Citation Nr: 21003647 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 16-12 955 DATE: January 22, 2021 ORDER A schedular rating in excess of 10 percent for right knee instability is denied. A schedular rating in excess of 10 percent for right knee pain is denied. FINDINGS OF FACT 1. The Veteran’s right knee instability does not result in moderate recurrent subluxation or lateral instability. 2. The Veteran’s right knee disability is productive of flexion functionally limited to no less than 80 degrees, with full extension. CONCLUSIONS OF LAW 1. The criteria for a schedular rating in excess of 10 percent for right knee instability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5256-63. 2. The criteria for a schedular rating in excess of 10 percent for right knee pain have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5256-63. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1968 to August 1970. In connection with this appeal, the Veteran and his wife testified at a hearing before the undersigned in June 2019. A transcript of that hearing is of record. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran filed an increased rating for his right knee disability. An October 2013 rating decision continued the assigned 10 percent ratings. He asserts that he is entitled to higher ratings. He reported that his right knee gave out, he had fallen, and he used a walker. At the June 2019 Board hearing, he testified that had flare-ups once a week. He testified that his knee buckled. His wife testified that the Veteran’s right knee had worsened. In September 2019, the Board remanded the claim for further development. The Veteran is currently assigned a 10 percent rating under Diagnostic Code 5257 and a 10 percent rating under Diagnostic Code 5260. Under Diagnostic Code 5257 for recurrent subluxation or lateral instability, a 10 percent rating is assigned for slight recurrent subluxation or lateral instability. A 20 percent rating is assigned for moderate recurrent subluxation or lateral instability. A 30 percent rating is assigned for severe recurrent subluxation or lateral instability. The words “slight,” “moderate,” and “severe” as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for “equitable and just decisions.” 38 C.F.R. § 4.6. Under Diagnostic Code 5260 for limitation of knee flexion, a noncompensable rating is assigned for flexion limited to 60 degrees. A 10 percent rating is assigned for flexion limited to 45 degrees. A 20 percent rating is assigned for flexion limited to 30 degrees. A 30 percent rating is assigned for flexion limited to 15 degrees. Under Diagnostic Code 5261 for limitation of knee extension, a noncompensable rating is assigned for extension limited to 5 degrees. A 10 percent rating is assigned for extension limited to 10 degrees. A 20 percent rating is assigned for extension limited to 15 degrees. A 30 percent rating is assigned for extension limited to 20 degrees. A 40 percent rating is assigned for extension limited to 30 degrees. A 50 percent rating is assigned for extension limited to 45 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. Specifically, when a veteran has both a compensable level of limitation of flexion and a compensable level of limitation of extension of the same leg, the limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg. See VAOPGCPREC 09-04. 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. Diagnostic Code 5256 evaluates ankylosis of the knee, Diagnostic Codes 5258 and 5259 evaluate impairments of the semilunar cartilage, Diagnostic Code 5262 evaluates impairment of the tibia and fibula, and Diagnostic Code 5263 evaluates genu recurvatum. The medical record does not document any of these conditions. Therefore, these Diagnostic Codes are not applicable and will not be discussed further. The Veteran’s medical records show treatment for his right knee symptoms, but his medical records do not show findings consistent with higher ratings. In September 2013, the Veteran was afforded a VA examination. He reported that his right knee ached all the time, walking made his right knee hurt, and wore a brace occasionally. He reported having flare-ups. On examination, he demonstrated right knee flexion to 110 degrees with pain and normal extension to 0 degrees. The examiner indicated that repetitive use testing did not result in any additional limitation of motion. The examiner indicated that the Veteran had less movement than normal and pain on movement. The examiner reported that there was no additional limitation due to pain, weakness, fatigability, or incoordination. The Veteran retained normal 5/5 right knee strength. The examiner indicated that the Veteran had normal joint stability tests. The examiner indicated that the Veteran had no evidence or history of recurrent patellar subluxation/dislocation, shin splints, stress fracture, chronic exertional compartment syndrome, any other tibial and/or fibular impairment, or meniscal condition. The examiner indicated that the Veteran used a cane constantly. In August 2017, the Veteran was afforded a VA examination. He denied having flare-ups or functional loss. On examination, he demonstrated right knee flexion to 110 degrees and normal extension to 0 degrees. The examiner indicated there was pain noted on examination, but that pain did not result in or cause functional loss. The examiner reported that there was no evidence of pain with passive range of motion testing. The examiner reported there was no evidence of pain on weight bearing or non-weight bearing. The examiner indicated that repetitive use testing did not result in any additional loss of function or range of motion. The examiner indicated that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time. The Veteran retained normal 5/5 right knee strength with no muscle atrophy. The examiner indicated that the Veteran did not have ankylosis. The examiner indicated that the Veteran did not have a history of recurrent subluxation or lateral instability. The examiner indicated that the Veteran had normal joint stability tests. The examiner indicated that the Veteran had no evidence or history of recurrent patellar dislocation, shin splints, stress fracture, chronic exertional compartment syndrome, any other tibial and/or fibular impairment, or meniscal condition. The examiner indicated that the Veteran occasionally used a walker. In September 2018, the Veteran was afforded a VA examination. His wife reported that the Veteran had several falls in the past few years due to his right knee buckling. The Veteran reported use of a knee brace that did not help stabilize his knee. He reported having frequent flare-ups resulting in his right knee constantly giving out. On examination, he demonstrated right knee flexion to 80 degrees and normal extension to 0 degrees. The examiner indicated that there was pain noted on examination that caused functional loss. The examiner reported that there was no objective evidence of pain with passive range of motion. The examiner indicated there was pain with weight bearing. The examiner reported that there was no objective evidence of pain with non-weight bearing. The examiner indicated that the Veteran’s right knee resulted in instability of station, disturbance of locomotion, and interference with standing. The Veteran retained 4/5 right knee strength with no muscle atrophy. The examiner indicated that the Veteran did not have ankylosis. The examiner indicated that the Veteran did not have a history of recurrent subluxation or lateral instability. The examiner indicated that the Veteran had normal joint stability tests. The examiner indicated that the Veteran had no evidence or history of recurrent patellar dislocation, shin splints, stress fracture, chronic exertional compartment syndrome, any other tibial and/or fibular impairment, or meniscal condition. The examiner indicated that the Veteran constantly used a brace. In February 2020, the Veteran was afforded a VA examination. He reported that his right knee buckled and resulted in falls. He reported constant right knee pain. He denied having flare-ups or functional loss. On examination, he demonstrated right knee flexion to 130 degrees and normal extension to 0 degrees. The examiner indicated that the limited range of motion did not contribute to functional loss. The examiner reported there was no evidence of pain on weight bearing. The examiner indicated that repetitive use testing did not result in any additional loss of function or range of motion. The examiner indicated that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time. The examiner did not indicate that the Veteran had any additional contributing factors of disability. The Veteran retained normal 5/5 right knee strength with no muscle atrophy. The examiner indicated that the Veteran did not have ankylosis. The examiner indicated that the Veteran did not have a history of recurrent subluxation or lateral instability. The examiner indicated that the Veteran had normal joint stability tests. The examiner indicated that the Veteran had no evidence or history of recurrent patellar dislocation, shin splints, stress fracture, chronic exertional compartment syndrome, any other tibial and/or fibular impairment, or meniscal condition. The examiner indicated that the Veteran regularly used a walker. The Board finds that the criteria to assign a rating in excess of 10 percent for the Veteran’s right knee instability and a rating in excess of 10 percent for the Veteran’s right knee limitation of flexion are not warranted. The Veteran has been assigned a 10 percent rating under Diagnostic Code 5257 for his right knee instability and a 10 percent rating under Diagnostic Code 5260 for his right knee pain. Regarding right knee instability, the September 2013 VA examiner indicated that the Veteran had normal joint stability tests. The August 2017, September 2018, and February 2020 VA examiners all indicated that the Veteran did not have a history of recurrent subluxation or lateral instability and had normal joint stability tests. The September 2018 VA examiner indicated that the Veteran’s right knee disability resulted in instability of station. The VA examiners indicated that the Veteran used assistive devices due to his right knee. While the evidence of record does not show objective medical evidence of right knee instability, the Veteran and his wife both reported that he had fallen due to his right knee. As such, the Board will not disturb the assigned 10 percent rating for slight right knee recurrent subluxation or lateral instability. However, the Veteran is not found to meet the criteria for a 20 percent rating under Diagnostic Code 5257, which requires moderate recurrent subluxation or lateral instability. Regarding limitation of flexion, the VA examiners indicated that the Veteran demonstrated, at worse, right knee flexion to 80 degrees, which exceeds the 60 degree limitation equivalent to a noncompensable rating. Accordingly, the Veteran is not found to meet the criteria for even a compensable rating under Diagnostic Code 5260, which requires flexion to be limited to 60 degrees. Turning to limitation of extension, the VA examiners indicated that the Veteran retained normal right knee extenuation to 0 degrees, which exceeds the 5 degree limitation equivalent to a noncompensable rating. Accordingly, the Veteran is not found to meet the criteria for a noncompensable rating under Diagnostic Code 5261, which requires extension to be limited to 5 degrees. The Board has considered whether higher disability evaluations are 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 for either knee. 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. The September 2013 VA examiner indicated that there was no additional limitation due to pain, weakness, fatigability, or incoordination. The August 2017 and February 2020 VA examiners indicated that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time. The Veteran’s treatment records do not document flexion or extension equivalent to even noncompensable ratings. As such, the evidence simply does not support the conclusion that the Veteran’s right knee disability results in findings consistent compensable ratings. Thus, a greater rating for limitation of flexion or extension is not warranted under DeLuca. While the Veteran has been shown to experience right knee pain, the United States Court of Appeals for Veterans Claims has held that even if range of motion was slightly limited by pain, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 36-38 (2011). Rather, pain must affect some aspect of “the normal working movements of the body” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. Id. at 43; see 38 C.F.R. § 4.40. Here, the Veteran consistently retained flexion and extension in excess of compensable ratings. As such, there is no basis for higher ratings under Diagnostic Codes 5260 or 5261. To the extent that it is argued that the Veteran’s range of motion is painful and therefore would merit a separate compensable rating under 38 C.F.R. § 4.59, that provision states that it is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. However, here, the Veteran is currently assigned the minimum compensable rating and is in receipt of a 10 percent rating under Diagnostic Code 5260 for his right knee pain. A rating in excess of 10 percent based on pain alone is not warranted. Accordingly, a schedular rating in excess of 10 percent for the Veteran’s right knee instability and a schedular rating in excess of 10 percent for the Veteran’s right knee pain have not been met, and the claims are denied. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Berryman, 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.