Citation Nr: 20044067 Decision Date: 06/30/20 Archive Date: 06/30/20 DOCKET NO. 15-37 211 DATE: June 30, 2020 ORDER Entitlement to a rating in excess of 10 percent for right knee strain is denied. FINDING OF FACT The Veteran's right knee range of motion under repetition is flexion 100 degrees and extension to 0 degrees; with symptoms of pain but without flareups; muscle atrophy, ankylosis, instability, or clinical indications of recurrent patellar dislocation. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for a right knee strain are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5260 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army from June 2006 until April 2011 with combat service in Afghanistan. The Veteran is the recipient of a Purple Heart Medal and Combat Action Badge. This matter comes before the Board of Veterans’ Appeals on appeal from a June 2020 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, AZ. The Veteran testified at a hearing before the undersigned Veterans’ Law Judge in November 2018. The hearing transcript is associated with the claims file. This case was previously before the Board in March 2019, at which time it was remanded for a new VA examination. The examination was necessary to determine the current severity of the Veteran’s right knee disability because he testified that his disability had worsened since his August 2013 VA examination. There has been substantial compliance with the remand directives; the matter again is before the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). In decisions in April and June 2020, the RO granted an initial 10 percent rating for right knee strain, effective April 28, 2011, the day following discharge from active duty. Increased Ratings The Veteran contends that the 10 percent disability rating that is currently assigned to his service-connected right knee strain does not contemplate the severity of the Veteran's symptoms. Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C. § 1155. Percentage evaluations are determined by comparing the manifestations of a particular disorder with the requirements contained in the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1. VA must consider whether the Veteran is entitled to "staged" ratings to compensate when his or her disability may have been more severe than at other times during the course of his or her appeal. The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various DCs is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In general, evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the Veteran undertaking the motion. See 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. See 38 C.F.R. § 4.45. Right knee strain Normal range of motion of the knee is to 0 degrees extension and to 140 degrees flexion. 38 C.F.R. § 4.71a, Plate II. Diagnostic Code 5260 provides for the assignment of a noncompensable rating when flexion is limited to 60 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. A 10 percent rating is warranted when flexion of the leg is limited to 45 degrees. Also, consideration is given when functional for painful motion. Id. A rating of 20 percent is appropriate when leg flexion is limited to 16 to 30 degrees, and 20 percent based on limitation of extension when limited to 15 to 19 degrees. Id. Under DC 5261, limitation of extension of the leg warrants a noncompensable rating if extension is limited to five degrees, a 10 percent rating if limited to 10 degrees, a 20 percent rating if limited to 15 degrees, a 30 percent rating if limited to 20 degrees, a 40 percent rating if limited to 30 degrees, and a 50 percent rating if limited to 45 degrees. See 38 C.F.R. § 4.71a, DC 5261. Under Diagnostic Code 5257, the criteria for impairment of the knee other than ankylosis, 10, 20, and 30 percent evaluations are assigned for slight, moderate, and severe recurrent subluxation or instability, respectively. C.F.R. § 4.71a, Diagnostic Code 5257. The terms "slight," "moderate," "severe," and "marked" are not defined in the regulations. Dislocation of the semilunar cartilage of the knee with frequent episodes of "locking," pain and effusion into the joint warrants a 20 percent evaluation. See 38 C.F.R. § 4.71a, DC 5258. DC 5003 states that degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint or joints involved. 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, arthritis is rated as follows: 10 percent for x-ray evidence of involvement of two or more major joints or two or more minor joints groups; and 20 percent for x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. See 38 C.F.R. § 4.71a, DC 5003. The knee is considered a major joint for rating purposes. See 38 C.F.R. § 4.45. In a June 2010 service treatment record, the clinician indicated that the Veteran was involved in a blast that cut open his knee. The Veteran reported when he would turn a certain way or kneeled, he felt pain. Also, the Veteran indicated that he experienced some sensation in his knee and had tried running but something felt wrong, but nothing major. The Veteran indicated that he had some mild pain but mostly his knee did not feel right. However, the Veteran had no problems running. The Veteran stated that he felt like his knee had improved by 70 percent. The knees neurological strength was a 4/5 for the right knee and gait was normal. See November 2019 Medical Treatment Record-Government Facility, p.28. In July 2011, the Veteran submitted a statement in support of claim. The Veteran reported that it was hard to put pressure on his knee. See July 2011 VA 21-4138 Statement in Support of Claim, p.1. In a September 2011 treatment record, the Veteran was seen for right knee pain that was sharp and ached. The Veteran reported that his pain was a 4/10. See November 2019 Capri, 224. In January 2012, the Veteran was seen for chronic right knee pain and was referred to physical therapy for his right knee but declined; indicating he had physical therapy in-service and did home exercises and went to the gym. See November 2019 Capri, p.225 In August 2013, the Veteran was afforded a knee and leg VA examination. The examiner noted a diagnosis of a right knee strain which was diagnosed in 2011. The Veteran reported that he felt a tight sensation in his right knee with flexion or a discomfort in the anterior patella when he kneeled. The Veteran did not report any flareups. The range of motion was 140 degrees or greater for flexion and there was no limitation of extension. On repetitive use testing the Veteran’s flexion was 140 degrees or greater. There was no additional functional loss or functional impairment on repetitive use; no tenderness or pain to palpation and muscle strength is a 5/5 for flexion and extension. The joint stability tests were normal. The Veteran did not use any assistive devices and the knee did not impact his ability to work. The examiner indicated that neither pain, weakness, fatigability, or incoordination significantly limited his functional ability during flareups or when the joint was used repeatedly over a period of time. In a May 2014 notice of disagreement, the Veteran reported that his knee started hurting within the past few months. The Veteran stated he noticed that the pain was more frequent when he got out of bed and when he got on his hands and knees. The Veteran also stated that it hurt to put pressure on the knee for any reason. See May 2014 NOD, p.2. In a September 2014 mental health note, the Veteran reported that his right knee pain had worsened when in the kneeling position. Also, the clinician found that the right knee joint had no effusion, the range of motion was intact and there was no instability. See November 2019 Capri, 165; see also August 2015 Capri, p.9. In an August 2015 mental health and physical note, a clinician indicated that there was ok movement in the extremities and there was no joint swelling or tenderness. See November 2019 Capri, p.135. In a September 2015 form 9, the Veteran reported that when he would get on his hands and knees, there would be pressure on his right knee. The Veteran stated the pressure on his right knee would hurt and he would feel pain under and around his whole knee cap. See September 2015 Form 9. In a December 2015 vocational rehabilitation note, a clinician noted that the Veteran had limitations in his right knee when he pushed; balanced; stooped; kneeled; crouched; stood and walked. See December 2017 VR&E-General, p.35. In November 2018, the Veteran testified during a hearing. The Veteran testified that he was only able to stand up for an hour to two hours without experiencing pain and swelling. Also, the Veteran stated that he could sit without pain for three to four hours. The Veteran indicated that he was able to walk up three flights of stairs at home and work, but he could not just freely run up the stairs. See November 2018 Hearing Transcript, p.2-3. The Veteran further testified that his pain was on average a 5 out of a scale of 1-10. See November 2018 Hearing Transcript, p.4. The Veteran reported that he walked for a long time, the knee would “give out on him.” When asked about “giving out,” he agreed that pain caused him to take weight off the joint but also that the joint was not “tight.” The Veteran also stated he drove a car but did not do a lot of extracurricular activities. See November 2018 Hearing Transcript, p.5 -10. In May 2019, the Veteran was afforded another VA Knee and lower leg conditions examination. The examiner reviewed the claims file; considered the Veteran’s subjective accounts and conducted an evaluation. The examiner noted a diagnosis of a right knee strain. The Veteran stated that his knee pain had worsened and ached all the time, especially when climbing stairs. The Veteran indicated that he had begun private physical therapy a couple months ago, but it had not helped. The Veteran also stated that when he sat at a desk all day his knee pain was worse, and his knee popped a lot. The Veteran did not report flareups of the knee. The Veteran did report functional loss or impairment, due to issues when he climbed stairs; and noted that when he carried his newborn baby around in her car seat it hurt his right knee. The Veteran also mentioned issues when carrying heavy items, kneeling, squatting, walking to take out trash, prolonged standing and sitting. The range of motion examination revealed that the right knee was abnormal or outside of normal range with flexion at 0 to 110 degrees and the extension at 110 to 0 degrees. However, the range of motion did not contribute to functional loss. Pain was noted in examination but did not result in functional loss. There was pain on weightbearing and objective evidence of localized tenderness or pain on palpation of the joint. The pain was moderate and there was tenderness to the medial and lateral joint lines and to compression of the patella. There was no objective evidence of crepitus. The Veteran was able to perform repetitive use testing with at least three repetitions; there was additional functional loss or range of motion after three repetitions with factors of pain; fatigue and weakness. Range of motion on repetition was 0 to 100 degrees for flexion and 100 to 0 degrees for extension. The examiner noted that the examination was medically consistent with the Veteran’s statements and pain; weakness; fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time. Muscle strength was a 4/5 for the right knee flexion and extension. The Veteran did not have muscle atrophy. There was no ankylosis; no history of recurrent subluxation; lateral instability and no recurrent effusion. There was no clinically observed joint instability. The Veteran never had a meniscus condition, and the Veteran did not use any assistive devices. Analysis Following a review of the evidence, the Board concludes that the Veteran is not entitled to a rating in excess of 10 percent for limitation of flexion under DC 5260. As noted above, in order to meet the criteria for a higher rating based on limited flexion, the evidence needs to reflect that the Veteran's right knee flexion is limited to 30 degrees and extension limited to 19 degrees. At its most severe, the Veteran's right knee flexion and extension was to 110 degrees and repetitive use testing revealed flexion and extension was at 100 degrees. Although, pain was noted on the May 2019 VA examination, the examiner indicated that it did not contribute to functional loss. Thus, a 10 percent rating under DC 5260 is appropriate for the entire period on appeal. Although the Veteran reported pain and swelling with walking and prolonged sitting, trouble kneeling, and repetitive use caused additional functional loss, there is no probative evidence to reflect that the Veteran's right knee flexion was ever limited to 30 degrees and his extension was ever limited to 19 degrees. The Veteran's functional loss, characterized by symptoms such as pain when kneeling, standing and walking, has not been found to result in limitation of flexion 30 degrees or less or a limitation of extension 19 degrees or less. In addition, as noted above, when assessing the severity of a musculoskeletal disability that is at least partly rated on the basis of limitation of motion, VA is generally required to consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain, weakness, premature or excess fatigability, and incoordination. See DeLuca, 8 Vet. App. at 202; see also 38 C.F.R. §§ 4.40, 4.45, 4.59. Here, the Veteran denied having flare-ups; in his August 2013 VA examination as well as his November 2018 examination; taking this into consideration there is no evidence of additional limitation of motion warranting a higher rating, and as such a higher rating is not warranted on this basis. The Board has considered whether a higher or separate evaluation may be assigned based on other potentially applicable provisions of the rating schedule. The Board notes that the Veteran has, at times, reported instability. However, the May 2019 VA examiner did not observe laxity or instability. Therefore, the Board finds that the symptom of “giving out” was associated with fatigue and pain causing the Veteran to sense that his knee pain did not momentarily support weight. Pain on use is contemplated in the current rating. Furthermore, the medical findings are more probative than the Veteran's statements because the examiner conducted testing specifically to determine whether there was subluxation and instability. Therefore, a preponderance of the evidence is against finding that the Veteran had: ankylosis of the knee; recurrent subluxation or lateral instability; dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint; symptomatic removal of semilunar cartilage; impairment of tibia and fibula; or genu recurvatum. Accordingly, the diagnostic codes relating to those disabilities (DC 5256, DC 5257, DC 5258, DC 5259, DC 5262, DC 5263) are not for application and would not be more favorable to the Veteran. See 38 C.F.R. § 4.71a. The Board accepts that the Veteran is competent to report that his disability has worsened. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994); DeLuca, supra. The medical evaluations, which considered the objective manifestations of the Veteran's pain, are entitled to more weight in this case than generic statements of the Veteran. Although the Veteran believes he meets the criteria for a higher disability rating, the medical findings do not meet the schedular requirements for higher (or separate) evaluations than that assigned for the period under review, as explained above. Here, the medical evidence prepared by a skilled professional is more probative and credible than the lay evidence. The preponderance of the evidence is against an increased rating in excess of 10 percent for the Veteran's service-connected right knee disability. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, the claim is denied. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Long-Ellis, 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.