Citation Nr: 21001597 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 14-18 112 DATE: January 11, 2021 ORDER A rating in excess of 10% for a service-connected right knee disability from September 26, 2012 to June 12, 2019 is denied. A rating in excess of 20% for a service-connected right knee disability from June 13, 2019 until the present is denied. FINDINGS OF FACT 1. During the period on appeal, the Veteran demonstrated zero degrees of extension and no worse than 120 degrees of flexion. Further, the Veteran’s right knee showed no evidence of ankylosis, severe subluxation or lateral instability, or impairment of the tibia and fibula. The Veteran reported at May 2013 and April 2018 VA examinations that she does not experience flare-ups and there is no evidence of additional limitation of motion after repetitive-use testing or after repeated use over time. 2. During the period on appeal, the Veteran demonstrated zero degrees of extension and no worse than 70 degrees of flexion. Further, at a June 2019 VA examination, the Veteran’s right knee showed no evidence of ankylosis, severe subluxation or lateral instability, or impairment of the tibia and fibula. The examination was performed during a flare-up, but the examiner opined that there was no basis to offer additional losses of function or motion when it came to the Veteran’s flare ups. CONCLUSIONS OF LAW 1. From September 26, 2012 to June 12, 2019, the criteria have not been met for a disability rating in excess of 20 percent for the Veteran’s right knee condition under Diagnostic Codes (DC) 5010-5260. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a. 2. From June 13, 2019, the criteria have not been met for a disability rating in excess of 20 percent for the Veteran’s right knee condition under DC 5010-5260. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from June 1999 to December 2003. These matters are before the Board of Veteran’s Appeals (Board) on appeal from a July 2019 rating decision of a Department of Veteran Affairs (VA) Regional Office (RO). These matters were previously remanded by the Board for additional development on December 2017 and August 2018. A November 2019 Board decision a rating in excess of 20 percent from June 13, 2019 for a right knee condition. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Veterans Court) and, in August 2020, the Veterans Court issued an order incorporating a Joint Motion for Remand (JMR), vacating the Board’s decision and remanding the claim for re-adjudication in compliance with directives specified. In September 2016, a videoconference hearing was held before the undersigned; a transcript of the hearing is associated with the record. Increased Rating 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 symptoms 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. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt is resolved in the Veteran’s favor. 38 C.F.R. § 4.3. When an evaluation of a disability is based on limitation of motion, the Board must also consider, in conjunction with the otherwise applicable diagnostic code, any additional functional loss the Veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy of disuse. 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. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Nonetheless, a disability rating higher than the minimum compensable rating is not assignable under any diagnostic code relating to range of motion where pain does not cause a compensable functional loss. Rather, the “pain must affect some aspect of ‘the normal working movements of the body’ such as ‘excursion, strength, speed, coordination, and endurance,’ “as defined in 38 C.F.R. § 4.40, before a higher rating may be assigned. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011) (noting that while “pain may cause a functional loss, pain itself does not constitute a functional loss,” and, is therefore, not grounds for entitlement to a higher disability rating). Consideration is to be given to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, atrophy of disuse, instability of station, or interference with standing, sitting, or weight bearing. See 38 C.F.R. § 4.45. Increased ratings of the knees Legal Criteria Under 38 C.F.R. § 4.71a, DC 5003, degenerative arthritis is rated on the basis of limitation of motion of the specific joint involved. When limitation of motion is noncompensable, a 10 percent rating is applicable for each major joint. In the absence of limitation of motion, a maximum schedular 20 percent rating is assigned for degenerative arthritis of two or more major joints or two or more minor joint groups, with occasional incapacitating episodes. DC 5010 uses the same criteria as DC 5003. DC 5256, 5262, and 5263 provide ratings for ankylosis, impairment of tibia and fibula, and genu recurvatum, respectively. The evidence affirmatively shows that these symptoms are absent and the Veteran does not state otherwise. Therefore, these DCs are not applicable. Under DC 5258, a maximum 20 percent rating is warranted for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. DC 5259 holds that symptoms due to the removal of the semilunar cartilage of either knee warrant a 10 percent rating, which is the maximum rating under that diagnostic code. Under DC 5260, a noncompensable rating is assigned for limitation of flexion of the leg to 60 degrees; a 10 percent rating is assigned for limitation of flexion of the leg to 45 degrees; a 20 percent rating is assigned for limitation of flexion of the leg to 30 degrees; and a 30 percent rating is assigned for limitation of flexion of the leg to 15 degrees. See id. Under DC 5261, limitation of extension of the leg warrants a noncompensable rating when extension is limited to 5 degrees; a 10 percent rating when extension is limited to 10 degrees; a 20 percent rating when limited to 15 degrees; 30 percent when limited to 20 degrees; 40 percent when limited to 30 degrees; and 50 percent when limited to 45 degrees. See id. The diagnostic criteria applicable to impairment of the tibia and fibula are found at 38 C.F.R. § 4.71a, DC 5262. Under that code, a 10 percent evaluation is warranted when malunion of the tibia and fibula produces slight knee or ankle disability. A 20 percent evaluation is warranted when malunion of the tibia and fibula produces moderate knee or ankle disability, and a 30 percent evaluation is warranted when such disability is marked. A 40 percent evaluation is warranted for nonunion of the tibia and fibula, with loose motion, requiring a brace. DC 5263 is the rating code for genu recurvatum. Genu recurvatum is a deformity in the knee in which the knee bends backwards. The 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). 1. A rating in excess of 10% for a service-connected right knee disability from September 26, 2012 to June 12, 2019 is denied. Factual Background The Veteran was afforded a May 2013 VA examination during which she showed zero degrees extension to 130 degrees flexion for her right knee. Pain was noted during the examination, but it did not result in functional loss. There was no loss of range of motion following repetitive testing. The Veteran did not report any flare ups of the right knee. There was no evidence or history of recurrent patellar subluxation or dislocation. The examiner noted that the Veteran had a semilunar cartilage condition, but it did not result in frequent episodes of joint “locking”, pain and effusion. Joint stability testing of the right knee was performed and there was no evidence of joint instability. At a December 2014 orthopedic consultation, the conducting physician indicated that the Veteran denied right knee instability and declined an injection for her right knee in May 2014. The Veteran’s range of motion for her right knee was zero to 125 degrees. An August 2016 VA treatment indicates that the Veteran’s right knee was positive for joint laxity and that she was issued a knee brace. The Veteran testified at the September 2016 VA Board hearing that her right knee condition has gotten worse. The Veteran testified that she took weeks off of work to get injections, had issues with her knee stability and required the usage of a brace. The Veteran submitted an April 2017 private treatment note which indicated that she was experiencing popping, weakness and stiff throbbing pain of the right knee. At a June 2017 private treatment, the Veteran displayed greater than 125 degrees of flexion for her right knee. The Veteran was provided an April 2018 VA examination during which she showed zero degrees extension to 120 degrees flexion for her right knee. Pain was noted during the examination, but it did not result in functional loss. There was no loss of range of motion following repetitive testing. The Veteran did not report any flare ups of the right knee. There was no evidence or history of recurrent patellar subluxation or dislocation. The examiner noted that the Veteran did not have a semilunar cartilage condition. There was objective evidence of pain on passive range of motion testing but no objective evidence of pain when the joint was used in non-weight bearing. Joint stability testing of the right knee was performed and there was no evidence of joint instability. The examiner stated that the Veteran did not have any tibia or fibular impairment. Analysis The Board finds that the preponderance of the evidence is against a finding that the Veteran is eligible for rating in excess of 10 percent for a right-knee condition from September 26, 2012 to June 12, 2019. Additionally, the Veteran did not display any ankylosis of her right knee during the period on appeal and accordingly an increase under DC 5256 is not warranted. The Veteran’s right knee disability does not warrant a higher rating for instability under DC 5257. While the Veteran has competently and credibly reported that her right knee gives out, the clinical diagnosis of joint instability falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Here, neither the May 2013 nor April 2018 VA examinations show any evidence of anterior, posterior, medial or lateral instability or the right knee. As such, the Board finds a rating in excess of 20 percent is not warranted under DC 5257. A separate higher rating is not warranted under DC 5258, because there is no evidence of dislocation of semilunar cartilage with episodes of locking, pain, and effusion. While the evidence of record demonstrates the Veteran has right knee pain and occasional locking, all required criteria under DC 5258 are not met. In order to be eligible for a higher, 20 percent rating under DC 5261, the Veteran’s right leg extension must be limited to 15 degrees or her flexion must be limited to 30 degrees. During the period on appeal, the Veteran demonstrated zero degrees of extension and no worse than 120 degrees of flexion. Accordingly, an increase to 20 percent under DC 5261 is not warranted. An increase to 20 percent under DC 5262 is not warranted because the Veteran has not demonstrated malunion of the tibia and fibula at any point during the period on appeal. Additionally, because the Veteran reported at both examinations that she does not experience flare-ups and there is no evidence of additional limitation of motion after repetitive-use testing or after repeated use over time, the preponderance of the evidence is against an increased rating under DeLuca or Sharp. 2. A rating in excess of 20% for a service-connected right knee disability from June 13, 2019 until the present is denied. Factual Background The Veteran was afforded a June 2019 VA examination, where she reported constant throbbing and pain in both of her knees that she rated as a 7 on a scale of 1 to 10 and pain that limited her walking mobility during flare ups. She further stated that her decreased range of motion made kneeling and going from sitting to standing difficult. The Veteran also reported that both her knees have gotten worse in the last 18 months due to increased pain and stiffness that is affecting her mobility. The examiner performed a range of motion examination where the Veteran’s right knee flexion was 0 to 70 degrees while her extension was 70 to 0 degrees. The examiner noted objective evidence of pain on the range of motion test and that it caused functional loss. The examiner tested the Veteran’s joint stability and found that there was no anterior, posterior, medical or lateral instability. The Veteran was unable to perform repetitive-use testing with at least three repetitions due to fear of pain. The examiner opined that review of the Veteran’s records and considering her subjective reports and objective examination findings, there remains no rational basis to make a notation regarding any additional losses of function or motion when it comes to repeated use over time. The examiner indicated that the Veteran had a semilunar cartilage condition which resulted in frequent episodes of joint “locking” and joint pain. The examination was performed during a flare-up, but the examiner opined that, after reviewing the record, there was no basis to offer additional losses of function or motion when it came to the Veteran’s flare ups. The examiner also opined that there was no rational basis to make a notation regarding any additional losses of function or motion when it came to repeated use over time. The examiner stated there was objective evidence of pain on passive range of motion testing and objective evidence of pain when the joint was used in non-weight bearing. Analysis The competent and probative evidence shows that the Veteran’s right knee does not warrant a higher rating for instability under DC 5257. While the Veteran has competently and credibly reported that her right knee gives out, the clinical diagnosis of joint instability falls outside the realm of common knowledge of a lay person. See Kahana supra; Jandreau supra. Here, neither the June 2019 VA examination does not show any evidence of anterior, posterior, medial or lateral instability or the right knee. As such, the Board finds a rating in excess of 20 percent is not warranted under DC 5257. Additionally, the Veteran’s right knee disorder does not more warrant a rating in excess of 20 percent under DC 5260 or DC 5261. In order to be eligible for a 30 percent rating, a veteran’s flexion must be limited to 15 degrees and their extension must be limited to 20 degrees. The June 2019 VA examiner stated that the Veteran’s flexion was limited to 70 degrees and her extension was zero degrees. With regard to both periods, neither the Veteran nor any examiner has reported that pain, weakened movement, excess fatigability, incoordination, would alter her range of motion to the degree required for a higher rating after repetitive use, due to pain, with weight bearing, or during flare-ups. The Veteran has been able to take care of her activities of daily living and even with repetitive use there is no significant loss of motion. Given her reported symptoms do not prevent her from achieving substantial measured range of motion of the right knee, they do not support a finding of additional functional loss for higher rating. The Veteran’s subjective reports have been taken into consideration, but there is no evidence that her right knee disability causes significant or additional functional loss beyond that contemplated by the assigned 10 and 20 percent evaluations. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2017); DeLuca supra; Mitchell v. Shinseki, 25 Vet. App. 32 (2011); Correia v. McDonald, 28 Vet. App. 158 (2016), and Sharp supra. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Alexander Bahus 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.