Citation Nr: A20007319 Decision Date: 04/30/20 Archive Date: 04/30/20 DOCKET NO. 190318-4139 DATE: April 30, 2020 ORDER Entitlement to a rating in excess of 10 percent for right knee strain with tibia stress fracture is denied. Entitlement to a rating in excess of 10 percent for left knee patellofemoral pain syndrome is denied. FINDINGS OF FACT 1. The Veteran’s right knee disability more closely approximates malunion of the tibia with slight knee disability manifested by contributing factors such as pain on movement, interference with standing, and weight bearing, and flare ups. 2. Throughout the appeal period, the Veteran’s left knee disability has been manifested by pain and functional limitations most nearly approximating flexion limited to 45 degrees. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for right knee strain with tibia stress fracture have not been met. 38 C.F.R. § 4.71a, Diagnostic Code 5262 (2018). 2. The criteria for a rating in excess of 10 percent for left knee patellofemoral pain syndrome have not been met. 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army National Guard from November 2008 to July 2009. She appeals that portion of the March 2019 decision by the VA Regional Office that denied “service connection for left knee instability” and “service connection for right knee instability.” Service connection for left knee patellofemoral pain syndrome and right knee strain with tibia stress fracture was previously established. The Veteran contends that she should receive higher disability rating for such, to include consideration of separate ratings for bilateral knee instability or subluxation under 38 C.F.R. § 4.71a, Diagnostic Code 5257. As such, her claim is not one for service connection but instead involves a rating matter. The Board has corrected the characterization of the issues as shown above. Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Higher rating for bilateral knee disability. In support of the claim the Veteran submitted May 2010 private treatment records from Industrial Healthcare Services. These records show complaints of flare-ups, weakness, tenderness, and pain. From 1 to 10 (10 being the worst) the Veteran indicated the severity level to be at 9. However, the Veteran denied experiencing locking, dislocation, swelling, and subluxation. The examining physician’s objective findings show both knees are within normal limits for stability testing and show no signs of recurrent subluxation. The Veteran also indicated that her condition has not resulted in any incapacitation or overall functional impairment from this condition. Next, the Veteran was afforded a February 2016 VA examination. Although the Veteran was diagnosed with bilateral knee pain syndrome, joint stability tests were again within normal limits and there were no signs of recurrent subluxation. The Veteran submitted complaints that the examiner was unprofessional regarding the Veteran’s decision to retain an attorney and that the range of motion tests were done with so much force that it caused residual pain and discomfort. The Board regrets that the Veteran’s experience was unpleasant and has considered these complaints when weighing the medical evidence. When the Veteran was afforded a February 2019 VA examination with a new physician, however, the objective findings did not change. There were no complaints of instability or medical findings showing recurrent subluxation or lateral instability in the knees, and stability tests were within normal limits. There was no diagnosis for bilateral knee instability. The Veteran described a sharp pain during flare ups of both knees and a difficulty standing, walking, and running, for an extended period of time. Lastly, the Veteran submitted a December 2018 private examination. The exam indicates the Veteran has bilateral knee instability. No recurrent subluxation was reported. The symptoms reported and the medical findings in the December 2018 exam are inconsistent with symptoms reported and the medical findings in examinations that took place both before and afterwards. Separate VA exams from February 2016 and February 2019 indicate the Veteran was not experiencing recurrent subluxation or lateral instability, which is required for a separate compensable rating under Diagnostic Code 5257. In addition, the findings are inconsistent with symptoms and findings in VA treatment records. For instance, records from September 2018, approximately the same time period as the December 2018 show the Veteran was treated for headaches and bilateral knee pain. These records are also absent of evidence indicating the Veteran is suffering from bilateral knee instability. The Veteran reported that her symptoms improve with Tylenol/Ibuprofen. March 2019 VA treatment records show the Veteran wakes up with bilateral knee pain but that the pain begins to subside as she starts to walk around. Statements made by the Veteran in the course of seeking treatment for her disability are inherently reliable. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (ascribing heightened credibility to statements made to clinicians for the purpose of treatment); Williams v. Gov. of Virgin Islands, 271 F.Supp.2d 696, 702 (2003) (noting that statements made for the purpose of diagnosis or treatment "are regarded as inherently reliable because of the recognition that one seeking medical treatment is keenly aware of the necessity for being truthful in order to secure proper care"). As such, the Board ascribes greater weight to the May 2010 private treatment records and because it is consistent with such, the February 2019 VA examination. Under DC 5262, a 10 percent rating is assigned for malunion of the tibia and fibula with slight knee or ankle disability. A 20 percent rating is assigned for malunion of the tibia and fibula with moderate knee or ankle disability, a 30 percent rating is assigned for malunion of the tibia and fibula with marked knee or ankle disability, and a 40 percent rating is assigned for nonunion of the tibia and fibula, with loose motion, requiring a brace. Under DC 5260, a 10 percent rating is assigned for flexion limited to 45 degrees. A 20 percent rating is assigned for flexion limited to 30 degrees, and a 30 percent rating is assigned for flexion limited to 15 degrees. Considering the pertinent evidence in light of the governing legal authority, the Board finds that the preponderance of the evidence is against the assignment of the next higher rating of 20 percent. The probative evidence does not show that the Veteran’s right knee malunion of the tibia is with moderate or marked knee disability. The evidence also shows that the Veteran’s left knee flexion has not been limited to less than 45 degrees as required by the Diagnostic Code. While the Veteran clearly experiences pain and functional impairment due to such pain, the Board cannot find that it approximates the level of severity as described by the next higher rating with flexion limited to 30 degrees. The May 2010 private examination shows that the Veteran’s left knee is within normal limits for flexion. The February 2016 VA examination shows that both knees are within normal limitations for range of motion extension and flexion. The February 2019 VA exam shows that the Veteran’s knee flexion is outside of the normal range, however, the exam also indicates that the Veteran’s range of motion for left knee flexion is greater than 60 degrees, even with consideration of pain and resulting functional impairment. This does not warrant a higher rating under Diagnostic code 5260, pertaining to flexion, or DC 5261, pertaining to loss of extension. The Board considered all other diagnostic codes pertaining to the knee. As ankylosis was not shown on any examination, a rating under DC 5256 is not warranted. Similarly, DC 5257 does not apply as both VA examiners and treatment provides found there was no recurrent subluxation or lateral instability in the right or left knee. Therefore, the claim must be denied. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Hamed, Law Clerk 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.