Citation Nr: 21004351 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 10-41 332 DATE: January 26, 2021 ORDER A disability rating in excess of 10 percent for chondromalacia of the left knee, status post anterior cruciate ligament reconstruction, with residual scars, is denied. FINDING OF FACT At all times relevant to the present appeal, the preponderance of the evidence is against a finding that the Veteran’s left knee disability has been manifested by limitation of motion of the left leg to 30 degrees of flexion or to 15 degrees of extension, to include when considering his complaints of pain; frequent episodes of locking; or recurrent subluxation or lateral instability. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for chondromalacia of the left knee, status post anterior cruciate ligament reconstruction, with residual scars, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003-5261. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from November 1989 to November 1998, to include service in Southwest Asia. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an October 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida. In May 2011, the Veteran and his spouse testified at a Board hearing before a Veterans Law Judge in Washington, D.C. A transcript of that hearing has been associated with the record. In October 2017, the Board wrote the Veteran and his representative to inform them that the Veterans Law Judge who conducted the hearing in May 2011 was no longer employed by the Board. The Veteran was offered the opportunity to testify at another Board hearing, but declined. The issue on appeal was previously before the Board in April 2013, July 2016, February 2018, June 2019, and March 2020. On each occasion, it was remanded to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior 10 percent rating and returned the case to the Board. There has been at least substantial compliance with the Board’s remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to a disability rating in excess of 10 percent for chondromalacia of the left knee, status post anterior cruciate ligament reconstruction, with residual scars The Veteran asserts that his left knee disability warrants a rating in excess of 10 percent. The disability is rated under Diagnostic Code 5003-5261. Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the evaluations to be assigned to various disabilities. If 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. If different disability ratings are warranted for different periods of time over the life of a claim, “staged” ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the rating assigned. The additional code is shown after a hyphen. 38 C.F.R. § 4.27. Degenerative arthritis under Diagnostic Code 5003 will be rated on the basis of limitation of motion. When, however, limitation of motion of a particular joint is noncompensable under the appropriate diagnostic code, a 10 percent rating is for application for each major joint affected by limitation of motion. In the absence of limitation of motion, a maximum schedular 20 percent rating is assigned for degenerative arthritis of two or more major joints or two or more minor joint groups, with occasional incapacitating episodes. Diagnostic Code 5260 provides for the assignment of a noncompensable rating when flexion of the leg is limited to 60 degrees. A 10 percent rating is warranted when flexion of the leg is limited to 45 degrees. A rating of 20 percent is appropriate when leg flexion is limited to 30 degrees, and a rating of 30 percent is warranted when flexion is limited to 15 degrees. Under Diagnostic Code 5261, limitation of extension of the leg warrants a noncompensable rating if extension is limited to five degrees, a 10 percent rating if limited to 10 degrees, a 20 percent rating if limited to 15 degrees, a 30 percent rating if limited to 20 degrees, a 40 percent rating if limited to 30 degrees, and a 50 percent rating if limited to 45 degrees. See 38 C.F.R. § 4.71a, Diagnostic Code 5261. Normal range of motion of the knee is to 0 degrees on extension and to 140 degrees on flexion. 38 C.F.R. § 4.71a, Plate II. The Board notes that, during the appeal period, separate noncompensable ratings for limitation of flexion and surgical scars were awarded, effective September 14, 2020. In an August 2008 treatment record, range of motion in the Veteran’s left knee was documented from 0 to 130 degrees. The record indicates there was a well-healed surgical incision at the tibial crest, laterally and medially. Gait was noted as within normal limits. No effusion, deformity, or tenderness was noted. The Veteran was afforded a VA examination in October 2008. The examiner found that there was no deformity, giving way, instability, pain, stiffness, weakness, locking episodes, or episodes of subluxation. The examiner noted flare-ups of the knee, which were described as mild and occurring weekly. The Veteran exhibited a full range of motion, there was no additional loss of motion on repetitive use testing, and his gait was normal. At the May 2011 hearing, the Veteran described living with pain in his knee and its effect on his ability to walk. The Veteran was afforded another VA examination in May 2013. He reported that he continued to have constant pain, which he described as 7 out of 10. He reported using nonsteroidal anti-inflammatory drugs (NSAIDs) as needed. Range of motion testing revealed that he had flexion from 0 to 105 degrees and normal extension. There was no objective evidence of painful motion, and repetitive use testing revealed no additional functional or range of motion loss. The examiner also found that the Veteran did not have any functional loss and/or functional impairment of the knee and lower leg. There was no history of recurrent subluxation, lateral instability, or joint effusion. A November 2013 treatment record indicates a normal left knee examination, with no discoloration or swelling. X-rays showed mild arthritis. The Veteran was afforded another VA examination in December 2016. His symptoms included pain, with flare-ups one to two times a week, each lasting three to four days. He reported that the pain became moderately severe. Range of motion testing revealed flexion from 0 to 110 degrees and extension from 110 to 0 degrees. There was no pain noted on examination, and repetitive use testing revealed no additional functional or range of motion loss. Regarding flare-ups, the examiner found that the examination was not being conducted during a flare-up, and he was unable to state without resorting to mere speculation whether pain, weakness, fatigability, or incoordination limited functional ability with flare-ups. There was no ankylosis, history of recurrent subluxation, joint instability, meniscal condition, or joint effusion. November 2017 and January 2018 VA treatment records note that physical examination demonstrated range of motion for all planes within normal limits and normal heel-toe gait. The Veteran was afforded another VA examination in September 2018. He reported sharp pains with sitting. He reported flare-ups three to four times per month and indicated that the knee swelled with tightness. Range of motion testing revealed flexion from 0 to 105 degrees and extension from 105 to 0 degrees. Repetitive use testing revealed no additional loss of range of motion. The examiner indicated that pain was noted on examination and caused functional loss. The Veteran was not being examined immediately after repetitive use over time, but findings were medically consistent with the Veteran’s statements describing such loss. The examination was not being conducted during a flare-up but was medically consistent with the Veteran’s statements describing functional loss during flare-ups. Once again, there was no ankylosis, history of recurrent subluxation, joint instability, meniscal condition, or joint effusion. The Veteran was afforded his most recent VA examination in September 2020. His symptoms included sharp pain and stiffness, with flare-ups described as increasing pain with use. Range of motion testing revealed flexion from 0 to 90 degrees and extension from 90 to 0 degrees on both active and passive range of motion. Pain was noted on both flexion and extension, as well as on weight-bearing and non-weight-bearing. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue, or objective evidence of crepitus. The Veteran was able to perform repetitive-use testing with at least three repetitions, with range of motion testing noting flexion from 0 to 70 degrees and extension from 70 to 0 degrees. He was not being examined immediately after repetitive use over time, but findings were medically consistent with his statements describing functional loss during such use. The examiner noted that pain and lack of endurance limited functional ability with repetitive use over time, with estimated range of motion after such use being from 0 to 60 degrees of flexion, and extension from 60 to 0 degrees. The examination was not being conducted during a flare-up but was medically consistent with the Veteran’s statements describing functional loss during flare-ups. The examiner noted that pain and lack of endurance limited functional ability during flare-ups, with estimated range of motion during a flare-up from 0 to 50 degrees of flexion, and extension from 50 to 0 degrees. There was no atrophy, ankylosis, history of recurrent subluxation, joint instability, meniscal condition, or joint effusion. Based on a review of the evidence, the Board finds that the Veteran is not entitled to an increased rating for chondromalacia of the left knee based on limitation of motion. Simply put, flexion in the knee has exceeded 45 degrees throughout the appeal period, and extension has been full to 0 degrees throughout, even when accounting for episodes of flare-ups with increased pain. 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. No additional higher or alternative ratings under different Diagnostic Codes can be applied in this case. The evidence of record did not show that the Veteran had ankylosis (Diagnostic Code 5256), recurrent subluxation or lateral instability (Diagnostic Code 5257), semilunar dislocated cartilage (Diagnostic Code 5258), symptomatic removal of semilunar cartilage (Diagnostic Code 5259), impairment of the tibia or fibula (Diagnostic Code 5262), genu recurvatum (Diagnostic Code 5263), or recurrent subluxation or lateral instability (Diagnostic Code 5257). See October 2008, May 2013, December 2016, September 2018, and September 2020 VA examination reports. Furthermore, the Board notes that the Veteran is already in receipt of a noncompensable rating for scars of the left knee, which have not shown to be painful and/or unstable. The Board has considered whether higher disability ratings are warranted based on functional loss due to pain, weakness, fatigability, or incoordination. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also Mitchell, Burton, and DeLuca, supra. As noted, his left knee disability is manifested by painful motion and lack of endurance. These manifestations are specifically contemplated by the applicable rating criteria. The objective findings, as discussed above, do not demonstrate that pain has limited motion to the extent that a higher level of compensation is warranted under the applicable diagnostic codes. 38 C.F.R. § 4.71a. To the extent that the Veteran’s activities are limited because of such symptoms, such limitations are contemplated by the current rating. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). In reaching these conclusions, the Board has considered the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the assignment of a higher rating, that doctrine is not applicable. 38 U.S.C. § 5107(b). The appeal is denied. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Kettler, 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.