Citation Nr: 21003894 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 17-52 227 DATE: January 25, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for the Veteran’s right knee disability under Diagnostic Code 5260 is denied. Entitlement to a compensable disability rating for the Veteran’s right knee disability under Diagnostic Code 5261 is denied. Entitlement to a separate disability rating for 10 percent for the Veteran’s right knee instability under Diagnostic Code 5257 is granted. FINDING OF FACT The Veteran’s right knee disability manifested as painful flexion and extension, with slight instability. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for a right knee disability pursuant to Diagnostic Code 5260 have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260 (2020). 2. The criteria for a compensable disability rating for a right knee disability pursuant to Diagnostic Code 5261 have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260 (2020). 3. The criteria for a separate 10 percent disability rating for right knee instability pursuant to Diagnostic Code 5257 have been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.71a, Diagnostic Code 5257 (2020). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served in the Air Force from June 1971 to March 1975. In December 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ) and a transcript is of record. In February 2020, the Board remanded the case to the Agency of Original Jurisdiction (AOJ) for the Veteran to receive a new VA examination to assess his right knee disability. The Veteran received new VA examination in March 2020 and the examiner provided sufficient information to assess the severity of the Veteran’s disability. Accordingly, the Board finds there has been substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The Board acknowledges the Veteran’s attorney made a general argument regarding VA’s duty to assist and duty to notify. However, neither the Veteran nor his attorney advanced a specific argument regarding either duty. Furthermore, VA has complied with its duty to assist by affording the Veteran another opportunity to receive a VA examination. Neither the Veteran nor his attorney have raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Rating Disability ratings are determined by applying the criteria established in VA’s Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.1, 4.20 (2020). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2020). Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant. 38 C.F.R. § 4.3 (2020). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Given the nature of the present claim for a higher initial evaluation, the Board has considered all evidence of severity since the effective date for the award of service connection for his right knee disability in October 2003. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran’s right knee disability is rated at 10 percent under Diagnostic Code 5260 for limitation of flexion. Under this Diagnostic Code, a noncompensable rating is warranted when flexion is limited to 60 degrees. A 10 percent rating is warranted when flexion of the leg is limited to 45 degrees. A 20 percent rating is warranted when flexion is limited to 30 degrees. A 30 percent rating is warranted when flexion is limited to 15 degrees. 38 C.F.R. § 4.71a (2020). Normal flexion is 140 degrees. 38 C.F.R. § 4.71, Plate II (2020). The Board will also consider Diagnostic Code 5261 for limitation of extension. Under this Diagnostic Code, a noncompensable rating is warranted when extension is limited to 5 degrees. A 10 percent rating is warranted when extension of the leg is limited to 10 degrees. A 20 percent rating is warranted when extension is limited to 15 degrees. A 30 percent rating is warranted when extension is limited to 20 degrees. A 40 percent rating is warranted when extension is limited to 30 degrees. A 50 percent rating is warranted when extension is limited to 50 degrees. 38 C.F.R. § 4.71a (2020). Normal extension is 0 degrees. 38 C.F.R. § 4.71, Plate II (2020). Diagnostic Codes 5260 and 5261 are for limitation of motion. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that may not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). The Board finds the Veteran is appropriately rated for his limitation of motion under Diagnostic Code 5260. While the Veteran has arthritis in his right knee, Diagnostic Code 5003 is less favorable because there is no probative medical or lay evidence of record to show that he has incapacitating exacerbations of his arthritis, which is required for a 20 percent rating. The Veteran has not stated that he has incapacitating exacerbations and the medical evidence does not support this conclusion. Last, the Board will consider a disability rating under Diagnostic Code 5257 for instability. Under this Diagnostic Code a 10 percent rating is warranted when there is slight recurrent subluxation or lateral instability. A 20 percent rating is warranted when there is moderate recurrent subluxation or lateral instability. A 30 percent rating is warranted when there is severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a (2020). Diagnostic Code 5257 is based upon instability and subluxation, not limitation of motion, as a result, the factors set forth in 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 do not apply. DeLuca v. Brown, 8 Vet. App. 202 (1995). 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, to the end that its decisions are equitable and just. 38 C.F.R. § 4.6 (2020). It should also be noted that use of terminology such as “severe” by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (2020). The Veteran did not have removal of the semilunar cartilage, a meniscus condition, ankylosis, or genu recurvatum. Therefore, Diagnostic Codes 5256, 5258, 5259, and 5263 do not apply. 38 C.F.R. § 4.71a (2020). Facts The Veteran received a VA examination in May 2004. His flexion was to 126 degrees and extension was to 7 degrees both with pain. He had pain with bending and could not do repetitive exercises due to pain and stiffness. He experienced clicking and rubbing sounds during his flexion and extension testing. He had an additional 25 percent loss in range of motion due to excess fatigability and during flare-ups. Thus, during a flare up, his flexion would be approximately 94 degrees and his extension would be approximately 9 degrees. His knee was stable to testing. In an October 2006 private note, the examiner noted that the Veteran had pain with prolonged standing. He had full range of motion with some crepitation and his knee was stable. His next VA examination was in January 2011. He reported giving way but not instability. He had severe flare-ups every 3 to 4 months that last 2 to 4 weeks. His flare-ups were precipitated by cold weather and prolonged standing. His right knee disability also caused issue with climbing stairs, and his stiffness made walking and driving for long distances difficult. His flexion was to 110 degrees with normal extension, but no objective evidence of pain. He had giving way, stiffness, swelling, and decreased speed of joint motion. He did not have instability. In April 2016, he received another VA examination. He reported no flare-ups but experienced functional loss in the form of less flexibility. His flexion was to 85 degrees with normal extension, both with pain. After repetition testing his flexion decreased to 75 degrees, but he was not negatively impacted by weakness, fatigability, or incoordination. His strength was normal. He had no history of recurrent subluxation, lateral instability, or recurrent effusion. He tested normal on all stability testing and used no assistive devices. He did not have a meniscus condition. His most recent VA examination was in March 2020. He reported constant pain, stiffness, and intermittent swelling. He continued to report no flare-ups. His flexion was to 70 degrees with extension to 5 degrees. He experienced pain with flexion, extension, passive, weight bearing, and non-weight-bearing testing. After repetitive testing, he experiences functional loss in the form of pain and fatigue. Additionally, his flexion decreased to 60 degrees; his flexion was also to 60 degrees and extension to 5 degrees after repeated use over time. The examiner noted there was a history of recurrent effusion and noted that he had intermediate swelling at the examination. The Veteran could not perform stability testing due to pain. Last, the Veteran reported use of a brace. His passive range of motion for his right knee was 70 degrees of flexion with pain at 70 degrees and 5 degrees of extension with pain at 5 degrees. The Board also considers the Veteran’s lay statements. He reported that his knee slips when he walks, and he must sit down because of pain. He also continued to report issues with prolonged walking and standing. Diagnostic Codes 5260 and 5261 Separate ratings are available for limitations of flexion and limitations of extension under Diagnostic Codes 5260 and 5261. The Veteran has consistently reported painful flexion at his VA examinations. At worst, the Veteran was unable to flex his right knee beyond 60 degrees. Similarly, he has had painful extension, and at worst his extension was limited to 7 degrees, with an estimated extension to 9 degrees at one examination in 2004. Based on the Veteran’s flexion and extension his disability rating is more closely described by the criteria for a noncompensable rating. The provisions of 38 C.F.R. § 4.59 establish that the Veteran is entitled to at least the minimum compensable evaluation for motion that is accompanied by pain. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Consequently, the Veteran was awarded a 10 percent disability rating to compensate for his painful flexion. A 20 percent rating is not warranted because the medical and lay evidence does not show that his flexion is limited to 30 degrees. Likewise, he was awarded a noncompensable rating for his limited extension, because at no point in the examination was his extension limited to 10 degrees, which is necessary for a 10 percent disability rating. Thus, the Veteran’s limited extension is aptly rated as noncompensable. He is already being compensated for painful motion of his right knee joint. Even when considering functional limitations due to pain and other factors identified in 38 C.F.R. §§ 4.40, 4.45, the Board finds that the Veteran’s functional loss from his right knee disability does not cause the criteria for higher ratings under Diagnostic Codes 5260 or 5261 to be met. 38 C.F.R. § 4.71a (2020). The Board notes that DeLuca factors were considered by the VA examiners; the examiners noted that the Veteran’s functional impairment was impacted by fatigability, pain, and fatigue. Nevertheless, when considering those factors, the Veteran’s flexion was not limited to 30 degrees nor was his extension limited to 10 degrees. Consequently, the Board finds that and increase in his disability rating is not warranted for his limited flexion and extension. Diagnostic Code 5257 Based on the evidence of record the Board finds a separate disability rating for the Veteran’s instability is warranted. At his Board hearing he reported slipping and in his VA examinations he noted issues with giving way. At his most recent VA examination, the examiner noted that the Veteran used a cane and was unable to do stability testing due to pain. Accordingly, the Board finds that a 10 percent rating is warranted to compensate for the Veteran’s slight instability. A higher rating is not warranted as the evidence does not show the Veteran’s instability is moderate. The Board acknowledges that his most recent VA examination did not do stability testing due to pain. However, prior to that examination, he tested normal on all stability testing. Additionally, his examiners have consisting found that he did not have a history of recurrent subluxation or instability. Description of his instability does not show that his disability is moderate. The Veteran reported giving way only at his January 2011 VA examination, and while he has recently reported slipping and using a cane, he has not reported falling due to his instability. His instability is also not frequent enough to be considered moderate recurrent instability. Therefore, when considering the lay and medical evidence of record, the Board finds that the Veteran’s right knee disability is best characterized as slight instability. See 38 C.F.R. § 4.71a (2020). D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Brunot, 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.