Citation Nr: 21004015 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 10-14 242 DATE: January 25, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for left knee disability for the period prior to December 3, 2019 is denied. Entitlement to a disability rating in excess of 30 percent for left knee disability for the period from December 3, 2019 is denied. FINDINGS OF FACT 1. Before December 3, 2019, the Veteran’s left knee disability did not result in fewer than 45 degrees of flexion, an impairment of extension, ankylosis, instability, or meniscal impairment. 2. Since December 3, 2019, the Veteran’s left knee disability has not resulted in fewer than 45 degrees of flexion, greater than 20 degrees of extension, ankylosis, instability, or meniscal impairment. CONCLUSIONS OF LAW 1. Before December 3, 2019, the criteria for a rating in excess of 10 percent for a left knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5010. 2. Since December 3, 2019, the criteria for a rating in excess of 30 percent for a left knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5261. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1973 to February 1977. This matter initially came before the Board of Veterans’ Appeals (Board) on appeal from a January 2008 rating decision. In July 2018, the Board most recently denied the Veteran’s claim for a rating in excess of 10 percent for a left knee disability. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court), which, pursuant to a March 2019 Joint Motion for Partial Remand (Joint Motion), vacated the Board’s July 2018 denial. In August 2019, the Board remanded the Veteran’s claims pursuant to the terms of the Joint Motion. The Board finds that there has been substantial compliance with its August 2019 remand directives, and it will proceed to a decision. Increased Rating The Veteran’s left knee disability is rated 10 percent disabling before December 3, 2019, and 30 percent disabling since that time. The Board will first address whether greater ratings are warranted based on limitation of motion of the left knee. Separate evaluations may be assigned for limitation of flexion and extension of the same knee joint. Limitation of flexion to 45 degrees warrants a 10 percent rating, limitation to 30 degrees warrants a 20 percent rating, and limitation to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Limitation of extension to 10 degrees warrants a 10 percent rating, limitation to 15 degrees warrants a 20 percent rating, limitation to 20 degrees warrants a 30 percent rating, limitation to 30 degrees warrants a 40 percent rating, and limitation to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5261. In this case, the Veteran filed his claim for an increased rating in October 2007. The Veteran underwent a VA examination in December 2007, at which time he reported experiencing left knee pain up to three times weekly, with the pain increasing with prolonged standing, driving, or maintaining certain positions. The Veteran had left knee flexion to 100 degrees with pain at 90 degrees, and extension to 0 degrees with pain. Repeated motion testing produced a limitation of flexion to 90 degrees and increased pain, weakness, lack of endurance, fatigue, and incoordination. The examiner diagnosed the Veteran with mild degenerative changes of the left knee. The Veteran underwent an additional examination in January 2010, at which time the Veteran stated that he experienced daily flare-ups of left knee pain as the result of weight-bearing, walking, and bending. Activities such as getting into and out of his car and standing for prolonged periods worsened his left knee pain. The Veteran had left knee flexion to 95 degrees and extension to 0 degrees, with effusion limiting the Veteran’s motion. Repeated motion testing resulted in increased pain but no additional limitation of motion, fatigability, lack of endurance, or incoordination. The Veteran underwent an additional examination in November 2012, at which time the Veteran complained of daily pain in his left knee that increased with even small movement. The Veteran stated that he experienced flare-ups of symptoms that left him unable to stand for prolonged times, and that limited his ability to participate in social activities and sports. The Veteran had left knee flexion to 120 degrees and extension to 0 degrees without objective evidence of painful motion. Repetitive use testing did not result in an additional loss of motion or other functional loss. The examiner indicated that the Veteran experienced functional loss of the left knee if the form of less movement than normal, painful movement, disturbance of locomotion, and interference with sitting, standing, and weight-bearing. While it has included the findings of this examination report, the Board acknowledges that the Court’s March 2019 Joint Motion found that this report was inadequate because the examiner failed to elicit adequate detail regarding the functional loss that the Veteran experienced during flare-ups. Pursuant to the guidance of the Joint Motion, the Veteran underwent an additional examination in December 2019, at which time the Veteran reported that his left knee pain had worsened over the last 5 years. The Veteran stated that he could no longer run, and he could only walk one mile. The Veteran stated that he could experience flare-ups with rest, standing, or walking, and he indicated that he experienced flare-ups approximately 5 days out of the week. The Veteran had left knee flexion to 120 degrees and extension to 0 degrees, in each case with pain. The examiner noted that the Veteran’s abnormal range of motion did not result in a functional loss. Repetitive use testing did not result in an additional loss of motion or other functional loss. While the Veteran’s left knee was not assessed following repetitive use over time, the examiner found that pain would limit functional ability with repeated use over time, resulting in left knee flexion to 90 degrees and extension to 20 degrees. Similarly, while the Veteran’s left knee was not assessed during a flare-up, the examiner found that pain would limit functional ability during a flare-up, resulting in left knee flexion to 90 degrees and extension to 20 degrees. The Veteran’s treatment records show left knee symptoms that are similar to those described in the above examination reports. Since filing his claim for an increased rating, the Veteran has sought treatment for symptoms affecting his left knee. For example, in February 2013, the Veteran reported experiencing increasing left knee pain with intermittent swelling. In February 2017, the Veteran stated that his left knee hurt and swelled with exercise and waking from sleep. Turning to an analysis of this evidence, before December 3, 2019, the Veteran’s left knee disability was rated 10 percent disabling on the basis of painful motion. Since December 3, 2019, the Veteran’s left knee disability has been rated 30 percent disabling on the basis of impaired extension. With regard to greater ratings based on an impairment of flexion, the Veteran’s left knee has never shown flexion limited to 45 or fewer degrees, even when taking pain into consideration. The Board thus finds that ratings in excess of the currently-assigned 10 percent and 30 percent ratings for the Veteran’s left knee disability based on a limitation of flexion are unwarranted. 38 C.F.R. § 4.71a, Diagnostic Code 5260. With regard to greater ratings based on an impairment of extension, the Veteran’s left knee consistently showed full extension before December 3, 2019. Since December 3, 2019, the Veteran’s left knee extension has not been limited to 30 degrees or greater. The Board thus finds that ratings in excess of the currently-assigned 10 percent and 30 percent ratings for the Veteran’s left knee disability based on a limitation of extension are unwarranted. 38 C.F.R. § 4.71a, Diagnostic Code 5261. The Board must additionally consider functional loss due to pain and weakness that causes additional disability beyond that which is reflected on range of motion measurements. 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board must consider the effects of weakened movement, excess fatigability and incoordination. 38 C.F.R. § 4.45. VA examiners have noted the Veteran’s complaints such as pain, and the Board has taken those complaints into consideration in its above discussion. The Board finds that the evidence does not support a finding that the Veteran’s functional loss causes disability beyond the above discussed range of motion testing. The Board accepts the credible contentions of the Veteran that his left knee disability causes him to experience pain, and these contentions have, in part, formed the basis of the Veteran’s existing 10 percent and 30 percent ratings for his left knee disability. The Board has also considered the effects of flare-ups on the Veteran’s functioning. Sharp v. Shulkin, 29 Vet. App. 26 (2017); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Such flare-ups must be quantifiable and result in a limitation of motion or function beyond that contemplated by the already provided evaluation. In addition, because there is a regulation addressing stabilization of ratings, the flare-up must be of a sufficient length to establish a greater severity of overall impairment, rather than a brief snapshot in time. The Board’s above analysis considers the Veteran’s reports of the nature and extent of his flare-ups and finds that such reports do not warrant greater ratings than those currently assigned. The Board will next address whether separate ratings of the left knee based on meniscal impairment and instability are warranted. Lyles v. Shulkin, 29 Vet. App. 107 (2017). Recurrent subluxation or lateral instability of the knee is rated at 10 percent when slight, 20 percent when moderate, and 30 percent when severe. 38 C.F.R. § 4.71a. The terms “slight,” “moderate,” and “severe” are not defined in the rating schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are equitable and just as contemplated by the requirements of the law. 38 C.F.R. § 4.6. Additionally, when the semilunar cartilage (that is, the meniscus) is dislocated with frequent episodes of locking, pain and effusion into the joint, a 20 percent rating is assigned. 38 C.F.R. § 4.71a, Diagnostic Code 5258. When the semilunar cartilage has been removed but remains symptomatic, a 10 percent rating is assigned. 38 C.F.R. § 4.71a, Diagnostic Code 5259. In this case, in December 2007, the Veteran stated that he experienced swelling and buckling of the left knee. No crepitus, heat, or redness was noted, but the left knee had mild effusion with mild synovial thickening. The examiner found the Veteran’s left knee to be stable. In January 2010, the Veteran noted “a lot of swelling” in his left knee, but he did not wear a brace. An examiner noted that the left knee had “considerable effusion” when compared to the right knee, but there was no heat or erythema. Joint stability testing was normal. An MRI examination of the left knee showed advanced chondromalacia patella, a small to moderate joint effusion, but no meniscal tear. In September 2010, a clinician noted slight swelling of the Veteran’s left knee, but the joint was stable. In November 2012, the Veteran stated that he experienced swelling, tenderness, popping, grinding, and instability of the left knee. Joint stability testing was normal, and there was no evidence or history of recurrent patellar subluxation or dislocation. The Veteran had never had a meniscal condition. In February 2013, the Veteran denied experiencing episodes of locking or giving way of the left knee, and the left knee was noted not to have effusion or warmth. In December 2019, the Veteran stated that he experienced frequent episodes of joint locking, pain, and effusion. With that said, the examiner noted that the Veteran did not, in fact, have a history of recurrent subluxation, lateral instability, or recurrent effusion of the left knee. Joint stability testing was normal. In a separate statement, the examiner stated that the Veteran experienced slight joint effusion. Turning to an analysis of these facts, the weight of the evidence is against a finding that the Veteran’s left knee has shown even slight instability at any time since filing his claim for an increased rating. In making this determination, the Board acknowledges that the Veteran has occasionally complained of symptoms such as buckling and instability. With that said, joint stability testing of the Veteran’s left knee has been consistently normal, and clinicians have found the left knee not to have recurrent subluxation or instability. The evidence is similarly against a finding that the Veteran has ever experienced a meniscal condition affecting the left knee. Separate ratings addressing instability or meniscal impairment of the left knee are unwarranted. To the extent the Veteran believes his limitation of flexion or extension has been to a specific degree, or that he clinically demonstrated instability, he is not competent to provide a clinical assessment in this case. To do so would require knowledge and experience in the use of a goniometer and performing clinical assessments of musculoskeletal issues related to the knee. Additionally, in November 2020, the Veteran, through his representative, raised the issue of entitlement to an extraschedular disability rating. VA may assign an extraschedular evaluation when the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability are inadequate. See 38 C.F.R. § 3.321; see also Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board does not have authority to grant an extraschedular rating in the first instance, but it must determine whether the claim should be referred to the VA Under Secretary for Benefits or the Director of the Compensation Service for consideration of an extraschedular rating. (Continued on the next page)   In this case, such a referral is unwarranted because the evidence does not show such an exceptional disability picture that the available schedular criteria for a left knee disability are inadequate. 38 C.F.R. § 3.321 (b)(1); Thun v. Peake, 22 Vet. App. 111 (2008). While the Veteran has broadly stated that his left knee disability warrants an extraschedular rating, he has not identified any symptoms that render the available schedular ratings inadequate. Upon review of the record, the Board finds that the available schedular criteria contemplate the Veteran’s symptoms of pain, impaired movement, and instability of the left knee. A referral of this case to the VA Under Secretary for Benefits or the Director of the Compensation Service for consideration of an extraschedular rating is unwarranted. Marissa Caylor Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.A. Flynn, 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.