Citation Nr: 20056583 Decision Date: 08/26/20 Archive Date: 08/26/20 DOCKET NO. 08-30 636 DATE: August 26, 2020 ORDER Entitlement to an initial rating greater than 10 percent for a right knee disorder based on limitation of motion is denied. Effective December 8, 2016, entitlement to a 10 percent rating for a right knee disorder based on instability is granted, subject to the laws and regulations governing the award of monetary benefits. FINDINGS OF FACT 1. The disability picture pertaining to the Veteran’s right knee disorder does not more nearly approximate flexion limited to 30 degrees or extension limited to 15 degrees. 2. Resolving reasonable doubt in the Veteran’s favor, for the period beginning December 8, 2016, his right knee disability is manifested by slight instability. CONCLUSIONS OF LAW 1. The criteria for an initial rating greater than 10 percent for a right knee disorder based on limitation of motion are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.71a, Diagnostic Codes 5260, 5261. 2. For the period beginning December 8, 2016, the criteria for a 10 percent rating, and no more, for a right knee disorder based on instability are met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1983 to October 2007. In May 2008, VA granted entitlement to service connection for a right knee strain and assigned a 10 percent rating from November 1, 2007. The Veteran disagreed with the rating and perfected an appeal of this decision. In December 2015, the Board denied an initial rating greater than 10 percent for right knee strain. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In August 2016, pursuant to a Joint Motion for Partial Remand (joint motion), the Court issued an order vacating and remanding the Board’s December 2015 decision to the extent it denied a higher rating for the right knee. In December 2016 and February 2018, the Board remanded the appeal for additional development. The case has since returned to the Board. Entitlement to an initial rating greater than 10 percent for a right knee disorder The Veteran generally asserts that the assigned 10 percent rating does not adequately reflect the severity of his right knee disability. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Traumatic arthritis, substantiated by x-ray findings, is rated as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5010. Degenerative arthritis established by x-ray findings will be rated based on limitation of motion under the appropriate diagnostic code 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. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Limitation of flexion of the leg is evaluated as follows: flexion limited to 15 degrees (30 percent); flexion limited to 30 degrees (20 percent); flexion limited to 45 degrees (10 percent); and flexion limited to 60 degrees (0 percent). 38 C.F.R. § 4.71a, Diagnostic Code 5260. Limitation of extension of the leg is evaluated as follows: extension limited to 45 degrees (50 percent); extension limited to 30 degrees (40 percent); extension limited to 20 degrees (30 percent); extension limited to 15 degrees (20 percent); extension limited to 10 degrees (10 percent); and extension limited to 5 degrees (0 percent). 38 C.F.R. § 4.71a, Diagnostic Code 5261. Separate ratings under Diagnostic Codes 5260 and 5261 may be assigned for disability of the same joint, if none of the symptomatology on which each rating is based is duplicative or overlapping. VAOPGCPREC 9-04; 69 Fed. Reg. 59990 (2004); 38 C.F.R. § 4.14. VA regulations set forth at 38 C.F.R. §§ 4.40, 4.45, 4.59 provide for consideration of functional impairment due to pain on motion when evaluating the severity of a musculoskeletal disability. The Court has held that a higher rating can be based on “greater limitation of motion due to pain on use.” DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Any such functional loss must be “supported by adequate pathology and evidenced by the visible behavior of the claimant.” See 38 C.F.R. § 4.40. On VA examination in February 2008, the Veteran reported knee stiffness. He also had pain occurring 2 times per day and each time lasting for one hour. The pain is elicited by physical activity and relieved by rest. On physical examination, the right knee showed no signs of edema, effusion, weakness, tenderness, redness, heat, subluxation or guarding of movement. There was no locking pain, genu recurvatum or crepitus. Range of motion of the right knee was from 0 degrees extension to 140 degrees flexion with pain occurring at 140 degrees. Following repetitive use, joint function was additionally limited by lack of endurance and pain but not by fatigue, weakness and incoordination. Additional limitation of joint function was reported as 10 degrees. Considering that there was no pain with extension, the Board considers the additional limitation due to pain to apply to flexion which would result in flexion limited to 130 degrees. Stability testing was within normal limits on the right. Right knee x-rays were within normal limits. In his January 2009 Form 9, the Veteran reported he has right knee pain at least twice a day which does not go away without taking pain medication. On VA examination in May 2011, the Veteran’s gait was normal. Physical examination of the right knee showed no signs of edema, instability, abnormal movement, effusion, weakness, tenderness, redness, heat, deformity, malalignment, drainage, subluxation or guarding of movement. There was no locking pain, genu recurvatum or crepitus. Range of motion of the right knee was from 0 degrees extension to 140 degrees flexion. Repetitive motion was possible with no additional degree of limitation. Joint function was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. Stability testing was normal on the right. On VA examination in March 2012, the Veteran reported knee pain, swelling and stiffness. He did not report flare-ups. Right knee range of motion was from 0 degrees extension to 120 degrees flexion with pain beginning at 100 degrees of flexion. The Veteran was able to perform repetitive testing with no additional limitation of motion. The examiner indicated there was functional impairment due to weakened movement, excess fatigability, and pain on movement. There was no tenderness or pain to palpation. Muscle strength was 5/5 and stability testing was normal on the right. The Veteran did not use any assistive devices. On VA examination in October 2013, the Veteran reported his right knee is stiff and painful, and it swells if he stays on it for too long. He reported flare-ups which he described as having to get off the knee and wrap it up at night sometimes due to swelling and stiffness when he walks too much. On physical examination, range of motion of the right knee was from 0 degrees extension to 140 degrees flexion with painful motion beginning at 115 degrees of flexion. There was no change in range of motion after repetitive use testing. There was functional loss described as pain on movement. There was no tenderness or pain to palpation. Muscle strength was 5/5 and joint stability testing was normal on the right. The Veteran did not use any assistive devices. X-rays reportedly showed degenerative or traumatic arthritis. In the remarks section of the report, the examiner stated that “[t]he degree of [range of motion] loss during pain on use or flare-ups is approximately: right knee flexion 25 and extension 0”. In an October 2013 statement, the Veteran reported that he has constant pain and stiffness in his right knee and takes pain medication daily with little relief. As noted, in December 2015, the Board denied entitlement to an initial rating greater than 10 percent for the right knee. Pursuant to the joint motion, the parties agreed that the Board was incorrect when it stated that the VA examinations did not show additional limitation of motion. The joint motion specifically referred to the October 2013 remark quoted above. The parties further agreed that a remand was necessary for a more adequate statement of reasons and bases regarding the Veteran’s limitation of motion of his right knee, with particular attention to flexion during flare-ups. Thereafter, and pursuant to the December 2016 remand, the Veteran underwent additional examination in May 2017. He reported that his right knee pain has worsened over the years to the point his knee has locked up and caused him to fall. He started physical therapy about 6 months ago and this has improved his symptoms. He wears a brace most of the time and takes Motrin daily. He reported flare-ups and noted that prolonged sitting, any exertional activity, and going up/down steps exacerbates his knee pain. Right knee range of motion was from 0 degrees extension to 115 degrees flexion. There was pain with weight bearing and the anterior and inferior aspect of the patella was tender to palpation. There was no crepitus. The Veteran was able to perform repetitive use testing with no additional functional loss or range of motion. The examiner stated that pain caused functional loss with repeated use and during flare-ups, but he was unable to describe in terms of range of motion. Muscle strength was 5/5 and joint stability testing was normal on the right. The Veteran used a brace on a regular basis. X-rays showed mild medial compartment degenerative change; and small enthesophytes at the proximal and distal patellar tendons which may be the sequela of chronic tendinosis. The examiner stated that there was pain with non-weight bearing, with passive range of motion, and with weightbearing. The examiner also stated that he reviewed the examination reports from February 2008, March 2012 and October 2013, but it was not possible to provide an opinion regarding the range of motion of the knees in active motion, passive motion, weight bearing and non-weight bearing without speculating as these were not documented on those examinations. In February 2018, the Board determined the May 2017 examination was inadequate and the case was again remanded for another examination. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). On VA examination in May 2018, the Veteran reported continued pain and stiffness. He denied flare-ups but reported functional impairment due to decreased mobility and pain. On physical examination, right knee range of motion was from 0 degrees extension to 140 degrees flexion with no pain. There was no evidence of pain with weightbearing, no localized tenderness or pain with palpation, and no crepitus. The Veteran was able to perform repetitive use testing with no additional functional loss or range of motion. The examiner stated he could not say without mere speculation whether pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over time. Muscle strength was 5/5 and joint stability testing was normal on the right. The examiner remarked that the severity was speculative. In October 2018, the Veteran underwent a VA examination to assess the severity of his left knee disorder. Findings pertaining to the right knee were also noted. Specifically, right knee range of motion was from 0 degrees extension to 140 degrees flexion. There was no pain noted on examination or with weightbearing. There was no crepitus. The Veteran was able to perform repetitive use testing with no additional loss of function or range of motion. The examiner was unable to say without mere speculation whether pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over time or with flare-ups. Muscle strength was 5/5 and joint stability testing was normal on the right. The Veteran occasionally used a brace. In an October 2019 deferral, the Agency of Original Jurisdiction (AOJ) determined that the May and October 2018 examinations were inadequate and therefore, another examination was requested. The Veteran most recently underwent a VA examination in November 2019. He reported throbbing right knee pain on the inside of the right knee and below the patella. He reported intermittent sharp pain below the kneecap which lasts for about an hour and gets better with “walking it off” and going to the gym and doing stretches. The sharp pain occurs up to 4 times per week. He also has swelling in his knee that waxes and wanes. The knee stiffens up with prolonged sitting. The Veteran reported flare-ups which he described as the knee feeling unstable and a radiating pain along the inside part of the knee that swells up. He wears a brace for a few days, and it calms down. He is not able to run or sit for long periods. On physical examination, range of motion of the right knee was from 0 degrees extension to 100 degrees flexion. There was pain with flexion. There was tenderness or pain at the anterior knee, sub patella which was mild. There was no pain with weightbearing and no crepitus. Range of motion after 3 repetitions was from 0 degrees extension to 95 degrees flexion. The examination was medically consistent with the Veteran’s statements describing functional loss with repetitive use over time and with flare-ups. The examiner stated that the Veteran experiences increased symptomatology of pain with repetitive use over time and with flare-ups, but he did not anticipate any additional loss of range of motion. Passive range of motion was 0 degrees extension to 125 degrees flexion. Muscle strength testing was 5/5 and stability testing was normal on the right. The Veteran regularly used a brace and occasionally used a cane. The examiner noted the Veteran may experience poor endurance and tolerance while walking, running, jogging, and standing. He also had a reduced ability to squat and negotiate stairs. As set forth, the Veteran has undergone eight VA examinations during the pendency of the appeal. While most of the examinations were considered inadequate, the Board finds the most recent examination sufficient for rating purposes. Regardless, range of motion testing throughout has consistently shown active right knee flexion as 95 degrees or greater. The Board acknowledges the October 2013 remark concerning the additional motion lost on repetitive use or during flare-ups. It is unclear whether the examiner is indicating there would be a loss of 25 degrees of flexion (resulting in flexion at 115 degrees), or whether he was indicating that flexion would be limited to 25 degrees. If flexion was limited to this degree, the finding would arguably support a 20 percent rating under Diagnostic Code 5260. The Veteran is competent to report his perceived level of pain and functional impairment and his complaints are acknowledged. The above remark (assuming flexion limited to 25 degrees) is largely inconsistent with the overall evidence of record which does not suggest significant additional limitation following repetitive use or during flare-ups. The most recent examination indicated flexion limited to 95 degrees following 3 repetitions and the examiner did not expect any additional limitation of motion with repeated use over time or with flare-ups. The Veteran’s currently assigned 10 percent rating is based on painful flexion and on review, the Board does not find adequate pathology to support a higher rating based on functional impairment due to pain on motion or other factors. X-ray findings show mild degenerative changes and muscle strength is repeatedly reported as normal in both flexion and extension with no evidence of atrophy. Additionally, information provided by the Veteran suggests that flare-ups are elicited by physical activity to include prolonged sitting, but are relieved by rest, medication, and stretching. Considering the duration and severity of the vast majority of reported flare-ups during the appeal period, along with the examination findings, the disability picture does not more nearly approximate flexion limited to 30 degrees and a rating greater than 10 percent is not warranted under Diagnostic Code 5260. Range of motion testing consistently shows full extension (to 0 degrees) and a separate compensable rating based on limitation of extension is not warranted at any time during the appeal period. VA General Counsel has held that a claimant who has arthritis and instability of a knee may be rated separately under Diagnostic Codes 5003 and 5257. VAOPGCPREC 23-97; 62 Fed. Reg. 63604 (1997); VAOPGCPREC 9-98; 63 Fed. Reg. 56704 (1998). Recurrent subluxation or lateral instability of the knee warrants a 10 percent rating when slight, a 20 percent rating when moderate, and a 30 percent rating when severe. 38 C.F.R. § 4.71a, Diagnostic Code 5257. In December 2015, the Board determined that subluxation or instability of the right knee had not been shown and an entitlement to a separate evaluation for such impairment was not warranted. The parties did not raise this issue in the joint motion and there was no evidence of instability in the examinations prior to this date. Notwithstanding, additional medical evidence has been added to the record since that time reflecting complaints of right knee instability. For example, a December 2016 VA record indicates that the Veteran’s knee locks, and he has fallen twice due to his knee giving out. The clinician put in an order for the knee brace since he was reporting instability symptoms. A January 2017 record notes an acute exacerbation of right knee pain and the Veteran had fallen but physical examination did not show instability. VA examinations dated in 2017, 2018 and 2019 note similar complaints but objectively, stability testing was normal. The Court has held that Diagnostic Code 5257 does not require objective evidence of instability. English v. Wilkie, 30 Vet. App. 347 (2018). The Veteran is competent to report the readily observable symptoms related to his knee, to include instability. Resolving reasonable doubt in the Veteran’s favor, the Board finds that a separate 10 percent rating is warranted effective December 8, 2016. This is based on the Veteran’s reports of instability and the VA outpatient record documenting that a brace was ordered on that date due to same. Considering that stability tests are repeatedly reported as within normal limits, the Board finds that the disability is no more than slight. (Continued on the next page)   In summary, an initial rating greater than 10 percent is not warranted for the right knee disorder based on limitation of motion. A separate 10 percent rating based on instability is assigned December 8, 2016. LAURA E. COLLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Carsten, 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.