Citation Nr: 20034570 Decision Date: 05/18/20 Archive Date: 05/18/20 DOCKET NO. 16-17 864 DATE: May 18, 2020 ORDER Entitlement to a rating in excess of 10 percent for left knee instability is denied. Entitlement to a rating in excess of 10 percent for left knee limitation of motion is denied. FINDINGS OF FACT 1. The Veteran’s left knee symptoms have not been manifested by moderate recurrent subluxation and instability. 2. The Veteran’s left knee is not productive of flexion limited to 30 degrees or less. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for left knee instability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DC 5257. 2. The criteria for a rating in excess of 10 percent for left knee limitation of motion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DCs 5260-61. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 2003 to March 2007 and from May 2008 to June 2009, including combat service in Iraq and his decorations include the Combat Infantryman Badge. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided sworn testimony at a hearing before the undersigned in May 2019. This matter was previously remanded by the Board in a May 2019 decision for further development. Increased Rating Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155. Where there is a question as to which of two disability evaluations shall be applied the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. However, pyramiding, or evaluating the same manifestation of a disability under different diagnostic codes, is to be avoided. See 38 C.F.R. § 4.14. Thus, separate ratings under different diagnostic codes are only permitted if, those separate ratings are assigned based on manifestations of the Veteran’s disability that are separate and apart from manifestations for which the Veteran has already been rated. See Esteban v. Brown, 6 Vet. App. 259, 261 (1994). Separate ratings may be awarded so long as assignments of separate ratings would not result in compensating the Veteran twice for the same symptom. Lyles v. Shulkin, 29 Vet. App. 107 (2017). 1. Entitlement to a rating in excess of 10 percent for left knee instability The Veteran contends that he is entitled to a rating in excess of 10 percent for his service-connected left knee disability. The Veteran’s left knee strain is rated under Diagnostic Code (DC) 5257 for slight subluxation or lateral instability. In the May 2019 Board decision, the Veteran was granted the 10 percent rating for left knee instability and the claim was also remanded to afford the Veteran a new VA examination pursuant to the decision in Sharp v. Shulkin, 29. Vet. App. 26, 33 (2017) concerning the adequacy of VA orthopedic examinations. Under 38 C.F.R. § 4.71a, Diagnostic Code 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. 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 decision is “equitable and just.” 38 C.F.R. § 4.6. The Veteran was provided the VA examination in November 2019 for his left knee. The Veteran complained of current left knee symptoms including pain, feeling of joint weakness and instability, limited range of motion and swelling. The Veteran reported use of medication in the past including Tylenol, ibuprofen, aspirin and ice/heat topical rubs. He stated he is limited in the number of times he can go up and down on a ladder, standing after climbing a ladder, and his knee joints feel “shaky” with squatting. He also reported left knee flare-ups occurring 4-5 times a week, lasting 2-3 hours, precipitated by excessive ambulation, and alleviated by rest and weight offloading. Upon examination, the Veteran was found to have no recurrent subluxation or lateral instability of the left knee, no joint instability was found after testing, no evidence of recurrent patellar dislocation, “shin splints,” stress fractures were noted, and no use of assistive devices was needed. There was objective evidence of pain on passive range of motion testing of the left knee, but no evidence of pain on non-weight bearing testing. The VA examiner notes no change in the diagnosis of limitation of motion for the left knee, and found the left knee instability to be quiescent, as the most recent X-rays were negative for arthritis, and MRIs did not support any soft tissue problems. The Veteran did not exhibit objective evidence of instability or subluxation upon physical examination. For the purposes of determining the severity of the Veteran’s left knee instability, the Board finds that the normal joint stability tests and lack of objective evidence weighs in favor of a rating for “slight” rather than “moderate” or “severe” instability or subluxation. The evidence demonstrates that the Veteran’s left knee symptoms have more nearly approximated “slight” rather than “moderate” or “severe” recurrent subluxation or lateral instability throughout the appeal period. Furthermore, as the evidence does not show more frequent episodes of giving way or falling as a result of left knee instability, the Board finds that the preponderance of the evidence is against a disability picture that more nearly approximated “moderate” or “severe” recurrent subluxation or lateral instability at any point during the appeal period. As such, a rating in excess of 10 percent for left knee instability is not warranted. 2. Entitlement to a rating in excess of 10 percent for left knee limitation of motion The Veteran contends that he is entitled to a rating in excess of 10 percent for his service-connected left knee limitation of motion. The Veteran’s left knee limitation of motion is rated under Diagnostic Code (DC) 5260 for limitation of flexion. In the May 2019 Board decision, the Veteran was granted the 10 percent rating for left knee limitation of motion and the claim was also remanded to afford the Veteran a new VA examination pursuant to the decision in Sharp v. Shulkin, 29. Vet. App. 26, 33 (2017) concerning the adequacy of VA orthopedic examinations. Under 38 C.F.R. § 4.71a, Diagnostic Code 5260, where flexion is limited to 60 degrees, a 0 percent rating is provided; when flexion is limited to 45 degrees, 10 percent is assigned; when flexion is limited to 30 degrees, 20 percent is assigned; and when flexion is limited to 15 degrees, 30 percent is assigned. 38 C.F.R. § 4.71a. Under DC 5261, limitation of extension of the leg is rated 0 percent when limited to 5 degrees, 10 percent when limited to 10 degrees, 20 percent when limited to 15 degrees, 30 percent when limited to 20 degrees, 40 percent when limited to 30 degrees, and 50 percent when limited to 45 degrees. The Board notes that full range of motion of the knee consists of 0 degrees extension and 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. The Veteran was provided the VA examination in November 2019 for his left knee. The Veteran complained of current left knee symptoms including pain, feeling of joint weakness and instability, limited range of motion and swelling. The Veteran reported use of medication in the past including Tylenol, ibuprofen, aspirin and ice/heat topical rubs. He stated he is limited in the number of times he can go up and down on a ladder, standing after climbing a ladder, and his knee joints feel “shaky” with squatting. He also reported left knee flare-ups occurring 4-5 times a week, lasting 2-3 hours, precipitated by excessive ambulation, and alleviated by rest and weight offloading. Initial range of motion measurements upon examination showed left knee flexion to 130 degrees, with evidence of pain on weight bearing, evidence of localized tenderness, evidence of crepitus, but the range of motion did not contribute to a functional loss. Repeated use over time measured range of motion in the left knee to 80 degrees flexion, while flare-up range of motion was described as flexion to 70 degrees as pain and weakness significantly limited functional ability. No muscle atrophy and no ankylosis were noted. The Veteran’s functional impact surround activities of pain and weakness with walking limited to 45 minutes to an hour, 15 minutes on uneven ground, sitting limited to 1.5 to 2 hours, and carrying weight up and down a ladder. There was objective evidence of pain on passive range of motion testing of the left knee, but no evidence of pain on non-weight bearing testing. The VA examiner notes no change in the diagnosis of limitation of motion for the left knee, and found the left knee instability to be quiescent, as the most recent X-rays were negative for arthritis, and MRIs did not support any soft tissue problems. Additionally, the Veteran’s range of motion for limitation of extension for the left knee was noted to be limited to 130 degrees, during repeated use over time the extension was limited to 80 degrees, and during a flare-up the extension was noted in a range limited to 70 degrees. Under DC 5261, which provides ratings under limitation of extension, the examination results do not result in a disability picture that acquiesces with a compensable rating. The Board finds that the preponderance of the evidence is against a finding the Veteran is entitled to a rating in excess of 10 percent for limitation of motion for his left knee. Under DC 5260, to warrant a rating in excess of 10 percent, flexion must be limited to 30 degrees. At no time during the appeal period has the Veteran’s left knee been limited to more than 45 degrees flexion. A higher evaluation under DC 5260 of 20 percent is not warranted unless the record shows leg flexion which is limited to 30 degrees. Even considering the Veteran’s limitation of function during flare-ups, and after repetitive range of motion testing, and his reported functional limitations (e.g., discomfort with range of motion after prolonged sitting, standing, climbing stairs or ladders, as well as difficulty with squatting and walking), the Board finds that the preponderance of the evidence is against a finding the Veteran’s left knee disability warrants an increased rating for limitation of motion. A rating in excess of 10 percent is not warranted. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Zarar Ahmed, Attorney Advisor 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.