Citation Nr: A20007323 Decision Date: 04/30/20 Archive Date: 04/30/20 DOCKET NO. 190729-15480 DATE: April 30, 2020 ORDER The appeal of the proposed decrease in rating for right knee degenerative joint disease with instability is dismissed. The appeal of the proposed decrease in rating for residuals right knee injury, chondromalacia patella, with limitation of extension, is dismissed. An initial 10 percent rating, but no higher, for right knee limitation of flexion is granted. FINDINGS OF FACT 1. The April 2019 rating decision that was appealed only proposed a decrease in the ratings for right knee degenerative joint disease with instability and residuals right knee injury, chondromalacia patella, with limitation of extension. 2. The Veteran’s right knee exhibited pain with flexion during the January 2019 VA examination. CONCLUSIONS OF LAW 1. There is no question of law or fact on appeal regarding the proposal to decrease the rating for right knee degenerative joint disease with instability. 38 U.S.C. § 7104(a) (2012); 38 C.F.R. § 20.104 (2019). 2. There is no question of law or fact on appeal regarding the proposal to decrease the rating for residuals right knee injury, chondromalacia patella, with limitation of extension. 38 U.S.C. § 7104(a) (2012); 38 C.F.R. § 20.104 (2019). 3. The criteria for an initial 10 percent rating, and no higher, for right knee limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from December 1976 to February 1980. These matters come before the Board of Veterans Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in April 2019. The Veteran timely appealed this rating decision to the Board and requested direct review of the evidence considered by the Agency of Original Jurisdiction (AOJ). 38 C.F.R. § 20.4. 1. Proposed decrease in rating for right knee degenerative joint disease with instability from 30 percent to 0 percent. 2. Proposed decrease in rating for residuals right knee injury, chondromalacia patella, with limitation of extension, from 20 percent to 10 percent. The Board has jurisdiction where there is a question of law or fact on appeal to the Secretary. 38 U.S.C. § 7104; 7105; 38 C.F.R. § 20.104. Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. Where action by the rating agency would result in the reduction or discontinuance of compensation payments, 38 C.F.R. § 3.105(e) requires that a rating initially proposing the reduction or discontinuance be prepared setting out all material facts and reasons for the proposed action. The regulation requires that the beneficiary of the compensation payments be notified at his or her latest address of record of the contemplated action, furnished detailed reasons therefore, and be given 60 days from the date of the notice for the presentation of additional evidence to show that the compensation payments should be continued at their present level. See 38 C.F.R. § 3.105(e). In the April 2019 rating decision, the RO proposed a decrease in rating for right knee degenerative joint disease with instability from 30 percent to 0 percent and a decrease in rating for residuals right knee injury, chondromalacia patella, with limitation of extension, from 20 percent to 10 percent. In the accompanying notification letter, the Veteran was given notice of the proposal as required under 38 C.F.R. § 3.105(e). The Veteran prematurely appealed these proposed reductions in his May 2019 notice of disagreement. As the April 2019 rating decision did not reduce the ratings assigned, there is no question of law or fact for the Board to decide as to those issues. As such, the appeals related to the proposed decrease in rating for right knee degenerative joint disease with instability from 30 percent to 0 percent and the proposed decrease in rating for residuals right knee injury, chondromalacia patella, with limitation of extension, from 20 percent to 10 percent are dismissed. 3. Entitlement to an initial compensable rating for right knee limitation of flexion Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1.   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. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Service connection was established for right knee limitation of flexion in the April 2019 rating decision that is the subject of this appeal, which assigned a noncompensable rating pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5260, effective January 18, 2019. Compensable ratings are provided under Diagnostic Code 5260 for flexion limited to 45 degrees (10 percent), flexion limited to 30 degrees (20 percent), and flexion limited to 15 degrees (30 percent). For rating purposes, normal range of motion of the knee is from zero to 140 degrees. See 38 C.F.R. § 4.71a, Plate II. The Board finds that an initial 10 percent rating is warranted for right knee limitation of flexion under 38 C.F.R. §§ 4.40, 4.45 and 4.59 pursuant to the guidelines set forth in DeLuca. In this regard, the January 2019 VA examiner reported functional loss in the right knee due to pain on rest/non-movement and pain with flexion and on weight-bearing. An initial rating higher than 10 percent is not warranted for right knee limitation of flexion at any time during the appeal period since the Veteran’s right knee has never reflected flexion limited to 30 degrees to support the next highest (20 percent) rating under Diagnostic Code 5260. Rather, at worst, the Veteran exhibited flexion in the right knee limited to   60 degrees during the January 2019 VA examination, with no additional loss of flexion after repetition. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Van Wambeke, 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.