showed an avulsion fracture adjacent to the medial patella, most likely related to patellar dislocation and tear of the medial retinaculum. There was moderate sized joint effusion. Knee joint pain was noted until the Veteran’s discharge. See e.g. April 2014 and May 2014 Service Treatment Records. The Veteran’s VA treatment records document complaints of pain and instability in the left knee throughout the appeal period. They also document VA prescribing the Veteran a brace to wear for his left knee. On VA examination in September 2014, the Veteran stated “[my left knee] condition has affected my left leg since the injury, I have sprained my left ankle four times and dislocated the kneecap three times.” He reported flare-ups in the form of pain while running/jumping. He had left knee flexion to 140 degrees with normal extension and no objective evidence of painful motion. He did not have any additional loss of motion on repetitive use. Joint stability testing was normal and there was no evidence of recurrent patellar subluxation/dislocation. No meniscus (semilunar cartilage) condition was noted. The were no contributing factors of weakness, fatigability, incoordination or pain during flare-ups or repeated use over time that could additionally limit the functional ability of the knee joint. On his December 2015 NOD, the Veteran stated: It is the hyperextended and torn ligament in my knee that is the issue. The weakened area causes daily pain (I take 400-800mg of ibuprofen every day) and has significantly impacted my ability to perform normal tasks such as running or sports . . . My kneecap also dislocates rather frequently with lateral pressure, which puts me out of commission for a few days due to swelling and pain. To be clear, the original injury was sustained during unit PT and my ligament smeared off a portion of my kneecap, in the process the ligament hyperextended and partially tore. As a result, the Veteran was afforded another VA examination in December 2018. On examination, he reported constant pain with decreased mobility worse with cold weather and physical activity such as climbing, squatting, and playing sports. He reported taking Tylenol daily and wearing a knee brace with some relief. He reported flare-ups which caused sharp stabbing pain to the left knee with physical activity, running, and cold weather. Flare-ups occur four times a week, last approximately one day, and are an eight out of 10 in severity. He has flexion to 135 degrees and extension to zero degrees. Pain was noted on examination but did not result in or cause functional loss. There was mild tenderness to palpation of the anterior left knee joint line. The examiner stated that he was unable to say without mere speculation whether pain, weakness, fatigability or incoordination significantly limits the Veteran’s functional ability during a flare-up. He also stated he would not be able to describe the functional loss in terms of range of motion. Joint stability testing was normal, and no meniscus condition was demonstrated. Occasional use of a brace was noted. The Veteran’s VA treatment records support this. There was no objective evidence of pain on passive motion but there was objective evidence of pain in non-weight bearing. The examiner explained that the Veteran’s diagnosis was patellofemoral pain syndrome which was a progression of his left knee patella avulsion fracture. The evidence of record shows that the Veteran experiences pain in his left knee with physical activity as well as during flexion. In addition, he has consistently reported that his kneecap dislocates, causing severe pain. On review of the VA examination reports, it is clear that the Veteran does not meet the criteria for a 10 percent rating based on range of motion alone. That is, at worst, the Veteran has demonstrated flexion to 135. In order to warrant a 10 percent rating based on range of motion flexion must be limited to 60 percent. However, the Veteran has demonstrated painful motion. As a result, the RO granted a 10 percent rating for the Veteran’s knee effective November 14, 2018. However, a review of the record clearly shows that the Veteran has consistently reported painful motion throughout the appeal period. As such, the Board finds that a 10 percent rating based on limitation of motion under Diagnostic Code 5260, but no higher, is warranted for the entire appeal period. In addition to the painful motion, the Veteran has consistently reported instability in his kneecap. He has stated that his kneecap becomes dislocated which causes severe pain. Although joint stability testing has consistently been normal, the Veteran is competent to report that his kneecap dislocates and causes his knee to become extremely painful. Thus, the Board finds that a separate 10 percent rating is warranted under Diagnostic Code 5257 for the entire appeal period. Although the Veteran sometimes experiences kneecap dislocation, he has not reported that this happens on a frequent basis such that a higher 20 percent rating would be warranted. Regardless, as noted above, the Veteran has limited his appeal to entitlement to a 20 percent rating for his left knee, which has been achieved through two separate 10 percent ratings under separate Diagnostic Codes. By awarding two separate 10 percent ratings, the Board is able to compensate him for each of his well-documented symptoms, which has been pain on flexion and kneecap dislocation. These ratings adequately compensate the Veteran for the functional impairment caused by these symptoms. The Veteran has not contended, and the evidence does not otherwise suggest, that he experiences left knee ankylosis, removal of the semilunar cartilage, dislocation of the semilunar cartilage with frequent episodes of locking, pain and effusion into the joint, limitation of extension warranting a higher rating, impairment of the tibia, or genu recurvatum, such that Diagnostic Codes 5256, 5258, 5259, 5261, 5262, and 5263, would warrant higher ratings. The Board acknowledges that the most recent VA examination is not compliant with Sharp v. Shulkin, 29 Vet. App. 25 (2017). The examiner did not provide an adequate examination for his inability to estimate motion loss in terms of degrees during periods of flare-ups. However, given that this decision fully satisfies the Veteran’s appeal, no benefit would flow to the Veteran by remanding his claim for clarification. See Sabonis v. Brown, 6. Vet. App. 426 (1994) (holding that remands that would only result in imposing additional burdens on VA, with no benefit flowing to the claimant, are to be avoided).   In sum, although the Veteran has not demonstrated compensable limitation of flexion, the Board finds that a 10 percent rating is warranted for the entire appeal period based on painful motion. Similarly, although the Veteran’s joint stability testing has been consistently normal, the Board has accepted the Veteran’s lay reports regarding kneecap dislocation, and finds that a separate 10 percent rating is warranted under Diagnostic Code 5257 to compensate him for the impairment caused by his left kneecap dislocating. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Martha R. Luboch, 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.