Citation Nr: 21001953 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 16-37 147 DATE: January 12, 2021 ORDER An initial rating in excess of 10 percent for right knee limitation of flexion, from October 28, 2013 to November 19, 2013, is denied. A rating in excess of 10 percent for right knee limitation of flexion from February 1, 2014, forward, is denied. A compensable rating for right knee limitation of extension is denied. FINDINGS OF FACT 1. The Veteran’s right knee disability did not result in ankylosis; recurrent subluxation or lateral instability; dislocated or removed meniscus; flexion functionally limited to 60 degrees or less; an impairment of the tibia and fibula; or genu recurvatum, at any time during the period on appeal. 2. The Veteran’s right knee disability has not been shown to result in extension functionally limited to 10 degrees. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for right knee limitation of flexion, from October 28, 2013 to November 19, 2013, have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5256-5263. 2. The criteria for a rating in excess of 10 percent for right knee limitation of flexion from February 1, 2014, forward, have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5256-5263. 3. The criteria for a compensable rating for right knee limitation of extension have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5256-5263. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1983 to January 1986. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a May 2019 Board hearing. A complete transcript is of record. This appeal was previously before the Board in December 2019. The Board remanded the Veteran’s claim for an increased rating for her right knee disability, and her claim for service connection for a left knee disorder, as secondary to the service-connected right knee disability. A subsequent August 2020 rating decision granted service connection for a left knee disability. That decision is considered a full grant of benefits sought on appeal, and the appeal concerning a left knee disability is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997).  The Veteran’s increased ratings claims for her right knee disability was remanded to obtain the Veteran’s private treatment records from February 2014, forward. The Board also ordered a new VA examination to determine the current severity of her right knee. The Veteran’s private treatment records, from 2013, forward, have been obtained and the Veteran was afforded a VA examination for her right knee in August 2020. As such, the Board finds that there has been substantial compliance with the December 2019 Board remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Rating 1. An initial rating in excess of 10 percent for right knee limitation of flexion, from October 28, 2013 to November 19, 2013, is denied. 2. A rating in excess of 10 percent for right knee limitation of flexion from February 1, 2014, forward, is denied. 3. A compensable rating for right knee limitation of extension is denied. The Veteran asserts that she is entitled to increased ratings for her right knee. Specifically, she testified that she does not feel she has full stability in her right knee. The Veteran has been assigned an initial 10 percent rating for right knee limitation of flexion from October 28, 2013 to November 19, 2013, based on painful motion. The Veteran was assigned a 100 percent rating from November 19, 2013 to February 1, 2014 for convalescence following patella replacement surgery. The 10 percent disability rating was restored after the convalescent period ended. The Veteran’s right knee limitation of extension has been assigned an initial noncompensable rating, effective October 16, 2014, the date she showed limitation of extension to 5 degrees. VA received the Veteran’s service connection claim for a right knee disability on October 28, 2013. An April 2014 rating decision assigned a temporary evaluation of 100 percent from November 19, 2013 and a 10 percent rating from February 1, 2014. However, a subsequent August 2014 rating decision found that clear and unmistakable error was committed by not granting an initial 10 percent rating for painful limitation of flexion and assigned an effective date of October 28, 2013. As such, the period on appeal begins on October 28, 2013. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. 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 it 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 that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Diagnostic Code 5256 evaluates ankylosis of the knee. The record contains no evidence of right knee ankylosis. As such, this Diagnostic Code is not applicable. Diagnostic Codes 5258 and 5259 evaluate the semilunar cartilage, which is synonymous with the meniscus. The record contains no evidence of a right knee meniscus tear or dislocation. As such, this Diagnostic Code is not applicable. Diagnostic Code 5262 evaluates impairment of the tibia and fibula. The record contains no evidence of an impairment of the tibia and fibula. As such, this Diagnostic Code is not applicable. Diagnostic Code 5263 evaluates genu recurvatum. The record contains no evidence of genu recurvatum. As such, this Diagnostic Code is not applicable. Diagnostic Code 5257 evaluates recurrent subluxation or lateral instability of a knee. The record contains no evidence of recurrent subluxation or lateral instability of the right knee. However, the Veteran testified that she felt that her right knee was unstable, and this Diagnostic Code will be discussed below. Under Diagnostic Codes 5260 and 5261 (limitation of knee flexion and knee extension respectively), a noncompensable rating may be assigned where either knee flexion is limited to 60 degrees or knee extension is limited to 5 degrees. A compensable (i.e. at least 10 percent) rating is assigned for either flexion limited to 45 degrees or extension limited to 10 degrees. A 20 percent rating is assigned for either flexion limited to 30 degrees or extension limited to 15 degrees. Of note, separate compensable ratings may be assigned for limitation of flexion and for limitation of extension, without violating the rule against pyramiding. See 38 C.F.R. § 4.14. Normal ranges of motion of the knee are to 0 degrees in extension, and to 140 degrees in flexion. 38 C.F.R. § 4.71, Plate II. The Veteran underwent a VA examination in February 2014 at which she stated that her knee was worse during a recent snowstorm, but added that the range of motion did not vary from day to day , and the examiner did not expect additional limitation of motion during flare-ups or following repetitive motion. Range of motion in the right knee ranged from 0-135 degrees with pain at 135 degrees. Repetitive motion testing did not reveal any additional limitation of motion. The Veteran also had full muscle strength, and clinical testing of stability was normal. No history of subluxation was noted. The Veteran was afforded a VA examination in October 2014. She reported flare-ups in her right knee and stated that she used the elevator instead of the stairs and could not run or play with her 9-year old. On examination, she demonstrated flexion to 140 degrees and extension to 5 degrees. There was no objective evidence of painful motion on extension. The Veteran was able to perform repetitive use testing with no additional loss in terms of range of motion. The examiner reported that the Veteran had functional impairment of the right knee based on less movement than normal and pain on movement. Muscle strength testing showed normal strength in all areas tested. Joint stability testing showed no joint instability. There was no evidence of ankylosis, any meniscal conditions, genu recurvatum, or impairment of the tibia and fibula. The Veteran provided testimony at the May 2019 Board hearing. She testified that she did not feel that the stability in her right knee was quite there. She stated that the range of motion in her right knee had not changed much, but reported that she did not stand on her right knee for any length of time because she did not feel like it was able to hold her weight. She reported that her right knee did not feel solid and did not do one leg exercises anymore, but never collapsed or fell. The Veteran was afforded a VA examination in August 2020. She reported flare-ups in her knees, she reported that physical therapy has been challenging and that her knees swell and make it difficult to move. She reported that she had functional impairment which caused her to stop paddling and speed walking and stated that she is more thoughtful when trying to do things. On examination, she showed right knee flexion to 110 degrees and extension to 0 degrees. The examiner reported that the range of motion itself contributed to functional loss and affected her ability to squat, kneel, use the stairs and walk long distances. The examiner also indicated that there was pain on examination for both flexion and extension and that there was pain with weight-bearing. The Veteran was able to perform repetitive use testing with no additional loss in terms of range of motion. The examiner reported that the examination did not take place immediately after repetitive use over time or during a flare-up, but noted pain would limit functional ability. The examiner estimated that the Veteran would not lose any additional range of motion after repetitive use over time or during flare-ups. Muscle strength testing showed normal strength in all areas tested. The examiner reported that there was no history of recurrent subluxation or lateral instability. Joint stability testing showed no joint instability. There was no evidence of ankylosis, any meniscal conditions, genu recurvatum, or impairment of the tibia and fibula. There was evidence of pain on non-weight bearing and the Veteran’s passive range of motion was the same as active range of motion. There was evidence of pain on passive motion, however, the range of motion was the same as active range of motion. The Veteran’s post-service treatment records, to include those associated with the claims file pursuant to the December 2019 Board remand directives have been carefully reviewed. The post-service treatment records show that she complained of painful motion in her right knee, but do not otherwise contain findings consistent with increased ratings. A private treatment note showed that there was no evidence of lateral instability in the right knee. See Medical Treatment Record - Non-Government Facility dated December 1, 2014. A November 2017 treatment note showed painless range of motion testing with flexion to 135 degrees, with full extension. The Veteran did show forward flexion limited to 90 degrees in December 2013; however, this was during the period when she was in receipt of a 100 percent rating, following the patella replacement surgery. Regarding a limitation of flexion, the Veteran consistently showed flexion in her right knee to well over 60 degrees, the threshold for even a noncompensable rating. For example, at worst, she showed flexion to 110 degrees at the August 2020 VA examination. Although the Veteran was reported to have pain at the August 2020 VA examination, she was not shown to have any additional loss in terms of range of motion. The Board acknowledges that the Veteran has reported flare-ups in her right knee; however, the August 2020 VA examiner reported that pain would limit functional ability, but she would not lose any additional range of motion during flare-ups. Further, the Board notes that neither the Veteran, nor her representative have asserted that flare-ups would be so pervasive as to effectively limit the flexion in her right knee to 30 degrees, the criteria for a 20 percent rating for limitation of flexion. As such, the Veteran does not meet the criteria for an increased rating for limitation of flexion. It is also worth noting that the Veteran was capable of performing repetitive motion testing without any additional limitation of motion. Accordingly, an initial rating in excess of 10 percent for right knee limitation of flexion, from October 28, 2013 to November 19, 2013, and from February 1, 2014, forward, is denied. Regarding a limitation of extension, the Veteran did show a limitation of extension to 5 degrees, the criteria for a noncompensable rating. There has been some painful motion during range of motion testing for extension. For example, the August 2020 VA examiner indicated that there was evidence of pain on extension during the initial range of motion testing. Further, the Veteran’s private treatment records show that she complained of painful motion in her right knee. See Medical Treatment Record - Non-Government Facility dated June 15, 2015. Correia testing at the 2020 VA examination also showed that her right knee had pain on both weight-bearing and non-weight-bearing. The Court has found “the terms ‘painful motion’ and ‘actually painful joints’ to be synonymous.” Petitti v. McDonald, 27 Vet. App. 415, 425 (2015). Compensation for pain is limited to a single 10 percent disability rating per joint when there is no actual or compensable limitation of motion. Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). Here, the Veteran does not have compensable limitation of motion, but the August 19, 2020 VA examination showed functional loss due to painful motion that is otherwise not compensable under the rating criteria. Here, although the Veteran has been shown to have painful limitation of extension, she is already in receipt of a 10 percent rating based on painful limitation of flexion. A Veteran is limited to a single 10 percent disability rating per joint when there is no actual or compensable limitation of motion, which describes the circumstances at hand. Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). The Veteran’s 10 percent rating for painful flexion precludes a second 10 percent rating for painful extension because compensation for pain is limited to a single 10 percent disability rating per joint. Id. The Veteran’s right knee limitation of extension has not been shown to result in functional limitation to 10 degrees or more during this period on appeal. As such, the Board finds that a separate compensable rating for limitation of extension is not warranted. Accordingly, a 10 percent rating for left knee limitation of extension is denied. Turning to knee instability, the Veteran has reported experiencing instability in her right knee. For example, she testified that she did not feel she had full stability in her right knee. She further testified that she did not feel as though her right knee could hold her weight if she were to stand on one leg; and that she did not do one leg exercise as a result. She did acknowledge that she had never collapsed or fallen because of her right knee, since the 2013 surgery. Although she stated her knee was “not stable”, her description appears to describe weakness in her right knee, not that her right knee would give out or that her knee moved from side to side. Further, clinical examinations of the Veteran’s joint stability have consistently shown normal results and the Veteran did not report symptoms of instability at any of the VA examinations. Additionally, the VA examiners of record have indicated that the Veteran did not have episodes of dislocation or recurrent subluxation and did not use any assistive devices, such as braces, crutches, or a cane. Accordingly, the Veteran has not met the criteria for a separate rating under Diagnostic Code 5257. The Board has considered whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. Additionally, painful motion is an important factor of disability; and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Here, the Veteran is already in receipt of the minimum compensable rating under this provision for limitation of flexion. As such, higher ratings for imitations of flexion and extension and are not warranted under DeLuca. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Fu, Associate 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.