Citation Nr: 20047089 Decision Date: 07/14/20 Archive Date: 07/14/20 DOCKET NO. 15-20 073 DATE: July 14, 2020 ORDER Entitlement to an initial rating in excess of 10 percent for left knee, status post-surgery for recurrent luxations with limited flexion (left knee disability) is denied. FINDING OF FACT The Veteran’s left knee disability has been manifested primarily by pain and decreased flexion no less than 75 degrees. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent for left knee disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5260. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 2008 to October 2012. In July 2018, the Board remanded the claim for further development. Increased Rating Disability evaluations are determined by the application of the VA 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 be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. 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. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be “staged.” Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service-connected disability exhibits symptoms that would warrant different ratings.); see also Fenderson v. West, 12 Vet. App. 119, 126 (2001). A disability may require re-evaluation in accordance with changes in a veteran’s condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. The Veteran’s left knee disability is rated under DC 5260. Diagnostic Code 5260 evaluates limitation of flexion as follows: flexion limited to 30 degrees warrants a 20 percent rating; and flexion limited to 15 degrees warrants a 30 percent rating. See 38 C.F.R. § 4.71a, DC 5260. Under DC 5257, slight recurrent subluxation or lateral instability warrants a 10 percent rating, moderate recurrent subluxation or lateral instability warrants a 20 percent rating, and severe recurrent subluxation or lateral instability warrants a 30 percent rating. 38 C.F.R. § 4.71a. The words “slight,” “moderate,” and “severe” as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. 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. Under Diagnostic Code 5258, a 20 percent rating is assigned for a knee with dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. 38 C.F.R. § 4.71a. DC 5259 provides a 10 percent evaluation for symptomatic removal of semilunar cartilage. Id. Diagnostic Code 5261 evaluates limitation of extension as follows: extension limited to 5 degrees warrants a noncompensable rating; extension limited to 10 degrees warrants a 10 percent rating; extension limited to 15 degrees warrants a 20 percent rating; extension limited to 20 degrees warrants a 30 percent rating; extension limited to 30 degrees warrants a 40 percent rating; and extension limited to 45 degrees warrants a 50 percent rating. See 38 C.F.R. § 4.71a, DC 5261. Separate evaluations may be assigned for limitation of flexion and extension of the same joint. See VAOPGCPREC 09-04 (September 17, 2004). Specifically, when a Veteran has both a compensable level of limitation of flexion and a compensable level of limitation of extension of the same leg, the limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg. Id. The normal range of motion (ROM) of the knee is 0 degrees of extension and 140 degrees of flexion. See 38 C.F.R. § 4.7, Plate II. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Although pain may cause functional loss, pain itself does not constitute functional loss. 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. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40). 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 non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). Associated objective neurologic abnormalities are evaluated separately under an appropriate diagnostic code. See 38 C.F.R. § 4.71a (General Formula, Note 1). Analysis The Veteran contends that her disability is more severe than the rating depicts. In February 2013, the Veteran was afforded a VA examination to determine the nature and etiology of her left knee disability. The Veteran stated that in February 2009, she fell and fractured her kneecap. Because of the persistent pain and the recurrent patellar luxations, in May 2012, she underwent an arthroscopy and a lateral release. Since then, there have been no more patellar luxations. The Veteran reported daily pain in the knee joint of VAS 5. The Veteran stated that she experienced pain free intervals only during absolute rest, and she did not participate in sports because of fear that problems would arise. To help alleviate the pain, she took Ibuprofen as needed. The examiner diagnosed the Veteran with chronic left knee joint pain following a surgical lateral release for recurrent patellar luxations. The examiner noted no palpable effusion. The Veteran’s lateral ligaments were stable at zero and 30 degrees flexion. There was no anterior or posterior drawer sign. Lachman’s test was negative, no pivot shifting. The Veteran’s meniscus sign was negative on both sides (Steinmann I, I, Payr, McMurry). There was no pressure pain in the region of the meniscotibial ligaments, the distal tractus iliotibialis, or the pes anserinus. The examiner noted significant parenteral in the region of the patellar base and apex. There was no indication of a popliteal cyst. Zohlen’s sign was negative but with mild patellar displacement pain. There was no audible or palpable crepitation in the process. The patella supporting apparatus was stable, and the patellar silhouette exhibited non-inflamed scars after past arthroscopy. The Veteran’s left knee flexion was from zero to 75 degrees, and extension was to zero degrees with significant pain triggering on the left side. Right knee flexion was from zero to 130 degrees and extension to zero degrees. After three repetitions, there was no pain intensification, functional deficits, or early fatigue. The Veteran’s VA treatment records document complaint and treatment for left knee pain. In her June 2015 statement, the Veteran stated that since her surgery, she walked with a limp and babied her leg when sitting, lying, or getting into and exiting vehicles. She also stated that she could no longer ride a bike or enjoy any activities, and this caused her to gain weight. Additionally, she stated that she was unable to work in the industry she worked in prior to service because she could not wear the required safety shoes. She also experienced numbness of the feet and lower leg. In March 2015, while running errands, her leg gave out, and she fell out of her truck. Because of the above, the Veteran stated that her disability rating should be increased to 50 percent. In March 2019, the Veteran was afforded a VA examination to determine the severity of her left knee disability. The Veteran underwent left knee arthroscopic surgery for recurrent patellar luxations in 2012. Since her surgery, she reported chronic left knee pain and intermittent protrusion of a “circle shaped” object on the lateral and superior aspect of her left knee. She reported chronic, sharp, and aching left knee pain. At the time of the exam, she rated her pain as 6/10. Aggravating factors included prolonged ambulation, running, bending, kneeling, and jumping. Additionally, prolonged sitting caused numbness in the dorsum of her left foot. To help alleviate the pain, she used Motrin PRN and elevation. The examiner confirmed the Veteran’s left knee, status post-surgery for recurrent luxations. The Veteran’s right knee was normal. She reported flare-ups and functional loss or functional impairment of her left knee, to include her left knee hurting all the time. The pain was worse with bending or kneeling and prolong standing or sitting. She stated that she was no longer able to run or jump. The Veteran experienced moderate pain that occurred a couple times per week and lasted for one hour. The Veteran’s right knee ROM was all normal. However, her left knee flexion was from five to 75 degrees and extension was from 75 degrees to five. Her decreased ROM interfered with ambulation, standing, bending, kneeling, use of stairs, and driving. Pain was noted on flexion and extension and caused functional loss. The Veteran experienced pain at 70 degrees of flexion of the left knee, but was able to achieve 75 degrees of flexion. The examiner noted objective evidence of pain on palpation of the left patella. The objective evidence included facial grimaces, flinching of the left knee, and withdrawal of her left knee from the examiners hand on palpation. The pain was moderate in severity and was secondary to her left knee disability. There was objective evidence of pain with weight bearing, but no objective evidence of crepitus. The Veteran was able to perform right knee repetitive-use testing with at least three repetitions, and there was no additional loss of function or ROM after three repetitions. Because of fear of pain, she was unable to perform left knee repetitive-use testing with at least three repetitions. Bilaterally, the Veteran was not examined immediately after repetitive use over time or during a flare up; as such, the examination 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 if pain, weakness, fatigability, or incoordination significantly limited functional ability of the bilateral knee with repeated use over a period of time or during a flare up. The examiner stated that there is no conceptual or empirical basis for making such a determination without directly observing function under these conditions, and there was a lack of supporting objective documentation in the file. In addition, the examiner was unable to say if pain, weakness, fatigue, lack of endurance, or incoordination caused functional loss. He was also unable to describe in terms of ROM without resorting to mere speculation because there was no conceptual or empirical basis for making such a determination without directly observing function under these conditions. He also stated that there was no persistent evidence of record, considered to be valid or reproducible for rating purposes, that indicated a loss of function during these conditions. Bilaterally, there were no additional contributing factors of the disability. Regarding her right knee, the examiner stated that there was no objective evidence of pain on passive ROM testing or when the joint was used in non-weight bearing. However, there was objective evidence of pain on passive ROM testing and objective evidence of pain when the left knee was used in non-weight bearing. Right knee muscle strength testing was normal, and there was no reduction in muscle strength. Left knee muscle strength testing revealed active movement against some resistance. The Veteran’s left knee reduction in muscle strength was due entirely to her left knee disability. She did not have right or left knee muscle atrophy or ankylosis. The examiner noted a history of left knee severe recurrent subluxation and lateral instability. Her right knee was normal. She did not have a history of recurrent effusion. Her right knee stability testing was normal. However, due to her pain level at the time of the exam, she was unable to tolerate left knee stability testing. The examiner stated that the Veteran’s left knee recurrent luxations would also cause lateral instability. The Veteran had severe left knee recurrent patellar dislocation. However, she did not have shin splints (medial tibial stress syndrome); stress fracture of the lower leg; chronic exertional compartment syndrome; acquired and/or traumatic genu recurvatum with objectively demonstrated weakness and insecurity in weight-bearing; or leg length discrepancy. Additionally, she did not now have or had ever had meniscus (semilunar cartilage). She had left knee arthroscopic release for recurrent patellar luxations. Due to her injury and surgical procedure, she experienced chronic pain, limited ROM, and decreased function of the left knee. There was no other pertinent physical findings, complications, condition, signs, and/or symptoms related to her left knee disability. The examiner noted a left knee medial superior patella scar measuring 2 cm in length x 1 cm in width. She also had a left medial inferior patella scar measuring 0.5 cm in length x 0.5 cm in width and a left lateral inferior patella scar measuring 1 cm in length x 0.5 cm in width. The scars were not painful, unstable, nor had a total area equal to or greater than 38 square cm. additionally, the scars were not located on her head, face, or neck. All of the scars were well-healed with keloid or hypertrophy. The Veteran wore a left knee brace on a constant basis. Functioning was no so diminished that amputation with prosthesis would equally serve the Veteran. Imaging did not reveal arthritis. The Veteran’s disability impacted her ability to work. She stated that prolonged standing, bending, kneeling, ascending and descending stairs, and ambulating worsened her left knee pain. Due to her disability, she lost one to two weeks of work in the last 12 months. Based on the evidence of record, the Board finds that a rating in excess of 10 percent for the Veteran’s left knee disability is not warranted. There is no evidence that the Veteran has had limitation of flexion to 30 degrees or less. The record shows that, at worse, her left knee flexion was to no less than 75 degrees. As such, the criteria for a disability rating in excess of 10 percent under DC 5260 are not met. The Board recognizes that, under DeLuca v. Brown, 8 Vet. App. 202 (1995), VA must consider “functional loss” of a musculoskeletal disability separately from consideration under the DCs. “Functional loss” may occur as a result of weakness or pain on motion. Here, the evidence shows that pain has been a constant and predominant symptom. The pain affected her ability to bend, kneel, run, and jump. Also, her knee pained during prolong standing or sitting. The Board notes that the May 2019 VA examiner noted objective evidence of pain with weight bearing, objective evidence of pain on passive ROM testing, and objective evidence of pain when the joint was used in non-weight bearing. Pain was also noted on flexion and caused functional loss. However, given the extent of left knee motion, there is no evidence of a disability picture that is commensurate to a limitation of flexion to the extent necessary to establish entitlement to a higher disability rating, even after taking her reported pain into full consideration. See DeLuca, 8 Vet. App. at 204 -07; 38 C.F.R. §§ 4.40, 4.45, 4.71a, DC 5260 and 5261. In this regard, the Board emphasizes that a 10 percent disability rating under DC 5260 already contemplates an otherwise non-compensable degree of limitation of motion verified by objective evidence of symptoms such as painful motion. Further, the Board has considered the potential application of the other provisions of 38 C.F.R., Parts 3 and 4. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The Board notes that other criteria for rating knee disabilities are provided under DCs 5256 (ankylosis), 5258 (dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint), 5259 (cartilage, semilunar, removal of, symptomatic), 5262 (impairment of the tibia and fibula), and 5263 (genu recurvatum or traumatic genu recurvatum). The evidence does not show that the Veteran’s left knee disability manifestations has included ankylosis, a meniscus condition, shin splints, or genu recurvatum. Therefore, the Board finds that separate or higher ratings under DCs 5256, 5258, 5259, 5262, and 5263 are not warranted. During the examination, the examiner noted instability or recurrent patellar dislocations, limitation of extension, and scars related to the Veteran’s disability. The Board notes that in March 2020, the Veteran was granted separate ratings for left knee limitation of extension, recurrent luxations, and scars. See DC 5261, 5257, and 7802. The Board has considered the Veteran and her representative’s statements regarding the severity of the Veteran’s left knee disability. However, as lay persons, they do not have the training or expertise to render a competent opinion which is more probative than the VA examiners’ opinions on this issue, as this is a medical determination that is complex. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994)). Thus, the lay opinions by themselves are outweighed by the VA examiners’ findings and the other evidence of record. See id.; see also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court’s conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert’s opinion more probative on the issue of medical causation). In sum, the preponderance of the evidence is against the assignment of an increased rating for the Veteran’s left knee disability. As such, the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Moore 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.