Citation Nr: 21001948 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 11-24 260 DATE: January 12, 2021 ORDER Entitlement to a rating higher than 10 percent for the left knee degenerative joint disease (formerly rated as history or torn medial collateral ligament with degenerative osteoarthritis, left knee) is denied. Entitlement to a rating higher than 10 percent for the right knee degenerative joint disease (formerly rated as status-post anterior cruciate ligament reconstruction with degenerative osteoarthritis, right knee) is denied. FINDINGS OF FACT 1. For the entire rating period on appeal from October 7, 2009, the left knee degenerative joint disease has been manifested by painful motion of the knee with flexion limited to 65 degrees with pain and full extension to 0 degrees. 2. For the entire rating period on appeal from October 7, 2009, the right knee degenerative joint disease has been manifested by painful motion of the knee with flexion limited to 65 degrees with pain and full extension to 0 degrees. CONCLUSIONS OF LAW 1. For the entire rating period on appeal from October 7, 2009, the criteria for an increased disability rating in excess of 10 percent for left knee degenerative joint disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5010-5003. 2. For the entire rating period on appeal from October 7, 2009, the criteria for an increased disability rating in excess of 10 percent for right knee degenerative joint disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code 5010-5003. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army during Peacetime and the Gulf War Era, from August 1983 to August 2003. The Veteran was granted service connection for status-post ACL reconstruction with degenerative osteoarthritis, right knee and history or torn MCL with degenerative osteoarthritis, left knee in October 2003, each rated as 10 percent disabling. See October 2003 Rating Decision. The Veteran requested an increased rating for both knee disabilities in October 2009. See October 2009 Veteran’s Statement. The Agency of Original Jurisdiction (AOJ) continued the 10 percent rating for both knees in May 2010. See May 2010 Rating Decision. The Veteran filed a timely appeal. See July 2011 Form 9. The Board reviewed the appeal and remanded for VA to provide the Veteran with a new medical examination, to include joint testing while weight-bearing and non-weight-bearing and active and passive motion. See June 2017 BVA Remand. The knee examination was performed in July 2020. The examination resulted in the Veteran being granted service connection for left knee instability and right knee instability in September 2020, each rated as 10 percent disabling. See September 2020 Rating Decision. For the knee arthritis, the 10 percent rating was continued. See September 2020 SSOC. The 10 percent for arthritis is warranted under DC 5003 based on a combination of arthritis, pain, and noncompensable limitation of motion. This decision is based on the continued 10 percent ratings for the two arthritis disabilities. Increased Rating 1. A rating higher than 10 percent for the left knee degenerative joint disease is denied 2. A rating higher than 10 percent for the right knee degenerative joint disease is denied For the entire increased rating period on appeal from October 7, 2009, the Veteran is in receipt of a 10 percent rating for the service-connected left knee degenerative joint disease and the right knee degenerative joint disease, both under Diagnostic Code (DC) 5003-5010. The arthritis in both knees has been reported and coded under DC 5260; however, as will be discussed below, the knee disabilities do not meet the compensable limitation of motion criteria for a 10 percent rating under 5260. For this reason, the actual criteria under which the 10 percent rating was assigned was Diagnostic Code 5010, which in turn rates under Diagnostic Code 5003, which provides a 10 percent rating for a major joint with arthritis where there is pain and noncompensable limitation of motion of that joint. A higher rating is only warranted if the limitation of motion becomes compensable under a code that rates on the basis of limitation of motion, namely, either Diagnostic Code 5260 or 5261. DC 5260 provides for a 0 percent rating where flexion of the leg is limited to 60 degrees; a 10 percent rating where flexion is limited to 45 degrees; a 20 percent rating where flexion is limited to 30 degrees; and a 30 percent rating where flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. A similar code, DC 5261, provides for a 0 percent rating where extension of the leg is limited to 5 degrees; a 10 percent rating where extension is limited to 10 degrees; a 20 percent rating where extension is limited to 30 degrees; a 30 percent rating where extension is limited to 20 degrees; a 40 percent rating where extension is limited to 30 degrees; and a 50 percent rating where flexion is limited to 45 degrees. 38 C.F.R. § 4.71a, DC 5261. Additionally, VA must consider whether a higher rating is necessary based on a greater limitation of motion due to pain on use or during flare-ups. Deluca v. Brown, 8 Vet. App. 202 (1995); Sharp v. Shulkin, 29 Vet. App. 26 (2017) (providing that functional impairment during flareups should be assessed). Functional limitations are applied to the schedular rating criteria to ascertain whether a higher schedular rating can be assigned based on limitation of motion due to pain and during flare-ups, and should be expressed in schedular rating terms of degree of range-of-motion loss. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011); Deluca v. Brown, 8 Vet. App. 202 (1995). The Veteran contends that his knee arthritis has worsened. See October 2009 Veteran’s Statement. The Veteran claimed that his right knee gives out; his right knee suffers from cracking and popping; his left knee is painful most of the time and gives out; and his left knee suffers from cracking and popping. Id. A VA examination was performed in August 2020. The examiner noted bilateral degenerative joint disease and bilateral instability. See August 2020 C&P Examination. The Veteran reported painful movement, locking, clicking, difficulty running due to pain, and knees lock when the Veteran sits for too long. The Veteran reported flareups about two times a week for the right knee and three times a week for the left knee, which last between 30 minutes to an hour. For either knee, flareups are precipitated by sitting too long. See August 2020 C&P Examination. The Veteran received a variety of tests. For both knees, the range of motion of flexion was limited to 75 degrees and the range of motion of extension was full extension to 0 degrees. The VA examiner noted evidence of weight bearing pain, and evidence of crepitus for both knees. The VA examiner also noted functional loss with pain for flexion. See August 2020 C&P Examination. During repetitive use testing, the examiner estimated the additional limitation of range of motion due to pain, with range of motion for flexion to 65 degrees after three repetitions and extension lo 0 degrees after three repetitions. This decrease in range of motion was determined to be due to pain, fatigue, and lack of endurance. See August 2020 C&P Examination. The VA examiner also made note that the Veteran had reduced muscle strength in both knees, but no atrophy; no diagnosis or finding of ankylosis, recurrent subluxation, recurrent effusion, patellar dislocation, shin splints, stress fractures, chronic exertional compartment syndrome, and no other tibial or fibular impairment; had regular bilateral use of knee braces; and had imaging confirm the diagnosis of degenerative joint disease. See August 2020 C&P Examination. A 10 percent rating under DC 5260 requires flexion limited to 45 degrees. A 10 percent rating under DC 5261 requires extension limited to 10 degrees. Without pain as an added factor, the range of motion for flexion of both knees is limited to 75 degrees. Without pain, the range of motion for extension of both knees is limited to 0 degrees. Once pain, weight-bearing, repetitive use, and fatigue are taken into account, the range of motion for flexion of both knees is limited to 65 degrees. With pain, the range of motion for extension is not limited, but is 0 degrees for both knees. As such, the weight of the lay and medical evidence shows the current disabilities do not meet the criteria for a 10 percent ratings for limitation of flexion or extension, so do not warrant a higher rating than the 10 percent rating in effect under the criteria of Diagnostic Code 5003. For the entire rating period on appeal from October 7, 2009, the left knee degenerative joint disease and the right knee degenerative joint disease have been manifested by painful motion of each knee with flexion limited to 65 degrees with pain and full extension to 0 degrees. Accordingly, for the entire initial rating period on appeal from October 7, 2009, the criteria for an increased disability rating in excess of 10 percent for left knee degenerative joint disease and the right knee degenerative joint disease are not met. 38 C.F.R. §§ 4.3, 4.7, 4.71a. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Plambeck, Charles 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.