Citation Nr: 21002456 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 12-05 022A DATE: January 13, 2021 ORDER A rating in excess of 10 percent for right knee disability due to painful motion is denied. A separate 10 percent rating for right knee for instability is granted. A rating in excess of 10 percent for left knee disability due to painful motion is denied. A separate 10 percent rating for left knee for instability is granted. FINDINGS OF FACT 1. The Veteran’s right knee disability is manifest by painful motion but not limitation of flexion of extension to a compensable degree. 2. The Veteran’s right knee disability is manifest by slight lateral instability. 3. The Veteran’s left knee disability is manifest by painful motion but not limitation of flexion of extension to a compensable degree. 4. The Veteran’s left knee disability is manifest by slight lateral instability. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for a right knee disability due to limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5010-5260. 2. The criteria for a separate rating of 10 percent, but not higher, for slight right knee lateral instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. 3. The criteria for a rating in excess of 10 percent for a left knee disability due to limitation of flexion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5010-5260. 4. The criteria for a separate rating of 10 percent, but not higher, for slight left knee lateral instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1985 to April 1993. The Board remanded the issues on appeal for additional development in September 2017 and again in March 2020. Increased Rating A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 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 that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Bilateral Knees The Veteran’s right and left knee disabilities are currently rated as10 percent disabling under Diagnostic Code 5010-5260. The Veteran asserts that his knee disabilities are worse than the current disability ratings indicate.  A. Limitation of Motion Diagnostic Code 5010 provides that arthritis due to trauma is rated as degenerative arthritis.  Under 38 C.F.R. § 4.71a, Diagnostic Code 5003, degenerative arthritis is rated based upon the nature and extent of any limitation of motion. If the limitation of motion of the joint involved is noncompensable, a rating of 10 percent is applicable. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, but with X-ray evidence of involvement of two or more major joints or two or more minor joint groups and occasional incapacitating exacerbations, a 20 percent evaluation is assigned. With X-ray evidence of involvement of two or more major joints or two or more minor joint groups, a 10 percent rating is assigned. 38 C.F.R. § 4.71a, Diagnostic Code 5003.  The normal range of motion for the knee is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II. Leg flexion limited to 60, 45, 30, and 15 degrees warrants noncompensable, 10 percent, 20 percent, and 30 percent evaluations, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Leg extension limited to 5, 10, and 15 degrees warrants noncompensable, 10 percent, and 20 percent evaluations, respectively.  38 C.F.R. § 4.71a, Diagnostic Code 5261.  When assigning a disability rating, some of the regulations preceding the rating schedule add flexibility to the listed Diagnostic Codes. 38 C.F.R. § 4.59 is one such regulation. In Petitti v. McDonald, 27 Vet. App. 415, 424 (2015), the Court of Appeals for Veterans Claims (Court) noted that § 4.59 “explain[s] how to arrive at proper evaluations under the DCs appearing in the disability rating schedule.” The provisions of § 4.59 acknowledge that a claimant’s disability may cause actual pain or painful motion but still not be severe enough to warrant a compensable rating under the appropriate Diagnostic Code. Accordingly, when there is evidence of painful motion, § 4.59 operates to provide at least the minimum compensable rating available under the Diagnostic Code for the joint. See Sowers v. McDonald, 27 Vet. App. 472, 478 (2016).  While § 4.59 adds flexibility to the rating schedule, it is also limited by the terms of the appropriate Diagnostic Code for the joint. Thus, if the appropriate Diagnostic Code for the joint does not provide a compensable rating, a claimant is not entitled to a minimum rating. Id. at 481 (“Section 4.59 may intend to compensate painful motion, but it does not guarantee a compensable rating”). Sowers highlights the importance of the Diagnostic Code under which the Veteran is rated because § 4.59 operates within the parameters of the Diagnostic Code.  Where the record contains evidence of an actually painful, unstable, or malaligned joint or periarticular region, § 4.59 is potentially applicable. See Southall-Norman v. McDonald, 28 Vet. App. 346, 354 (2016).  The Veteran has exhibited painful motion throughout the period on appeal. But he has not been limited to 45 degrees of flexion or 10 degrees of extension in either knee. First considering flexion, at its worst, he has been limited to 80 degrees of flexion in both his left and right knees during flare-ups and after repetitive use over time due to pain and lack of endurance. See October 2020 VA Examination Report. Considering extension, VA examiners spanning the appeal period have documented full extension in both of the Veteran’s knees and no limitation of extension is documented elsewhere. Because the Veteran has not been shown to have flexion or extension limited to a compensable degree, the Board finds that a rating in excess of 10 percent is not warranted for either the Veteran’s right or left knee due to limitation of motion. 38 C.F.R. §§ 4.45, 4.59.  B. Instability  Diagnostic Code 5257 provides ratings for other knee impairments with the following ratings assigned: 10 percent for slight, 20 percent for moderate, and 30 percent for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The words “slight,” “moderate,” and “severe” as used in the various diagnostic codes are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all the evidence, to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6.  Objective medical evidence of knee instability is not required, and objective medical evidence is not categorically more probative than lay evidence. English v. Wilkie, 30 Vet. App. 347. Both of the Veteran’s knees have some degree of instability. In an August 2013 VA treatment record the Veteran reported that his right knee had given out in July of that year. A May 2014 examiners noted the Veteran’s history of instability. The October 2020 VA examiner noted that the Veteran’s left knee a history of slight instability. However, stability testing during all the VA examinations, including the May 2014 and October 2020 examinations documenting instability, was normal. Therefore, because the both of the Veteran’s knees have demonstrated some limited instability but objective testing has been consistently normal, the Board finds that the Veteran’s symptoms most nearly approximate mild recurrent instability and separate 10 percent ratings, but no higher, are warranted for both his left and right knees. 38 C.F.R. § 4.71a, DC 5257. C. Semilunar Cartilage  There is no indication that the Veteran has had dislocated semilunar cartilage or that the semilunar cartilage either of the Veteran’s knees has been removed. Therefore, no separate ratings pursuant to Diagnostic Code 5258 or Diagnostic Code 5259 is warranted.  D. Additional Conditions  The Board has also considered whether an additional or higher rating would be available under other diagnostic codes pertaining to the knees. There is no indication of ankylosis; no impairment of the tibia or fibula; and no diagnosis of genu recurvatum. As such, there is no basis for evaluating either of the Veteran’s knees under Diagnostic Codes 5256, 5262, or 5263. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Mine 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.